**Exhibit 10.486**

 

**SECONDAMENDMENT TO AGREEMENT**

 

This SECOND AMENDMENT TO AGREEMENT (the “Amendment”)is made and entered into as of the 20th day of December 2004, by andbetween FFI AMERICAN MARKET FUND, L.P., a Georgia limited partnership (“Seller”)and Inland Real Estate Acquisitions, Inc. (“Purchaser”).

 

W I T N E S S E T H:

 

WHEREAS, Seller and Purchaser entered intothat certain Purchase and Sale Agreement dated December 9, 2004 as amended byAmendment to Agreement dated December 14, 2004 (collectively, the “Agreement”),for the sale and purchase of the following properties: Green’s Corner locatedin Cumming, Georgia; Newton Crossroads located in Covington, Georgia; andStilesboro Oaks located in Acworth, Georgia, each as legally described by theAgreement (collectively, the “Property”).

 

WHEREAS, Purchaser and Seller have mutuallyagreed to amend certain provisions of the Agreement.

 

NOW THEREFORE, in consideration of theforegoing, and other good and valuable consideration, the receipt andsufficiency of which is hereby acknowledged, Purchaser and Seller agree asfollows:

 

1.               In accordance with Section 2.3 of theAgreement, Purchaser has notified Seller of its title objections to the TitleCommitment and to the Surveys for Green’s Corner and Newton Crossroads in thatcertain title objection letter dated December 17, 2004 (the “Title Objection Letter”).  Notwithstanding the foregoing, Seller andPurchaser agree that Purchaser shall retain its rights to object solely totitle matters first raised on the Survey for Stilesboro Oaks through December22, 2004 at 5:00 p.m. (EST), and in the event that Purchaser has not obtained theSurvey for Stilesboro on or before such date and time, Purchaser shall have theright to terminate the Agreement in accordance with Section 2.3.

 

2.               In accordance with Section 2.3 of theAgreement, Seller shall respond in writing to Purchaser’s Title ObjectionLetter on or before December 22, 2004, but Seller retains the right to respondto any title objections raised by Purchaser with respect to the Survey forStilesboro Oaks through December 23, 2004 at 5:00 p.m. (EST).

 

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3.               This Second Amendment may be executed in oneor more counterparts, each of which shall constitute an original and all ofwhich taken together shall constitute one agreement.  Each person executing this Second Amendmentrepresents that such person has full authority and legal power to do so andbind the party on whose behalf he or she has executed this Second Amendment.  Any counterpart to this Second Amendment maybe executed by facsimile copy and shall be binding on the parties.

 

Except as modified herein, the Agreementshall remain unmodified and in full force and effect.

 

[signatures on following page]

 

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|   | Seller:                                                               |
|--------|-----------------------------------------------------------------------|
|   |                                                                  |
|   | **FFI AMERICAN MARKET FUND, L.P.**a                                   |
|   | Georgia limited  partnership                                          |
|   |                                                                  |
|   |                                                                  | By: | FFI REAL ESTATE USA, LLC,  A  Georgia limited liability company, its  general partner |
|   |                                                                  |   |
|   |                                                                  | By: | /s/ Robert Cancelliere |   |
|   |                                                                  | Name: | Robert Cancelliere |   |
|   |                                                                  | Title: | President |   |
|   |                                                                  |
|   |                                                                  |
|   | Purchaser:                                                            |
|   |                                                                  |
|   | **INLAND REAL ESTATE  ACQUISITIONS,  INC.,** an Illinois  corporation |
|   |                                                                  |
|   | By:                                                                   | /s/ G. Joseph Cosenza |   |
|   | Name:                                                                 | G. Joseph Cosenza |
|   | Title:                                                                |   President |
|        |                                                                       |  |  |  |  |  |  |  |  |  |  |

 

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**AMENDMENT****TO AGREEMENT**

 

This AMENDMENT TO AGREEMENT (the “Amendment”)is made and entered into as of the 14th day of December 2004, by andbetween FFI AMERICAN MARKET FUND, L.P., a Georgia limited partnership (“Seller”)and Inland Real Estate Acquisitions, Inc. (“Purchaser”).

 

W I T N E S S E T H:

 

WHEREAS, Seller and Purchaser entered intothat certain Purchase and Sale Agreement dated December 9, 2004 (the “Agreement”),for the sale and purchase of the following properties: Green’s Corner locatedin Cumming, Georgia; Newton Crossroads located in Covington, Georgia; andStilesboro Oaks located in Acworth, Georgia, each as legally described by theAgreement (collectively, the “Property”).

 

WHEREAS, Purchaser and Seller have mutuallyagreed to amend certain provisions of the Agreement.

 

NOW THEREFORE, in consideration of theforegoing, and other good and valuable consideration, the receipt andsufficiency of which is hereby acknowledged, Buyer and Seller agree as follows:

 

1.               Purchaser approves of its due diligenceinvestigations of the Property subject to Seller exercising its commerciallyreasonable efforts to deliver the following information to Purchaser prior tothe date of Closing: (i) items 4, 5, 7, 12, 13, 15, 26, and 28 described by a letter dated December 2, 2004 from Robert Brinkman (copy attached) to BridgetO’Donnell, and (ii) Kroger CAM quarterly statements for 2003; and (iii)explanation of delinquencies re GNC and Buck’s Pizza; and (iv) GNC-2002 &2003 CAM and Tax Reconciliation.

 

2.               Seller and Purchaser further agree that atClosing, Seller shall pay to Purchaser by separate check from Seller’s netproceeds of sale, the following: (i) $230,802; (ii) $20,000; (iii) $7,000; and(iv) $11,500 all for various repairs to the Property.

 

3.               Purchaser reserves its rights in regard toSurvey and Title as described in Section 2.3 of the Agreement.

 

4.               This Amendment may be executed in one or morecounterparts, each of which shall constitute an original and all of which takentogether

 

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shallconstitute one agreement.  Each personexecuting this Amendment represents that such person has full authority andlegal power to do so and bind the party on whose behalf he or she has executedthis Amendment.  Any counterpart to thisAmendment may be executed by facsimile copy and shall be binding on the parties.

 

Except as modified herein, the Agreementshall remain unmodified and in full force and effect.

 
|   | Seller:                                                                      |
|--------|------------------------------------------------------------------------------|
|   |                                                                         |
|   | **FFI  AMERICAN MARKET FUND, L.P.**a                                         |
|   | Georgia limited  partnership                                                 |
|   |                                                                         |
|   |                                                                         | By: | FFI REAL ESTATE USA, LLC,  A  Georgia limited liability company, its  general partner |
|   |                                                                         |   |   |
|   |                                                                         |   | By: | /s/ Robert Cancelliere |   |
|   |                                                                         |   | Name: | Robert Cancelliere |   |
|   |                                                                         |   | Title: | President |   |
|   |                                                                         |
|   |                                                                         |
|   | Purchaser:                                                                   |
|   |                                                                         |
|   | **INLAND****REAL****ESTATE****ACQUISITIONS,  INC.,**an Illinois  corporation |
|   |                                                                         |
|   | By:                                                                          |   |   |
|   | Name:                                                                        | G. Joseph Cosenza |
|   | Title:                                                                       | President |
|        |                                                                              |  |  |  |  |  |  |  |  |  |

 

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|                   | **Inland  Real Estate Acquisitions, Inc.**2901 Butterfield  Road  Oak Brook, IL 60623  Phone: (630) 218-4908 Fax: 4935  www.inlandgroup.com |
|-------------------|---------------------------------------------------------------------------------------------------------------------------------------------|
|              |                                                                                                                                        |
| December  2, 2004 |
|              | ***EMAIL***                                                                                                                                 |
|              |                                                                                                                                        |
|              | Ms. Bridget O’Donnell  Investment Sales  Maxwell Properties, Inc.  6017 Sandy Springs Circle  Atlanta, GA 30328                        |

 

***RE:******                         ******KrogerPortfolioAtlanta, GA***

 

Dear Bridget:

 

We have completed ourcomprehensive file and lease review and have the following comments andquestions, and need for additional information on each property.

 

***Green’sCorner***

 

1.                                       Kroger – We are missing the LEASE dated1/23/98 and Exhibit B to the LEASE AGREEMENT.  (We did receive Exhibit A today.)

 

Youhad previously responded to a similar request by resending the LEASE AGREEMENTwhich we already had.  The Kroger leaseconsists of both parts.

 

2.                                       Mailboxes, Etc. – Exhibit J is an addendumwhich indicates the Guarantor is Peachtree Etc., Inc. We need a copy of theGuaranty Agreement.  Is this Guarantor inaddition to the one shown in Exhibit F, or a replacement guarantor?

 

ExhibitJ also indicates the space to be 1,324 5F, but the rent roll shows 1,320 SF.  Note that the Exhibit J states that theaddendum prevails over the lease.

 

3.                                       Subway – We are missing Exhibit B.

 

4.                                       KB’sBBQ – We need sales figures for 2003.

 

5.                                       GoldenPalace – We need sales figures for 2003.

 

***Newton Crossroads***

 

6.                                       Washington Mutual – The expiration date onthe rent roll appears incorrect.  Basedon the lease, it should be 4/30/07. Also note that the future rent dates and rentincreases are not shown on the rent roll.

 

7.                                       GNC – We are missing the top of virtually allpages of the original lease. Can you see if you can get us a more complete copyof the original lease (the sublease is OK)?

 

Weare missing sales reports for 2003 and 12/02 and 3/01.

 

8.                                       Subway – The remainder of the co-tenancyprovision in Section 4 appears to be missing.  Would you please check into this?

 

9.                                       H&R Block – This lease expires 1/31/05.  Although there is a special extensionprovision extending the lease to 4/30/05, in the case that the lease is notrenewed, has this lease been renewed? Are renewal terms being negotiated?

 

10.                                 Just New Releases – We are missing page 7 ofthe lease.

 

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11.                                 Great Clips – We need the document extendingthe term from 7/1/02 to 6/30/07.  In aprevious request, you provided us with an Estoppel/ Amendment, but that onlyextended the lease to 6/12/02.

 

12.                                 Daily Nails – The sales reports for 2002,2003 and 2004 are incomplete (missing various months).  Please provide the missing information.

 

13.                                 Best Cleaners – Section 5 of the SpecialStipulations state that the tenant is to provide the landlord with a copy of aLimited Pollution Liability Policy with a $1 Mil limit.  Please forward a copy for our review.

 

ExhibitI – Special Stipulations – We are missing some pages as we only have the firstpage.

 

Pleaseprovide tenant sales figures for at least 2002, 2003 and 2004 YTD.

 

***StilesboroOaks***

 

14.                                 Clothing Care Cleaners – The insuranceprovision does not require this tenant to carry environmental liability insurance;however, Section 13.2 (f) permits the landlord to require the tenant to carryother insurance as the landlord deems prudent.  Has such insurance been required of thetenant?

 

15.                                 We are missing the following tenant salesreports.

 

•                  Clothing Care – 6/03 – 9/03

 

•                  GNC – 2003; 1/02, 12/02; l/0l – 3/01

 

•                  Gondoller Pizza – 10/03

 

•                  Great Clips – 2002 and 10/03

 

•                  Mailboxes, Etc. – 2002 (except 3/02 – 6/02);2003 and 2004 YTD

 

•                  Mr. Wonton – 7/03 and 12/03; 1/04 and 9/04

 

•                  Vintage Bottle – 3/02, 4/02, 6/02, 10/02,11/02 and 6/03 – 12/03

 

***Applies to All Three Properties***

 

We are in need of thefollowing items from our due diligence checklist for each property.

 

16.                                 Updated/Corrected Rent Rolls

 

17.                                 Rent Commencement Date Letters

 

•                  Green’s – Buck’s Pizza and KB’s BBQ

 

•                  Stilesboro – Tae Kwon Do and Subway

 

18.                                 Last three year’s bills for insurance on eachcenter

 

19.                                 Copies of actual tenant invoices for the 2003CAM / Tax / Insurance Reconciliations

 

20.                                 2004 YTD Tenant Ledgers indicating at leastthe current monthly amounts paid by each tenant for CAM / Tax / Insurance plusa YTD balance paid by each tenant

 

21.                                 11/30/04 Delinquency Report

 

22.                                 Service Agreements –

 

•                  Fire / Sprinkler Alarm Monitoring andMaintenance

 

•                  Cleaning / Sweeping / Porter

 

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•                  Exterminating

 

•                  Landscaping

 

•                  Scavenger / Dumpsters (We received this forGreen’s only)

 

23.                                 Copies of one month’s invoices for recurringcontractual operating expenses (for above service agreements)

 

24.                                 Copies of invoices for various significant(over $1,000) expense items (repairs, maintenance, contractual)

 

25.                                 Copies of all roof warranties and otherwarranties that may exist

 

26.                                 Current Tenant Contact List

 

27.                                 Certificates of Insurance

 

•                  Green’s – McDonalds (Building and GeneralLiability), Cumming Nall & Tan, Subway (expired 11/14/04), and Great Clips(expired 11/13/04)

 

•                  Newton – GNC, Great Clips, Peking Chinese,Daily Nails (expired 8/15/04)

 

•                  Stilesboro – Subway and Vintage Bottle Shop

 

28.                                 Current Property Liability and UmbrellaInsurance Policies, or Certificate of Insurance summarizing coverages

 

29.                                 Certificates of Occupancy

 

•                  Green’s – Subway, Bucks Pizza, KB’s BBQ,Great Clips

 

•                  Newton – H&R Block, Just New Release

 

•                  Stilesboro – We have received only the TaeKwon Do C/O.

 

30.                                 BuildingPlans and Specifications

 

31.                                 Tenant Estoppels – Please be cautious toutilize the form which is attached to the Purchase Agreement.

 

Thank you for your assistance.  Ilook forward to working closely with you on these transactions.

 

If you have any questions, you can contact me at (630) 218-4909 or viaemail at rbrinkman@inlandgroup.com.

 
|   | Sincerely,                                 |
|--------|--------------------------------------------|
|   |                                       |
|   | **INLAND REAL ESTATE  ACQUISITIONS, INC.** |
|   |                                       |
|   | /s/ Robert W. Brinkman                     |   |
|   | Robert W. Brinkman                         |
|   | Due Diligence Officer                      |

 

cc: Joe Cosenza, CharlesBenvenuto, Vicki Yates, Andrew Viola, Matt Swanson

 

/kek

 

3

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**PURCHASEAND SALE AGREEMENT**

 

**BETWEEN**

 

**FFI AMERICAN MARKET FUND, L.P.,a Georgia limited partnership**

** **

**AS SELLER,**

** **

**AND**

** **

**INLAND REAL ESTATE ACQUISITIONS, INC.,**

**an Illinois corporation**

** **

**AS PURCHASER**

 

**As of December 9, 2004**

 

 

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**PURCHASE AND SALE AGREEMENT**

 

THIS PURCHASE AND SALE AGREEMENT (this **“Agreement”**) is made as of December 9, 2004(the **“Effective****Date”**), by and between **FFIAMERICAN MARKET FUND, L.P.,**a Georgia limited partnership (**“Seller”**), and **INLAND REAL ESTATE ACQUISITIONS, INC.,**an Illinois corporation(together with its assignee identified pursuant to the terms of Section 11.3hereof, collectively, **“Purchaser”**).

 

**CHICAGOTITLE & TRUST COMPANY,**a Missouri corporation (**“Escrow Agent”**),and **MAXWELL PROPERTIES INC.,**aGeorgia licensed real estate broker (**“Broker”**)are parties to this Agreement for the limited purposes set forth herein.

 

WITNESSETH:

 

**ARTICLE 1**

 

**PURCHASE AND SALE**

 

1.1**                                ****Agreement of Purchase andSale****.**Subject to the terms andconditions hereinafter set forth, Seller agrees to sell and convey andPurchaser agrees to purchase the following:

 

(a) those certain tracts or parcels of land more particularly describedon Exhibit A attached hereto and made a part hereof (collectively, the **“Land”**), together with all and singularrights and appurtenances pertaining thereto, including all right, title andinterest of Seller (if any) in and to adjacent streets, alleys orrights-of-way.

 

(b) the buildings, structures, fixtures and other improvements on theLand (collectively, the **“Improvements”;**theLand and the Improvements being hereinafter sometimes collectively referred toas the **“Real Property”**).  Theseparately named facilities comprising the Real Property are listed on ExhibitA-1 attached hereto (each, a **“Project”**).

 

(c) all of Seller’s right, title and interest (if any) in, to and underall tangible personal property upon the Land or within the Improvements(collectively as the **“Tangible PersonalProperty”**), including specifically, without limitation, appliances, equipment,furniture, carpeting, draperies and curtains, tools and supplies, and other itemsof tangible personal property owned by Seller and used exclusively inconnection with the operation of the Land and the Improvements, but excluding(i) cash and cash equivalents, (ii) computer software and computer files, (iii)personal property owned by tenants under the Leases and their respectiveemployees, (iv) any items leased to Seller, and (v) all brochures, advertisingcopy, promotional materials, manuals, reports, portfolios, binders, trainingmaterials and other such items.

 

(d) all of Seller’s right, title and interest in and to all agreementslisted and described on Exhibit B (the **“Listof****Leases”**) attached hereto and madea part hereof,

 

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pursuantto which any portion of the Land or Improvements is used or occupied by anyoneother than Seller (collectively, the **“Leases”**).

 

(e) all of Seller’s right, title and interest in, to and under (i) theDesignated Service Contracts (as defined in Section 5.7(b) of this Agreement),(ii) all assignable existing warranties and guaranties issued to or inuring tothe benefit of Seller in connection with the Improvements or the TangiblePersonal Property, (iii) all governmental permits, licenses and approvals, ifany, belonging to or inuring to the benefit of Seller and pertaining to theReal Property or the Tangible Personal Property, but only to the extent thatsuch permits, licenses and approvals are assignable and only to the extent thatsuch permits, licenses and approvals relate to the Real Property or theTangible Personal Property as opposed to other property of Seller and (iv)subject to Section 1.7 hereof, the shopping center names Stilesboro Oaks, Green’sCorner and Newton Crossroads (collectively, the **“IntangibleProperty”**).

 

1.2                                 **Property Defined****.** The Land, the Improvements, the TangiblePersonal Property, the Leases and the Intangible Property are hereinaftersometimes referred to collectively as the **“Property.”**

 

1.3**                                ****Permitted Exceptions****.** The Property shall be conveyed subject tothe matters which are, or are deemed to be, Permitted Exceptions pursuant toArticle 2 hereof (herein referred to collectively as the **“PermittedExceptions”**).

 

1.4**                                ****Purchase Price****.** Seller is to sell and Purchaser is topurchase the Property for a total purchase price of **THIRTY-FIVEMILLION FOUR HUNDRED EIGHTY THOUSAND AND NO/100 DOLLARS ($35,480,000.00)**(the **“Purchase Price”**).

 

1.5**                                ****Payment of Purchase Price****.** The Purchase Price, as adjusted byprorations and adjustments as herein provided, shall be payable in full atClosing in cash by wire transfer of immediately available federal funds to abank account of Escrow Agent designated by Escrow Agent in writing to Purchaserprior to the Closing (**“Escrow Agent’s Account”**),and, as adjusted by prorations and adjustments as herein provided, shall besubsequently payable in full at Closing in cash by wire transfer of immediatelyavailable federal funds to a bank account designated by Seller in writing toEscrow Agent prior to the Closing.

 

1.6**                                ****Earnest Money****.** On the date hereof, Purchaser shall depositwith the Chicago, Illinois office of Escrow Agent the sum of **FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($500,000.00)** (the **“Earnest Money”**) in good funds, either by certified bank or cashier’scheck or by wire transfer of immediately available funds.  The Escrow Agent shall invest the EarnestMoney pursuant to Purchaser’s directions and in accordance with the terms andconditions of Article 10.  All interestaccruing and other income earned on such sum shall be the property of Purchaserin all events and shall not become a part of the Earnest Money.  If Purchaser fails to deliver the EarnestMoney to the Escrow Agent within the time period specified above, Seller shallbe entitled to terminate this Agreement (until such time as Purchaser hasdeposited the Earnest Money with Escrow Agent), and upon such termination, neitherparty shall have any further rights, obligations or liabilities hereunderexcept to the extent that any

 

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right, obligation orliability set forth herein expressly survives termination of this Agreement.  In any event, if Purchaser is entitled to havethe Earnest Money returned to Purchaser pursuant to any provision of thisAgreement, One Hundred Dollars ($100.00) of the Earnest Money shallnevertheless be paid to Seller as good and sufficient consideration forentering into this Agreement.  Time is ofthe essence for the delivery of the Earnest Money.

 

1.7**                                ****Shopping Center Name****.** Seller acknowledges that after Closing,Purchaser shall be entitled to use the names of the Projects set forth on ExhibitA-1 as part of its names for the respective Improvements to the same extentSeller was so entitled; provided, however, Seller makes no representation orwarranty as to any right to use such names or any other names used inconnection with the Improvements.  ThisSection 1.7 shall survive the Closing.

 

**ARTICLE 2**

 

**TITLE AND SURVEY**

 

2.1**                                ****Title Examination; Commitment forTitle Insurance****.**  Nolater than the Title Objection Deadline (as hereinafter defined), Purchasershall obtain from Escrow Agent (in its capacity as agent for the title insurer,sometimes hereinafter referred to as the **“Title Company”**),at Purchaser’s expense, commitments for owner’s polices of title insurance (collectively,the **“Title Commitments”**) covering eachProject comprising the Real Property, and shall deliver to Seller a copy ofsuch Title Commitments, together with legible copies of all instrumentsreferred to therein.

 

2.2**                                ****Survey****.**  On orbefore the Title Objection Deadline, Purchaser may obtain, at Purchaser’sexpense, ALTA/ACSM surveys of each Project comprising the Real Property preparedby a licensed Georgia surveyor, and shall deliver three (3) copies of any suchsurveys to Seller and to the Title Company.  Such surveys shall constitute the **“Surveys”** hereunder.  For purposes of the Deeds to be delivered toPurchaser at the Closing, the legal descriptions of the Property shall be thelegal descriptions by which Seller acquired the Property, copies of which areattached hereto as Exhibit A, less and except any rights-of-way or otherconveyances previously made by Seller.  Ifthe metes and bounds description drawn from any Survey reflects a legaldescription different from the corresponding legal description attached heretoas a portion of Exhibit A, Seller shall also deliver a quit claim deedfor such portion of the Property at Closing containing the legal descriptiondrawn from the Survey.

 

2.3**                                ****Title Objections; Cure of TitleObjections****.** Purchaser shall have until December 20, 2004 (the **“Title Objection Deadline”**) to notifySeller, in writing, of such objections as Purchaser may have to the TitleCommitments or the Surveys, other than the Permitted Exceptions described inSection 2.4 hereof.  In the event thatPurchaser has not received one or more of the Surveys prior to December 20, 2004,Purchaser shall have the right to terminate this Agreement as of December 20,2004 by delivering written notice of such termination to Seller on said date,in which event the Earnest Money shall immediately be returned to Purchaser inaccordance with Section 1.6 of this Agreement, and thereafter neither partyhereto shall have any further rights, obligations or liabilities hereunderexcept to the extent

 

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that any right, obligationor liability set forth herein expressly survives termination of this Agreement. Any item contained in the TitleCommitments or any matter shown on the Surveys to which Purchaser does notobject on or before the Title Objection Deadline shall be deemed a **“Permitted Exception”**. In the event Purchaser shallnotify Seller of objections to title or to matters shown on the Surveys on orbefore the Title Objection Deadline, Seller shall have the right, but not theobligation, to cure such objections.  Onor before December 22, 2004, Seller shall notify Purchaser in writing whetherSeller elects to attempt to cure such objections (and Seller’s failure toprovide such a notice shall be deemed an election by Seller not to cure anysuch objection).  If Seller elects toattempt to cure, and provided that Purchaser shall not have terminated thisAgreement in accordance with Section 3.2 hereof, Seller shall use commerciallyreasonable efforts to attempt to remove, satisfy or cure the same.  For this purpose Seller shall be entitled to areasonable extension of the Closing if additional time is required, but in noevent shall the extension extend for more than thirty (30) days.  If Seller elects (or is deemed to haveelected) not to cure any valid objections specified in Purchaser’s notice, or ifSeller fails or is unable to effect a cure prior to Closing (or any date towhich the Closing had been extended), Purchaser shall have the followingoptions: (i) to accept a conveyance of the Property subject to the PermittedExceptions, specifically including any matter objected to by Purchaser whichSeller is unwilling or unable to cure, and without reduction of the PurchasePrice; or (ii) to terminate this Agreement by sending written notice thereof toSeller and Escrow Agent, and upon delivery of such notice of termination, thisAgreement shall terminate and the Earnest Money shall immediately be returnedto Purchaser in accordance with Section 1.6 of this Agreement, and thereafterneither party hereto shall have any further rights, obligations or liabilitieshereunder except to the extent that any right, obligation or liability setforth herein expressly survives termination of this Agreement.  If Seller notifies Purchaser that Seller doesnot intend to attempt to cure any title objection, or if Seller is deemed tohave elected not to cure any title objections, or if Seller notifies Purchaserof Seller’s intent to cure any objection and Seller later notifies Purchaserthat Seller has failed or will be unable to effect a cure thereof, Purchasershall, within two (2) days after receiving Seller’s notice, notify Seller inwriting whether Purchaser shall elect to accept the conveyance under clause (i)above or to terminate this Agreement under clause (ii) above (with Purchaser’sfailure to provide such a notice deemed an election by Purchaser to acceptconveyance under clause (i) above). Notwithstanding anything contained hereinto the contrary, Seller shall be obligated at Closing to discharge (a) allmortgages of Seller (regardless of whether Purchaser objects to such mortgages)and (b) all undisputed monetary liens arising by, through or under Seller. Theterm “mortgage” as used herein includes any mortgage, deed of trust, deed tosecure debt and similar security instrument securing an indebtedness of Sellerand encumbering the Property or any portion thereof; the terms “discharge” and “discharged”as used herein include compliance with a statutory bonding procedure that hasthe legal effect of removing the mortgage or item as a lien on the Property orotherwise allows the mortgage or item to be removed from the title exceptionsin the Title Policies.

 

2.4**                                ****Conveyance of Title****.**  AtClosing, Seller shall convey and transfer the Property to Purchaser.  It shall be a condition to Purchaser’sobligation to close this transaction that title to the Real Property conveyedand transferred to Purchaser shall be such title to the Real Property as willenable the Title Company to issue to Purchaser its extended coverage owner’spolicies of title insurance, together with such endorsements as required byPurchaser (the **“Title Policies”**)

 

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covering each Projectcomprising the Real Property, collectively in the full amount of the PurchasePrice, subject to the following matters, which shall be deemed to be PermittedExceptions:

 

(a)                                  the rights of tenants under the Leasesdescribed in the List of Leases and any new Leases entered into between theEffective Date and Closing and (if required) approved by Purchaser inaccordance with the terms of this Agreement;

 

(b)                                 the lien of all ad valorem real estate taxesand assessments not yet due and payable as of the date of Closing, subject toadjustment as herein provided;

 

(c)                                  local, state and federal laws, ordinances orgovernmental regulations, including but not limited to, building, zoning andland use laws, ordinances and regulations, now or hereafter in effect relatingto the Property;

 

(d)                                 all matters shown in Schedule B of the TitleCommitments, subject to the provisions of Section 2.3 of this Agreement or asotherwise expressly provided in this Agreement;

 

(e)                                  additional items, if any, appearing of recordor shown on the Surveys, except to the extent Seller agrees to cure any suchmatters pursuant to Section 2.3 or 2.5 hereof; and

 

(f)                                    additional items, if any, approved byPurchaser pursuant to Section 2.6 hereof.

 

2.5**                                ****Pre-Closing “Gap” Title Defects****.** Whether or not Purchaser shall have furnished to Seller any notice oftitle objections pursuant to the foregoing provisions of this Agreement,Purchaser may, at or prior to Closing, notify Seller in writing of anyobjections to title first raised by the Title Company or the Surveyor and firstarising between (a) the effective date of the applicable Title Commitment and(b) the date on which the transaction contemplated herein is scheduled toclose; provided, however, that Purchaser must notify Seller ofany such objections within the earlier of (x) the date that is three (3)business days after Purchaser’s first receipt of an updated title commitment,updated survey or written notice from Seller (whichever first provides notice)of the condition giving rise to any such objection and (y) the date that is five(5) days before the Closing Date.  Withrespect to any objections to title set forth in such notice, Seller shall havethe same option to cure and Purchaser shall have the same option to accepttitle subject to such matters or to terminate this Agreement as those whichapply to any notice of objections made by Purchaser on or before the TitleObjection Deadline.  If Seller elects toattempt to cure any such matters, Seller shall have the right, at its election,to extend the date for Closing by a reasonable additional time to effect such acure, but in no event shall the Closing be extended for more than thirty (30)days.

 

2.6**                                ****Seller’s Covenant Not to Encumber****.**  Seller agrees that, between the Effective Dateand the Closing Date, Seller will not sell, assign, rent, convey (absolutely oras security), grant a security interest in, or otherwise encumber or disposeof, the Property (or any part thereof

 

5

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or estate therein) in anymanner that will survive Closing, except as approved in writing by Purchaser oras expressly provided in this Agreement.  Notwithstanding the foregoing, Seller shallhave the right to (i) continue leasing the Property in the manner described inSection 5.4(b) hereof, and (ii) amend or enter into service contracts in themanner described in Section 5.4(g) hereof.

 

**ARTICLE 3**

 

**INSPECTION PERIOD**

 

3.1**                                ****Right of Inspection****.**

 

(a) Beginning on November 5, 2004 and continuing thereafter so long asthis Agreement remains in full force and effect, Purchaser shall have the rightto examine at such place or places at the Property, in the offices of theproperty manager or elsewhere as the same may be located, any operating filesmaintained by Seller or its property manager in connection with the leasing,maintenance and/or management of the Property, including, without limitation, theLeases, lease files, service contracts, bills, invoices, receipts and othergeneral records relating to the income and expenses of the Property, correspondence,surveys, plans and specifications, warranties for services and materials providedto the Property and similar materials, but excluding materials not directly relatedto the leasing, maintenance, and/or management of the Property, such as Seller’sinternal memoranda,  financialprojections, insurance policies, operating budgets, appraisals, accounting andtax records and similar proprietary or confidential information.

 

(b) Seller delivered to Purchaser copies of the items listed on ExhibitH attached hereto and by this reference incorporated herein (the **“Property Information”**) on November 4, 2004, to the extentthe same were in Seller’s possession, and Purchaser hereby acknowledges receiptof said items.

 

(c) During the term of the Agreement, Purchaser and its agents,representatives, contractors and consultants (collectively, the **“Purchaser Parties”**) shall, upon twenty-for(24) hours prior telecopy notice to Seller c/o Bill Worthington at MaxwellProperties (Fax No. 404-255-3382; Phone No. 404-255-3001) have the right toenter upon the Property during regular business hours for the purpose of conductingsuch investigations of the Property (collectively, **“Inspections”**)as Purchaser may reasonably require, and which are reasonably approved bySeller; provided that, Seller shall have the opportunity to have one of itsrepresentatives accompany Purchaser on each such entry; and provided furtherthat all such inspections shall be subject to the rights of tenants under theLeases.  Any and all such Inspectionsshall be done at Purchaser’s sole cost and expense.  The Inspections shall not damage the Propertyin any respect, shall not interfere with the rights or operations of anytenants of the Property, shall be conducted in accordance with standardscustomarily employed in the industry and in compliance with all governmental laws,rules and regulations and, unless Purchaser obtains the prior written consentof Seller, which may be granted or withheld in Seller’s sole discretion, shallnot be invasive in any respect (specifically, for example, Purchaser shall notconduct any soil borings,

 

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testpits, groundwater testing, or other Phase II or Phase III environmental testingor any testing relating to the operation of any dry cleaner without priorapproval of Seller).  Prior to conductingany environmental testing of the Property, including Phase I testing, Purchasershall obtain Seller’s prior approval of Purchaser’s environmental consultant.  Following each such entry by Purchaser withrespect to the Inspections, Purchaser shall promptly restore, or cause to berestored, the Property to its original condition as existed prior to any suchInspections.  Seller shall reasonablycooperate with Purchaser in its Inspections, but shall not be obligated toincur any liability or expense in connection therewith.

 

(d) Purchaser shall indemnify, hold harmless and defend Seller, Seller’spartners, and their respective officers, directors, shareholders, agents andemployees (collectively, the **“Indemnitees”**)from and against any and all liabilities, losses, costs, damages and expenses(including reasonable attorneys’ fees and expenses and court costs) of whatsoevernature that may be incurred by the Indemnitees, or any of them, and arising outof or in connection with personal injury or death of persons, loss, destructionor damage to property whatsoever, or any liens or claims of lien filed againstthe Property, where any such personal injury, death, loss, destruction, damage,lien or claim of lien results in whole or in part from the acts or omissions ofPurchaser.  In so defending the Indemniteesand each of them, Purchaser shall provide counsel that is reasonably acceptableto such Indemnitees.  This Section 3.1(d)shall survive the revocation, termination or consummation of this Agreement.

 

(e) Purchaser shall cause all persons and entities entering theProperty at Purchaser’s request to maintain adequate and appropriate insuranceto cover risks of the type described in Section 3.l(d) above, and beforeundertaking the Inspections, Purchaser will at Seller’s request deliver toSeller written evidence establishing to Seller’s reasonable satisfaction thatsuch adequate and appropriate insurance is being maintained.  Before undertaking the Inspections, Purchasershall name Seller or cause Seller to be named as an additional insured underthe insurance policies to be maintained in accordance with this Section 3.1.

 

(f) Purchaser expressly agrees that the results of any Inspections(including without limitation the results of any environmental testing)obtained by Purchaser (or its contractors, subcontractors, consultants,representatives or agents) in the course of or in connection with anyInspections shall remain confidential to Purchaser.  Unless required by law, or if Seller sorequests in writing, Purchaser (and its contractors, subcontractors, consultants,representatives and agents) shall not disclose any such results to Seller, tothe Georgia Environmental Protection Division, or to any other third parties.  In the event of any inconsistency between thisSection 3.1 and the provisions of that certain Access Agreement entered into bySeller and Purchaser with respect to the Property, the terms of this Section3.1 shall govern.

 

3.2**                                ****Right****of Termination****.**  Selleragrees that in the event Purchaser determines, in Purchaser’s sole discretion,that it does not wish to acquire the Property for any reason or no reason, thenPurchaser shall have the right to terminate this Agreement by either (a) givingwritten notice of termination to Seller on or before 5:00 p.m. local time atthe Property on

 

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December 14, 2004 (the **“Inspection****Date”**),or (b) failing to give written notice to Seller on or before the InspectionDate of Purchaser’s election to proceed with this transaction and waive itsright to terminate pursuant to this Section 3.2, with Purchaser’s failure toprovide any such notice deemed an election to terminate.  Upon any such termination or deemedtermination of this Agreement pursuant to Purchaser’s rights under this Section3.2, then this Agreement shall terminate, the Earnest Money shall be returnedto Purchaser in accordance with Section 1.6 hereof, and Purchaser and Sellershall have no further rights and obligations hereunder except those whichexpressly survive termination of this Agreement.  If Purchaser gives timely written notice ofits election to proceed and to waive its right to terminate pursuant to thisSection 3.2 on or before the Inspection Date, then Purchaser shall no longerhave the right to terminate this Agreement under this Section 3.2 and, subjectto any contrary provisions, including Purchaser’s termination rights pursuantto Section 2.3 of this Agreement, Purchaser shall be bound to proceed toClosing and consummate the transaction contemplated hereby pursuant to theterms of this Agreement.  Time is of theessence with respect to the provisions of this Section 3.2. The periodcommencing on the Effective Date and ending on the Inspection Date is sometimesreferred to herein as the **“Inspection Period”**.

 

Notwithstanding any provision of thisAgreement to the contrary, Escrow Agent is hereby authorized and directed torelease the Earnest Money to Purchaser immediately (without furtherauthorization from Seller) upon receipt by Escrow Agent of Purchaser’s notice oftermination of the Agreement in accordance with this Section 3.2 (with a copyof such notice to be delivered concurrently by Purchaser to Seller) on or priorto 5:00 p.m. local time at the Property on December 14, 2004.

 

**ARTICLE 4**

 

**CLOSING**

 

4.1                                 **Time and Place****. **The consummation of the transaction contemplated hereby (**“Closing”**) shall be held at the Chicago, Illinois office ofEscrow Agent, at 2:00 p.m. local time at the Property) on December 31, 2004 (orsuch extended date as may be provided under other provisions of thisAgreement).  At Closing, Seller andPurchaser shall perform the obligations set forth in, respectively, Section 4.2and Section 4.3.  The Closing may be heldat such other place or such earlier time and date as Seller and Purchaser shallmutually approve.  The date on which theClosing is scheduled to occur hereunder (or, if earlier, the date on whichClosing occurs) is sometimes referred to herein as the **“Closing Date.”**

 

4.2                                 **Seller’s Obligations atClosing****.  **At Closing, Seller shall:

 

(a) deliver to Purchaser one or more duly executed limited warrantydeeds (the **“Deeds”**) in recordableform, conveying the Real Property, subject to the Permitted Exceptions; thewarranty of title in the Deeds will extend only to claims made by, through orunder Seller and not otherwise;

 

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(b) deliver to Purchaser one or more duly executed bills of saleconveying the Tangible Personal Property and Intangible Personal Property withspecial warranty of title but subject to the limitations set forth in Section9.2;

 

(c) assign the Leases then in effect to Purchaser, and Purchaser shallassume, from and after the date of Closing, the landlord/lessor interest in andto the Leases, as amended or supplemented pursuant to this Agreement, by one ormore duly executed assignment and assumption agreements pursuant to which (i)Seller shall indemnify Purchaser and hold Purchaser harmless from and againstany and all claims pertaining to the Leases arising from events occurring priorto Closing and (ii) Purchaser shall indemnify Seller and hold Seller harmlessfrom and against any and all claims pertaining to the Leases arising fromevents occurring from and after the Closing, including without limitation,claims made by tenants with respect to tenants’ security deposits to the extentpaid, credited or assigned to Purchaser that are identified in such assignmentand assumption agreement or on a settlement statement executed by the partiesin connection with Closing;

 

(d) assign to Purchaser, and Purchaser shall assume, from and after thedate of Closing, Seller’s interest in the Designated Service Contracts (asdefined in Section 5.7(b) hereof), as amended or supplemented pursuant to thisAgreement, by one or more duly executed assignment and assumption agreementspursuant to which (i) Seller shall indemnify Purchaser and hold Purchaserharmless from and against any and all claims pertaining to the DesignatedService Contracts or the other Intangible Property arising from events occurringprior to Closing and (ii) Purchaser shall indemnify Seller and hold Sellerharmless from and against any and all claims pertaining to the DesignatedService Contracts or the other Intangible Property arising from eventsoccurring from and after the Closing;

 

(e) join with Purchaser to execute a notice in form and contentreasonably satisfactory to Purchaser and Seller, which Purchaser shall send toeach tenant under each of the Leases informing such tenant of the sale of theProperty and of the assignment to Purchaser of Seller’s interest in, andobligations under, the Leases (including, if applicable any security deposits)and directing that all rent and other sums payable after the Closing under eachsuch Lease shall be paid as set forth in the notice.  Purchaser shall deliver to each and everytenant of the Property under a Lease thereof a signed statement acknowledgingPurchaser’s receipt and responsibility for each tenant’s security deposit (tothe extent delivered by Seller to Purchaser at Closing and identified pursuantto Section 4.2(c) at Closing), if any, all in compliance with and pursuant tothe applicable law.  The provisions ofthis sub-section (e) shall survive Closing.

 

(f) deliver to Purchaser a certificate (**“Seller’s Closing Certificate”**), dated as ofthe date of Closing and duly executed by Seller, stating that therepresentations and warranties of Seller contained in Section 5.1 of thisAgreement are true and correct in all material respects as of the date ofClosing (with appropriate modifications to reflect any changes therein oridentifying any representation or warranty which is not, or no longer is, trueand correct and explaining the state of facts giving rise to the change).  The

 

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inclusionof any change or exception in such certificate shall not prejudice Purchaser’srights under this Agreement with respect to the subject matter of such changeor exception.

 

(g) deliver to Purchaser such evidence as Purchaser’s counsel and/or theTitle Company may reasonably require as to the authority of the person orpersons executing documents on behalf of Seller;

 

(h) deliver to Purchaser an affidavit duly executed by Seller statingthat Seller is not a “foreign person” as defined in the Federal ForeignInvestment in Real Property Tax Act of 1980 and the 1984 Tax Reform Act;

 

(i) deliver to the Title Company one or more owner’s affidavits or ALTAstatements, if required by the Title Company, duly executed by Seller or arepresentative of Seller, in form and content reasonably satisfactory to Sellerand the Title Company;

 

(j) deliver to Purchaser, pursuant to Purchaser’s reasonableinstructions, the Leases then in effect, the Designated Service Contracts andlicenses and permits, if any, in the possession of Seller or Seller’s agents,including any originally executed Leases then in effect and Designated ServiceContracts in Seller’s possession at the Property or otherwise in Seller’sreasonable control, together with such keys, leasing and property files andrecords which are used exclusively in connection with the continued operation,leasing and maintenance of the Property, but excluding any budget or marketanalysis;

 

(k) deliver to Purchaser possession and occupancy of the Property,subject to the Permitted Exceptions;

 

(1) deliver such additional documents as shall be reasonably requestedby the Title Company or required to consummate the transaction contemplated bythis Agreement; provided, however, that in no event shall Sellerbe required to indemnify the Title Company, Purchaser, or any other partypursuant to any such documents, or undertake any other material liability notexpressly contemplated in this Agreement, unless Seller elects to do so in itssole discretion;

 

(m) if the one or more of the legal descriptions attached hereto as ExhibitA differ from the legal descriptions of the Property drawn from theSurveys, Seller shall at Closing deliver (in addition to the Deeds) one or morequit claim deeds conveying each portion of the Property pursuant to the legaldescription drawn from the corresponding Survey, which legal descriptions shallbe subject to Seller’s approval, which approval shall not be unreasonablywithheld;

 

(n) deliver to Purchaser all tenant estoppels in Seller’s possessionfrom tenants at the Property; and

 

(o) deliver to Escrow Agent such certificates or affidavits, if any, asare required under applicable provisions of Georgia law and regulation, toassure Escrow Agent that

 

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Georgiasales tax withholding is not required.  IfSeller fails to deliver such certificates or affidavits, and otherwise fails toprovide Escrow Agent reasonably satisfactory assurance that withholding is notrequired, then Escrow Agent shall be entitled to withhold applicable Georgiasales taxes, if and to the extent required by applicable Georgia law andregulation.

 

4.3**                                ****Purchaser’s****Obligations****at Closing****.**  AtClosing, Purchaser shall:

 

(a) deliver to Escrow Agent the full amount of the Purchase Price, asincreased or decreased by prorations and adjustments as herein provided, priorto 2:00 p.m. (Atlanta, Georgia local time) on the Closing Date, in immediatelyavailable federal funds wire transferred to Escrow Agent’s Account pursuant toSection 1.5 above, it being agreed that at Closing, the Earnest Money shall beapplied towards payment of the Purchase Price, and deliver to Escrow Agentinstructions to immediately release the full amount of the Purchase Price, asincreased or decreased by prorations and adjustments as herein provided, toSeller;

 

(b) join Seller in execution of the instruments described in Sections4.2(b), 4.2(c), 4.2(d), and 4.2(e) above;

 

(c) deliver to Seller such evidence as Seller’s counsel and/or theTitle Company may reasonably require as to the authority of the person orpersons executing documents on behalf of Purchaser; and

 

(d) deliver such additional documents as shall be reasonably requestedby the Title Company or required to consummate the transaction contemplated bythis Agreement; provided, however, that in no event shallPurchaser be required to undertake any other material liability not expresslycontemplated in this Agreement, unless Purchaser elects to do so in its solediscretion.

 

4.4**                                ****Credits and Prorations****.**

 

(a) All income and expenses in connection with the operation of theProperty shall be apportioned as of 11:59 p.m., on the date prior to theClosing Date, as if Purchaser were vested with title to the Property during theentire Closing Date, such that, except as otherwise expressly provided to thecontrary in this Agreement, Seller shall have the benefit of income and theburden of expenses for the day preceding the Closing Date and the Purchasershall have the benefit of income and the burden of expenses for the ClosingDate and thereafter. Items (l)-(5) below will be prorated at Closing utilizingthe information known at that time.  Apost-closing “true-up” shall take place within ninety (90) days of the ClosingDate to adjust the prorations of said items (1), (3), (4) and (5), ifnecessary, and within a reasonable time to adjust the proration of said item(2), if necessary.  Such prorated itemsshall include, without limitation, the following:

 

(1) rents based on the amount collected for the current month (the term“rents” as used in this Agreement includes all payments due and payable by

 

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tenantsunder the Leases other than refundable deposits, application fees, late chargesand termination payments (of which deposits shall be treated as set forth inSection 4.4(b)(l), but such other amounts shall be retained by Seller);

 

(2) ad valorem taxes (including personal property taxes on the TangiblePersonal Property) and assessments levied against the Property, which shall be proratedas set forth in Section 4.4(b)(2) hereof;

 

(3) payments under the Designated Service Contracts.  To the extent any rebate, concession orcommission payable to Seller under any Designated Service Contract has accruedbefore Closing but has not been paid to Seller, Seller shall receive a creditfor such accrued amounts at Closing;

 

(4) to the extent the same have not been settled as of the ClosingDate, (which Seller shall use reasonable efforts to so settle) gas, electricityand other utility charges for which Seller is liable, if any, such charges tobe apportioned at Closing on the basis of the most recent meter readingoccurring prior to Closing; and

 

(5) any other operating expenses or other items pertaining to theProperty which are customarily prorated between a purchaser and a seller incomparable commercial transactions in the area in which the Property islocated.

 

(b) Notwithstanding anything contained in the foregoing provisions:

 

(1) At Closing, (A) Seller shall, at Seller’s option, either deliver toPurchaser any unforfeited tenant deposits shown on the Rent Roll or credit to Purchaserthe amount of such unforfeited deposits and any interest thereon, and (B)Purchaser shall credit to the account of Seller all refundable cash or other depositsposted with utility companies serving the Property, or, at either party’s option,Purchaser shall contract directly with the utility companies and Seller shall beentitled to receive and retain such refundable cash and deposits; provided thatPurchaser and Seller will cooperate so that utility service to the Property isnot interrupted.  For the purposes ofthis Section 4.4(b)(l) the term “unforfeited deposits” means any refundabledeposits which are held by Seller and which Seller has not applied, and is notentitled to apply, against delinquent rents, property damage or otherwise.

 

(2) Any ad valorem taxes due and payable prior to Closing shall befully paid and discharged at or prior to Closing.  Ad valorem taxes and assessments for the taxyear in which the Closing occurs shall be prorated as of the Closing Date.  Notwithstanding the foregoing, if all taxesand assessments for the tax year in which the Closing occurs have not be paidbefore Closing, Seller shall be charged at Closing an amount equal to thatportion of such taxes and assessments which relate to the period before Closingand Purchaser shall pay the taxes and assessments prior to their becomingdelinquent.  Any such apportionment made

 

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withrespect to a tax year for which the tax rate or assessed valuation, or both,have not yet been fixed shall be based upon the tax rate and/or assessedvaluation last fixed.  To the extent thatthe actual taxes and assessments for the current tax year differ from theamount apportioned at Closing, the parties shall make all necessary adjustmentsby appropriate payments between themselves following Closing upon theavailability of the final tax bills, but such adjustments must be made withinninety (90) days of written notice of the final tax bills by the party who lastreceives such written notice.

 

(3) Gas, electricity and other utility charges referred in Section4.4(a)(4) above which are payable by any tenant to a third party shall not beapportioned hereunder, and Purchaser shall accept title subject to any of suchcharges unpaid and Purchaser shall look solely to the tenant responsibletherefor for the payment of the same, If Seller shall have paid any of suchcharges on behalf of any tenant, shall not have been reimbursed therefor by thetime of Closing and is entitled to be reimbursed for any such payment pursuantto the relevant Lease, Purchaser shall credit to Seller an amount equal to allsuch charges so paid by Seller.

 

(4) As to gas, electricity and other utility charges referred to inSection 4.4(a)(4) above, Seller shall use good faith to pay all of such itemsaccrued to the Closing Date directly to the person or entity entitled thereto,and to the extent Seller’s efforts are effective and the utility company agreesto look solely to Seller for payment of such item accrued to the Closing Date,such item shall not be apportioned hereunder, and Seller’s obligation to paysuch item with respect to the period prior to Closing directly in such caseshall survive the Closing.

 

(5) The Tangible Personal Property is included in this sale, withoutfurther charge, and Seller shall pay to the applicable taxing authority theamount of any sales tax or other taxes payable in connection with the TangiblePersonal Property, if any, and Seller shall execute and deliver any tax returnsrequired of it in connection therewith, said obligations of Seller to surviveclosing.

 

(6) If the Closing occurs hereunder, Purchaser shall assume and be responsiblefor, and shall indemnify Seller against any claims for, the payment of (A) allTenant Inducement Costs (as hereinafter defined) and leasing commissions (otherthan leasing commissions payable to Seller) which become due and payable(whether before, on or after Closing) as a result of any renewals or expansionof existing leases and as a result of any new leases, approved or deemedapproved in accordance with Section 5.4(b) hereof, and (B) all Tenant InducementCosts which become due and payable after Closing.  If Seller shall have paid prior to Closingany Tenant Inducement Costs or leasing commissions described in this subsection6(A) above, then Purchaser shall credit to Seller at Closing an amount equal toall such Tenant Inducement Costs or leasing commissions paid by Seller.  The term **“TenantInducement Costs”** shall mean payments required under a Lease to bepaid by the landlord thereunder which is in the nature of a tenant improvement,including,  without limitation, tenant

 

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improvementcosts, lease buyout costs, and moving, design, refurbishment, finish airconditioning system allowance, club membership and other allowances.

 

(7) Unpaid and delinquent rent collected by Seller and Purchaser afterthe date of Closing shall be delivered as follows: (a) if Seller collects anyunpaid or delinquent rent for the Property, Seller shall, within fifteen (15)days after the receipt thereof, deliver to Purchaser any such rent whichPurchaser is entitled to hereunder relating to the date of Closing and anyperiod thereafter, and (b) if Purchaser collects any unpaid or delinquent rentfrom the Property, Purchaser shall, within fifteen (15) days after the receiptthereof, deliver to Seller any such rent which Seller is entitled to hereunderrelating to the period prior to the date of Closing.  Seller and Purchaser agree that all rentreceived by Seller or Purchaser after the Closing shall be applied first tocurrent rentals and then to delinquent rentals, if any, in inverse order ofmaturity.  Purchaser will make a goodfaith effort after Closing to collect all rents in the usual course ofPurchaser’s operation of the Property, but Purchaser will not be obligated toinstitute any lawsuit or other collection procedures to collect delinquentrents.

 

(8) For a period of two (2) years from and after the Closing Date, inthe event that a tenant of any Project exercises any right that it might haveunder its lease to inspect or audit the common area maintenance expenses forany Project for any period prior to the Closing Date, Seller shall, atPurchaser’s expense, make available to Purchaser any books and records in thepossession of Seller pertaining to any such audit, but in no event shall Sellerbe liable to Purchaser or any such tenant for any refund of common area costsor payment of costs and expenses as a result of any such inspection or audit.

 

(9) The provisions of this Section 4.4 shall survive Closing.

 

4.5**                                ****Closing Costs****.** Seller shall pay (a) the fees of any counsel representing it in connectionwith this transaction, (b) one-half (1/2) of any escrowfee which may be charged by Escrow Agent or Title Company, (c) all applicabletransfer taxes, documentary stamp taxes and similar charges relating to thetransfer of the Property, (d) the costs of curing all title objections forwhich Seller is responsible under this Agreement, (e) the costs of recordingall mortgage cancellations and (f) any sales or similar taxes on the transferof the Tangible Property, as more fully described in Section 4.4(b)(5).  Purchaser shall pay (t) the cost of theSurvey, (u) the fees of any counsel representing Purchaser in connection withthis transaction, (v) one-half (1/2) of any escrow feescharged by the Escrow Agent or Title Company, (w) the fees for recording theDeed, (x) the costs of the Title Commitments and premiums for the TitlePolicies and any lender’s policy, title insurance endorsements, or deletion ofthe “survey exception”, (y) the costs of any financing obtained by Purchaserand (z) the cost of Purchaser’s inspections of the Property.  All other costs and expenses incident to thistransaction and the closing thereof shall be paid by the party incurring same.

 

4.6**                                ****Conditions Precedent toObligation of Purchaser****.**  Theobligation of Purchaser to consummate the transaction hereunder shall besubject to the fulfillment on or before the date

 

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of Closing (or such earliertime as otherwise required hereby) of all of the following conditions, any orall of which may be waived by Purchaser in its sole discretion:

 

(a) Seller shall have delivered to Purchaser all of the material itemsrequired to be delivered to Purchaser by Seller or Seller’s agents pursuant tothe terms of this Agreement, including but not limited to, those provided forin Section 4.2*.*

 

(b) On or prior to the date that is three (3) business days prior tothe Closing Date, Seller shall have delivered to Purchaser a tenant estoppelfrom the Kroger located in each Project (collectively, **“Kroger”**)on a form of tenant estoppel acceptable to or regularly used by Kroger, in eachcase containing no information with respect to the status of the Kroger leasewhich is, in Purchaser’s reasonable judgment, materially adverse with respectto such lease, and (i) tenant estoppels from tenants leasing, in the aggregate,at least seventy percent (70%) of the space that is under lease in each Projectbut not leased to Kroger, which estoppel from such other tenants shall be (A)in substantially the same form as attached hereto as Exhibit G, or (B)in such other form as is approved by Purchaser, such approval not to beunreasonably withheld, or (C) if any such tenant is a nationally recognizedretailer, in such form as is acceptable to or regularly used by such tenant, or(D) in such form as set forth in such tenant’s Lease, and containing no informationwith respect to the status of such lease which is, in Purchaser’s reasonable judgment,materially adverse with respect to such lease and (ii) certificates from Sellersubstantially in the form as attached hereto as Exhibit I attachedhereto and by this reference incorporated herein (the **“SellerLease Estoppel Certificate”**) for any tenant at the Property,excluding Kroger, that did not deliver an estoppel; provided, however, if Sellershall be deemed liable for any damages as a result of a Seller Lease Estoppel Certificate,such liability shall be subject to the limitations of Section 5.3 of this Agreement. Additionally, Seller shall use good faithefforts to obtain from the declarant, if applicable, under each recordedassociation, declaration, reciprocal easement or like agreement that benefitsor burdens each Project, an estoppel confirming that such agreement is in fullforce and effect, that no notice of default has been received thereunder andsuch other customary information as may be appropriate.

 

(c) All of the representations and warranties of Seller contained inthis Agreement shall be true and correct in all material respects as of the dateof Closing (with appropriate modifications permitted under this Agreement ornot adverse to Purchaser).

 

(d) Seller shall have performed and observed, in all material respects,all covenants and agreements of this Agreement to be performed and observed bySeller as of the date of Closing.

 

(e) All other conditions precedent to Purchaser’s obligation toconsummate the transaction hereunder (if any) which are set forth in thisAgreement shall have been satisfied on or before the date of Closing.

 

In the event any of theforegoing conditions has not been satisfied by the Closing Date (or three (3)business days prior to the Closing Date in the case of Section 4.6(b)),Purchaser shall have

 

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the right to terminate thisAgreement by written notice given to Seller and Escrow Agent on the ClosingDate (or three (3) business days prior to the Closing Date in the case ofSection 4.6(b)), whereupon Escrow Agent shall immediately refund the EarnestMoney to Purchaser and the parties shall have no further rights, duties orobligations hereunder, other than those which are expressly provided herein tosurvive the termination of this Agreement; provided, however,that if any of the foregoing conditions has not been satisfied due to a defaultby Purchaser or Seller hereunder, then Purchaser’s and Seller’s respectiverights, remedies and obligations shall instead be determined in accordance withArticle 6.

 

4.7**                                ****Conditions Precedent toObligation of Seller****.** The obligation of Seller to consummate thetransaction hereunder shall be subject to the fulfillment on or before the dateof Closing of all of the following conditions, any or all of which may bewaived by Seller in its sole discretion:

 

(a) Seller shall have received the Purchase Price as adjusted pursuantto and payable in the manner provided for in this Agreement.

 

(b) Purchaser shall have delivered to Seller all of the items requiredto be delivered to Seller by Purchaser or Purchaser’s agents pursuant to theterms of this Agreement, including but not limited to, those provided for inSection 4.3.

 

(c) All of the representations and warranties of Purchaser contained inthis Agreement shall be true and correct in all material respects as of thedate of Closing.

 

(d) All other conditions precedent to Seller’s obligation to consummatethe transaction hereunder (if any) which are set forth in this Agreement shallhave been satisfied on or before the date of Closing.

 

In the event any of theforegoing conditions has not been satisfied by the Closing Date, Seller shallhave the right to terminate this Agreement by written notice given to Purchaseron the Closing Date, whereupon Escrow Agent shall refund the Earnest Money toPurchaser and the parties shall have no further rights, duties or obligationshereunder, other than those which are expressly provided herein to survive atermination of this Agreement; provided, however, if any of theforegoing conditions has not been satisfied due to a default by Purchaser orSeller hereunder, then Purchaser’s and Seller’s respective rights, remedies andobligations shall instead be determined in accordance with Article 6.

 

**ARTICLE 5**

 

**REPRESENTATIONS, WARRANTIES AND COVENANTS**

 

5.1**                                ****Representations and Warranties ofSeller**.  Seller hereby makes the followingrepresentations and warranties to Purchaser as of the Effective Date.  Such representations and warranties aresubject to (i) those matters, if any, disclosed in Seller’s disclosurestatement attached hereto as Exhibit F and made a part hereof by thisreference (**“Seller’s Disclosure**

 

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**Statement”**), (ii) the Permitted Exceptions, and (iii)all other applicable provisions of this Agreement, including without limitationArticle 9.  In addition, each individualrepresentation and warranty is qualified to the extent of any applicableinformation or exception which is otherwise disclosed in another representationor warranty.

 

(a) **Organization and Authority**.  Seller has been duly organized and is validly existingand in good standing as a limited partnership under the laws of the State of Georgia.  Seller has the full right and authority toenter into this Agreement and to transfer the Property pursuant hereto and toconsummate or cause to be consummated the transactions contemplated herein.  The person signing this Agreement on behalf ofSeller is authorized to do so,  Neitherthe execution and delivery of this Agreement nor any other documents executedand delivered, or to be executed and delivered, by Seller in connection withthe transactions described herein, will violate any provision of Seller’s organizationaldocuments or of any agreements, regulations, or laws to or by which Seller isbound.  This Agreement has been dulyauthorized, executed and delivered by Seller, is a valid and binding obligationof Seller and is enforceable against Seller in accordance with its termssubject to  (i) applicable bankruptcy,insolvency, reorganization, moratorium, and other laws affecting the rights ofcreditors generally; and (ii) the exercise of judicial discretion in accordancewith general principles of equity.

 

(b) **Consents**.  Seller has obtained, or will obtain byClosing, all consents and permissions (if any) related to the transactionsherein contemplated and required under any covenant, agreement, encumbrance,law or regulation by which Seller or the Property is bound.

 

(c) **Pending Actions**.  There is no action, suit, arbitration,administrative or judicial proceeding, or unsatisfied order or judgment pendingor, to Seller’s knowledge, threatened against Seller which pertains directly tothe Property or the transaction contemplated by this Agreement (including,without limitation, matters in regard to the environmental condition of theProperty).  In addition, there is noother action, suit, arbitration, administrative or judicial proceeding, orunsatisfied order or judgment pending against Seller which, if adverselydetermined, would have a Material Adverse Effect.  As used in this Agreement, **“Material Adverse Effect”** means, with respect to any fact orcircumstance, that such fact or circumstance would individually or in the aggregatehave a material adverse effect on title to the Property or any portion thereof,on Seller’s ability to consummate the transaction contemplated herein, or onthe value or operation of the Property.

 

(d) **Leases**.  Seller is the lessor or landlord under theLeases.  Except as set forth in the Listof Leases, there are no other leases or occupancy agreements affecting the Propertyto which Seller is a party or of which Seller is aware. Notwithstandinganything to the contrary contained in this Agreement, Seller does not representor warrant that any particular Lease will be in force or effect at Closing orthat the tenants under the Leases will have performed their obligationsthereunder.  The termination of any Leaseprior to Closing by reason of the tenant’s default shall not affect theobligations of Purchaser under this Agreement in any manner or entitlePurchaser to an abatement of or credit

 

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againstthe Purchase Price or give rise to any other claim on the part of Purchaser.  In the event that any tenant estoppeldelivered to Purchaser with respect to any of the Leases contains any statementof fact, information or other matter which is inconsistent with any statementin this Agreement, such tenant estoppel shall control and Seller shall have noliability for any claim based upon a breach of representation or warrantyregarding such statement of fact, information or other matter contained in suchtenant estoppel.

 

(e) **Taxes and Assessments**.  True and complete copies of the most recentreal estate tax bills for the Property have been or will be delivered toPurchaser.  Except for the PermittedExceptions, Seller does not have any knowledge of any pending or threatenedliens, special assessments, or impositions against the Property by any governmentalor public authority.

 

(f) **Condemnation**.  Seller has not received from any governmentalauthority written notice of any pending condemnation proceedings relating tothe Property, nor to Seller’s knowledge, are any such proceedings threatened.

 

(g) **Insurance**.  To Seller’s knowledge, Seller has notreceived prior to the Effective Date any written notice from any insurancecompany or board of fire underwriters of any defects or inadequacies in or onthe Property or any part or component thereof that would materially andadversely affect the insurability of the Property or cause any materialincrease in the premiums for insurance for the Property, that have not beencured or repaired.

 

(h) **Financial Status**.  Seller is solvent, has not made a generalassignment for the benefit of its creditors, and has not admitted in writingits inability to pay its debts as they become due, nor has Seller filed, nordoes it contemplate the filing of, any bankruptcy, reorganization, arrangement,insolvency or liquidation proceedings, or any other proceeding for the reliefof debtors in general, nor has any such proceeding been instituted by oragainst Seller, nor is any such proceeding to Seller’s knowledge threatened orcontemplated.  The sale of the Propertywill not render Seller insolvent.

 

(i) **Service Contracts**.  To Seller’s knowledge, there are no management,service, supply, equipment rental and similar agreements affecting the Propertyother than those set forth in Exhibit C. Those service contracts whichhave been or will be delivered by Seller to Purchaser are true, correct andcomplete in all material respects and include any material amendments ormodifications thereto.

 

(j) **Employees**.  Seller has no employees which Purchaser shallbe obligated to employ following the Closing.

 

(k) **Agreements**.  To Seller’s knowledge, there exist nooff-record development, cost-sharing, recapture or like agreements burdeningthe Property that will survive the Closing of the transactions described bythis Agreement.

 

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5.2**                                ****Knowledge Defined**.  Referencesto the **“knowledge”** of Seller shall refer onlyto the actual knowledge, without investigation or inquiry, on the EffectiveDate of the Knowledge Parties (as hereinafter defined) of Seller, and shall notbe construed, by imputation or otherwise, to refer to the knowledge of anyother officer, agent, manager, representative, employee property manager orbroker of Seller or any affiliate of Seller, or to impose upon such KnowledgeParties any duty to investigate the matter to which such actual knowledge, orthe absence thereof, pertains.  As usedherein, the term **“Knowledge Parties”** shall refer toRobert Cancelliere (who is the President of Seller) and Bill Worthington (whois the property manager).

 

5.3**                                ****Survival of Seller’sRepresentations and Warranties**.  The representations andwarranties of Seller set forth in Section 5.1, as updated by Seller’s ClosingCertificate, shall survive Closing for a period of one hundred eighty (180)days after Closing.  No claim for abreach of any representation or warranty of Seller, nor any liability under aSeller Lease Estoppel Certificate, shall be actionable or payable (a) if thebreach in question, or condition addressed in the Seller Lease EstoppelCertificate, results from or is based on a condition, state of facts or othermatter which was known to Purchaser prior to Closing, (b) unless the validclaims for all such breaches and liability collectively aggregate **Twenty-Five Thousand Dollars ($25,000.00)** or more, in whichevent the full amount of such valid claims shall be actionable, up to but notexceeding the amount of the Cap (as defined below), and (c) unless writtennotice containing a description of the specific nature of such breach shallhave been given by Purchaser to Seller prior to the expiration of said onehundred eighty (180) day period (or such shorter period as set forth in aSeller Lease Estoppel Certificate with respect thereto) and an action shallhave been commenced by Purchaser against Seller within two hundred seventy(270) days after Closing. Seller shall not be liable to Purchaser ifPurchaser’s claim is satisfied from any insurance policy, service contract orLease.  As used herein, the term **“Cap”** shall mean **One Million Dollars($1,000,000.00)**.  In no eventshall Seller’s aggregate liability to Purchaser (i) for any and all breaches ofany representation or warranty of Seller in this Agreement or Seller’s ClosingCertificate and (ii) pursuant to Seller Lease Estoppel Certificates, exceed, inthe aggregate, the amount of the Cap, and Purchaser hereby waives and disclaimsany right to damages or compensation for any and all such breaches in excess ofthe Cap unless Seller shall have committed fraud in which event the Cap shallnot be applicable to such claims of fraud.

 

5.4**                                ****Covenants of Seller**.  Seller hereby covenants with Purchaser, fromthe Effective Date until the Closing or earlier termination of this Agreement,as follows:

 

(a) **Operation of Property**.  Seller shall use reasonable efforts tooperate and maintain the Property in a manner generally consistent with the mannerin which Seller has operated and maintained the Property prior to the datehereof.

 

(b) **Execution of New Leases and Renewals**. Seller shall use reasonable efforts tonegotiate leases or Lease renewals for unrented space in the Improvements andshall maintain a marketing program for vacant space in the Improvementsconsistent with Seller’s current practices at the Property.  Any new leases or renewals or amendments toexisting leases concerning the Improvements entered into by Seller (x) afterthe Effective Date until the Inspection Date or earlier termination of thisAgreement must be approved in writing by Purchaser in its reasonablediscretion, and (y) after the Inspection Date until the Closing or earliertermination of this Agreement must be approved in writing by

 

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Purchaserin Purchaser’s sole discretion; provided, however, if Purchaserdoes not respond in writing to Seller’s written request for Purchaser’sapproval of the terms of any proposed lease or renewal within five (5) businessdays of Purchaser’s receipt of such request, Purchaser shall be deemed to haveapproved such proposed lease or renewal.  Each such new lease or renewal entered into bySeller shall constitute a “Lease” for purposes of this Agreement.

 

(c) **Maintenance of Insurance**.  Seller shall keep the Improvements insuredagainst loss or damage (including rental loss) by fire and all risks covered bythe Seller’s insurance that is currently in force (of which Seller shallprovide reasonable evidence within ten (10) days after the Effective Date),provided that Seller may make adjustments in Seller’s insurance coverage forthe Property which are consistent with Seller’s general insurance program forother properties owned or managed by Seller or its affiliates or propertymanager as in effect from time to time.

 

(d) **Enforcement of Existing Leases**. Seller shall make commerciallyreasonable efforts to perform the landlord’s material obligations to thetenants under the Leases and to enforce the material obligations of the tenantsunder the Leases, in each case in accordance with the current management standardsof Seller for the Property.

 

(e) **Provide Copies of Notices**.  Seller shall furnish Purchaser with a copy ofall written notices received by Seller from (i) any governmental authority ofany violation of any law, statute, ordinance, regulation or order of anygovernmental or public authority relating to the Property, or (ii) any tenantasserting any default under any of the Leases, within five (5) business daysfollowing Seller’s receipt thereof, but, if received by such date, in no eventlater than two (2) business days prior to the Closing Date.

 

(f) **Removal and Replacement of Tangible PersonalProperty**.  Seller shallnot remove any Tangible Personal Property except as may be required fornecessary repair or replacement (which repair and replacement shall be of equalquality and quantity as existed as of the time of the removal), or otherwise inaccordance with current inventory and management standards of Seller for theProperty.

 

(g) **Execution of New Contracts**.  Seller shall not, without Purchaser’s priorwritten consent in each instance (which consent shall not be unreasonablywithheld or delayed during the Inspection Period but which thereafter may bewithheld in Purchaser’s sole discretion), materially amend or terminate any ofthe Designated Service Contracts (as defined in Section 5.7(b)), or enter intoany contract or agreement that will be an obligation affecting any portion of theProperty or binding on Purchaser after the Closing, except that Seller mayenter into, amend or enforce (including enforcement by termination) servicecontracts in the ordinary course of business as reasonably necessary for thecontinued operation and maintenance of the Property, provided any new servicecontracts are terminable without cause or penalty on thirty (30) days notice.

 

(h) **Maintenance of Permits**.  Seller shall make commercially reasonableefforts to maintain in existence all licenses, permits and approvals that arenow in existence with

 

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respect to, and are required for, theownership, operation or improvement of the Property, and are of a continuingnature.

 

5.5                                 **Representations****and Warranties of Purchaser**. Purchaser hereby makes the following representations and warranties toSeller as of the Effective Date:

 

(a) **Organization****and Authority**.  Purchaser has been duly organized and isvalidly existing as a corporation under the laws of the State of Illinois.  Purchaser has the full right and authority toenter into this Agreement and to purchase the Property pursuant hereto and toconsummate or cause to be consummated the transactions contemplated herein.  The person signing this Agreement on behalf ofPurchaser is authorized to do so.  Neitherthe execution and delivery of this Agreement nor any other documents executedand delivered, or to be executed and delivered, by Purchaser in connection withthe transactions described herein, will violate any provision of Purchaser’sorganizational documents or of any agreements, regulations, or laws to or bywhich Purchaser is bound.  This Agreementhas been duly authorized, executed and delivered by Purchaser, is a valid andbinding obligation of Purchaser and is enforceable against Purchaser inaccordance with its terms subject to (i) applicable bankruptcy, insolvency,reorganization, moratorium, and other laws affecting the rights of creditorsgenerally; and (ii) the exercise of judicial discretion in accordance withgeneral principles of equity.

 

(b) **Consents.**  Purchaser has obtained all consents andpermissions (if any) related to the execution of this Agreement and, prior tothe expiration of the Inspection Period, Purchaser shall have obtained all furtherconsents and permissions (if any), required to consummate transactions hereincontemplated and required under any covenant, agreement, encumbrance, law orregulation by which Purchaser is bound.

 

(c) **Pending Actions.**  There is no action, suit, arbitration,administrative or judicial administrative proceeding, or unsatisfied order orjudgment pending or, to Purchaser’s knowledge, threatened against Purchaser orthe transaction contemplated by this Agreement, which, if adversely determined,could individually or in the aggregate have a material adverse effect onPurchaser’s ability to consummate the transaction contemplated herein.

 

(d) **Financial Status.**  Purchaser has adequate financial resources topurchase the Property.  Purchaser issolvent, has not made a general assignment for the benefit of its creditors,and has not admitted in writing its inability to pay its debts as they becomedue, nor has Purchaser filed, nor does it contemplate the filing of, anybankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,or any other proceeding for the relief of debtors in general, nor has any suchproceeding been instituted by or against Purchaser, nor is any such proceedingto Purchaser’s knowledge threatened or contemplated.  The purchase of the Property will not renderPurchaser insolvent.

 

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5.6                                 **Survival of Purchaser’sRepresentations and Warranties****.**  The representations and warranties ofPurchaser set forth in Section 5.5 shall survive Closing for a period of onehundred eighty (180) days after Closing.

 

5.7                                 **Covenants of Purchaser****.**

 

(a) Purchaser hereby covenants with Seller that Purchaser shall, uponSeller’s request, furnish to Seller copies of any reports received by Purchaserin connection with any inspection of the Property for the presence of hazardousmaterials, including asbestos, asbestos-containing materials, petroleum,petroleum-based substances, dry cleaning solvents and any other substancesregulated by federal, state or local environmental laws or regulations (**“Hazardous Materials”**).  Purchaser hereby assumes full responsibilityfor such inspections and irrevocably waives any claim against Seller arisingfrom the presence of Hazardous Materials on the Property.  Purchaser shall also, upon Seller’s request,furnish to Seller copies of any other reports received by Purchaser relating toany other inspections of the Property conducted on Purchaser’s behalf, if any.

 

(b) **“Designated Service Contracts”**means (i) those certain service contracts which are assignable in accordancewith their terms that Purchaser identifies by written notice delivered toSeller on or before the Inspection Date as the service contracts Purchaserelects Seller to assign at Closing, (ii) those assignable service contractsregarding which Purchaser has failed to deliver such written notice on orbefore the Inspection Date, and (iii) those service contracts (the **“Must Take Service Contracts”**) which areassignable in accordance with their terms and which may not be terminatedwithout cause or penalty, with thirty (30) days (or less) written notice;provided, however, in no event shall any property management agreement for anyProject be deemed a Designated Service Contract.  Purchaser hereby covenants with Seller thaton or before the Inspection Date, Purchaser shall deliver written notice toSeller instructing which of the assignable service contracts Purchaser desiresfor Seller to assign to Purchaser and which it does not.  If Purchaser fails to timely deliver suchnotice, Purchaser shall be deemed to have chosen to have all assignable servicecontracts (other than any existing property management agreements) assigned toPurchaser, and all such service contracts shall be deemed part of the“Designated Service Contracts.” At Closing or as promptly as practicablethereafter, Seller will cause the service contracts which Purchaser has electednot to have assigned to Purchaser (other than the Must Take Service Contracts),by operation of the aforesaid notice on or before the Inspection Date, to beterminated at Seller’s expense, such termination to be effective within thetime period provided for in the applicable service contract or, if no such timeperiod is provided, as promptly as practicable after the Closing Date.  The provisions of this Section 5.7(b) shallsurvive Closing.

 

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**ARTICLE 6**

** **

**DEFAULT**

 

6.1                                 **Default****by Purchaser****.**  Ifthe sale of the Property as contemplated hereunder is not consummated due to Purchaser’sdefault hereunder, then Seller shall be entitled, as its sole and exclusiveremedy for such default, to terminate this Agreement and receive the EarnestMoney as liquidated damages for the breach of this Agreement and not as apenalty, it being agreed between the parties hereto that the actual damages toSeller in the event of such breach are impractical to ascertain and the amountof the Earnest Money is a reasonable estimate thereof, Seller hereby expresslywaiving and relinquishing any and all other remedies at law or in equity.  Seller’s right to receive the Earnest Moneyis intended not as a penalty, but as full liquidated damages.  The right to receive the Earnest Money asfull liquidated damages is Seller’s sole and exclusive remedy in the event ofdefault hereunder by Purchaser, and Seller hereby waives and releases any rightto (and hereby covenants that it shall not) sue Purchaser: (a) for specificperformance of this Agreement, or (b) to recover any damages of any nature ordescription other than or in excess of the Earnest Money.  Purchaser hereby waives and releases any rightto (and hereby covenants that it shall not) sue Seller or seek or claim arefund of the Earnest Money (or any part thereof) on the grounds it isunreasonable in amount and exceeds Seller’s actual damages or that itsretention by Seller constitutes a penalty and not agreed upon and reasonableliquidated damages.  This Section 6.1 issubject to Section 6.4 hereof.

 

6.2                                 **Default by Seller****. **If the sale of the Property as contemplated hereunder is notconsummated due to Seller’s default hereunder, then Purchaser shall beentitled, as its sole remedy for such default, either (a) to receive, uponnotice to Escrow Agent and Seller, an immediate return of the Earnest Money, whichreturn shall operate to terminate this Agreement and release Seller from anyand all liability hereunder, or (b) to enforce specific performance of Seller’sobligation to convey the Property to Purchaser pursuant to this Agreement.  Notwithstanding the foregoing, it isunderstood and agreed that the remedy of specific performance shall not beavailable to enforce any other obligation of Seller hereunder.  Purchaser expressly waives its rights to seekdamages in the event of Seller’s default hereunder.  In no event shall Seller be liable forconsequential, speculative, remote or punitive damages, or for actual damagesin excess of the amount set forth above.  Purchaser hereby waives any right to seek orcollect any such consequential, speculative, remote or punitive damages, or anyactual damages in excess of the amount set forth above.  Purchaser shall be deemed to have elected toterminate this Agreement and receive back the Earnest Money if Purchaser failsto file suit for specific performance against Seller in a court havingjurisdiction in the county and state in which the Property is located, on orbefore thirty (30) days following the date upon which Closing was to haveoccurred.

 

6.3                                 **Notice of Default; Opportunity to****Cure****.  **Neither Seller nor Purchaser shall be deemed to be in default hereunderuntil and unless such party has been given written notice of its failure tocomply with the terms hereof and thereafter does not cure such failure withinfive (5) business days after receipt of such notice; provided, however,that this Section 6.3 (i) shall not be applicable to Purchaser’s failure todeliver the Earnest Money or any portion thereof on the date required hereunderor to a party’s failure to make any deliveries required of such party on the

 

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Closing Date and,accordingly, (ii) shall not have the effect of extending the Closing Date orthe due date of the Earnest Money deposit hereunder.

 

6.4                                 **Recoverable Damages****.**  NotwithstandingSections 6.1 and 6.2 hereof, in no event shall the provisions of Sections 6.1and 6.2 limit the damages recoverable by either party against the other partydue to the other party’s express obligation to indemnify such party asexpressly provided in this Agreement.

 

**ARTICLE 7**

 

**RISK OF LOSS**

 

7.1                                 **Minor Damage****.**  Inthe event of loss or damage to one or more of the Projects or any portionsthereof which is not “major” (as hereinafter defined), this Agreement shallremain in full force and effect provided Seller performs any necessary repairsor, at Seller’s option, assigns to Purchaser all of Seller’s right, title andinterest to any claims and proceeds Seller may have with respect to anycasualty insurance policies or condemnation awards relating to the premises inquestion.  In the event that Sellerelects to perform repairs upon the Project(s), Seller shall use reasonableefforts to complete such repairs promptly.  If Seller does not complete such repairs priorto Closing, Seller shall assign its casualty claim to Purchaser.  If Seller assigns its casualty claim toPurchaser, Purchaser shall receive a credit against the Purchase Price equal tothe deductible amount under Seller’s insurance policy.  Upon Closing, full risk of loss with respectto the Property shall pass to Purchaser.

 

7.2                                 **Major Damage****.**  Inthe event of a “major” loss or damage, Purchaser may terminate this Agreementby written notice to Seller and Escrow Agent, in which event the Earnest Moneyshall be returned to Purchaser in accordance with Section 1.6.  If Purchaser does not elect to terminate thisAgreement within ten (10) days after Seller sends Purchaser written notice ofthe occurrence of major loss or damage, then Purchaser shall be deemed to haveelected to proceed with Closing, in which event Seller shall, at Seller’soption, either (a) perform any necessary repairs, or (b) assign to Purchaserall of Seller’s right, title and interest to any claims and proceeds Seller mayhave with respect to any casualty insurance policies or condemnation awardsrelating to the premises in question.  Inthe event that Seller elects to perform repairs upon the Project(s), Sellershall use reasonable efforts to complete such repairs promptly.  If Seller does not complete such repairsprior to Closing, Seller shall assign its casualty claim to Purchaser.  If Seller assigns its casualty claim toPurchaser, Purchaser shall receive a credit against the Purchase Price equal tothe deductible amount under Seller’s insurance policy.  Upon Closing, full risk of loss with respectto the Property shall pass to Purchaser.

 

7.3                                 **Definition****of****“Major” Loss****or Damage****.**  Forpurposes of Sections 7.1 and 7.2, **“major”**loss or damage refers to the following; (i) casualty loss or damage to one ormore of the Projects or any portions thereof such that the cost of repairing orrestoring the premises in question to a condition substantially similar to thatof the premises in question prior to the event of damage would be, in theopinion of an architect selected by Seller and reasonably approved by Purchaser,equal to or greater than **Five HundredThousand Dollars ($500,000.00)** in the

 

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aggregate and/or (ii) anyloss due to a condemnation which would (a) permanently and materially impairthe current use of one or more of the Projects, (b) permit any tenant at theapplicable Project(s) to terminate its Lease, (c) take any point of ingressand/or egress to and/or from the applicable Project(s) or (d) result in thereduction of the parking ratio at the applicable Project(s) below the ratiorequired by (I) any Lease, (II) any easement agreement then in effect and/or(III) the local municipality or municipalities having jurisdiction over theapplicable Projects).  In the case ofsubsection (i) above, if Purchaser does not give notice to Seller ofPurchaser’s reasons for disapproving an architect within five (5) business daysafter receipt of notice of the proposed architect, Purchaser shall be deemed tohave approved the architect selected by Seller.

 

**ARTICLE 8**

 

**COMMISSIONS**

 

8.1                                 **Broker’s Commission****.  **The parties acknowledge that Broker has been retained by and representsSeller as broker in connection with the sale of the Property by Seller toPurchaser, and is to be compensated for its services by Seller.  Seller agrees that Seller shall pay to Brokerupon, but only upon, final consummation of the transaction contemplated herein,a real estate brokerage commission pursuant to a separate written agreementbetween Seller and Broker.  Broker hasexecuted this Agreement for the purpose of acknowledging and agreeing that noreal estate commission shall be earned by it or due it if the transactioncontemplated herein does not close as a result of Seller’s default, Purchaser’sdefault or otherwise.  At Closing, Brokershall execute and deliver to Seller and Purchaser a release of any lien orclaim of lien of Broker with respect to the Property and shall execute anddeliver to Purchaser and Seller a general release of any claims arising out ofthe transaction contemplated in this Agreement.

 

8.2                                 **Representation and Indemnity****. **Purchaser and Seller each hereby represents and warrants to the otherthat it has not disclosed this Agreement or the subject matter hereof to, andhas not otherwise dealt with, any real estate broker, agent or salesman (otherthan Broker) so as to create any legal right or claim in any such broker, agentor salesman (other than Broker) for a real estate commission or similar fee orcompensation with respect to the negotiation and/or consummation of thisAgreement or the conveyance of the Property by Seller to Purchaser.  Except as provided in Section 8.1 with respectto Broker, Purchaser and Seller hereby indemnify each other against, and agreeto hold each other harmless from, any liability or claim (and all expenses,including reasonable attorneys’ fees, incurred in defending any such claim orin enforcing this indemnity) for a real estate brokerage commission or similarfee or compensation arising out of or in any way connected with any claimeddealings with the indemnitor and relating to this Agreement or the purchase andsale of the Property.  Broker herebyrepresents and warrants to Seller and Purchaser that it has not disclosed thisAgreement or the subject matter hereof to, and has not otherwise dealt with,any real estate broker, agent or salesman so as to create any legal right orclaim in any such broker, agent or salesman for a real estate commission orsimilar fee or compensation with respect to the negotiation and/or consummationof this Agreement or the conveyance of the Property by Seller toPurchaser.  Further, Broker herebyindemnifies Purchaser and Seller against, and agrees to hold Purchaser andSeller

 

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harmless from, any liabilityor claim (and all expenses, including attorneys’ fees, incurred in defendingany such claim or in enforcing this indemnity) for a real estate brokeragecommission or similar fee or compensation arising out of or in any wayconnected with any claimed dealings with such Broker and relating to thisAgreement or the purchase and sale of the Property.

 

8.3                                 **Execution by Broker****.** Broker has executed this Agreement solely for the purpose ofacknowledging and agreeing to the provisions of this Article 8.  Broker’s consent to any modification oramendment of any provision of this Agreement other than this Article 8 shall notbe required.

 

8.4                                 **Survival****.**  ThisArticle 8 shall survive the rescission, cancellation, termination orconsummation of this Agreement.

 

**ARTICLE 9**

 

**DISCLAIMERS AND WAIVERS**

 

9.1                                 **No Reliance on Documents****.**  Exceptas expressly stated herein, Seller makes no representation or warranty as tothe truth, accuracy or completeness of any materials, data or informationdelivered by Seller to Purchaser in connection with the transactioncontemplated hereby.  Purchaseracknowledges and agrees that all materials, data and information delivered bySeller to Purchaser in connection with the transaction contemplated hereby areprovided to Purchaser as a convenience only and that any reliance on or use ofsuch materials, data or information by Purchaser shall be at the sole risk ofPurchaser, except as otherwise expressly stated herein.  Without limiting the generality of theforegoing provisions, Purchaser acknowledges and agrees that (a) anyenvironmental or other report with respect to the Property which is deliveredby Seller to Purchaser shall be for general informational purposes only, (b)Purchaser shall not have any right to rely on any such report delivered by Sellerto Purchaser, but rather will rely on its own inspections and investigations ofthe Property and any reports commissioned by Purchaser with respect thereto,and (c) neither Seller, any affiliate of Seller nor the person or entity whichprepared any such report delivered by Seller to Purchaser shall have anyliability to Purchaser for any inaccuracy in or omission from any such report.

 

9.2                                 **Disclaimers****.**  Exceptas expressly set forth in this Agreement, it is understood and agreed thatSeller is not making and has not at any time made any warranties orrepresentations of any kind or character, expressed or implied, with respect tothe Property, including, but not limited to, any warranties or representationsas to habitability, merchantability, fitness for a particular purpose, title(other than Seller’s special warranty of title to be set forth in the Deeds),zoning, tax consequences, latent or patent physical or environmental condition,utilities, operating history or projections, valuation, governmental approvals,the compliance of the Property with governmental laws, the truth, accuracy orcompleteness of the Property documents or any other information provided by oron behalf of Seller to Purchaser, or any other matter or thing regarding theProperty.  Purchaser acknowledges andagrees that upon closing Seller shall sell and convey to Purchaser andPurchaser shall accept the Property “as is, where is, with all faults”,except to the extent expressly provided otherwise in this Agreement.  Purchaser has not

 

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relied and will not rely on,and Seller is not liable for or bound by, any expressed or implied warranties,guaranties, statements, representations or information pertaining to theProperty or relating thereto (including specifically, without limitation,property information packages distributed with respect to the Property) made orfurnished by Seller, the manager of the Property, or any real estate broker oragent representing or purporting to represent Seller, to whomever made orgiven, directly or indirectly, orally or in writing, unless specifically setforth in this Agreement.

 

Without limiting the above, Purchaser, foritself and its affiliates, shareholders, successors, successors-in-title, transfereesand assigns hereby releases, remises, forever discharges and covenants not tosue Seller and its partners (both general and limited, past, present, and future)and affiliated corporations and their successors, and assigns, of and from anyand all claims, losses, damages, demands, actions, suits, proceedings, causesof action, injunctive or other equitable relief, costs, expenses, fines, orpenalties of any kind or nature whatsoever which Purchaser now has, ever had,or may in the future have, whether known or unknown, suspected or unsuspected,which arise from or pertain in any way to Hazardous Materials or which ariseunder or otherwise pertain to any Environmental Law.  Purchaser agrees that should anyinvestigation, cleanup, remediation or removal of Hazardous Substances or otherenvironmental conditions on or related to the Property be required after thedate of Closing, Seller shall have no liability to Purchaser to perform or payfor such investigation, clean-up, removal or remediation.  This release, covenant not to sue andacknowledgment of no liability shall survive the Closing or any termination ofthis Agreement.  The foregoing shall notbe interpreted to waive any claim of Purchaser with respect to any breach bySeller of any express representations and warranties made by Seller in Section5.1 that expressly survive closing pursuant to Section 5.3.

 

Purchaser represents to Seller that Purchaserhas conducted, or will conduct prior to Closing, such investigations of theProperty, including but not limited to, the physical and environmentalconditions thereof, as Purchaser deems necessary to satisfy itself as to thecondition of the Property and the existence or nonexistence or curative actionto be taken with respect to any Hazardous Materials or toxic substances on ordischarged from the Property, and will rely solely upon same and not upon anyinformation provided by or on behalf of Seller or its agents or employees withrespect thereto, other than such representations, warranties and covenants ofSeller as are expressly set forth in this Agreement.  Upon Closing, Purchaser shall assume the riskthat adverse matters, including but not limited to, construction defects andadverse physical and environmental conditions, may not have been revealed byPurchaser’s investigations, and Purchaser, upon closing, shall be deemed tohave waived, relinquished and released Seller (and Seller’s and its partners’respective officers, directors, shareholders, employees and agents) from andagainst any and all claims, demands, causes of action (including causes ofaction in tort or under any Environmental Law), losses, damages, liabilities(whether based on strict liability or otherwise), losses, damages, liabilities,costs and expenses (including attorneys’ fees and court costs) of any and everykind or character, known or unknown, which Purchaser might have asserted oralleged against Seller (and Seller’s and its partners’ respective officers,directors, shareholders, employees and agents) at any time by reason of orarising out of any latent or patent construction defects or physicalconditions, violations of any applicable laws (including, without limitation,any environmental laws) and any and all other acts, omissions,

 

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events, circumstances ormatters regarding the Property.  Theforegoing shall not be interpreted to waive any claim of Purchaser with respectto any breach by Seller of any express representations and warranties made bySeller in Section 5.1 that expressly survive closing pursuant to Section 5.3.

 

Purchaser agrees that should anyinvestigation, cleanup, remediation or removal of Hazardous Substances or otherenvironmental conditions on or related to the Property be required after thedate of Closing, Seller shall have no liability to Purchaser to perform or payfor such investigation, clean-up, removal or remediation.  The foregoing shall not be interpreted towaive any claim of Purchaser with respect to any breach by Seller of anyexpress representations and warranties made by Seller in Section 5.1 thatexpressly survive closing pursuant to Section 5.3.

 

9.3                                 **Effect and Survival ofDisclaimers****.**  Sellerand Purchaser acknowledge that the provisions of this Article 9 are an integralpart of this transaction and a material inducement to Seller to enter into thisAgreement and that Seller would not enter into this Agreement but for theprovisions of this Article 9.  Seller andPurchaser agree that the provisions of this Article 9 shall survive Closing orany termination of this Agreement.

 

**ARTICLE 10**

** **

**ESCROW AGENT**

 

10.1                           **Investment of Earnest Money****.** Escrow Agent shall invest the Earnest Money pursuant to Purchaser’sreasonable directions.  Escrow Agentshall promptly advise Seller and Purchaser of the investment of the EarnestMoney.  Escrow Agent shall invest theEarnest Money only in such accounts as will allow Escrow Agent to disburse theEarnest Money upon one (l) day’s notice.

 

10.2                           **Payment at Closing****.  **If the Closing takes place under this Agreement, Escrow Agent shalldeliver the Earnest Money to, or upon the instructions of, Seller and Purchaserat Closing.

 

10.3                           **Payment on Demand****.**  Subjectto the terms of Section 3.2 hereof, after December 14, 2004, upon receipt ofany written certification from Seller or Purchaser claiming the Earnest Moneypursuant to the provisions of this Agreement, Escrow Agent shall promptlyforward a copy thereof to the other such party (i.e., Purchaser or Seller,whichever did not claim the Earnest Money pursuant to such notice) and, unlesssuch other party within ten (10) days thereafter notifies Escrow Agent of anyobjection to such requested disbursement of the Earnest Money, Escrow Agentshall disburse the Earnest Money to the party demanding the same and shallthereupon be released and discharged from any further duty or obligationhereunder.

 

10.4                           **Exculpation of Escrow Agent****.**  It isagreed that the duties of Escrow Agent are herein specifically provided and arepurely ministerial in nature, and that Escrow Agent shall incur no liabilitywhatsoever except for its willful misconduct or negligence, so long as Escrow

 

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Agent is acting in goodfaith.  Seller and Purchaser do eachhereby release Escrow Agent from any liability for any error of judgment or forany act done or omitted to be done by Escrow Agent in the good faithperformance of its duties hereunder and do each hereby indemnify Escrow Agentagainst, and agree to hold, save, and defend Escrow Agent harmless from, anycosts, liabilities, and expenses incurred by Escrow Agent in serving as EscrowAgent hereunder and in faithfully discharging its duties and obligationshereunder.

 

10.5                           **Stakeholder****.**  Escrow Agent is acting as a stakeholder onlywith respect to the Earnest Money.  Ifthere is any dispute as to whether Escrow Agent is obligated to deliver theEarnest Money or as to whom the Earnest Money is to be delivered, Escrow Agentmay refuse to make any delivery and may continue to hold the Earnest Moneyuntil receipt by Escrow Agent of an authorization in writing, signed by Sellerand Purchaser, directing the disposition of the Earnest Money, or, in theabsence of such written authorization, until final determination of the rightsof the parties in an appropriate judicial proceeding.  If such written authorization is not given, ora proceeding for such determination is not begun, within ten (10) days ofnotice to Escrow Agent of such dispute, Escrow Agent may bring an appropriateaction or proceeding for leave to deposit the Earnest Money in a court ofcompetent jurisdiction pending such determination.  Escrow Agent shall be reimbursed for all costsand expenses of such action or proceeding, including, without limitation,reasonable attorneys’ fees and disbursements, by the party determined not to beentitled to the Earnest Money.  Uponmaking delivery of the Earnest Money in any of the manners herein provided,Escrow Agent shall have no further liability or obligation hereunder.

 

10.6                           **Interest****.**  Allinterest and other income earned on the Earnest Money deposited with EscrowAgent hereunder shall be reported for income tax purposes as earnings ofPurchaser.  Purchaser’s taxpayeridentification number is 36-3614035.

 

10.7                           **Execution by Escrow Agent****.  **Escrow Agent has executed this Agreement solely for the purpose ofacknowledging and agreeing to the provisions of this Article 10 and Section3.2.  Escrow Agent’s consent to anymodification or amendment of this Agreement shall not be required except in thecase of this Article 10, Section 3.2 and any modification which affectsPurchaser’s right to receive a return of the Earnest Money.

 

10.8                           **Conflict****.**  Inthe event of a conflict between this Article 10 and Section 3.2 of thisAgreement, the terms of Section 3.2 shall control.

 

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**ARTICLE 11**

 

**MISCELLANEOUS**

 

11.1                           **Confidentiality****.**  Purchaserand its representatives shall hold in strictest confidence all data andinformation obtained by Purchaser with respect to the Property, except wheredisclosure is required by law or Purchaser’s SEC reporting requirements.  This Section 11.1 and the otherconfidentiality (and indemnity) provisions of this Agreement, including,without limitation, Section 3.1(f) hereof, shall survive any termination ofthis Agreement.

 

11.2                           **Public Disclosure****.**   Subjectto the terms of Section 11.1 hereof, prior to Closing, any release to thepublic of information with respect to the sale contemplated herein or anymatters set forth in this Agreement will be made only in the form approved byPurchaser and Seller.

 

11.3                           **Assignment****.**  Purchasermay not assign its rights under this Agreement without first obtaining Seller’swritten approval, which approval may be given or withheld in Seller’s solediscretion.  Any transfer, directly orindirectly, of any stock, partnership interest or other ownership interest inPurchaser without Seller’s written approval, which approval may be given orwithheld in Seller’s sole discretion, shall constitute a default by Purchaserunder this Agreement; provided, however, Purchaser may assignthis Agreement at Closing to a Permitted Affiliate without Seller’s consent.  For purposes hereof, the term “PermittedAffiliate” means an entity that controls, is controlled by, or is under commoncontrol with Purchaser and is solvent at the time of assignment and at the timeof Closing, is not rendered insolvent by such assignment, and has sufficientassets to consummate the transaction contemplated herein.  No transfer or assignment by Purchaser shall releaseor relieve Purchaser of its obligations hereunder.  If Purchaser assigns its rights under thisAgreement in accordance with this Section 11.3, Purchaser shall deliver toSeller, at Closing, written evidence of such assignment which includes an acknowledgementby assignor and assignee that Seller is entitled to rely upon or is an intendedthird party beneficiary of such assignment.

 

11.4                           **Notices****.**  Anynotice, request or other communication (a **“notice”**)required or permitted to be given hereunder shall be in writing and shall bedelivered by hand or overnight courier (such as United Parcel Service orFederal Express) or via facsimile and addressed to each party at its address orfacsimile number as set forth below.  Anysuch notice shall be considered given on the date of such hand or courierdelivery, deposit with such overnight courier for next business day delivery,or sending via facsimile transmission, but the time period (if any is providedherein) in which to respond to such notice shall commence on the date ofreceipt of hand or overnight courier delivery or on the date of receipt viafacsimile transmission as provided above (provided, however, that any facsimiletransmission received after 5:00 p.m. local time at the Property shall bedeemed received the following business day). Rejection or other refusal toaccept or inability to deliver because of changed address of which no noticewas given shall be deemed to be receipt of the notice.  By giving at least five (5) days’ priorwritten notice thereof, any party may from time to time and at any time changeits mailing address hereunder.  Anynotice of any party may be given by such party’s counsel.

 

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The parties’ respective addresses for noticepurposes are as follows.  Telephonenumbers are given for convenience of reference only, and notice by telephone(other than via facsimile as provided above) shall not be effective.

 
| If to Seller:       |   | FFI American Market Fund,  L.P.              |
|---------------------|--------|----------------------------------------------|
|                |   | c/o FFI Real Estate USA,  LLC                |
|                |   | 4360 Chamblee Dunwoody  Road                 |
|                |   | Suite 520                                    |
|                |   | Atlanta, Georgia 30341                       |
|                |   | Attention: Robert  Cancelliere               |
|                |   | Telephone No. 770-457-2600                   |
|                |   | Facsimile No. 770-457-3373                   |
|                |   |                                         |
|                |   |                                         |
| with a copy to:     |   | King & Spalding LLP                      |
|                |   | 191 Peachtree Street, N.E.                   |
|                |   | Atlanta, Georgia  30303-1763                 |
|                |   | Attention: David G.  Williams, Esq.          |
|                |   | Telephone No. 404-572-4619                   |
|                |   | Facsimile No. 404-572-5148                   |
|                |   |                                         |
|                |   |                                         |
| If to Purchaser:    |   | Inland Real Estate  Acquisitions, Inc.       |
|                |   | 2901 Butterfield Road                        |
|                |   | Oak Brook, Illinois 60523                    |
|                |   | Attention: G. Joseph  Cosenza, President     |
|                |   | Telephone No. 630-218-8000                   |
|                |   | Facsimile No. 630-218-4935                   |
|                |   |                                         |
|                |   |                                         |
| with a copy to:     |   | The Inland Real Estate  Group, Inc.          |
|                |   | 2901 Butterfield Road                        |
|                |   | Oak Brook, Illinois 60523                    |
|                |   | Attention: Robert Baum,  General Counsel     |
|                |   | Telephone No. 630-218-8000                   |
|                |   | Facsimile No. 630-218-4900  and 630-571-2360 |
|                |   |                                         |
|                |   |                                         |
| If to Escrow Agent: |   | Chicago Title *&*Trust Company           |
|                |   | 171 North Clark Street                       |
|                |   | Chicago, Illinois 60601                      |
|                |   | Attention: Nancy Castro                      |
|                |   | Telephone No. 312-223-2709                   |
|                |   | Facsimile No. 312-223-2108                   |

 

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| If to Broker: |   | Maxwell Properties Inc.      |
|---------------|--------|------------------------------|
|          |   | 6017 Sandy Springs Circle    |
|          |   | Atlanta, Georgia 30328       |
|          |   | Attention: Bill  Worthington |
|          |   | Telephone No. 404-255-3001   |
|          |   | Facsimile No. 404-255-3382   |

 

11.5                           **Modifications****.**  ThisAgreement cannot be changed orally, and no agreement shall be effective towaive, change, modify or discharge it in whole or in part unless such agreementis in writing and is signed by the parties against whom enforcement of anywaiver, change, modification or discharge is sought.

 

11.6                           **Calculation of Time Periods****.** Unless otherwise specified, in computing any period of time described inthis Agreement, the day of the act or event after which the designated periodof time begins to run is not to be included and the last day of the period socomputed is to be included, unless such last day is a Saturday, Sunday or legalholiday under the laws of the State in which the Property is located, in whichevent the period shall run until the end of the next day which is neither aSaturday, Sunday or legal holiday.  Thefinal day of any such period shall be deemed to end at 5:00 p.m., Atlanta,Georgia time.

 

11.7                           **Successors and Assigns****.**  Subjectto Section 11.3 hereof, the terms and provisions of this Agreement are to applyto and bind the permitted successors and assigns of the parties hereto.

 

11.8                           **Entire Agreement**.  ThisAgreement, including the Exhibits, contain the entire agreement between theparties pertaining to the subject matter hereof and fully supersedes all priorwritten or oral agreements and understandings between the parties pertaining tosuch subject matter.

 

11.9                           **Further Assurances****.**  Eachparty agrees that it will without further consideration execute and deliversuch other documents and take such other action, whether prior or subsequent toClosing, as may be reasonably requested by the other party to consummate moreeffectively the purposes or subject matter of this Agreement.  Without limiting the generality of theforegoing, Purchaser shall, if requested by Seller, execute acknowledgments ofreceipt with respect to any materials delivered by Seller to Purchaser withrespect to the Property. Upon a request therefor and after having anopportunity to review and verify the Historical Summary of Gross Income andDirect Operating Expenses referenced therein, Seller agrees that it shalldeliver to Purchaser’s auditor, KPMG LLP, a letter in the form attached heretoas Exhibit D. The provisions of this Section 11.9 shall survive Closing.

 

11.10                     **Counterparts****.**  ThisAgreement may be executed in counterparts, and all such executed counterpartsshall constitute the same agreement.  Itshall be necessary to account for only one such counterpart in proving thisAgreement.

 

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11.11                     **Severability****. **If any provision of this Agreement is determined by a court ofcompetent jurisdiction to be invalid or unenforceable, the remainder of thisAgreement shall nonetheless remain in full force and effect.

 

11.12                     **Applicable Law****. **This Agreement is performable in the state in which the Property islocated and shall in all respects be governed by, and construed in accordancewith, the substantive federal laws of the United States and the laws of suchstate. Seller and Purchaser hereby irrevocably submit to the jurisdiction ofany state or federal court sitting in the state in which the Property islocated in any action or proceeding arising out of or relating to thisAgreement and hereby irrevocably agree that all claims in respect of suchaction or proceeding shall be heard and determined in a state or federal courtsitting in the state in which the Property is located. If either Seller orPurchaser institutes a legal action to enforce its rights under this Agreement,the prevailing party shall be entitled to recover from the other party itsreasonable attorneys’ fees and court costs incurred in connection therewith.Purchaser and Seller agree that the provisions of this Section 11.12 shallsurvive the Closing of the transaction contemplated by this Agreement.

 

11.13                     **No****Third Party Beneficiary****. **The provisions of this Agreement and of the documents to be executedand delivered at Closing are and will be for the benefit of Seller andPurchaser only and are not for the benefit of any third party, and accordingly,no third party shall have the right to enforce the provisions of this Agreementor of the documents to be executed and delivered at Closing.

 

11.14                     **Employees****. **Prior to the Inspection Date, Purchaser agrees not to offer employmentto or solicit the employment of any employees of Seller who are employed at theProperty, if any.

 

11.15                     **Seller’s****Access****to Records after Closing****.  **Purchaser shall cooperate with Seller for a period of three (3) yearsafter Closing in case of Seller’s need in response to any legal requirement,tax audit, tax return preparation or litigation threatened or brought againstSeller, by allowing Seller and its agents or representatives access, uponreasonable advance notice (which notice shall identity the nature of theinformation sought by Seller), at all reasonable times to examine and makecopies of any and all instruments, files and records which predate the Closing,provided, however, that nothing contained in this Section shallrequire Purchaser to retain any files or records for any particular period oftime.  This Section 11.15 shall surviveClosing.

 

11.16                     **Exhibits and****Schedules****. **The following schedules or exhibits attached hereto shall be deemed tobe an integral part of this Agreement:

 
| Exhibit A   |   | - |   | Legal Description of the  Land |
|-------------|--------|---|--------|--------------------------------|
| Exhibit A-l |   | - |   | List of Projects               |
| Exhibit B   |   | - |   | List of Leases                 |
| Exhibit C   |   | - |   | Service Contracts              |
| Exhibit D   |   | - |   | Form of Audit Letter           |
| Exhibit E   |   | - |   | [Reserved]                     |

 

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| Exhibit F |   | - |   | Seller’s Disclosure  Schedule |
|-----------|--------|---|--------|------------------------------------|
| Exhibit G |   | - |   | Form of Tenant Estoppel            |
| Exhibit H |   | - |   | Due Diligence Materials            |
| Exhibit I |   | - |   | Seller Lease Estoppel  Certificate |

 

11.17                     **Captions****.**  Thesection headings appearing in this Agreement are for convenience of referenceonly and are not intended, to any extent and for any purpose, to limit ordefine the text of any section or any subsection hereof.

 

11.18                     **Construction****.**  Theparties acknowledge that the parties and their counsel have reviewed andrevised this Agreement and that the normal rule of construction to the effectthat any ambiguities are to be resolved against the drafting party shall not beemployed in the interpretation of this Agreement or any exhibits or amendmentshereto.

 

11.19                     **Termination of Agreement****.**  It isunderstood and agreed that if either Purchaser or Seller terminates thisAgreement pursuant to a right of termination granted hereunder, suchtermination shall operate to relieve Seller and Purchaser from all obligationsunder this Agreement, except for such obligations as are specifically statedherein to survive the termination of this Agreement.

 

11.20                     **Survival****.**  Thoseprovisions of this Agreement that by their terms expressly survive the Closingshall survive Closing and shall not be merged into the execution and deliveryof the Deeds and other documents to be executed and delivered by Seller atClosing (the **“Obligations Surviving Closing”**).  Except for the Obligations Surviving Closing,all representations, warranties, covenants and agreements contained in thisAgreement shall be merged into the instruments and documents executed anddelivered at Closing.

 

11.21                     **Time of Essence****.**  Timeis of the essence with respect to this Agreement.

 

[SIGNATURES ON FOLLOWING PAGES]

 

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IN WITNESS WHEREOF, the parties hereto haveduly executed this Agreement as of the Effective Date.

 
| ** ** | **SELLER:**                                                       | ** **                                                                            |
|------------|-------------------------------------------------------------------|---------------------------------------------------------------------------------------|
| ** ** | ** **                                                        | ** **                                                                            |
|       | **FFI AMERICAN MARKET FUND, L.P.,**a Georgia limited  partnership |
|       |                                                              |                                                                                  |
|       | By:                                                               | FFI REAL ESTATE USA, LLC,  a  Georgia limited liability company, its  general partner |
|       |                                                              |                                                                                  |
|       |                                                              | By:                                                                                   | /s/ Robert [ILLEGIBLE] |   |
|       |                                                              | Name:                                                                                 | Robert  [ILLEGIBLE] |   |
|       |                                                              | Title:                                                                                | President |   |
|            |                                                                   |                                                                                       |  |  |  |  |  |

 

 

[SIGNATURES CONTINUED ON FOLLOWING PAGE]

 

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| ** ** | **PURCHASER:**                                                        | ** **      |
|------------|-----------------------------------------------------------------------|-----------------|
| ** ** | ** **                                                            | ** **      |
|       | **INLAND REAL ESTATE  ACQUISITIONS,  INC.,** an Illinois  corporation |
|       |                                                                  |
|       |                                                                  |
|       | By:                                                                   | /s/ [ILLEGIBLE] |   |
|       | Name:                                                                 | [ILLEGIBLE]     |   |
|       | Title:                                                                | President       |   |
|            |                                                                       |                 |  |  |  |  |

 

 

[SIGNATURES CONTINUED ON FOLLOWING PAGE]

 

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Escrow Agent and Broker have executed thisAgreement for the limited purposes set forth herein.

 
| ** ** | **ESCROW  AGENT:**                                                   | ** **          |
|------------|----------------------------------------------------------------------|---------------------|
| ** ** | ** **                                                           | ** **          |
|       | **CHICAGO  TITLE & TRUST COMPANY,**a* *Missouri corporation |
|       |                                                                 |
|       |                                                                 |
|       | By:                                                                  | /s/ Nancy R. Castro |   |
|       | Name:                                                                | NANCY R. CASTRO     |   |
|       | Title:                                                               | AVP                 |   |
|            |                                                                      |                     |  |  |  |

 

 

[SIGNATURES CONTINUED ON FOLLOWING PAGE]

 

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| ** ** | **BROKER:**                                                         | ** **      |
|------------|---------------------------------------------------------------------|-----------------|
| ** ** | ** **                                                          | ** **      |
|       | **MAXWELL  PROPERTIES INC.,**a Georgia licensed  real estate broker |
|       |                                                                |
|       |                                                                |
|       | By:                                                                 | /s/ [ILLEGIBLE] |   |
|       | Name:                                                               | [ILLEGIBLE]     |   |
|       | Title:                                                              | Vice President  |   |
|            |                                                                     |                 |  |  |  |  |

 

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