**Exhibit 10.478**

 

**AGREEMENT OF SALE**

 

**THISAGREEMENT**made this 19thday of November, 2004, between **KIMCOPANAMA****CITY, LLC,** a Delaware limited liability company, with anoffice at 3333 New Hyde Park Road, Suite 100 (P. O. Box 5020), New Hyde Park,New York 11042 (hereinafter, “Seller”), and **INLAND REALESTATE ACQUISITIONS, INC.,** an Illinois Corporation, with an officeat 2901 Butterfield Road, Oak Brook, Illinois 60523 (hereinafter, “Buyer”).

 

**WHEREAS**,Seller owns a portion of the shopping center located at West 23rd**Street and Jenks Avenue in Panama City,Florida (the “Shopping Center”) and Seller wishes to sell and Buyer wishes tobuy Seller’s entire right title and interest in the Shopping Center;

 

**NOW,THEREFORE,** in consideration of the mutual covenants hereincontained, the parties agree as follows:

 

1.                                       **DEFINITIONS**. The followingexpressions shall have the meanings set forth below:

 

1.1                                 “RealEstate” means the fee interest in the land described on Exhibit 1 andall of the buildings and other improvements constructed thereon.

 

1.2                                 “SpaceLease(s)” means all lease(s), license(s), concessions or other occupancy or useagreements, including all modifications, addenda and supplements thereto andguarantees thereof, applicable to any part of the Real Estate. All existingSpace Leases as of the date hereof are listed on attached Exhibit 2.

 

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

 

1.4                                 “ClosingDate” means the date on which Closing occurs. “Closing” means the event wherebytitle to the Property is actually conveyed by Seller to Buyer.

 

1.5                                 “ServiceContracts” means all written agreements pursuant to which goods, services orsupplies are furnished on a recurring basis for the operation of the RealEstate and are approved by Buyer during the Due Diligence Period (ashereinafter defined). Copies of such Service Contracts are attached as Exhibit3.

 

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

 

1.7                                 “DueDiligence Period” means a period of time commencing on the date a fully executedcopy of this Agreement is received by Buyer in accordance with Article 13hereof and expiring at midnight, New York time, December 2, 2004.

 

1.8                                 “PermittedExceptions” means those certain title exceptions set forth in Exhibit 6 attachedhereto that are approved by Buyer in accordance with the terms of Article 6hereof.

 

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

 

1.10                           “Deposit” means a deposit, to be paid byBuyer to Escrow Agent upon the execution hereof, in the amount of **One Hundred Thousand ($100,000.00) Dollars,**plus all interest earned thereon.

 

1.11                           “Declaration”means that certain Declaration of Covenants, Conditions, Easements andRestrictions dated January 27, 1999 in the Official Records of Bay County,Florida, Book 1848, page 2123 as amended.

 

1.12                           “OEA”means that certain Restrictive Covenants Agreement between Kimco Panama City,LLC and Home Depot U.S.A., Inc. dated May 30, 2002 recorded under Clerk’s file2002-032768 at Book 214B, page 817 of the official Records of Bay County.Florida, as amended.

 

2.                                       **SALE AND PURCHASE**. In accordancewith the provisions of this Agreement, Seller agrees to sell, convey, assignand transfer to Buyer, and Buyer agrees to purchase and acquire from Seller,subject to the Permitted Exceptions and Space Leases, all of Seller’s right,title and interest in and to: (a) the Real Estate, (b) the Space Leases, (c)any Personal Property, (d) any land lying in the bed of

 

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any street, road or avenue,opened or proposed, in front of or adjoining the Real Estate, (e) any strips orgores adjoining the Real Estate, (f) all appurtenances and hereditamentsappertaining to the Real Estate and (g) the right to use, in common with othersthe name “23rd Street Plaza Shopping Center” provided Buyer’s use of same isdone in a commercially reasonable manner in connection with the first classoperation of the

 

3.**                                       PURCHASEPRICE**. The “Purchase Price” for the Propertyshall be **Seven Million, Two Hundred Fifty-SevenThousand,, Four Hundred Ninety-Eight****($7,257,498.00)Dollars**shall be paidas follows:

 

A.                                   (i)                                     Uponthe execution of this Agreement Buyer shall pay the Deposit to Escrow Agent bybank check to the order of Escrow Agent or wire transfer of federal funds forimmediate credit.

 

(ii)                                  TheDeposit shall be invested by Escrow Agent in a sound financial institution’smoney market fund or account which pays interest or dividends, in Escrow Agent’sname separate from its personal and business accounts. All investment decisionsshall be made by Buyer. If no Closing occurs, all interest or dividends earnedshall be paid to the party entitled to the escrowed proceeds, which party shallpay all income taxes thereon. The parties shall furnish Escrow Agent with theirrespective tax identification numbers. At Closing, Escrow Agent shall pay theDeposit (together with all interest earned thereon) to Seller; and theprincipal portion of the Deposit shall be a credit against the Purchase Price(but no such credit shall be given for the interest earned on such principalportion of the Deposit, if any, which shall be the property of Buyer). Allescrow fees, if any, charged by Escrow Agent shall be equally shared by Sellerand Buyer, Escrow Agent shall hold the Deposit as set forth above unless eitherSeller or Buyer makes a written demand upon Escrow Agent for the Depositaccompanied by an affidavit signed by the party making the demand statingsufficient facts to show that said party is entitled to receive the Depositpursuant to the terms of this Agreement. Upon receipt of such demand, EscrowAgent shall give ten (10) days written notice to the other party of such demandand of Escrow Agent’s intention to remit the Deposit to the party making thedemand on the stated date, together with a copy of the affidavit. If EscrowAgent does not receive a written objection before the proposed date forremitting the Deposit, Escrow Agent is hereby authorized to so remit. If,however, Escrow Agent actually receives written objection from the other partybefore the proposed date on which the Deposit is to be remitted, Escrow Agentshall continue to hold the Deposit until otherwise directed by joint writteninstructions from Seller and Buyer or until a final judgment of an appropriatecourt. In the event of a dispute, Escrow Agent may place the Deposit with anappropriate court and, after giving written notice of such action to theparties, Escrow Agent shall have no further obligations with respect to theDeposit. The parties acknowledge that Escrow Agent is acting as a stakeholderat their request and for their convenience, that Escrow Agent shall not bedeemed to be the agent of either of the parties, and the Escrow Agent shall notbe liable to either of the parties for any act or omission on its part unlesstaken or suffered in bad faith or in willful or negligent disregard of thisAgreement. Seller and Buyer shall jointly and severally indemnify and holdEscrow Agent harmless from and against all costs, claims and expenses,including reasonable attorney’ fees, incurred in connection with the faithfulperformance of Escrow Agent’s duties hereunder. Escrow Agent acknowledgesagreement to the provisions of this Agreement applicable to it by signing onthe signature page of this Agreement. Notwithstanding the foregoing, Buyershall have the right to deliver a notice of termination of this Agreement toEscrow Agent and Seller on or prior to the expiration of the Due DiligencePeriod and Escrow Agent shall be authorized, immediately upon receipt of suchnotice and verification of Seller’s receipt of same, to return the EarnestMoney to Buyer. Buyer agrees to return all documents provided to Buyer by or onbehalf of Seller to Seller within fifteen (15) days of Tenant’s delivery of thenotice of termination to Escrow Agent and Seller.

 

B.                                     AtClosing, and subject to the terms and provisions of this Agreement, Buyer shallpay Seller the balance of the Purchase Price by wire transfer of immediatelyavailable federal funds into a so-called “New York Style” closing escrow to beestablished by the Escrow Agent. Seller shall furnish Escrow Agent with wiretransfer instructions prior to Closing.

 

C.                                     IntentionallyDeleted.

 

D.                                    Inconnection with any Personal Property included in the sale, the parties agree thatno part of the Purchase Price shall be deemed to have been paid by Buyer onaccount thereof.

 

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

 

4.1                                 (A)Buyer shall at Closing accept the Property in AS IS physical condition asexists on the date hereof, subject to reasonable wear and tear between the datehereof and the Closing Date. Buyer acknowledges that Buyer will have the DueDiligence Period to inspect the Shopping Center

 

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or cause an inspectionthereof to be made on Buyer’s behalf and it is understood and agreed thatneither Seller nor any person acting or purporting to act for Seller has madeor now makes any representation as to the physical condition (latent or patentor otherwise), income, expense, operation, legality of current rents, or anyother matter of thing affecting or relating to the Shopping Center except asherein specifically set forth. Buyer hereby expressly acknowledges that exceptas expressly set forth herein, no such representations have been made and Buyerfurther agrees to take the Shopping Center “as is” as of the date hereof andsubject to normal use, wear, tear, and deterioration between now and Closing.Buyer agrees that Seller is not liable or bound in any manner by any financialor written statements, representations, real estate brokers’ “set-ups”, orinformation pertaining to the Shopping Center furnished by any real estatebroker, agent, employee, trustee, servant or other person, unless the same arespecifically set forth herein. It is understood and agreed that allunderstandings and agreements heretofore had between the parties are herebymerged in this Agreement which alone fully and completely expresses theiragreement and that the same is entered into after full investigation, neitherparty relying upon any statement or representation made by the other notembodied in this Agreement.

 

(B) Seller’sRequired Pre-Closing Deliveries

 

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

 

4.2                                 Onand after the date hereof, Buyer shall have access to the Property for the purposeof making engineering, survey or non-intrusive inspections and independentinvestigations; and Seller will on receipt of reasonable prior written notice,provide Buyer with access to information within its possession or control withrespect to the Property, including (without limitation) full and accurate copiesof Space Leases, Service Contracts, title information or instruments, and booksand operating records of the Shopping Center. Buyer agrees to defend, indemnifyand hold Seller harmless from any personal injury or property damage caused byBuyer in doing any testing, inspections or survey and such obligation shallsurvive the Closing or sooner termination of this Agreement. Buyer shall giveSeller true, accurate and complete copies of all written reports prepared bythird parties resulting from Buyer’s inspections and investigations.

 

4.3                                 (a)                                  Buyershall have the Due Diligence Period within which to inspect and examine theReal Estate, the Space Leases and the Service Contracts.

 

(b)                                 Inthe event that during the Due Diligence Period, Buyer, in its sole judgment,and absolute discretion, determines that Buyer is not satisfied with thecondition of the Real Estate, the Property, the Space Leases, the GroundLeases, or the Service Contracts then, prior to the end of the Due DiligencePeriod, Buyer shall have the right by giving written notice to Seller andEscrow

 

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Agent to cancel andterminate this Agreement without liability except as set forth in Sections 4.2and 15.8. Upon receipt of such notice prior to the end of the Due DiligencePeriod, Escrow Agent shall deliver the Deposit to Buyer. In the event Buyerfails to give such notice prior to the end of the Due Diligence Period, Buyer’sright to cancel this Agreement pursuant to this Section 4 shall lapse.

 

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

 

5.                                       **ADJUSTMENTS AND PRORATIONS**.

 

5.1                                 Sellershall be entitled to all income produced from the operation of the Propertywhich is allocable to the period prior to the Closing Date and shall beresponsible for all expenses allocable to that period; and Buyer shall beentitled to all income and responsible for all expenses allocable to the periodbeginning at 12:01 A.M. on the Closing Date. At Closing, all items of incomeand expense with respect to the Property shall be prorated in accordance withthe foregoing provisions and the rules for the specific items set forthhereafter:

 

5.1.1                        Sellershall arrange for a billing under all those Service Contracts for which feesare based on usage and with utility companies for a billing for utilities, toinclude all utilities or service used up to the Closing Date, and Seller shallpay the resultant bills. In the event any of the Service Contracts set forth inExhibit 3 cover periods beyond the Closing Date the same shall beprorated on a per diem basis.

 

5.1.2                        Realestate taxes, general, special and/or betterment assessments and personalproperty taxes shall be prorated for those taxes which are due and payable asof the Closing Date. In the event that as of the Closing Date the actual taxbills for the tax year or years in question are not available and the amount oftaxes to be prorated as aforesaid cannot be ascertained, then rates, millagesand assessed valuation of the previous year, with known changes, shall be used;and after the Closing occurs and when the actual amount of taxes for the yearor years in question shall be determinable, such taxes will be re-proratedbetween the parties to reflect the actual amount of such taxes.

 

5.1.3                        Rentalsand other payments (other than “percentage rent” and common area maintenancecharges which are dealt with in Section 5.1.4 and Section 5.1.6)which are payable pursuant to Space Leases shall be prorated on a per diembasis as and when collected (subject to the provisions of Section 5.3).Buyer shall not be obligated to make any payment or give any credit to Seller onaccount of or by reason of any rental or other payments which are unpaid as ofthe Closing Date, but shall be required to turn over Seller’s share of the samewithin ten (10) days if*,*as andwhen received by Buyer after the Closing; likewise, Seller agrees to turn overBuyer’s share of any payments received from tenants applicable to any periodfrom and after the date of Closing within ten (10) days of Seller’s receipt ofsame; this provision shall survive Closing.

 

5.1.4                        Percentagerent; if any, payable under each Space Lease shall be prorated with respect tothe lease year thereunder in which Closing occurs on a per diem basis as and whencollected. Any percentage rent collected by Buyer including any percentage rentwhich is delinquent and pertaining to (i) an entire lease year or accountingperiod of a tenant under a Space Lease which ends on a date prior to theClosing Date, or (ii) that portion of a lease year or accounting period of suchtenant covering a period prior to the Closing Date where such lease year oraccounting period begins prior to the Closing Date and ends thereafter shall inboth cases be paid to Seller within ten (10) days of receipt by Buyer; and ifany tenant’s Space Lease provides for offsets or deductions against percentagerent, then such offsets or**deductionsshall be prorated in**the samemanner as the percentage rent itself is prorated. This provision shall surviveClosing.

 

5.1.5                        Gas,water, electricity, heat, fuel, sewer and other utilities charges to which Section 5.1.1cannot be applied, and the governmental licenses, permits and inspection feesand operating expenses relating to the Shopping Center (expressly excludingtherefrom, however, such expenses relating to the initial construction of theShopping Center), shall be prorated on a per diem basis.

 

5.1.6                        Commonarea maintenance expenses and charges shall be prorated. Seller shall beresponsible for all common area expenses and charges incurred prior to theClosing Date, and Buyer shall be responsible for the same accruing on andsubsequent to the Closing Date. All common area expense payments made by eachtenant and such charges paid under its Space Lease for the entire lease yearduring which the Closing occurs, including end-of-year adjustments, if any,shall be prorated between Seller and Buyer in the following manner: Not laterthan three (3) days prior to

 

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Closing, Seller shalldeliver to Buyer, with regard to each Shopping Center tenant required to paycommon area charges (“CAM Charges”) under its lease, a detailed computationshowing all CAM Charge expenses incurred by Seller for the period from thebeginning of each such tenant’s then current billing period for CAM Charges(e.g., calendar year, lease year, etc.) through the Closing Date, any CAMestimated payments or charges collected by Seller relating to such tenant(hereinafter “CAM Estimates”), and a bill for the tenant’s pro rata share ofCAM Charges (i.e., for CAM charges through the Closing Date net of any such CAMEstimates held by Seller), together with all invoices and other evidencedocumenting such CAM Charges in detail required by such tenant’s lease. Buyershall send any such bills to tenants promptly following Closing, in which eventsuch tenant shall pay any amount shown due directly to Seller, and except asotherwise stated in Section 5.3.3 below Buyer shall have no responsibilityto collect same. However, if any tenant rightfully refuses to pay such bill forCAM Charges due through the Closing Date, then Buyer shall resubmit such billto any such tenant at the same time as Buyer next submits Buyer’s own bill toany such tenant; and any payment thereafter made by any such tenant on accountof CAM Charges shall belong to and be forwarded within ten (10) days of itsreceipt to Seller until Seller’s bill is paid in full.

 

Any CAM Estimates for anytenant shall be retained by Seller up to the amount of the pre-Closing CAMCharges payable by such tenant as evidenced by such bills and computationsdelivered by Seller at Closing, and Buyer shall receive a credit for any excessCAM Estimates collected by Seller.

 

5.1.7                        Allprepaid rentals, other prepaid payments(other than monthly real estate taxestimates or installments), security deposits paid pursuant to Space Leases,electric, gas, sewer and water deposits deposited with Seller by tenants,(including any accrued interest required under any Space Lease on all of theforegoing, unless Seller is entitled to retain the benefit thereof) under anySpace Leases, license agreements or concession agreements relating to theProperty, shall all belong to Buyer and all shall be assigned and delivered toBuyer at Closing, whereupon Seller shall be released from all liability withrespect thereto. At Seller’s option, Buyer shall receive a cash credit in theamount of all Security Deposits to be delivered to Buyer at Closing, and Sellermay retain same.

 

5.1.8                        Buyershall not be responsible for any charges, salaries, vacation pay or fringebenefits of employees of Seller prior to or following the Closing and none ofthe foregoing shall be prorated.

 

5.2                                 Allprorations and payments to be made under the foregoing provisions shall be madeon the basis of a written statement or statements delivered to Buyer by Sellerand approved by Buyer. In the event any prorations, apportionments or**computation shall prove to be incorrectfor any reason, then either party shall be entitled to an adjustment to correctthe same, provided that it makes written demand on the one from who it isentitled to such adjustment within two (2) years after the erroneous payment orcomputation was made; this provision shall survive Closing.

 

5.3                                 Allaccounts receivable flowing from the Property shall be treated as follows:

 

5.3.1                        Buyer andSeller agree to treat all base or minimum rental payments received from atenant as applicable to base or minimum rent which was owed by that tenant, ifany, first for the month prior to the month in which Closing occurs and nextfor the month in which Closing occurs until the base or minimum rental amountdue to Seller for such periods have been collected. In the event that thereremains any unpaid base or minimum rent for a period prior to such periods, allpayments of base or minimum rent received from such tenant shall be applied tosums owed Buyer before any part thereof shall be treated as belonging toSeller. In the event that there remains any unpaid tenant receivable other thanbase or minimum rent (including without limitation any tax, CAM, insurance or percentagerent payments) for any period prior to Closing, all payments received from anytenant in arrears (whether base or minimum rent or any other amount) shall beapplied first to any such sums owed Buyer from such tenant before any partthereof shall be treated as belonging to Seller.

 

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

 

5.3.3                        “If at theClosing Date any tenants owe Seller any money (i.e. reimbursements to Sellerfor payment of liens or violations on the Property that were created by tenant(s)but that Seller is required hereunder to satisfy in order to effectuate thesale of the Property or rent arrears (which shall include CAM and taxreimbursements)), Seller shall have

 

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the right, subsequent tothe Closing, to collect such sums directly from the tenants, including bringinglawsuits against the tenants (at Seller’s sole expense) for such collection(except that Seller is prohibited from bringing a lawsuit against any tenant(s)to collect rent in arrears for a period of thirty (30) days after such disputeor arrears has arisen (the “Buyer Collection Period”); instead Buyer agrees touse commercially reasonable efforts to collect such arrears on Seller’s behalf,if Buyer is unsuccessful in collecting the tenant arrears by the expiration ofthe Buyer Collection Period, then Seller shall have the right to collect suchsums directly form the tenants including bringing lawsuits against the tenants(at Sellers sole expense) for such collection, however, Seller agrees that anysuch legal action or collection shall not include any disturbance of thepossession, use or occupancy of the tenants or any right to evict the tenants,whether pursuant to the lease provisions or otherwise, and Buyer shall atSeller’s expense join in any lawsuit and/or also participate or cooperate withSeller in its collection attempts. Buyer will (at Seller’s expense) join insuch a lawsuit or action only if the same does not include or requiredisturbance of the possession of any tenants.”

 

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

 

5.4                                 IntentionallyDeleted.

 

5.5                                 Theprovisions of this Article 5 will survive Closing.

 

6.                                       **TITLE AND SURVEY**.

 

6.1                                 Sellershall convey and Buyer shall accept, subject to the right of Buyer to reviewand approve all title matters, documents and plats of record in regard to thecondition of title to the Property, title such as the Title Company will bewilling to approve and insure subject only to Permitted Exceptions as providedfor in this Agreement. Buyer acknowledges that it has heretofore receivedcopies of Seller’s existing title insurance policy for the Real Estate (the “ExistingTitle Policy”) and of Seller’s existing survey of the Real Estate (the “ExistingSurvey”). Promptly following the execution of this Agreement, Buyer may (if itso elects) obtain(see Section 6.4 for allocation of costs) updates of theExisting Survey to the certification standards described upon the Surveyor’scertification attached hereto as Exhibit 13 and made a part hereof (suchupdated survey hereinafter referred to as the “Updated Survey”); if Buyer doesobtain such an Updated Survey, Buyer shall cause it to be certified to Sellerand Buyer shall promptly furnish Buyer, Seller and the Title Company with acopy thereof. Promptly following the execution of this Agreement, Buyer shallalso (see Section 6.4 for allocation of costs) obtain a commitment forALTA Form B Leasehold Title Insurance (the “Title Commitment”); and Buyer shallpromptly cause the Title Company to furnish Seller and Buyer with true accurateand complete copies thereof (including true, accurate and complete copies ofall underlying title exception documents referenced therein). Not later thanthe expiration of the Due Diligence Period, Buyer shall give Seller writtennotice (“Buyer’s Title/Survey Notice”) of any title exceptions which arecontained in the Title Commitment and/or the Survey which are not PermittedExceptions. Failure by Buyer to give Buyer’s Title/Survey Notice (or to objectto any matter referenced in the Title Commitment) to Seller on or before saiddate shall constitute Buyer’s final and irrevocable approval of the conditionof title (and to any such unobjected to matter) in and to the Real Estate. IfBuyer’s Title/Survey Notice shall be timely given Seller shall have a period offifteen (15) days following Seller’s receipt of Buyer’s Title/Survey Notice, tocommence to remove, correct, cure or satisfy (provided Seller does in factelect to so remove, correct, cure or satisfy) any title exceptions that wereidentified in Buyer’s Title/Survey Notice as not being Permitted Exceptions, itbeing nevertheless agreed that Seller shall have no obligation to undertake anyaction or to incur any expense in order to effectuate any such removal,correction, cure or satisfaction (except that notwithstanding the foregoingSeller shall be required to remove or discharge any fee mortgages or deeds oftrust, as well as any other liens in an ascertainable dollar amount). In theevent that Seller elects not to attempt to remove, correct, cure or satisfy thematters raised in Buyer’s Title/Survey Notice, or if having elected to do so,does not within thirty (30) days thereafter, (or such additional time as isreasonably necessary (not to exceed an additional fifteen (15) days withoutBuyer’s written consent) to remove, correct, cure or satisfy the matter(s) soraised using commercially reasonable good faith efforts) effectuate any suchremoval, correction, cure or satisfaction as aforesaid (hereinafter called “titlecorrection”), Buyer shall have the right at its sole option either (a) toterminate this Agreement, in which event the Deposit shall be returned to Buyerand neither party shall thereafter have any further liability hereunder, or (b)to accept such title as is disclosed by the Title Commitment and/or Surveywithout title correction and without Survey correction and without anyreduction to the Purchase Price, thereby waiving any rights against Seller withrespect thereto. Said election shall be made by Buyer within three (3) daysfollowing Buyer’s receipt of written notification by Seller that Seller has noteffectuated (or has elected not to effectuate) title correction. In the eventthat Seller (even though under no duty to do so) shall undertake titlecorrection and/or Survey correction as aforesaid, and shall be successful, thisAgreement shall continue in full force and effect and Buyer shall close thetransaction

 

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contemplated hereby inaccordance with the terms hereof. In the event that Seller shall only bepartially successful in obtaining title and/or Survey correction, Buyer shallhave the same alternative rights as Buyer would have in the event Seller had declinedto seek title and/or Survey correction (as set forth above). Buyer shall makeits election within three (3) days after Buyer’s receipt of written notice fromSeller to Buyer of the extent to which title and/or the Survey has beencorrected.

 

6.2                                 Ifat the Closing Date there may be any liens or encumbrances which render titleunmarketable or otherwise are not permitted title exceptions hereunder, andwhich Seller is obligated or desires to pay and discharge, Seller may use anyportion of the balance of the Purchase Price to satisfy the same, providedSeller shall simultaneously either deliver to Buyer at the Closing instrumentsin recordable form and sufficient to satisfy such liens and encumbrances ofrecord together with the cost of recording or filing said instruments; or provided that Seller has madearrangements with the title company in advance of Closing, Seller will depositwith said company sufficient monies, acceptable to and required by it to insureobtaining and the recording of such satisfactions and the issuance of titleinsurance to Buyer either free of any such liens and encumbrances, or withinsurance against enforcement of same out of the insured premises. Theexistence of any such liens and encumbrances shall not be deemed objections totitle, if Seller shall comply with the foregoing requirements. Unpaid liens fortaxes, water charges, sewer rents and assessments which are the obligation ofSeller to satisfy and discharge shall be objections to title, and thus theamount thereof, plus interest and penalties thereon, shall be deducted from thePurchase Price to be paid hereunder and allowed to Buyer, subject to theprovisions for apportionment of taxes, water charges and sewer rents containedherein. Unpaid franchise tax of any entity in the chain of title to which suchtax is applicable, or estate, income or other taxes which may be liens againstthe Property as of the Closing Date shall not be an objection to title,provided the title company agrees to insure against the collection of said taxesfrom the Property and in such event if required by the title company, Seller agrees to deposit at Closing withthe title company an amount deemed reasonable by it to secure the payment ofsuch unpaid franchise tax, or other tax.

 

6.3                                 Inthe event that Seller is unable to convey title in accordance with the terms ofthis Agreement, or if any representation of Seller herein is untrue in amaterial respect on the Closing Date and Seller does not correct same (it beingunderstood Seller will be entitled to a reasonable adjournment of Closing forsuch purpose, not to exceed fifteen (15) days), the sole responsibility ofSeller will be to refund (or cause to be refunded by the Escrow Agent) to Buyerany amount paid on account of the Purchase Price; upon the making of suchrefund, this Agreement shall be deemed canceled, neither party shall have anyfurther claim against the other by reason of this Agreement, except that Buyershall remain liable on its obligations under Sections 4.2 and 15.8.

 

6.4                                 Thecosts of obtaining the Title Commitment, the policy of title insurance to issueat Closing (in form subject to Buyer’s sole discretion, and agreed to prior tothe expiration of the Due Diligence Period) with premium up to the amount ofthe Purchase Price “Basic Title Policy” shall be split equally between Buyerand Seller. The costs of any excess coverage or endorsements including, but notlimited to, Zoning 3.1; Survey; Access, Usury, Location, Tax ID, Contiguity,EPA, Comprehensive and Doing Business, to the extent available or applicable(the “Title Endorsements”), shall be borne by Buyer (Basic Title Policy plusendorsements shall be referred to collectively as the “Title Policy”) andexpressly excluding therefrom, however, the costs to release any monetaryencumbrance affecting the Property and any title curative endorsements whichshall be borne by Seller. All costs of the survey shall be borne equally bySeller and Buyer.

 

7.**                                       DAMAGE,DESTRUCTION OR REQUIRED ALTERATION**.

 

7.1Prior to Closing, in the event of any damage to or destruction of all or partof the Real Estate (notice of which shall be given to Buyer by Seller as soonas practicable following its occurrence), then Seller shall have the right (butnot the obligation) to adjourn the Closing Date for up to sixty (60) days inorder to repair or replace such damage or destruction, except that if the costof such repair or replacement exceeds ten percent of the Purchase Price, thenin any such case (i) Buyer shall have the right to terminate this Agreement bygiving Seller written notice of its intention to do so, such notice by Buyer toSeller to be given not later than three (3) days after Buyer shall havereceived the notice from Seller of such aforesaid occurrence, (in which eventthe Deposit shall forthwith be returned to Buyer, whereupon this Agreementshall be null and void**and of nofurther force or effect whatsoever, except that Buyer shall remain liable onits obligations under Sections 4.2 and 15.8); or (ii) if Buyer elects not to(or does not have the right to) terminate this Agreement, this Agreement shallcontinue in full force and effect except that at Closing Buyer shall receive anabatement of the Purchase Price in an amount equal to Seller’s reasonable goodfaith estimate of the amount required to repair and restore all unrepaireddamage (and Seller shall retain all rights to collect insurance proceeds forsuch loss). Buyer may elect to have its architect provide a good faith estimateof the amount required to repair and restore all unrepaired damage. If Seller’sestimate disagrees with Buyer’s architect’s estimate, the parties shall selectanother architect to make a final determination of the amount required torepair and restore all

 

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unrepaired damage andboth parties shall be bound by the third architect’s determination. The partywhose architect differs most from the third architect’s determination shall paythe third architect’s fee.

 

7.2(a)          Inthe event that any governmental authority having jurisdiction of all or part ofthe Real Estate has notified Seller before the Closing that some alteration ofor addition to the Real Estate is required to be made by law, rule orregulation (notice of which shallbe given to Buyer by Seller as soon as practicable after its receipt) orotherwise requires a cure of a violation, then (subject to the provisions of Section 7.2(b))Seller shall have the right (but not the obligation) to undertake suchalteration or addition or cure; provided, however, that if the cost of suchalteration or addition or cure shall exceed the sum of one (1%) percent of thePurchase Price, then in such event Seller may either elect to pay the entirecost and cure the same before the Closing or may decline to undertake the same,in which event Buyer shall have the option, exercisable within three (3) daysfollowing notice from Seller of the requirement and Seller’s refusal to complytherewith, (i) to terminate this Agreement by giving Seller notice thereof (inwhich event the Deposit shall forthwith be returned to Buyer, whereupon theAgreement shall be null and void and of no further force or effect whatsoever,except that Buyer shall remain liable on its obligations under Sections 4.2 and15.8); or (ii) if such notice of termination is not timely given, to proceedwith the Closing, in which event the Purchase Price shall be reduced by Seller’sreasonable good faith estimate of the cost to cure, up to the maximum sum ofone percent of the Purchase Price. Buyer may elect to have its engineer providea good faith estimate of the cost to cure. If Seller’s estimate disagrees withBuyer’s architect’s estimate, the parties shall select a another engineer tomake a final determination of the cost to cure and both parties shall be boundby the third engineer’s determination. The party whose engineer differs mostfrom the third engineer’s determination shall pay the third engineer’s fee.

 

(b)              Notwithstandingthe foregoing provisions of Section 7.2(a), Seller may elect but shallhave no obligation to cure or pay for, any violation which either (i) is firstplaced (i.e., notice first given to Seller or first placed of record) after thedate of this Agreement, or (ii) is the responsibility of a Shopping Centertenant to cure or discharge pursuant to its Space Lease. In the event Sellerelects to cure or pay for such violation(s), Seller shall have a period offifteen (15) days after receipt of notice of the violation to commence to cureor pay for same, and shall proceed with diligence to cure same, however, ifSeller elects to cure a violation, and Seller reasonably believe that theClosing Date (as hereinafter defined) will need to be extended more than thirty(30) days to effectuate the cure, then Seller shall not commence to cure theviolation then Buyer may elect to (i) complete the purchase without anyadjustment in the Purchase Price or (ii) terminate the Agreement in such event,unless Buyer agrees to the required extension. In the event Seller elects notto cure or pay for such violation, the sole responsibility of Seller will be torefund (or cause to be refunded by the Escrow Agent) to Buyer any amount paidon account of the Purchase Price; upon the making of such refund, thisAgreement shall be deemed cancelled, neither party shall have any further claimagainst the other by reason of this Agreement, except that Buyer shall remainliable on its obligations under Sections 4.2 and 15.8.

 

8.**                                       EMINENTDOMAIN**. In the eventthat any eminent domain proceedings shall be commenced prior to the Closingaffecting (i) any of the parking area(s) within the Real Estate or any accessroadway serving the Real Estate that is not replaced by an access roadway in acomparable location with respect to the Real Estate; or (ii) which is of such anature as would permit any tenant occupying leased premises to cancel its SpaceLease, Buyer shall have the right to terminate this Agreement, by writtennotice given to Seller within three (3) days after the event, (in which casethe Deposit shall forthwith be returned to Buyer, whereupon the Agreement shallbe null and void and of no further force or effect whatsoever). In any casewherein Buyer has the right to terminate this Agreement pursuant to this Section 8and Buyer elects not to terminate, or in any case wherein Buyer does not havethe right to terminate, Buyer and Seller shall consummate Closing on theClosing Date, without any reduction to or abatement of the Purchase Price, andall theretofore unpaid condemnation awards shall belong to Buyer.

 

9.**                                       NOASSIGNMENT**. Buyer shallnot have the right to assign this Agreement or its rights under this Agreementwithout obtaining in each instance Seller’s prior written consent.Notwithstanding the foregoing, Buyer shall have the right, without Seller’sconsent, to assign its entire right, title and interest in and to thisAgreement, expressly including the Deposit, to any entity controlling,controlled by, or under common control with Buyer or Inland Western Retail RealEstate Trust, Inc., a Maryland corporation, (an “Affiliate”); provided that,not less than three (3) business days prior to Closing, Seller receives anexecuted assignment and assumption agreement, in a commercially reasonableform, which expressly assigns the Deposit and in which such assignee expresslyassumes performance of this Agreement for the benefit of Seller. No suchassignment or designation shall relieve or release Buyer from any obligationsunder this Agreement (whether arising

 

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pre- or post-closing),and Buyer shall remain jointly and severally liable for**all of same together with such assignee.

 

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

 

10.1                           Sellerhas obtained any consents from partners and/or shareholders required to permitthe transactions contemplated by this Agreement including the sale of theProperty to Buyer.

 

10.2                           Thereis no pending or threatened litigation affecting the Property brought by oragainst Seller that would materially adversely affect Buyer except as set forthin Exhibit 7 attached hereto and made a part hereof. If Seller is servedwith process or receives notice that litigation relating to the Property hasbeen commenced against it, Seller shall promptly notify Buyer. The provisionsof this Section shall not apply to any litigation relating to the propertyinvolving personal injury or property damage(s) covered by insurance.

 

10.3                           TheSpace Leases described in Exhibit 2 comprise all the Space Leasespresently existing, and same have not been materially amended or modifiedexcept (if at all) as may be set forth in Exhibit 2. Seller has neither givennor received any outstanding, uncured notice of default to or from any SpaceLease tenant. Following a date which is five (5) business days prior to theexpiration of the Due Diligence Period (the “Cut Off Date”), and prior toClosing, Seller will not, without the prior written consent of Buyer(whichBuyer agrees not to reasonably withhold or delay), cancel (except for defaultby a tenant) or materially amend any Space Lease, or enter into any new SpaceLease or any Service Contract affecting the Property not cancelable on 30 daysnotice. On or prior to the Cut Off Date, Seller may take any of the foregoingactions without Buyer’s consent, provided it delivers a copy of any newdocumentation evidencing same to Buyer not later than three (3) business daysprior to the expiration of the Due Diligence Period.

 

10.4                           Exceptas otherwise expressly provided herein, there are no contracts or agreementsaffecting the Property other than the Service Contracts, Space Leases, andPermitted Exceptions; and there are no on-site employees or hired persons inconnection with the management, operation or maintenance of the Property; andBuyer shall have no obligation, liability or responsibility with respect tocharges, salaries, vacation pay, fringe benefits or like items subsequent toClosing, nor with any management or employment agreements with respect to theProperty.

 

10.5                           Thesignatories to this Agreement on behalf of Seller have the power and authorityto enter into this Agreement and to bind Seller to the provisions hereof.

 

10.6                           As ofthe date hereof: (i) to Daniel Slattery’s knowledge Seller is not aware of andhas receive no building code violation notices with respect to the Property(other than notices of violations which have been removed or corrected); and(ii) to Daniel Slattery’s knowledge Seller is not aware of and has received nonotices of any action or governmental proceeding in connection with eminentdomain, or for a zoning change, which would affect the Property; and (iii) toDaniel Slattery’s knowledge Seller is not aware of any structural problems inthe improvements constructed upon the Property and the exterior structures arein good condition and repair.

 

10.7                           IntentionallyDeleted.

 

11.                                 **THE CLOSING**.

 

11.1                           TheClosing shall be held at the Title Company’s offices (at the address set forthabove) at 9:00 A.M. on the Closing Date. The Closing Date shall be December 9,2004.

 

11.2                           AtClosing, Buyer shall pay the Purchase Price as adjusted in accordance with theprovisions of this Agreement; and Buyer shall execute and deliver such otherinstruments as Seller may reasonably request in connection with or toconsummate the transactions contemplated by this Agreement.

 

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

 

(a)                                  ASpecial Warranty Deed in favor of Buyer for the Real Estate in proper recordableform and duly executed and acknowledged by Seller.

 

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

 

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(c)                                  Itshall be a condition precedent to Buyer’s obligation to remit the remainder ofthe Purchase Price to the Title Company on the Closing Date and effectuate thetransaction contemplated herein that on or before the third (3rd) business dayprior to the Closing Date, Buyer shall have received an estoppel certificatefrom each tenant under a Space Lease each such estoppel to be dated not morethan 30 days prior to the Closing Date, in either the form required by itsSpace Lease, or otherwise in the form attached hereto as Exhibit 10, and made apart hereof, as well as Seller’s estoppel in the form of Exhibit 10. If Selleris unable to obtain any such required estoppel from a tenant prior to Closing,Seller shall deliver its own estoppel in the form attached as Exhibit 10(provided, however, Buyer shall not be obligated to accept Seller’s estoppel,which shall survive Closing (but if post-Closing Seller delivers any suchtenant estoppel, Seller shall be relieved from responsibility under any Sellerestoppel it delivered regarding all matters confirmed by such tenant estoppel).If Seller fails to deliver any such required estoppel, Seller shall have noliability by reason thereof provided, however that Seller shall not be requiredto deliver its own estoppel containing an assertion that Seller in good faithbelieves to be untrue, and Buyer’s sole right shall be to terminate thisAgreement and to obtain a refund of the Deposit as set forth in Section 14.3.If any estoppel certificate is dated earlier than forty (40) days prior to theClosing Date, in lieu of requiring Seller to obtain a new estoppel from thesubject tenant(s), which shall be required of Seller if any estoppelcertificate is dated earlier than sixty (60) days prior to the Closing Date,Buyer agrees that Seller may deliver, at Closing, its representation that tothe best of Seller’s knowledge, the facts in said estoppel remain true in allmaterial respects as of the Closing Date.

 

(d)                                 Sellershall use its commercially reasonable good faith efforts to obtain, prior tothe expiration of the Due Diligence Period, an estoppel certificate from eachparty to, or affected by any declaration, association, reciprocal easement, orlike agreement affecting the Property (hereinafter “REA estoppel”). Seller willrequest that the estoppel be in a form substantially similar to the formattached hereto as Exhibit 11 and made a part hereof. In the alternative,within five (5) days of the date this Agreement is fully executed by Seller andBuyer, Seller shall provide Buyer with the necessary information for each REAparty such that during the Due Diligence Period, Buyer may request the REAestoppel from the REA parties directly. In the event Seller and Buyer areunable to obtain these estoppels despite Seller’s commercially reasonable goodfaith efforts prior to the expiration of the Due Diligence Period, Seller maydeliver and Buyer may accept (although nothing contained herein shall requireBuyer to accept), its own estoppel in the form attached as Exhibit 11, whichshall survive Closing (but if post-Closing Seller delivers any such REAestoppel, Seller shall be relieved from responsibility under any Sellerestoppel it delivered regarding all matters confirmed by such “REA” estoppel).

 

(e)                                  Itshall be a condition precedent to Buyer’s obligation to remit the remainder ofthe Purchase Price to the Title Company on the Closing Date and effectuate thetransaction contemplated herein that on or before the third (3rd)business day prior to the Closing Date, Buyer shall have received an assignmentof all warranties and guaranties, if available, for materials and workmanshipbenefiting the Property, including an acknowledgment by the material and/orservice provider of the acceptance of the assignment where required by theterms of the warranty and/or guaranty, with all fees and costs of suchassignment (and inspection, if required) (not to exceed One Thousand Dollars($1,000.00)) being paid at the sole cost and expense of Seller; any such costsor fees in excess of One Thousand Dollars ($1,000.00) being shared equallybetween the parties hereto.

 

(B)                                AtClosing, Seller and Buyer shall each execute and deliver to the other thefollowing:

 

(a)                                  AnAssignment and Assumption Agreement for the Space Leases in the form of Exhibit4 attached hereto.

 

(b)                                 AnAssignment and Assumption Agreement for the Service Contracts, in the form of Exhibit5 attached hereto.

 

(c)                                  Noticesto tenants, in the form attached hereto as Exhibit 14, and made a part hereof,notifying them of the sale and (if applicable) the transfer of their securitydeposit to Buyer.

 

(d)                                 Noticeto OEA parties in form required by the OEA.

 

(e)                                  Tothe extent at closing Seller has not entered into a lease for the space for2,675 square feet vacancy noted on Exhibit 9, then Seller shall master leasesame pursuant to the terms hereof (the “New Vacant Space”) a Master Lease for aterm expiring on the earlier of (i) twelve (12) months or (ii) such date asSeller leases the Vacant Space. Lease-up of the Property shall in no eventyield an average Fixed Rent and Reimbursements amount that is less than the sumof Fixed Rent and Reimbursements per the Rent Roll. The Master Lease shall bein the form of Exhibit 8 attached hereto and

 

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shall incorporatethat portion of the Property vacant space for which a bona fide Space Lease(s)had been executed but have become vacant between the date hereof and the dateof Closing with the “Tenant Conditions” (as hereinafter defined) having beensatisfied. For the purposes hereof, the Tenant Conditions for any Propertyvacant space gross leasable area are hereby defined as (i) a signed lease, and(ii) with Tenant either paying full rent and reimbursements or the allconditions precedent to Rent Commencement Date (as defined in such tenantlease) shall have occurred or been satisfied and (iii) with all the leasingcommissions and tenant improvement allowances either paid for by Seller orcredited to Buyer and (iv) with a certificate of occupancy or its equivalentoccupancy permit issued by the local governmental authorities, for such tenant’srespective demised premises (v) Tenant shall have open and operated for itspermitted use for at lease one day (vi) and Seller obtains an estoppel fromTenant that the delivery conditions (i.e. Landlord Work) has been completed orSeller shall give a Seller estoppel to that effect. If a bona fide Space Leasefor the Vacant Space or any portion thereof with the Tenant Conditionssatisfied is executed prior to the Closing Date, the parties shall either notenter into a Seller Lease or the applicable provisions thereof (including butnot limited to the annual base rent) shall be adjusted accordingly to reflectthat portion of the Vacant Space that is leased and thus released and notcovered by the Master Lease. Seller acknowledges and agrees that it shall beresponsible for placing all vacant space in Vanilla Box condition however, itmay be satisfied by second generation space in “as is” condition such that atenant has already occupied same, and needn’t be in “new” condition.

 

11.4                           Eachparty shall pay its own legal fees and travel and lodging expenses inconnection with this transaction. Seller shall pay for all transfer taxes anddocumentary stamps and the parties shall each pay 1/2**of therecording charges for transfer of title to the Real Estate and the “New YorkStyle” closing escrow fees charged by the Title Company.

 

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

 

11.6                           IntentionallyDeleted.

 

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12.                                 **BROKERS**.

 

Each partyrepresents and warrants to the other that it dealt with no broker in connectionwith this transaction. Each party agrees to defend, indemnify and hold theother harmless from and against any and all loss, liability and expense,including reasonable attorney’s fees, that the indemnitee may incur arising byreason of the above representation by the indemnitor being false. Theprovisions of this Section 12 shall survive Closing.

 

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

 
|       | To Seller:                             | 8383 Wilshire Boulevard                   |
|------------|----------------------------------------|-------------------------------------------|
|       |                                   | Suite 950                                 |
|       |                                   | Beverly Hills, CA 90211                   |
|       |                                   | Attn: Jerald Friedman                     |
|       |                                   | Phone: (323) 866-3519                     |
|       |                                   | Fax: (323) 866-3511                       |
|       |                                   |                                      |
|       |                                   | With a copy to:                           |
|       |                                   |                                      |
|       |                                   | 3333 New Hyde Park Road                   |
|       |                                   | Suite 100                                 |
|       |                                   | New Hyde Park, New York  11042            |
|       |                                   | Attn: Barbara E.  Briamonte, Esq.         |
|       |                                   | Phone: (516) 869-7157                     |
|       |                                   | Fax: (516) 869-7201                       |
|       |                                   |                                      |
|       | and a copy to:                         | 1111 Burlington Avenue                    |
|       |                                   | Suite 113                                 |
|       |                                   | Lisle, IL 60532                           |
|       |                                   | Phone: (630) 437-6610                     |
|       |                                   | Fax: (630) 322-9204                       |
|       |                                   | Attention: Daniel  Slattery               |
|       |                                   |                                      |
| To  Buyer: | Inland Real Estate  Acquisitions, Inc. |
|       |                                   | 2901 Butterfield Road  Oakbrook, IL 60523 |
|       |                                   | Phone: (630) 218-4948                     |
|       |                                   | Fax: (630) 218-4935                       |
|       |                                   | Attention: G. Joseph  Cosenza             |
|       |                                   |                                      |
|       | and a copy to:                         | Jason Lazarus                             |
|       |                                   | Fax: (678) 996-2140                       |
|       |                                   |                                      |
|       |                                   | with a copy to:                           |
|       |                                   |                                      |
|       |                                   | The Inland Group, Inc.                    |
|       |                                   | 2901 Butterfield Road                     |
|       |                                   | Oak Brook, IL 60523                       |
|       |                                   | Attn: Robert Baum,  General Counsel       |
|       |                                   | Facsimile Nos: (630)  218-4900            |
|       |                                   | Copy via facsimile:                       |
|       |                                   | Charles R. Benvenuto  (630) 571-2360      |
|       |                                   |                                      |
|       | To Escrow Agent:                       | CHICAGO TITLE &  TRUST COMPANY        |
|       |                                   | 171 North Clark Street                    |
|       |                                   | Chicago, Illinois 60601                   |
|       |                                   | Attn: Nancy Castro,  Escrow Agent         |
|       |                                   | Phone: (312) 223-2709                     |
|       |                                   | Fax: (312) 223-2108                       |

 

or such other address assuch party shall hereafter have specified by Notice given by the same means.Any Notice shall be deemed given when delivered to the carrier delivering same,delivery charges prepaid, and properly sealed and addressed. Any Notice mayalso be given by telecopier to the following

 

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numbers; Seller (516)869-7201, Buyer (843) 852-3675, (630) 218-4935, (678) 996-2140 and (630)218-4900;, and Escrow Agent (312) 223-2108, Attn: Nancy Castro, provided that a“hard copy” of such notice is sent within one (1) business day after suchtelecopier transmission in the manner above set forth; and in the case ofnotice by telecopier (with confirmation sent as aforesaid), notice shall bedeemed given upon electronic confirmation of receipt.

 

14.                                 **DEFAULTS**.

 

14.1                           IfClosing does not take place because of Buyer’s default the Deposit shall beretained by Seller as agreed upon liquidated damages as Seller’s sole remedyfor such default, and thereupon this Agreement shall be null and void and of nofurther force or effect whatsoever (except that Buyer shall remain liable onits obligations under Sections 4.2 and 15.8). The parties hereto expresslyagree that Seller’s actual damages in the event of a default by Buyer would beextremely difficult or impractical to ascertain and that the amount of theDeposit represents the parties’ reasonable estimate of such damages.

 

14.2                           IfClosing does not occur due to Seller’s willful default and refusal to closedespite Buyer’s willingness to do so (such willingness includes waiver by Buyerof any uncured title objection properly made by Buyer under Section 6.1 ormaterial breach of representation or warranty by Seller) (such willful defaultand refusal being hereinafter referred to as a “Seller Default”), then Buyer,as its sole and exclusive right and remedy as a result of such Seller Default,may elect to either (i) cancel this Agreement, in which event the Deposit shallbe returned to Buyer, Seller shall be liable for any title and survey costs, aswell as environmental site assessment, appraisal and legal fees theretofore incurred by Buyer (however Sellershall not be obligated to reimburse Buyer more than Twenty-Five ThousandDollars ($25,000.00) in the aggregate for such environmental site assessment,appraisal and legal fees), and thereupon no party shall have any further rightor obligation hereunder (except that Buyer shall remain liable on itsobligations under Sections 4.2 and 15.8), or (ii) Buyer may enforce specificperformance of this Agreement without any reduction or abatement of thePurchase Price, together with the right of Buyer to collect its reasonableattorney’s fees and costs of suit, subject to the limitation on Landlord’sreimbursement of same described above.

 

14.3                           Subjectto the provisions of Article 14.1 and 14.2 above, if Closing should notoccur for any reason whatsoever other than a default by Buyer or a SellerDefault (including without limitation by reason of a material breach ofrepresentation or warranty of Seller or an uncured title objection properlymade by Buyer under Section 6.1, or a failure to deliver any tenantestoppel required hereunder) which Buyer is not willing to waive, then in suchevent this Agreement shall be and be deemed cancelled, the Deposit shall bereturned to Buyer, and thereupon Buyer shall have no other right, by way ofdamages or otherwise, against Seller notwithstanding the existence of anyfailure or breach of representation, warranty, covenant, title, provision ofestoppel or other Closing condition (provided that Buyer will remain liable onits obligations under Sections 4.2 and 15.8).

 

15.                                 **MISCELLANEOUS**.

 

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

 

15.2                           ThisAgreement (including the Exhibits attached hereto) contains the entireagreement between the parties with respect to the subject matter hereof andsupersedes all prior or contemporaneous understandings, if any, with respectthereto.

 

15.3                           ThisAgreement may not be canceled, modified, changed or supplemented, nor may anyobligation hereunder be waived, except by written instrument signed by theparty to be charged or by its agent duly authorized in writing.

 

15.4                           Theparties do not intend to confer any benefit hereunder on any person, firm orcorporation other than the parties hereto and their respective successors orassigns.

 

15.5                           **“TIME IS OF THE ESSENCE”** with respect to all provisions ofthis Agreement, with the sole exception that each of Buyer and Seller shall beentitled to a single adjournment (not to exceed two (2) business days in anyevent) of the Closing Date.

 

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15.6                           ThisAgreement shall extend to and be binding upon the legal representatives, heirs,executors, administrators and, subject to the provisions of this Agreement, thepermitted assigns of the parties hereto.

 

15.7                           IntentionallyDeleted.

 

15.8                           Buyerrepresents and warrants that it will keep all information and/or reports and/ordocuments obtained from Seller or its agents (including without limitation therent and other terms of the Space Leases), or related to or connected with theProperty (including without limitation the existence of this Agreement and thePurchase Price) strictly confidential and will not disclose any suchinformation to any person or entity (except for Buyer’s attorneys, consultantsand advisors and except as required by law; provided that any such partiessimilarly agree to treat such material confidentially), without the priorwritten consent of Seller. In amplification and not in limitation of theforegoing, Buyer may not make any public disclosure of the existence or termsof this Agreement prior to Closing.

 

15.9                           ThisAgreement shall be governed by, interpreted under, and construed and enforcedin accordance with, the laws of the State wherein the Property is located. ThisAgreement shall be construed in accordance with its plain meaning and withoutreference to any maxim or rule of interpretation providing that a writingshould be construed against the party responsible for the drafting thereof.

 

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

 

15.11                     ThisAgreement may be executed in one or more counterparts, each of which when soexecuted and delivered shall be deemed an original.

 

16. ConditionsPrecedent to Buyer’s Obligation.

 

In addition to theconditions precedent described in Article 11-3(A) (c), (d) & (e),Buyer’s obligation to remit the remainder of the Purchase Price to the TitleCompany on the Closing Date and effectuate the transaction contemplatedhereunder is subject to and contingent upon the following;

 

(a)          The Title Company’s issuingor committing to issue the Title Policy insuring that fee simple title to theProperty is vested in Buyer as required in Article 6 hereof;

 

(b)         The completeness, truthand accuracy in all material respects and to the best of Ruth Mitteldorf’s orDaniel Slattery’s knowledge of the Rent Roll, and any certifications,schedules, covenants and statements prepared and executed by Seller as part ofthe Pre-Closing Deliveries, the completeness in all material respects and tothe best of Seller’s knowledge of the Space Leases delivered by Seller as partof the Pre-Closing Deliveries, the completeness, truth and accuracy in allmaterial respects and to the best of Seller’s knowledge as of Closing, of therepresentations and warranties of Seller contained in Section 10 hereof,and the performance by Seller, to the extent possible by the date of Closing,of the covenants contained in Section 10 hereof. It shall be a conditionto Buyer’s obligation to close with respect to the Property that, at theClosing, Seller shall deliver to Buyer a Certificate that shall confirm, to thebest of Seller’s knowledge, the truth and accuracy in all material respects, asof Closing, of Seller’s representations contained in this Agreement, and therepresentations contained in such certificate, as well as any continuingobligations of Seller hereunder, shall survive the Closing for a period oftwelve (12) months; and

 

(c)          That as of the date ofclosing: (i) neither Seller, as landlord under the Space Leases, nor any tenantthereunder, shall be in material default under the terms of any Space Lease and(ii) and eight-five percent (85%) of the Property gross leaseable area beingleased to tenants with the Tenant Conditions satisfied.

 

[SEE SIGNATUREBLOCKS ON NEXT PAGE]

 

14

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IN WITNESS WHEREOF,Seller and Buyer have executed this Agreement as of the day and year firstabove written.

 
|                               | BUYER:                                                                                             |
|------------------------------------|----------------------------------------------------------------------------------------------------|
|                               | INLAND REAL ESTATE  ACQUISITIONS, INC.                                                             |
| WITNESS:                           |                                                                                               |
| [ILLEGIBLE]                        |                                                                                               |   |
| [ILLEGIBLE]                        |                                                                                               | By: | /s/ Jason A. Lazarus |   |
|                               |                                                                                               | Name: Jason A. Lazarus |
|                               |                                                                                               | Title: Vice President |
|                               |                                                                                               | Date of Execution: | November 19,  2004 |   |
|                               |                                                                                               |
|                               | SELLER:                                                                                            |
|                               | KIMCO PANAMA CITY, LLC                                                                             |
| WITNESS:                           |                                                                                               |
|                               | By:  [ILLEGIBLE]                                                                         |
| [ILLEGIBLE]                        |                                                                                               |   |
| [ILLEGIBLE]                        |                                                                                               | By: | /s/ Ruth Mitteldorf |   |
|                               |                                                                                               | Name: Ruth Mitteldorf |
|                               |                                                                                               | Title: VP- Finance |
|                               |                                                                                               | Date of Execution: | 11/19/04 |   |
|                               |                                                                                               |
|                               | Escrow Agent signs to  confirm its  agreement with the provisions of  Section 3(A)(b) hereof: |
|                               |                                                                                               |
|                               |                                                                                               |
|                               |                                                                                               |
|                               | ESCROW AGENT:                                                                                      |
| WITNESS:                           |                                                                                               |
| CHICAGO TITLE &  TRUST COMPANY |                                                                                               |
|                               |                                                                                               | By: |   |   |
|                               | Name:                                                                                              | Nancy Castro |   |
|                               | Title:                                                                                             |
|                               |                                                                                               | Date of Execution: |   |   |
|                                    |                                                                                                    |  |  |  |  |  |  |  |  |  |  |

 

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