**Exhibit10.456**

 

PURCHASE AND SALE AGREEMENT

 

AMONG

 

FRC WEST PROPERTY, L.L.C.;

AMERICAN EXPRESS TRAVELRELATED SERVICES COMPANY, INC.; and

IDS PROPERTY CASUALTYINSURANCE COMPANY,

 

collectively, SELLER

 

AND

 

INLAND REAL ESTATEACQUISITIONS, INC., or its designees,

 

collectively, PURCHASER

 

DATED AS OF DECEMBER 16,2004

 

----

 

**TABLE OF CONTENTS**

 
| 1.         | SALE OF PROPERTIES                                                 |   |
|------------|--------------------------------------------------------------------|--------|
|       |                                                               |   |
| 2.         | PURCHASE PRICE AND DEPOSIT                                         |   |
|       |                                                               |   |
| 3.         | APPORTIONMENTS                                                     |   |
|       |                                                               |   |
| 4.         | CLOSING  DATE                                                      |   |
|       |                                                               |   |
| 5.         | PERMITTED  ENCUMBRANCES                                            |   |
|       |                                                               |   |
| 6.         | TITLE                                                              |   |
|       |                                                               |   |
| 7.         | PROPERTY NOT INCLUDED  IN SALE                                     |   |
|       |                                                               |   |
| 8.         | REPRESENTATIONS AND  WARRANTIES                                    |   |
|       |                                                               |   |
| 9.         | CLOSING COSTS                                                      |   |
|       |                                                               |   |
| 10.        | CONDITIONS  PRECEDENT TO CLOSING                                   |   |
|       |                                                               |   |
| 11.        | DOCUMENTS  TO BE DELIVERED BY SELLER AT CLOSING                    |   |
|       |                                                               |   |
| 12.        | DOCUMENTS AND PAYMENTS TO BE  DELIVERED BY PURCHASER AT CLOSING    |   |
|       |                                                               |   |
| 13.        | OPERATION OF THE  PROPERTIES PRIOR TO THE CLOSING DATE             |   |
|       |                                                               |   |
| 14.        | AS-IS                                                              |   |
|       |                                                               |   |
| 15.        | BROKER                                                             |   |
|       |                                                               |   |
| 16.        | CASUALTY; CONDEMNATION                                             |   |
|       |                                                               |   |
| 17.        | REMEDIES                                                           |   |
|       |                                                               |   |
| 18.        | INTENTIONALLY DELETED                                              |   |
|       |                                                               |   |
| 19.        | INTENTIONALLY DELETED                                              |   |
|       |                                                               |   |
| 20.        | INTENTIONALLY DELETED                                              |   |
|       |                                                               |   |
| 21.        | ASSIGNMENT                                                         |   |
|       |                                                               |   |
| 22.        | INTENTIONALLY DELETED                                              |   |
|       |                                                               |   |
| 23.        | NOTICES                                                            |   |
|       |                                                               |   |
| 24.        | PROPERTY  INFORMATION AND CONFIDENTIALITY                          |   |
|       |                                                               |   |
| 25.        | MISCELLANEOUS                                                      |   |
|       |                                                               |   |
| SCHEDULES: |                                                               |
|       |                                                               |
| 1-A        | DESCRIPTION OF THE LAND (20022 N. 31st Ave., Phoenix, AZ)          |   |
| l-B        | DESCRIPTION OF THE LAND (20002 N. 19th Ave., Phoenix, AZ)          |   |
| 1-C        | DESCRIPTION OF THE LAND (1001 N. 3rd Ave. South,  Minneapolis, MN) |   |
| 1-D        | DESCRIPTION OF THE LAND (3500 Packerland Dr., Depere, WI)          |   |

 

i

----

 
| 1-E           | INTENTIONALLY OMITTED.                                                    |   |
|---------------|---------------------------------------------------------------------------|--------|
| 1-F           | DESCRIPTION OF THE LAND (4315 South 2700 West, Salt Lake City, UT)        |   |
| 1-G           | DESCRIPTION OF THE LAND (7701 Airport Center, Greensboro, NC)             |   |
| 1-H           | DESCRIPTION OF THE LAND (777 American Expressway, Ft. Lauderdale, FL)     |   |
| 2             | PERMITTED ENCUMBRANCES                                                    |   |
| 8(4)(2)       | MATERIALLY CONTRAVENED DOCUMENTS                                          |   |
| 8(4)(4)       | DUE DILIGENCE ITEMS DELIVERED TO PURCHASER                                |   |
|          |                                                                      |   |
| **EXHIBITS:** |                                                                      |
| ** **    |                                                                      |   |
| A.            | FORM OF ESCROW AGREEMENT                                                  |   |
| B.            | SELLER’S EQUIPMENT AND PERSONALTY                                    |   |
| C.            | DOCUMENTS TO WHICH SELLER IS A PARTY                                      |   |
| D.            | FORM OF SNDA                                                              |   |
| E.            | FORM OF DEEDS                                                             |   |
| F.            | FORM OF LEASE                                                             |   |
| G.            | NON-FOREIGN AFFIDAVIT UNDER INTERNAL REVENUE CODE SECTION 1445(b)(2) |   |

 

ii

----

 

**TABLEOF DEFINED TERMS**

 

The following capitalized teams are definedin the respective Section of the Agreement identified below:

 

•              “AEPCProperty” - as such term is defined in the WHEREAS clauses hereof.

 

•              “AESC- F Property” - as such term is defined in the WHEREAS clauses hereof.

 

•              “AESC- G Property” - as such term is defined in the WHEREAS clauses hereof.

 

•              “AESC- P Property” - as such term is defined in the WHEREAS clauses hereof.

 

•              “AESC- SLC Property” - as such term is defined in the WHEREAS clauses hereof.

 

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

 

•              “CITIGROUP”- as such term is defined in Section 15 hereof.

 

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

 

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

 

•              “DataCenter Property” - as such term is defined in the WHEREAS clauses hereof.

 

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

 

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

 

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

 

•              “ExcessLand” – as such term is defined in Section 4 hereof.

 

•              “EscrowAgent” - as such term is defined in Section 2(3) hereof.

 

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

 

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

 

•              “FRC-WProperty” - as such term is defined in the WHEREAS clauses hereof.

 

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

 

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

 

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

 

iii

----

 

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

 

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

 

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

 

•              “Lease”- as such term is defined in Section 11(2) hereof.

 

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

 

•              “Property”or “Properties” - as such term is defined in the WHEREAS clauses hereof.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

•              “TCC”- as such term is defined in Section 14(3) hereof

 

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

 

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

 

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

 

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

 

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

 

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

 

iv

----

 

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

 

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

 

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

 

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

 

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

 

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

 

v

----

 

PURCHASE ANDSALE AGREEMENT

 

PURCHASE ANDSALE AGREEMENT (this **“Agreement”**)dated as of the      day of        ,2004, by and among FRC WEST PROPERTY, L.L.C., an Arizona limited liabilitycompany (**“FRC”**), AMERICAN EXPRESS TRAVEL RELATEDSERVICES COMPANY, INC., a New York corporation (**“TRS”**),and IDS PROPERTY CASUALTY INSURANCE COMPANY, a Wisconsin corporation (**“IDS”**), (each individually and collectively, the **“Seller”**), each having an office at c/o American ExpressCompany, 200 Vesey Street, New York, New York 10285, and INLAND REAL ESTATEACQUISITIONS, INC., a corporation of the State of Illinois (with its designees,the **“Purchaser”**), having an office at c/oThe Inland Real Estate Group, Inc., 2901 Butterfield Road, Oak Brook, Illinois60523.

 

**W I T N E SS E T H**

 

**WHEREAS,**(i) TRS is the owner of the parcels of land described on Schedule 1-A (the**“AESC - P Property”**), Schedule 1-C(the **“Data Center Property”**), Schedule 1-F(the **“AESC - SLC Property”**), Schedule 1-G(the **“AESC - G Property”**) and Schedule 1-H(the **“AESC - F Property”**) attached heretoand the buildings located thereon (such parcels of land and such buildingsbeing hereinafter referred to collectively together as the **“TRSProperties”**), (ii) FRC is the owner of the parcels of land describedon Schedule 1-B attached hereto and the buildings located thereon (the **“FRC-W Property”**), and (iii) IDS is the owner of the parcelsof land described on Schedule 1-D attached hereto and the buildingslocated thereon (the **“AEPC Property”**),(each of the TRS Properties, the FRC-W Property, and the AEPC Property referredto individually as a **“Property”** andcollectively as the **“Properties”**);and

 

**WHEREAS,**Seller and Purchaser now desire to enter into an agreement whereby, subject tothe terms and conditions contained herein, (i) Seller shall sell the Propertiesto Purchaser and Purchaser shall purchase the Properties from Seller, and (ii)Seller, or an affiliate of Seller, shall lease back the Properties fromPurchaser.

 

**NOW,THEREFORE,** in consideration of ten ($10.00) dollarsand the mutual covenants and agreements hereinafter set forth, and intending tobe legally bound hereby, it is hereby agreed as follows:

 

1.             SALEOF PROPERTIES.

 

Seller agreesto sell and convey to Purchaser, and Purchaser agrees to purchase from Seller,at the price and upon the terms and conditions set forth in this Agreement, theProperties.

 

2.             PURCHASE PRICE AND DEPOSIT.

 

(1)           Thepurchase price to be paid by Purchaser to Seller for the Properties (the **“Purchase Price”**) is THREE HUNDRED FORTY-EIGHT MILLION ANDNO/100 ($348,000,000.00) Dollars payable at the Closing by bank wire transferof immediately available funds to Seller’s account or to the account oraccounts of such other party or parties as may be designated by Seller on or atleast two (2) business days prior to the Closing Date.

 

Subject to theCanada Contract (as hereinafter defined), this Agreement is intended to be asingle unitary agreement, and Seller is required to sell the

 

----

 

Properties toPurchaser pursuant to the terms and provisions of this Agreement, and Purchaseris required to purchase the Properties from Seller pursuant to the terms andprovisions of this Agreement and subject to the conditions contained herein.The parties agree that the Purchase Price is hereby allocated among theProperties as follows:

 
| **Purchaser’s Designees**                    | ** ** | **Properties**       | ** ** | **Purchase Price Allocation** | ** **     | **Deposit Allocation** | ** ** |
|---------------------------------------------------|------------|----------------------|------------|-------------------------------|----------------|------------------------|------------|
|                                              |       |                 |       |                          |           |                   |       |
| Inland Western Phoenix  31ST Avenue, L.L.C.       |       | AESC - P Property    |       | $                             | 54,000,000.00  |                   | $          | 2,769,230.77 |   |
|                                              |       |                 |       |                          |           |                   |       |
| Inland Western Phoenix  19th Avenue, L.L.C.       |       | FRC-W Property       |       | $                             | 14,000,000.00  |                   | $          | 717,948.85 |   |
|                                              |       |                 |       |                          |           |                   |       |
| Inland Western Minneapolis  3rd Avenue, L.L.C.    |       | Data Center Property |       | $                             | 95,000,000.00  |                   | $          | 4,871,794.85 |   |
|                                              |       |                 |       |                          |           |                   |       |
| Inland Western  Taylorsville  2700 West, L.L.C.   |       | AESC - SLC Property  |       | $                             | 48,000,000.00  |                   | $          | 2,461,538.44 |   |
|                                              |       |                 |       |                          |           |                   |       |
| Inland Western Greensboro  Airport Center, L.L.C. |       | AESC - G Property    |       | $                             | 56,000,000.00  |                   | $          | 2,871,794.85 |   |
|                                              |       |                 |       |                          |           |                   |       |
| Inland Western Plantation  Express, L.L.C.        |       | AESC - F Property    |       | $                             | 63,000,000.00  |                   | $          | 3,230,769.21 |   |
|                                              |       |                 |       |                          |           |                   |       |
| Inland Western  DePere,  L.L.C.                   |       | AEPC Property        |       | $                             | 18,000,000.00  |                   | $          | 923,076.90 |   |
|                                              |       |                 |       |                          |           |                   |       |
|                                              |       |                 |       | $                             | 348,000,000.00 |                   | $          | 17,846,154.87 |   |

 

(2)           Simultaneouslywith the execution of this Agreement by Purchaser, Purchaser is delivering toChicago Title Insurance Company, as escrow agent (the “**Escrow Agent**”)Purchaser’s tax identification number and (i) an unendorsed bank check issuedby a bank which is a member of the New York Clearinghouse Association, payabledirectly to the order of “Chicago Title Insurance Company, as Escrow Agent” or(ii) a wire transfer of immediately available federal funds to the EscrowAgent, in the amount of SEVENTEEN MILLION EIGHT HUNDRED FORTY- SIX THOUSAND,ONE HUNDRED FIFTY-FOUR AND 87/100 ($17,846,154.87) Dollars (the **“Deposit”**); provided no Deposit shall be required withrespect to the AESC-SLC Property;

 

(3)           Uponreceipt by Escrow Agent of the Deposit, Escrow Agent shall cause the same to bedeposited into an interest bearing account selected by Escrow Agent (it beingagreed that Escrow Agent shall be required to obtain a rate of interest atleast equal to that currently being earned by United States Government TreasuryBills available on an overnight basis, but shall not be obligated to obtain anyhigher rate) in accordance with the terms of that certain Escrow Agreement ofeven date herewith between Seller, Purchaser and Escrow Agent, in substantiallythe form as attached hereto as **Exhibit “A”.** Ifthe Closing shall occur, the

 

2

----

 

interest on the Deposit, ifany, shall be paid to Seller and, if the Closing shall not occur and thisAgreement shall be terminated, then the interest earned on the Deposit shall bepaid to the party entitled to receive the Deposit as provided in thisAgreement, The party receiving such interest shall pay any income taxesthereon.

 

(4)           Except and to the extent (i) as set forth inSections 6, 8(5), 10(3) and 17(1), (ii) Seller defaults hereunder or (iii)Seller fails to satisfy any condition precedent to Purchaser’s obligation toclose which is not waived by Purchaser, the Deposit shall be nonrefundable. Atthe Closing, the Deposit shall be paid to Seller, and Purchaser shall deliverthe balance of the Purchase Price (i.e., the Purchase Price less the Deposit)to Escrow Agent for delivery to Seller in accordance with appropriate closingescrow instructions to be provided by Seller to Escrow Agent at or prior toClosing. In the event Seller fails, for reasons beyond Seller’s reasonablecontrol, to close on not more than two (2) of the Properties, Purchaser shallbe entitled to a pro-rated credit of the Deposit against the Purchase Pricebased upon the allocation of the Purchase Price by Property set forth in Section 2hereof (the **“Deposit Allocation”**). In theevent Seller fails for reasons beyond Seller’s reasonable control to close onthree (3) or more of the Properties, either party shall have the right, bynotice delivered to the other party, to terminate this Agreement and in theevent of such termination, Purchaser shall be entitled to the return of theDeposit. Simultaneously with execution of this Agreement, affiliates of Sellerand Purchaser are also entering into a Purchase and Sale Agreement (the **“Canada Contract”**) with respect to 101 McNabb Street,Markham, Ontario, Canada (the **“Canada Property”**).In the event that Seller fails, for reasons beyond Seller’s reasonable control,to close on the Canada Property under the Canada Contract, then the referencesin the third and fourth sentences of this Section 2(4) to “not more thantwo (2) of the Properties”, and “on three (3) or more of die Properties”,respectively, shall be deemed changed to “not more than one (1) of theProperties” and “on two (2) or more of the Properties.”

 

(5)           If there shall be any real property tax orassessment appeals with respect to the period prior to Closing allocable to theProperty, Seller may, at its option and at its sole cost and expense, continuethe prosecution of such appeals and take related action which Seller reasonablydeems appropriate in connection therewith. Purchaser shall have the right, atits sole cost and expense, to be present at any hearings in connection withsuch proceedings with respect to the 2004 calendar year real property taxes.Purchaser shall cooperate with Seller in connection with such proceedings andappeals and collection of any refund, credit or rebate of real property taxespaid relating to the time period prior to the Closing, but shall not beobligated to incur any expense as a result thereof. With respect to the periodprior to Closing, Seller owns and retains all right, title and interest in andto such real property tax and tax assessment appeals and all rebates, creditsor refunds, and all amounts payable in connection therewith or resulting fromany statutory or legislative change shall be paid directly to Seller by theapplicable authorities. With respect to the period prior to Closing, if suchrefund, rebate or credit or any part thereof is received by Purchaser orotherwise credited to Purchaser or to the tax roll for the Property, Purchasershall promptly pay such amount to Seller unless Purchaser or the lessor underthe Lease is obligated to pay such amount to the tenant under the Lease.Purchaser agrees that it shall make available to Seller

 

3

----

 

copiesof all correspondence and other documentation relating to the reassessment ofreal property taxes relating to Property, which comes into the possession orcontrol of the Purchaser subsequent to the Closing and relates to real propertytaxes for the period prior to the Closing.

 

The provisionsof this Section 2(5) shall survive the Closing.

 

(6)           Purchaser shall forthwith restore anydamage to the Property resulting from any audits, inspections or testsperformed for or on behalf of Purchaser at the Property. Seller reserves,without limiting any of its other rights at law, equity or under thisAgreement, the right to offset against the Deposit, the cost of repair andrestoration of Property necessary as a result of damage or destruction causedby Purchaser’s “due diligence” which has not been repaired or restored byPurchaser within a reasonable period of time after Purchaser has been notifiedof such damage.

 

3.             APPORTIONMENTS.

 

Insofar asSeller or an affiliate of Seller and Purchaser will be entering into a Lease atthe Closing with respect to each Property, there shall not be anyapportionments or adjustments between Seller orPurchaser with respect to income and expenses for any Property. The provisionsof this Section 3 shall survive the Closing.

 

4.             CLOSING DATE. The delivery of the Deedsand the consummation of the transactions contemplated by this Agreement (the **“Closing”**) shall take place at a location reasonably agreedupon by Seller and Purchaser, at 10 a.m. local time on or about December 16,2004 (the **“Closing Date”**). Time shall be of the essence withrespect to the obligations of Purchaser to close the sale contemplated by thisAgreement on the Closing Date and execute and deliver a Lease for each Propertythat Seller is able to convey in accordance with this Agreement on the ClosingDate. The parties agree that with respect to ancillary closing documents (i.e.,all documents to be delivered at Closing pursuant to this Agreement exceptLeases, SNDA’s, estoppels, Memoranda of Leases, Deeds and any other closingdocuments that the parties hereto agree to record) required to be delivered onthe Closing Date, executed facsimile copies of ancillary closing documentsshall be acceptable; provided that originals of such ancillary documents shallbe delivered within two (2) business days after the Closing Date.

 

Purchaseracknowledges that Seller intends to effectuate (i) a legal subdivision of theAESC-SLC Property and (ii) a legal re-subdivision of the AEPC Property (theAESC-SLC Property and the AEPC Property, together, the **“Subdivision****Properties”**).Seller intends to retain ownership of (i) that portion of the AESC-SLC Propertydesignated as the Excess Land on Schedule 1-F attached hereto and (ii) are-subdivided portion of Lot 1 of the AEPC Property (such portions of theSubdivided Properties being referred to herein as **“Excess Land”**).Purchaser further acknowledges that despite Seller’s diligent efforts inpursuing such legal subdivision and re-subdivision, such subdivision and re-subdivisionwill not be completed as of the Closing Date. Purchaser shall cooperate withSeller in good faith to effectuate such subdivision and re-subdivisionincluding, without limitation, by signing such documents as may be required tobe signed by the owner of the Excess Land and by appointing Seller as Purchaser’sagent for purposes of appearing

 

4

----

 

before anymunicipal agency or planning commission solely in connection with effecting thesubdivision or re-subdivision of the Excess Land from the balance of theapplicable Subdivision Property and without any other changes to suchSubdivision Property, except those required in order to effectuate thesubdivision or re-subdivision, as applicable, and conditions thereto, andprovided that Purchaser has the reasonable prior right of approval with respectto such changes. Purchaser and Seller agree that because the SubdivisionProperties will not be legally subdivided or re-subdivided (as applicable) asdesired by Seller by the Closing Date, Seller shall proceed to closing on suchunsubdivided or unre-subdivided Subdivision Propert(ies), together with therelated Excess Land, in accordance with the terms of this Agreement, and Sellershall have an option, at such times as the previously uncompleted subdivisionsor re-subdivision are legally completed, to purchase the then-subdivided orre-subdivided Excess Land for a purchase price equal to One and No/100 ($1.00)Dollar for each such parcel of Excess Land. Purchaser and Seller agree tocooperate in good faith to effectuate any purchase of Excess Land by Seller ina timely and orderly manner and Purchaser agrees to execute and deliver toSeller such documents as may be reasonably required by Seller and its attorneys,including, without limitation, a special warranty deed and such certificatesand affidavits as may be required by Seller’s title insurance company in orderto convey title to the Excess Land to Seller, free of all liens, encumbrancesand other matters not reasonably acceptable to Seller. Seller agrees that ifExcess Land is conveyed to Seller, Seller shall, at the time of suchconveyance, arrange for updated title commitments (including (i) allendorsements included in Purchaser’s title insurance policy delivered at theoriginal closing of the Subdivision Property and the related Excess Land and(ii) only those exceptions to title as were included in Purchaser’s titleinsurance policy delivered at the original closing of the Subdivision Propertyand the related Excess Land and any other exceptions to title as may bereasonably approved by or consented to by Purchaser) and updated ALTA certifiedsurveys showing no survey defects to be delivered to Purchaser with respect tothe applicable Subdivision Property. Upon the legal completion of a subdivisionor re-subdivision hereunder and the conveyance of title to the Excess Land toSeller, if the fair value (determined by having the original appraisal for theapplicable Subdivision Property (exclusive of the Excess Land) used inconnection with determining the Purchase Price Allocation for such SubdivisionProperty updated to the date of the legal completion of the subdivision, the **“Fair****Value”**), of theSubdivision Property (exclusive of the Excess Land), exceeds the Purchase PriceAllocation (i.e., $18,000,000.00 for the AEPC Property and $48,000,000.00 forthe AESC-SLC Property) for such Subdivision Property, then (X) Purchaser shallpay to Seller, in cash, the difference between (i) the Fair Value of theapplicable Subdivision Property (exclusive of the Excess Land) as of the dateof the legal completion of the subdivision or re-subdivision (as applicable)and (ii) the Purchase Price Allocation for such Subdivision Property and (Y)the Base Rent (as defined in the Lease) to be paid by Seller to Purchaser underthe Lease for the applicable Subdivision Property shall be increasedproportionately. In the event that the Fair Value of the Subdivision Property(exclusive of the Excess Land) is less than the Purchase Price Allocation forsuch Subdivision Property, then there shall be no adjustment in the purchaseprice hereunder or the Base Rent under the Lease for the applicable SubdivisionProperty.

 

In the eventthat a subdivision or re-subdivision is not legally completed by the date thatis 180 days after the Closing Date (**“the Subdivision OutsideDate”**) or if Seller does not elect to purchase the Excess Landpursuant to its option as set forth above, then, at the earlier of such datethat (i) Seller gives Purchaser written notice that Seller has elected

 

5

----

 

not topurchase the Excess Land or (ii) the Subdivision Outside Date has occurred(such date, the **“Re-valuation Date”**), (I)Purchaser shall pay to Seller an amount equal to the difference between (x) theFair Value of the Subdivision Property and the Excess Land as of theRe-valuation Date and (y) the Purchase Price Allocation for the SubdivisionProperty and (II) the Base Rent to be paid by Seller to Purchaser under theLease for the applicable Subdivision Property shall be increasedproportionately.

 

If Sellerelects to proceed to subdivide or re-subdivide (as applicable) the SubdivisionProperties, Purchaser and Seller shall cooperate in good faith and at no costto Purchaser, to cause the subdivision and re-subdivision and transferscontemplated by this paragraph to occur in a timely and orderly manner.Purchaser shall take all action reasonably requested by Seller in order toeffect such subdivision and re-subdivision.

 

5.             PERMITTEDENCUMBRANCES. Subject to Purchaser’s review in accordance with Section 6(1)below, Seller shall convey and Purchaser shall accept title to the Propertiessubject to those matters set forth on Schedule “2” annexed hereto and madea part hereof (collectively the **“Permitted Encumbrances”**);provided, however, that upon the request of either party hereto, Schedule 2may be revised after the execution of this Agreement so long as any subsequentrevisions to the Permitted Encumbrances schedule (i) are to include itemsof the same type and category as those items set forth on Schedule 2attached to this Agreement as of the date of the execution of this Agreement,(ii) are reasonably acceptable to both parties, (iii) do not create anyencroachments or violate any restrictions of record or covenants of record forthe applicable Property(ies) other than encroachments with respect to whichTitle Company has agreed to insure over or restrictions of record or covenantsof record that do not interfere with the use or enjoyment of the Properties andfor which the Title Company has agreed to issue a “Comprehensive 1 Endorsement”or a “Restrictions Endorsement”, in either event confirming “no violations” and(iv) do not occur after the Closing Date.

 

6.             TITLE.

 

(1)          (i)             Priorto the date of this Agreement, Purchaser has received (x) title commitments andthe related underlying documents (together, **“TitleCommitments”**) for each of the Properties from the Title Company and(y) surveys as more particularly described on Schedule 2 as items 1(a)-(h) (the **“Surveys”**, together with the TitleCommitments, the **“Title Items”**). Purchaser hasprovided Seller with notices for each of the Properties of its comments andobjections to the Title Items (each such notice, a “Title Objection Letter” andcollectively, the **“Title Objection Letters”**),Purchaser and Seller have, and shall continue, in good faith, to addressPurchaser’s comments and attempt to eliminate Purchaser’s objections ascontained in the Title Objection Letters. Not later than one (1) business dayafter Purchaser determines that the Title Items for a Property are reasonablyacceptable, Purchaser shall give notice to Seller stating same and the DepositAllocation for such Property shall become non-refundable to Purchaser, unlessSeller defaults hereunder or Seller fails to satisfy any condition precedent toPurchaser’s obligation to close which is not waived by Purchaser, in which casethe applicable Deposit Allocation shall be refunded to Purchaser, in accordancewith the terms of this Agreement.

 

6

----

 

(ii)           Inthe event that, prior to the Closing, (x) Purchaser and Seller have not, to thereasonable satisfaction of Purchaser, addressed Purchaser’s comments and/oreliminated Purchaser’s objections to the Title Items as contained in the TitleObjection Letters or (y) Purchaser receives updated Title Commitments orSurveys which indicate the existence of any liens, encumbrances or otherdefects or exceptions in or to title to the Properties other than PermittedEncumbrances and those identified on the initial Title Items, (collectively,the **“Unacceptable Encumbrances”**), subjectto which Purchaser is unwilling to accept title, then provided Purchaser givesSeller notice of the same within one (1) business day after receipt of suchupdated Title Items, Seller shall undertake to eliminate such UnacceptableEncumbrances. Purchaser hereby waives any right Purchaser may have to advanceas objections to title or as grounds for Purchaser’s refusal to close thistransaction any Unacceptable Encumbrance with respect to which Purchaser hasnot notified Seller prior to the Closing (failure to so notify Seller shall bedeemed to be a waiver by Purchaser of its right to raise such UnacceptableEncumbrance as an objection to title or as a ground for Purchaser’s refusal toclose this transaction). Seller, in its sole discretion, may adjourn theClosing, as to any one of more Properties, one or more times for up to sixty(60) days in the aggregate in order to attempt, in good faith, to eliminateUnacceptable Encumbrances and to complete the subdivision of the AESC-SLCProperty. Purchaser shall cooperate with Seller and shall also use itsreasonable good faith efforts to eliminate Unacceptable Encumbrances. Sellershall cooperate with Purchaser so that Purchaser may obtain title insurancefrom Chicago Title Insurance Company (the **“Title Company”**);provided, however, in no event shall Seller be required to spend any money orsatisfy any conditions for Chicago Title Insurance Company that Seller wouldnot have been required to satisfy for LandAmerica and in no event shallextensions of time be granted in this Section 6(1) for new searches orcommitments that duplicate what is made available to Purchaser by LandAmerica.Purchaser and Seller shall each pay $195,533.49 in respect of all titlesearches, reports, premiums and closing fees in connection with title insurancepolicies issued by Chicago Title Insurance Company for the Properties andChicago Title Insurance Company’s agreement to act as Escrow Agent.

 

(2)           Notwithstandinganything to the contrary set forth in this Section 6 or elsewhere in thisAgreement, Seller shall not be obligated to bring any action or proceeding, tomake any payments or otherwise to incur any expense in order to eliminate anyTitle Item objected to by Purchaser or Unacceptable Encumbrances not waived byPurchaser or to arrange for title insurance insuring against enforcement ofsuch Title Items or Unacceptable Encumbrances against, or collection of thesame out of, the Properties; except that Seller shall (A) either (i) satisfy or(ii) cause a reputable title company to insure over (it being agreed thatPurchaser shall be required to accept such “cure” from any reputable title companyagreeing to insure over such matter) (x) mortgages voluntarily imposed bySeller, (y) judgments against Seller or (z) other liens voluntarily imposed bySeller (excluding mechanic’s liens) (collectively, **“VoluntaryLiens”**) secured by or affecting the Properties which can besatisfied by payment of liquidated amounts and (B) with respect to (x)judgments as to which Seller is disputing or contesting, and (y) liens notvoluntarily imposed by Seller (collectively, **“Involuntary**

 

7

----

 

**Liens”**)affecting the Properties which can be satisfied by payment of liquidatedamounts, Seller shall be obligated to spend, with respect to the applicableaffected Property, an amount not to exceed the lesser of (i) two (2%) percent of the Purchase Priceallocated for such Property or (ii) $500,000.00 per affected Property, tosatisfy or cause a reputable title company to insure over (it being agreed thatPurchaser shall be required to accept such “cure” from any reputable title companyagreeing to insure over such matter) such Involuntary Lien. Without limitingthe generality of the preceding provisions of this Section 6(2), for thepurposes of this Agreement (including, without limitation Sections 6(1) and17(1)), Seller’s failure or refusal to bring any action or proceeding, to makeany payments or to otherwise incur any expense (except for Seller’s obligationto satisfy or cause a reputable title insurance company to insure over suchVoluntary Liens and Involuntary Liens as aforesaid) in order to eliminateUnacceptable Encumbrances not waived by Purchaser or to arrange for such titleinsurance shall not be a default by Seller hereunder (willful or otherwise) andPurchaser shall not be entitled to any damages in connection therewith.Further, if Purchaser elects not to close the transaction solely due to Seller’sfailure to cure or cause a reputable title company to insure over any VoluntaryLiens or Involuntary Liens as aforesaid, such failure shall not be a default bySeller hereunder, however, Seller shall reimburse Purchaser for its actual,reasonable third party costs incurred in connection with this Agreement, not toexceed $100,000. With respect to any Involuntary Lien, Seller shall not bepermitted to elect to reimburse Purchaser for its actual, reasonable thirdparty costs incurred in connection with this Agreement in lieu of Seller’sobligation to attempt to cure an Involuntary Lien as aforesaid; provided,however, if Seller, in its reasonable opinion reasonably exercised, believesthat the expenditure of the lesser of (i) two (2%) percent of the PurchasePrice allocated for such Property or (ii) $500,000 per affected Property, willnot “cure” such Involuntary Lien, then Seller shall not be obligated to expendsuch sums, and Seller shall remain liable to reimburse Purchaser for its actualreasonable third party costs, not to exceed $100,000. Notwithstanding anythingcontained in this Agreement to the contrary, in no event shall Seller be liablefor any damages, cost and/or expenses, including, without limitation, damages,suffered by Purchaser or any of Purchaser’s affiliates resulting from, or inany way related to, the expiration of Purchaser’s “rate lock”, which theparties acknowledge expires on December 17, 2004. With respect to mechanic’sliens, Seller shall address mechanic’s liens as provided for in the Lease.

 

(3)           Ifon the Closing Date there are any Liens or other encumbrances, subject to Section 6(2),which Seller must pay or discharge in order to convey to Purchaser such titleas is herein provided to be conveyed, Seller may use any portion of thePurchase Price to satisfy the same, provided:

 

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

 

8

----

 

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

 

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

 

(4)           Ifon the Closing Date there shall be conditional bills of sale, chattel mortgagesor security interests filed against any of the Properties, the same shall notconstitute objections to title provided Seller executes and delivers anaffidavit and an indemnity (in form and substance and from an indemnitorreasonably acceptable to Purchaser) to the effect either (i) that the personalproperty (as defined in the Lease) covered by said conditional bills of sale,chattel mortgages, or security interests is no longer in or on the Properties,or (ii) if such personal property is still in or on any of the Properties, thatit has either (x) been fully paid for, (y) is not the personal property ofSeller or (z) would qualify as “Lessee’s Equipment or Personalty” under any ofthe Leases.

 

(5)           Anyfranchise or corporate tax open, levied or imposed against Seller or otherowners in the chain of title that may be a Lien on the Closing Date, shall notbe an objection to title if the Title Company omits same from the title policyissued pursuant to the Title Commitment or excepts same but insures Purchaser againstcollection thereof out of the Properties.

 

(6)           Ifa search of title discloses judgments, bankruptcies or other returns againstother persons or entities having names the same as or similar to that ofSeller, Seller will deliver to Purchaser and the Title Company an affidavitstating that such judgments, bankruptcies or other returns are not againstSeller, whereupon, provided the Title Company omits such returns as exceptionsto title or provides affirmative coverage with respect thereto, such returnsshall not be deemed an objection to title.

 

7.             PROPERTYNOT INCLUDED IN SALE.

 

Notwithstandinganything to the contrary contained herein, it is expressly agreed by theparties hereto that any alterations at, on or in any of the Properties that (i)are readily removable without unrepaired damage to the Property, (ii) do notreduce the value, economic life or utility of the Property if removed, (iii)are not integral to the structure or operation of the Property, and (iv) arenot required for the lawful occupancy of the Property shall not be included inthe Properties to be sold to Purchaser hereunder. In addition, Seller’sEquipment and Personalty as described on **Exhibit “B”**,attached hereto and made a part hereof, shall also not be included in theProperties to be sold to Purchaser hereunder. With respect to the FRC-WProperty, FRC shall assign to TRS at Closing all of FRC’s right, title and interestin the property described above in this paragraph (including but not limited toSeller’s Equipment and Personalty described on **Exhibit “B”**attached hereto) as not being sold to Purchaser hereunder.

 

8.             REPRESENTATIONSAND WARRANTIES.

 

(1)           Purchaserexpressly acknowledges that, except as expressly set forth in this Agreement orin any Lease, neither Seller, nor any person acting on behalf of Seller,

 

9

----

 

nor any personor entity which prepared or provided for any of the materials reviewed byPurchaser in conducting its due diligence, nor any direct or indirect officer,director, partner, shareholder, employee, agent, representative, accountant,advisor, attorney, principal, affiliate, consultant, contractor, successor orassign of any of the foregoing parties (Seller, and all of the other partiesdescribed in the preceding portions of this sentence (other than (i) Purchaserand (ii) any parties who have issued writings which specifically state thatPurchaser is entitled to rely upon the accuracy, truthfulness or completenessthereof or delivered a Third Party Report) shall be referred to hereincollectively as the **“Exculpated****Parties”**) has made any oral or written representations orwarranties, whether expressed or implied, by operation of law or otherwise,with respect to the Properties (including, without limitation, theenvironmental condition of the Properties), the zoning and other laws,regulations and rules applicable thereto or the compliance by the Propertiestherewith, the revenues and expenses generated by or associated with theProperties, or otherwise relating to the Properties or the transactionscontemplated herein. Without limiting the generality of the foregoing,Purchaser has not relied on any representations or warranties, and neitherSeller nor any of Seller’s Affiliates, nor any of their agents orrepresentatives has or is willing to make any representations or warranties,express or implied, other than as may be expressly set forth herein and in theLease, as to (i) the status of title to the Properties, (ii) existing leaseagreements, (iii) the current or future real estate tax liability, assessmentor valuation of the Properties; (iv) the potential qualification of theProperties for any and all benefits conferred by any laws whether forsubsidies, special real estate tax treatment, insurance, mortgages or any otherbenefits, whether similar or dissimilar to those enumerated; (v) the complianceof the Properties in their current or any future state with applicable laws orany violations thereof, including, without limitation, those relating to accessfor the handicapped, environmental or zoning matters, and the ability to obtaina change in the zoning or a variance in respect to the Properties’non-compliance, if any, with zoning laws; (vi) the nature and extent of anyright-of-way, lease, possession, lien, encumbrance, license, reservation,condition or otherwise; (vii) the availability of any financing for thepurchase, alteration, rehabilitation or operation of the Properties from anysource, including, without limitation, any government authority or any lender;(viii) the current or future use of the Properties, including, withoutlimitation, the Properties’ use for commercial, manufacturing or general officepurposes; (ix) the present and future condition and operating state of anypersonal property and the present or future structural and physical conditionof the improvements on the Properties, their suitability for rehabilitation orrenovation, or the need for expenditures for capital improvements, repairs orreplacements thereto; (x) the viability or financial condition of any tenant;(xi) the status of the leasing market in which the Properties are located; or(xii) the actual or projected income or operating expenses of the Properties.

 

(2)           Purchaserexpressly acknowledges that it is acquiring the Properties based solely on itsown independent investigation and inspection of the Properties and not inreliance on any information provided by Seller, or any of the other ExculpatedParties, except for the representations expressly set forth herein or in anyLease, Notwithstanding anything to the contrary herein, as used herein the term“Exculpated Parties” shall not include any parties or entities who haveprepared any of the Third Party Reports, but in no event shall this sentence bedeemed to exclude

 

10

----

 

Seller nor any direct orindirect officer, director, partner, shareholder or employee of Seller as anExculpated Party.**“Third Party****Reports”**shall mean all Environmental Reports (as defined in any Lease), appraisals,certificates, reports, assessments, studies or other information delivered toPurchaser for its review with respect to the Properties. Purchaser acknowledgesthat Seller has afforded Purchaser the opportunity for full and completeinvestigations, examinations and inspections of the Properties and all PropertyInformation. Purchaser further acknowledges and agrees that (i) the PropertyInformation delivered or made available to Purchaser and Purchaser’sRepresentatives by Seller or Seller’s Affiliates, or any of their agents orrepresentatives may have been prepared by third parties and may not be the workproduct of Seller and/or any of Seller’s Affiliates; (ii) neither Seller norany of Seller’s Affiliates has made any independent investigation orverification of, or has any knowledge of, the accuracy or completeness of, theProperty Information; (iii) the Property Information delivered or madeavailable to Purchaser and Purchaser’s Representatives is furnished to each ofthem at the request, and for the convenience of, Purchaser; (iv) Sellerexpressly disclaims any representations or warranties with respect to theaccuracy or completeness of the Property Information prepared by either Selleror any third-party vendors and Purchaser releases Seller and Seller’sAffiliates, and their agents and representatives, from any and all liabilitywith respect thereto; and (v) any further distribution of the PropertyInformation is subject to Section 24. Purchaser and Seller hereby agreethat this paragraph does not constitute a waiver of any of Purchaser’s rightsor Seller’s obligations that arise in connection with the offering memorandumcovering the subject matter of and issued in connection with this Agreement.

 

(3)           This Agreement, as written, contains all theterms of the agreement entered into between the parties as of the date hereof,and Purchaser acknowledges that neither Seller nor any of Seller’s Affiliates,nor any of their agents or representatives, nor any broker has made anyrepresentations or held out any inducements to Purchaser, and Seller herebyspecifically disclaims any representation, oral or written, past, present orfuture, other than those specifically set forth in Sections 8 and 14 and in theLease. Purchaser acknowledges and agrees that Seller’s liability with respectto Seller’s representations and warranties in this Agreement and the Leasesshall be limited to Seller or Seller’s interest in the Properties, andPurchaser shall have no recourse against Seller’s Affiliates, or theirrespective directors, shareholders, employees, agents, representatives, whomshall have no personal liability. Purchaser further acknowledges and agreesthat its obligations under this Agreement shall not be subject to any financingcontingency or other contingencies or satisfaction of conditions except to theextent specifically set forth herein and Purchaser shall have no right toterminate this Agreement or receive a return of the Deposit (or the accruedinterest thereon), except as expressly provided in the Agreement.

 

(4)           Each Seller, individually and not jointly,represents and warrants to the respective Purchaser as follows:

 

1.             Seller is validity existing and in goodstanding under the laws of its State of incorporation and the State in which itowns any property. Seller has either (i) the company or (ii) corporate powerand authority

 

11

----

 

to conduct itsbusiness in all material respects as now conducted, to own or hold itsProperty, to lease its Property and to enter into and perform its obligationsunder this Agreement and when executed and delivered will have either (i) thecompany or (ii) the corporate power and authority to enter into and perform itsobligations under the documents described on **Exhibit “C”**attached hereto. To the extent applicable, Seller is duly qualified to dobusiness and is in good standing as a foreign business entity in thejurisdiction where it owns property.

 

2.*            *(A)This Agreement has been and, when executed and delivered by the Seller, each ofthe documents required to be executed and/or delivered pursuant to Section 11hereof, including but not limited to those described on **Exhibit “C”**,will have been duly (a) authorized by all necessary (i) company or (ii)corporate action, and (b) executed and delivered to Purchaser. At Closing,performance of this Agreement and each of the documents required to be executedand/or delivered pursuant to Section 11 hereof, including but not limitedto those described on **Exhibit “C”**,that have been executed and delivered by Seller to Purchaser will not, (x)require any approval of the members/stockholders of Seller or any approval orconsent of any trustee or holder of any indebtedness or obligation of Seller,other than such consents and approvals as have been obtained, (y) contraveneany applicable law binding on Seller or (z) except as set forth on Schedule 8(4)(2),materially contravene or result in any material breach of or constitute anymaterial default under Seller’s organizational documents or any indenture,judgment, order, mortgage, loan agreement, contract, partnership or jointventure agreement, lease or other agreement or instrument to which Seller is aparty or by which Seller is bound, or result in the creation of any Lien uponany Property.

 

(B) Whenexecuted and delivered by American Express Financial Corporation (“Guarantor”)at Closing, the Guaranty will have been duly (a) authorized by all necessarycorporate action, and (b) executed and delivered to Purchaser. At Closing,performance of the Guaranty will not, (x) require any approval of thestockholders of Guarantor or any approval or consent of any trustee or holderof any indebtedness or obligation of Guarantor other than such consents andapprovals as have been obtained, (y) contravene any applicable law binding onGuarantor or (z) except as set forth on Schedule 8(4)(2), materiallycontravene or result in any material breach of or constitute any materialdefault under the organizational documents of Guarantor, or any indenture,judgment, order, mortgage, loan agreement, contract, partnership or jointventure agreement, lease or other agreement or instrument to which Guarantor isa party or by which Guarantor is bound, or result in the creation of any Lienupon the Property.

 

3.             Allaction by any Governmental Authority (**“Governmental Action”**)required in connection with the execution, delivery and performance by Sellerof the documents required to be executed and/or delivered

 

12

----

 

pursuant to Section 11hereof, including but not limited to those described on **Exhibit “C”**, has been or will have beenobtained, given or made at or prior to Closing, including, without limitation,obtaining all approvals from any federal or state bank regulatory authorities.For purposes of this Agreement, **“Governmental****Authority”** shall mean the UnitedStates, the states or provinces in which the Properties are located and anypolitical subdivision thereof, and any and all agencies, departments,commissions, boards, bureaus, bodies, councils, offices, authorities, orinstrumentality of any of them, of any nature whatsoever for any governmentalunit (federal, state, county, municipal, city, foreign or otherwise) whethernow or hereafter in existence.

 

4.             ToSeller’s knowledge, but without independent investigation or duty of inquiry,except as may be set forth in the reports listed on Schedule 8(4)(4) (copies of which Purchaser acknowledges receipt priorto the date hereof), Seller has not received any written notice of buildingcode violations or violations of Environmental Laws that (a) have not beencured, or (b) are not de minimis in nature.

 

5.             Sellerhas no actual knowledge (i) and has received no written notice of any specialassessments affecting the Properties that would materially and adversely affectthe value of the Properties; (ii) and has received no written notice of anycondemnation proceedings affecting any of the Properties; (iii) of any ofSeller’s employees having any contracts or agreements with Seller and relatingto the Properties that will survive the expiration of the Lease or of any othermaterial contracts that are binding on any of the Properties and that willsurvive the expiration of the Lease, other than those that are cancelablewithout penalty upon no more than thirty (30) days’ notice.

 

6.             Exceptfor that certain lease between TRS, as lessor, and American Express BankFederal Savings Bank, as lessee, which commenced on February 1, 2004, asthe same may have been amended, for a portion of the AESC-SLC Property and thatcertain Amended and Restated Lease Agreement No. [2] between TRS, as lessor,and American Express Centurion Bank, as lessee, made as of January 1,2004, as the same may have been amended, for a portion of the AESC-SLCProperty, which leases shall be subordinated to the Lease to TRS for theAESC-SLC Property, Seller represents to Purchaser that there are no recordedleases on any of the Properties or any other rights to occupy the Properties.

 

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

 

(5)           Ifat or prior to the Closing, (A) Purchaser shall become aware (whether throughits own efforts, by notice from Seller or otherwise) that any of therepresentations or warranties made herein by Seller are untrue, inaccurate orincorrect and shall give Seller notice thereof at or prior to the Closing, or(B) Seller shall notify

 

13

----

 

Purchaser thata representation or warranty made herein by Seller is untrue, inaccurate orincorrect, then Seller may, in its sole discretion, elect by notice toPurchaser to adjourn the Closing one or more times for up to sixty (60) days inthe aggregate in order to cure or correct such untrue, inaccurate or incorrectrepresentation or warranty. If any such representation or warranty ismaterially untrue, inaccurate or incorrect, and is not cured or corrected bySeller on or before the Closing Date (or the final adjourned Closing Date asprovided above, if Seller elects to adjourn the Closing), then Purchaser, asits sole remedy for any and all such materially untrue, inaccurate or incorrectmaterial representations or warranties, shall elect either (x) to waive suchmisrepresentations or breaches of warranties and consummate the transactionscontemplated hereby without any reduction of or credit against the PurchasePrice, (y) if such misrepresentation is specific to a Property (as opposed tobeing applicable to all Properties), to delete such Property from thisAgreement and receive a credit against the Purchase Price in an amount equal tothe portion of the Purchase Price allocated to such Property (which includesthe applicable Deposit Allocation) or (z) if such misrepresentation is notspecific to a Property, to terminate this Agreement by notice given to Selleron the Closing Date, in which event, this Agreement shall be terminated, theDeposit (and all interest accrued thereon, if any) shall revert to Purchaserand neither party shall have any further rights, obligations or liabilitieshereunder, except for the Termination Obligations. Purchaser acknowledges andagrees that (x) at or prior to the Closing, Purchaser’s rights and remedies inthe event any of Seller’s representations or warranties made in this Agreementare untrue, inaccurate or incorrect shall be only as provided in this Section 8,and (y) if the Closing does not occur by virtue of such breach, Purchaserhereby expressly waives, relinquishes and releases all other rights or remediesavailable to it at law, in equity or otherwise (including, without limitation,the right to seek damages from Seller) as a result of any of Seller’srepresentations or warranties made in this Agreement being untrue, inaccurateor incorrect. If Purchaser elects to consummate the transactions contemplatedhereby after receipt of notice of the breach or after its having otherwisebecome aware of such breach, then Purchaser shall be deemed to have waived suchmisrepresentation or breach of warranty and there shall be no reduction of orcredit against the Purchase Price, and the Purchaser shall not use Seller’sbreach as a basis for delaying or refusing to proceed to Closing.

 

(6)           Inthe event the Closing occurs, notwithstanding anything contained in this Section 8or elsewhere in this Agreement to the contrary, Purchaser hereby expresslywaives, relinquishes and releases any right or remedy available to it at law,in equity or under this Agreement to make a claim against Seller for damagesthat Purchaser may incur, or to rescind this Agreement and the transactionscontemplated hereby, as the result of any of Seller’s representations orwarranties being untrue, inaccurate or incorrect if Purchaser knew that suchrepresentation or warranty was untrue, inaccurate or incorrect at the time ofthe Closing and Purchaser nevertheless closes title hereunder.

 

(7)           Therepresentations and warranties of Seller set forth in this Section 8 andelsewhere in this Agreement shall be true, accurate and correct in all materialrespects upon the execution of this Agreement and shall be deemed to berepeated on and as of the Closing Date. The representations and warranties(whether

 

14

----

 

express orimplied) of Seller set forth in this Section 8 and elsewhere in thisAgreement shall remain operative and shall survive the Closing and theexecution and delivery of the Deed for a period of two hundred seventy (270)days following the Closing Date, and no action or claim based thereon shall becommenced after such period, but any claim made within such 270-day period shallsurvive such period until finally determined and all amounts, if and asrequired, are paid. If Purchaser shall have timely commenced an action withrespect to a breach of a representation or warranty made by Seller hereunderand a court of competent jurisdiction shall determine that (A) Seller was inbreach of the applicable representation or warranty as of the date of thisAgreement or as of the Closing Date, (B) Purchaser suffered damages by reasonof such breach, and (C) Purchaser did not have knowledge of such breach on orprior to the date of the Closing, then, Purchaser shall be entitled to receivean amount equal to its damages; provided that in no event shall Purchaser beentitled to receive, in connection with any and all breaches of the representationsand warranties of Seller hereunder, an amount in excess of $2,000,000.00 forits damages notwithstanding that the amount of any damages suffered byPurchaser exceeds $2,000,000.00.

 

(8)           Purchaserrepresents and warrants to Seller as follows:

 

1.             Purchaseris, and any entity or entities to whom Purchaser may assign this Agreement willbe, validly existing and in good standing under the laws of its State ofincorporation and the State in which it will own, following the Closing, theProperties. Purchaser has either (i) the company (ii) corporate and/or (iii)trust power and authority to conduct its business in all material respects asnow conducted, to own or hold its assets, to own or hold the Properties, tolease the Properties and to enter into and perform its obligations under alldocuments to which it is or is to become a party. Purchaser is duly qualifiedto do business and is in good standing as a foreign corporation in anyjurisdiction where the failure to also qualify would have a material adverseeffect on its ability to perform its obligations under all documents to whichit is a party.

 

2.             Eachof the documents to which Purchaser is a party has been duly authorized by allnecessary (i) company, (ii) corporate or (iii) trust action, executed anddelivered to Seller, and performance thereof by Purchaser will not, (1) requireany approval of the members/stockholders of Purchaser or any approval orconsent of any trustee or holder of any indebtedness or obligation ofPurchaser, other than such consents and approvals as have been obtained, (2)contravene any applicable law binding on Purchaser or (3) contravene or resultin any breach of or constitute any default under Purchaser’s organizationaldocuments, or any indenture, judgment, order, mortgage, loan agreement,contract, partnership or joint venture agreement, lease or other agreement orinstrument to which Purchaser is a party or by which Purchaser is bound, orresult in the creation of any Lien upon any property of Purchaser.

 

15

----

 

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

 

4.             Ifat or prior to the Closing, (A) Seller shall become aware (whether through itsown efforts, by notice from Purchaser or otherwise) that any of the representationsor warranties made herein by Purchaser are untrue, inaccurate or incorrect andshall give Purchaser notice thereof at or prior to the Closing, or (B)Purchaser shall notify Seller that a representation or warranty made herein byPurchaser is untrue, inaccurate or incorrect, then Purchaser may, in its solediscretion, elect by notice to Seller to adjourn the Closing one or more timesfor up to sixty (60) days in the aggregate in order to cure or correct suchuntrue, inaccurate or incorrect representation or warranty. If any suchrepresentation or warranty is materially untrue, inaccurate or incorrect, andis not cured or corrected by Purchaser on or before the Closing Date (whetheror not the Closing is adjourned as provided above), then Seller, as its soleremedy for any and all such materially untrue, inaccurate or incorrect materialrepresentations or warranties, shall elect either (x) to waive suchmisrepresentations or breaches of warranties and consummate the transactionscontemplated hereby without any adjustment of the Purchase Price, (y) if suchmisrepresentation is specific to a Property (as opposed to being applicable toall Properties), to delete such Property from this Agreement and to reduce thePurchase Price in an amount equal to the portion of the Purchase Priceallocated to such Property or (z) ifsuch misrepresentation is not specific to a Property, to terminate thisAgreement by notice given to Purchaser on the Closing Date, in which event,this Agreement shall be terminated, the Deposit (and all interest accruedthereon, if any) shall be delivered to Seller and neither party shall have anyfurther rights, obligations or liabilities hereunder, except for the SurvivingObligations. Seller acknowledges and agrees that (a) at or prior to theClosing, Seller’s rights and remedies in the event any of Purchaser’srepresentations or warranties made in this Agreement are untrue, inaccurate orincorrect shall be only as provided in this Section 8, and (b) if theClosing does not occur by virtue of such breach, Seller hereby expresslywaives, relinquishes and releases all other rights or remedies available to itat law, in equity or otherwise (including, without limitation, the right toseek damages from Purchaser) as a result of any of Purchaser’s representationsor warranties made in this Agreement being untrue, inaccurate or incorrect. IfSeller elects to consummate the transactions contemplated hereby after receiptof notice of the breach then Seller shall be deemed to have waived such misrepresentationor breach of warranty and there shall be no adjustment in the Purchase Price,and Seller shall not use Purchaser’s breach as a basis for delaying or refusingto proceed to Closing.

 

16

----

 

5.             Purchaser(including for the purposes of this Section 8(8)(5), any entity that isdirectly or indirectly 15% or more owned by Purchaser or as to which Purchaserdirectly or indirectly has the right to vote 15% or more of the votingsecurities thereof) is not a Significant Competitor (as defined in the Lease)of Seller, and no entity that directly or indirectly has a 15% or greaterinterest in Purchaser is a Significant Competitor (as defined in the Lease) ofSeller.

 

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

 

(10)         Sellerrepresents to Purchaser, as of the date of this Agreement, that Seller has noright, after the Closing, to re-purchase the Property, or any portion thereof,from Purchaser except as expressly set forth in this Agreement. Purchaserrepresents to Seller, as of the date of this Agreement, that Purchaser has noright, after the Closing, to require Seller to re-purchase the Property.

 

9.             CLOSINGCOSTS.

 

(1)           Atthe Closing, Seller shall be liable for the payment of (i) the applicable stateand/or any other jurisdiction transfer and recording taxes (the **“Transfer Tax Payments”**) imposed pursuant to the laws of thestates where the Properties are located or any other Governmental Authority inrespect of the transactions contemplated by this Agreement by wire transfer tothe Title Company or delivery to the Title Company of good, unendorsed,certified or official bank checks, drawn on, or by a Clearing House Bank andpayable to the order of the relevant Governmental Authority together with anyreturn (the **“Transfer Tax Return”**) requiredthereby which shall be duly executed by Seller and Purchaser, (ii) recordingcharges to discharge any mortgages or financing statements, (iii) its share ofthe title insurance related costs as described in Section 6(1)(ii), (iv)one-half of any escrow fees, and (v) the cost of the appraisals, engineeringreports and Phase 1 environmental reports ordered by Seller.

 

(2)           Atthe Closing, Purchaser shall be responsible for (i) its share of the titleinsurance related costs as described in Section 6(1)(ii),(ii) recording charges in connection with the conveyance of the Properties toPurchaser (including, without limitation, recording fees), (iii) one-half ofany escrow fees, and (iv) the cost of the appraisals, engineering reports andPhase 1 environmental reports ordered by Purchaser.

 

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

 

17

----

 

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

 

10.           CONDITIONSPRECEDENT TO CLOSING.

 

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

 

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

 

2.             Sellershall be ready, willing and able to deliver title to the Properties inaccordance with the terms and conditions of this Agreement;

 

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

 

4.             Purchasershall have received at Closing title policies for the Properties with allendorsements required by this Agreement, updated ALTA surveys, the Leases,estoppel certificates in form reasonably acceptable to Seller andsubordination, non-disturbance and attornment agreements substantially in theform attached hereto as **Exhibit “D”** (**“SNDA”**), it being agreed and understood that no event shallSeller’s failure to deliver any estoppel certificates or SNDA be deemed adefault by Seller nor shall any such failure or delay give Purchaser any rightwhatsoever to fail to close this transaction as described herein in the mannerand at the time otherwise prescribed by this Agreement;

 

5.             Asof the Closing Date, there shall be no material reduction in the credit ratingof the tenants under the Leases for the Properties (or with respect to theLease for the AEPC Property, Guarantor) from the date this Agreement isexecuted. (For the purposes of this Section 10(1)5, **“materialreduction”** means, for tenant TRS, an S&P rating of “A” or belowand a Moody’s rating of “Al” or below, and for Guarantor, a Moody’s rating of “A2”or below);

 

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

 

18

----

 

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

 

8.             Onor prior to the Closing Date, (A) Seller shall not have applied for orconsented to the appointment of a receiver, trustee or liquidator for itself orany of its assets unless the same shall have been discharged prior to theClosing Date, and no such receiver, liquidator or trustee shall have otherwisebeen appointed, unless same shall have been discharged prior to the ClosingDate, (B) Seller shall not have admitted in writing an inability to pay itsdebts as they mature, (C) Seller shall not have made a general assignment forthe benefit of creditors, (D) Seller shall not have been adjudicated asbankrupt or insolvent, or had a petition for reorganization granted withrespect to Seller, (E) Seller shall not have filed a voluntary petition seekingreorganization or an arrangement with creditors or taken advantage of anybankruptcy, reorganization, insolvency, readjustment or debt, dissolution orliquidation law or statute, or filed an answer admitting the materialallegations of a petition filed against it in any proceedings under any suchlaw, or had any petition filed against it in any proceeding under any of theforegoing laws unless the same shall have been dismissed, canceled or terminatedprior to the Closing Date.

 

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

 

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

 

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

 

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

 

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

 

19

----

 

transferof the Properties or the consummation of any other transaction contemplatedhereby; and

 

5.             Onor prior to the Closing Date, (A) Purchaser shall not have applied for orconsented to the appointment of a receiver, trustee or liquidator for itself orany of its assets unless the same shall have been discharged prior to theClosing Date, and no such receiver, liquidator or trustee shall have otherwisebeen appointed, unless same shall have been discharged prior to the ClosingDate, (B) Purchaser shall not have admitted in writing an inability to pay itsdebts as they mature, (C) Purchaser shall not have made a general assignmentfor the benefit of creditors, (D) Purchaser shall not have been adjudicated asbankrupt or insolvent, or had a petition for reorganization granted withrespect to Purchaser, (E) Purchaser shall not have filed a voluntary petitionseeking reorganization or an arrangement with creditors or taken advantage ofany bankruptcy, reorganization, insolvency, readjustment or debt, dissolutionor liquidation law or statute, or filed an answer admitting the materialallegations of a petition filed against it in any proceedings under any suchlaw, or had any petition filed against it in any proceeding under any of theforegoing laws unless the same shall have been dismissed, canceled orterminated prior to the Closing Date.

 

(3)           Inthe event that any condition contained in Section 10(1) or 10(2) is notsatisfied, the party entitled to the satisfaction of such condition as acondition to its obligation to close title hereunder shall have as its soleremedy hereunder the right to elect to (i) waive such unsatisfied conditionwhereupon title shall close as provided in this Agreement, (ii) if such failureis by Seller and is specific to a Property, Purchaser may delete such Propertyfrom this Agreement and receive credit against the Purchase Price in an amount equalto the portion of the Purchase Price allocated to such Property (which includesthe applicable Deposit Allocation) or, (iii) if such failures relate to morethan one of the Properties if such failures were by Seller, Purchaser mayterminate this Agreement, or (iv) if such failure is by Purchaser or Seller andis not specific to a Property, terminate this Agreement. Nothing contained inthis Section 10(3) shall be construed so as to bestow any right oftermination upon a party for the failure of a condition to be satisfied unlesssuch party is expressly entitled to the satisfaction of such condition asprovided in Section 10(1) or 10(2). The provisions of this Section 10(3)shall survive the Closing.

 

11.           DOCUMENTS TO BE DELIVERED BY SELLER ATCLOSING. At or prior to the Closing, Seller shall execute, acknowledge anddeliver or cause to be delivered to the Title Company for delivery toPurchaser, pursuant to escrow instructions from Seller and Purchaser, thefollowing for each Property:

 

(1)           Aspecial warranty deed, limited warranty deed or bargain and sale deed, asapplicable (collectively, the **“Deed”**)conveying title to each of the Properties in the forms shown in **Exhibit “E”** annexed hereto and made a part hereof;

 

(2)           Alease for each Property, substantially in the form of the lease attached heretoas **Exhibit “F”** (a **“Lease”**);

 

20

----

 

(3)           ProForma fee title insurance polic(ies) with allendorsements required pursuant to this Agreement insuring the Properties forthe Purchase Price;

 

(4)           CurrentALTA surveys certified to Purchaser and Purchaser’s lender, if any;

 

(5)           Certificatesof Occupancy for the Properties, to the extent required by the applicablemunicipality as a condition of a transfer of title;

 

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

 

(7)           ABring Down Certificate from Seller confirming applicable representations andwarranties in this Agreement at Closing, or if a particular representation orwarranty cannot be re-made at Closing specifying such representation orwarranty and disclosing the materially changed circumstances with respect tosuch representation or warranty;

 

(8)           Suchorganizational documentation, if any, as the Title Company may reasonablyrequire in order to issue an owner’s fee titleinsurance policy based on the Title Commitment;

 

(9)           TheTransfer Tax Payments together with the Transfer Tax Returns, if any;

 

(10)         “FIRPTA”affidavit sworn to by each party constituting Seller in the form of **Exhibit “G”**annexed hereto and made a parthereof. Purchaser acknowledges and agrees that upon Seller’s delivery of suchaffidavit, Purchaser shall not withhold any portion of the Purchase Pricepursuant to Section 1445 of the Internal Revenue Code of 1986, as amended,and the regulations promulgated thereunder;

 

(11)         Allother documents Seller is required to deliver pursuant to the provisions ofthis Agreement and of any applicable laws and/or regulations;

 

(12)         SuchSNDAs and estoppel certificates as may be agreed to by Seller in connectionwith Purchaser’s financing; and

 

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

 

All items tobe delivered under this Section 11 shall be in form and substanceacceptable to Purchaser and its counsel, acting reasonably and in good faith.

 

12.           DOCUMENTS AND PAYMENTS TO BEDELIVERED BY PURCHASER AT CLOSING. At the Closing, Purchaser shall execute,acknowledge and deliver or cause to be delivered to the Title Company fordelivery to Seller, pursuant to escrow instructions from Seller and Purchaser,the following for each Property:

 

(1)           Thecash portion of the Purchase Price payable at the Closing pursuant to Section 2(1),subject to adjustments as expressly provided in this Agreement;

 

(2)           ALease for each Property;

 

21

----

 

(3)           IfPurchaser is a trust, certified copies of the trust agreementpursuant to which Purchaser was formed;

 

(4)           TransferTax Returns, if any;

 

(5)           Suchorganizational documentation, if any, as the Title Company may reasonablyrequire in order to issue an owner’s fee titleinsurance policy based on the Title Commitment;

 

(6)           ABring Down Certificate from Purchaser confirming applicable representations andwarranties in this Agreement at Closing, or if a particular representation orwarranty cannot be re-made at Closing specifying such representation or warrantyand disclosing the materially changed circumstances with respect to suchrepresentation or warranty;

 

(7)           Allother documents Purchaser is required to deliver pursuant to the provisions ofthis Agreement and of any applicable laws and/or regulations;

 

(8)           Acertification from an authorized officer of Inland Western Retail Real EstateTrust, Inc., that Purchaser (including for the purposes of this Section 12(7),any entity that is directly or indirectly 15% or more owned by Purchaser or asto which Purchaser directly or indirectly has the right to vote 15% or more ofthe voting securities thereof) is not a Significant Competitor (as defined inthe Lease) of Seller, and no entity that directly or indirectly has a 15% orgreater interest in Purchaser is a Significant Competitor (as defined in theLease) of Seller.  Such evidence mayinclude, but shall not be limited to, certificates of incorporation orformation, and operating agreements;

 

(9)           AnAssignment and Assumption Agreement between Purchaser and Purchaser’sDesignees, in form and substance reasonably acceptable to Seller; and

 

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

 

All items tobe delivered under this Section 12 shall be in form and substanceacceptable to Seller and its counsel, acting reasonably and in good faith.

 

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

 

14.           AS-IS.

 

(1)           PURCHASERACKNOWLEDGES AND AGREES THAT UPON CLOSING SELLER SHALL SELL AND CONVEY TOPURCHASER AND PURCHASER SHALL ACCEPT THE PROPERTIES “AS IS, WHERE IS, WITH ALLFAULTS”, INCLUDING, WITHOUT LIMITATION, THOSE ARISING FROM, RELATED TO OR INCONNECTION WITH HAZARDOUS SUBSTANCES AT, IN, ON, ABOVE, UNDER, ABOUT, ORMIGRATING TO OR FROM OR

 

22

----

 

AFFECTING THEPROPERTIES, PURCHASER HAS HAD THE OPPORTUNITY TO INVESTIGATE THE PROPERTIES(INCLUDING, WITHOUT, LIMITATION THE ENVIRONMENTAL CONDITION OF EACH PROPERTY)AND HAS NOT RELIED AND WILL NOT RELY ON, AND SELLER IS NOT LIABLE FOR OR BOUNDBY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONSOR INFORMATION PERTAINING TO THE PROPERTIES OR RELATING THERETO (INCLUDINGSPECIFICALLY, WITHOUT LIMITATION, ENVIRONMENTAL CONDITIONS) MADE OR FURNISHEDBY SELLER DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING EXCEPT FOR THEREPRESENTATIONS AND WARRANTIES OF THE SELLER CONTAINED HEREIN OR IN THE LEASES.Purchaser and Purchaser’s successors, assigns, operators, mortgagees, tenants,licensees and occupants of the Properties waive, release and discharge Sellerand its parents, subsidiaries, affiliates, partners, officers, directors,employees, agents, representatives, shareholders, predecessors, successors andassigns from, without limitation, any and all obligation or liability, whetherknown or unknown, foreseen or unforeseen, threatened or actual, now existing orhereafter in existence, of Purchaser arising from relating to or in connectionwith the presence of Hazardous Substances at, in, on, above, under, about ormigrating to or from the Properties. **“HazardousSubstances”**shall mean each and every element, compound, chemicalmixture, contaminant, pollutant, material, waste, or other substance which isdefined, determined or identified as hazardous or toxic under any EnvironmentalLaw or is otherwise regulated by any Governmental Authority. **“Environmental****Laws”**shall mean any federal, state or local statute, regulation or ordinance or anyjudicial or administrative decree or decision, whether now existing orhereafter enacted, promulgated or issued, with respect to any HazardousSubstances, drinking water, ground water, wetlands, landfills, open dumps,storage tanks, underground storage tanks, solid waste, waste water, storm waterrunoff, waste emissions or wells.

 

The releasecontained in this Section 14(1) above shall run with the land, be bindingupon Purchaser and Purchaser’s successors and assigns, and all future owners,operators, mortgagees, tenants, licensees and occupants of the Properties andshall inure to the benefit of Seller and its successors and assigns, and shallsurvive the Closing.

 

(2)           Purchaseror anyone claiming by, through or under Purchaser, hereby fully and irrevocablyreleases Seller and Seller’s Affiliates, and their agents and representatives,from any and all claims that it may now have or hereafter acquire againstSeller or Seller’s Affiliates, or their agents or representatives for any cost,loss, liability, damage, expense, action or cause of action, whether foreseenor unforeseen, arising from or related to any construction defects, errors oromissions on or in the Properties, the presence of Hazardous Substances, or anyother conditions (whether patent, latent or otherwise) affecting theProperties, except for claims against Seller based upon any obligations andliabilities of Seller expressly provided in this Agreement or the Leases.Purchaser further acknowledges and agrees that this release shall be given fullforce and effect according to each of its expressed terms and provisions,including, but not limited to, those relating to unknown and suspected claims,damages and causes of action. As a material covenant and condition of thisAgreement, Purchaser agrees that in

 

23

----

 

theevent of any such construction defects, errors or omissions, the presence ofHazardous Substances, or any other conditions affecting the Properties,Purchaser shall have no claims against Seller, except for claims against Sellerbased upon any obligations and liabilities of Seller expressly provided in thisAgreement.

 

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

 

(4)           Eachof Purchaser and Seller hereto acknowledge that it has consulted with its taxadvisors in connection with the transactions contemplated by this Agreement,and each party hereto acknowledges that it has not relied upon any advice oropinions given by the other party or its attorneys or agents, nor has any partyhereto guaranteed any particular tax consequences in connection with thetransactions contemplated by this Agreement.

 

(5)           Purchaseragrees that it will not initiate any inspection of the Properties by any GovernmentalAuthorities but shall be entitled to contact the appropriate GovernmentalAuthorities to obtain zoning letters.

 

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

 

15.           BROKER.Purchaser and Seller each represent and warrant to the other that it has notdealt or negotiated with, or engaged on its own behalf or for its benefit, anybroker, finder, consultant, advisor, or professional in the capacity of abroker or finder in connection with this Agreement or the transactionscontemplated hereby other than Citigroup Global Markets, Inc. (**“CITIGROUP”**)and TCC. Purchaser acknowledges and represents that it has also dealtwith Stan Johnson Company in connection with the transactions contemplatedhereby. Each party hereby agrees to indemnify, defend and hold the otherharmless from and against any and all claims, demands, causes of action,losses, costs and expenses (including reasonable attorneys’ fees, court costsand disbursements) arising from its breach of the foregoing representations.Seller agrees that it shall pay CITIGROUP and TCC in accordance with separateagreements between Seller and CITIGROUP and Seller and TCC. Purchaser agreesthat it shall pay Stan Johnson Company in accordance with a separate agreementbetween Purchaser and Stan Johnson Company. The obligations and representationsand warranties contained in this Section 15 shall survive the terminationof this Agreement and/or the Closing.

 

16.           CASUALTY;CONDEMNATION.

 

(1)           Ifa “material” part (as hereinafter defined) of any of the Properties is damagedor destroyed by fire or other casualty, Seller shall notify Purchaser of suchfact and, except as hereinafter provided, Purchaser shall have the option todelete such Property from this Agreement upon notice to Seller given not laterthan ten (10) days after receipt of Seller’s notice. Notwithstanding theforegoing, if a “material” part of any of the Properties is damaged ordestroyed and Purchaser elects to delete such Property from this Agreement asprovided above, Purchaser’s election shall be ineffective if within ten (10)days after Seller’s receipt of

 

24

----

 

Purchaser’selection notice, Seller shall elect by notice to Purchaser to repair suchdamage or destruction and shall thereafter complete such repair within ninety(90) days after the then scheduled Closing Date at the time of Purchaser’selection. If Seller makes such election to repair, Seller shall have the rightto adjourn the Closing Date one or more times for up to ninety (90) days in theaggregate in order to complete such repairs and shall have the right to retainall insurance proceeds which Seller may be entitled to receive as a result ofsuch damage or destruction. If (i) Purchaser does not elect to delete suchProperty from this Agreement, (ii) Purchaser elects to delete such Propertyfrom this Agreement but such election is ineffective because Seller elects torepair such damage and completes such repair within such 120-day periodprovided above, or (iii) there is damage to or destruction of an “immaterial”part (“immaterial” is herein deemed to be any damage or destruction which isnot “material”, as such term is hereinafter defined) of any of the Properties,Purchaser shall close title as provided in this Agreement and, at the Closing,Seller shall, unless Seller has repaired such damage or destruction prior tothe Closing, apply the proceeds of any insurance collected by Seller inaccordance with the terms of the Lease. A **“material”** partof any of the Properties shall be deemed to have been damaged or destroyed ifthe cost of repair or replacement shall be $250,000 or more as reasonably asestimated by Seller or if Tenant can terminate its Lease or abate rentthereunder, or the Property cannot be legally occupied. This provision shallnot survive Closing or the termination of this Agreement.

 

(2)           If,prior to the Closing Date, all or any “significant” portion (as hereinafterdefined) of any of the Properties is taken by eminent domain or condemnation(or is the subject of a pending taking which has not been consummated) (in eachcase, a **“Taking”**), Seller shall notifyPurchaser of such Taking and Purchaser shall have the option to delete suchProperty from this Agreement upon notice to Seller given not later than ten(10) days after receipt of Seller’s notice. If Purchaser does not elect todelete such Property from this Agreement, or if a Taking involves an “insignificant”portion (“insignificant” is herein deemed to be any taking which is not “significant”,as such term is herein defined) of any of the Properties, at the Closing Sellershall assign and turn over, and Purchaser shall be entitled to receive andkeep, all awards or other proceeds for such Taking. A “significant” portion ofany of the Properties means a Taking of twenty percent (20%) or more of anyProperty or if Tenant can terminate its Lease or abaterent thereunder, or the Property cannot be legally occupied. This provisionshall not survive Closing or the termination of this Agreement.

 

(3)           Notwithstandinganything contained in Section 16(1) and Section 16(2) to thecontrary, if a Property is not deleted from this Agreement as provided in Section 16(1)or Section 16(2) and the eminent domain or condemnation proceeds payablewith respect to the affected Property as a result of any Taking exceeds theportion of the Purchase Price allocated to such Property in Section 2(1)of this Agreement, Seller’s obligation to pay over to Purchaser those proceedspaid to Seller prior to the Closing shall be limited to the allocated portionof the amount of the Purchase Price and Seller shall be entitled to retain theremainder of such proceeds. To the extent that payment of all or any portion ofsuch proceeds does not occur prior to the Closing, the parties agree thatSeller shall be entitled to that portion of the proceeds in excess of theallocated portion of the Purchase Price,

 

25

----

 

whichagreement shall survive the Closing. To the extent that no proceeds are due toSeller in connection with Section 16(1) or 16(2) above, this Section 16(3)shall not survive the Closing.

 

(4)           Ifa Property is deleted from this Agreement pursuant to Section 16(1) or Section 16(2)above, the Purchase Price shall be reduced by an amount equal to the portion ofthe Purchase Price allocated to such Property as set forth in Section 2(1)hereof.

 

17.          REMEDIES.

 

(1)           A.                                   Ifthe Closing fails to occur with respect to not more than two (2) of theProperties and such failure to close is on account of (i) Seller noteliminating all Unacceptable Encumbrances not waived by Purchaser (whichfailure to eliminate is due to circumstances beyond Seller’s reasonable controland is not due to Seller’s willful bad faith hereunder; provided, however, inno event shall Seller be required to bring any action or proceeding or make anypayments or otherwise incur any expenses in order to eliminate any UnacceptableEncumbrances other than as set forth in Section 6(2)), or, in lieu thereof,arranging for title insurance reasonably acceptable to Purchaser insuringagainst enforcement of such Unacceptable Encumbrances against, or collection ofthe same out of, such Properties, or (ii) Seller’s failure, for whatever reason(other than Seller’s willful, bad faith default beyond applicable grace andnotice periods hereunder), to perform its obligations under this Agreement,then after five (5) business days written notice from Purchaser and anyadditional time as is necessary so as to afford Seller a reasonable opportunityto cure, Purchaser, as its sole remedy for such failure of Seller to perform,shall (x) delete such specific Property(ies) from this Agreement, (y) receive acredit against the Purchase Price in an amount equal to the portion of thePurchase Price allocated to such Property(ies), and (z) proceed to Closing onthe non-deleted Properties. In addition, Seller shall reimburse Purchaser forits actual, reasonable third party costs incurred in connection with eachdeleted Property, not to exceed $100,000. In the event that Seller’s failure toperform under this Agreement with respect to not more than two (2) Propertiesis, according to a judgment of a court of competent jurisdiction, willful andin bad faith, Purchaser will also be entitled to reimbursement of its damagesup to $2,000,000 per Property, not to exceed $4,000,000 in the aggregate forboth deleted Properties. Notwithstanding any provision of this Agreement to thecontrary, in no event may Purchaser terminate this Agreement for any event ofdefault or non-performance for which the stated remedy for Purchaser is todelete specific Property(ies) from this Agreement andreceive a credit against the Purchase Price in an amount equal to the portionof the Purchase Price allocated to such Property(ies) (which includes theapplicable Deposit Allocation). In the event that Seller fails, for reasonsbeyond Seller’s reasonable control, to close on the Canada Property under theCanada Contract, then the reference in the first and third sentences of this Section 17(1)Ato “not more than two (2) Properties” shall be deemed changed to “not more thanone (I) Property” and the reference in the third sentence of this Section 17(1)Ato “$4,000,000” shall be deemed changed to “$2,000,000”.

 

26

----

 

B.                                     If the Closingfails to occur with respect to three (3) or more of the Properties and suchfailure to close is on account to Seller not eliminating all UnacceptableEncumbrances (which failure to eliminate is due to circumstances beyond Seller’sreasonable control and is not due to Seller’s willful bad faith hereunder;provided, however, in no event shall Seller be required to bring any action orproceeding or make any payments or otherwise incur any expenses in order toeliminate any Unacceptable Encumbrances other than as set forth in Section 6(2))not waived by Purchaser, or, in lieu thereof, arranging for title insurancereasonably acceptable to Purchaser insuring against enforcement of suchUnacceptable Encumbrances against, or collection of the same out of, theProperties, then after five (5) business days written notice from Purchaser andany additional time as is necessary so as to afford Seller a reasonableopportunity to cure, Purchaser, as its sole remedy for such failure of Seller,may terminate this Agreement by notice to Seller. If Purchaser elects toterminate this Agreement pursuant to this Section 17(1)B,then upon notice to Seller, this Agreement shall be terminated and neitherparty shall have any further rights, obligations or liabilities hereunder,except for those rights, obligations and liabilities which expressly survivethe termination of this Agreement in the event that no Closing occurs hereunder(the **“Termination Obligations”**), and exceptthat Purchaser shall be entitled to a return of the Deposit. Except as setforth in this Section 17(1), Purchaser hereby expressly waives,relinquishes and releases any right or remedy available to it at law, in equityor otherwise by reason of Seller not eliminating all Unacceptable Encumbrancesnot waived by Purchaser, or, in lieu thereof, arranging for title insurancereasonably acceptable to Purchaser insuring against enforcement of suchUnacceptable Encumbrances against, or collection of the same out of, theProperties. In the event Seller fails, for reasons beyond Seller’s reasonablecontrol, to close on the Canada Property under the Canada Contract, then thereference in the first sentence of this Section 17(1)B to “three (3) ormore of the Properties” shall be deemed changed to “two (2) or more of theProperties.”

 

(2)           A.                                   Ifthe Closing fails to occur with respect of three (3) or more of the Propertiesand such failure to close is on account of Seller’s breach of its performanceobligations under this Agreement and is in a case where such failure to closeis not covered in Section 17(1)(B) above, then after five (5) businessdays written notice from Purchaser and any additional time as is necessary soas to afford Seller a reasonable opportunity to cure, Purchaser, as its soleremedy for such breach of Seller of its performance obligations hereunder, mayelect to either: (i) terminate this Agreement by notice to Seller; or (ii) seekspecific performance from Seller, provided that in no event shall Seller beobligated to spend more than the lesser of (A) two (2%) percent of theAllocated Purchase Prices of the affected Properties or (B) $500,000 peraffected Property (including, but not limited to, attorneys’ fees) to performhereunder; provided further, that where Purchaser has elected to terminate theAgreement and where (and only in such instances where) Seller’s failure iswillful and in bad faith according to a judgment of a court of competentjurisdiction, Purchaser will be entitled to reimbursement of its damages up to$2,000,000 per Property not to exceed in the aggregate with respect to allProperties, Five Million ($5,000,000) Dollars; and provided further, that wherePurchaser has elected to terminate this Agreement and where (and only in suchinstances where) Seller’s failure is not willful and in

 

27

----

 

bad faithaccording to a judgment of a court of competent jurisdiction, Purchaser shallbe entitled to reimbursement of its damages up to an amount not to exceed inthe aggregate with respect to all Properties, Two Million ($2,000,000) Dollars.In the event Seller fails, for reasons beyond Seller’s reasonable control, toclose on the Canada Property under the Canada Contract, then the reference inthe first sentence of this Section 17(1)B to “three (3) or more of theProperties” shall be deemed changed to “two (2) or more of the Properties”.

 

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

 

(3)           Ifthe Closing fails to occur by reason of Purchaser’s failure to perform itsobligations hereunder, then Seller as its sole remedy, may elect to either (i)terminate this Agreement by notice to Purchaser and receive the Deposit, or(ii) seek specific performance from Purchaser, and (1) where (and only in suchinstances where) Purchaser’s failure is willful and in bad faith according to ajudgment of a court of competent jurisdiction, Seller shall be entitled toreimbursement of its damages up to an amount not to exceed in the aggregatewith respect to all Properties, Five Million ($5,000,000) Dollars, or (2) wherePurchaser’s failure is not willful and in bad faith according to a judgment ofa court of competent jurisdiction, Seller shall be entitled to reimbursement ofits damages up to an amount not to exceed in the aggregate with respect to allProperties, Two Million ($2,000,000) Dollars. If Seller elects to terminatethis Agreement pursuant to this Section 17(3), then upon notice toPurchaser, this Agreement shall be terminated, and neither party shall have anyfurther rights, obligations or liabilities hereunder, except for theTermination Obligations and except Seller shall receive the Depositnotwithstanding any damage limits or waiver to the contrary. Nothing containedherein shall limit or restrict Seller’s ability to pursue any rights orremedies it may have against Purchaser with respect to the TerminationObligations subject to the express damages limits set forth in this Section 17(3).

 

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

 

28

----

 

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

 

18.           INTENTIONALLYDELETED.

 

19.           INTENTIONALLYDELETED.

 

20.           INTENTIONALLYDELETED.

 

21.           ASSIGNMENT. This Agreement may not beassigned by Purchaser without the express written consent of Seller, whichconsent Seller shall have right to withhold or grant in its sole and absolutediscretion; provided, however, that Purchaser shall be entitled,upon giving prior written notice to Seller, to assign its rights under thisAgreement to Purchaser’s Designees listed in Section 2(1) and/or to InlandWestern Retail Real Estate Trust, Inc. (the **“REIT”**); provided that the Purchaser’sDesignees and the REIT, and any entity owned or controlled by the Purchaser’sDesignees or the REIT, as well as any entity that has a 15% or greater interestin any of the Purchaser’s Designees or the REIT, is not a SignificantCompetitor, as defined in the Lease. The entity to whom Purchaser assigns thisAgreement as permitted by this Section 21 shall become a “Purchaser” underthis Agreement, but such an assignment and assumption shall not relieve InlandReal Estate Acquisitions, Inc. of the obligations of the “Purchaser” under thisAgreement.

 

22.           INTENTIONALLYDELETED.

 

23.           NOTICES.

 

(1)            Allnotices, elections, consents, approvals, demands, objections, requests or othercommunications which Seller, Purchaser or Escrow Agent may be required ordesire to provide pursuant to, under or by virtue of this Agreement must be inwriting and sent by (i) a prepaid nationally recognized overnight courierservice, and any such notice shall be deemed received one (1) business dayafter delivery to a nationally recognized courier service specifying overnightdelivery, (ii) by confirmed facsimile immediately followed by overnightdelivery, or (iii) U.S. certified or registered mail, return receipt requested,postage prepaid, addressed as follows:

 

If to Seller:

 

FRC WestProperty, L.L.C.

c/oAmerican Express Company

200 VeseyStreet

New York, NewYork 10285

Attention:Jeffrey S. Furman, Vice President Global Real Estate

Facsimile:212/640-9685

 

American Express TravelRelated Services Company, Inc.

c/o American Express Company

200 Vesey Street

New York, NewYork 10285

Attention:Jeffrey S. Furman, Vice President Global Real Estate

Facsimile:212/640-9685

 

29

----

 

IDS PropertyCasualty Insurance Company

c/oAmerican Express Company

200 VeseyStreet

New York, NewYork 10285

Attention:Jeffrey S. Furman, Vice President Global Real Estate

Facsimile:212/640-9685

 

With copiesto:

 

Sills CummisEpstein & Gross

One RiverfrontPlaza

Newark, NewJersey 07102

Attention:       Mark S. Levenson, Esq.

Facsimile:       973-643-6500

 

If to Purchaser:

 

Inland RealEstate Acquisitions, Inc.

2901 ButterfieldRoad

Oak Brook,Illinois 60523

Attention: G.Joseph Cosenza, President

Facsimile:630-218-4935

 

With copiesto:

 

Inland RealEstate Acquisitions, Inc.

2901 ButterfieldRoad

Oak Brook,Illinois 60523

Attention:       Gary Pechter,Esq.

Facsimile:       630-218-4900

 

If to EscrowAgent:

 

Chicago Titleand Trust Company

171 NorthClark Street

3rdFloor, Div. II

Chicago,Illinois 60601-3294

Attention:Nancy Castro

Facsimile:312-223-2108

 

(2)           Seller,Purchaser or Escrow Agent may designate another addressee or change its addressfor notices and other communications hereunder by a notice given to the otherparties in the manner provided in this Section 23(2). A notice or othercommunication sent in compliance with the provisions of this Section 23shall be deemed received when actually received, as evidenced by the returnreceipt, or when delivery is first refused. From time to time any party maydesignate a new address for purposes of notice hereunder by giving two (2) dayswritten notice thereof to each of the other parties hereto. All notices givenhereunder shall be irrevocable unless expressly specified otherwise.

 

30

----

 

24.           PROPERTY INFORMATION AND CONFIDENTIALITY.

 

(1)           Purchaseragrees that, prior to the Closing, all Property Information shall be keptstrictly confidential and shall not, without the prior written consent ofSeller, be disclosed by Purchaser or Purchaser’s Representatives, in any mannerwhatsoever, in whole or in part, and will not be used by Purchaser or Purchaser’sRepresentatives, directly or indirectly, for any purpose other than evaluatingthe Properties. Moreover, Purchaser agrees that, prior to the Closing, theProperty Information will be transmitted only to Purchaser’s Representativeswho need to know the Property Information for the purpose of evaluating theProperties, and who are informed by the Purchaser of the confidential nature ofthe Property Information. The provisions of this Section 24(1) shall in noevent apply to Property Information which is a matter of public record andshall not prevent Purchaser from complying with any law, including, withoutlimitation, governmental regulatory, disclosure, tax and reportingrequirements, provided that prior to Purchaser disclosing any PropertyInformation as set forth in this sentence, Purchaser shall notify, and consultwith, Seller regarding such disclosure. Purchaser shall indemnify and hold Sellerand Seller’s Affiliates harmless from and against any and all claims, demands,causes of action, losses, damages, liabilities, costs and expenses (including,without limitation, attorneys’ fees and disbursements) suffered or incurred bySeller or any of Seller’s Affiliates and arising out of or in connection with abreach by Purchaser or Purchaser’s Representatives of the provisions of this Section 24(1).

 

(2)           Purchaserand Seller, for the benefit of each other, hereby agree that between the datehereof and the Closing Date, they will not release or cause or permit to bereleased any press notices, publicity (oral or written), advertising orpromotional materials relating to, or otherwise announce or disclose or causeor permit to be announced or disclosed, in any manner whatsoever, the terms,conditions or substance of this Agreement or the transactions contemplatedherein, without first obtaining the written consent of the other party hereto.It is understood that the foregoing shall not preclude either party fromdiscussing the substance or any relevant details of the transactionscontemplated in this Agreement, subject to the terms of Section 24(1),with any of its attorneys, accountants, professional consultants, potentiallenders or potential investors in a proposed Rule 144A offering, as the casemay be, or prevent either party hereto from complying with any law, including,without limitation, governmental regulatory, disclosure, tax and reportingrequirements or prevent either party from making any disclosure required toobtain any governmental consents or other third party consents that arerequired to be obtained prior to the Closing or that are necessary in order topursue the subdivisions of the AESC-SLC Property and the AEPC Property,provided that prior to Purchaser releasing or otherwise disclosing anyinformation as set forth in this sentence, Purchaser shall notify, and consultwith, Seller regarding such release or disclosure. Purchaser shall indemnifyand hold Seller harmless from and against any and all claims, demands, causesof action, losses, damages, liabilities, costs and expenses (including, withoutlimitation, attorneys’ fees and disbursements) suffered or incurred and arisingout of or in connection with a breach by Purchaser of the provisions of this Section 24(2).Notwithstanding the foregoing, Seller may make disclosures (i) that it believesare desirable to make to its employees in explanation of this transaction andin answering questions that Seller’s employees may raise and (ii) that Sellerbelieves are necessary to make under the Securities Exchange Act of 1934(including the

 

31

----

 

filingof this Agreement as an exhibit to any filing required or otherwise necessaryunder such act). Further, Seller shall be entitled to issue a press releasepertaining to the transactions contemplated by this Agreement upon (x) thesigning of this Agreement and (y) the closing of transactions contemplatedhereby (or any one of them); provided that Seller shall give Purchaser anopportunity to review such press release(s) before same are issued.

 

(3)           Inthe event this Agreement is terminated, Purchaser and Purchaser’sRepresentatives shall either (i) promptly deliver to Seller all originals andcopies of the Property Information referred to in clause (i) of Section 24(4)in the possession of Purchaser and Purchaser’s Representatives or (ii) confirmin writing that such Property Information has been destroyed, at Purchaser’sexpense. In the event Purchaser or Purchaser’s Representatives fail to complywith the preceding sentence within ten (10) business days after this Agreementis terminated, Purchaser shall pay Seller $10,000 for each day after the tenthbusiness day that Seller has not received materially all Property Informationand/or the confirmation of destruction, and Purchaser shall indemnify, defendand hold Seller harmless from and against all losses, damages and claimsarising from Purchaser’s or Purchaser’s Representatives’ failure.

 

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

 

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

 

(6)           Notwithstandinganything contained herein to the contrary, Purchaser shall continue to abide bythat certain letter agreement regarding confidentiality between American ExpressCompany and Purchaser, dated as of August 9, 2004.

 

(7)           Theprovisions of this Section 24 shall survive the termination of thisAgreement and/or the Closing.

 

25.           MISCELLANEOUS.

 

(1)           ThisAgreement shall not be altered, amended, changed, waived, terminated orotherwise modified in any respect or particular, and no consent or approval

 

32

----

 

requiredpursuant to this Agreement shall be effective, unless the same shall be inwriting and signed by or on behalf of the party to be charged.

 

(2)           ThisAgreement shall be binding upon and shall inure to the benefit of the partieshereto and to their respective heirs, executors, administrators, successors andpermitted assigns. This Agreement is an agreement solely for the benefit ofSeller and Purchaser (and their permitted successors and/or assigns). No otherperson, party or entity shall have any rights hereunder nor shall any otherperson, party or entity be entitled to rely upon the terms, covenants and provisionscontained herein. The provisions of this Section 25(2) shall survive theClosing.

 

(3)           Allprior statements, understandings, representations and agreements between theparties, oral or written, are superseded by and merged in this Agreement, whichalone fully and completely expresses the agreement between them in connectionwith this transaction and which is entered into after full investigation,neither party relying upon any statement, understanding, representation oragreement made by the other not embodied in this Agreement or in the Lease.This Agreement shall be given a fair and reasonable construction in accordancewith the intentions of the parties hereto, and without regard to or aid ofcanons requiring construction against Seller or the party drafting thisAgreement.

 

(4)           Exceptas otherwise expressly provided herein, Purchaser’s acceptance of the Deedsshall be deemed a discharge of all of the obligations of Seller hereunder andall of Seller’s representations, warranties, covenants and agreements hereinshall merge in the documents and agreements executed at the Closing and shallnot survive the Closing.

 

(5)           Purchaseragrees that it does not have and will not have any claims or causes of actionagainst any disclosed or undisclosed officer, director, employee, trustee,shareholder, partner, principal, parent, subsidiary or other affiliate ofSeller, including, without limitation, American Express Company, AmericanExpress Financial Corporation, FRC, TRS, IDS and Ontario, Inc. or any officer,director, employee, trustee, shareholder, partner or principal of any suchparent, subsidiary or other affiliate (collectively, **“Seller’sAffiliates”**), arising out of or in connection with this Agreement orthe transactions contemplated hereby. Purchaser agrees to look solely to theProperties for the satisfaction of any liability or obligation arising underthis Agreement or the transactions contemplated hereby, or for the performanceof any of the covenants, warranties or other agreements contained herein, andfurther agrees not to sue or otherwise seek to enforce any personal obligationagainst any of Seller’s Affiliates with respect to any matters arising out ofor in connection with this Agreement or the transactions contemplated hereby.Without limiting the generality of the foregoing provisions of this Section 25(5),Purchaser hereby unconditionally and irrevocably waives any and all claims andcauses of action of any nature whatsoever it may now or hereafter have againstSeller’s Affiliates, and hereby unconditionally and irrevocably releases anddischarges Seller’s Affiliates from any and all liability whatsoever which maynow or hereafter accrue in favor of Purchaser against Seller’s Affiliates, inconnection with or arising out of this Agreement or the transactionscontemplated hereby. The provisions of this Section 25(5) shall survivethe termination of this Agreement and/or the Closing.

 

33

----

 

(6)           Sellerand Purchaser agree that, wherever this Agreement provides that either Selleror Purchaser must send or give any notice, make an election or take some otheraction within a specific time period in order to exercise a right or remedy itmay have hereunder, time shall be of the essence with respect to the taking ofsuch action, and if either Seller or Purchaser fails to take such action withinthe applicable time period such failure shall be deemed to be an irrevocablewaiver by that Seller or Purchaser of such right or remedy.

 

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

 

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

 

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

 

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

 

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

 

(12)         ThisAgreement shall be interpreted and enforced in accordance with the laws of thestate of New York without reference to principles of conflicts of laws.

 

(13)         Ifany provision of this Agreement shall be unenforceable or invalid, the sameshall not affect the remaining provisions of this Agreement and to this end theprovisions of this Agreement are intended to be and shall be severable.Notwithstanding the foregoing sentence, if (i) any provision of this Agreementis finally determined by a court of competent jurisdiction to be unenforceableor invalid in whole or in part, (ii) the opportunity for all appeals of suchdetermination have expired, and (iii) such unenforceability or invalidityalters the substance of this Agreement (taken as a whole) so as to deny eitherparty, in a material way, the realization of the intended benefit of its bargain,such party may terminate this Agreement within thirty (30) days after the finaldetermination by notice to the other. If such party so elects to terminate thisAgreement, then this Agreement shall be terminated and neither party shall haveany further rights,

 

34

----

 

obligationsor liabilities hereunder, except for the Surviving Obligations, and except thatPurchaser shall be entitled to a return of the Deposit (together with allinterest accrued thereon, if any) subject to Section 24(3).

 

(14)         SELLERAND PURCHASER HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, UNCONDITIONALLY ANDIRREVOCABLY WAIVE ANY RIGHT EACH MAY HAVE TO TRIAL BY JURY IN ANY ACTION,PROCEEDING OR COUNTERCLAIM (WHETHER ARISING IN TORT OR CONTRACT OR OTHERWISE)BROUGHT BY EITHER AGAINST THE OTHER ON ANY MATTER ARISING OUT OF OR IN ANY WAYCONNECTED WITH THIS AGREEMENT OR ANY OTHER DOCUMENT EXECUTED AND DELIVERED BYEITHER PARTY IN CONNECTION HEREWITH (INCLUDING ANY ACTION TO RESCIND OR CANCELTHIS AGREEMENT ON THE GROUNDS THAT THIS AGREEMENT WAS FRAUDULENTLY INDUCED ORIS OTHERWISE VOID OR VOIDABLE).

 

(15)         Withrespect to the AESC – F Property, it should be noted that Radon is a naturallyoccurring radioactive gas that, when it has accumulated in a building insufficient quantities, may present health risks to persons who are exposed toit over time. Levels of radon that exceed federal and state guidelines havebeen found in buildings in Florida. Additional information regarding radon andradon testing may be obtained from your county health department.

 

(16)         IntentionallyOmitted.

 

(17)         Purchaseracknowledges that a default by the Seller under one or more of the Leases shallnot give rise to any remedies under this Agreement, including, withoutlimitation, any right to receive back all or any portion of the Purchase Price.

 

(18)         Toextent that under any Lease, Seller, as lessee (**“Lessee”**),incurs damages (including but not limited to fees and expenses of legalcounsel) under the title representation contained in Section 20.1(1) ofthe Leases and Purchaser, as lessor, under the Lease (**“Lessor”**)would be entitled to pursue a claim with respect to such matter under the titlepolicy received in connection with the Closing (without waiving any of itsrights under such policy except for a reduction in the policy amount), Lessorshall pursue such claim under the title policy for the amount of the damagesand shall remit to Lessee the amount of any such damages that has suffered,provided that (y) Lessee pays all of Lessor’s costs and expenses incurred inconnection with Lessor’s pursuit of such claim and (z) Lessee first pursuessuch claim under any existing title policy as the former owner. To the extentthat the Title Company that issues the title policies in connection with theClosing pays any such claim made by Lessor, Lessee shall indemnify the Lessoragainst any damages resulting from the reduction of the title coverage underthe Lessor’s title policy upon the payment of such claim. The provisions ofthis Section 25(18) shall survive Closing.

 

(19)         Thefollowing Sections shall survive the Closing and/or the termination of thisAgreement as more particularly set forth in such Section: 2(5), 3, 8, 9, 10(3),14,

 

35

----

 

15, 16(3), 17,24, 25(2), 25(5), 25(18) and 25(19) (collectively, the **“Surviving Obligations”**).

 

36

----

 

IN WITNESSWHEREOF, this Agreement has been duly executed by the parties hereto as of theday and year first above written.

 
|   | **SELLER**                                              |
|--------|---------------------------------------------------------|
|   |                                                    |
|   | FRC WEST PROPERTY, L.L.C.                               |
|   |                                                    |
|   |                                                    | By:  American Express Travel  Related |   |
|   |                                                    | Services Company, Inc. |   |
|   |                                                    |   |   |
|   |                                                    | By: | /s/ David L. Yowan |   |
|   |                                                    |   | Name: | David L. Yowan |   |
|   |                                                    |   | Title: | Treasurer |   |
|   |                                                    |
|   | AMERICAN EXPRESS TRAVEL RELATED  SERVICES COMPANY, INC. |
|   |                                                    |
|   | ** **                                              |
|   | By:                                                     | /s/ David L. Yowan |   |
|   | Name:                                                   | David L. Yowan |   |
|   | Title:                                                  | Treasurer |   |
|   |                                                    |
|   | IDS PROPERTY CASUALTY INSURANCE  COMPANY                |
|   |                                                    |
|   | By:                                                     | /s/ David L. Yowan |   |
|   | Name:                                                   | David L. Yowan |   |
|   | Title:                                                  | [ILLEGIBLE] |   |
|        |                                                         |  |  |  |  |  |  |

 

37

----

 
|   | **PURCHASER**                                                   |
|--------|-----------------------------------------------------------------|
|   |                                                            |
|   | INLAND REAL ESTATE ACQUISITIONS, INC., an  Illinois corporation |
|   |                                                            |
|   |                                                            |
|   | By:                                                             | /s/ G. Joseph Cosenza |   |
|   | Name:                                                           | G. Joseph Cosenza |   |
|   | Title:                                                          | President |
|        |                                                                 |  |  |  |

 

38

----