**Exhibit 10.435**

 

**AGREEMENT OF PURCHASE AND SALE**

 

This Agreement ofPurchase and Sale (“Agreement”) is made and entered into by and betweenPurchaser and Seller.

 

**RECITALS**

 

**A**.                                    Definedterms are indicated by initial capital letters. Defined terms shall have the meaning set forth herein, whether or notsuch terms are used before or after the definitions are set forth.

 

**B**.                                    Purchaserdesires to purchase the Property and Seller desires to sell the Property, allupon the terms and conditions set forth in this Agreement.

 

**NOW,THEREFORE,**in consideration of the mutual terms, provisions,covenants and agreements set forth herein, as well as the sums to be paid byPurchaser to Seller, and for other good and valuable consideration, the receiptand sufficiency of which are acknowledged, Purchaser and Seller agree asfollows:

 

**ARTICLE 1**

**BASIC INFORMATION**

 

**1.1****                              ****Certain Basic Terms.  **The following defined terms shall have the meanings set forth below:

 

**1.1.1**                     Seller:    Sun Life Assurance Companyof Canada, a Canadian corporation

 

**1.1.2**                     Purchaser:     Inland Real EstateAcquisitions,  Inc.,  an Illinois corporation

 

**1.1.3**                     Purchase Price:  Eight Million One Hundred Fifty Thousand and No/100 Dollars($8,150,000.00).

 

**1.1.4**                     EarnestMoney:    One Hundred Thousand andNo/100 Dollars ($100,000.00) (the  “EarnestMoney”), to be deposited in accordance with Section 3.1 below.

 
| **1.1.5** | Title Company: | Chicago Title Insurance Company  171 N. Clark Street  Chicago, IL 60601  Attn: David Kozicki  Telephone: 312-223-3117  Fax: 312-223-5800 |   |
|-----------|----------------|------------------------------------------------------------------------------------------------------------------------------------------|--------|

 

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| **1.1.6** | Escrow Agent: | Chicago Title Insurance  Company  171 N. Clark Street  Chicago, IL 60601  Attn: Ms. Nancy Castro  Telephone: 312-223-2709  Fax: 312-223-2709                 |
|-----------|---------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------|
|      |          |                                                                                                                                                         |   |   |
| **1.1.7** | Broker:       | Robert S. Carter

Berkeley Capital Advisors,  LLC  831 East Morehead, Suite 650  Charlotte, North Carolina 28202  Telephone: 704.379.1983  Fax: 704.379.1988 |

 

**1.1.8**                     Effective Date:  Thedate on which this Agreement is executed by the latter to sign of Purchaser orSeller, as indicated on the signature page of this Agreement.

 

**1.1.9**                     Property Information Delivery Date:  Thedate which is three (3) business days after the Effective Date.

 

**1.1.10**              Title and Survey Review Period:  Theperiod beginning on the Effective Date and ending thirty (30) days thereafter.

 

**1.1.11    **Inspection Period:  Theperiod beginning on the Effective Date and ending on thirty (30) daysthereafter.

 

**1.1.12**              Closing Date:  Immediatelyupon expiration of the Title and Survey Review Period and Inspection Period.

 

**1.1.13**              Seller’s Knowledge:  Theactual knowledge, without independent investigation, of William M. Barres,Seller’s Investment Officer.

 

**1.2**                               **Closing Costs**.  Closingcosts shall be allocated and paid as follows:

 
| **Cost**                                                                                                  | ** ** | **Responsible  Party** |
|-----------------------------------------------------------------------------------------------------------|------------|------------------------|
|                                                                                                      |       |                   |
| Title  Commitment required to be delivered pursuant to Section 5.1                                        |       | Purchaser              |
|                                                                                                      |       |                   |
| Premium  for standard coverage form Title Policy required to be delivered pursuant to Section  5.4        |       | Purchaser              |
|                                                                                                      |       |                   |
| Premium  for any upgrade of Title Policy to extended coverage and any endorsements  desired by Purchaser. |       | Purchaser              |
|                                                                                                      |       |                   |
| Costs  of Survey Update or any revisions, modifications or recertifications  thereto                 |       | Purchaser              |
|                                                                                                      |       |                   |
| Costs  of environmental studies and tests                                                                 |       | Purchaser              |

 

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| Escrow  Fees                                                     |   | Purchaser l/2* *Seller  l/2    |
|------------------------------------------------------------------|--------|-------------------------------------|
|                                                             |   |                                |
| South  Carolina State/Greenville County real estate transfer tax |   | Seller                              |
|                                                             |   |                                |
| Real  Estate Sales Commission to Broker                          |   | Seller                              |
|                                                             |   |                                |
| All  other closing costs, expenses, charges and fees             |   | Purchaser or Seller, as  Applicable |

 

**1.3****                              ****Notice Addresses:**

 

Seller: Sun Life Assurance Company of Canada, One Sun Life ExecutivePark, SC-1307, Wellesley Hills, MA, 02481; Attn: William M. Barres, Telephone:781.446.1159; Facsimile: 781.304.5525 with a copy to Joanne M. Schreiner, Esq.,1900 Chemed Center, 255 East Fifth Street, Cincinnati, OH 45202.

 

Purchaser: Inland Real Estate Acquisitions, Inc., 2901 ButterfieldRoad, Oak Brook, Illinois, 60523; Attn: Joseph G. Cosenza, Telephone:630.218.4948; Facsimile; 630.218.4035, with copy to Robin Rash, Esq. The InlandReal Estate Group, Inc., 2901 Butterfield Road, Oak Brook, Illinois 60523,Telephone: 630.218.8000, ext. 2854; Facsimile 630.218.4900.

 

**1.4****                              ****Index of Certain AdditionalDefined Terms:**

 

Assignment: Subsection 7.3.2

 

CasualtyNotice: Section 6.2

 

Closing: Section 7.1

 

Closing Agent:Section 7.1

 

Deed:  Subsection 7.3.1

 

Due Diligence TerminationNotice: Section 4.4

 

EstoppelCertificates:Subsection 7.3.5

 

Improvements: Subsection 2.1.1

 

IntangiblePersonal Property:Subsection 2.1.4

 

Land: Subsection 2.1.1

 

Leases: Subsection 2.1.2

 

LeasingCommission Agreements:Subsection 4.1.7

 

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MaterialDamage: Subsection6.2.1

 

OperatingStatements:Subsection 4.1.1

 

PermittedExceptions: Section 5.3

 

PermittedOutside Parties:Section 4.7

 

Property: Section 2.1

 

PropertyDocuments: Section4.4

 

PropertyInformation: Section4.1

 

RealProperty: Subsection2.1.1

 

Reports: Section 4.5

 

ServiceContracts: Subsection4.1.5

 

Survey: Section 5.2

 

SurvivalPeriod: Section 9.3

 

TangiblePersonal Property:Subsection 2.1.3

 

Taxes: Section 8.1

 

TenantReceivables:Subsection 8.1.3

 

TitleCommitment: Section5.1

 

UnbilledTenant Receivables:Subsection 8.1.3(a)

 

UncollectedDelinquent Tenant Receivables: Subsection 8.1.3(a)

 

**ARTICLE 2**

**PROPERTY**

 

**2.1**                               Subject to the terms and conditions of thisAgreement, Seller agrees to sell to Purchaser, and Purchaser agrees to purchasefrom Seller, the property commonly known as the Five Forks Shopping Center,Greenville County, South Carolina, a retail shopping center containingapproximately 64,173 net rentable square feet, situated on approximately 8.1acres of land, including the following (collectively, the “Property”):

 

**2.1.1**                     **Real Property**.  Theland described in “Exhibit A” attached hereto (the “Land”),together with (i) all improvements located thereon (“Improvements”),(ii) all and singular the rights, benefits, privileges, easements,

 

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tenements,hereditaments, and appurtenances thereon or in anyway appertaining thereto, and(iii) without warranty, all right, title, and interest of Seller, if any, inand to all strips and gores and any land lying in the bed of any street, roador alley, open or proposed, adjoining such Land (collectively, the “RealProperty”).

 

**2.1.2****                    ****Leases**.  Allof Seller’s right, title and interest, in all leases of the Real Property,including leases which may be made by Seller after the Effective Date and priorto Closing as permitted by this Agreement (the “Leases”).

 

**2.1.3****                    ****Tangible Personal Property**.  Allof Seller’s right, title and interest, without warranty, except as specificallyprovided herein, in  the equipment,machinery, furniture, furnishings, supplies and other tangible personalproperty, if any, owned by Seller and now or hereafter located in and used inconnection with the operation, ownership or management of the Real Property,but specifically excluding any items of personal property owned by tenants ator on the Real Property and further excluding any items of personal propertyowned by third parties and leased to Seller (collectively, the “TangiblePersonal Property”).

 

**2.1.4****                    ****Intangible Personal Property**.  Allof Seller’s right, title and interest, if any, without warranty, except asspecifically provided herein, in all intangible personal property related tothe Real Property and the Improvements, including, without limitation: alltrade names and trade marks associated with the Real Property and theImprovements, including Seller’s rights and interests, if any, in the name ofthe Real Property; the plans and specifications and other architectural andengineering drawings for the Improvements, if any (to the extent assignablewithout cost to Seller); warranties (to the extent assignable without cost toSeller); contract rights related to the construction, operation, ownership ormanagement of the Real Property, if any (but only to the extent assignablewithout cost to Seller and Seller’s obligations thereunder are expresslyassumed by Purchaser pursuant to this Agreement); governmental permits,approvals and licenses, if any (to the extent assignable without cost toSeller); and telephone exchange numbers (to the extent assignable without costto Seller) (collectively the “Intangible Personal Property”).

 

**ARTICLE 3**

**EARNEST MONEY**

 

**3.1****                              ****Deposit and Investment of EarnestMoney**.  Within three (3) business days after theEffective Date, Purchaser shall deposit the Earnest Money with Escrow Agent.Escrow Agent shall invest the Earnest Money in government insured interest-bearingaccounts if and as directed by Purchaser, shall not commingle the Earnest Moneywith any funds of Escrow Agent or others. Such account shall have no penaltyfor early withdrawal, and Purchaser accepts all risks with regard to suchaccount. Interest on the Earnest Money shall be deemed to accrue for thebenefit of Purchaser for tax purposes, and Purchaser shall provide a U.S.federal taxpayer identification number to Escrow

 

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Agent promptly following thedeposit of the Earnest Money. Interest earned on the Earnest Money, if any,shall otherwise be deemed to be part of the Earnest Money. The parties shall,upon the Effective Date, execute the Disclosure and Escrow Agreement attachedas Exhibit C.

 

**3.2****                              ****Form;****Failure to Deposit.**  TheEarnest Money shall be in the form of (a) check or (b) wire transfer to EscrowAgent of immediately available U.S. federal funds. If Purchaser fails to timelydeposit the Earnest Money within the time periods required, Seller mayterminate this Agreement by written notice to Purchaser, and thereafter theparties hereto shall have no further rights or obligations hereunder, exceptfor rights and obligations which, by their terms, survive the terminationhereof.

 

**3.3****                              ****Disposition of Earnest Money.**  TheEarnest Money shall be applied as a credit to the Purchase Price at Closing or,if elected by Purchaser, shall be returned to Purchaser.    However, if Purchaser elects to terminatethis Agreement prior to the expiration of the Inspection Period pursuant to Section4.4, Escrow Agent shall pay the entire Earnest Money to Purchaser withintwo (2) business days following receipt of the Due Diligence Termination Noticefrom Purchaser (as long as the current investment can be liquidated anddisbursed in two (2) business days), provided Escrow Agent notifies Seller of Purchaser’s election toterminate this Agreement prior to paying the Earnest Money to Purchaser. In theevent of a termination of this Agreement by either Seller or Purchaser for anyreason other than pursuant to Section 4.4*,*Escrow Agent is directed to deliver theEarnest Money to the party hereto entitled to same pursuant to the terms hereofon or before the third (3rd) business day following receipt byEscrow Agent and the non-terminating party of written notice of suchtermination from the terminating party, unless the other party hereto notifiesEscrow Agent that it disputes the right of the other party to receive theEarnest Money,   In such event, EscrowAgent may interplead the Earnest Money into a court of competent jurisdictionin the county in which the Earnest Money has been deposited.   All attorneys’ fees and costs and EscrowAgent’s costs and expenses incurred in connection with such interpleader shallbe assessed against the party that is not awarded the Earnest Money, or if theEarnest Money is distributed in part to both parties, then in the inverseproportion of such distribution.

 

**ARTICLE 4**

**DUE DILIGENCE**

 

**4.1****                              ****Due Diligence Materials To BeDelivered.**  To the extent such items are in Seller’spossession or control, Seller shall deliver to Purchaser the following (the “PropertyInformation”) on or before the Property Information Delivery Date:

 

4.1.1                        Financial Information.  Copy of operating statements and a summary ofcapital expenditures pertaining to the Property for the twelve (12) monthspreceding the Effective Date of this Agreement or such lesser period as Sellerhas owned the Property (“Operating Statements”);

 

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4.1.2                        Environmental Reports.  Copy of any environmental reports or siteassessments related to the Property prepared for the benefit of Seller;

 

4.1.3                        Tax Statements.  Copy of ad valorem tax statements relating tothe Property for the current tax period;

 

4.1.4                        Title and Survey.  Copy of Seller’s most current title insuranceinformation and survey of the Property;

 

4.1.5                        Service Contracts.  Copies of the service, supply, equipmentrental, and other service contracts and license agreements related to theoperation of the Property (“Service Contracts”);

 

4.1.6                        Personal Property.  A list of Tangible Personal Property;

 

4.1.7                        Leasing Commissions.  A list of contingent leasing commissionagreements with respect to the Leases of the Property (“Leasing CommissionAgreements”); and

 

4.1.8.       Additional Materials. To the extent not included in theforegoing, additional documentation listed on   Exhibit G (the“Due Diligence Items”).

 

**4.2****                              ****Physical Due Diligence**.  Commencing on the Effective Date andcontinuing until the Closing, Purchaser shall have reasonable access to theProperty at all reasonable times during normal business hours, upon appropriatenotice to tenants as permitted or required under the Leases, for the purpose ofconducting reasonably necessary tests, including surveys and architectural,engineering, geotechnical and environmental inspections and tests, providedthat Purchaser must give Seller forty eight (48) hours prior telephone orwritten notice of any such inspection or test. At Seller’s election, arepresentative of Seller shall be present at any entry by Purchaser or itsagents, contractors or employees (collectively, **“PurchaserParties”**) upon the Property.  Allpersons or entities conducting tests or inspections on the Property shall beduly qualified, experienced, and, if required by the State of South Carolina,registered and licensed with the State of South Carolina for theinvestigations, inspections and tests which they will perform on the Property.Purchaser shall not perform any invasive or intrusive inspection, test orinvestigation of the Property (including, without limitation, any drillings,test borings, core samplings, or other disturbance of the Property for reviewof soils, compaction, environmental, structure or other conditions of theProperty) without Seller’s prior written consent, which consent may be given,withheld or conditioned in Seller’s sole discretion. Subject to the provisionsof Section 4.7 hereof, Purchaser or Purchaser’s representatives may meetwith any tenant; provided, however, Purchaser must contact Seller at leastforty-eight (48) hours in advance by telephone or fax to inform Seller ofPurchaser’s intended meeting and to allow Seller the opportunity to attend suchmeeting if Seller desires. Subject to the provisions of Section 4.7hereof, Purchaser or Purchaser’s representatives may meet with any governmentalauthority for any good faith, reasonable purpose in connection with thetransaction contemplated by this Agreement; provided, however, Purchaser must contactSeller at least forty-eight

 

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(48)hours in advance by telephone or fax to inform Seller of Purchaser’s intendedmeeting and to allow Seller the opportunity to attend such meeting if Sellerdesires.

 

Followingany such entry or work, unless otherwise directed in writing by Seller,Purchaser shall restore the Property to the condition it was in prior to suchentry or work, including without limitation repairs to and the re-compaction orremoval of any disrupted soil or material as Seller may reasonably direct. Allactivities, including without limitation, restoration or repair work, shall bein accordance with applicable laws, including without limitation, laws relatingto worker safety and the proper disposal of discarded materials.

 

Purchaserand all Purchaser Parties shall, prior to commencing and at all times whileperforming any investigations, inspections and tests on the Property, maintainall risk commercial general liability insurance in an amount not less than$1,000,000.00 per occurrence and $2,000,000.00 annual aggregate covering anyaccident arising in connection with the presence of Purchaser or PurchaserParties on the Property, naming Seller as additional insured thereunder. Allsuch insurance policies shall be provided by insurance companies reasonablyacceptable to Seller. Prior to performing any investigations, inspections andtests on the Property, Purchaser and the Purchaser Parties performing the workshall deliver one or more certificates of insurance to Seller evidencing theinsurance required hereunder. Purchaser shall indemnify, defend, protect andhold harmless Seller, its property manager, and their directors, officers,agents, employees, members, representatives and managers from any and allclaims, liabilities, demands, losses, costs, expenses (including reasonablelegal fees, expenses and costs of investigation), damages or recoveries,including those for injury to person or property, arising out of or relating toany such Due Diligence activities or the acts or omissions of Purchaser orPurchaser Parties on the Property.

 

Buyeracknowledges that extensive local, state and federal legislation and regulationestablish broad liability upon owners and/or users of real property for theinvestigation and remediation of Hazardous Substances (as that term is definedbelow). Buyer acknowledges that Seller has advised Buyer to consult its owntechnical and legal experts with respect to the possible existence of HazardousSubstances at, on, under and near the Property and Buyer hereby assumes allrisks with respect to the effect of the existence or possible existence of allHazardous Substances. Such investigations may include searches of records ofgovernmental offices to determine whether Hazardous Substances or any equipmentor facility generating, manufacturing, producing, handling, storing, using,transporting, disposing or otherwise dealing with Hazardous Substances may havebeen or is located in, on, under or in the vicinity of the Property and, if so,whether any clean up, containment, removal or other remedial action must orshould be taken in connection therewith. The term **“Hazardous****Substances**”means any material, waste, chemical, compound, substance, mixture, or byproductthat is identified, defined, designated, listed, restricted or otherwiseregulated under federal, state or local environmental laws as a “hazardousconstituent,” “hazardous substance,” “hazardous material,” “extremely hazardousmaterial,” “hazardous waste,” “acutely hazardous waste,” “hazardous wasteconstituent,” “infectious waste,” “medical waste,”

 

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“biohazardouswaste,” “extremely hazardous waste,” “pollutant,” “toxic pollutant,” or “contaminant,”or any other formulation intended to classify substances by reason ofproperties that are deleterious to the environment, natural resources or publichealth or safety including, without limitation, ignitability, corrosiveness,reactivity, carcinogenicity, toxicity, and reproductive toxicity. The term “**Hazardous Substances**” includes without limitation anymaterial or substance which is (i) petroleum, (ii) asbestos, (iii) designatedas a “hazardous substance” pursuant to Section 311 of the Federal WaterPollution Control Act, 33 U.S.C. § 1251 etseq. (33 U.S.C. §1321), (iv) defined as a “hazardous waste” pursuant to Section 1004 of theFederal Resource Conservation and Recovery Act, 42 U.S.C. § 6901 etseq.(42 U.S.C. § 6903), (v) defined as a “hazardous substance” pursuant to Section101 of the Comprehensive Environmental Response, Compensation and Liability Actof 1980, as amended, 42 U.S.C. § 9601 etseq. (42 U.S.C. § 9601),or (vi) designated as a hazardous substance, material or waste pursuant to theWashington Model Toxics Control Act, RCW 70.105D.010 etseq.

 

Theterms of this Section 4.2 shall survive Closing or termination of theAgreement.

 

**4.3****                              ****Estoppel Certificates**.  Followingthe Effective Date, Seller will make good faith efforts to obtain from each ofthe tenants under the Leases, signed estoppel certificates in the form attachedhereto as Exhibit F-l (the “Estoppel Certificates”). The partiesacknowledge that “good faith efforts” will not be deemed to require the paymentof fees or other consideration that may be required by a tenant as a conditionto issuing an Estoppel Certificate; provided that Purchaser shall be under noobligation to close unless, not later than five (5) business days prior to theClosing Date, original or faxed copies of estoppel certificates have beenreceived for the following tenants (a) Bi-Lo Supermarket and Blockbuster Video;plus (b) tenants of at least seventy-five percent (75%) of the remaining squarefootage of the Property currently leased to tenants, not including BlockbusterVideo and Bi-Lo Supermarket (the “Required Estoppels”). Following receipt froma tenant, Seller shall fax or deliver the signed Estoppel Certificates toPurchaser for Purchaser’s approval or disapproval. Purchaser’s failure todisapprove of any Estoppel Certificate by written notice to Seller within five(5) business days after delivery of a copy thereof shall be deemed Purchaser’sapproval thereof. Notwithstanding the foregoing, Purchaser shall not have theright to disapprove of any Estoppel Certificate which is in form and substancematerially the same as the form attached hereto as Exhibit F-l (exceptas to information provided by the tenant) or in the form of estoppelcertificate permitted under such tenant’s Lease and which is not materiallyinconsistent with the Lease of such Tenant. Furthermore, Purchaser shall notreject Estoppel Certificates with commercially reasonable markups or changesinitiated by the Tenant. If any Estoppel Certificate is disapproved byPurchaser, Seller shall have the right, but not the obligation to cure suchdeficiencies and obtain and deliver to Purchaser, a revised EstoppelCertificate, on or before three (3) business days prior to Closing.Additionally, if Seller provides the Required Estoppels but is unable toprovide an acceptable Estoppel Certificate from any remaining tenant (up to100% of the total square footage of the Property), then Seller, not later thanthree (3) business days prior to Closing, shall deliver to Purchaser anEstoppel Certificate certified by Seller, to Seller’s

 

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knowledge, in the formattached hereto as Exhibit F-2 (the “Seller’s Estoppel”), whichcertification shall survive the Closing for a maximum period of one (1) year(provided, however, if Seller subsequently delivers a Estoppel Certificate fromsuch tenant(s), Seller shall thereafter be released from such certification).

 

If,by three (3) business days prior to the Closing Date, Seller has not deliveredall of the Estoppel Certificates or Seller’s Estoppel required hereunder,Purchaser shall have the right to terminate this Agreement upon written noticeto Seller; provided, however, that Seller shall have the right to avoidtermination of this Agreement by extending the Closing Date for one (1) periodof up to fifteen (15) days for the purposes of obtaining the necessary EstoppelCertificates to satisfy the requirements of this Section 4.3 byproviding written notice to Purchaser not later than two (2) days prior to thescheduled Closing Date. If Purchaser timely terminates this Agreement, theEarnest Money shall be delivered by Escrow Holder to Purchaser, and Purchaserand Seller shall not have any further liability to the other under thisAgreement except those obligations expressly surviving termination of thisAgreement.  Failure to obtain theEstoppel Certificates shall not be a breach of this Agreement, unless Sellerhas failed to make a good faith effort to obtain such Estoppel Certificates.

 

**4.4****                              ****Due Diligence/Termination Right**.  Purchasershall have through the last day of the Inspection Period in which to (i)examine, inspect, and investigate the Property Information (collectively, the “PropertyDocuments”) and the Property and, in Purchaser’s sole and absolute judgmentand discretion, determine whether the Property is acceptable to Purchaser, (ii)obtain all necessary internal approvals, and (iii) satisfy all othercontingencies of Purchaser. Notwithstanding anything to the contrary in thisAgreement, Purchaser may terminate this Agreement for any reason or no reasonby giving written notice of termination to Seller and Escrow Agent (the “DueDiligence Termination Notice”) on or before the last day of the InspectionPeriod. If Purchaser does not give a Due Diligence Termination Notice, this Agreementshall continue in full force and effect, Purchaser shall be deemed to havewaived its right to terminate this Agreement pursuant to this Section 4.4,and Purchaser shall be deemed to have acknowledged that it has received or hadaccess to all Property Documents and conducted all inspections and tests of theProperty that it considers important.

 

**4.5****                              ****Return of Documents and Reports.**  Ifthis Agreement terminates for any reason, Purchaser shall promptly returnand/or deliver to Seller all Property Documents and copies thereof.   Additionally, if this Agreement terminatesfor any reason, then Purchaser must deliver to Seller copies of all third partyreports, investigations and studies, other than economic analyses(collectively, the “Reports” and, individually, a “Report”)prepared for Purchaser in connection with its due diligence review of theProperty provided Seller first delivers to Purchaser the total, actual cost ofall such Reports. The Reports shall be delivered to Seller without anyrepresentation or warranty as to the completeness or accuracy of the Reports orany other matter relating thereto, and Seller shall have no right to rely onany Report without the written consent of the party preparing same.    Purchaser’s obligation to deliver the PropertyDocuments and the Reports to Seller shall survive the termination of thisAgreement.

 

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**4.6****                              ****Service****Contracts.  **Seller shall deliver at Closing notices of termination of all ServiceContracts.

 

**4.7****                              ****Proprietary Information;Confidentiality.**  Purchaser acknowledges that the PropertyDocuments are proprietary and confidential (except to the extent available fromthird parties) and will be delivered to Purchaser solely to assist Purchaser indetermining the feasibility of purchasing the Property.    Purchaser shall not use the PropertyDocuments for any purpose other than as set forth in the preceding sentence.Purchaser shall not disclose the contents to any person other than to thosepersons who are responsible for determining the feasibility of Purchaser’sacquisition of the Property and who have agreed to preserve the confidentialityof such information as required hereby, or to any governmental orquasi-governmental agency to which Purchaser is legally obligated to disclosesuch matters, (collectively, “Permitted Outside Parties”). At any timeand from time to time, within two (2) business days after Seller’s request,Purchaser shall deliver to Seller a list of all parties to whom Purchaser hasprovided any Property Documents or any information taken from the PropertyDocuments,  Purchaser shall not divulgethe contents of the Property Documents and other information except in strictaccordance with the confidentiality standards set forth in this Section 4.7.    In permitting Purchaser to review theProperty Documents or any other information, Seller has not waived anyprivilege or claim of confidentiality with respect thereto, and no third partybenefits or relationships of any kind, either express or implied, have beenoffered, intended or created.

 

**4.8****                              ****No****Representation or****Warranty by Seller.** Purchaser acknowledges that, except as expressly set forth in thisAgreement, Seller has not made any warranty or representation regarding thetruth, accuracy or completeness of the Property Documents or the source(s)thereof.   Purchaser further acknowledgesthat some if not all of the Property Documents were prepared by third partiesother than Seller.  Except as otherwiseset forth in this Agreement, Seller expressly disclaims any and all liabilityfor representations or warranties, express or implied, statements of fact andother matters contained in such information, or for omissions from the PropertyDocuments, or in any other written or oral communications transmitted or madeavailable to Purchaser. Except as otherwise set forth in this Agreement,Purchaser shall rely solely upon its own investigation with respect to theProperty, including, without limitation, the Property’s physical, environmentalor economic condition, compliance or lack of compliance with any ordinance,order, permit or regulation or any other attribute or matter relating thereto.Seller has not undertaken any independent investigation as to the truth,accuracy or completeness of the Property Documents and is providing theProperty Documents solely as an accommodation to Purchaser.

 

**4.9****                              ****Purchaser’s Responsibilities. **In conducting any inspections, investigations or tests of the Propertyand/or Property Documents, Purchaser and its agents and representatives shall:(i) not unreasonably disturb the tenants or interfere with their use of theProperty pursuant to their respective Leases; (ii) not interfere with theoperation and maintenance of the Property; (iii) not damage any part of the Propertyor any personal property owned or held by any tenant or any third party unlessany such

 

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damage is repaired promptlyto Seller’s satisfaction; (iv) not injure or otherwise cause bodily harm toSeller, or its respective agents, guests, invitees, contractors and employeesor any tenants or their guests or invitees; (v) comply with all applicablelaws; (vi) promptly pay when due the costs of all its tests, investigations,and examinations done with regard to the Property; (vii) not permit any liensto attach to the Real Property by reason of the exercise of its rightshereunder; (viii) repair any damage to the Real Property resulting directly orindirectly from any such inspection or tests; and (ix) not reveal or discloseprior to Closing any information obtained during the Inspection Periodconcerning the Property and the Property Documents to anyone other than thePermitted Outside Parties, in accordance with the confidentiality standards setforth in Section 4.7 above, or except as may be otherwise required bylaw.

 

**4.10****                       ****Purchaser’s Agreement toIndemnify.**  Purchaser indemnifies and holds Sellerharmless from and against any and all liens, claims, causes of action, damages,liabilities and expenses (including reasonable attorneys’ fees) arising out ofPurchaser’s inspections or tests permitted under this Agreement or anyviolation of the provisions of Sections 4.2, 4.7 and 4.9; provided,however, the indemnity shall not extend to protect Seller from any pre-existingliabilities for matters merely discovered by Purchaser (i.e., latentenvironmental contamination) so long as Purchaser’s actions do not aggravateany pre-existing liability of Seller. Purchaser also indemnifies and holdsSeller and any tenant harmless from and against any and all claims, causes ofaction, damages, liabilities and expenses which such tenant may suffer or incurdue to Purchaser’s breach of its obligation under Section 4.8 above tomaintain the confidential nature of any Property Documents or other informationrelative to such tenant. Purchaser’s obligations under this Section 4.10shall survive the termination of this Agreement and shall survive the Closing.

 

**ARTICLE 5**

**TITLE AND SURVEY**

 

**5.1****                              ****Title Commitment.**  Purchasershall obtain: (i) a   current  ALTA commitment for title insurance withextended coverage (the “Title Commitment”) issued by the Title Company,in the amount of the Purchase Price, with Purchaser as the proposed insured,and (ii) copies of all documents of record referred to in the Title Commitmentas exceptions to title to the Property.

 

**5.2****                              ****New or Updated Survey.**  Purchaser,at its expense, may elect to obtain a new survey or revise, modify, orre-certify Seller’s existing survey (“Survey”)  as necessary in order for the Title Companyto delete the survey exception from the Title Policy or to otherwise satisfyPurchaser’s objectives.

 

**5.3****                              ****Title Review.**  Duringthe Title and Survey Review Period, Purchaser shall review title to theProperty as disclosed by the Title Commitment and the Survey. Seller shall haveno obligation to cure title objections except financing liens of anascertainable amount created by, under or through Seller, which liens Sellershall cause to be released at or prior to Closing, and Seller shall deliver theProperty free and clear of

 

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anysuch financing liens. Seller further agrees to remove any exceptions orencumbrances to title which are voluntarily created by, under or through Sellerafter the Effective Date without Purchaser’s consent.

 

Priorto the expiration of the Title and Survey Review Period, Purchaser shall notifySeller of any objections to the state of title to the Property, whichobjections shall be made in writing and delivered to Seller (a “Title/SurveyObjection Notice”). If Purchaser shall fail to deliver a Title/SurveyObjection Notice on or before the expiration of the Title and Survey ReviewPeriod, Purchaser shall be deemed to have accepted all exceptions to the TitleCommitment and the form and substance of the Survey and all matters shownthereon, except those exceptions that Seller is obligated to remove as providedherein. If Purchaser delivers a Title/Survey Objection Notice, Seller may, butshall have no obligation to, within five (5) days after receipt of theTitle/Survey Objection Notice (“Seller’s Election Period”), elect toeliminate or ameliorate to Purchaser’s reasonable satisfaction the disapprovedtitle or survey matters by giving Purchaser written notice (“Seller’sTitle/Survey Notice”) of those disapproved title or survey matters, if any,which Seller agrees to so eliminate or ameliorate by the Closing Date. Anytitle exception disapproved by Purchaser shall be deemed ameliorated toPurchaser’s reasonable satisfaction to the extent that Seller either causessuch exception to be removed from the Title Commitment or to be affirmativelyinsured over, if Seller does not elect to, or is unable to, eliminate orameliorate any disapproved title or survey matters, or if Seller fails totimely deliver Seller’s Title/Survey Notice, Purchaser shall have the right, onor before five (5) days following the expiration of Seller’s Election Period,to either: (a) waive its prior disapproval, in which event said disapprovedmatters shall be deemed approved; or (b) terminate this Agreement. Failure totake either one of the actions described in subsections (a) and (b), above,shall be deemed to be Purchaser’s election to take the action described insubsection (a), above. If Purchaser elects to terminate this Agreement asprovided in subsection (b), above, this Agreement shall automaticallyterminate, the Earnest Money shall be delivered by Escrow Agent to Purchaser,and Purchaser and Seller shall not have any further liability to the otherunder this Agreement except those obligations expressly surviving terminationof this Agreement.

 

Forthe purpose of this Agreement, the term “Permitted Exceptions” shallmean: the specific exceptions in the Title Commitment or Survey which were notdisapproved by Purchaser as provided in this Section 5.3; matters created by,through or under Purchaser; real estate taxes not yet due and payable; tenantsunder the Leases; and any licensees under any Service Contracts not terminatedas of Closing.

 

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**ARTICLE6**

**OPERATIONSAND RISK OF LOSS**

 

**6.1****                              ****Ongoing Operations**.

 

**6.1.1****                    ****Leases and Service Contracts**.  Fromthe Effective Date through Closing, Seller will perform its materialobligations under the Leases and Service Contracts.

 

**6.1.2****                   ****New Contracts**.  Fromthe Effective Date through Closing, Seller will not enter into any contractthat will be an obligation affecting the Property subsequent to the Closing,except contracts entered into in the ordinary course of business that areterminable without cause and without the payment of any termination penalty onnot more than thirty (30) days’ prior notice.

 

**6.1.3****                    ****Maintenance of Improvements;Removal of Personal Property**. From the Effective Date through Closing,subject to Sections 6.2 and 6.3, Seller shall maintain all Improvementssubstantially in their present condition (ordinary wear and tear and casualtyexcepted) and in a manner consistent with Seller’s maintenance of theImprovements during Seller’s period of ownership. Seller will not remove anyTangible Personal Property except as may be required for necessary repair orreplacement, and replacement shall be of approximately equal quality andquantity as the removed item of Tangible Personal Property. Seller willmaintain all policies of insurance with respect to the Property which were ineffect on the Effective Date.

 

**6.1.4****                    ****Leasing.**  Fromand after the date which is five (5) days prior to the expiration of theInspection Period, Seller will not amend or terminate any existing Lease orenter into any new Lease without the consent of Purchaser.  If Purchaser’s consent is requested by Selleras to any amendment or termination of a Lease or new Lease, Purchaser agrees togive Seller written notice of approval or disapproval of a proposed amendmentor termination of a Lease or new Lease within five (5) business days afterPurchaser’s receipt of the proposed amendment, termination, or new Lease. IfPurchaser does not respond to Seller’s request within such time period, thenPurchaser will be deemed to  have  approved such amendment, termination ornew  Lease. Purchaser shall notunreasonably withhold its consent to any proposed amendment, termination or newLease. Purchaser’s  disapproval  will be  deemed  to be  reasonable  if a proposed amendment or new Lease is on terms and conditions which are notconsistent with those other Leases in the Real Property, including, but notlimited to, term, rentals and expense recoveries.

 

**6.2****                              ****Damage**.  Ifprior to Closing the Property is damaged by fire or other casualty, Sellershall estimate the cost to repair and the time required to complete repairs andwill provide Purchaser written notice of Seller’s estimation (the “CasualtyNotice”) as soon as reasonably possible after the occurrence of thecasualty.

 

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**6.2.1****                    ****Material**.  Inthe event of any Material Damage to or destruction of the Property or anyportion thereof prior to Closing, Purchaser may, at its option, terminate thisAgreement by delivering written notice to Seller on or before the expiration ofthirty (30) days after the date Seller delivers the Casualty Notice toPurchaser (and if necessary, the Closing Date shall be extended to give theparties the full thirty-day period to make such election and to obtaininsurance settlement agreements with Seller’s insurers).   Upon any such termination, the Earnest Moneyshall be returned to Purchaser and the parties hereto shall have no furtherrights or obligations hereunder, other than those that by their terms survivethe termination of this  Agreement.     If Purchaser does not terminate  this Agreement within said thirty (30) dayperiod, then the parties shall proceed under this Agreement and close onschedule (subject to extension of Closing as provided above), and as of ClosingSeller shall assign to Purchaser, without representation or warranty by orrecourse against Seller, all of Seller’s rights in and to any resultinginsurance proceeds (including any rent loss insurance applicable to any periodon and after the Closing Date) due Seller as a result of such damage ordestruction and credit Purchaser at Closing for the amount of the deductible,if any, and Purchaser shall assume full responsibility for all needed repairs. Forthe purposes of this Agreement, “Material Damage” and “MateriallyDamaged” means damage which, in Seller’s reasonable estimation, exceeds$250,000.00 to repair or which, in Seller’s reasonable estimation, will takelonger than one hundred eighty (180) days to repair.

 

**6.2.2****                    ****Not Material**.  Ifthe Property is not Materially Damaged, then neither Purchaser nor Seller shallhave the right to terminate this Agreement, and Seller shall, at Closing,assign the insurance proceeds to Purchaser and credit Purchaser at Closing forthe amount of the deductible, if any.

 

**6.3****                              ****Condemnation**.  Ifproceedings in eminent domain are instituted with respect to the entireProperty or any portion thereof which affects (a) the Improvements; (b) anyparking areas in the Property; or (c) access to a public street, Purchaser may,at its option, by written notice to Seller given within ten (10) days afterSeller notifies Purchaser of such proceedings (and if necessary the ClosingDate shall be automatically extended to give Purchaser the full ten-day periodto make such election), either: (i) terminate this Agreement, in which case theEarnest Money shall he immediately returned to Purchaser and the parties heretoshall have no further rights or obligations, other than those that by theirterms survive the termination of this Agreement, or (ii) proceed under thisAgreement, in which event Seller shall, at the Closing, assign to Purchaser itsentire right, title and interest in and to any condemnation award, andPurchaser shall have the sole right after the Closing to negotiate andotherwise deal with the condemning authority in respect of such matter. IfPurchaser does not give Seller written notice of its election within the timerequired above, then Purchaser shall be deemed to have elected option (ii)above.

 

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**ARTICLE 7**

**CLOSING**

 

**7.1****                              ****Closing. **The consummation of the transaction contemplated herein (“Closing”)shall occur on the Closing Date at the offices of the Title Company (the “ClosingAgent”) (or such other location as may be mutually agreed upon by Sellerand Purchaser). Funds shall be deposited into and held by Closing Agent in aclosing escrow account.   Uponsatisfaction or completion of all closing conditions and deliveries, theparties  shall direct Closing Agent toimmediately record  and deliver theclosing documents to the appropriate parties and make disbursements accordingto the closing statements executed by Seller and Purchaser.

 

**7.2****                              ****Conditions to Parties’Obligation to****Close.**  Inaddition to all other conditions set forth herein, the obligation of Seller, onthe one hand, and Purchaser, on the other hand, to consummate the transactionscontemplated hereunder are conditioned upon the following:

 

**7.2.1****                    ****Representations****and Warranties. **The other party’s representations and warranties contained herein shallbe true and correct in all material respects as of the date of this Agreementand the Closing Date;

 

**7.2.2****                    ****Deliveries.  **As of the Closing Date, the parties shall have tendered all deliveriesto be made at Closing; and

 

**7.2.3****                    ****Actions, Suits,****etc**. There shall exist no pending or threatened actions, suits, arbitrations,claims, attachments, proceedings, assignments for the benefit of creditors,insolvency, bankruptcy, reorganization or other proceedings, against the otherparty that would materially and adversely affect the operation or value of theProperty or the other party’s ability to perform its obligations under thisAgreement.

 

Inaddition, the obligation of Purchaser to consummate the transactionscontemplated hereunder is conditioned upon the following:

 

**7.2.4****                    ****Title Policy**.  TheTitle Company shall have issued and delivered to Purchaser, or shall havecommitted to issue and deliver to Purchaser, with respect to the Real Property,an Extended Coverage ALTA Owner’s Policy of Title Insurance (1992 Form) (the “TitlePolicy”) issued by the Title Company as of the date and time of the recordingof the Deed (as defined in section 7.3.1, below), in the amount of the PurchasePrice, insuring Purchaser as owner of good and marketable fee simple title tothe Real Property, subject only to the Permitted Exceptions; and,

 

**7.2.5****                    ****Audit****Representation****Letter. **Seller shall have delivered to Purchaser the audit representationletter described in Section 13.17, in the form attached as Exhibit I, at leastthree (3) business days prior to the Closing Date.

 

**7.2.6****                    ****Leasing. **One Hundred Percent (100%) of the existing leases for the leasablespace in the Real Property shall remain in effect as of the Closing Date, onthe terms shown on Exhibit J.

 

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**7.2.7       Postal Annex.**  Either(i) the lease with Postal Annex shall have been renewed for a minimum period ofone year on the terms set forth on Exhibit J, or (ii) the Master Lease EscrowAgreement shall have been revised to provide for an additional escrow depositequal to twelve (12) months’ rent and twelve (12) months’ CAM (as defined inthe Master Lease Escrow Agreement) for Postal Annex, as shown on Exhibit J.

 

Solong as a party is not in default hereunder, if any condition to such party’sobligation to proceed with the Closing hereunder has not been satisfied as ofthe Closing Date (or such earlier date as is provided herein), such party may,in its sole discretion terminate this Agreement by delivering written notice tothe other party on or before the Closing Date (or such earlier date as isprovided herein), or elect to close (or to permit any such earlier terminationdeadline to pass) notwithstanding the non-satisfaction of such condition, inwhich event such party shall be deemed to have waived any such condition. Inthe event such party elects to close (or to permit any such earlier terminationdeadline to pass), notwithstanding the non-satisfaction of such condition, saidparty shall be deemed to have waived said condition, and there shall be noliability on the part of any other party hereto for breaches of representationsand warranties of which the party electing to close had knowledge at theClosing.

 

**7.3****                              ****Seller’s Deliveries in Escrow****.**  As ofor prior to the Closing Date, Seller shall deliver in escrow to Closing Agentthe following:

 

**7.3.1****                    ****Deed.**  Alimited warranty deed in a form prepared by Seller and approved by Purchaser,subject only to the Permitted Exceptions to which the conveyance shall besubject, executed and acknowledged by Seller, conveying to Purchaser Seller’sinterest in the Real Property (the “Deed”);

 

**7.3.2****                    ****Bill of Sale, Assignment andAssumption.**  A Bill of Sale, Assignment and Assumption ofLeases and Contracts in the form of Exhibit B attached  hereto (the  “Assignment”),  executed and acknowledged by Seller, vestingin Purchaser, with limited warranty, Seller’s right, title and interest in andto the property described therein free of any claims, except for the PermittedExceptions to the extent applicable;

 

**7.3.3****                    ****Conveyance   or Transfer  Tax   Forms  or   Returns.**  Suchconveyance or transfer tax forms or returns, if any, as are required to bedelivered or signed by Seller by applicable state and local law in connectionwith the conveyance of the Real Property;

 

**7.3.4****                    ****FIRPTA.**  AForeign Investment in Real  Property TaxAct affidavit executed by Seller;

 

**7.3.5****                    ****Estoppel Certificates****.**  OriginalEstoppel Certificates as provided in Section 4.3 above to the extent notprovided previously;

 

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**7.3.6****                    ****Master Lease**.  Three(3) counterparts of the Master Lease Escrow Agreement, executed by Seller.

 

**7.3.7****                    ****Additional Documents**.  Anyadditional documents that Closing Agent or the Title Company may reasonablyrequire for the proper consummation of the transaction contemplated by thisAgreement (provided, however, no such additional document shall expand anyobligation, covenant, representation or warranty of Seller or result in any newor additional obligation, covenant, representation or warranty of Seller underthis Agreement beyond those expressly set forth in this Agreement).

 

**7.4****                              ****Purchaser’s Deliveries in Escrow**.  Asof or prior to the Closing Date, Purchaser shall deliver in escrow to ClosingAgent the following:

 

**7.4.1****                    ****Bill of Sale, Assignment andAssumption**.  The Assignment, executed and acknowledged byPurchaser;

 

**7.4.2****                    ****Conveyance or Transfer Tax Formsor Returns**.  Such conveyance or transfer tax forms orreturns, if any, as are required to be delivered or signed by Purchaser byapplicable state and local law in connection with the conveyance of RealProperty; and

 

**7.4.3****                    ****Master Lease**.  Three (3) counterparts of the Master LeaseEscrow Agreement, executed by Purchaser.

 

**7.4.4****                    ****Additional Documents**.  Anyadditional documents that Seller, Closing Agent or the Title Company mayreasonably require for the proper consummation of the transaction contemplatedby this Agreement (provided, however, no such additional document shall expandany obligation, covenant, representation or warranty of Purchaser or result inany new or additional obligation, covenant, representation or warranty ofPurchaser under this Agreement beyond those expressly set forth in thisAgreement).

 

**7.5****                              ****Closing Statements**.  Asof or prior to the Closing Date, Seller and Purchaser shall deposit withClosing Agent executed closing statements consistent with this Agreement in theform required by Closing Agent.

 

**7.6****                              ****Purchase Price**.  Ator before 11:00 a.m. local time on the Closing Date, Purchaser shall deliver toClosing Agent the Purchase Price less any portion of the Earnest Money that isapplied to the Purchase Price, plus or minus applicable prorations, inimmediate, same-day U.S. federal funds wired for credit into Closing Agent’sescrow account, which funds must be delivered in a manner to permit ClosingAgent to deliver good funds to Seller or its designee on the Closing Date (and,if requested by Seller, by wire transfer).

 

**7.7****                              ****Possession**.  Sellershall deliver possession of the Property to Purchaser at the Closing subjectonly to the Permitted Exceptions.

 

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**7.8****                               Noticeto Tenants**.  Seller and Purchaser shall each execute,and Purchaser shall deliver to each tenant immediately after the Closing, anotice regarding the sale in substantially the form of Exhibit Dattached hereto. This obligation on the part of Purchaser and Seller shallsurvive the Closing.

 

**ARTICLE8**

**PRORATIONS,DEPOSITS, COMMISSIONS**

 

**8.1****                               Prorations**.  AtClosing, the following items shall be prorated as of the date of Closing withall items of income and expense for the Property being borne by Purchaser fromand after (but including) the date of Closing: Tenant Receivables (definedbelow) and other income and rents that were due and payable prior to Closing;fees and assessments; prepaid expenses and obligations under Service Contracts;accrued operating expenses; real and personal ad valorem taxes (“Taxes”);and any assessments by private covenant for the then-current calendar year ofClosing. Specifically, the following shall apply to such prorations and topost-Closing collections of Tenant Receivables:

 

**8.1.1****                     Taxes**.  If Taxes for the year of Closing are notknown or cannot be reasonably estimated, Taxes shall be prorated based on Taxesfor the year prior to Closing, subject to adjustment by the parties if theactual Taxes vary from the prior year’s Taxes, pursuant to Section 8.1(b). Anyadditional Taxes relating to the year of Closing or prior years arising solelyout of a change in the use of the Real Property or a change in ownership fromSeller to Purchaser shall be assumed by Purchaser effective as of Closing andpaid by Purchaser when due and payable, and Purchaser shall indemnify Sellerfrom and against any and all such Taxes, which indemnification obligation shallsurvive the Closing. At Closing, Purchaser and Seller shall determine theestimated amount of Taxes to be reimbursed by Bi-Lo Supermarkets for the periodof time up to the Closing (the “Bi-Lo Tax Payment”). The amount of the Bi-LoTax Payment shall be calculated based on the most recently-available tax bill.The Bi-Lo Tax Payment shall be deposited by Purchaser with Escrow Agent, to bereleased to Seller if and when Bi-Lo Supermarkets makes the Bi-Lo Tax Paymentto Purchaser (and subject to adjustment pursuant to Section 8.1.3(b)). If Bi-LoSupermarkets fails or refuses to make the Bi-Lo Tax Payment when it is dueafter demand is made by Purchaser, then the Bi-Lo Tax Payment shall be releasedto Purchaser and Seller shall reserve all rights to pursue payment of the Bi-LoTax Payment from Bi-Lo Supermarkets.

 

**8.1.2****                     Utilities**.  Purchaser shall take all steps necessary toeffectuate the transfer of all utilities to its name as of the Closing Date,and where necessary, post deposits with the utility companies. Seller shall beentitled to recover any and all deposits held by any utility company as of theClosing Date or, alternatively, to take a credit for same on the settlementstatement at Closing if said deposit remains in place for Buyer’s benefit.

 

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**8.1.3****                    ****Tenant****Receivables**.  Rentsdue from tenants under Leasesand operating expenses and/or taxes payable by tenants under Leases(collectively, “Tenant Receivables”) and not collected by Seller as ofClosing shall not be prorated between Seller and Purchaser at Closing but shallbe apportioned on the basis of the period for which the same is payable and if,as and when collected, as follows:

 

**(a)**                                  Rent and other income received from tenantsunder Leases after Closing shall be applied in the following order of priority:(i) first, to Tenant Receivables first coming due after Closing andapplicable to the period of time after Closing, which amount shall beretained by Purchaser; and (ii) second, to payment of Tenant Receivablesfirst coming due after Closing but applicable to the period of time beforeClosing, including, without limitation, the Tenant Receivables described in Subsection8.1.3(b) below (collectively, “Unbilled Tenant Receivables”), whichamount shall be delivered to Seller; and (iii) thereafter, to delinquent TenantReceivables which were due and payable as of Closing but not collected bySeller as of Closing (collectively, “Uncollected Delinquent TenantReceivables”), which amount shall be delivered to Seller. Any sums receivedby Purchaser to which Seller is entitled shall be held in trust for Seller onaccount of such past due rents payable to Seller, and Purchaser shall remit toSeller any such sums received by Purchaser to which Seller is entitled withinten (10) business days after receipt thereof less reasonable, actual costs andexpenses of collection, including reasonable attorneys’ fees, court costs anddisbursements, if any. Seller expressly agrees that if Seller receives anyamounts after the Closing Date which are attributable, in whole or in part, toany period after the Closing Date, Seller shall remit to Purchaser that portionof the monies so received by Seller to which Purchaser is entitled within ten(10) business days after receipt thereof. With respect to Unbilled TenantReceivables, Purchaser covenants and agrees to (A) bill the same when billableand (B) cooperate with Seller to determine the correct amount of operatingexpenses and/or taxes due. The provisions of this Subsection 8.1.3(a)shall survive the Closing.

 

**(b)**                                  Not later than thirty (30) days after thedate on which reconciliation for 2004 with tenants are complete (the “FinalReconciliation Date”), Seller and Purchaser shall agree upon a finalreconciliation of operating expenses and/or taxes due under the Leases, andadjustments may be made to the Closing prorations (i) to the extent expenseswere not prorated at Closing, or (ii) to the extent expenses were prorated atClosing based on estimates which can now be updated or verified with actualfigures. Without limiting the generality of the requirements of Subsection8.1.3(a) above, if the final reconciliation (after consideration of anyescrow accounts held by Lender) shows that a net amount is owed by Seller toPurchaser, said amount shall be paid by Seller

 

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toPurchaser within ten (10) business days of the Final Reconciliation Date. Ifthe final reconciliation shows that a net amount is owed by Purchaser toSeller, Purchaser shall, within ten (10) business days of the FinalReconciliation Date, remit said amount to Seller. There shall be noreconciliations or re-prorations from and after the Final Reconciliation Date.

 

**8.2****                              ****Leasing Costs**.  Selleragrees to pay or discharge all leasing commissions under the Leasing CommissionAgreements, costs for tenant improvements, legal fees and other costs andexpenses (collectively, “Leasing Costs”) with respect to Leases executedor in force as of or prior to the Closing Date. Purchaser agrees to pay ordischarge all Leasing Costs with respect to Leases executed after the ClosingDate.

 

**8.3****                              ****Closing Costs**. Closing costs shall be allocated between Seller and Purchaser inaccordance with Section 1.2.

 

**8.4****                              ****Tenant Deposits**.  Alltenant security deposits collected and not applied by Seller pursuant to theLeases (and interest thereon if required by law or contract) shall be transferredor credited to Purchaser at Closing.   Asof the Closing, Purchaser shall assume Seller’s obligations related to tenantsecurity deposits, but only to the extent they are credited or transferred toPurchaser.

 

**8.5****                              ****Commissions**.  Sellershall be responsible to Broker for a real estate sales commission at Closing(but only in the event of a Closing in strict accordance with this Agreement)pursuant to a separate written agreement. Broker may share its commission with any other licensed broker involvedin this transaction, but the payment of the commission by Seller to Brokershall fully satisfy any obligations of Seller to pay a commissionhereunder.  Under no circumstances shallSeller owe a commission or other compensation directly to any other broker,agent or person. Other than as stated above in this Section 8.5, Sellerand Purchaser each represent and warrant to the other that no real estatebrokerage commission is payable to any person or entity in connection with thetransaction contemplated hereby, and each agrees to and does hereby indemnifyand hold the other harmless against the payment of any commission to any otherperson or entity claiming by, through or under Seller or Purchaser, asapplicable.   This indemnification shallextend to any and all claims, liabilities, costs and expenses (includingreasonable attorneys’ fees and litigation costs) arising as a result of suchclaims and shall survive the Closing.

 

**ARTICLE 9**

**REPRESENTATIONS AND WARRANTIES**

 

**9.1****                              ****Seller’s Representations andWarranties**.  Seller represents and warrants to Purchaser asof the Effective Date and as of the Closing Date that:

 

**9.1.1****                    ****Organization and Authority**.** **Seller has been duly organized and is validlyexisting as a corporation in good standing in Canada. Seller has the full rightand authority and has obtained any and all consents required to enter into 

 

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thisAgreement and to consummate or cause to be consummated the transactionscontemplated hereby. This Agreement has been, and all of the documents to bedelivered by Seller at the Closing will be, authorized and properly executedand constitute, or will constitute, as appropriate, the valid and bindingobligation of Seller, enforceable in accordance with their terms.

 

**9.1.2****                   ****Conflicts and Pending Actions**.  Thereis no agreement to which Seller is a party or, to Seller’s knowledge, that isbinding on Seller which is in conflict with this Agreement.   There is no action or proceeding pending orto Seller’s knowledge, threatened against Seller or relating to the Property,which challenges or impairs Seller’s ability to execute or perform itsobligations under this Agreement.

 

**9.1.3****                   ****Tenant/Leases**.  Asof the Effective Date, Exhibit E lists all effective leases and amendmentswith respect to the Property.

 

**9.1.4****                   ****Service Contracts**.  Asof the Effective Date, the list of Service Contracts includes all ServiceContracts with respect to the Property.

 

**9.1.5****                   ****Notices from GovernmentalAuthorities**.  Seller has not received from any governmentalauthority written notice of any material violation of any laws applicable (oralleged to be applicable) to the Real Property, or any part thereof, that hasnot been corrected, except as may be reflected by the Property Documents orotherwise disclosed in writing to Purchaser.

 

**9.1.6****                   ****Purchase Rights**.  ToSeller’s knowledge, no person or entity, except Purchaser, has been granted anyoptions, rights of first refusal or other purchase rights with respect to theProperty.

 

**9.1.7****                   ****Condemnation**.  Noportion of the Property has been condemned or otherwise taken by any publicauthority, and Seller has no knowledge that any such condemnation or taking isthreatened or contemplated.

 

**9.1.8****                   ****Assessments**.  ToSeller’s knowledge, Seller has received no notice concerning any existing orproposed special assessments or similar taxes, charges or assessments againstthe Property or any utility service moratoriums or other moratoriums affectingthe Property.

 

**9.1.9****                   ****Environmental Reports**.  ToSeller’s knowledge, other than as may be disclosed in the Due Diligence Items,(i) no Hazardous Substances in violation of any state, federal or local law,regulation or ordinance arc contained within or located at or under theProperty; (ii) there are no underground storage tanks located under theProperty; and (iii) no portion of the Property is located in an area that hasbeen designated a wetlands or other environmental protection area.

 

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**9.2****                              ****Purchaser’s Representations and Warranties**.  Purchaserrepresents and warrants to Seller as of the Effective Date and as of theClosing Date that:

 

**9.2.1****                   ****Organization and Authority**.  Purchaserhas been duly organized, is validly existing as a corporation in good standingin Illinois. Purchaser has the full right and authority and has obtained anyand all consents required to enter into this Agreement and to consummate orcause to be consummated the transactions contemplated hereby. This Agreementhas been, and all of the documents to be delivered by Purchaser at the Closingwill be, authorized and properly executed and constitute, or will constitute,as appropriate, the valid and binding obligation of Purchaser, enforceable inaccordance with their terms.

 

**9.2.2****                   ****Conflicts and Pending Action**. There is no agreement to which Purchaser is a party or to Purchaser’sknowledge binding on Purchaser which is in conflict with this Agreement. Thereis no action or proceeding pending or, to Purchaser’s knowledge, threatenedagainst Purchaser which challenges or impairs Purchaser’s ability to execute orperform its obligations under this Agreement.

 

**9.3****                              ****Survival of Representations andWarranties**.  The representations and warranties set forthin this Article 9 are made as of the date of this Agreement and areremade as of the Closing Date and shall not be deemed to be merged into orwaived by the instruments of Closing, but shall survive the Closing for aperiod of twelve (12) months (the “Survival Period”). No broker, agent,or party other than Seller is authorized to make any representation or warrantyfor or on behalf of Seller.  Each partyshall have the right to bring an action against the other on the breach of arepresentation or warranty hereunder, but only if the party bringing the actionfor breach first learns of the breach after Closing and files such actionwithin the Survival Period. The provisions of this Section 9.3 shallsurvive the Closing.   Any breach of arepresentation or warranty that occurs prior to Closing shall be governed by Article10.

 

**ARTICLE 10**

**DEFAULT AND REMEDIES**

 

**10.1****                       ****Seller’s Remedies**.  IfPurchaser fails, without legal excuse, to complete the purchase of the Propertyor otherwise fails to perform its obligations pursuant to this Agreement at orprior to Closing for any reason except failure by Seller to perform hereunder,or if prior to Closing any one or more of Purchaser’s representations orwarranties are breached in any material respect, Seller shall be entitled, asits sole remedy (except as provided in Sections 4.10, 8.5, 10.3 and 10.4hereof), to terminate this Agreement and recover the Earnest Money asliquidated damages and not as penalty, in full satisfaction of claims againstPurchaser hereunder for Purchaser’s failure or breach. Seller and Purchaseragree that Seller’s damages resulting from Purchaser’s default are difficult,if not impossible, to determine and the Earnest Money is a fair estimate ofthose damages which has been agreed to in an effort to cause the amount of suchdamages to be certain. Notwithstanding anything in this Section 10.1 tothe contrary, in the event of Purchaser’s default or a termination of thisAgreement, Seller shall have all remedies

 

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available at law or inequity in the event Purchaser or any party related to or affiliated withPurchaser is asserting any claims or right to the Property (other than a claimfor money damages) that would otherwise delay or prevent Seller from havingclear, indefeasible and marketable title to the Property. In all other eventsSeller’s remedies shall be limited to those described in this Section 10.1and Sections 4.10, 8.5, 10.3 and 10.4 hereof. If Closing is consummated,Seller shall have all remedies available at law or in equity in the eventPurchaser fails to perform any obligation of Purchaser under this Agreement.

 

**10.2****                       ****Purchaser’s Remedies.  **If Seller fails to perform its obligations pursuant to this Agreementfor any reason except failure by Purchaser to perform hereunder, or if prior toClosing any one or more of Seller’s representations or warranties are breachedin any material respect, Purchaser shall elect, as its sole remedy, either to(i) terminate this Agreement by giving Seller timely written notice of suchelection prior to or at Closing and recover the Earnest Money, (ii) enforcespecific performance or (iii) waive said failure or breach and proceed toClosing. Notwithstanding anything herein to the contrary, Purchaser shall bedeemed to have elected to terminate this Agreement if Purchaser fails todeliver to Seller written notice of its intent to file a claim or assert acause of action for specific performance against Seller on or before thirty(30) business days following the scheduled Closing Date or, having given suchnotice, fails to file a lawsuit asserting such claim or cause of action in thecounty in which the Property is located within six (6) months following thescheduled Closing Date. Purchaser’s remedies shall be limited to thosedescribed in this Section 10.2 and Sections 10.3 and 10.4 hereof.

 

INNO EVENT SHALL EITHER SELLER’S OR PURCHASER’S DIRECT OR INDIRECT PARTNERS,SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OFTHE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITYFOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TOTHIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE,EQUITY OR OTHERWISE.

 

**10.3****                       ****Attorneys’ Fees**.  Inthe event either party hereto employs an attorney in connection with claims byone party against the other arising from the operation of this Agreement, thenupon the entry of a final, non-appealable judgment, the non-prevailing partyshall pay the prevailing party all reasonable fees and expenses, includingattorneys’ fees, and court costs, incurred in connection with such transaction.

 

**10.4****                     ****Other Expenses**.  Ifthis Agreement is terminated due to the default of a party, then the defaultingparty shall pay any fees or charges due to Escrow Agent for holding the EarnestMoney as well as any escrow cancellation fees or charges and any fees orcharges due to the Title Company for preparation and/or cancellation of theTitle Commitment.

 

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**10.5****                       ****Damages**.  Notwithstandinganything to the contrary contained in this Agreement, in no event whatsoevershall Purchaser or Seller have the right to seek or recover money damages fromthe other except for actual pecuniary loss not to exceed Two Hundred FiftyThousand and No/100 Dollars ($250,000) in the aggregate, as a result of anybreach or default by Seller or Purchaser under any of the terms of thisAgreement. Each party specifically and without limitation hereby waives andrelinquishes any right to seek or recover from Seller, and specificallyacknowledges and agrees that in no event shall such other party be liable, anydamages in excess of Two Hundred Fifty Thousand and No/100 Dollars ($250,000)nor for any punitive, speculative or consequential damages.

 

**ARTICLE11**

**DISCLAIMERS,RELEASE AND INDEMNITY**

 

**11.1****                       ****Disclaimers By Seller**.  EXCEPTAS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN A DOCUMENT EXECUTED INCONNECTION WITH THE CLOSING, IT IS UNDERSTOOD AND AGREED THAT SELLER HAS NOT ATANY TIME MADE AND IS NOT NOW MAKING, AND IT SPECIFICALLY DISCLAIMS, ANYWARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED,WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES ORREPRESENTATIONS AS TO (I) MATTERS OF TITLE, (II) ENVIRONMENTAL MATTERS RELATINGTO THE PROPERTY OR ANY PORTION THEREOF, INCLUDING, WITHOUT LIMITATION, THEPRESENCE OF HAZARDOUS MATERIALS IN, ON, UNDER OR IN THE VICINITY OF THEPROPERTY, (III) GEOLOGICAL CONDITIONS, INCLUDING, WITHOUT LIMITATION,SUBSIDENCE, SUBSURFACE CONDITIONS, WATER TABLE, UNDERGROUND WATER RESERVOIRS,LIMITATIONS REGARDING THE WITHDRAWAL OF WATER, AND GEOLOGIC FAULTS AND THERESULTING DAMAGE OF PAST AND/OR FUTURE FAULTING, (IV) WHETHER, AND TO THEEXTENT TO WHICH THE PROPERTY OR ANY PORTION THEREOF IS AFFECTED BY ANY STREAM(SURFACE OR UNDERGROUND), BODY OF WATER, WETLANDS, FLOOD PRONE AREA, FLOODPLAIN, FLOODWAY OR SPECIAL FLOOD HAZARD, (V) DRAINAGE, (VI) SOIL CONDITIONS,INCLUDING THE EXISTENCE OF INSTABILITY, PAST SOIL REPAIRS, SOIL ADDITIONS OR CONDITIONSOF SOIL FILL, OR SUSCEPTIBILITY TO LANDSLIDES, OR THE SUFFICIENCY OF ANYUNDERSHORING, (VII) THE PRESENCE OF ENDANGERED SPECIES OR ANY ENVIRONMENTALLYSENSITIVE OR PROTECTED AREAS, (VIII) ZONING OR BUILDING ENTITLEMENTS TO WHICHTHE PROPERTY OR ANY PORTION THEREOF MAY BE SUBJECT, (IX) THE AVAILABILITY OFANY UTILITIES TO THE PROPERTY OR ANY PORTION THEREOF INCLUDING, WITHOUTLIMITATION, WATER, SEWAGE, GAS AND ELECTRIC, (X) USAGES OF ADJOINING PROPERTY,(XI) ACCESS TO THE PROPERTY OR ANY PORTION THEREOF, (XII) THE VALUE, COMPLIANCEWITH THE PLANS AND

 

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SPECIFICATIONS, SIZE,LOCATION, AGE, USE, DESIGN, QUALITY, DESCRIPTION, SUITABILITY, STRUCTURALINTEGRITY, OPERATION, TITLE TO, OR PHYSICAL OR FINANCIAL CONDITION OF THEPROPERTY OR ANY PORTION THEREOF, OR ANY INCOME, EXPENSES, CHARGES, LIENS,ENCUMBRANCES, RIGHTS OR CLAIMS ON OR AFFECTING OR PERTAINING TO THE PROPERTY ORANY PART THEREOF, (XIII) THE CONDITION OR USE OF THE PROPERTY OR COMPLIANCE OF THEPROPERTY WITH ANY OR ALL PAST, PRESENT OR FUTURE FEDERAL, STATE OR LOCALORDINANCES, RULES, REGULATIONS OR LAWS, BUILDING, FIRE OR ZONING ORDINANCES,CODES OR OTHER SIMILAR LAWS, (XIV) THE EXISTENCE OR NON-EXISTENCE OFUNDERGROUND STORAGE TANKS, SURFACE IMPOUNDMENTS, OR LANDFILLS, (XV) THEMERCHANTABILITY OF THE PROPERTY OR FITNESS OF THE PROPERTY FOR ANY PARTICULARPURPOSE, (XVI) THE TRUTH, ACCURACY OR COMPLETENESS OF THE PROPERTY DOCUMENTS,(XVII) TAX CONSEQUENCES, OR (XVIII) ANY OTHER MATTER OR THING WITH RESPECT TOTHE PROPERTY.

 

**11.2****                       ****Sale “As Is, Where Is**.”  PURCHASERACKNOWLEDGES AND AGREES THAT UPON CLOSING, SELLER SHALL SELL AND CONVEY TOPURCHASER AND PURCHASER SHALL ACCEPT THE PROPERTY “AS IS, WHERE IS, WITH ALLFAULTS,” EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENTAND ANY DOCUMENT EXECUTED BY SELLER AND DELIVERED TO PURCHASER AT CLOSING.EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PURCHASER HAS NOT RELIED ANDWILL NOT RELY ON, AND SELLER HAS NOT MADE AND IS NOT LIABLE FOR OR BOUND BY,ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTEES, STATEMENTS, REPRESENTATIONS ORINFORMATION PERTAINING TO THE PROPERTY OR RELATING THERETO (INCLUDINGSPECIFICALLY, WITHOUT LIMITATION, PROPERTY INFORMATION PACKAGES DISTRIBUTEDWITH RESPECT TO THE PROPERTY) MADE OR FURNISHED BY SELLER OR ANY REAL ESTATEBROKER, AGENT OR THIRD PARTY REPRESENTING OR PURPORTING TO REPRESENT SELLER, TOWHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING. PURCHASERREPRESENTS THAT IT IS A KNOWLEDGEABLE, EXPERIENCED AND SOPHISTICATED PURCHASEROF REAL ESTATE AND THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, IT ISRELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS INPURCHASING THE PROPERTY AND SHALL MAKE AN INDEPENDENT VERIFICATION OF THEACCURACY OF ANY DOCUMENTS AND INFORMATION PROVIDED BY SELLER. PURCHASER WILLCONDUCT SUCH INSPECTIONS AND INVESTIGATIONS OF THE PROPERTY AS PURCHASER DEEMSNECESSARY, INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTALCONDITIONS THEREOF, AND SHALL RELY UPON SAME. BY FAILING TO TERMINATE THISAGREEMENT PRIOR TO THE EXPIRATION OF THE INSPECTION PERIOD, PURCHASERACKNOWLEDGES THAT SELLER HAS AFFORDED PURCHASER A FULL

 

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OPPORTUNITYTO CONDUCT SUCH INVESTIGATIONS OF THE PROPERTY AS PURCHASER DEEMED NECESSARY TOSATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY AND THE EXISTENCE ORNON-EXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO ANY HAZARDOUSMATERIALS ON OR DISCHARGED FROM THE PROPERTY, AND WILL RELY SOLELY UPON SAMEAND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER OR ITS AGENTSOR EMPLOYEES WITH RESPECT THERETO, OTHER THAN SUCH REPRESENTATIONS, WARRANTIESAND COVENANTS OF SELLER AS ARE EXPRESSLY SET FORTH IN THIS AGREEMENT. UPONCLOSING, PURCHASER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING, BUTNOT LIMITED TO, ADVERSE PHYSICAL OR CONSTRUCTION DEFECTS OR ADVERSEENVIRONMENTAL, HEALTH OR SAFETY CONDITIONS, MAY NOT HAVE BEEN REVEALED BYPURCHASER’S INSPECTIONS AND INVESTIGATIONS.

 

**11.3****                       ****Indemnity**.  Eachof Purchaser and Seller agrees to indemnify and hold the other party harmlessof and from any and all liabilities, claims, demands, and expenses of any kindor nature which arise or accrue before or after Closing, based upon facts whichoccur before Closing (as to Seller), or after Closing (as to Purchaser), andwhich are in any way related to the ownership, maintenance, or operation of theProperty by Seller or Purchaser and its successors and assigns.

 

**11.4****                       ****Survival**.  THETERMS AND CONDITIONS OF THIS ARTICLE 11 SHALL EXPRESSLY SURVIVE THECLOSING, AND SHALL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS ORTHE DEED.

 

PURCHASERACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTHHEREIN ARE AN INTEGRAL PART OF THIS AGREEMENT AND THAT SELLER WOULD NOT HAVEAGREED TO SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THEDISCLAIMERS AND OTHER AGREEMENTS SET FORTH ABOVE.

 

**ARTICLE 12**

**MASTER LEASE ESCROW AGREEMENT**

 

Theparties recognize that the lease of the tenant Blockbuster Video expires inOctober, 2005, and that Blockbuster Video may not renew its lease. Seller andPurchaser agree that on the Closing Date, they will enter into a Master LeaseEscrow Agreement substantially according to the form attached as Exhibit H.The amount to be deposited in the escrow account under the Master Lease EscrowAgreement shall be deposited into such account on the Closing Date by Seller.The amount of the escrow account and the conditions for disbursement thereofwill be as set forth in the Master Lease Escrow Agreement.

 

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**ARTICLE 13**

**MISCELLANEOUS**

 

**13.1****                       ****Parties Bound; Assignment**.  ThisAgreement, and the terms, covenants, and conditions herein contained, shallinure to the benefit of and be binding upon the heirs, personalrepresentatives, successors, and assigns of each of the parties hereto.Purchaser may assign its rights under this Agreement upon the followingconditions: (i) the assignee of Purchaser must be an affiliate of Purchaser oran entity controlling, controlled by, or under common control with Purchaser,or to a real estate investment trust of which Purchaser or Purchaser’saffiliates are a sponsor (ii) all of the Earnest Money must have been deliveredin accordance herewith, (iii)  assigneeof Purchaser shall assume all obligations of Purchaser hereunder, but Purchasershall remain primarily liable for the performance of Purchaser’s obligations,and (iv) a copy of the fully executed written assignment and assumptionagreement shall be delivered to Seller at least five (5) days prior to Closing.

 

**13.2****                       ****Headings**. The  article,  section, subsection,  paragraph  and/or other headings of this Agreement arefor convenience only and in no way limit or enlarge the scope or meaning of thelanguage hereof.

 

**13.3****                       ****Invalidity and Waiver**.  Ifany portion of this Agreement is held invalid or inoperative, then so far as isreasonable and possible the remainder of this Agreement shall be deemed validand operative, and, to the greatest extent legally possible, effect shall begiven to the intent manifested by the portion held invalid or inoperative.   The failure by either party to enforceagainst the other any term or provision of this Agreement shall not be deemedto be a waiver of such party’s right to enforce against the other party thesame or any other such term or provision in the future.

 

**13.4****                       ****Governing Law**.  ThisAgreement shall, in all respects, be governed, construed, applied, and enforcedin accordance with the law of the state in which the Real Property is located.

 

**13.5****                       ****Survival**.  Theprovisions of this Agreement that contemplate performance after the Closing andthe obligations of the parties not fully performed at the Closing shall survivethe Closing and shall not be deemed to be merged into or waived by theinstruments of Closing.

 

**13.6****                       ****Entirety  and Amendments**.  This Agreement  embodies the  entire agreement between theparties and supersedes all prior agreements and understandings relating to theProperty.  This Agreement may be amendedor supplemented only by an instrument in writing executed by the party againstwhom enforcement is sought.

 

**13.7****                       ****Time**.** **Time is of the essence in the performance ofthis Agreement.

 

**13.8****                       ****Confidentiality**. Purchaser shall  make nopublic  announcement or disclosure of anyinformation related to this Agreement to outside brokers or third parties,before the Closing, without the prior written specific consent of Seller;provided,

 

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however, that Purchaser may,subject to the provisions of Section 4.7, make disclosure of thisAgreement to its Permitted Outside Parties as necessary to perform itsobligations hereunder and as may be required under laws or regulationsapplicable to Purchaser.

 

**13.9****                       ****Notices**.  Allnotices required or permitted hereunder shall be in writing and shall be servedon the parties at the addresses set forth in Section 1.3.   Any such notices shall, unless otherwiseprovided herein, be given or served (i) by depositing the same in the UnitedStates mail, postage paid, certified and addressed to the party to be notified,with return receipt requested, (ii) by overnight delivery using a nationallyrecognized overnight courier, (iii) by personal delivery, or (iv) by facsimile,evidenced by confirmed receipt.   Noticedeposited in the mail in the manner hereinabove described shall be effective onthe third (3rd) business day after such deposit.   Notice given by facsimile shall be effectiveupon transmission if evidenced by a confirmed receipt. Notice given in anyother manner shall be effective only if and when received by the party to benotified between the hours of 8:00 a.m. and 5:00 p.m. of any business day withdelivery made after such hours to be deemed received the following businessday. A party’s address may be changed by written notice to the other party;provided, however, that no notice of a change of address shall be effectiveuntil actual receipt of such notice. Copies of notices are for informationalpurposes only, and a failure to give or receive copies of any notice shall notbe deemed a failure to give notice. Notices given by counsel to the Purchasershall be deemed given by Purchaser and notices given by counsel to the Sellershall be deemed given by Seller.

 

**13.10****                ****Construction**.  Theparties acknowledge that the parties and their counsel have reviewed andrevised this Agreement and agree that the normal rule of construction – to theeffect that any ambiguities are to be resolved against the drafting party –shall not be employed in the interpretation of this Agreement or any exhibitsor amendments hereto.

 

**13.11****                ****Calculation of Time Periods**. Unless otherwise specified, in computing any period of time describedherein, the day of the act or event after which the designated period of timebegins to run is not to be included and the last day of the period so computedis to be included, unless such last day is a Saturday, Sunday or legal holidayfor national banks in the location where the Property is located, in whichevent the period shall run until the end of the next day which is neither aSaturday, Sunday, or legal holiday.   Thelast day of any period of time described herein shall be deemed to end at 5:00p.m. local time in the state in which the Real Property is located.

 

**13.12****                ****Execution in Counterparts**.  ThisAgreement may be executed in any number of counterparts, each of which shall bedeemed to be an original, and all of such counterparts shall constitute one Agreement.   To facilitate execution of this Agreement,the parties may execute and exchange by telephone facsimile counterparts of thesignature pages, provided that executed originals thereof are forwarded to theother party on the same day by any of the delivery methods set forth in Section13.9 other than facsimile.

 

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**13.13****                ****No Recordation**. Without the prior written consent of Seller, there shall be norecordation of either this Agreement or any memorandum hereof, or any affidavitpertaining hereto, and any such recordation of this Agreement or memorandum oraffidavit by Purchaser without the prior written consent of Seller shallconstitute a default hereunder by Purchaser, whereupon Seller shall have the remedies  set forth in Section 10.1 hereof.

 

**13.14****                ****Further Assurances**.  Inaddition to the acts and deeds recited herein and contemplated to be performed,executed and/or delivered by either party at Closing, each party agrees toperform, execute and deliver, but without any obligation to incur anyadditional liability or expense, on or after the Closing any further deliveriesand assurances as may be reasonably necessary to consummate the transactionscontemplated hereby or to further perfect the conveyance, transfer andassignment of the Property to Purchaser.

 

**13.15****                ****Discharge of Obligations**.  Theacceptance of the Deed by Purchaser shall be deemed to be a full performanceand discharge of every representation and warranty made by Seller herein andevery agreement and obligation on the part of Seller to be performed pursuantto the provisions of this Agreement, except those which are herein specificallystated to survive Closing.

 

**13.16****                ****No Third Party Beneficiary**.  Theprovisions of this Agreement and of the documents to be executed and deliveredat Closing are and will be for the benefit of Seller and Purchaser only and arenot for the benefit of any third party, and accordingly, no third party shallhave the right to enforce the provisions of this Agreement or of the documentsto be executed and delivered at Closing, except that a tenant of the Propertymay enforce Purchaser’s indemnity obligation under Section 4.10 hereof.

 

**13.17****                ****Cooperation with Purchaser’sAudit**.  Seller agrees, at Purchaser’s expense, tocooperate fully with Purchaser and Purchaser’s representatives to facilitatePurchaser’s evaluations and reports, including at least a one (1) year audit ofthe books and records of the Property that qualify, comply with and can be usedin a public offering. Seller shall execute and deliver to Purchaser an auditrepresentation letter in the form attached as Exhibit I.

 

INWITNESS WHEREOF, the parties hereto have executed this Agreement on the day andyear written below.

 

**SELLER****:**

 

Sun  Life Assurance  Company  of 

Canada,a Canadian corporation

 

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| Date executed by Purchaser: | By:                                                             | /s/ Thomas V. Pedulla                 |                        |
|-----------------------------|-----------------------------------------------------------------|---------------------------------------|-----------------------------|
|                        | Name:                                                           | THOMAS V. PEDULLA                     |                        |
| 9.10.04                     |                                                            | Title:                                |   VICE  PRESIDENT |   |
|                        |
|                        |
|                        | By:                                                             | /s/ William M. Barres                 |                        |
|                        | Name:                                                           | WILLIAM M. BARRES                     |                        |
|                        | Title:                                                          |   SENIOR INVESTMENT OFFICER |                        |
|                        |
|                        | **PURCHASER:**                                                  |
|                        | ** **                                                      |
|                        | Inland Real Estate Acquisitions, Inc.,  an Illinois Corporation |
|                        |                                                            |
|                        |                                                            |
| Date executed by Seller:    | By:                                                             | /s/ Lou Quilici                       |                        |
|                        | Name:                                                           | Lou Quilici                           |                        |
| September 10,  2004         |                                                            | Title:                                | SR VP                       |   |
|                             |                                                                 |                                       |                             |  |  |  |  |  |  |  |  |  |

 

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