**Exhibit10.482**

 

FIRSTAMENDMENT TO REAL ESTATE AGREEMENT

Phenix Crossing, Phenix City,Alabama

 

THIS AGREEMENT is made as of this 20th day of December, 2004, between **INLAND REAL ESTATEACQUISITIONS, INC.,**an Illinois corporation (referred to herein as “Buyer”),and **REGENCY REALTY GROUP, INC.,**aFlorida corporation (referred to herein as “Seller”).

 

RECITALS

 

A.                                   The parties heretofore executed that certainReal Estate Sale Agreement with an Effective Date of November 15, 2004(the “Agreement”), for the purchase and sale of property located in Lee County,Alabama, as more particularly described in the Agreement (the “Property”).

 

B.                                     Buyer and Seller wish to further amendcertain terms of the Agreement as set forth herein.

 

C.                                     Except as otherwise expressly provided forherein, capitalized terms used herein shall have the same meaning as set forthin the Agreement.

 

NOW, THEREFORE, in consideration of the mutual agreements herein, and other good and valuableconsideration, including the sum of Ten Dollars ($10.00) paid by each party tothe other, the receipt of which is hereby acknowledged, the parties promise andagree to amend the Agreement as follows:

 

1.                                       The Buyer hereby acknowledges that the Buyerhas completed its due diligence review of the Property, subject only to thetitle and survey matters set forth in the December 20, 2004 letter fromCharles J. Benvenuto, P.C. delivered to Seller. Therefore, the Agreement is modifiedto provide that upon the expiration of the Inspection Period, the Earnest MoneyDeposit (as increased pursuant to the terms of the Agreement) shall benon-refundable, other than in the event the title and survey matters are notresolved to the satisfaction of Buyer (not to be unreasonably withheld), inwhich event the Buyer shall have the right to terminate the Agreement andreceive a return of the Earnest Money Deposit.

 

2.                                       At Closing, the Buyer shall receive a creditagainst the Purchase Price in the aggregate amount of $18,000.00, which shallconsist of (i) $15,500.00 credit for recovery from slippage in the NOI for theProperty, and (ii) $2,500.00 for deferred maintenance on the Property.

 

3.                                       Section 3.3 of the Agreement is modifiedto provide that the Closing shall take place at the offices of Escrow Agent on December 28,2004.

 

4.                                       The remaining terms and conditions of theAgreement remain in full force and effect.

 

5.                                       This Amendment may be executed by the partieshereto individually or in combination, in one or more counterparts, each ofwhich shall be an original and all of which will constitute one and the sameAmendment.

 

6.                                       The parties hereby agree that an executedfacsimile copy of this Amendment may be transmitted to either party and bedeemed an original for purposes hereof.

 

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7.                                       As modifiedherein, all terms and conditions in the Agreement shall remain in full forceand effect.

 

IN WITNESS WHEREOF, theparties have executed this Amendment as of the day and year first above written.

 
|       | **“SELLER”**               |
|------------|--------------------------------------|
|       |                                 |
| ** ** | **REGENCY REALTY GROUP, INC.,**  a   |
|       | Florida corporation                  |
|       |                                 |
|       | By:                                  | /s/ John R. Ibach |   |
|       | Name:                                |  John  R. Ibach |
|       | Title:                               |  Attorney for and on behalf of Seller |
|       |                                 |
|       |                                 | Date: | 12/20, 2004 |
|       |                                 |
| ** ** | **“BUYER”**                |
|       |                                 |
| ** ** | **INLAND REAL ESTATE ACQUISITIONS,** |
|       | **INC.,** an Illinois  corporation   |
|       |                                 |
|       | By:                                  | /s/ [ILLEGIBLE] |   |
|       | Name:                                | [ILLEGIBLE] |   |
|       | Title:                               | [ILLEGIBLE] |   |
|       |                                 |
|       | Date:                                | 12/20, 2004 |
|            |                                      |  |  |  |  |  |  |

 

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**REAL ESTATE SALE AGREEMENT**

 

(ExistingShopping Center)

 

THIS AGREEMENT is made as of the 15th day of November, 2004,between INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation, and itspermitted nominee (referred to herein as “Buyer”), and REGENCY REALTY GROUP,INC., a**Florida corporation (referred to herein as “Seller”).

 

Background

 

Buyer wishes to purchase the following shopping center in Alabama, butspecifically excluding the outparcels being retained by Seller, identified as:

 

| **Center**      | ** ** | **City**    | ** ** | **County** | ** ** |
|-----------------|------------|-------------|------------|------------|------------|
| Phenix Crossing |       | Phenix City |       | Russell    |       |

 

Seller wishes to sell the said shopping center to Buyer;

 

In consideration of the mutual agreements herein, and for other goodand valuable consideration, the receipt of which is hereby acknowledged, Selleragrees to sell to Buyer and Buyer agrees to purchase the said shopping center,subject to the following terms and conditions:

 

1. DEFINITIONS

 

As used in this Agreement, the following termsshall have the following meanings:

 

1.1                                 Agreement means this Real Estate Sale Agreement, which shall supercede all prioragreements and understandings between Buyer and Seller concerning the sale andpurchase of the Shopping Center.

 

1.2                                 Broker means Staubach Retail Services Southeast, L.L.C., a licensed realestate broker, whose address is 3400 Peachtree Road, N.E., Suite 1100, Atlanta,Georgia 30326, the responsible broker being Thomas Statham.

 

1.3                                 Buyer means Inland Real Estate Acquisitions, Inc., and its permitted nominee.

 

1.4                                 Closing means generally the execution and delivery of those documents andfunds necessary to effect the sale of the Shopping Center to Buyer.

 

1.5                                 Closing Date means the date on which the Closing occurs.

 

1.6                                 Contracts means all service contracts and similar agreements concerning the furnishingof goods and services to Seller with respect to the Shopping Center.

 

1.7                                 Earnest Money Deposit means the deposits delivered by Buyer toEscrow Agent under Section 2.2 of this Agreement.

 

1.8                                 Effective Date means the next business day following thedate upon which the fully executed Agreement has been executed by the EscrowAgent.

 

1.9                                 Environmental Law means any current legal requirement ineffect at the Closing Date pertaining to (a) the protection of health, safety,and the indoor or outdoor environment, (b)

 

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theconservation, management, protection or use of natural resources and wildlife,(c) the protection or use of source water and groundwater, (d) the management,manufacture, possession, presence, use, generation, transportation, treatment,storage, disposal, release, threatened release, abatement, removal, remediationor handling of, or exposure to, any Hazardous Material or (e) pollution(including any release to air, land, surface water, and groundwater); andincludes, without limitation, the Comprehensive Environmental Response,Compensation and Liability Act of 1980, as amended by the Superfund Amendmentsand Reauthorization Act of 1986, 42 USC 9601 et seq., Solid Waste Disposal Act,as amended by the Resource Conservation Act of 1976 and Hazardous and SolidWaste Amendments of 1984, 42 USC 6901 et seq., Federal Water Pollution ControlAct, as amended by the Clean Water Act of 1977, 33 USC 1251 et seq., Clean AirAct of 1966, as amended, 42 USC 7401 et seq., Toxic Substances Control Act of1976,15 USC 2601 et seq., Hazardous Materials Transportation Act, 49 USC App.1801, Occupational Safety and Health Act of 1970, as amended, 29 USC 651 et seq.,Oil Pollution Act of 1990, 33 USC 2701 et seq., Emergency Planning andCommunity Right-to-Know Act of 1986, 42 USC App. 11001 et seq., NationalEnvironmental Policy Act of 1969, 42 USC 4321 et seq., Safe Drinking Water Actof 1974, as amended by 42 USC 300(f) et seq., and any similar, implementing orsuccessor law, any amendment, rule, regulation, order or directive, issuedthereunder.

 

1.10                           Escrow Agent means the firm identified as the EscrowAgent in Section 10.2 of this Agreement.

 

1.11                           Hazardous Material means petroleum, petroleum products,drycleaning solvents and other hazardous or toxic substances as defined in orregulated by any Environmental Law in effect at the pertinent date or dates.

 

1.12                           Improvements means all buildings, structures or otherimprovements owned by Seller, (but not those, if any, owned by tenants)situated on the real property on which the Shopping Center is located, if any.

 

1.13                           Inspection Period means the period of time which begins on theEffective Date and ends on the thirty fifth (35th) day after the EffectiveDate.

 

1.14                           Leases means all leases and other occupancy agreements permitting persons to leaseor occupy any portion of the Shopping Center.

 

1.15                           Major Tenants with respect to the Shopping Center, arethose identified as such on Exhibit 1.15 attached hereto.

 

1.16                           Materials means all plans, drawings, specifications, soil test reports, environmentalassessments and similar documents concerning the Shopping Center which are in Seller’spossession.

 

1.17                           Permitted Exceptions means only the following interests, liensand encumbrances:

 

(a)                                  Liens for ad valorem taxes not payable on orbefore Closing;

 

(b)                                 The exceptions noted with respect to theShopping Center in the Existing Title Policy and on the Existing Survey, itbeing understood, however, that Buyer shall have the Inspection Period withinwhich to determine whether

 

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any such item will materially and adversely affectBuyer’s contemplated use of the Property.

 

(c)                                  The Leases;

 

(d)                                 A standard form of Declaration ofRestrictions, Covenants, and Conditions and Grant of Easements required byPublix, the final form of which shall be negotiated in good faith between theBuyer and Seller during the Inspection Period, to govern the Property and theadjacent Outparcels; and

 

(e)                                  Covenants, restrictions, easements and othermatters of record, it being understood, however, that Buyer shall have theInspection Period within which to determine whether any such item willmaterially and adversely affect Buyer’s contemplated use of the Property.

 

1.18                           Personal Property means all (a) sprinkler, plumbing, heating,air-conditioning, electric power or lighting, incinerating, ventilating andcooling systems, with each of their respective appurtenant furnaces, boilers,engines, motors, dynamos, radiators, pipes, wiring and other apparatus,equipment and fixtures, elevators, partitions, fire prevention andextinguishing systems owned by Seller, located in or on the Improvements, (b)the Materials, (c) other tangible personal property used in connection with theownership or operation of the Improvements, provided the same are now owned orare acquired by Seller, prior to the Closing, and (d) all trade names,franchises, licenses, permits, easements, development rights and approvals,deposits, credits, petroleum and mineral interests and royalties, air and waterrights, construction and product warranties, the Leases (including all securitydeposits and guarantees given with respect thereto), Contracts and Materials,and all other intangibles owned by or for the benefit of Seller in connectionwith the Shopping Center, including the rights of Seller in and to the name ofthe Shopping Center: “Phenix Crossing.” The previous provisions to the contrarynotwithstanding, the term Personal Property shall specifically exclude allentrance, exit and leasing signs referencing “Regency”, “Regency Centers” oraffiliated entities.

 

1.19                           Property means collectively the Real Property, the Improvements and the PersonalProperty, constituting the Shopping Center. It is sometimes used with the same meaningas “Shopping Center” when the context so requires.

 

1.20                           Purchase Price means the consideration agreed to be paid byBuyer for the purchase of the Shopping Center as set forth in Section 2.1(subject to prorations and adjustments as provided herein).

 

1.21                           REA Estoppel Letter. REA estoppel certificate, in the formattached hereto as Exhibit 1.21, or such other form reasonably approved byBuyer, from each party to any declaration, reciprocal easement agreement, orlike agreement benefiting and/or burdening the Shopping Center.

 

1.22                           Real Property means the lands and easements moreparticularly described in the Existing Title Policy with respect to theShopping Center, but specifically excluding the outparcels, which are beingretained by the Seller. The Existing Title Policy for the Shopping Center hasbeen or will be delivered to Buyer.

 

1.23                           Rent Roll means the Leases enumerated with respect to the Shopping Center, as listedon Exhibit 1.23 of this Agreement, identifying with particularity the spaceleased by each

 

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tenant,the square footage and applicable rent, common area maintenance, tax and otherreimbursements, and similar information concerning each of the Leases, togetherwith a separate certificate setting forth security deposits held.

 

1.24                           Seller means Regency Realty Group, Inc., a Florida corporation.

 

1.25                           Seller Financial Statements means the statements of income and expenseprepared by Seller for the Shopping Center, as, of and three (3) calendar yearsnext preceding the date of this Agreement and all monthly and quarterly reportsof income and expense prepared by Seller for the Shopping Center for any suchperiod beginning after the latest of such calendar years, and ending prior toClosing.

 

1.26                           Shopping Center means the shopping center identified on theinitial page hereof.

 

1.27                           Survey means a map of a staked survey of the Real Property and Improvementsconstituting the Shopping Center prepared by the surveyor who prepared theExisting Survey for the Shopping Center, such Survey to comply with theALTA/ACSM Survey Requirements 1999 for ALTA/ACSM land title surveys jointlyestablished and adopted in 1999, by the American Land Title Association,American Congress on Surveying and Mapping, and the National Society ofProfessional Engineers, including optional items 1, 2, 3, 4, 6, 7(a, b, and c),8, 9, 10 and 11 of Table “A” thereof, which meets the accuracy standards (asadopted by ALTA and ACSM and in effect on the date of the Survey). The surveyorshall prepare and deliver to Buyer elevation certificates for each buildinglocated within the Shopping Center that is located within a flood zone. TheSurvey shall be certified to Buyer, Seller, and the Title Company. The existingsurvey for the Shopping Center has been or will be delivered to Buyer and isidentified on Exhibit 1.27 attached hereto (“Existing Survey”).

 

1.28                           Tenant Estoppel Letter means a letter or other certificate from atenant certifying as to certain matters regarding such tenant’s Lease, insubstantially the same form as Exhibit 1.28 of this Agreement, or in the caseof national or regional “credit” tenants, the form customarily used by suchtenant. In any case, the form of Tenant Estoppel Letter which the particulartenant is obligated to give under its lease shall be deemed acceptable,notwithstanding any other requirement of this Agreement.

 

1.29                           Title Company means Chicago Title Insurance Company.

 

1.30                           Title Defect means any exception in a Title InsuranceCommitment or any matter disclosed by a new Survey to which Buyer objects,other than a Permitted Exception (recognizing that Buyer has the right toapprove of any title exception and the Survey in accordance with the termshereof).

 

1.31                           Title Insurance means an Alabama promulgated form of ownerspolicy of title insurance in the amount of the Purchase Price insuringmarketable fee simple title to the Shopping Center in Buyer, subject only tothe Permitted Exceptions (as approved by Buyer), issued by the Title Company.Should Buyer or Buyer’s lender require special endorsements to any policy, thecost of such endorsement(s) shall be borne by Buyer. Buyer has received or willreceive an existing title insurance policy for the Shopping Center, which isidentified on Exhibit 1.31 attached hereto (“Existing Title Policy”).

 

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1.32                           Title Insurance Commitment means a preliminary title report whereby theTitle Company agrees to issue the Title Insurance to Buyer, together withcopies of all instruments which are exceptions noted therein or conditions tobe satisfied.

 

2. PURCHASE PRICE ANDPAYMENT

 

2.1                                 Purchase Price; Payment.  Thetotal Purchase Price for the Property (subject to adjustment as providedherein) shall be $10,064,802.00. The Purchase Price shall be payable in cash,before 2:00 P.M. (Charlotte, NC time) on the date of Closing.

 

2.2                                 Earnest Money Deposit.  Aninitial earnest money deposit in the amount of $100,000.00 shall be depositedwith Escrow Agent by Buyer within two (2) business days after the EffectiveDate. This Agreement may be terminated by Seller by notice to Buyer if the saiddeposit is not delivered to Escrow Agent by such deadline(s). All deposits madeas earnest money, shall be deemed included within the meaning of the termEarnest Money Deposit for all purposes. The Earnest Money Deposit shall be heldas specifically provided in this Agreement and, at Buyer’s option, shall eitherbe applied to the Purchase Price at Closing, or released to Buyer upon Closing(with the full Purchase Price having been paid).

 

2.3                                 Tax Prorations. Ad valorem taxes and assessments shall beprorated at Closing as of midnight of the day preceding the Closing Date, basedupon the highest discounted rate for ad valorem taxes for the year of Closing.If the amount of the taxes for the year of closing are not available on theClosing Date, such taxes will be prorated based upon the highest discountedrate for the immediately preceding calendar year. If applicable, Seller orBuyer shall pay the Closing year taxes on the date necessary to obtain thehighest discounted rate available. If necessary, on or before March 31 ofthe year following Closing, Seller shall provide to Buyer a final tenant reconciliationfor the year of closing and a final proration between Seller and Buyer shallthen be made with the prorations as of midnight of the day preceding Closing,after receipt and application of all tenant reimbursements, giving credit to Sellerand Buyer based on amounts actually received from the tenants, and the actualtaxes paid by Buyer.

 

2.4                                 Other Prorations. If the Closing occurs during a month whenone or more tenants have not yet paid rent, the rent shall be prorated bygiving Buyer a credit at Closing for a prorated amount for the period betweenthe Closing Date and the last day of the month in which Closing occurs. Othermatters of income and expense, if any, and other items customarily prorated intransactions of this kind shall be prorated as of midnight of the day precedingthe Closing Date.

 

2.5                                 Further Adjustments to the Purchase Price.  ThePurchase Price shall be further adjusted as of midnight of the day precedingthe Closing Date by subtracting the amount of security deposits, prepaid rentsfrom and credit balances of tenants under the Leases. Any rents, percentagerents or tenant reimbursements payable by tenants after the Closing Date but applicableto periods prior to the Closing Date shall be remitted to Seller by Buyer withinthirty (30) days after receipt, except that Major Tenant (as described onExhibit 1.15) reimbursements due for ad valorem property taxes which are paidby any Major Tenant on an annual basis shall be prorated as of the ClosingDate, giving credit to Seller for the prorated amount of the projected amountto be paid for the same for the period from January 1 of the year ofClosing and Closing Date. Buyer shall undertake to collect delinquencies in theordinary course of its business, but shall have no obligation to institute anylitigation. Seller may separately institute litigation for sums due it fromtenants, but shall not attempt to evict any tenant. Should Buyer collect anydelinquent rents or other sums which cover periods prior to the Closing Dateand for

 

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whichSeller received no proration or credit, Buyer shall remit same to Seller withinthirty (30) days after receipt. Buyer will not interfere in Seller’s efforts tocollect sums due it prior to the Closing. Seller will remit to Buyer withinthirty (30) days after receipt any rents, percentage rents or tenantreimbursements received by Seller after Closing which are attributable toperiods occurring on or after the Closing Date. Undesignated receipts afterClosing of either Buyer or Seller from tenants in the Shopping Center shall beapplied first to then current rents and reimbursements for such tenant(s), thento delinquent rents and reimbursements attributable to post-Closing Dateperiods, and then to pre-Closing Date periods.

 

2.6                                 Closing Costs.

 

(a)                                  Seller shall pay:

 

(1)                                  The costs, if any, of satisfying any liens,curing title defects (including, if Seller elects to cure the defect or isrequired to cure in accordance with Section 7 of this Agreement, the costand expense of title policy endorsements required to accomplish same, if any)and recording any curative title documents;

 

(2)                                  A credit against the Purchase Price in theamount of $94,160.00, which represents market rent and reimbursements for atwelve (12) month period, tenant improvement costs and leasing commissions forthe vacant suites 8 and 11 within the Shopping Center;

 

(3)                                  The brokerage commission payable to Brokerincurred in connection with the sale of the Shopping Center to Buyer, if and whenthis transaction closes, in accordance with a separate written agreementbetween Broker and Seller; and

 

(4)                                  Seller’s attorneys’ fees relating to the saleof the Property.

 

(b)                                 Buyer shall pay:

 

(1)                                  The costs of Buyer’s due diligence investigations;

 

(2)                                  The costs of the Phase I environmental siteassessment to be obtained by Buyer, if any;

 

(3)                                  Transfer taxes imposed upon the transactionscontemplated hereby;

 

(4)                                  The costs of Title Insurance;

 

(5)                                  The costs of the new Survey;

 

(6)                                  The costs, fees and taxes attributable toBuyer’s financing, if any;

 

(7)                                  The costs of recording the closing documentsto be recorded; and

 

(8)                                  Buyer’s attorneys’ fees.

 

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3. INSPECTION PERIOD ANDCLOSING

 

3.1                                 Inspection Period. Buyer shall have the Inspection Period within which to physicallyinspect the Property and conduct its due diligence related thereto, and Selleragrees to provide Buyer with the documentation described upon the Due DiligenceChecklist attached hereto as Exhibit 3.1, and made a part hereof. Buyer andBuyer’s officers, employees, consultants, attorneys and other authorizedrepresentatives shall have the right to reasonable access to the Property andto all records of Seller related thereto (including without limitation titleinformation, property leasing files, surveys, environmental assessment reportsand other information concerning the condition of the Property), at reasonabletimes during the Inspection Period, for the purpose of inspecting the Property,conducting a Phase I Environmental Site Assessment in accordance with ASTMstandards only, reviewing the books and records of Seller concerning theProperty, evaluating the leasing and physical condition of the Property, conductingtenant interviews and otherwise conducting its due diligence review, provided howeverthat Buyer shall not be permitted to obtain soil, or groundwater samples fromthe Property for the purpose of conducting laboratory analysis on such samples.Seller shall give Buyer any authorizations which may be required by Buyer inorder to gain access to records or other information pertaining to the Propertyor the use thereof maintained by any third party, governmental orquasi-governmental authorities or organizations. Buyer hereby expressly agrees thatunless requested by Seller in writing to disclose such results, Buyer shallmaintain the confidentiality of its Phase I report and any other environmentalinvestigation or due diligence and specifically, shall not disclose suchinformation to Seller, any third party or any governmental entity unlessrequired to do so by law. Buyer hereby agrees to indemnify and hold Sellerharmless from any damages, liabilities or claims for property damage orpersonal injury and mechanics liens caused by or arising from Buyer and itsagents and contractors in the conduct of such inspections and investigations.Prior to any entry upon any Property by Buyer or any officer, employee, agent,consultant or contractor of Buyer, Buyer shall provide Seller with an insurancecertificate reflecting liability insurance coverage of not less than $1,000,000and naming Seller as an additional insured and to restore the Property to thecondition that existed prior to such inspections or investigations. Buyer’s indemnityand insurance obligations shall survive the Closing or early terminationhereof. Seller shall cooperate with and assist Buyer in making suchinspections, interviews and reviews. Buyer agrees that it will not interview,converse or communicate with any tenant without affording Seller reasonablenotice and an opportunity to be present and furnishing Seller a copy of eachand every written communication to or from a tenant promptly upon giving orreceiving same.

 

3.2                                 Buyer’s Termination Right. Within the Inspection Period, Buyer may elect (for any reason, or for noreason) whether or not to go forward with this Agreement to Closing, whichelection shall be made by notice to Seller and Escrow Agent given within theInspection Period. If such notice is not timely given, this Agreement and allrights, duties and obligations of Buyer and Seller hereunder, except any whichexpressly survive termination such as Buyer’s indemnity and insuranceobligations in Section 3.1, shall terminate, whereupon Escrow Agent shallpromptly return to Buyer the Earnest Money Deposit. Buyer shall return toSeller the materials and information furnished to Buyer by Seller, at no costto Seller, after the Buyer’s receipt of the Earnest Money Deposit. After theconclusion of the Inspection Period the Earnest Money Deposit shall not berefundable except upon terms otherwise expressly set forth herein.

 

3.3                                 Time and Place of Closing. The Closing shall take place at the officesof Escrow Agent on the tenth (10th) day after the end of theInspection Period. By providing Buyer with written notice, no later than three(3) business days prior to Closing, Seller shall have the right to

 

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extendthe date of Closing by thirty (30) days if Seller has not obtained all requiredTenant Estoppel Letters. At any time during such thirty (30) day extensionperiod, Seller may provide Buyer with written notice that all Tenant EstoppelLetters have been obtained, and the Closing shall be set at a time mutuallyagreeable to Buyer and Seller within the next five (5) business days followingsuch written notice.

 

4. WARRANTIES,REPRESENTATIONS AND COVENANTS OF SELLER

 

Seller, in its capacity as owner of the Shopping Center, warrants andrepresents, as of the Effective Date and to the best knowledge of Seller and,where indicated, covenants and agrees, as follows:

 

4.1                                 Organization; Authority. Seller is duly organized, validly existingand in good standing under the laws of the state of its organization. Seller isauthorized to transact business in the state in which the Shopping Center islocated. Seller has full power and authority to enter into and perform thisAgreement in accordance with its terms.

 

4.2                                 Title. Seller is the owner in fee simple of the Shopping Center.

 

4.3                                 Litigation. There is no litigation or proceeding pending, or to the best ofSeller’s knowledge, threatened against Seller relating to the Shopping Center,except as set forth on Exhibit 4.3 attached hereto.

 

4.4                                 Leases. There are no Leases affecting the Shopping Center other than thoselisted on the Rent Roll. The copies of the Leases, which will be made availableto Buyer during the course of the Inspection Period, will be, to the bestknowledge of Seller, true, correct and complete copies thereof. Between the endof the Inspection Period and the Closing Date, Seller will not terminate ormodify any of the Leases, enter into any new Leases or grant additional renewalrights to any tenant, without the consent of Buyer. During the Inspection PeriodSeller will advise Buyer of the terms of any proposed new Lease or materialmodification of any existing Lease, or of any termination. No rent orreimbursement has been paid more than one (1) month in advance. No securitydeposit has been paid, except as stated on a separate certified report fromSeller. No tenants under the Leases are entitled to interest on any securitydeposits.

 

4.5                                 Financial Statements.  Eachof the Seller Financial Statements delivered or to be delivered to Buyerhereunder has or will have been prepared in accordance with the books and recordsof Seller and presents fairly in all material respects the results ofoperations for the Shopping Center as of and for the periods to which theyrelate.

 

4.6                                 Contracts.  Except as stated on Exhibit4.6 attached hereto, which is a list of all service contracts in force andeffect as of the date hereof, there are no Contracts affecting the ShoppingCenter, which extend beyond the Closing Date and which, if terminated inaccordance with their terms, would bind Buyer or encumber the Shopping Centermore than thirty (30) days after such termination. All Contracts are in fullforce and effect, and all obligations of Seller under the Contracts required tobe performed to date have been performed in all material respects; no party toany Contract has asserted any claim of default or offset against Seller with respectthereto and no event has occurred or failed to occur, which would in any wayaffect the validity or enforceability of any such Contract. The copies of theContracts to be delivered to Buyer will be true, correct and complete copiesthereof. Seller will fulfill its obligations under all Contracts, and agreesthat between the end of the Inspection Period and the Closing will not terminateor modify any Contracts or enter into any new Contract without the consent ofBuyer

 

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(notto be unreasonably withheld) except such obligations as are freely terminablewithout penalty upon not more than thirty (30) days’ written notice.

 

4.7                                 Maintenance and Operation of Shopping Center.  Fromand after the date hereof and until the Closing, Seller covenants to keep andmaintain and operate the Shopping Center substantially in the manner in whichit is currently being maintained and operated and covenants not to cause orpermit any waste nor undertake any action with respect to the operation thereofoutside the ordinary course of business without Buyer’s prior written consent,not to be unreasonably withheld. Seller covenants not to remove from theImprovements or the Real Property any article included in the PersonalProperty, without replacing the same with a replacement of the same generalquality and/or type. Seller covenants to maintain such casualty and liabilityinsurance on the Property as is presently being maintained.

 

4.8                                 Permits and Zoning; Compliance with Law. To the best knowledge of Seller, the ShoppingCenter is properly zoned for its present use without variance or grandfatheringas a nonconforming use.

 

4.9                                 Rent Roll; Tenant Estoppel Letters.  TheRent Roll is true and correct in all material respects. After the InspectionPeriod ends without termination by Buyer, Seller shall use commerciallyreasonable efforts to obtain current Tenant Estoppel Letters from all Tenants underthe Leases.

 

4.10                           Condemnation.  Tothe best knowledge of Seller, neither the whole nor any portion of the ShoppingCenter, including access thereto, is subject to temporary requisition of use byany governmental authority or has been condemned, or taken in any proceedingsimilar to a condemnation proceeding, nor is there now pending or formallythreatened any condemnation, expropriation, requisition or similar proceedingagainst the Property or any portion thereof. Seller has received no notice norhas any other knowledge that any such proceeding is contemplated.

 

4.11                           Consents and Approvals; No Violation. Neither the execution and delivery of this Agreementby Seller nor the consummation by Seller of the transactions contemplatedhereby will (a) conflict with or breach any provision of the organizationaldocuments of Seller; (b) violate or breach any provision of, or constitute adefault (or an event which, with notice or lapse of time or both, wouldconstitute a default) under, any note, bond, mortgage, indenture or deed of trustto which Seller is a party; or (c) violate any order, writ, injunction, decree,judgment, statute, law or ruling of any court or governmental authorityapplicable to Seller.

 

4.12                           Environmental Matters. Except for uses permitted by applicable law, to the best of Seller’sknowledge Seller has used no Hazardous Material at the Shopping Center, nor hasSeller knowingly permitted any other person to do so, except as reflected bythe environmental assessment reports that have been previously been deliveredto Buyer as part of Buyer’s due diligence as listed on Exhibit 4.12 attachedhereto or as otherwise set forth on Exhibit 4.12 attached hereto.

 

4.13                           REA Estoppel Letters. After the Inspection Period ends without termination by Buyer, Sellershall use commercially reasonable efforts to obtain current REA EstoppelLetters from all REA parties under any declaration or reciprocal easementagreement. Failure to obtain such REA Estoppel Letters shall not be a defaultunder this Agreement or a condition to Buyer’s obligation to close.

 

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4.14                           Foreign Investment and Real Property Tax Act. Seller is not a “foreign person” within the meaning of Section 1445of the Internal Revenue Code, or under any comparable state statutes which areapplicable to this transaction. At Closing Seller will execute and deliver to Buyeran affidavit regarding such matters.

 

4.15                           Seller’s Knowledge.  Whenused herein, the term “to the best of Seller’s knowledge” or “to the best ofknowledge of Seller” shall mean only the actual, current, conscious knowledge,without inquiry (not constructive or implied knowledge) of Seller’s Representative,Barry Argalas.

 

5. WARRANTIES ANDREPRESENTATIONS OF BUYER

 

5.1                                 Buyer hereby warrants and represents thatBuyer is an entity which is duly organized, validly existing and in goodstanding under the laws of the state of its organization. Buyer will, prior toClosing, be authorized to transact business in the state in which the Shopping Centeris located. Buyer has full power and authority to enter into and perform thisAgreement in accordance with its terms.

 

5.2                                 Disclaimer.  BUYER ACKNOWLEDGES AND AGREESTHAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SELLER HAS NOT MADE, ANDSPECIFICALLY NEGATES AND DISCLAIMS, ANY REPRESENTATIONS, WARRANTIES (OTHER THANTHE SPECIAL WARRANTY OF TITLE CONTAINED IN THE SPECIAL WARRANTY DEED TO BEDELIVERED IN ACCORDANCE WITH THIS AGREEMENT), COVENANTS OR AGREEMENTS OF ANYKIND OR CHARACTER REGARDING ANY ASPECT OF THE SHOPPING CENTER, INCLUDING,WITHOUT LIMITATION: (A) THE VALUE, NATURE,  QUALITY OR PHYSICALCONDITION THEREOF, (B) THE INCOME TO BE DERIVED THEREFROM, (C) THE SUITABILITYOF THE SHOPPING CENTER FOR ANY ACTIVITY OR USE WHICH BUYER OR ANY TENANT MAYCONDUCT THEREON, (D) THE COMPLIANCE OF THE SHOPPING CENTER OR ITS OPERATIONWITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTALAUTHORITY OR BODY, (E) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY,PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE SHOPPING CENTER, (F)THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE SHOPPING CENTER,OR (G) COMPLIANCE OF THE SHOPPING CENTER WITH ANY ENVIRONMENTAL PROTECTION,POLLUTION OR LAND USE LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS,INCLUDING THE EXISTENCE THEREIN, THEREON OR THEREUNDER OF HAZARDOUS MATERIALS. ADDITIONALLY,EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NO PERSON ACTING ON BEHALF OFSELLER IS AUTHORIZED TO MAKE, AND BY EXECUTION HEREOF BUYER ACKNOWLEDGES THATNO PERSON HAS MADE, ANY REPRESENTATION, WARRANTY, COVENANT OR AGREEMENTREGARDING THE SHOPPING CENTER OR THE TRANSACTIONS CONTEMPLATED HEREIN. BUYER ACKNOWLEDGESTHAT, HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE SHOPPING CENTER, BUYERIS RELYING SOLELY ON ITS OWN INVESTIGATIONS AND NOT ON ANY INFORMATION PROVIDEDOR TO BE PROVIDED BY SELLER, OTHER THAN INFORMATION EXPRESSLY REQUIRED TO BE PROVIDEDBY SELLER HEREUNDER. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT EXCEPT ASEXPRESSLY SET FORTH HEREIN TO THE MAXIMUM EXTENT PERMITTED BY LAW THE SALEPROVIDED FOR HEREIN ARE MADE ON AN “AS-IS, WHERE-IS” BASIS WITH ALL FAULTS. THEPROVISIONS OF THIS

 

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SECTION SHALLSURVIVE THE CLOSING OR ANY TERMINATION OF THIS AGREEMENT. FURTHERMORE, EXCEPTFOR ANY CLAIM THE BUYER MAY HAVE AS A RESULT OF THE BREACH BY THE SELLER OF ANYEXPRESS REPRESENTATION OR WARRANTY OF SELLER SET FORTH HEREIN, BUYER DOESHEREBY RELEASE AND FOREVER DISCHARGE SELLER, ITS DIRECTORS, SHAREHOLDERS,OFFICERS, EMPLOYEES, LEGAL REPRESENTATIVES, AGENTS AND ASSIGNS, FROM ANY ANDALL ACTIONS, CAUSES OF ACTION, CLAIMS AND DEMANDS FOR, UPON OR BY REASON OF ANYDAMAGE, LOSS OR INJURY WHICH HERETOFORE HAVE BEEN OR WHICH HEREAFTER MAY BESUSTAINED BY BUYER RESULTING FROM OR ARISING OUT OF THE PRESENCE OF ANYHAZARDOUS MATERIALS OR OTHER ENVIRONMENTAL CONTAMINATION ON OR IN THE VICINITYOF THE PROPERTY, INCLUDING THE SOIL AND/OR GROUNDWATER (HEREINAFTER REFERRED TOAS THE “CLAIMS”). THIS RELEASE APPLIES TO ALL SUCH CLAIMS WHETHER THE ACTIONSCAUSING THE PRESENCE OF HAZARDOUS MATERIALS ON OR IN THE VICINITY OF THEPROPERTY OCCURRED BEFORE OR AFTER THE CLOSING. THIS RELEASE EXTENDS AND APPLIESTO, AND ALSO COVERS AND INCLUDES, ALL STATUTORY OR COMMON LAW CLAIMS THE BUYERMAY HAVE AGAINST THE SELLER. THE PROVISIONS OF ANY STATE, FEDERAL, OR LOCAL LAWOR STATUTE PROVIDING IN SUBSTANCE THAT RELEASES SHALL NOT EXTEND TO CLAIMS,DEMANDS, INJURIES OR DAMAGES WHICH ARE UNKNOWN OR UNSUSPECTED TO EXIST AT THETIME, TO THE PERSON EXECUTING SUCH RELEASE, ARE HEREBY EXPRESSLY WAIVED.

 

5.3                                 USA Patriot Act.

 

(a)                                  (a)                                  None of the funds to be used for payment byBuyer of the Purchase Price will be subject to 18 U.S.C. §§ 1956-1957(Laundering of Money Instruments), 18 U.S.C. §§ 981-986 (Federal AssetForfeiture), 18 U.S.C. §§ 881  (DrugProperty Seizure), Executive Order Number 13224 on Terrorism Financing,effective September 24, 2001, or the United and Strengthening America byProviding Appropriate Tools Required to Intercept and Obstruct Terrorism Act of2001, H.R. 3162, Public Law 107-56 (the “US Patriot Act”).

 

(b)                                 (b)                                 Buyer is not,**and will notbecome, a person or entity with whom U.S. persons are restricted from doing businesswith under the regulations of the Office of Foreign Asset Control (“OFAC”) ofthe Department of Treasury (including those named on OFAC’s Specially Designedand Blocked Persons list) or under any statute, executive order (including the September 24,2001 Executive Order Blocking Property and Prohibiting Transactions WithPersons Who Commit, Threaten to Commit, or Support Terrorism), the USA PatriotAct, or other governmental action.

 

6. POSSESSION; RISK OF LOSS

 

6.1                                 Possession. Possession of the Shopping Center will be transferred to Buyer at theconclusion of the Closing, subject to the Permitted Exceptions.

 

6.2                                 Risk of Loss.  Allrisk of loss to the Shopping Center shall remain upon Seller until theconclusion of the Closing. If, before Closing, any material and substantialportion (defined as damage in excess of $250,000) of the Shopping Center isdamaged by fire or other

 

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casualty,or if any material and substantial portion of the Shopping Center is taken orformally threatened by eminent domain (defined as affecting any Shopping Centerbuilding, and/or any Shopping Center parking, if the same results in anoncompliance with zoning or impacts 10% or more of the total parking, and/oradversely impacts any access drive serving the Shopping Center), and/orviolates the terms and conditions of any lease regarding minimum number ofparking spaces or parking ratios, Seller shall, within ten (10) days of suchdamage or taking, notify Buyer thereof and Buyer shall have the option to:

 

(a)                                  terminate this Agreement upon notice toSeller and Escrow Agent given within ten (10) business days after such noticefrom Seller; or

 

(b)                                 proceed with the purchase of the ShoppingCenter, in which event Seller shall assign to Buyer all Seller’s right, titleand interest in all amounts due or collected by Seller under any insurancepolicies (together with Seller’s payment to Buyer of any deductible thereunder)or as condemnation awards.

 

7. TITLE MATTERS

 

Seller has delivered or will deliver to Buyer promptly after theEffective Date hereof copies of the Existing Title Policy and Existing Survey,and within ten days of the Effective Date, Seller shall use diligent efforts todeliver to Buyer’s counsel new Title Insurance Commitment. Within five (5) daysof receipt of the new title commitment, Buyer shall order a new Survey. Buyerwill have ten (10) business days after its receipt of both the new TitleInsurance Commitment and the new Survey, but no longer than the InspectionPeriod, within which to notify Seller in writing of any conditions, defects,encroachments or other objections to title or survey which are not acceptableto Buyer. Any matter disclosed by the Title Insurance Commitment (other thanliens removable by the payment of money) or by the Survey which is not timelyspecified in Buyer’s written notice to Seller, shall be deemed a PermittedException. Seller shall use reasonable efforts to cure all objections to titleor survey made by Buyer (“Title Objections”) by Closing, but shall not beobligated to cure any Title Objections, other than (i) those which are in thenature of a mortgage lien voluntarily imposed by Seller; (ii) a mechanic’s orconstruction lien; or (iii) other claim which can be cured by the payment ofmoney, provided the amount of money to be paid to effect the cure does notexceed $5,000.00 and in no event shall Seller be obligated to institute anylitigation to cure any Title Objections. If Seller elects not to cure a TitleObjection, Seller shall notify Buyer in writing of such election. If any TitleObjection is not cured by Closing, Buyer may (i) refuse to purchase theShopping Center and terminate this Agreement and immediately receive a returnof the Earnest Money Deposit; or (ii) waive such objection(s) and close thepurchase of the Shopping Center, subject to the Title Objection(s), and withoutreduction of the Purchase Price.

 

8. CLOSING DELIVERIES

 

8.1                                 Seller Deliveries.At Closing Seller shall deliver:

 

(a)                                  A special warranty deed in proper form forrecording, duly executed, witnessed and acknowledged, so as to convey to Buyerthe fee simple title to the Shopping Center, subject only to the PermittedExceptions;

 

(b)                                 Originals, if available, or if not, truecopies of the Leases and Contracts;

 

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(c)                                  Assignments to Buyer of all Leases and allContracts, containing an indemnity against breach of such instruments by Sellerprior to the Closing Date and including all security deposits and other sumsfrom tenants held by or for Seller with respect to the Leases, and containing areciprocal indemnity from Buyer against breach of such instruments and claimsmade by tenants and others which arise from and after the Closing Date;

 

(d)                                 A quitclaim bill of sale or assignment of allPersonal Property and Materials;

 

(e)                                  An updated Rent Roll certified by Seller;

 

(f)                                    Tenant Estoppel Letters obtained by Seller,if not already delivered to Buyer, which must include those from all MajorTenants and seventy five percent (75.0%) by number of the other tenants whohave signed leases for any portion of the Shopping Center, together with Seller’sestoppel (in the form required for the respective tenants) for each tenant notdelivering an estoppel (i.e., to achieve 100% estoppel delivery to Buyer). IfSeller delivers a Seller’s Estoppel Letter for any tenant and within ninety(90) days thereafter delivers a Tenant Estoppel Letter from such tenant in formrequired herein and containing the same provisions as are included in the Seller’sEstoppel, Seller will be released from any and all liabilities and obligationsthereafter accruing under such Seller’s Estoppel Letter;

 

(g)                                 An owner’s affidavit, non-foreign affidavit,non-tax withholding certificate and such other documents as may reasonably berequired by the Title Company in order to effectuate the provisions of thisAgreement and the consummation of the transactions contemplated herein;

 

(h)                                 Resolutions or affidavits of Sellerauthorizing the transaction described herein;

 

(i)                                     An executed audit representation letter inthe form attached hereto as Exhibit 8.l(i), and made a part hereof;

 

(j)                                     Letters to tenants signed by Seller, in theform attached hereto as Exhibit 8.1(j), and made a part hereof, notifying thetenants of the acquisition of the Shopping Center by Buyer and directing thetenants to pay all rents and other sums to Buyer from and after the ClosingDate;

 

(k)                                  An updated certificate, as of closing,certifying that the representations and warranties contained in Article 4of this agreement remain true and correct in all material respects; and

 

(1)                                  Such other documents as the Title Company mayreasonably request to effect the transaction contemplated by this Agreement.

 

8.2                                 Buyer Deliveries. At Closing Buyer shall deliver:

 

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(a)                                  Subject to the terms of subparagraph 2.2hereof, a direction to Escrow Agent to disburse the Earnest Money Deposit toSeller;

 

(b)                                 The balance of the Purchase Price;

 

(c)                                  The reciprocal indemnity described in Subsection 8.l(c)above;

 

(d)                                 Resolutions or affidavits of Buyerauthorizing the transactions described herein; and

 

(e)                                  Such other documents as the Title Company mayreasonably request to effect the transactions contemplated by this Agreement.

 

8.3                                 Reasonable Efforts. Each of the parties hereto agrees to usereasonable efforts to take or cause to be taken all actions reasonablynecessary, proper or advisable to consummate the transactions contemplated bythis Agreement.

 

9. BREACH; REMEDIES

 

9.1                                 Breach by Seller.  Inthe event of a breach of Seller’s obligations herein, Buyer may, at Buyer’selection: (i) terminate this Agreement and receive a return of the EarnestMoney Deposit, and the parties shall have no further rights or obligationsunder this Agreement (except as expressly survive termination); (ii) enforcethis Agreement by suit for specific performance (including costs and expensesof suit, including reasonable attorney’s fees); or (iii) waive such breach andclose the purchase contemplated hereby, notwithstanding such breach.

 

9.2                                 Breach by Buyer. In the event of a breach of Buyer’sobligations herein, Seller’s sole legal and equitable remedy (except forbreaches related to Buyer’s indemnity and insurance obligations) shall be toterminate this Agreement and retain Buyer’s Earnest Money Deposit as AGREEDLIQUIDATED DAMAGES for such breach, and upon payment in full to Seller of suchEarnest Money Deposit, the parties shall have no further rights, claims,liabilities or obligations under this Agreement (except the indemnity andinsurance obligations of Buyer, for which Seller, in the event of a breachthereof by Buyer, shall have available to it all remedies at law or in equity).

 

10. MISCELLANEOUS

 

10.1                           Commissions. Seller and Buyer represent to each other that neither Seller (in the caseof Seller’s representation) nor Buyer (in the case of Buyer’s representation)has dealt with nor does it have any knowledge of any broker or other person whohas or may have any claim against Seller, Buyer or the Shopping Center for abrokerage commission, finder’s fee or like payment arising out of or inconnection with this transaction, other than Broker (which fee shall be paid bySeller pursuant to separate agreement). Buyer agrees to indemnify and holdSeller harmless from any other such claim arising by, through or under Buyer,and Seller agrees to indemnify and hold Buyer harmless from any other suchclaim arising by, through or under Seller.

 

10.2                           Notices. All notices and demands of any kind which either party may berequired or may desire to serve upon the other party in connection with thisAgreement shall be in writing, signed by the party or its counsel identifiedbelow, and shall be served (as an alternative to

 

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personalservice) by overnight courier service or facsimile transmission (followedpromptly by personal service or mailing of a hard copy), at the addresses setforth below:

 
| As  to Seller: | Regency Centers, L.P.  Attention: Barry Argalas  121 West Forsyth Street, Suite 200  Jacksonville, Florida 32202  Telephone: 904/598-7464  Facsimile: 904/354-3448 |
|----------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

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| With a copy to Seller’s Counsel:        | Rogers Towers, P.A.  Attention: William E. Scheu, Esq.  And John R. Ibach, Esq.  1301 Riverplace Blvd., Suite 1500  Jacksonville, Florida 32207  Telephone: 904/398-3911  Facsimile: 904/396-0663                                                                                                                                                                                                                                                                                                                                                                                                                                                       |
|----------------------------------------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                                         |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
| As  to Buyer:                                | Inland Real Estate  Acquisitions, Inc.  Attention: Vice Chairman  2901 Butterfield Road  Oak Brook, Illinois 60523  Telephone: 630-218-4948  Facsimile:   630-218-4935                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |
|                                         |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
| With  a copy to Buyer’s Counsel:        | The Inland Real Estate  Group, Inc.  Attention: General Counsel  2901 Butterfield Road  Oak Brook, Illinois 60523  Telephone: 630-218-8000  Facsimile:  630-219-4900 and  630-571-2360                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
|                                         |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
| With  a copy to Escrow Agent:  (if required) | Chicago Title Insurance  Company  Attention: Nancy Castro  171 North Clark Street  Chicago, Illinois 60601  Telephone: 312-223-2709  Facsimile: 312-223-2108                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            |
|                                         |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
| As  to Broker:                               | Staubach Retail Services  Southeast, L.L.C.  Attention: Thomas Statham  3400 Peachtree Road, N.E., Suite 1100  Atlanta, Georgia 30326  Telephone:                                         Facsimile:                                         |

 

Anysuch notice or demand so secured, shall constitute proper notice hereunder upondelivery to the United States Postal Service or to such overnight courier, orby confirmation of the facsimile transmission.

 

10.3                           Headings.  The titles and headings of thevarious sections hereof are intended solely for means of reference and are notintended for any purpose whatsoever to modify, explain or place anyconstruction on any of the provisions of this Agreement.

 

10.4                           Validity. If any of the provisions of this Agreement or the application thereofto any persons or circumstances shall, to any extent, be invalid orunenforceable, the remainder of

 

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thisAgreement shall not be affected thereby, and every other provision of thisAgreement shall be valid and enforceable to the fullest extent permitted by law.

 

10.5                           Attorneys’ Fees.  Inthe event of any dispute, litigation or other proceeding between the partieshereto to enforce any of the provisions of this Agreement or any right of eitherparty hereunder, the unsuccessful party to such dispute, litigation or otherproceeding shall pay to the successful party all costs and expenses, includingreasonable attorneys’ fees, incurred at trial, on appeal, and in anyarbitration, administrative or other proceedings, all of which may be includedin and as a part of the judgment rendered in such litigation. Any indemnity provisionsherein shall include indemnification for such costs and fees. This section shallsurvive the Closing or a prior termination hereof.

 

10.6                           Time. Time is of the essence of this Agreement, provided that if any dateupon which some action, notice or response is required of any party hereunderoccurs on a weekend or national holiday, such action, notice or response shallnot be required until the next succeeding business day.

 

10.7                           Governing Law.  ThisAgreement shall be governed by the laws of the state in which the Property islocated.

 

10.8                           Gender; Plural; Singular; Terms.  Areference in this Agreement to any gender, masculine, feminine or neuter, shallbe deemed a reference to the other, and the singular shall be deemed to includethe plural and vice versa, unless the context otherwise requires. The terms “herein,”“hereof,” “hereunder,” and other words of a similar nature mean and refer tothis Agreement as a whole and not merely to the specified section orclause in which the respective word appears unless expressly so stated.

 

10.9                           Exhibits. All exhibits attached hereto are incorporated herein by reference tothe same extent as though such exhibits were included in the body of thisAgreement verbatim.

 

10.10                     Counterparts, Further Instruments, Etc. This Agreement may be executed in counterparts,and when so executed shall be deemed executed as one agreement. Seller and Buyershall execute any and all documents and perform any and all acts reasonablynecessary to fully implement this Agreement.

 

10.11                     No Recording. Neither this Agreement nor any memorandum notice or short form hereofshall be recorded.

 

10.12                     Survival. The indemnities, representations and warranties of each of Seller andBuyer, and their respective obligations intended to be performed after theClosing, if any, shall survive for a period of six (6) months after theClosing.

 

10.13                     Successors and Assigns. Buyer shall not assign its rights hereunder except to affiliatedentities. An affiliated entity for purposes hereof shall include any entitywhich is wholly owned by a party or by a parent of a party, or any entity inwhich a party or a parent of a party has an equity interest and is a general ormanaging partner/member. The terms and provisions of this Agreement shall bebinding upon and shall inure to the benefit of the heirs, successors andpermitted assigns of the parties. No third parties, including any brokers or creditors,shall be beneficiaries hereof or entitled to any rights or benefits hereunder.

 

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10.14                     Entire Agreement.  ThisAgreement, together with the exhibits attached hereto, supercedes all prioragreements between the parties as to the Property, if any, and constitutes the entireagreement between the parties with respect to the subject matter hereof. ThisAgreement may not be modified, amended or otherwise changed in any mannerexcept by a writing executed by Buyer and Seller or their respective counselidentified herein.

 

10.15                     Section 1031 Exchange. Buyer acknowledges that Seller may effect a like-kind exchange under Section 1031of the Internal Revenue Code of 1986, as amended (the “Code”). Accordingly,Buyer agrees that it will cooperate with Seller to effect a tax-free exchangein accordance with the provisions of Section 1031 of the Code and theregulations promulgated with respect thereto. Seller shall be solelyresponsible for any additional fees, costs or expenses incurred in connectionwith the like-kind exchange contemplated by this paragraph, and Buyer shall notbe required to execute any document other than an assignment of the contract toa qualified intermediary and a closing statement identifying the qualifiedintermediary as the Seller, nor incur any debt, obligation or expense inaccommodating Seller hereunder. In no event shall Seller’s ability or inabilityto effect a like-kind exchange, as contemplated hereby, in any way delay theClosing or relieve Seller from its obligations and liabilities under thisAgreement. Seller hereby agrees to indemnify and hold harmless Buyer from anyliability, losses or damages incurred by Buyer in connection with or arisingout of the Section 1031 like-kind exchange, including but not limited toany tax liability.

 

10.16                     Buyer’s Conditions to Closing: It is a condition to Buyer’s obligation toclose that as of the date of Closing: (i) all tenant improvement allowances andleasing commissions for any tenant lease shall have been fully paid anddischarged (or credited to Buyer at Closing), and (ii) there shall not thenexist any “Material Default” by any tenant under any lease either on the part ofSeller, as landlord, or any tenant. Material Default as used herein shall include any one or more of thefollowing events have occurred since the Effective Date of this Agreement: (i)a tenant has ceased operation of its business; (ii) a tenant is 60 days late inpayment of Base Rent; or (iii) a tenant has violated an exclusive uselimitation or other restriction contained in a lease.

 

IN WITNESS WHEREOF, theparties hereto have executed this Agreement as of the day and year first abovewritten.

 
|       | “SELLER”                                          |
|------------|-------------------------------------------------------------|
|       |                                                        |
| ** ** | **REGENCY CENTERS, L.P.,**  a Delaware  limited partnership |
|       |                                                        |
|       |                                                        |
|       | By: Regency Centers Corporation, a Florida  corporation     |
|       | Its: General Partner                                        |
|       |                                                        |
|       |                                                        | By: | /s/ Barry Argalas |   |
|       |                                                        | Name: Barry Argalas |
|       |                                                        | Its: Vice President |
|       |                                                        |
|       |                                                        | Date: | 11-10 | , 2004 |
|       |                                                        |   |
|       |                                                        | Tax Identification No: 59-3191743 |
|            |                                                             |  |  |  |  |  |

 

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|       | “BUYER”                                                   |
|------------|---------------------------------------------------------------------|
|       |                                                                |
| ** ** | **INLAND REAL ESTATE ACQUISITIONS,  INC.,** an Illinois corporation |
|       |                                                                |
|       | By:                                                                 | /s/ Jason A. Lazarus |   |
|       | Name:                                                               | Jason A. Lazarus |   |
|       | Title:                                                              | V.P. |   |
|       |                                                                |
|       | Date:                                                               | November 9 | , 2004 |
|       |                                                                |
|       | Tax Identification No: 36-3614035                                   |
|            |                                                                     |  |  |  |  |  |  |

 

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