**Exhibit 10.484**

 

AGREEMENT OFPURCHASE AND SALE

 

THIS AGREEMENT OF PURCHASE AND SALE (this “Agreement”) is made andentered into by and between VV ARIZONA, L.P., a Delaware limited partnership (“Seller”),and INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation (“Purchaser”),to be effective as of the date on which the last of Seller or Purchaserexecutes this Agreement as indicated below (the “Effective Date”).

 

W I T N E S S E T H:

 

ARTICLE IPURCHASE AND SALE

 

1.1                                 Agreement of Purchase and Sale. Subject to the terms and conditionshereinafter set forth and for the consideration stated herein, Seller agrees tosell to Purchaser, and Purchaser agrees to purchase from Seller, the following:

 

(a)                                  All that certain tract or parcel of landsituated in Maricopa County, Arizona, more particularly described on ExhibitA attached hereto and made a part hereof for all purposes, together with allimprovements situated thereon (including, without limitation, a retail shoppingcenter known as Mesa Fiesta containing approximately 194,892 square feet of netrentable area), together with all rights, tenements, hereditaments, casements,privileges and appurtenances pertaining thereto, including any right, title andinterest of Seller in and to any and all adjacent roads, highways andrights-of-way (collectively, the “Realty”);

 

(b)                                 All of Seller’s right, title and interest inand to all tenant leases now or hereafter covering any of the Realty(collectively, the “Leases”) and any security or other deposits actually heldby Seller in connection therewith, all as set forth on the List of Leases (the “Listof Leases”) attached hereto as Exhibit I;

 

(c)                                  All tangible and intangible personal propertyowned by Seller and situated upon and used in connection with the ownership,operation, use, enjoyment or occupancy of the Realty, including, withoutlimitation, all existing surveys, blue prints, drawings, plans andspecifications, assignable telephone numbers and listings, assignable permits, inventoryand equipment, if any (collectively, the “Personalty”);

 

(d)                                 All of Seller’s right, title and interest inand to the name “Mesa Fiesta Shopping Center” (the “Name”) for the Realty;

 

(e)                                  All of Seller’s right, title and interest inand to all assignable warranties and guaranties issued in connection with anyof the Realty and any of the Personalty (collectively, the “Warranties”); and

 

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(f)                                    All of Seller’s right, title and interest inand to all assignable contracts and agreements relating to the upkeep, repair,maintenance or operation of any of the Realty and any of the Personalty(collectively, the “Operating Agreements”).

 

1.2                                 Property Defined. The property and interests described inSections 1.1(a) through 1.1(f) above are hereinafter sometimes referred tocollectively as the “Property.” The Property does not include (i) any of Seller’sinsurance policies applicable to the Realty or Seller’s business or (ii) thatcertain Property Management Agreement, dated July 27, 1998, between Sellerand Vestar Property Management Company, which shall be terminated effective asof the Closing Date, as defined in Section 4.1 below.

 

1.3                                 Permitted Exceptions.  TheProperty shall be conveyed subject to the following matters (collectively, the “PermittedExceptions”):

 

(a)                                  real property taxes for the year of Closing(hereinafter defined) (if such taxes are not yet due and payable) andsubsequent years;

 

(b)                                 the Leases; and

 

(c)                                  matters shown on the Title Commitment (asdefined below), as approved or deemed approved by Purchaser.

 

1.4                                 Purchase Price. Seller shall sell and Purchaser shall purchase the Property for a totalpurchase price of Thirty Six Million Eight Hundred Fifty Four Thousand SevenHundred Thirty Six Thousand and No/100 Dollars ($36,854,736.00) (the “PurchasePrice”).

 

1.5                                 Earnest Money.  Notlater than two (2) Business Days after the Effective Date, Purchaser shalldeliver to the Title Company the sum of Four Hundred Thousand and No/100 Dollars($400,000.00) in immediately available funds as earnest money, to be depositedin an interest bearing account and held pursuant to an Earnest Money EscrowAgreement in the form attached hereto as Exhibit B (such sum, togetherthe Additional Earnest Money, as defined in Section 3.3 below, with allinterest earned thereon, is referred to herein as the “Earnest Money”). TheEarnest Money shall be applied against the Purchase Price at Closing.  In the event that Purchaser fails to deliverthe Earnest Money to the Title Company in the manner and within the timeprovided herein, this Agreement shall automatically terminate, and neitherparty shall have any further obligation hereunder.

 

1.6                                 Payment of Purchase Price.  ThePurchase Price shall be paid by Purchaser to Seller in immediately availablefunds at Closing.

 

1.7                                 Independent Contract Consideration. Simultaneously with the execution of this Agreement, Purchaser shalldeliver to Seller a check in the amount of One Hundred Dollars ($100.00) (the “IndependentContract Consideration”), which amount Seller and Purchaser hereby acknowledgeand agree has been bargained for and agreed to as consideration for Seller’s executionand delivery of this Agreement.  TheIndependent Contract Consideration is in

 

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additionto and independent of any other consideration or payment provided for in thisAgreement, and is nonrefundable in all events.

 

ARTICLE IITITLE AND SURVEY

 

2.1                                 Commitment for Title Insurance. Seller has delivered to Purchaser, aCommitment for Title Insurance (the “Title Commitment”), issued by LawyersTitle Insurance Corporation, through its national accounts office in Richmond,Virginia (the “Title Company”), covering the Realty, showing all mattersaffecting title to the Realty and binding the Title Company to issue an OwnerPolicy of Title Insurance (such policy in the amount of the Purchase Price withextended coverage and the Special Endorsements described below is referred toherein as the “Owner’s Title Policy”). Promptly after the Effective Date,Seller shall request that the Title Company modify the Title Commitment to addPurchaser as the proposed insured, specify that coverage will be equal to thePurchase Price and commit to issue the following endorsements (the “SpecialEndorsements”): 3.1 zoning (long form) with parking and loading docks, owner’scomprehensive, survey, access, P.I.N., subdivision, utility facility,contiguity, environmental lien, removal of creditor’s rights exception, andremoval of the arbitration clause. If the Title Company does not, within seven(7) days after the Effective Date, (i) modify the Title Commitment as requiredabove and (ii) commit in writing to issue one or more of the SpecialEndorsements (subject only to satisfaction of customary underwriting requirements),Purchaser shall either (i) agree that the Special Endorsement in question neednot be issued such that the requirement is waived or (ii) terminate thisAgreement and receive a refund of the Earnest Money. Such election shall bemade prior to the Due Diligence Deadline, as defined in Section 3.3 below.To the extent not previously delivered, the Title Company shall deliver copiesof instruments listed as exceptions to title, the same being as legible as therecord permits. If the Title Commitment shall reveal any exception that isobjectionable to Purchaser, Purchaser may deliver written notice to Sellerobjecting to such exception not later than the Due Diligence Deadline.Purchaser’s failure to deliver written notice of objection prior to the Due DiligenceDeadline shall be deemed approval by Purchaser of all matters shown on theTitle Commitment. Within two (2) Business Days after receipt of Purchaser’snotice of objection, Seller shall indicate in writing whether Seller agrees tocure such objection, with Seller’s failure to respond being deemed an electionnot to cure. Seller shall be under no obligation to cure any title exception,but if Seller shall fail to cure or commit in writing to cure any of Purchaser’sobjections within such two (2) Business Day period, Purchaser may either (i)waive such objection, or (ii) terminate this Agreement. Purchaser’s failure towaive all unsatisfied objections prior to the date scheduled for Closing shallconstitute an election to terminate. Purchaser shall receive a refund of theEarnest Money upon such termination or deemed termination.

 

2.2                                 Survey. Seller has delivered to Purchaser a copy of the latest survey of theProperty prepared by a licensed surveyor (the “Surveyor”). Seller shall causethe Surveyor to prepare an updated survey of the Realty certified as of a dateno more than thirty (30) days prior to delivery thereof (the “Survey”).  The Survey shall meet the requirements of, andbe certified in accordance with, the current requirements for an urban surveyjointly established and adopted by

 

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theAmerican Land Title Association and the American Congress on Surveying andMapping with all Table A options, excluding Items 5 (contours) and Item7(b)(3). Two (2) copies of the Survey shall be delivered to each of Seller,Purchaser and the Title Company not later than ten (10) days after theEffective Date.

 

2.3                                 Owner’s Title Policy. At Closing, the Title Company shall furnishto Purchaser the Owner’s Title Policy with the Special Endorsements, insuringtitle to the Realty, in the amount of the Purchase Price, subject only to thePermitted Exceptions, except:

 

(a)                                  The exception relating to discrepancies,conflicts or shortages in area or boundary lines, or any encroachment or anyoverlapping of improvements which a survey might show shall be modified todelete such exception, except as to shortages in area, and substitute mattersshown on the Survey in lieu thereof;

 

(b)                                 The exception relating to ad valorem taxes shallbe limited to taxes owing for the current and subsequent years; and

 

(c)                                  There shall be no exception for (i) “partiesin possession” other than parties claiming under Leases or (ii) yet to be filedmaterialmen’s or mechanics’ liens.

 

ARTICLE IIISUBMISSION ITEMS/INSPECTION RIGHTS

 

3.1                                 Delivery of Materials. No later than three (3) Business Days afterthe Effective Date, Seller shall deliver to Purchaser in the case of (g), thefollowing items (to the extent in Seller’s possession):

 

(a)                                  Copies of all Warranties and OperatingAgreements, excluding the Management Agreement;

 

(b)                                 Copies of the real estate and tangiblepersonalty ad valorem tax statements for the preceding calendar year on theRealty and the Personal Property;

 

(c)                                  Copies of all operating statements for theRealty for the calendar year 2003 with copies of any interim statements thathave been prepared for calendar year 2004;

 

(d)                                 An inventory of the tangible Personalty, ifavailable;

 

(e)                                  Copies of all plans and specifications of allimprovements constituting a part of the Realty;

 

(f)                                    Certificate(s) of Occupancy for the Realtyand any amendments thereto;

 

(g)                                 Copies of the Leases;

 

(h)                                 A copy of any existing environmentalassessment report for the Realty;

 

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(i)                                     Evidence of the hazard insurance coverages ineffect with respect to the Realty; and

 

(j)                                     Copies of any governmental licenses andpermits, special use, and zoning variances related to the Property.

 

Theitems listed in (a) through (j) above are herein called the “Submission Items.”

 

SELLERMAKES NO REPRESENTATION OR WARRANTY CONCERNING SUBMISSION ITEMS, AND PURCHASERACKNOWLEDGES AND AGREES THAT ANY RELIANCE BY PURCHASER ON OR USE OF SUBMISSIONITEMS SHALL BE AT THE SOLE RISK OF PURCHASER.

 

3.2                                 Right of Inspection. Purchaser shall have the right from thedate of execution of this Agreement until the Due Diligence Deadline, asdefined in Section 3.3 below (and thereafter until the Closing, if thisAgreement is not terminated by Purchaser pursuant to Section 3.3 below),to make physical inspections of the Property, to interview Tenants, and toexamine all books and records maintained by Seller relating to the Property(excluding information relating solely to Seller’s partnership affairs [the “ProprietaryInformation”]) at such place or places as such books and records may belocated. Prior to entry on the Property, Purchaser shall provide evidence ofliability insurance with minimum limits of Two Million Dollars ($2,000,000.00)and otherwise reasonably satisfactory to Seller.  In exercising the privileges granted pursuantto this Section, Purchaser shall avoid interfering with the use and enjoymentof the Property by any Tenant, and Purchaser shall substantially restore theProperty to the condition existing prior to such activities on theProperty.  No physically invasive testingmay be undertaken without the prior written consent of Seller. Purchaser agreesto indemnify, defend and hold Seller harmless from and against claims of thirdparties for any loss, liability, cost, damage or expense (including, withoutlimitation, attorneys’ fees, accountants’ fees, court costs and interest) resultingfrom such inspection and examination. All inspections and Tenant interviews shall occur at reasonable timesagreed upon by Seller and Purchaser and shall be conducted so as not tounreasonably interfere with use of the Property by Seller or the Tenants.Seller shall have the right to have a representative present at any suchinspections or Tenant interviews. Purchaser’s indemnification obligation shallsurvive Closing or termination of this Agreement, as applicable.

 

3.3                                 Due Diligence Period. Purchaser shall have the right to terminatethis Agreement for any reason or no reason by delivering written notice oftermination to Seller and the Title Company (the “Termination Notice”) no laterthan 5:00 p.m. (EST) on December 20, 2004 (the “Due Diligence Deadline”).  If Purchaser affirmatively elects to proceedwith Closing by delivering written notice of acceptance to Seller on or beforethe Due Diligence Deadline or Purchaser fails to deliver a Termination Noticeprior to the Due Diligence Deadline, (i) this Agreement shall remain in fullforce and effect, (ii) Purchaser shall be deemed to have elected to close and(ii) Purchaser shall, on or before the Due Diligence Deadline, deliver toEscrow Agent the sum of Eight Hundred Thousand and No/100 Dollars ($800,000.00)(the “Additional Earnest Money”) to be treated as Earnest Money for allpurposes and applied against the Purchase Price at Closing.  If Purchaser timely delivers a TerminationNotice, the Earnest Money shall be

 

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refundedto Purchaser and the parties shall be released from liability hereunder, exceptfor any liability that expressly survives termination.

 

ARTICLE IVCLOSING

 

4.1                                 Time and Place. The closing of the transaction contemplatedhereby (“Closing”) shall take place via escrow with the Title Company at 10:00a.m., Chicago, Illinois time, on or before December 23, 2004 (the “ClosingDate”), and/or at such other location and at such time as may be agreed upon inwriting by Seller and Purchaser.  Time isof the essence with respect to the Closing.

 

4.2                                 Seller’s Obligations at Closing. At Closing, Seller shall:

 

(a)                                  deliver to Purchaser a Special Warranty Deed(the “Deed”), executed and acknowledged by Seller in the form attached heretoas Exhibit C (with such reasonable changes thereto as may be required bythe Title Company to comply with the laws of the State of Arizona), conveyingthe Realty to Purchaser free and clear of all encumbrances except the PermittedExceptions;

 

(b)                                 join with Purchaser in the execution andacknowledgment of a Bill of Sale and Assignment (the “Bill of Sale”) in theform attached hereto as Exhibit D, conveying the Personalty, the Name,the Warranties, and the Operating Agreements (excluding the ManagementAgreement) to Purchaser free and clear of all encumbrances except the PermittedExceptions;

 

(c)                                  join with Purchaser in the execution andacknowledgment of an Assignment and Assumption of Tenant Leases (the “LeaseAssignment”) in the form attached hereto as Exhibit E, conveying toPurchaser the Leases and all security and other deposits held by Seller withrespect to the Leases free and clear of all encumbrances except the PermittedExceptions;

 

(d)                                 join with Purchaser in the execution of aClosing Statement (the “Closing Statement”);

 

(e)                                  execute and deliver to Purchaser a FIRPTAAffidavit in the form attached hereto as Exhibit F;

 

(f)                                    deliver to Purchaser possession and occupancyof the Property, subject to the Permitted Exceptions;

 

(g)                                 join with purchaser in the execution of aletter to each Tenant under the Leases (collectively, the “Tenant Letters”) inthe form attached hereto as Exhibit G, the Tenant Letters to be preparedby Seller and delivered to the Tenants promptly after Closing by Purchaser;

 

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(h)                                 deliver to Purchaser such evidence asPurchaser and/or the Title Company may reasonably require as to the authorityof the person or persons executing documents on behalf of Seller;

 

(i)                                     request the Title Company to issue the Owner’sTitle Policy to Purchaser, upon payment of the premium therefor;

 

(j)                                     deliver to Purchaser all keys andcombinations to locks on the Property in Seller’s possession;

 

(k)                                  deliver to Purchaser all original Leases andassumed Operating Agreements in Seller’s possession or control;

 

(l)                                     deliver to Purchaser all books, records,advertising materials, and correspondence in the possession of Sellerpertaining to the Property and all documents in the possession of Sellerpertaining to Tenants, including, but not by way of limitation, allapplications, correspondence and credit reports relating to each such Tenant;

 

(m)                               deliver to Purchaser all permits issued by the appropriate governmentalauthorities and utility companies when the improvements on the Realty werecompleted, to the extent available;

 

(n)                                 deliver to the Title Company an affidavitduly executed by Seller stating that there are no unpaid bills or claims(except for bills or expenses to be prorated pursuant to this Agreement atClosing) for labor performed or materials furnished in connection with theProperty;

 

(o)                                 deliver to Purchaser a certificate dulyexecuted by Seller to the effect that, to Seller’s actual knowledge, all of therepresentations and warranties set forth in Section 5.1 hereof are trueand correct in all material respects as of the Closing Date, except due to aChanged Circumstance which has been disclosed in writing to Purchaser pursuantto Section 4.7 below;

 

(p)                                 deliver to Purchaser estoppel certificates(the “Tenant Estoppel Certificates”) signed by not less than seven (7) of theeight (8) Tenants leasing space in the Property, in the form attached hereto asExhibit H or in the form customarily issued by the Tenant in question;provided that (i) the foregoing shall merely be a condition to Closing andSeller shall not be deemed to be in default under this Agreement if Seller isunable to deliver such Tenant Estoppel Certificates from the requisite Tenantsas long as Seller uses commercially reasonable efforts to obtain the same, (ii)Seller may extend the Closing Date for up to fifteen (15) days in order topursue the obtaining of such Tenant Estoppel Certificates, notwithstanding Section 4.1above, and (iii) if Seller obtains Tenant Estoppel Certificates from seven (7)Tenants but the eighth Tenant has not delivered a Tenant Estoppel Certificateas of the Closing Date (including the 15-day extension provided above if Sellershall so elect), Seller shall deliver a Landlord’s Certificate (the “Landlord’sCertificate”) as to the tenant and the lease for which an estoppel has not been

 

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received. The Landlord’s Certificate shall verify, to Seller’s actualknowledge, the information set forth in the form Tenant Estoppel Certificate,as to the missing estoppel. Any exception in the Landlord’s Certificate shallbe subject to the provisions of Section 4.7 below.

 

(q)                                 deliver to the appropriate party an affidavitof Property value duly executed by Seller for the purpose of recording theDeed.

 

4.3                                 Purchaser’s Obligations at Closing. At Closing, Purchaser shall:

 

(a)                                  pay to Seller the Purchase Price inimmediately available funds;

 

(b)                                 join with Seller in execution of the Bill ofSale, the Lease Assignment, the Closing Statement and the Tenant Lettersdescribed in Sections 4.2(b), 4.2(c), 4.2(d), and 4.2(g) hereof, respectively;and

 

(c)                                  deliver to Seller such evidence as Sellerand/or the Title Company may reasonably require as to the authority of theperson or persons executing documents on behalf of Purchaser.

 

4.4                                 Prorations.

 

(a)                                  The following shall be apportioned as of theClosing Date with respect to the Property:

 

(i)                                     rents collected under the Leases for themonth of Closing and each Tenant’s portion of operating expenses;

 

(ii)                                  percentage rent payable under the Leases(with any percentage rent received by Purchaser after Closing being allocatedand prorated across the entire calendar year in which percentage rent accruedas opposed to only the months in which percentage rent is actually payable orcollected);

 

(iii)                               real property and tangible personal property ad valorem taxes with respectto the Realty and the Personalty for the current year, with any apportionmentof such taxes for a tax year as to which either the tax rate or the assessedvaluation, or both, have not yet been fixed to be made upon the basis of thetax rate and/or assessed valuation last fixed; provided that Seller andPurchaser agree that, to the extent the actual taxes for the current yeardiffer from the amount so apportioned at Closing, Seller and Purchaser willmake all necessary adjustments by appropriate payments between themselvesfollowing Closing;

 

(iv)                              current expenses under the Operating Agreements that will remain ineffect after Closing; and

 

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(v)                                 gas, electricity, water, trash disposal andother utility charges with respect to the Realty.

 

(b)                                 In making such apportionments, Purchasershall be entitled to rents and other income earned and due from the Propertywith respect to the Closing Date, and Purchaser shall be responsible for realproperty taxes and other expenses accrued or incurred with respect to theClosing Date.  All such apportionmentsshall be subject to post-Closing adjustments as necessary to reflect laterrelevant information not available at Closing (including the amount ofpercentage rents due after Closing) and to correct any errors made at Closingwith respect to such apportionments and the party receiving more than it wasentitled to hereunder shall reimburse the other party hereto in the amount of suchoverpayment within thirty (30) days after receiving written demand therefor. Notwithstandingthe foregoing, such apportionments shall be deemed final and not subject tofurther post-Closing adjustments if no such adjustments have been requested aftera period of thirty (30) days from such time as all necessary information isavailable to make a complete and accurate determination of such apportionments;provided that any prorated percentage rent due to Seller shall be paid toSeller upon receipt without request or demand. All other matters with respect to apportionments shall be governed bythe Closing Statement. The provisions of this Section 4.4(b) shall survivethe Closing.

 

(c)                                  At Closing, Seller shall credit to theaccount of Purchaser against the Purchase Price allocable to the Realty anysecurity deposits or prepaid rent, the continuing obligations for which are actuallyand explicitly transferred to Purchaser at Closing pursuant to any Leasesexecuted by Seller or Seller’s predecessors in interest, as lessor, which willcontinue in effect after Closing, and Seller shall retain all security depositsand prepaid rent.

 

(d)                                 After Closing, Purchaser shall usecommercially efforts to collect any delinquent rents or other payments due asof the Closing Date, and shall pay such amounts to Seller within ten (10)Business Days after collection.  Anyrents and other payments collected after Closing shall be applied first tocurrent charges and then to delinquencies. If delinquencies remain unpaidwithin ninety (90) days after the Closing Date, Seller shall be entitled topursue its own collection efforts, but Seller shall not have any right to fileany action to evict any Tenant that is delinquent.

 

4.5                                 Closing Costs. Seller shall pay (a) the fees of anycounsel representing it in connection with the transaction contemplated hereby,(b) the premium for the Owner’s Title Policy standard coverage (excludingextended coverage and any endorsements desired by Purchaser), and (c) one-half(1/2) of any escrow fees charged by the Title Company. Purchaser shall pay (a)the fees of any counsel representing Purchaser in connection with thetransaction contemplated hereby, (b) the premium for the Owner’s Title Policyextended coverage and any endorsements obtained by Purchaser, (c) the cost ofthe Survey, (d) the cost of any tests, inspections or environmental siteassessments conducted or obtained by Purchaser, (e) transfer taxes, documentarystamps and similar charges (if any, Seller having been advised that Arizonadoes not impose such taxes, stamps or charges), (f) recording fees due inconnection with the recording of the Deed and other conveyance documents; and(g) one-half (1/2) of any escrow

 

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feescharged by the Title Company. Purchaser shall also reimburse Seller for thecost of the Phase I environmental site assessment obtained by Seller from URSCorporation (or one of its affiliates); provided that issuer of such assessmentdelivers a reliance letter to Purchaser.  All other costs and expenses incident to thetransaction contemplated hereby and the closing thereof shall be paid by theparty incurring the same.

 

4.6                                 Closing Constitutes Waiver. Notwithstanding Article V and without limiting Section 9.1below, if any of the representations or warranties of Seller contained in this Agreementor in any certificate delivered in connection herewith are materially false or inaccurate,or Seller is in breach or default of any of its obligations under thisAgreement, but Purchaser nonetheless closes the transaction hereunder andpurchases the Property, then (i) Seller shall have no liability or obligationrespecting such false or inaccurate representations or warranties or otherbreach or default (and any cause of action resulting therefrom shall terminate uponthe Closing) in the event and to the extent that on or prior to the Closing,Purchaser shall have had actual knowledge of the false or inaccuraterepresentations or warranties or other breach or default, and (ii) to theextent the Submission Items furnished to Purchaser contain provisions orinformation that are inconsistent with the foregoing representations andwarranties (unless Seller had knowledge of such inconsistency and willfullyfailed to disclose the same to Purchaser), such representations and warrantiesshall be deemed to be modified to the extent necessary to eliminate suchinconsistency and to conform such representations and warranties to suchSubmission Items.

 

4.7                                 Changed Circumstance.  IfSeller obtains actual knowledge of any changed circumstance that causes anyrepresentation or warranty of Seller to no longer be true in any materialrespect (the “Material Changed Circumstance”), Seller shall promptly sendwritten notice thereof to Purchaser describing the Material ChangedCircumstance and the manner in which it has made any of Seller’srepresentations or warranties herein untrue. As used herein, a change in Seller’srepresentation and warranty shall be deemed “material” if (i) the market value ofthe Property is decreased by more than $100,000 as a result of such MaterialChanged Circumstance, or (ii) it is a Lease Status Representation (as definedin Section 5.1(c) below.  If Purchaserdoes not approve the Material Changed Circumstance in writing on or before the ClosingDate, Seller shall not be in default and Seller shall have the right, but notthe obligation, to attempt to remedy the Material Changed Circumstance.  In the Seller fails or refuses to remedy theMaterial Changed Circumstance to the reasonable satisfaction of Purchaser on orbefore the Closing Date, Seller shall have the right to extend the Closing Datefor up to thirty (30) days to attempt to remedy the same.  If Seller has not remedied the MaterialAdverse Change on or before the Closing Date (including the extension provided above),Purchaser shall, as its sole and exclusive remedy,  either (i) waive and approve the MaterialChanged Circumstance, in which event the applicable representation or warrantyshall be deemed modified, or (ii) terminate this Agreement, in which event theEarnest Money shall be returned to Purchaser and neither Seller nor Purchasershall have any further rights or obligations hereunder one to the other exceptwith respect to these obligations which expressly survive the termination ofthis Agreement.

 

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ARTICLE VREPRESENTATIONS, WARRANTIES AND COVENANTS

 

5.1                                 Representations and Warranties of Seller. Seller hereby makes the followingrepresentations and warranties to Purchaser, which representations and warrantiesshall survive Closing for a period of one hundred eighty (180) days, but nolonger:

 

(a)                                  Seller is a limited partnership, dulyorganized and validly existing in good standing under the laws of the State ofDelaware.

 

(b)                                 Seller has complete capacity, power andauthority to enter into this Agreement and all other agreements to be executedand delivered by Seller pursuant to the terms and provisions hereof, to performits obligations hereunder and thereunder, and to consummate the transactioncontemplated hereby.

 

(c)                                  (i) All Leases are shown on the list attachedhereto as Exhibit I, the Leases are all in full force and effect and thetenants thereunder are in occupancy, open for business and paying full rentthereunder; (ii) to Seller’s actual knowledge, no Leases are in default forfailure to pay rent and other sums when due, and there exists no material non-monetarydefault under the Leases; (iii) to Seller’s actual knowledge, Seller has not failedto perform its material obligations under the Leases (the representations inthe foregoing subsections (i), (ii) and (iii) being referred to herein as “LeaseStatus Representations”) ; (iv) there are no oral agreements with any Tenants,the breach of which would have a material adverse effect on the rental incomefrom the Realty; (v) all leasing commissions due for current terms of Leasesnow in effect will be paid at or prior to Closing; (vi) Seller has received nowritten notice of any condemnation proceedings instituted against the Realtyand has no notice of any threatened condemnation proceedings with respect tothe Property; (vii) to Seller’s actual knowledge, Seller has received nowritten notice that the Property is subject to any remedial obligations under anyapplicable laws; (viii) to Seller’s actual knowledge, there are no materialactions or claims affecting Seller or the Property being currently prosecuted;(ix) Seller has no actual knowledge of any threatened actions or claimsaffecting Seller or the Property; and (x) Seller has received no written noticethat the Realty fails to comply with any applicable governmentalregulations.  As used herein, anyreference to “knowledge” with respect to Seller shall mean the current, actual(as opposed to the constructive, deemed or imputed) knowledge of KathleenBurgi-Sandell (as Seller’s primary asset manager), without any duty ofinvestigation or inquiry. Notwithstanding the foregoing, there shall be no personal liability on thepart of Kathleen Burgi-Sandell hereunder.

 

5.2                                 Covenants of Seller.  Seller hereby covenants with Purchaser that,until the Closing, Seller will:

 

(a)                                  perform all of Seller’s material obligationsunder the Leases;

 

(b)                                 advise Purchaser immediately if Selleracquires actual knowledge of any litigation or administrative proceedingsinstigated or threatened against the Property;

 

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(c)                                  (i) maintain the casualty loss insurance nowin effect for the Realty and tangible Personalty; (ii) not enter into any newLeases nor modify any of the Leases without first obtaining the written consentof Purchaser, which consent shall not be unreasonably withheld or delayed;(iii) not enter into any service, employment or management contract pertainingto or encumbering the Property unless the same is cancelable at or prior toClosing without penalty or premium, without first obtaining the written consentof Purchaser, which consent shall not be unreasonably withheld or delayed; (iv)continue to operate the Property in substantially the same manner it is being operatedon the date of execution of this Agreement; (v) not voluntarily create any new lienon the Property that will not be discharged at Closing out of the PurchasePrice; and (vi) not voluntarily create any non-lien encumbrance or modify, extend,renew or change an existing non-lien encumbrance on title to the Realty (exceptnew Leases permitted hereby) without first obtaining the written consent ofPurchaser, which consent shall not be unreasonably withheld or delayed; and

 

(d)                                 pay all tenant improvement and other expensesagreed to be paid by Landlord under the Leases and pay all real estatecommissions agreed to be paid by Seller in respect of the current term of saidLeases, but this agreement shall not extend to (i) expenses or commissions relatingto Lease expansions or renewals occurring after the Effective Date, or (ii) anycommissions, allowances or concessions payable with respect to any Leases thatare signed by Seller after the Effective Date with Purchaser’s approval, theforegoing expenses in items (i) and (ii) being Purchaser’s costs if Closingoccurs.

 

5.3                                 Representations and Warranties of Purchaser. Purchaser hereby makes the followingrepresentations and warranties to Seller, which representations and warrantiesshall be deemed to be restated at Closing and shall survive Closing:

 

(a)                                  Purchaser is a corporation, duly organizedand validly existing in good standing under the laws of the State of Illinois.

 

(b)                                 Purchaser has complete capacity, power andauthority to enter into this Agreement and all other agreements to be executedand delivered by Purchaser pursuant to the terms and provisions hereof, toperform its obligations hereunder and thereunder, and to consummate thetransaction contemplated hereby.

 

(c)                                  Purchaser will not use the assets of anemployee benefit plan as defined in Section 3(3) of the EmployeeRetirement Income Security Act of 1974 (“ERISA”) and covered under Title I,Part 4 of ERISA or Section 4975 of the Internal Revenue Code of 1986, asamended, in the performance or discharge of its obligations hereunder,including the acquisition of the Property, and Purchaser will not assign itsinterest hereunder to any person or entity which does not expressly make thisrepresentation and warranty for the benefit of Seller.

 

(d)                                 (i) Neither Purchaser nor any person orentity which controls Purchaser is currently identified by the Office ofForeign Assets Control, Department of the Treasury (“OFAC”) or otherwisequalifies as an Embargoed Person; (ii) Purchaser is not in

 

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violation of any applicable law relating to anti-money laundering oranti-terrorism, including, without limitation, those related to transactingbusiness with Embargoed Persons or the requirements of the Uniting andStrengthening America by Providing Appropriate Tools Required to Intercept andObstruct Terrorism Act of 2001, U.S. Public Law 107-56, and the relatedregulations issued thereunder, including temporary regulations (collectively,as the same may be amended from time to time, the “Patriot Act”); and (iii)Purchaser shall not (A) be or become subject at any time to any law,regulation, or list of any government agency (including, without limitation,the list maintained by OFAC and accessible through the OFAC website) thatprohibits or limits Seller from conducting business with Purchaser or (B) failto provide documentary and other evidence of Purchaser’s identity as may berequested by Seller at any time to enable Seller to verify Purchaser’s identityor to comply with any applicable law or regulation, including, withoutlimitation, the Patriot Act.

 

ARTICLE VIDEFAULT

 

6.1                                 Default by Purchaser.  Inthe event that Purchaser fails to consummate this Agreement for any reason,except Seller’s default, Seller shall be entitled to terminate this Agreementand receive the Earnest Money as liquidated damages.

 

6.2                                 Default by Seller. In the event that Seller fails toconsummate this Agreement for any reason, except Purchaser’s default, Purchasershall be entitled, as its sole and exclusive remedies, either (a) to enforcespecific performance of this Agreement, or (b) to terminate this Agreement andreceive a refund of the Earnest Money, it being the intention of Seller and Purchaserthat specific performance should be awarded, if such performance is possible,even though monetary damages or another remedy is otherwise available atlaw.  Under no circumstance will Sellerbe liable for consequential or other damages. Notwithstanding the foregoing, if specific performance is not availablebecause of an intentional default by Seller in contravention of this Agreement,Purchaser may recover the out of pocket costs incurred by Purchaser inconnection with this Agreement up to a maximum of Twenty Thousand Dollars ($20,000.00).

 

6.3                                 Limitation of Liability. Notwithstanding anything to the contrary contained in this Agreement orany documents executed in connection herewith, if the Closing of the transactioncontemplated hereunder shall have occurred, the aggregate liability of Sellerarising pursuant to or in connection with the representations, warranties,covenants or other obligations (whether express or implied) of Seller underthis Agreement (or any document or certificate executed or delivered inconnection herewith) shall not exceed One Million and No/100 Dollars ($1,000,000.00),absent fraud by Seller.  The provisionsof this Section 6.3 shall survive the Closing.

 

6.4                                 No Limitation of Indemnification Obligations. Sections 6.1, 6.2 and 6.3 shall not limit the liability of any partyfor, or the ability of any party to fully enforce, any indemnification provisionof this Agreement.

 

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ARTICLE VIIRISK OF LOSS

 

7.1                                 In the event of any damage or destruction toany portion of the Property prior to the Closing Date, the estimated cost ofrepair of which, as determined by a third party contractor selected by Sellerand approved by Purchaser, is in excess of Five Hundred Thousand Dollars ($500,000.00),or any tenant under a Lease has a right to terminate its Lease by virtue ofsuch damage or destruction unless such termination right is waived in writingby such tenant, Purchaser may cither terminate this Agreement and receive arefund of the Earnest Money, or Purchaser may elect to consummate thetransaction contemplated hereby, in which event Seller’s right to all insuranceproceeds resulting from such damage or destruction shall be assigned in writingby Seller to Purchaser (less any amounts previously expended by Seller to restorethe Property and less any rent loss or business interruption insurance proceedsattributable to the period prior to Closing), Seller shall credit Purchaser theamount of its insurance deductible at Closing and Seller shall have no furtherobligation to Purchaser with regard to such damage or destruction. In the eventof any damage or destruction to the Property prior to the Closing Date, theestimated cost of repair of which, as determined by a third party contractorselected by Seller and approved by Purchaser, is Five Hundred Thousand Dollars($500,000.00) or less and no tenant under a Lease has a right to terminate itsLease by virtue of such damage or destruction (unless such termination right iswaived in writing by such tenant), Purchaser shall have no right to terminatethis Agreement as a result thereof, and all of Seller’s right to all insuranceproceeds resulting from such damage or destruction shall be assigned in writingby Seller to Purchaser (less any amounts previously expended by Seller torestore the Property and less any rent loss or business interruption insuranceproceeds attributable to the period prior to Closing), Seller shall creditPurchaser the amount of its insurance deductible at Closing and Seller shallhave no further obligation to Purchaser with regard to such damage ordestruction.

 

7.2                                 In the event of a taking by condemnation orsimilar proceedings or actions of all or any material portion of the Property,prior to the Closing Date, Purchaser shall have the option to terminate thisAgreement upon written notice to Seller prior to Closing. If Purchaser does notexercise its option under the immediately preceding sentence of this Section toterminate this Agreement, then the Agreement shall remain in full force andeffect and Seller shall assign or pay to Purchaser, at Closing, Seller’s entireinterest in and to any and all condemnation awards or proceeds from any suchproceedings or actions in lieu thereof (less any reasonable costs incurred toobtain to awards). Any termination under this Section 7.2 shall constitutea termination of all of Purchaser’s rights to acquire the Property.

 

7.3                                 The parties shall have the rights and dutiesset forth in this Article VII rather than as prescribed by the UniformVendor and Purchaser Risk Act.

 

ARTICLE VIIICOMMISSIONS

 

8.1                                 Each party represents to the other that therehas been no broker, finder, real estate agent or similar agent engaged inconnection with the sale of the Property from Seller to Purchaser ascontemplated hereby, except for CB Richard Ellis Real Estate Services, Inc.,which

 

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hasserved exclusively as Seller’s broker (“Seller’s Broker”). Seller shall pay anycommission due to Seller’s Broker pursuant to a separate agreement; providedthat Seller’s obligation to pay, and the right of Seller’s Broker to receive,any such commission is expressly conditioned upon consummation of the Closingand Seller’s receipt of the Purchase Price hereunder. Each party agrees thatshould any claim be made for brokerage commissions or finder’s fees by anybroker, finder or agent by, through or on account of any acts of theindemnifying party or its agents, employees or representatives, theindemnifying party will hold the other party free and harmless from and againstany and all loss, liability, cost, damage and expense (including, withoutlimitation, attorneys’ fees, accountants’ fees, court costs and interest) inconnection therewith. The provisions of this Section 8.1 shall survive theClosing.

 

ARTICLE IXMISCELLANEOUS

 

9.1                                 Disclaimers.  PURCHASER AKNOWLEDGES ANDAGREES THAT, EXCEPT AS EXPRESSLY SPECIFIED IN SECTION 5.1 OF THISAGREEMENT OR ANY INSTRUMENT TO BE DELIVERED AT CLOSING, SELLER HAS NOT MADE,AND SELLER HEREBY SPECIFICALLY DISCLAIMS, ANY WARRANTY OR REPRESENTATION, ORALOR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, OR CONCERNING (a) THE NATUREAND CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOILAND GEOLOGY, AND THE SUITABILITY THEREOF AND OF THE PROPERTY FOR ANY AND ALLACTIVITIES AND USES WHICH PURCHASER MAY ELECT TO CONDUCT THEREON; (b) THEEXISTENCE, NATURE AND EXTENT OF ANY RIGHT-OF-WAY, LEASE, RIGHT TO POSSESSION ORUSE, LIEN, ENCUMBRANCE, LICENSE, RESERVATION, CONDITION OR OTHER MATTERAFFECTING TITLE TO THE PROPERTY; OR (c) WHETHER THE USE OR OPERATION OF THEPROPERTY COMPLIES WITH ANY AND ALL LAWS, ORDINANCES OR REGULATIONS OF ANYGOVERNMENT OR OTHER REGULATORY BODY. PURCHASER AGREES TO ACCEPT THE PROPERTY,AND ACKNOWLEDGES THAT THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADEBY SELLER, ON AN “AS IS, WHERE IS, AND WITH ALL FAULTS” BASIS. PURCHASEREXPRESSLY ACKNOWLEDGES THAT EXCEPT AS OTHERWISE EXPRESSLY SPECIFIED IN SECTION 5.1OF THIS AGREEMENT, IF ANY, AND EXCEPT FOR ANY WARRANTY OF TITLE CONTAINED INTHE DEED TO BE DELIVERED BY SELLER TO PURCHASER AT CLOSING, SELLER MAKES NOREPRESENTATION OR WARRANTY OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ORARISING BY OPERATION OF LAW, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOTLIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY,MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE (OTHER THAN SELLER’SWARRANTY OF TITLE TO BE SET FORTH IN THE DEED), ZONING, TAX CONSEQUENCES,PHYSICAL OR ENVIRONMENTAL CONDITION, UTILITIES, OPERATING HISTORY ORPROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE PROPERTYWITH GOVERNMENTAL LAWS, THE TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION(INCLUDING, WITHOUT LIMITATION, THE SUBMISSION ITEMS) PROVIDED BY OR ON BEHALF

 

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OFSELLER TO PURCHASER, OR ANY OTHER MATTER OR THING REGARDING THE PROPERTY.  PURCHASER ACKNOWLEDGES THAT EXCEPT ASEXPRESSLY SPECIFIED IN ANY WRITTEN INSTRUMENT DELIVERED BY SELLER TO PURCHASER,SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, ORAL OR WRITTEN,EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW REGARDING OR WITH RESPECT TOANY SUCH INFORMATION (INCLUDING, WITHOUT LIMITATION, THE SUBMISSION ITEMS)PROVIDED OR TO BE PROVIDED BY SELLER REGARDING THE PROPERTY.

 

FURTHER, AND WITHOUT IN ANY WAY LIMITING ANY OTHER PROVISION OF THISAGREEMENT, SELLER HAS NOT MADE AND MAKES NO REPRESENTATION OR WARRANTY, ANDHEREBY SPECIFICALLY DISCLAIMS ANY WARRANTY OR REPRESENTATION, ORAL OR WRITTEN,PAST, PRESENT OR FUTURE, WITH RESPECT TO THE PRESENCE OR DISPOSAL ON OR BENEATHTHE PROPERTY (OR ANY PARCEL IN PROXIMITY THERETO) OF HAZARDOUS SUBSTANCES ORMATERIALS WHICH ARE CATEGORIZED AS HAZARDOUS OR TOXIC UNDER ANY LOCAL, STATE ORFEDERAL LAW, STATUTE, ORDINANCE, RULE OR REGULATION PERTAINING TO ENVIRONMENTALOR SUBSTANCE REGULATION, CONTAMINATION, CLEANUP OR DISCLOSURE (INCLUDING,WITHOUT LIMITATION, ASBESTOS) AND SHALL HAVE NO LIABILITY TO PURCHASERTHEREFOR. WITHOUT LIMITATION OF THE PRECEDING SENTENCE, SELLER SPECIFICALLYDISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING THE ACCURACY OF ANYENVIRONMENTAL REPORTS WHICH MAY BE INCLUDED WITHIN THE SUBMISSION ITEMS. BYACCEPTANCE OF THIS AGREEMENT AND THE DEED TO BE DELIVERED BY SELLER AT CLOSING,PURCHASER ACKNOWLEDGES THAT PURCHASER’S OPPORTUNITY FOR INSPECTION ANDINVESTIGATION OF THE PROPERTY (AND OTHER PARCELS IN PROXIMITY THERETO) WILL BEADEQUATE TO ENABLE PURCHASER TO MAKE PURCHASER’S OWN DETERMINATION WITH RESPECTTO THE PRESENCE OR DISPOSAL ON OR BENEATH THE PROPERTY (AND OTHER PARCELS INPROXIMITY THERETO) OF SUCH HAZARDOUS SUBSTANCES OR MATERIALS, AND PURCHASERACCEPTS THE RISK OF THE PRESENCE OR DISPOSAL OF ANY SUCH SUBSTANCES ORMATERIALS.

 

PURCHASER, AND ANYONE CLAIMING, BY, THROUGH OR UNDER PURCHASER, HEREBYFULLY RELEASES, DISCHARGES, AND HOLDS HARMLESS SELLER, ITS EMPLOYEES, OFFICERS,DIRECTORS, PARTNERS, REPRESENTATIVES AND AGENTS, AND THEIR RESPECTIVE PERSONALREPRESENTATIVES, HEIRS, SUCCESSORS AND ASSIGNS FROM ANY COST, LOSS, LIABILITY,DAMAGE, EXPENSE, DEMAND, ACTION OR CAUSE OF ACTION ARISING FROM OR RELATED TOANY CONSTRUCTION DEFECTS, ERRORS, OMISSIONS, OR OTHER CONDITIONS AFFECTING THEPROPERTY; PROVIDED THAT THIS SHALL NOT RELEASE SELLER FROM CLAIMS ARISING, IFANY, AS A RESULT OF ANY WRITTEN REPRESENTATION OR WARRANTY OF SELLER BEINGFALSE WHEN MADE.  PURCHASER FURTHERACKNOWLEDGES AND AGREES THAT THIS RELEASE

 

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SHALLBE GIVEN FULL FORCE AND EFFECT ACCORDING TO EACH OF ITS EXPRESSED TERMS ANDPROVISIONS, INCLUDING, BUT NOT LIMITED TO, THOSE RELATING TO UNKNOWN ANDSUSPECTED CLAIMS, DAMAGES AND CAUSES OF ACTION.  THIS COVENANT RELEASING SELLER SHALL BEBINDING UPON PURCHASER, ITS PERSONAL REPRESENTATIVES, HEIRS, SUCCESORS AND ASSIGNS.

 

THE PROVISIONS OF THIS SECTION 10.1(INCLUDING, WITHOUT LIMITATION, THE WAIVER AND RELEASE OF CLAIMS CONTAINEDHEREIN) SHALL SURVIVE THE CLOSING.

 

9.2                                 Assignment. This Agreement may not be assigned by Purchaser without the prior writtenconsent of Seller, which approval may be granted or withheld in Seller’s solediscretion, provided that Purchaser’s assignee assumes all of the obligationsof Purchaser under this Agreement. Notwithstanding the foregoing, Purchaser may, without Seller’s consent,assign its rights under this Agreement to any entity that is wholly owned orcontrolled by Purchaser, any of its principals or Inland Western Retail RealEstate Trust, Inc. In the event of an assignment, the assignee shall assume allobligations of this Agreement, but Purchaser shall not be released from primaryliability for payment and performance under the Agreement.

 

9.3                                 Notices.  Any notice pursuant heretoshall be given in writing by (a) personal delivery, or (b) overnight courier(such as Federal Express), or (c) prepaid telegram, telex or facsimiletransmission (provided that such telegram, telex or facsimile transmission isconfirmed by overnight courier in the manner previously described), sent to theintended addressee at the address set forth below, or to such other address orto the attention of such other person as the addressee shall have designated bywritten notice sent in accordance herewith, and shall be deemed to have beengiven either at the time of personal delivery, or in the case of expedited deliveryservice or mail, as of the date of first attempted delivery at the address andin the manner provided herein, or, in the case of telegram, telex or facsimiletransmission, upon delivery. Unless changed in accordance with the precedingsentence, the addresses for notices given pursuant hereto shall be as follows:

 

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(a)                                  If to Seller:

 

VV Arizona, L.P.

c/o INVESCO Real Estate Germany, L.P.

1166 Avenue of the Americas

26th Floor

New York, MY 10036-2727

Phone No.: (212) 278-9000

Facsimile No.: (212) 278-9418

Attention: Christian Goebel, Director

 

With a copy to:

 

J. Greer Cummings, Jr.

Boult Cummings Conners & Berry PLC

414 Union Street, Suite 1600

Post Office Box 198062

Nashville, Tennessee 37219

Telephone:    (615) 252-2316

Facsimile:     (615) 252-6316

 

(b)                                 Ifto Purchaser:

 

Inland Real Estate Acquisitions, Inc.

2901 Butterfield Road

Oak Brook, Illinois 60523

Attn: G. Joseph Cosenza

Phone No.: (630) 218-8000

Facsimile No.: (630) 218-4935

 

With a copy to:

 

Dennis K. Holland, Esq.

The Inland Real Estate Group, Inc.

2900 Butterfield Road

Oak Brook, Illinois 60523

Telephone:     (630) 218-8000

Facsimile:      (630) 218-4900

 

9.4                                 Modification.  ThisAgreement cannot under any circumstance be modified orally, and no agreementshall be effective to waive, change, modify or discharge this Agreement inwhole or in part unless such agreement is in writing and is signed by bothSeller and Purchaser

 

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9.5                                 Confidentiality and Publicity.  (a)Purchaser recognizes, understands and agrees that Purchaser will become awareof certain information regarding the ownership and operation of the Property,including, specifically, without limitation, the information to be provided to Purchaserpursuant to Section 3.1 hereof and the information to be obtained byPurchaser pursuant to Section 3.2 hereof. Purchaser agrees that, unless required pursuant to a subpoena properlyissued by a court of competent jurisdiction, or as may be required in Purchaser’sreasonable opinion to be disclosed in any SEC or other regulatory filings, itshall not disclose any such information to any third party or parties, exceptto agents, employees or independent contractors advising or assisting Purchaserwith the transaction contemplated hereby, potential or actual investors,potential and actual lenders of all or a portion of the Purchase Price;provided that such parties likewise agree or are otherwise bound to keep suchinformation confidential.

 

(b)                                 Purchaser and Seller each hereby covenantsthat (i) prior to the Closing neither Purchaser nor Seller shall issue anypress release or public statement (a “Release”) with respect to the transactionwithout the prior written consent of the other party hereto, except to theextent required by applicable law, and (ii) after the Closing, any Releaseissued by Purchaser or Seller shall be subject to the prior review and approvalof the other party hereto (which approval shall not be unreasonably withheld ordelayed), except to the extent required by applicable law.  If Purchaser or Seller is required byapplicable law to issue a Release, such party shall, at least two (2) BusinessDays prior to the issuance of the same, deliver a copy of the proposed Release(other than any SEC filing) to the other party (as appropriate) for its review.

 

9.6                                 Reporting Requirements.  TheTitle Company shall serve as the “real estate reporting person” as that term isdefined in Section 6045(e) of the Internal Revenue Code of 1986, asamended.  This Agreement shall constitutea designation agreement, the name and address of the transferor and transfereeof the transaction contemplated hereby appear in Section 9.3 hereof andSeller, Purchaser and the Title Company agree to retain a copy of thisAgreement for a period of four (4) years following the end of the calendar yearin which Closing occurs. The provisions of this Section 9.6 shall survivethe Closing.

 

9.7                                 Time of Essence. Seller and Purchaser agree that time is of the essence with regard tothis Agreement.

 

9.8                                 Business Days.  Ifany date provided for in this Agreement shall fall on a day which is not aBusiness Day, the date provided for shall be deemed to refer to the nextBusiness Day.  As used herein, the term “BusinessDay” shall mean Monday through Friday, excluding bank holidays on whichnational banking associations are authorized to be closed.

 

9.9                                 Successors and Assigns. The terms and provisions hereof shall applyto and bind the permitted successors and assigns of the parties hereto.

 

9.10                           Exhibits and Schedules.  Thefollowing schedules or exhibits attached hereto (collectively, the “Exhibits”)shall be deemed to be an integral part hereof:

 

(a)           ExhibitA – legal description of the Realty;

 

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|   | (b)    | Exhibit B – Earnest Money Escrow Agreement;  |
|--------|--------|---------------------------------------------------|
|   |   |                                              |   |
|   | (c)    | Exhibit C – Deed;                            |
|   |   |                                              |   |
|   | (d)    | Exhibit D – Bill of Sale;                    |
|   |   |                                              |   |
|   | (e)    | Exhibit E – Lease Assignment;                |
|   |   |                                              |   |
|   | (f)    | Exhibit F – FIRPTA Affidavit;                |
|   |   |                                              |   |
|   | (g)    | Exhibit G – Tenant Letter;                   |
|   |   |                                              |   |
|   | (h)    | Exhibit H – Tenant Estoppel Certificate; and |
|   |   |                                              |   |
|   | (i)    | Exhibit I – List of Leases.                  |

 

9.11                           Entire Agreement.  ThisAgreement, including the Exhibits and Schedules, contains the entire agreementbetween Seller and Purchaser pertaining to the transaction contemplated herebyand fully supersedes all prior agreements and understandings between Seller andPurchaser pertaining to such transaction.

 

9.12                           Further Assurances.  BothSeller and Purchaser agree that it will without further consideration executeand deliver such other documents and take such other actions, whether prior orsubsequent to Closing, as may be reasonably requested by the other party toconsummate more effectively the transaction contemplated hereby. The provisionsof this Section 9.12 shall survive Closing.

 

9.13                           Fees and Expenses.  Inthe event of any controversy, claim or dispute between Seller and Purchaseraffecting or relating to the subject matter or performance of the rights, dutiesand obligations under this Agreement, the prevailing party shall be entitled torecover from the non-prevailing party all of the prevailing party’s reasonableexpenses, including, without limitation, attorneys’ fees, accountants’ fees,court costs and interest.

 

9.14                           Counterparts. This Agreement may be executed in multiplecounterparts, and all such executed counterparts shall constitute the sameagreement. It shall be necessary to account for only one (1) such counterpartin proving the existence, validity or content of this Agreement.

 

9.15                           Severability.  Ifany provision hereof is determined by a court of competent jurisdiction to beinvalid or unenforceable, the remainder of this Agreement shall nonetheless remainin full force and effect.

 

9.16                           Section and Exhibit Headings. Section and exhibit headings containedherein are for convenience only and shall not be considered in interpreting orconstruing this Agreement.

 

9.17                           Waiver of Jury Trial.  EACHPARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OFANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING UNDER THIS AGREEMENTOR ANY

 

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OTHERINSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH,OR (ii) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OFTHE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT OR ANY OTHERINSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH,OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOWEXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OROTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT AJURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART ORA COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENTOF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

 

9.18                           Binding Effect.  ThisAgreement shall not be binding upon either Seller or Purchaser unless and untilboth Seller and Purchaser have executed this Agreement.

 

9.19                           Choice of Law.  ThisAgreement shall be governed by and construed in accordance with the internallaws of the State of Arizona, without regard to the conflicts of laws principlesthereof.

 

9.20                           No Third Party Beneficiary.  Theprovisions hereof and of the documents to be executed and delivered at Closingare and will be for the benefit of Seller and Purchaser only and are not forthe benefit of any third party, and accordingly, no third party shall have theright to enforce the provisions hereof or of the documents to be executed anddelivered at Closing.

 

9.21                           No Recordation. In no event shall this Agreement or anymemorandum hereof be recorded by Purchaser or any agent or representative ofPurchaser in the public records.  Any suchrecordation or attempted recordation shall constitute a breach of thisAgreement by Purchaser, in which event Seller shall be entitled to terminatethis Agreement and receive the Earnest Money from the Title Company and theparties shall have no further liability hereunder, except for any liabilitythat expressly survives termination.

 

9.22                           Section 1031 Exchange. Notwithstanding anything to the contrary contained in this Agreement,Seller’s rights under this Agreement may, at any time and without the consentof Purchaser, be assigned to a “qualified intermediary” which Seller selectsfor the purpose of effecting a tax deferred exchange of the Property for otherreal property of like kind pursuant to Section 1031 of the InternalRevenue Code of 1986, as amended.  Nosuch assignment shall release Seller from liability under this Agreement, andSeller shall remain fully and primarily liable for performance of all Seller obligationsunder this Agreement, notwithstanding such assignment.  Purchaser shall cooperate in all reasonablerespects with Seller and such qualified intermediary in order to effectuate theexchange desired by Seller, but at no expense to and without imposition of anyliability or obligation on Purchaser.

 

9.23                           Effective Date. As used herein, the term “Effective Date”shall mean the date of execution hereof by the last of Seller or Purchaser.

 

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IN WITNESS WHEREOF, theparties hereto have duly executed this Agreement effective as of the EffectiveDate.

 
|   | PURCHASER:                  |
|--------|-----------------------------|
|   |                        |
|   | [PURCHASER NAME]            |
|   |                        |
|   | By:                         | INLAND REAL ESTATE ACQUISITIONS, INC. |
|   |                        |   |
|   |                        |   |
|   |                        | By: | /s/ Edward  A. Rowe |   |
|   |                        | Name: | Edward A.  Rowe |   |
|   |                        | Title: | Authorized  Signatory |   |
|   |                        |
|   |                        |
|   | Date Executed by Purchaser: | Dec. 7, 2004 |   |
|   |                        |
|   | SELLER:                     |
|   |                        |
|   | VV ARIZONA, L.P.            |
|   |                        |
|   | By:                         | VV USA, LLC, |
|   |                        | its General Partner |
|   |                        |   |
|   |                        |   |
|   |                        | By: |   |   |
|   |                        | Name: |   |   |
|   |                        | Title: |   |   |
|   |                        |
|   | Dated Executed by Seller:   |   |   |
|        |                             |  |  |  |  |  |  |  |

 

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[SIGNATURE PAGE FOR AGREEMENTOF PURCHASE AND SALE]

 

IN WITNESS WHEREOF, the Purchaser and Seller have executed counterpartsof this Agreement on the dates set forth below, to be effective as of theEffective Date.

 
|   | **PURCHASER**:                        |
|--------|---------------------------------------|
|   |                                  |
|   | INLAND REAL ESTATE ACQUISITIONS, INC. |
|   |                                  |
|   |                                  |
|   | By:                                   |   |   |
|   | Name:                                 |   |   |
|   | Title:                                |   |   |
|   |                                  |
|   | Date Executed by Purchaser:           |   |   |
|   |                                  |
|   | **SELLER**:                           |
|   |                                  |
|   | VV ARIZONA, L.P.                      |
|   |                                  |
|   | By:                                   | VV USA, LLC, |
|   |                                  | its General Partner |
|   |                                  |   |
|   |                                  |   |
|   |                                  | By: | /s/ [ILLEGIBLE] |   |
|   |                                  | Name: | [ILLEGIBLE] |   |
|   |                                  | Title: | [ILLEGIBLE] Director |   |
|   |                                  |
|   | Dated Executed by Seller:             | December 1, 2004 |   |
|        |                                       |  |  |  |  |  |  |  |  |  |  |

 

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