**Exhibit10.501**

 
| PURCHASE AND  SALE AGREEMENT            |
|-----------------------------------------|
|                                    |
| AMONG                                   |
|                                    |
| 1001674 ONTARIO,  INC.,                 |
|                                    |
| and                                     |
|                                    |
| 1001675 ONTARIO,  INC.,                 |
|                                    |
| collectively,  SELLER                   |   |
|                                    |
| AND                                     |
|                                    |
| INLAND REAL  ESTATE ACQUISITIONS, INC., |
|                                    |
| PURCHASER.                              |   |
|                                    |
| DATED AS OF JANUARY 25,  2005      |

 

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**TABLEOF****CONTENTS**

 

 
| 1.     | SALE OF PROPERTY                                                |   |
|--------|-----------------------------------------------------------------|--------|
|   |                                                            |   |
| 2.     | PURCHASE PRICE                                                  |   |
|   |                                                            |   |
| 3.     | APPORTIONMENTS                                                  |   |
|   |                                                            |   |
| 4.     | CLOSING DATE/ELECTRONIC REGISTRATION                            |   |
|   |                                                            |   |
| 5.     | PERMITTED ENCUMBRANCES                                          |   |
|   |                                                            |   |
| 6.     | TITLE                                                           |   |
|   |                                                            |   |
| 7.     | PROPERTY NOT INCLUDED IN SALE                                   |   |
|   |                                                            |   |
| 8.     | REPRESENTATIONS AND WARRANTIES                                  |   |
|   |                                                            |   |
| 9.     | CLOSING COSTS                                                   |   |
|   |                                                            |   |
| 10.    | CONDITIONS PRECEDENT TO CLOSING                                 |   |
|   |                                                            |   |
| 11.    | DOCUMENTS TO BE DELIVERED BY SELLER AT CLOSING                  |   |
|   |                                                            |   |
| 12.    | DOCUMENTS AND PAYMENTS TO BE DELIVERED BY  PURCHASER AT CLOSING |   |
|   |                                                            |   |
| 13.    | OPERATION OF THE PROPERTY PRIOR TO THE CLOSING  DATE            |   |
|   |                                                            |   |
| 14.    | AS-IS                                                           |   |
|   |                                                            |   |
| 15.    | BROKER                                                          |   |
|   |                                                            |   |
| 16.    | CASUALTY; EXPROPRIATION                                         |   |
|   |                                                            |   |
| 17.    | REMEDIES                                                        |   |
|   |                                                            |   |
| 18.    | INTENTIONALLY DELETED                                           |   |
|   |                                                            |   |
| 19.    | INTENTIONALLY DELETED                                           |   |
|   |                                                            |   |
| 20.    | INTENTIONALLY DELETED                                           |   |
|   |                                                            |   |
| 21.    | ASSIGNMENT                                                      |   |
|   |                                                            |   |
| 22.    | INTENTIONALLY DELETED                                           |   |
|   |                                                            |   |
| 23.    | NOTICES                                                         |   |
|   |                                                            |   |
| 24.    | PROPERTY INFORMATION AND CONFIDENTIALITY                        |   |
|   |                                                            |   |
| 25.    | MISCELLANEOUS                                                   |   |

 

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| **EXHIBITS:**                                       |                                                      |
|-----------------------------------------------------|-----------------------------------------------------------|
|                                                |                                                      |   |
| A.                                                  | INTENTIONALLY  DELETED                                    |   |
| B.                                                  | SELLER’S  EQUIPMENT AND PERSONALTY                   |   |
| C.                                                  | DOCUMENTS  TO WHICH SELLER OR AMEX CANADA INC. IS A PARTY |   |
| D.                                                  | FORM  OF SNDA                                             |   |
| E.                                                  | FORM  OF DEED                                             |   |
| F.                                                  | FORM  OF LEASE                                            |   |
| G.                                                  | INCOME  TAX ACT SECTION 116 DECLARATION              |   |
|                                                |                                                      |   |
| **SCHEDULES:**                                      |                                                      |
|                                                |                                                      |   |
| 1                                                   | DESCRIPTION  OF THE LAND                                  |   |
| 2                                                   | PERMITTED  ENCUMBRANCES                                   |   |
| 8(4)(2) MATERIALLY CONTRAVENED  DOCUMENTS           |                                                      |
| 8(4)(5) DUE DILIGENCE ITEMS DELIVERED  TO PURCHASER |                                                      |

 

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**TABLEOF DEFINED TERMS**

 

The following capitalizedterms are defined in the respective Section of the Agreement identifiedbelow:

 

•              “Agreement”- as such term is defined in the opening paragraph hereof.

 

•              “CITIGROUP”- as such term is defined in Section 6(1)(i) hereof.

 

•              “Closing”- as such term is defined in Section 4 hereof.

 

•              “ClosingDate” - as such term is defined in Section 4 hereof.

 

•              “CurrentLease” - as such term is defined in the Recitals hereof.

 

•              “Deed”- as such term is defined in Section 11(1) hereof.

 

•              “EnvironmentalLaws” - as such term is defined in Section 8(2) hereof.

 

•              “ExcludedEquipment” - as such term is defined in Section 7 hereof.

 

•              “ExculpatedParties” - as such term is defined in Section 8(1) hereof.

 

•              “GovernmentalAction” - as such term is defined in Section 8(4)(3) hereof.

 

•              “GovernmentalAuthority” - as such term is defined in Section 8(4)(3) hereof.

 

•              “Guarantor”- as such term is defined in Section 8(4)(2)(B) hereof.

 

•              “InvoluntaryLiens” as such term is defined in Section 6(2) hereof.

 

•              “HazardousSubstances” - as such term is defined in Section 14(1) hereof.

 

•              “Lease”- as such term is defined in Section 11(3) hereof.

 

•              “PermittedEncumbrances” - as such term is defined in Section 5 hereof.

 

•              “Property”- as such term is defined in the recitals hereof.

 

•              “PropertyInformation” - as such term is defined in Section 24(4) hereof.

 

•              “PurchasePrice” - as such term is defined in Section 2 hereof.

 

•              “Purchaser”- as such term is defined in the opening paragraph hereof.

 

•              “Purchaser’sRepresentatives” - as such term is defined in Section 24(4) hereof.

 

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•              “Seller”- as such term is defined in the opening paragraph hereof.

 

•              “Seller’sAffiliates” - as such term is defined in Section 25(5) hereof.

 

•              “Seller’sSolicitors” - as such term is defined in Section 4(1) hereof.

 

•              “Survey”- as such term is defined in Section 6(1)(i) hereof.

 

•              “SurvivingObligations” - as such term is defined in Section 25(19) hereof.

 

•              “Taking”- as such term is defined in Section 16(2) hereof.

 

•              “TerminationObligations” as such term is defined in Section 17(1) hereof.

 

•              “ThirdParty Reports” - as such term is defined in Section 8(1) hereof.

 

•              “TitleCommitments” - as such term is defined in Section 6(1)(i) hereof.

 

•              “TitleCompany” - as such term is defined in Section 6(1)(i) hereof.

 

•              “TitleDue Diligence Period” - as such term is defined in Section 6(1)(ii)hereof.

 

•              “TitleObjection Letter” *-*as suchterm is defined in Section 6(1)(i) hereof.

 

•              “TransferTax Payments” - as such term is defined in Section 9 hereof.

 

•              “TransferTax Return” - as such term is defined in Section 9 hereof.

 

•              “UnacceptableEncumbrances” - as such term is defined in Section 6(1)(i) hereof.

 

•              “USProperties PSA” - as such term is defined in the recitals hereof.

 

•              “VoluntaryLiens” as such term is defined in Section 6(2) hereof.

 

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PURCHASE AND SALEAGREEMENT

 

PURCHASE AND SALEAGREEMENT (this **“Agreement”**) dated as of the 25th day of January,2005, by and among **1001674****ONTARIO,****INC.** and **1001675 ONTARIO, INC.,**each being acorporation governed by the laws of the Province of Ontario, and each having anoffice at 101 McNabb Street, Markham, Ontario L3R 4H8 (individually andcollectively, the **“Seller”**), and **INLAND REAL****ESTATE ACQUISTIONS, INC.,**a corporationgoverned by the laws of the State of Illinois (the **“Purchaser”**), havingan office at 2901 Butterfield Road, Oak Brook, Illinois 60523.

 

**WI T N E S S E T H**

 

**WHEREAS,**1001674 Ontario, Inc. is the only owner of registered titleto the parcel of land described on **Schedule “1”**attached hereto and the buildings and improvements located thereon(such land, buildings and improvements being collectively referred to herein asthe **“Property”**) and 1001675 Ontario, Inc. is theonly owner of beneficial title to the Property; and

 

**WHEREAS,**Seller’s affiliate, Amex Canada Inc., currently leases the Property from Seller(the **“Current****Lease”**);and

 

**WHEREAS,**Seller and Purchaser now desire to enter into an agreementwhereby, subject to the terms and conditions contained herein, (i) Selleragrees to sell the Property to Purchaser or its affiliated assignee andPurchaser’s affiliated assignee shall purchase the Property from Seller and (ii)Amex Canada Inc. shall lease the Property from Purchaser’s affiliated assigneecommencing immediately upon closing of such purchase; and

 

**WHEREAS,**Purchaser intends to assign this Agreement (subject to Section 21hereof) to its affiliate, Inland Western Markham Corp., a corporation governedby the laws of the Province of New Brunswick (**“Purchaser’s Designee”**); and

 

**WHEREAS,**on December 16, 2004, Seller’s affiliates, IDS PropertyCasualty Insurance Company, FRC West Property, L.L.C. and American ExpressTravel Related Services Company, Inc., as seller, and Purchaser, as purchaser,entered into that certain Purchase and Sale Agreement for various propertieslocated in the United States of America (the **“US Properties PSA”**).

 

**NOW,THEREFORE,**in consideration of ten ($10.00) dollars and themutual covenants and agreements hereinafter set forth, and intending to belegally bound hereby, it is hereby agreed as follows:

 

1.           SALEOF PROPERTY.

 

Seller agrees to sell andconvey to Purchaser, and Purchaser agrees to purchase from Seller, at the priceand upon the terms and conditions set forth in this Agreement, the Property. 

 

2.             PURCHASEPRICE.

 

(1)                 Thepurchase price to be paid by Purchaser to Seller for the Property (the **“Purchase Price”**) is Forty Two Million and No/100 ($42,000,000.00) Dollars payableat the Closing by bank wire transfer of immediately available funds to

 

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Seller’s account or tothe account or accounts of such other party or parties as may be designated bySeller on or at least two (2) business days prior to the Closing Date. Anypayment made by wire transfer shall not be deemed to have been made untilconfirmed as received by Seller’s bank and credited to Seller’s account.

 

(2)                                  Ifthere shall be any real property tax or assessment appeals with respect to theperiod prior to Closing allocable to the Property, Seller may, at its option,and at its sole cost and expense, continue the prosecution of such appeals andtake related action which Seller reasonably deems appropriate in connectiontherewith. Purchaser shall have the right, at its sole cost and expense, to bepresent at any hearings in connection with such proceedings with respect to the2004 calendar year real property taxes. Purchaser shall cooperate with Sellerin connection with such proceedings and appeals and collection of any refund,credit or rebate of real property taxes paid relating to the time period priorto the Closing, but shall not be obligated to incur any expense as a resultthereof. With respect to the period prior to Closing, Seller owns and retainsall right, title and interest in and to such real property tax and taxassessment appeals and all rebates, credits or refunds, and all amounts payablein connection therewith or resulting from any statutory or legislative changeshall be paid directly to Seller by the applicable authorities. With respect tothe period prior to Closing, if such refund, rebate or credit or any partthereof is received by Purchaser, or otherwise credited to Purchaser or to thetax roll for the Property, Purchaser shall promptly pay such amount to Sellerunless Purchaser or the lessor under the Lease is obligated to pay such amountto the tenant under the Lease. Purchaser agrees that it shall make available toSeller copies of all correspondence and other documentation relating to thereassessment of real property taxes relating to the Property, which comes intothe possession or control of Purchaser subsequent to the Closing and relates torealty taxes for the period prior to the Closing.

 

The provisions of this Section 2(2)shall survive the Closing.

 

(3)                                  Purchasershall forthwith restore any damage to the Property resulting from any audits,inspections or tests performed for or on behalf of Purchaser at the Property.

 

3.             APPORTIONMENTS.

 

Insofar as Seller’saffiliate and Purchaser’s Designee will be entering into an absolutely net andcarefree Lease at the Closing with respect to the Property, there shall not beany apportionments or adjustments between Seller or Purchaser with respect toincome and expenses for the Property. The provisions of this Section 3shall survive the Closing.

 

4.             CLOSINGDATE/ELECTRONIC REGISTRATION.

 

(1)                                  Thedelivery of the Deed and the consummation of the transactions contemplated bythis Agreement (the **“Closing”**)shall take place at the offices of Fasken Martineau DuMoulin LLP, Toronto,Ontario (the **“Seller’s Solicitors”**) at 10 a.m.

 

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local time on or about January 25,2005 (the **“Closing Date”**), Time shall be of theessence with respect to the obligations of Purchaser to close the salecontemplated by this Agreement on the Closing Date and execute and deliver aLease for the Property on the Closing Date. The parties agree that with respectto ancillary closing documents (i.e., all documents to be delivered at Closingpursuant to this Agreement except the Lease, the SNDA, the estoppel, the Noticeof Lease, the Deed and any other closing documents that the parties heretoagree to record) required to be delivered on the Closing Date, executedfacsimile copies of such ancillary closing documents shall be acceptable;provided that originals of such ancillary closing documents shall be deliveredwithin two (2) business days after the Closing Date.

 

(2)                                  Inthe event that the electronic registration system (hereinafter referred to as **“TERS”**) is operative in the applicable Land Registry Officein which the Property is registered, the following provisions shall prevail,namely:

 

(a)           thePurchaser shall be obliged to retain a lawyer in good standing with the LawSociety of Upper Canada to represent the Purchaser in connection with the completionof this transaction, and shall authorize and instruct such lawyer to enter intoan escrow closing agreement with the Seller’s Solicitors on the latter’s standardform (hereinafter referred to as the **“Escrow RegistrationAgreement”**), establishing the procedures and timing for completingthis transaction;

 

(b)           thedelivery and exchange of documents and monies and the release thereof to theSeller and the Purchaser, as the case may be:

 

(i)            shallnot occur contemporaneously with the registration of the Transfer/Deed; and

 

(ii)           shallbe governed by the Escrow Registration Agreement, pursuant to which thesolicitor receiving the documents and/or certified funds will be required tohold the same in escrow, and will not be entitled to release the same except instrict accordance with the provisions of the Escrow Registration Agreement.

 

5.                                       PERMITTEDENCUMBRANCES. Subject to Purchaser’s review in accordance with Section 6(1)below, Seller shall convey and Purchaser shall accept title to the Propertysubject to those instruments, documents and matters set forth on**Schedule “2”** annexed hereto and made a part hereof(collectively the **“Permitted Encumbrances”**);provided, however, that upon the request of either party hereto, **Schedule 2** may be revised after the execution of thisAgreement so long as any subsequent revisions to the Permitted Encumbrances schedule (i)are to include items of the same type and category as those items set forth on **Schedule 2** attached to this Agreement as of the date ofthe execution of this Agreement, (ii) are reasonably acceptable to bothparties, (iii) do not create any encroachments or violate any restrictions ofrecord or covenants of record for the applicable Property(ies) other thanencroachments with respect to which Title Company has agreed to insure over orrestrictions of record or covenants of record that do not interfere with theuse or enjoyment of the Property and for which the Title Company has

 

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agreed to issue a “Comprehensive1 Endorsement” or a “Restrictions Endorsement”, in either event confirming “noviolations”, and (iv) do not occur after the Closing Date.

 

6.             TITLE.

 

(1)                                  (i)                                     Priorto the date of this Agreement, Purchaser has received (x) a title commitmentand the related underlying documents (together, **“Title Commitment”**) forthe Property from the Title Company and (y) a survey as more particularlydescribed on **Schedule ****2** as item 1(f) (the **“Survey”**, together with the Title Commitment,the **“Title Items”**). Purchaser has provided Seller witha notice of Purchaser’s comments and objections to the Title Items (a **“Title Objection Letter”**). Purchaser and Seller have, and shallcontinue, in good faith, to address Purchaser’s comments and attempt toeliminate Purchaser’s objections as contained in the Title Objection Letter.

 

(ii)                                  Inthe event that, prior to the Closing Date, Purchaser and Seller have not, tothe reasonable satisfaction of Purchaser, addressed Purchaser’s comments and/oreliminated Purchaser’s objections to the Title Items as contained in the TitleObjection Letter, or (y) Purchaser receives an updated Title Commitment whichindicates the existence of any liens, encumbrances, or other defects orexceptions in or to title to the Property other than Permitted Encumbrances andthose identified on the initial Title Items (collectively, the **“Unacceptable Encumbrances”**), subject to which Purchaser isunwilling to accept title, then provided Purchaser gives Seller notice of thesame within one (1) business day after receipt of such updated Title Item,Seller shall undertake to eliminate such Unacceptable Encumbrances. Purchaserhereby waives any right Purchaser may have to advance as objections to title oras grounds for Purchaser’s refusal to close this transaction any UnacceptableEncumbrance with respect to which Purchaser has not notified Seller prior tothe Closing (failure to so notify Seller shall be deemed to be a waiver byPurchaser of its right to raise such Unacceptable Encumbrance as an objectionto title or as a ground for Purchaser’s refusal to close this transaction).Seller, in its sole discretion, may adjourn the Closing one or more times forup to sixty (60) days in the aggregate in order to attempt, in good faith, toeliminate Unacceptable Encumbrances. Purchaser shall cooperate with Seller andshall also use its reasonable good faith efforts to eliminate UnacceptableEncumbrances. Seller shall cooperate with Purchaser so that Purchaser mayobtain title insurance from Chicago Title Insurance Company (the **“Title Company”**); provided, however, in no event shall Seller be required tospend any money to satisfy any conditions for the Title Company that Seller wouldnot have been required to satisfy for LandAmerica and in no event shallextensions of time be granted in this Section 6(1) for new searches orcommitments that duplicate what is made available to Purchaser by LandAmerica.The parties hereto acknowledge and agree that all fees due to the Title Companyand to LandAmerica have been paid in full.

 

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(2)                                  Notwithstandinganything to the contrary set forth in this Section 6 or elsewhere in thisAgreement, Seller shall not be obligated to bring any action or proceeding, tomake any payments or otherwise to incur any expense in order to eliminate anyTitle Item objected to by Purchaser or Unacceptable Encumbrances not waived byPurchaser or to arrange for title insurance insuring against enforcement ofsuch Title Items or Unacceptable Encumbrances against, or collection of thesame out of, the Property; except that Seller shall (A) either (i) satisfy or(ii) cause a reputable title company to insure over (it being agreed thatPurchaser shall be required to accept such “cure” from any reputable titlecompany agreeing to insure over such matter) (x) mortgages voluntarily imposedby Seller, (y) judgments against Seller or (z) other liens voluntarily imposedby Seller (excluding mechanic’s liens) (collectively, **“Voluntary****Liens”**)secured by or affecting the Property which can be satisfied by payment ofliquidated amounts and (B) with respect to (x) judgments as to which Seller isdisputing or contesting, and (y) liens not voluntarily imposed by Seller(collectively, **“Involuntary Liens”**) affecting the Property which can besatisfied by payment of liquidated amounts, Seller shall be obligated to spend,with respect to the Property, an amount not to exceed the lesser of (i) two(2%) percent of the Purchase Price or (ii) $500,000.00 to satisfy or cause areputable title company to insure over (it being agreed that Purchaser shall berequired to accept such “cure” from any reputable title company agreeing toinsure over such matter) such Involuntary Lien. Without limiting the generalityof the preceding provisions of this Section 6(2), for the purposes of thisAgreement (including, without limitation, Sections 6(1) and 17(1)), Seller’sfailure or refusal to bring any action or proceeding, to make any payments orto otherwise incur any expense (except for Seller’s obligation to satisfy orcause a reputable title insurance company to insure over such Voluntary Liensand Involuntary Liens as aforesaid) in order to eliminate UnacceptableEncumbrances not waived by Purchaser or to arrange for such title insuranceshall not be a default by Seller hereunder (willful or otherwise) and Purchasershall not be entitled to any damages in connection therewith. Further, ifPurchaser elects not to close the transaction solely due to Seller’s failure tocure or cause a reputable title company to insure over any Voluntary Liens orInvoluntary Liens as aforesaid, such failure shall not be a default by Sellerhereunder, however, Seller shall reimburse Purchaser for its actual, reasonablethird party costs incurred in connection with this Agreement in an amount that,when aggregated with the reasonable third party costs to which the “Purchaser”under the US Properties PSA would be entitled under Section 6(2) of thatagreement, does not exceed $100,000. With respect to any Involuntary Lien,Seller shall not be permitted to elect to reimburse Purchaser for its actual,reasonable third party costs incurred in connection with this Agreement in lieuof Seller’s obligation to attempt to cure an Involuntary Lien as aforesaid,provided, however, if Seller, in its reasonable opinion reasonably exercised,believes that the expenditure of the lesser of (i) two (2%) percent of thePurchase Price or (ii) $500,000, will not “cure” such Involuntary Lien, thenSeller shall not be obligated to expend such sums, and Seller shall remainliable to reimburse Purchaser for its actual reasonable third party costs in anamount that, when aggregated with the reasonable third party costs to which the“Purchaser” under the US Properties PSA would be entitled under Section 6(2)of that agreement, does not exceed $100,000. Notwithstanding anything containedin this Agreement to the contrary, in no event shall Seller be liable for anydamages, cost and/or expenses, including,

 

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without limitation,damages suffered by Purchaser or any of Purchaser’s affiliates resulting from,or in any way related to, the expiration of Purchaser’s “rate lock”, which theparties acknowledge expired on December 17, 2004. With respect to mechanic’sliens, Seller shall address mechanic’s liens as provided for in the Lease.

 

(3)                                  Ifon the Closing Date there are any Liens or other encumbrances, subject to Sections6(2) and 6(5), which Seller must pay or discharge in order to convey to Purchasersuch title as is herein provided to be conveyed, Seller may use any portion ofthe Purchase Price to satisfy the same, provided:

 

(i)            Sellershall deliver to Purchaser or the Title Company at the Closing, instruments inrecordable form and sufficient to satisfy such Liens or other encumbrances ofrecord together with the cost of recording or filing said instruments; or

 

(ii)           Seller,having made arrangements with the Title Company, shall deposit with saidcompany sufficient monies acceptable to said company to insure the obtainingand the recording of such satisfactions; and

 

(iii)                Theexistence of any such Liens or other encumbrances shall not be deemedobjections to title if Seller shall comply with the foregoing requirements.

 

(4)                                  Ifon the Closing Date there shall be security interests filed against thePurchaser under the *Personal PropertySecurity Act*(Ontario) specifically referencing the Property, thesame shall not constitute objections to title provided Seller executes anddelivers an officer’s certificate to the effect either (i) that the personal property(as defined in the Lease) covered by said security interests is no longer in oron the Property, or (ii) if such personal property is still in or on theProperty, that it has either (x) been fully paid for, (y) is not the personalproperty of Seller or (z) would qualify as “Lessee’s Equipment or Personalty”under the Lease.

 

(5)                                  Inthe event that a discharge of any mortgage or charge held by a Chartered Bank, TrustCompany, Credit Union or Insurance Company and which is not to be assumed bythe Purchaser on completion, is not available in registrable form on Closing,the Purchaser agrees to accept the Seller’s Solicitor’s personal undertaking toobtain, out of the closing funds, a discharge or cessation of charge inregistrable form and to register same on title within a reasonable period oftime (not to exceed 60 days) after completion, provided that on or before Closingthe Seller shall provide to the Purchaser a mortgage statement prepared by the mortgageesetting out the balance required to obtain the discharge together with a directionexecuted by the Seller directing payment to the mortgagee of the amount requiredto obtain the discharge out of the balance due on completion.

 

7.             PROPERTYNOT INCLUDED IN SALE.

 

Notwithstanding anythingto the contrary contained herein, it is expressly agreed by the parties heretothat any alterations at, on or in any of the Property that (i) are readilyremovable without unrepaired damage to the Property, (ii) do not reduce thevalue, economic life or utilityof the Property if removed, (iii) are not integral to the structure oroperation of the Property, and (iv) are not required for the lawful occupancyof the

 

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Property shall not beincluded in the Property to be sold to Purchaser hereunder. In addition, Seller’sEquipment and Personalty as described on **Exhibit“B”**, attached heretoand made a part hereof, shall also not be included in the Property to be soldto Purchaser hereunder. Seller shall assign to Amex Canada Inc. at Closing allof Seller’s right, title and interest in the property described above in thisparagraph (including but not limited to Seller’s Equipment and Personaltydescribed on **Exhibit “B”** attached hereto) asnot being sold to Purchaser hereunder.

 

8.            REPRESENTATIONSAND WARRANTIES.

 

(1)                                  Purchaserexpressly acknowledges that, except as expressly set forth in this Agreement orin the Lease, neither Seller, nor any person acting on behalf of Seller, norany person or entity which prepared or provided for any of the materialsreviewed by Purchaser in conducting its due diligence, nor any direct orindirect officer, director, partner, shareholder, employee, agent,representative, accountant, advisor, attorney, principal, affiliate,consultant, contractor, successor or assign of any of the foregoing parties(Seller, and all of the other parties described in the preceding portions ofthis sentence (other than (i) Purchaser and (ii) any parties who have issuedwritings which specifically state that Purchaser is entitled to rely upon theaccuracy, truthfulness or completeness thereof or delivered a Third PartyReport) shall be referred to herein collectively as the **“ExculpatedParties”**) has made any oral or written representations orwarranties, whether express or implied, by operation of law or otherwise, withrespect to the Property (including, without limitation, the environmentalcondition of the Property), the zoning and other laws, regulations and rulesapplicable thereto or the compliance by the Property therewith, the revenuesand expenses generated by or associated with the Property, or otherwiserelating to the Property or the transactions contemplated herein. Withoutlimiting the generality of the foregoing, Purchaser has not relied on anyrepresentations or warranties, and neither Seller nor any of Seller’sAffiliates, nor any of their agents or representatives has or is willing tomake any representations or warranties, express or implied, other than as maybe expressly set forth herein and in the Lease, as to (i) the status of titleto the Property, (ii) existing lease agreements, (iii) the current or futurereal estate tax liability, assessment or valuation of the Property; (iv) thepotential qualification of the Property for any and all benefits conferred byany laws whether for subsidies, special real estate tax treatment, insurance,mortgages or any other benefits, whether similar or dissimilar to thoseenumerated; (v) the compliance of the Property in its current or any futurestate with applicable laws or any violations thereof, including, withoutlimitation, those relating to access for the handicapped, environmental orzoning matters, and the ability to obtain a change in the zoning or a variancein respect to the Property non-compliance, if any, with zoning laws; (vi) thenature and extent of any right-of-way, lease, possession, lien, encumbrance,license, reservation, condition or otherwise; (vii) the availability of anyfinancing for the purchase, alteration, rehabilitation or operation of theProperty from any source, including, without limitation, any governmentauthority or any lender; (viii) the current or future use of the Property,including, without limitation, the Property’s use for commercial, manufacturingor general office purposes; (ix) the present and future condition and operatingstate of any personal property and the present or future structural andphysical condition of the improvements on the Property, its suitability forrehabilitation or renovation, or the need for expenditures for capitalimprovements,

 

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repairs or replacementsthereto; (x) the viability or financial condition of any tenant; (xi) thestatus of the leasing market in which the Property is located; or (xii) theactual or projected income or operating expenses of the Property.

 

(2)                                  Purchaserexpressly acknowledges that it is acquiring the Property based solely on itsown independent investigation and inspection of the Property and not inreliance on any information provided by Seller, or any of the other ExculpatedParties, except for the representations expressly set forth herein or in theLease. Notwithstanding anything to the contrary herein, as used herein the term“Exculpated Parties” shall not include any parties or entities who haveprepared any of the Third Party Reports, but in no event shall this sentence bedeemed to exclude Seller nor any direct or indirect officer, director, partner,shareholder or employee of Seller as an Exculpated Party. **“Third Party Reports”**shall mean all EnvironmentalReports (as defined in the Lease), appraisals, certificates, reports, assessments,studies or other information delivered to Purchaser for its review with respectto the Property. Purchaser acknowledges that Seller has afforded Purchaser theopportunity for full and complete investigations, examinations and inspections ofthe Property and all Property Information. Purchaser further acknowledges and agreesthat (i) the Property Information delivered or made available to Purchaser andPurchaser’s Representatives by Seller or Seller’s Affiliates, or any of their agentsor representatives may have been prepared by third parties and may not be thework product of Seller and/or any of Seller’s Affiliates; (ii) neither Sellernor any of Seller’s Affiliates has made any independent investigation orverification of, or has any knowledge of, the accuracy or completeness of, theProperty Information; (iii) the Property Information delivered or madeavailable to Purchaser and Purchaser’s Representatives is furnished to each ofthem at the request, and for the convenience of, Purchaser; (iv) Sellerexpressly disclaims any representations or warranties with respect to theaccuracy or completeness of the Property Information prepared by either Selleror any third-party vendors and Purchaser releases Seller and Seller’sAffiliates, and their agents and representatives, from any and all liabilitywith respect thereto; and (v) any further distribution of the Property Informationis subject to Section 24. Purchaser and Seller hereby agree that this paragraphdoes not constitute a waiver of any Purchaser’s rights or Seller’s obligationsthat arise in connection with the offering memorandum covering the subjectmatter of and issued in connection with this Agreement.

 

(3)                                  ThisAgreement, as written, contains all the terms of the agreement entered into betweenthe parties as of the date hereof, and Purchaser acknowledges that neither Sellernor any of Seller’s Affiliates, nor any of their agents or representatives, norany broker has made any representations or held out any inducements toPurchaser, and Seller hereby specifically disclaims any representation, oral orwritten, past, present or future, other than those specifically set forth inSections 8 and 15 and in the Lease. Purchaser acknowledges and agrees thatSeller’s liability with respect to Seller’s representations and warranties inthis Agreement and the Leases shall be limited to Seller’s interest in theProperty, and Purchaser shall have no recourse against Seller, Seller’sAffiliates, or their respective directors, shareholders, employees, agents, representatives,whom shall have no personal liability. Purchaser further acknowledges andagrees that its obligations under this Agreement shall not be subject to anyfinancing contingency or other contingencies or satisfaction of conditionsexcept to the extent specifically set forth herein and

 

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Purchaser shall have noright to terminate this Agreement, except as expressly provided in theAgreement.

 

(4)                                  TheSeller represents and warrants to the Purchaser as follows:

 

1.                                       Selleris validly existing and in good standing under the laws of the Province ofOntario. Seller has the corporate power and authority to conduct its businessin all material respects as now conducted, to own or hold its property, tolease its property and to enter into and perform its obligations under thisAgreement and when executed and delivered will have the corporate power andauthority to enter into and perform its obligations under the documentsdescribed on **Exhibit “C”**attachedhereto to which it is a signatory.

 

2.                                       (A)          ThisAgreement has been duly (a) authorized by all necessary corporate action and(b) executed and delivered to Purchaser. When executed and delivered by Selleror Amex Canada Inc., as the case may be, at Closing, each of the documentsrequired to be executed and/or delivered pursuant to Section 11 hereof,including but not limited to those described on **Exhibit****“C”**, will havebeen duly (a) authorized by all necessary corporate action, and (b) executedand delivered to Purchaser. At Closing, performance of this Agreement and eachof the documents required to be executed and/or delivered pursuant to Section 11hereof, including but not limited to those described on **Exhibit “****C”**,that have been executed and delivered by Seller, or Amex Canada Inc., as thecase may be, to Purchaser will not, (x) require any approval of thestockholders of Seller, or Amex Canada Inc., as the case may be, or anyapproval or consent of any trustee or holder of any indebtedness or obligationof Seller, or Amex Canada Inc., as the case may be, other than such consentsand approvals as have been obtained, (y) contravene any applicable law bindingon Seller, or Amex Canada Inc., as the case may be, or (z) except as set forthon Schedule 8(4)(2), materially contravene or result in anymaterial breach of or constitute any material default under the organizationaldocuments of Seller, or Amex Canada Inc., as the case may be, or any indenture,judgment, order, mortgage, loan agreement, contract, partnership or jointventure agreement, lease or other agreement or instrument to which Seller, orAmex Canada Inc., as the case may be, is a party or by which Seller, or AmexCanada Inc., as the case may be, is bound, or result in the creation of anyLien upon the Property.

 

(B)           Whenexecuted and delivered by American Express Travel Related Services Company,Inc. (**“Guarantor”**)at Closing, the Guaranty will have been duly (a) authorized by allnecessary corporate action, and (b) executed and delivered to Purchaser. AtClosing, performance of the Guaranty will not, (x) require any approval of thestockholders of Guarantor or any approval or consent of any trustee or holderof any indebtedness or obligation of Guarantor other than such consents andapprovals as have been obtained, (y) contravene any

 

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applicable law binding onGuarantor or (z) except as set forth on Schedule 8(4)(2),materially contravene or result in any material breach of or constitute anymaterial default under the organizational documents of Guarantor, or anyindenture, judgment, order, mortgage, loan agreement, contract, partnership orjoint venture agreement, lease or other agreement or instrument to whichGuarantor is a party or by which Guarantor is bound, or result in the creationof any Lien upon the Property.

 

3.                                       Allaction by any Governmental Authority (**“Governmental Action”**) required inconnection with the execution, delivery and performance by Seller or AmexCanada Inc., as the case may be, of the documents required to be executedand/or delivered pursuant to Section 11 hereof, including but not limitedto those described on **Exhibit “C”,**hasbeen or will have been obtained, given or made at or prior to Closing, including,without limitation, obtaining all approvals from any federal or state bankregulatory authorities. For purposes of this Agreement, **“Governmental Authority”**shall mean Canada,the province in which the Property is located and any political subdivisionthereof, and any and all agencies, departments, commissions, boards, bureaus, bodies,councils, offices, authorities, or instrumentality of any of them, of anynature whatsoever for any governmental unit (federal, provincial, county,municipal, city, foreign or otherwise) whether now or hereafter in existence.

 

4.                                       Selleris not a non-resident of Canada within the meaning of Section 116 of the *Income Tax Act*(Canada).

 

5.                                       ToSeller’s knowledge, but without independent investigation or duty of inquiry,except as may be set forth on Schedule 8(5) (copies of whichPurchaser acknowledges receipt prior to the date hereof), Seller has notreceived any written notice of building code violations or violations ofEnvironmental Laws that (a) have not been cured, or (b) are not de minimis innature.

 

6.                                       Sellerhas no actual knowledge (i) and has received no written notice of any specialassessments affecting the Property that would materially and adversely affectthe value of the Property; (ii) and has received no written notice of anyexpropriation proceedings affecting any of the Property; (iii) of any of Seller’semployees having any contracts or agreements with Seller that will survive theexpiration of the Lease or of any other material contracts that are binding onany of the Property and that will survive the expiration of the Lease, otherthan those that are cancelable without penalty.

 

7.                                       Exceptfor the Current Lease, there are no registered leases on any of the Property orany other rights to occupy the Property.

 

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8.                                       Selleris in compliance with the subdivision control provisions of the Planning Act,and covenants to remain, at its sole cost and expense, in compliance with suchprovisions at all times until Closing.

 

9.                                       Exceptas expressly set forth in this Agreement, none of Seller’s representations,warranties or covenants shall survive Closing or the termination of thisAgreement.

 

(5)                                  Ifat or prior to the Closing, (A) Purchaser shall become aware (whether throughits own efforts, by notice from Seller or otherwise) that any of therepresentations or warranties made herein by Seller are untrue, inaccurate orincorrect and shall give Seller notice thereof at or prior to the Closing, or(B) Seller shall notify Purchaser that a representation or warranty made hereinby Seller is untrue, inaccurate or incorrect, then Seller may, in its solediscretion, elect by notice to Purchaser to postpone the Closing one or moretimes for up to sixty (60) days in the aggregate in order to cure or correctsuch untrue, inaccurate or incorrect representation or warranty. If any suchrepresentation or warranty is materially untrue, inaccurate or incorrect, andis not cured or corrected by Seller on or before the Closing Date (or finaladjourned Closing Date as provided above, if Seller elects to adjourn theClosing), then Purchaser, as its sole remedy for any and all such materiallyuntrue, inaccurate or incorrect material representations or warranties, shallelect either (x) to waive such misrepresentations or breaches of warranties andconsummate the transactions contemplated hereby without any reduction of orcredit against the Purchase Price; or (y) if such misrepresentation is specificto a Property (as opposed to being applicable to all Property), to delete suchProperty from this Agreement and receive a credit against the Purchase Price inan amount equal to the portion of the Purchase Price allocated to such Propertyor (z) if such misrepresentation is not specific to a Property, to terminatethis Agreement by notice given to Seller on the Closing Date, in which event,this Agreement shall be terminated and neither party shall have any furtherrights, obligations or liabilities hereunder, except for the TerminationObligations. Purchaser acknowledges and agrees that (x) at or prior to theClosing, Purchaser’s rights and remedies in the event any of Seller’srepresentations or warranties made in this Agreement are untrue, inaccurate orincorrect shall be only as provided in this Section 8, and (y) if the Closingdoes not occur by virtue of such breach, Purchaser hereby expressly waives,relinquishes and releases all other rights or remedies available to it at law,in equity or otherwise (including, without limitation, the right to seekdamages from Seller) as a result of any of Seller’s representations orwarranties made in this Agreement being untrue, inaccurate or incorrect. IfPurchaser elects to consummate the transactions contemplated hereby afterreceipt of notice of the breach or after its having otherwise become aware ofsuch breach, then Purchaser shall be deemed to have waived suchmisrepresentation or breach of warranty and there shall be no reduction of orcredit against the Purchase Price and the Purchaser shall not use Seller’sbreach as a basis for delaying or refusing to proceed to Closing.

 

(6)                                  Inthe event the Closing occurs, notwithstanding anything contained in this Section 8or elsewhere in this Agreement to the contrary, Purchaser hereby expresslywaives, relinquishes and releases any right or remedy available to it at law,in equity or under this Agreement to make a claim against Seller for damages

 

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that Purchaser may incur,or to rescind this Agreement and the transactions contemplated hereby, as theresult of any of Seller’s representations or warranties being untrue,inaccurate or incorrect if Purchaser knew that such representation or warrantywas untrue, inaccurate or incorrect at the time of the Closing and Purchasernevertheless closes title hereunder.

 

(7)                                  Therepresentations and warranties of Seller set forth in this Section 8 and elsewherein this Agreement shall be true, accurate and correct in all material respectsupon the execution of this Agreement and shall be deemed to be repeated on andas of the Closing Date. The representations and warranties (whether express orimplied) of Seller set forth in this Section 8 and elsewhere in this Agreementshall remain operative and shall survive the Closing and the execution anddelivery of the Deed for a period of two hundred seventy (270) days followingthe Closing Date, and no action or claim based thereon shall be commenced aftersuch period, but any claim made within such 270-day period shall survive suchperiod until finally determined and all amounts, if and as required, are paid.If Purchaser shall have timely commenced an action with respect to a breach ofa representation or warranty made by Seller hereunder and a court of competentjurisdiction shall, determine that (A) Seller was in breach of the applicablerepresentation or warranty as of the date of this Agreement or as of theClosing Date, (B) Purchaser suffered damages by reason of such breach, and (C)Purchaser did not have knowledge of such breach on or prior to the date of the Closing,then, Purchaser shall be entitled to receive an amount equal to its damages;provided that in no event shall Purchaser be entitled to receive as damages, inconnection with any and all breaches of the representations and warranties ofSeller hereunder, an amount in excess of between zero dollars and $2,000,000which, when aggregated with the damages for the “Seller’s” breaches of itsrepresentations and warranties to which the “Purchaser” under the US PropertiesPSA would be entitled under Section 8(7) of that agreement, would not causesuch aggregated amount to exceed $2,000,000 notwithstanding that the amount ofany damages suffered by Purchaser exceeds $2,000,000.

 

(8)           Purchaserrepresents and warrants to Seller as follows:

 

1.                                       Purchaseris validly existing and in good standing under the laws of the State ofIllinois. Purchaser’s Designee will be at Closing validly existing and in goodstanding under the laws of the Province of New Brunswick. Purchaser has thecorporate power and authority to conduct its business as now conducted, to ownor hold its assets, to own or hold the Property or to lease the Property, asthe case may be, and to enter into and perform its obligations under alldocuments to which it is or is to become a party. Purchaser is duly qualifiedto do business and is in good standing as a foreign corporation in any jurisdictionwhere the failure to also qualify would have a material adverse effect on itsability to perform its obligations under all documents to which it is a party.

 

2.                                       Eachof the documents to which Purchaser is a party has been duly authorized by allnecessary (i) corporate or (ii) trust action, executed and delivered to Seller,and performance thereof by Purchaser will not,

 

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(1) require any approvalof the members/stockholders of Purchaser or any approval or consent of anytrustee or holder of any indebtedness or obligation of Purchaser, other thansuch consents and approvals as have been obtained, (2) contravene anyapplicable law binding on Purchaser or (3) contravene or result in any breachof or constitute any default under the organizational documents of Purchaser,or any indenture, judgment, order, mortgage, loan agreement, contract,partnership or joint venture agreement, lease or other agreement or instrumentto which Purchaser is a party or by which Purchaser is bound, or result in thecreation of any Lien upon any property of Purchaser.

 

3.                                       AllGovernmental Action required in connection with the execution, delivery andperformance by Purchaser of all of the documents to which it is a party, hasbeen or will have been obtained, given or made, including, without limitation,obtaining all approvals from any federal or state bank regulatory authorities.

 

4.                                       Purchaser’sDesignee is and/or will be at Closing registered under Subdivision d ofDivision V of Part IX of the Excise Tax Act (**“ETA”**)for the collection and remittance of the goods and services tax payablethereunder (**“GST”**) and its registration numberis 860614973 RT0001.

 

5.                                       Purchaser’sDesignee is not a non-Canadian within the meaning of the *Investment Canada Act*(Canada).

 

6.                                       Purchaser(including for the purposes of this Section 8(8)(6), any entity that isdirectly or indirectly 15% or more owned by Purchaser or as to which Purchaserdirectly or indirectly has the right to vote 15% or more of the votingsecurities thereof) is not a Significant Competitor (as defined in the Lease)of Seller, and no entity that directly or indirectly has a 15% or greaterinterest in Purchaser is a Significant Competitor (as defined in the Lease) ofSeller.

 

7.                                       Purchaseris neither the legal nor beneficial owner of any real property adjoining anypart of the Property.

 

(9)                                  Ifat or prior to the Closing, (A) Seller shall become aware (whether through itsown efforts, by notice from Purchaser or otherwise) that any of therepresentations or warranties made herein by Purchaser are untrue, inaccurateor incorrect and shall give Purchaser notice thereof at or prior to the Closing,or (B) Purchaser shall notify Seller that a representation or warranty madeherein by Purchaser is untrue, inaccurate or incorrect, then Purchaser may, inits sole discretion, elect by notice to Seller to adjourn the Closing one ormore times for up to sixty (60) days in the aggregate in order to cure orcorrect such untrue, inaccurate or incorrect representation or warranty. If anysuch representation or warranty is materially untrue, inaccurate or incorrect,and is not cured or corrected by Purchaser on or before the Closing Date(whether or not the Closing is adjourned as provided above), then Seller, asits sole remedy for any and all such

 

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materially untrue,inaccurate or incorrect material representations or warranties, shall electeither (x) to waive such misrepresentations or breaches of warranties andconsummate the transactions contemplated hereby without any adjustment of thePurchase Price, or (y) if such misrepresentation is specific to a Property (asopposed to being applicable to all Property), to delete such Property from thisAgreement and to reduce the Purchase Price in an amount equal to the portion ofthe Purchase Price allocated to such Property or (z) if such misrepresentationis not specific to a Property, to terminate this Agreement by notice given toPurchaser on the Closing Date, in which event, this Agreement shall beterminated and neither party shall have any further rights, obligations orliabilities hereunder, except for the Surviving Obligations. Selleracknowledges and agrees that (a) at or prior to the Closing, Seller’s rightsand remedies in the event any of Purchaser’s representations or warranties madein this Agreement are untrue, inaccurate or incorrect shall be only as providedin this Section 8, and (b) if the Closing does not occur by virtue of suchbreach, Seller hereby expressly waives, relinquishes and releases all otherrights or remedies available to it at law, in equity or otherwise (including,without limitation, the right to seek damages from Purchaser) as a result ofany of Purchaser’s representations or warranties made in this Agreement beinguntrue, inaccurate or incorrect. If Seller elects to consummate thetransactions contemplated hereby after receipt of notice of the breach thenSeller shall be deemed to have waived such misrepresentation or breach ofwarranty and there shall be no adjustment in the Purchase Price, and Sellershall not use Purchaser’s breach as a basis for delaying or refusing to proceedto Closing.

 

(10)         Sellerrepresents to Purchaser, as of the date of this Agreement, that Seller has no right,after the Closing, to re-purchase the Property, or any portion thereof, from Purchaser.Purchaser represents to Seller, as of the date of this Agreement, that Purchaserhas no right, after the Closing, to require Seller to re-purchase the Property.

 

(11)         Therepresentations and warranties of Purchaser set forth in this Section 8and elsewhere in this Agreement shall be true, accurate and correct in allmaterial respects upon the execution of this Agreement, shall be deemed to berepeated on and as of the Closing Date. The representations and warranties(whether express or implied) of Purchaser set forth in this Section 8 andelsewhere in this Agreement shall remain operative and shall survive theClosing and the execution and delivery of the Deed for a period of one (1) yearfollowing the Closing Date, and no action or claim based thereon shall becommenced after such period.

 

9.             CLOSINGCOSTS.

 

(1)                                  Atthe Closing, Seller shall be liable for the payment of (i) all applicable LandTransfer Tax and registration fees (the **“Transfer Tax Payments”**)imposed pursuant to the laws of the Province of Ontario or any otherGovernmental Authority in respect of the transactions contemplated by thisAgreement by wire transfer to the Seller’s Solicitors or delivery to the Seller’sSolicitors of certified cheques drawn on one of the five largest (by assetsize) Schedule 1 Chartered Canadian Banks and payable to the order of therelevant Governmental Authority together with any return (the **“Transfer Tax Return”**)required thereby which

 

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shall be duly executed byPurchaser, (ii) recording charges to discharge any mortgages that are not to beassumed (iii) its share of the title insurance-related costs as described in Section 6(1)(ii),(iv) one-half of any escrow fees, and (v) the cost of the appraisals,engineering reports and Phase 1 environmental reports ordered by Seller.

 

(2)                                 Atthe Closing, Purchaser shall be responsible for (i) its share of the title insurance-relatedcosts as described in Section 6(1)(ii), (ii) recording charges in connectionwith the conveyance of the Property to Purchaser (including, without limitation,recording fees), (iii) one-half of any escrow fees, (iv) the cost of the appraisals,engineering reports and Phase 1 environmental reports ordered by Purchaser, and(v) all applicable provincial sales tax and federal goods and services taxpayable in connection with the sale, transfer, assignment and delivery of theProperty by the Seller to the Purchaser.

 

(3)                                 Sellerand Purchaser agree that each party shall pay its own costs, fees and expensesof counsel retained by each party in connection with the consummation of thistransaction.

 

(4)                                 Purchasershall be responsible for the payment of all costs and expenses relating to thedebt to be secured by Purchaser to finance the purchase of the Property, including,without limitation, recording fees, debt placement fees, initial rating agencyfees (but not on-going fees), surety bond fees and fees and expenses of counselfor the debt. The provisions of this Section 9 shall survive the Closing.

 

10.           CONDITIONSPRECEDENT TO CLOSING.

 

(1)                                  Purchaser’sobligation under this Agreement to purchase the Property is subject to thefulfillment of each of the following conditions, subject, however, to theprovisions of Section 10(3):

 

1.                                       Therepresentations and warranties of Seller contained herein shall be materiallytrue, accurate and correct as of the Closing Date (subject to the provisions ofSection 8(5));

 

2.                                       Sellershall be ready, willing and able to deliver title to the Property in accordancewith the terms and conditions of this Agreement;

 

3.                                       Sellershall have delivered all the documents and other items required pursuant to Section 11hereof, and shall have performed all other covenants, undertakings andobligations, and complied with all conditions required by this Agreement to beperformed or complied with by the Seller at or prior to the Closing;

 

4.                                       Purchasershall have received at Closing a title policy for the Property with allendorsements required by this Agreement, an updated ALTA survey, the Lease,estoppel certificates in form reasonably acceptable to Seller and asubordination, non-disturbance and attornment agreement substantially in theform attached hereto as **Exhibit “D”**(**“SNDA”**), it being agreed and understood that in no eventshall Seller’s failure to deliver any estoppel certificate or SNDA be deemed

 

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a default by Seller norshall any such failure or delay give Purchaser any right whatsoever to fail toclose this transaction as described herein in the manner and at the timeotherwise prescribed by this Agreement;

 

5.                                       Asof the Closing Date, Guarantor under the Lease for the Property, shall have anS&P credit rating of higher than “A”;

 

6.                                       Allmaterial consents and approvals by any Governmental Authority and parties toagreements to which Seller is a party or by which Seller’s assets are boundthat are required with respect to the consummation of the transactionscontemplated by this Agreement shall have been obtained and copies thereof orother evidence satisfactory thereof shall have been delivered to Purchaser ator prior to the Closing;

 

7.                                       Noorder or injunction of any court or administrative agency of competentjurisdiction nor any statute, rule, regulation or executive order promulgatedby any Governmental Authority of competent jurisdiction shall be in effect asof the Closing which prohibits the transfer of the Property or the consummationof any other transaction contemplated hereby;

 

8.                                       Onor prior to the Closing Date, (A) Seller shall not have applied for or consentedto the appointment of a receiver, trustee or liquidator for itself or any ofits assets unless the same shall have been discharged prior to the ClosingDate, and no such receiver, liquidator or trustee shall have otherwise beenappointed, unless same shall have been discharged prior to the Closing Date,(B) Seller shall not have admitted in writing an inability to pay its debts asthey mature, (C) Seller shall not have made a general assignment for thebenefit of creditors, (D) Seller shall not have been adjudicated as bankrupt orinsolvent, or had a petition for reorganization granted with respect to Seller,(E) Seller shall not have filed a voluntary petition seeking reorganization oran arrangement with creditors or taken advantage of any bankruptcy, reorganization,insolvency, readjustment or debt, dissolution or liquidation law or statute, orfiled an answer admitting the material allegations of a petition filed againstit in any proceedings under any such law, or had any petition filed against itin any proceeding under any of the foregoing laws unless the same shall havebeen dismissed, canceled or terminated prior to the Closing Date; and

 

9.                                       TheCurrent Lease shall have been terminated concurrently with the Closing.

 

(2)                                  Seller’sobligation under this Agreement to sell the Property to Purchaser is subject tothe fulfillment of each of the following conditions, subject, however to theprovisions of Section 10(3):

 

1.                                       Therepresentations and warranties of Purchaser contained herein shall bematerially true, accurate and correct as of the Closing Date;

 

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2.                                       Purchasershall have delivered the funds required hereunder and all the documents to beexecuted by Purchaser set forth in Section 12 hereof and shall haveperformed all other covenants, undertakings and obligations, and complied withall conditions required by this Agreement to be performed or complied with byPurchaser at or prior to the Closing;

 

3.                                       Allconsents and approvals by any Governmental Authority and parties to agreementsto which Purchaser is a party or by which Purchaser’s assets are bound that arerequired with respect to the consummation of the transactions contemplated bythis Agreement shall have been obtained and copies thereof shall have beendelivered to Seller at or prior to the Closing;

 

4.                                       Noorder or injunction of any court or administrative agency of competentjurisdiction nor any statute, rule, regulation or executive order promulgatedby any Governmental Authority of competent jurisdiction shall be in effect asof the Closing which prohibits the transfer of the Property or the consummationof any other transaction contemplated hereby;

 

5.                                       Onor prior to the Closing Date, (A) Purchaser shall not have applied for orconsented to the appointment of a receiver, receiver-manager, trustee orliquidator for itself or any of its assets unless the same shall have beendischarged prior to the Closing Date, and no such receiver, receiver-manager,liquidator or trustee shall have otherwise been appointed, unless same shallhave been discharged prior to the Closing Date, (B) Purchaser shall not haveadmitted in writing an inability to pay its debts as they mature, (C) Purchasershall not have made a general assignment for the benefit of creditors, (D)Purchaser shall not have been adjudicated as bankrupt or insolvent, or had apetition for reorganization granted with respect to Purchaser, (E) Purchasershall not have filed a voluntary petition seeking reorganization or anarrangement with creditors or taken advantage of any bankruptcy,reorganization, insolvency, readjustment or debt, dissolution or liquidationlaw or statute, or filed an answer admitting the material allegations of apetition filed against it in any proceedings under any such law, or had anypetition filed against it in any proceeding under any of the foregoing lawsunless the same shall have been dismissed, canceled or terminated prior to theClosing Date;

 

6.                                       Purchaser’sDesignee and its affiliates, Inland Western Markham Limited Partnership andInland Western Markham DST, shall have entered into that certain Canadian TaxMonitoring And Indemnity Agreement with Amex Canada Inc. in the form attachedhereto as **Exhibit “E”**; and

 

7.                                       Purchaser’sAffiliate, Inland Western Retail Real Estate Trust, Inc., shall have executedand delivered the Indemnification Guaranty in the form attached as an exhibitto the Lease (as defined below).

 

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(3)                                  Inthe event that any condition contained in Section 10(1) or 10(2) is notsatisfied, the party entitled to the satisfaction of such condition as acondition to its obligation to close title hereunder shall have as its soleremedy hereunder the right to elect to (i) waive such unsatisfied conditionwhereupon title shall close as provided in this Agreement, or (ii) if suchfailure is by Seller and is specific to a Property, Purchaser may delete suchProperty from this Agreement and receive credit against the Purchase Price inan amount equal to the portion of the Purchase Price allocated to such Propertyor, (iii) if such failures relate to more than one of the Property if suchfailures were by Seller, Purchaser may terminate this Agreement, or (iv) ifsuch failure is by Purchaser or Seller and is not specific to a Property, terminatethis Agreement. Nothing contained in this Section 10(3) shall be construedso as to bestow any right of termination upon a party for the failure of acondition to be satisfied unless such party is expressly entitled to thesatisfaction of such condition as provided in Section 10(1) or 10(2). Theprovisions of this Section 10(3) shall survive the Closing.

 

11.                                 DOCUMENTSTO BE DELIVERED BY SELLER AT CLOSING. At or prior to the Closing, Sellershall execute, acknowledge and deliver or cause to be delivered to the TitleCompany for delivery to Purchaser, pursuant to escrow instructions from Sellerand the Purchaser, the following for the Property:

 

(1)                                  Anelectronically registrable transfer/deed of land for the Property with the statementspursuant to Section 50(22) of the *PlanningAct*(Ontario) completed by the Seller and the Seller’s Solicitors(collectively, the **“Deed”**)conveying title to the Property in the form shown in **Exhibit “F”**annexed hereto and made a part hereof;

 

(2)                                  Alease for the Property, substantially in the form of the lease attached heretoas **Exhibit “G”** (the **“Lease”**)and a notice thereof for recording in the land records where the Property islocated;

 

(3)                                  ProForma fee title insurance policy with all endorsements required pursuant to thisAgreement insuring the Property for the Purchase Price;

 

(4)                                  Acurrent ALTA survey certified to Purchaser and Purchaser’s lender, if any;

 

(5)                                  Tenants’insurance certificates as required by the Lease;

 

(6)                                  Suchorganizational documentation, if any, as the Title Company may reasonably requirein order to issue an owner’s fee title insurance policy based on the Title Commitment,with a copy of such documentation to Purchaser;

 

(7)                                  LandTransfer Tax Returns, if any,**to be prepared by Seller andsigned by Purchaser;

 

(8)                                  TheTransfer Tax Payments, if any;

 

(9)                                  Astatutory declaration stating that Seller is not a non-resident of Canadawithin the meaning of Section 116 of the *IncomeTax Act*(Canada) as attached and made a part hereof as **Exhibit “H”**;

 

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(10)         All otherdocuments Seller is required to deliver pursuant to the provisions of this Agreementand of any applicable laws and/or regulations;

 

(11)         Such SNDA’sand estoppel certificates as may be agreed to by Seller in connection withPurchaser’s financing;

 

(12)         Atransfer/deed of land for the Property from 1001675 Ontario, Inc. not for registration,but in registrable form, along with its authorization and direction to 1001674Ontario, Inc. to convey to the Purchaser registered title to the Property; and

 

(13)         ClosingStatements for Purchaser and Seller indicating deposits, credits and chargeswith respect to each Property, including an undertaking by each of Purchaserand Seller to re-adjust any item on or omitted from same.

 

All items to be deliveredunder this Article 11 shall be in form and substance acceptable toPurchaser and its counsel, acting reasonably and in good faith.

 

12.           DOCUMENTSAND PAYMENTS TO BE DELIVERED BY PURCHASER AT CLOSING. At the Closing,Purchaser shall execute, acknowledge and deliver or cause to be delivered tothe Seller, the following for the Property:

 

(1)                                 ThePurchase Price payable at the Closing pursuant to Section 2(1), subject toadjustments as expressly provided in this Agreement;

 

(2)                                 TheLease;

 

(3)                                 IfPurchaser is a trust, certified copies of the trust agreement pursuant to whichPurchaser was formed;

 

(4)                                 Ifsuch is required by the terms of any Permitted Encumbrance, a specific assumptionagreement pursuant to which the Purchaser assumes the obligations of the Sellercontained in such document from and after the Closing;

 

(5)                                 LandTransfer Tax Returns, if any, to be prepared by Seller and signed by Purchaser;

 

(6)                                 Suchorganizational documentation, if any, as the Title Company may reasonably requirein order to issue an owner’s fee title insurance policy based on the Title Commitment;

 

(7)                                 OnClosing, the Purchaser shall either remit to the Seller all GST payable pursuantto the ETA in respect of the sale of the Property or self assess for the exigibleGST and deliver prior to closing to the Seller a notarial copy of the Purchaser’sGST registration certificate and a declaration and indemnity stating thefollowing:

 

(i)                                     ThePurchaser’s Designee is registered under Subdivision d of Division V of Part IXof the ETA for the collection and remittance of GST and its Registration Numberis 860614973 RT0001;

 

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(ii)                                  ThePurchaser shall remit directly to the Receiver General of Canada all GST, ifany, which the Purchaser is required to remit in accordance with the ETA, andfile the prescribed form in connection with the sale or conveyance of theProperty;

 

(iii)                               TheProperty is being purchased by the Purchaser as principal for its own accountand is not being purchased by the Purchaser as an agent, trustee or otherwiseon behalf of or for another person;

 

(iv)                              ThePurchaser shall indemnify and save harmless the Seller from any GST, penalty,interest or other amounts which may be payable by or assessed against theSeller under the ETA as a result of or in connection with the Seller’s failureto collect and remit any GST applicable on the sale and conveyance of theProperty by the Seller.

 

(8)                              Allother documents Purchaser is required to deliver pursuant to the provisions of thisAgreement and of any applicable laws and/or regulation;

 

(9)                              Acertification from an authorized officer of Inland Western Retail Real Estate Trust,Inc. that Purchaser (including for the purposes of this Section 12(9), anyentity that is directly or indirectly 15% or more owned by Purchaser or as to whichPurchaser directly or indirectly has the right to vote 15% or more of the votingsecurities thereof) is not a Significant Competitor (as defined in the Lease) ofSeller, and no entity that directly or indirectly has a 15% or greater interestin Purchaser is a Significant Competitor (as defined in the Lease) of Seller;and

 

(10)                        ClosingStatements for Purchaser and Seller indicating deposits, credits and chargeswith respect to each Property, including an undertaking by each of Purchaserand Seller to re-adjust any item on or omitted from same.

 

All items to be deliveredunder this Article 12 shall be in form and substance acceptable to Sellerand its counsel, acting reasonably and in good faith.

 

13.                                 OPERATIONOF THE PROPERTY PRIOR TO THE CLOSING DATE. Between the date hereof and theClosing Date, Seller shall have the right and the obligation to continue tooperate and maintain the Property in the same general manner as operated andmaintained prior to the date hereof.

 

14.                                 AS-IS.

 

(1)                                  Purchaseracknowledges and agrees that upon closing Seller shall sell and convey toPurchaser and Purchaser shall accept the Property “as is, where is, with allfaults”, including, without limitation, those arising from, related to or inconnection with Hazardous Substances at, in, on, above, under, about, ormigrating to or from or affecting the Property. Purchaser has had theopportunity to investigate the Property (including, without, limitation theenvironmental condition of each property) and has not relied and will not relyon, and Seller is not liable for or bound by, any express or impliedwarranties, guaranties, statements, representations or information pertainingto the Property relating thereto (including specifically, without limitation,environmental conditions) made or furnished by Seller directly

 

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or indirectly, orally orin writing except for the representations and warranties of the Sellercontained herein or in the Lease. Purchaser and Purchaser’s successors,assigns, operators, mortgagees, tenants, licensees and occupants of theProperty waive, release and discharge Seller and its parents, subsidiaries,affiliates, partners, officers, directors, employees, agents, representatives,shareholders, predecessors, successors and assigns from, without limitation,any and all obligation or liability, whether known or unknown, foreseen orunforeseen, threatened or actual, now existing or hereafter in existence, ofPurchaser arising from relating to or in connection with the presence ofHazardous Substances at, in, on, above, under, about or migrating to or fromthe Property. **“Hazardous Substances”**shall mean each and every element, compound,chemical mixture, contaminant, pollutant, material, waste, or other substancewhich is defined, determined or identified as hazardous or toxic under anyEnvironmental Law or is otherwise regulated by any Governmental Authority. **“Environmental Laws”** shall mean any federal, provincial orlocal statute, regulation or ordinance or any judicial or administrative decreeor decision, whether now existing or hereafter enacted, promulgated or issued,with respect to any Hazardous Substances, drinking water, ground water,wetlands, landfills, open dumps, storage tanks, underground storage tanks,solid waste, waste water, storm water runoff, waste emissions or wells andinclude, without limitation, those Environmental Laws relating to the storage,generation, use, handling, manufacture, processing, labelling, advertising,sale, display, transportation, treatment, release and disposal of HazardousSubstances, including without limitation, the *CanadianEnvironmental Protection Act, 1999,*S.C. 1999, c.33, the *Transportation of Dangerous Goods Act,*1992,c.34, the *Environmental Protection Act,*R.S.O.1990, c. E.19, the *Ontario Water ResourcesAct,*R.S.O. 1990, c. O.40 and any regulation, order, guideline orpolicy made pursuant to any of such statutes or in respect of any of suchstatutes.

 

The release contained inthis Section 14(1) above shall run with the land, be binding uponPurchaser and Purchaser’s successors and assigns, and all future owners,operators, mortgagees, tenants, licensees and occupants of the Property andshall inure to the benefit of Seller and its successors and assigns, and shallsurvive the Closing.

 

(2)                                  Purchaseror anyone claiming by, through or under Purchaser, hereby fully and irrevocablyreleases Seller and Seller’s Affiliates, and their agents and representatives,from any and all claims that it may now have or hereafter acquire againstSeller or Seller’s Affiliates, or their agents or representatives for any cost,loss, liability, damage, expense, action or cause of action, whether foreseenor unforeseen, arising from or related to any construction defects, errors oromissions on or in the Property, the presence of Hazardous Substances, or anyother conditions (whether patent, latent or otherwise) affecting the Property,except for claims against Seller based upon any obligations and liabilities ofSeller expressly provided in this Agreement or the Lease. Purchaser furtheracknowledges and agrees that this release shall be given full force and effectaccording to each of its expressed terms and provisions, including, but notlimited to, those relating to unknown and suspected claims, damages and causesof action. As a material covenant and condition of this Agreement, Purchaseragrees that in the event of any such construction defects, errors or omissions,the presence of Hazardous Substances, or any other conditions affecting theProperty, Purchaser

 

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shall have no claimsagainst Seller, except for claims against Seller based upon any obligations andliabilities of Seller expressly provided in this Agreement.

 

(3)                               Sellershall not be liable or bound in any manner by any oral or written “setups” orinformation pertaining to the Property or the rents furnished by Seller, Seller’sAffiliates, their agents or representatives, any real estate broker, including,without limitation, CITIGROUP, Trammell Crow Company (**“TCC”**),or other person.

 

(4)                               Eachof Purchaser and Seller hereto acknowledge that it has consulted with its tax advisorsin connection with the transactions contemplated by this Agreement, and eachparty hereto acknowledges that it has not relied upon any advice or opinions givenby the other party or its attorneys or agents, nor has any party hereto guaranteedany particular tax consequences in connection with the transactions contemplatedby this Agreement.

 

(5)                               ThePurchaser agrees that it will not initiate any inspection of the Property byany Governmental Authority but shall be entitled to contact the appropriate GovernmentalAuthority to obtain a zoning letter.

 

(6)                               Theprovisions of this Section 14 shall survive the termination of thisAgreement and the Closing.

 

15.                                 BROKER.Purchaser and Seller each represent and warrant to the other that it has notdealt or negotiated with, or engaged on its own behalf or for its benefit, anybroker, finder, consultant, advisor, or professional in the capacity of abroker or finder in connection with this Agreement or the transactionscontemplated hereby other than Citigroup Global Markets, Inc. (**“CITIGROUP”**)****and TCC. Purchaser acknowledges andrepresents that it has also dealt with Stan Johnson Company in connection withthe transactions contemplated hereby. Each party hereby agrees to indemnify,defend and hold the other harmless from and against any and all claims,demands, causes of action, losses, costs and expenses (including reasonablelegal fees, court costs and disbursements) arising from its breach of theforegoing representations. Seller agrees that it shall pay CITIGROUP and TCC inaccordance with separate agreements between Seller and CITIGROUP and Seller andTCC. Purchaser agrees that it shall pay Stan Johnson Company in accordance witha separate agreement between Purchaser and Stan Johnson Company. Theobligations and representations and warranties contained in this Section 15shall survive the termination of this Agreement and the Closing.

 

16.                                 CASUALTY;EXPROPRIATION.

 

(1)                                  Ifa “material” part (as hereinafter defined) of the Property is damaged ordestroyed by fire or other casualty, Seller shall notify Purchaser of such factand, except as hereinafter provided, Purchaser shall have the option toterminate this Agreement upon notice to Seller given not later than ten (10)days after receipt of Seller’s notice. Notwithstanding the foregoing, if a “material”part of any of the Property is damaged or destroyed and Purchaser elects toterminate this Agreement as provided above, Purchaser’s election shall beineffective if within ten (10) days after Seller’s receipt of Purchaser’selection notice, Seller shall elect by notice to Purchaser to repair suchdamage or destruction and shall thereafter complete such repair within ninety(90) days after the then scheduled Closing

 

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Date at the time ofPurchaser’s election. If Seller makes such election to repair, Seller shallhave the right to postpone the Closing Date one or more times for up to ninety(90) days in the aggregate in order to complete such repairs and shall have theright to retain all insurance proceeds which Seller may be entitled to receiveas a result of such damage or destruction. If (i) Purchaser does not elect toterminate this Agreement, (ii) Purchaser elects to terminate this Agreement butsuch election is ineffective because Seller elects to repair such damage andcompletes such repair within such 90-day period provided above, or (iii) thereis damage to or destruction of an “immaterial” part (“immaterial” is hereindeemed to be any damage or destruction which is not “material”, as such term ishereinafter defined) of the Property, Purchaser shall close title as providedin this Agreement and, at the Closing, Seller shall, unless Seller has repairedsuch damage or destruction prior to the Closing, apply the proceeds of any insurancecollected by Seller in accordance with the terms of the Lease. A **“material”**part of the Property shall bedeemed to have been damaged or destroyed if the cost of repair or replacementshall be $250,000 or more as reasonably estimated by Seller or if Tenant canterminate its Lease or abate rent thereunder, or the Property cannot be legallyoccupied. This provision shall not survive Closing or the termination of thisAgreement.

 

(2)                                  If,prior to the Closing Date, all or any “significant” portion (as hereinafter defined)of the Property is taken by eminent domain or expropriation (or is the subjectof a pending taking which has not been consummated) (in each case, a **“Taking”**), Seller shall notify Purchaser of such Taking andPurchaser shall have the option to terminate this Agreement upon notice toSeller given not later than ten (10) days after receipt of Seller’s notice. IfPurchaser does not elect to terminate this Agreement, or if a Taking involvesan “insignificant” portion (“insignificant” is herein deemed to be any takingwhich is not “significant”, as such term is herein defined) of the Property, atthe Closing Seller shall assign and turn over, and Purchaser shall be entitledto receive and keep, all awards or other proceeds for such Taking. A “significant”portion of the Property means a Taking of twenty percent 20% or more of theProperty or if Tenant can terminate its Lease or abate rent thereunder, or theProperty cannot be legally occupied. This provision shall not survive Closingor the termination of this Agreement.

 

(3)                                  Notwithstandinganything contained in Section 16(1) and Section 16(2) to the contrary,if this Agreement is not terminated as provided in Section 16(1) or Section 16(2)and the eminent domain or expropriation proceeds payable with respect to theProperty as a result of any Taking exceeds the Purchase Price in Section 2(1)of this Agreement, Seller’s obligation to pay over to Purchaser those proceedspaid to Seller prior to the Closing shall be limited to the Purchase Price andSeller shall be entitled to retain the remainder of such proceeds. To theextent that payment of all or any portion of such proceeds does not occur priorto the Closing, the parties agree that Seller shall be entitled to that portionof the proceeds in excess of the Purchase Price, which agreement shall survivethe Closing. To the extent that no proceeds are due to Seller in connectionwith Section 16(1) and Section 16(2), this Section 16(3) shallnot survive the Closing.

 

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17.           REMEDIES.

 

(1)                                  Ifthe Closing fails to occur and such failure to close is on account of (i)Seller not eliminating all Unacceptable Encumbrances (which failure toeliminate is due to circumstances beyond Seller’s reasonable control and is notdue to Seller’s willful bad faith hereunder; provided, however, in no eventshall Seller be required to bring any action or proceeding or make any paymentsor otherwise incur any expenses in order to eliminate any UnacceptableEncumbrances other than as set forth in Section 6(2)), not waived byPurchaser, or, in lieu thereof, arranging for title insurance reasonablyacceptable to Purchaser insuring against enforcement of such UnacceptableEncumbrances against, or collection of the same out of, the Property, thenafter five (5) business days written notice from Purchaser and any additionaltime as is necessary so as to afford Seller a reasonable opportunity to cure,then Purchaser, as its sole remedy for such failure of Seller, may terminate thisAgreement by notice to Seller. If Purchaser elects to terminate this Agreementpursuant to this Section 17(1), then upon notice to Seller, this Agreementshall be terminated and neither party shall have any further rights, obligationsor liabilities hereunder, except for those rights, obligations and liabilitieswhich expressly survive the termination of this Agreement in the event that noClosing occurs hereunder (the **“Termination Obligations”**).Except as set forth in this Section 17(1), Purchaser hereby expresslywaives, relinquishes and releases any right or remedy available to it at law,in equity or otherwise by reason of Seller not eliminating all UnacceptableEncumbrances not waived by Purchaser, or, in lieu thereof, arranging for titleinsurance reasonably acceptable to Purchaser insuring against enforcement ofsuch Unacceptable Encumbrances against, or collection of the same out of, theProperty.

 

(2)                                  A.            Ifthe Closing fails to occur and such failure to close is on account of Seller’sbreach of its performance obligations under this Agreement and is in a casewhere such failure and close is not covered in Section 17(1) above, thenafter five (5) business days written notice from Purchaser and any additionaltime as is necessary so as to afford Seller a reasonable opportunity to cure,then Purchaser, as its sole remedy for such breach of Seller’s performanceobligations hereunder, may elect to either: (i) terminate this Agreement bynotice to Seller; or (ii) seek specific performance from Seller, provided thatin no event shall Seller be obligated to spend more than the lesser of (A) two(2%) percent of the Purchase Price or (B)$500,000 (including, but not limitedto, legal fees) to perform hereunder; provided further, that where Purchaserhas elected to terminate the Agreement and where (and only in such instanceswhere) Seller’s failure is willful and in bad faith according to a judgment ofa court of competent jurisdiction, Purchaser will be entitled to reimbursementof its damages up to the lesser of (a) $2,000,000 or (b) an amount between zerodollars and $2,000,000 which, when aggregated with the damages for the “Seller’s”willful and bad faith failure to which the “Purchaser” under the US PropertiesPSA would be entitled under Section 17(2)A of that agreement, would notcause such aggregated amount to exceed $5,000,000; and provided further, thatwhere Purchaser has elected to terminate this Agreement and where (and only insuch instances where) Seller’s failure is not willful and in bad faith accordingto a judgment of a court of competent jurisdiction, Purchaser shall be entitledto reimbursement of its damages up to an amount between zero dollars and$2,000,000 which, when

 

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aggregated with the damagesfor the “Seller’s” failure that is not willful and not in bad faith to whichthe “Purchaser” under the US Properties PSA would be entitled under Section 17(2)Aof that agreement, would not cause such aggregated amount to exceed $2,000,000.

 

B.            Asa condition precedent to Purchaser exercising any right it may have to bring anaction for specific performance as the result of Seller’s failure to performits obligations hereunder, Purchaser must commence such an action by filing aComplaint within one hundred eighty (180) days after the occurrence of suchdefault. Purchaser agrees that its failure to timely commence such an actionfor specific performance within such one hundred eighty (180) day period shallbe deemed a waiver by it of its right to commence such an action. If Purchaserelects to terminate this Agreement pursuant to this Section 17(2), thenthis Agreement shall be terminated and neither party shall have any furtherrights, obligations or liabilities hereunder, except for the Termination Obligations.Notwithstanding anything contained herein to the contrary, Purchaser may pursueany rights or remedies it may have against Seller with respect to theTermination Obligations subject to the express damages limits set forth in Section 17(2)Aabove.

 

(3)                                  Ifthe Closing fails to occur by reason of Purchaser’s failure to perform itsobligations hereunder, then Seller as its sole remedy, may elect to either (i)terminate this Agreement by notice to Purchaser, or (ii) seek specificperformance from Purchaser, and (1) where (and only in such instances where)Purchaser’s failure is willful and in bad faith according to a judgment of acourt of competent jurisdiction, Seller shall be entitled to reimbursement ofits damages up to an amount between zero dollars and $5,000,000 which, whenaggregated with the damages for the “Purchaser’s” willful and bad faith failureto which the “Seller” under the US Properties PSA would be entitled under Section 17(3)(1)of that agreement, would not cause such aggregated amount to exceed $5,000,000or (2) where Purchaser’s failure is not willful and in bad faith according to ajudgment of a court of competent jurisdiction, Seller shall be entitled toreimbursement of its damages up to an amount between zero dollars and $2,000,000which, when aggregated with the damages for the “Purchaser’s” failure that isnot willful and not in bad faith to which the “Seller” under the US PropertiesPSA would be entitled under Section 17(3)(2) of that agreement, would notcause such aggregated amount to exceed $2,000,000. If Seller elects toterminate this Agreement pursuant to this Section 17(3), then upon noticeto Purchaser, this Agreement shall be terminated, and neither party shall haveany further rights, obligations or liabilities hereunder, except for theTermination Obligations. Nothing contained herein shall limit or restrictSeller’s ability to pursue any rights or remedies it may have against Purchaserwith respect to the Termination Obligations subject to the express damageslimits set forth in this Section 17(3).

 

(4)                                  TOTHE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL ASSERT AND EACHHEREBY WAIVES ANY CLAIM AGAINST THE OTHER ON ANY THEORY OF LIABILITY, FORSPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (AS OPPOSED TO DIRECT ORACTUAL DAMAGES) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.

 

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(5)           Theprovisions of this Section 17 shall survive the termination of this Agreement.

 

18.           INTENTIONALLYDELETED.

 

19.           INTENTIONALLYDELETED.

 

20.           INTENTIONALLYDELETED.

 

21.           ASSIGNMENT.This Agreement may not be assigned by Purchaser without the express writtenconsent of Seller, which consent Seller shall have right to withhold or grantin its sole and absolute discretion; provided, however, thatPurchaser shall be entitled, upon giving prior written notice to Seller, toassign its rights under this Agreement to Inland Western Retail Real EstateTrust, Inc. (the **“REIT”**); provided that the REIT,and any entity owned or controlled by the REIT and any entity that has a 15% orgreater interest in the REIT is not a Significant Competitor, as defined in theLease. The entity to whom Purchaser assigns thisAgreement as permitted by this Section 21, whether Purchaser’s Designee orotherwise, shall become the “Purchaser” under this Agreement, but such an assignmentand assumption shall not relieve Inland Real Estate Acquisitions, Inc. of the obligationsof the “Purchaser” under this Agreement.

 

22.                                 INTENTIONALLYDELETED.

 

23.                                 NOTICES.

 

(1)           Allnotices, elections, consents, approvals, demands, objections, requests or othercommunications which Seller, or Purchaser may be required or desire to providepursuant to, under or by virtue of this Agreement must be in writing and sentby (i) a prepaid nationally recognized overnight courier service, and any suchnotice shall be deemed received one (1) business day after delivery to anationally recognized courier service specifying overnight delivery, or (ii)U.S. certified or registered mail, return receipt requested, postage prepaid,addressed as follows, or (iii) by telefax followed by a copy sent in the mannerof either clause (i) or (ii) above:

 

If to Seller:

 

1001674 Ontario, Inc.

c/oAmerican Express Company

200 Vesey Street

New York, New York 10285

Attention: Jeffrey S. Furman, Vice President GlobalReal Estate

Telefax: 212/ 640-9685

 

With copies to:

 

Sills Cummis Epstein& Gross, P.C.

One Riverfront Plaza 

Newark, New Jersey 07102 

Attention: Mark S. Levenson, Esq. 

Telefax: 973-643-6500

 

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With copies to:

 

Amex Bank of Canada

101 McNabb Street

Markham, Ontario

L3R 4H8

Attn: Chairman of the Board, President, ChiefExecutive Officer and General Manager

Telefax: 905-474-8708

 

and

 

Amex Bank of Canada

101 McNabb Street

Markham, Ontario

L3R 4H8

Attn: Vice President and Group Counsel

Telefax: 905-474-9985

 

If to Purchaser:

 

The Inland Real EstateGroup, Inc.

2901 Butterfield Road 

Oak Brook, Illinois 60523 

Attention: G. Joseph Cosenza, President 

Telefax:  630-218-4935

 

With copies to:

 

The Inland Real EstateGroup, Inc.

2901 Butterfield Road 

Oak Brook, Illinois 60523 

Attention: Gary Pechter, Esq. 

Telefax:  630-218-4900

 

(2)           Selleror Purchaser may designate another addressee or change its address for noticesand other communications hereunder by a notice given to the other parties inthe manner provided in this Section 23(2). A notice or other communication sentin compliance with the provisions of this Section 23 shall be deemed receivedwhen actually received, as evidenced by the return receipt, or when delivery isfirst refused. From time to time any party may designate a new address forpurposes of notice hereunder by giving two (2) days written notice thereof toeach of the other parties hereto. All notices given hereunder shall beirrevocable unless expressly specified otherwise.

 

24.           PROPERTYINFORMATION AND CONFIDENTIALITY.

 

(1)                                  Purchaseragrees that, prior to the Closing, all PropertyInformation shall be kept strictly confidential and shall not, without theprior written consent of Seller, be

 

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disclosedby Purchaser or Purchaser’s Representatives, in any manner whatsoever, in wholeor in part, and will not be used by Purchaser or Purchaser’s Representatives,directly or indirectly, for any purpose other than evaluating the Property.Moreover, Purchaser agrees that, prior to the Closing, the Property Informationwill be transmitted only to Purchaser’s Representatives who need to know theProperty Information for the purpose of evaluating the Property, and who areinformed by the Purchaser of the confidential nature of the PropertyInformation. The provisions of this Section 24(1) shall in no event apply toProperty Information which is a matter of public record and shall not preventPurchaser from complying with any law, including, without limitation,governmental regulatory, disclosure, tax and reporting requirements, providedthat prior to Purchaser disclosing any Property Information as set forth inthis sentence, Purchaser shall notify, and consult with, Seller regarding suchdisclosure. Purchaser shall indemnify and hold Seller and Seller’s Affiliatesharmless from and against any and all claims, demands, causes of action,losses, damages, liabilities, costs and expenses (including, withoutlimitation, attorneys’ fees and disbursements) suffered or incurred by Selleror any of Seller’s Affiliates and arising out of or in connection with a breachby Purchaser or Purchaser’s Representatives of the provisions of this Section24(1).

 

(2)                                  Purchaserand Seller, for the benefit of each other, hereby agree that between the datehereof and the Closing Date, they will not release or cause or permit to bereleased any press notices, publicity (oral or written), advertising orpromotional materials relating to, or otherwise announce or disclose or causeor permit to be announced or disclosed, in any manner whatsoever, the terms,conditions or substance of this Agreement or the transactions contemplatedherein, without first obtaining the written consent of the other party hereto.It is understood that the foregoing shall not preclude either party fromdiscussing the substance or any relevant details of the transactionscontemplated in this Agreement, subject to the terms of Section 24(1), with anyof its attorneys, accountants, professional consultants, potential lenders or potentialinvestors in a proposed Rule 144A offering, as the case may be, or preventeither party hereto from complying with any law, including, without limitation,governmental regulatory, disclosure, tax and reporting requirements, or preventeither party from making any disclosure required to obtain any governmentalconsents or other third party consents that are required to be obtained priorto the Closing provided that prior to Purchaser releasing or otherwisedisclosing any information as set forth in this sentence, Purchaser shallnotify, and consult with, Seller regarding such release or disclosure.Purchaser shall indemnify and hold Seller harmless from and against any and allclaims, demands, causes of action, losses, damages, liabilities, costs and expenses(including, without limitation, attorneys’ fees and disbursements) suffered orincurred and arising out of or in connection with a breach by Purchaser of theprovisions of this Section 24(2). Notwithstanding the foregoing, Seller maymake disclosures (i) that Seller believes are desirable to its employees inexplanation of this transaction and answering questions that Seller’s employeesmay raise and (ii) that Seller believes are necessary to make under theSecurities Exchange Act of 1934 (including the filing of this Agreement as anexhibit to any filing required or otherwise necessary under such act). Further,Seller shall be entitled to issue a press release pertaining to thetransactions contemplated by this Agreement upon (x) the signing of thisAgreement and (y) the closing of

 

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transactionscontemplated hereby (or any one of them); provided that Seller shall givePurchaser an opportunity to review such press release(s) before same are issued.

 

(3)                                Inthe event this Agreement is terminated, Purchaser and Purchaser’s Representativesshall either (i) promptly deliver to Seller all originals and copies of theProperty Information referred to in clause (i) of Section 24(4) in the possessionof Purchaser and Purchaser’s Representatives or (ii) confirm in writing thatsuch Property Information has been destroyed, at Purchaser’s expense. In the eventPurchaser or Purchaser’s Representatives fail to comply with the preceding sentencewithin ten (10) business days after this Agreement is terminated, Purchasershall pay Seller $10,000 for each day after the tenth business day that Sellerhas not received materially all Property Information and/or the confirmation ofdestruction, and Purchaser shall indemnify, defend and hold Seller harmlessfrom and against all losses, damages and claims arising from Purchaser’s orPurchaser’s Representatives’ failure.

 

(4)                                Asused in this Agreement, the term **“Property Information”**shall mean (i) all information and documents in any way relating to theProperty, the operation thereof, the sale thereof or the leasing thereoffurnished to, or otherwise made available for review by, Purchaser or itsdirectors, officers, employees, affiliates, partners, brokers, agents or otherrepresentatives, including, without limitation, attorneys, accountants,contractors, consultants, engineers and financial advisors (collectively, **“Purchaser’s Representatives”**), by Seller or any of Seller’sAffiliates, or their agents or representatives, including, without limitation,their contractors, engineers, attorneys, accountants, consultants, brokers oradvisors, and (ii) all analyses, compilations, data, studies, reports or otherinformation or documents prepared or obtained by Purchaser or Purchaser’sRepresentatives containing or based, in whole or in part, on the information ordocuments described in the preceding clause (i), or otherwise reflecting theirreview or investigation of the Property.

 

(5)                                Inaddition to any other remedies available to Seller, Seller shall have the rightto seek equitable relief, including, without limitation, injunctive relief orspecific performance, against Purchaser or Purchaser’s Representatives in orderto enforce the provisions of this Section 24.

 

(6)                                Notwithstandinganything contained herein to the contrary, Purchaser shall continue to abide bythat certain letter agreement regarding confidentiality between AmericanExpress Company and Purchaser, dated as of January 5, 2005.

 

(7)                                Theprovisions of this Section 24 shall survive the termination of this Agreement andthe Closing.

 

25.           MISCELLANEOUS.

 

(1)           ThisAgreement shall not be altered, amended, changed, waived, terminated orotherwise modified in any respect or particular, and no consent or approvalrequired pursuant to this Agreement shall be effective, unless the same shallbe in writing and signed by or on behalf of the party to be charged.

 

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(2)           ThisAgreement shall be binding upon and shall inure to the benefit of the parties heretoand to their respective heirs, executors, administrators, successors and permittedassigns. This Agreement is an agreement solely for the benefit of Seller andPurchaser (and their permitted successors and/or assigns). No other person, partyor entity shall have any rights hereunder nor shall any other person, party or entitybe entitled to rely upon the terms, covenants and provisions contained herein.The provisions of this Section 25(2) shall survive the Closing.

 

(3)           Allprior statements, understandings, representations and agreements between the parties,oral or written, are superseded by and merged in this Agreement, which alonefully and completely expresses the agreement between them in connection withthis transaction and which is entered into after full investigation, neither partyrelying upon any statement, understanding, representation or agreement made bythe other not embodied in this Agreement or in the Lease. This Agreement shallbe given a fair and reasonable construction in accordance with the intentionsof the parties hereto, and without regard to or aid of canons requiringconstruction against Seller or the party drafting this Agreement.

 

(4)           Exceptas otherwise expressly provided herein, Purchaser’s acceptance of the Deedshall be deemed a discharge of all of the obligations of Seller hereunder and allof Seller’s representations, warranties, covenants and agreements herein shall mergein the documents and agreements executed at the Closing and shall not survivethe Closing.

 

(5)           Purchaseragrees that it does not have and will not have any claims or causes of actionagainst any disclosed or undisclosed officer, director, employee, trustee, shareholder,partner, principal, parent, subsidiary or other affiliate of Seller, including,without limitation, American Express Company, or any of Seller’s affiliateswhich is a party to the US Properties PSA, or any officer, director, employee,trustee, shareholder, partner or principal of any such parent, subsidiary orother affiliate (collectively, **“Seller’s****Affiliates”**), arising out of or in connection with thisAgreement or the transactions contemplated hereby. Purchaser agrees to looksolely to Seller and the Property for the satisfaction of any liability orobligation arising under this Agreement or the transactions contemplatedhereby, or for the performance of any of the covenants, warranties or otheragreements contained herein, and further agrees not to sue or otherwise seek toenforce any personal obligation against any of Seller’s Affiliates with respectto any matters arising out of or in connection with this Agreement or the transactionscontemplated hereby. Without limiting the generality of the foregoingprovisions of this Section 25(5), Purchaser hereby unconditionally and irrevocablywaives any and all claims and causes of action of any nature whatsoever it maynow or hereafter have against Seller’s Affiliates, and hereby unconditionallyand irrevocably releases and discharges Seller’s Affiliates from any and all liabilitywhatsoever which may now or hereafter accrue in favor of Purchaser againstSeller’s Affiliates, in connection with or arising out of this Agreement or thetransactions contemplated hereby. The provisions of this Section 25(5) shallsurvive the termination of this Agreement and the Closing.

 

(6)           Sellerand Purchaser agree that, wherever this Agreement provides that either Selleror Purchaser must send or give any notice, make an election or take some

 

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other action within a specific time period in order toexercise a right or remedy it may have hereunder, time shall be of the essencewith respect to the taking of such action, and if either Seller or Purchaserfails to take such action within the applicable time period such failure shallbe deemed to be an irrevocable waiver by that Seller or Purchaser of such rightor remedy.

 

(7)           Nofailure or delay of either party in the exercise of any right or remedy givento such party hereunder or the waiver by any party of any condition hereunderfor its benefit (unless the time specified herein for exercise of such right orremedy has expired) shall constitute a waiver of any other or further right orremedy nor shall any single or partial exercise of any right or remedy precludeother or further exercises thereof or any other right or remedy. No waiver byeither party of any breach hereunder or failure or refusal by the other partyto comply with its obligations shall be deemed a waiver of any other orsubsequent breach, failure or refusal to so comply.

 

(8)           Neitherthis Agreement nor any memorandum thereof shall be recorded and any attemptedrecordation hereof shall be void and shall constitute a default.

 

(9)           Deliveryof this Agreement shall not be deemed an offer and neither Seller nor Purchasershall have any rights or obligations hereunder unless and until both partieshave signed and delivered an original of this Agreement. This Agreement may beexecuted in one or more counterparts, each of which so executed and deliveredshall be deemed an original, but all of which taken together shall constitutebut one and the same instrument.

 

(10)         Eachof the Exhibits and Schedules referred to herein and attached hereto is incorporatedherein by this reference.

 

(11)         Thecaption headings in this Agreement are for convenience only and are not intendedto be a part of this Agreement and shall not be construed to modify, explain oralter any of the terms, covenants or conditions herein contained.

 

(12)         ThisAgreement shall be interpreted and enforced in accordance with the laws of theProvince of Ontario and the Laws of Canada applicable therein without referenceto principles of conflicts of laws.

 

(13)         Ifany provision of this Agreement shall be unenforceable or invalid, the same shallnot affect the remaining provisions of this Agreement and to this end the provisionsof this Agreement are intended to be and shall be severable. Notwithstandingthe foregoing sentence, if (i) any provision of this Agreement is finally determinedby a court of competent jurisdiction to be unenforceable or invalid in whole orin part, (ii) the opportunity for all appeals of such determination haveexpired, and (iii) such unenforceability or invalidity alters the substance ofthis Agreement (taken as a whole) so as to deny either party, in a materialway, the realization of the intended benefit of its bargain, such party may terminatethis Agreement within thirty (30) days after the final determination by noticeto the other. If such party so elects to terminate this Agreement, then this Agreementshall be terminated and neither party shall have any further rights, obligationsor liabilities hereunder, except for the Surviving Obligations, and subject toSection 24(3).

 

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(14)         Sellerand Purchaser hereby knowingly, voluntarily, intentionally, unconditionally andirrevocably waive any right each may have to trial by jury in any action, proceedingor counterclaim (whether arising in tort or contract) brought by either againstthe other on any matter arising out of or in any way connected with this Agreementor any other document executed and delivered by either party in connectionherewith (including any action to rescind or cancel this agreement on thegrounds that this agreement was fraudulently induced or is otherwise void or voidable).

 

(15)         INTENTIONALLYOMITTED.

 

(16)         Purchaseracknowledges that a default by the Seller’s Affiliate under the Lease shall notgive rise to any remedies under this Agreement, including, without limitation,any right to receive back all or any portion of the Purchase Price.

 

(17)         Tothe extent that under the Lease, Seller’s Affiliate, as lessee (“Lessee”),incurs damages (including but not limited to fees and expenses of legalcounsel) under the title representation contained in Section 20.1(1) of theLease and Purchaser, as lessor, under the Lease (“Lessor”) would be entitled topursue a claim with respect to such matter under the title policy received inconnection with the Closing (without waiving any of its rights under suchpolicy except for a reduction in the policy amount), Lessor shall pursue suchclaim under the title policy for the amount of the damages and shall remit toLessee the amount of any such damages that Lessee has suffered, provided that(y) Lessee pays all of Lessor’s costs and expenses incurred in connection withLessor’s pursuit of such claim and (z) Seller first pursues such claim underany existing title policy as the former owner. To the extent that the TitleCompany that issues the title policies in connection with the Closing pays anysuch claim made by Lessor, Lessee shall indemnify the Lessor against anydamages resulting from the reduction of the title coverage under the Lessor’stitle policy upon the payment of such claim. The provisions of this Section25(17) shall survive Closing.

 

(18)         Anytender of documents or money may be made upon the Seller or the Purchaser orupon their respective solicitors.

 

(19)         ThisAgreement is conditional on compliance with Section 50 of the Planning Act,R.S.O. 1990, as amended.

 

(20)         ThePurchaser hereby waives compliance by the Seller with any applicable bulk saleslegislation. The Seller agrees to indemnify and save the Purchaser harmless fromall claims, suits, courses of action which anycreditor may institute with respect to the Property pursuant to or arising outof non-compliance with such legislation.

 

(21)         Allreferences herein to “Dollars” or the symbol “$” shall mean currency of the UnitedStates of America.

 

(22)         Thefollowing Sections shall survive the Closing and/or the termination of this Agreementas more particularly set forth in such Section: 2(2), 3, 8, 9, 10(3), 14, 15,16(3), 17, 24, 25(2), 25(5), 25(19) and 25(20) (collectively, the **“Surviving Obligations”**).

 

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***[No further text on this page; two signature pages follow]***

 

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IN WITNESS WHEREOF, thisAgreement has been duly executed by the parties hereto as of the day and yearfirst above written.

 

 
|       | **SELLER:**               |
|------------|---------------------------|
|       |                      |
|       |                      |
| ** ** | **1001674 ONTARIO, INC.** |
| ** ** | ** **                | ** ** |
| ** ** | ** **                | ** ** |
|       | By:                       | /s/ Elizabeth Daruwala |   |
|       |                      | Name: Elizabeth Daruwala |
|       |                      | Title:   Director |
|       |                      |   |
|       |                      |   |
|       | By:                       | /s/ Beth S. Horowitz |   |
|       |                      | Name: Beth S. Horowitz |
|       |                      | Title:   Director |
|       |                      |   |
|       |                      |   |
|       | **1001675 ONTARIO, INC.** |
|       |                      |   |
|       | By:                       | /s/ Elizabeth Daruwala |   |
|       |                      | Name: Elizabeth Daruwala |
|       |                      | Title:   Director |
|       |                      |   |
|       |                      |   |
|       | By:                       | /s/ Beth S. Horowitz |   |
|       |                      | Name: Beth S. Horowitz |
|       |                      | Title:   Director |
|            |                           |  |  |  |

 

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|   | **PURCHASER:**                             |
|--------|--------------------------------------------|
|   | ** **                                 | ** ** |
|   | **INLAND REAL ESTATE ACQUISITIONS,  INC.** |
|   |                                       |   |
|   |                                       |   |
|   | By:                                        | /s/ G. Joseph Cosenza |   |
|   |                                       | Name: **G. Joseph Cosenza** |
|   |                                       | Title:   **Authorized Signatory** |
|   |                                       |   |
|   |                                       |   |
|   | By:                                        | /s/ Karen M. Kautz |   |
|   |                                       | Name: Karen M. Kautz |
|   |                                       | Title:   Vice  President |
|        |                                            |  |  |  |

 

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**SCHEDULE1**

** **

**DESCRIPTIONOF THE LAND**

 

Municipal Address: **101 McNabb****Street,****Markham, Ontario**

 

And legallydescribed as:

 

Parcel Block 15-1,Section M1915; Block 15, Plan M1915; subject to LA823764 Markham, Regional Municipalityof York

 

PIN:  02990-0020 (LT)

 

PT BLK 6 PLM1915,designated as Part 2 on Plan 65R-10022, Town of Markham, Regional Municipalityof York

 

PIN: 02990-0068 (LT)

 

BLK7 PLM19I5, save andexcept PT 1, Plan 65R-9950, Town of Markham, Regional Municipality of York

 

PIN:  02990-0070 (LT)

 

PTBLK7 PL M1915designated as Part 1 on Plan 65R-9980, Town of Markham, Regional Municipalityof York

 

PIN:  02990-0071 (LT)

 

PT BLK 16 PL M1915designated as Part 1 on Plan 65R-20771, Town of Markham, Regional Municipalityof York, T/W PT ELK 16 PL Ml915 designated as Part 2 on Plan 65R-8188, as inLT246604

 

PIN:  02990-0072 (LT)

 

PT BLK 6 PL Ml 915designated as Part 3 on Plan 65R-10022, Town of Markham, Regional Municipalityof York

 

PIN:  02990-0076 (LT); and

 

PT BLK 16 PL M1915designated as Parts 3, 4and 5 on Plan 65R-9980, Town of Markham, RegionalMunicipality of York, S/T easement over Part 2, Plan 65R-18257 in favour ofPart 1, Plan 65R-I 5257 as in LT1084755; 8/T easement over PT 6 Plan 65R-8188in favour of Pt. 1, 2, 7, 8, Plan 65R-8188 as in LT246605; S/T easement over PT6, Plan 65R-8188 and PT2, Plan 66R-11550 in favour of PTS 1,2,7,8, Plan65R-8188 as in LT246606; S/T LA823764.

 

PIN:  02990-0078 (LT)

 

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**SCHEDULE2**

 

**PERMITTED****ENCUMBRANCES**

 

Purchaser shall take title to the Property subject to:

 

1.                                                                                       (a)           IndustrialSubdivision Agreement between Cedarland Property Limited and The Corporation ofthe Town of Markham registered October 2, 1979 as Instrument No. LA803357;

 

(b)           Transferof Easement from Cedarland Property Limited in favour of The Corporation of theTown of Markham registered December 14, 1979 as Instrument No. LA823764;

 

(c)           IntentionallyDeleted;

 

(d)           SitePlan Control Agreement between American Express Canada Inc. and The Corporationof the Town of Markham registered September 3, 1981 as Instrument No. LT57946;

 

(e)           Amendmentto Site Plan Control Agreement between American Express Canada Inc. and TheCorporation of the Town of Markham registered February 2, 1987 as Instrument No.LT355945;

 

(f)            InstrumentNo. LT244318 is an Application to register By-Law No. 168-85 with respect toPart Lot Control registered August 27, 1985 relating to PIN Nos. 02990-0078 and02990-0072;

 

(g)           InstrumentNo. LT217670Z is an Application to Register Condition, Restriction or Covenantby Cedarland Properties Limited on March 20, 1985 relating to PIN Nos.02990-0068, 02990-0070, 02990-0071 and 02990-0076;

 

(h)           InstrumentNo. LT1410472 is an Application to register Notice of Site Plan ControlAgreement registered March 20, 1985 relating to PIN Nos. 02990-0068, 02990-0070and 02990-0072;

 

(i)            InstrumentNo. LT367375 is an Application to Register Notice of a Site Plan Agreementregistered March 26, 1987 relating to PIN No. 02990-0076;

 

(j)            IntentionallyDeleted;

 

(k)           IntentionallyDeleted;

 

(l)            IntentionallyDeleted;

 

(m)          Notice ofLease registered as Instrument No. ~ on ~ betweenInland Western Markham Corp. and Amex Canada Inc., containing a Right of FirstRefusal for the Tenant to purchase the premises;

 

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(n)           Easementover Part 2 on Plan 65R-18257 in favour of the owners of Part 1 on Plan 65R-18257as described in Instrument No. LT1084755;

 

(o)           Easementover Part 6, Plan 65R-8188 in favour of the owners of Parts 1, 2, 7 and 8 onPlan 65R-8188 as described in Instrument No. LT246605;

 

(p)           Easementover Part 6, Plan 65R-8188 and Part 2 on Plan 66R-11550 in favour of the ownersof Parts 1, 2, 7 and 8 on Plan 65R-8188 as describedin Instrument No. LT246606; and

 

(q)           Thelocation, boundaries, perimeter description and easements disclosed on thesurvey dated January 11, 2005 and prepared by Les Rudnicki of Speight, VanNostrand & Gibson Limited.

 

2.                                                                                       Anyreservations or exceptions contained in the original grants from the Crown asvaried by statute.

 

2

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**SCHEDULE 8(4****)(****2)**

 

**BREACHESOR DEFAULTS UNDER OTHER DOCUMENTS**

 

**None**

 

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**SCHEDULE8(4****)(****5)**

 

**DUEDILIGENCE ITEMS DELIVERED TO PURCHASER**

 

1. Plan of Survey with Topography Blocks 7 and 15 part of blocks 6 and 16 Registered Plan M-1915 datedSeptember 23*,*2004 prepared by Speight, Van Nostrang & GibsonLimited.

 

2. Draft Phase I Environmental Assessment of GFS International datedJune 7, 2004 prepared by Property Solutions Incorporated (Property Solutionsdocument no. 20041390) with final drafts sent November 29, 2004.

 

3. Draft Property Condition Assessment of AmericanExpress Service Center dated June 8, 2004, prepared byProperty Solutions Incorporated (Property Solutions document no. 20041391).

 

4. Environmental RelianceLetters / Bank of America modifications.

 

5. Existing titlecommitment dated May 13, 2004, prepared by LandAmerica Lawyers Title InsuranceCorporation.

 

6. Evidence of ZoningCompliance dated June 3, 2004 from Markham Development Services CommissionBuilding Standards.

 

7. Property Tax Billdated January 9, 2004 from Town of Markham - Tax Inquiries.

 

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