**Exhibit 10.474**

 

Henry Town Center

McDonough, Georgia

Eighth Amendment to Agreement

 

**EIGHTH AMENDMENT TO AGREEMENT**

 

THIS EIGHTH AMENDMENT TO AGREEMENT (the “EighthAmendment”) is made and entered into as of the 1st day of December, 2004, by and between **Henry Town Center,****LLC,** a Georgialimited liability company, **Alpha Seven, LLC,**a Delaware limited liability company, **Elliston Henry TownCenter, LLC,** a Delaware limited liability company, **Owen Henry Town Center, LLC,** a Delaware limited liabilitycompany, **DSCongdonA, LLC,** a Delaware limitedliability company, **JWCongdonA, LLC,**a Delaware limited liability company, **KCVanstoryA, LLC,**a Delaware limited liability company. **ALCongdonA, LLC,**a Delaware limited liability company, **SCTerryA, LLC,**a Delaware limited liability company. **JRCongdonA, Jr., LLC,**a Delaware limited liability company, **Spence Henry Town Center,LLC,** a Delaware limited liability company, and **Jay HenryTown Center, LLC,** a Delaware limited liability company (collectively“Seller”) and **INLAND REAL ESTATE ACQUISITIONS, INC.**(“Buyer”).

 

W I T N E S S E T H:

 

WHEREAS, Seller and Buyer entered into thatcertain Agreement of Purchase and Sale of Shopping Center dated July 29, 2004,as amended (the “Agreement”), for the sale and purchase of the property commonlyknown as Henry Town Center located in McDonough, Georgia, as legally describedby the Agreement (the “Property”).

 

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

 

NOW THEREFORE, in consideration of the foregoing,and other good and valuable consideration, the receipt and sufficiency of whichis hereby acknowledged. Buyer and Seller agree as follows:

 

1.               If on or prior to December 23, 2004: (i)Lender’s rating agency does not approve the assumption of the Loan by Buyer inthe manner described in Section 10(c) of the Agreement and/or (ii) Lender’srating agency imposes new conditions upon Buyer in connection with approval ofthe Loan assumption; and/or (iii) final receipt and execution of loanassumption documents and satisfaction of all Closing conditions imposed byLender to Buyer and Seller (collectively, the “Financing Approval Contingency”),then Buyer may terminate this Agreement provided that written notice thereof isreceived by Seller on or prior to 10:00 P.M., Chicago time December 23, 2004.Seller or its affiliates must be released from any ongoing liabilities underthe Loan or any related guaranty agreements.

 

----

 

2.               Section 2(a) of the Agreement (Closing)is hereby amended and restated as follows: “The closing of the transactioncontemplated by this Agreement (the “Closing”) shall occur via mail at theChicago, Illinois office of the Title Company (as hereinafter defined), on December23, 2004.”

 

3.               This Eighth Amendment may be executed in oneor more counterparts, each of which shall constitute an original and all ofwhich taken together shall constitute one Eighth Amendment.  Each person executing this Eighth 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 EighthAmendment.  Any counterpart to thisEighth Amendment may be executed by facsimile copy and shall be binding on theparties. Defined terms utilized in the Eighth Amendment shall have the meaningascribed to them by the Agreement.

 

Except as modified herein by this EighthAmendment, and as previously amended, the Agreement shall remain unmodified andin full force and effect.

 

**PLEASE SEE FOLLOWING PAGE FOR SIGNATURES**

 

2

----

 
| ** **   | Seller:                                                              |
|--------------|----------------------------------------------------------------------|
|         |                                                                 |
| ** **   | **HENRY TOWN CENTER, LLC,**                                          |
| ** **   | **ALPHA SEVEN, LLC,**                                                |
| ** **   | **ELLISTON HENRY TOWN CENTER,  LLC,**                                |
| ** **   | **OWEN HENRY TOWN CENTER, LLC,**                                     |
| ** **   | **DSCONGDONA, LLC, JWCONGDONA,  LLC,**                               |
| ** **   | **KCVANSTORYA, LLC, ALCONGDONA,  LLC,**                              |
| ** **   | **SCTERRYA, LLC, JRCONGDONA, JR.,  LLC,**                            |
| ** **   | **SPENCE HENRY TOWN CENTER, LLC,**                                   |
| ** **   | **JAY HENRY TOWN CENTER, LLC**                                       |
| ** **   | ** **                                                           |
| ** **   | ** **                                                           |
| ** **   | By:                                                                  | /s/ Steven D. Bell |   |
| ** **   | Name: Steven D. Bell                                                 |
| ** **   | ** **                                                           |
| *** *** | ***Title:  Authorized Signatory for all Co-Tenant Sellers***         |
| ** **   | ** **                                                           |
| ** **   | ** **                                                           |
| ** **   | Purchaser:                                                           |
| ** **   | ** **                                                           |
| ** **   | **INLAND REAL ESTATE  ACQUISITIONS,  INC.,** an Illinos  corporation |
| ** **   | ** **                                                           |
| ** **   | By:                                                                  | /s/ Jason A. Lazarus |   |
| ** **   | Name:                                                                | Jason A. Lazarus |   |
| ** **   | Title:                                                               | V.P. |   |
|              |                                                                      |  |  |  |  |

 

3

----

 

Henry Town Center

McDonough, Georgia

Seventh Amendment to Agreement

 

**SEVENTH AMENDMENT TO AGREEMENT**

 

THIS SEVENTH AMENDMENT TO AGREEMENT (the “SeventhAmendment”) is made and entered into as of the 29th day of November,2004, by and between **Henry Town****Center, LLC,** a Georgia limited liability company, **Alpha Seven, LLC,**a Delaware limitedliability company, **Elliston Henry Town Center,LLC,**a****Delaware limited liability company,**Owen Henry Town Center, LLC,**a Delaware limited liability company, **DSCongdonA,****LLC,**a Delaware limited liability company, **JWCongdonA,****LLC,** a Delaware limited liabilitycompany, **KCVanstoryA, LLC,**a Delaware limited liability company, **ALCongdonA, LLC,**a Delaware limitedliability company, **SCTerryA, LLC,**a Delaware limited liability company, **JRCongdonA,Jr., LLC,**a Delawarelimited liability company, **Spence Henry TownCenter, LLC,**a Delawarelimited liability company, and **Jay Henry Town Center, LLC,**a Delawarelimited liability company (collectively “Seller”) and **INLAND REAL ESTATE ACQUISITIONS,****INC.**(“Buyer”).

 

W I T N E S S E T H:

 

WHEREAS, Seller and Buyer entered into thatcertain Agreement of Purchase and Sale of Shopping Center dated July 29, 2004,as amended (the “Agreement”), for the sale and purchase of the property commonly known as HenryTown Center located in McDonough, Georgia, as legally described by theAgreement (the “Property”).

 

WHEREAS, Buyer and Seller have mutually agreed to amend certainprovisions of the Agreement.

 

NOW THEREFORE, in consideration of the foregoing, and other good and valuableconsideration, the receipt and sufficiency of which is hereby acknowledged, Buyer and Seller agree as follows:

 

1.               If on or prior to December 1, 2004: (i)Lender does not approve the assumption of the Loan by Buyer in the mannerdescribed in Section 10(e) of the Agreement; and/or (ii) Buyer does not agreeupon the terms of the Loan assumption in the manner described in Section 10(e) ofthe Agreement (collectively, the “Financing Approval Contingency”), then Buyermay terminate this Agreement provided that written notice thereof is receivedby Seller on or prior to 10:00 P.M., Chicago time December 1, 2004, Seller orits affiliates must be released from anyongoing liabilities under the Loan or any related guaranty agreements.

 

2.               Section 2(a) of the Agreement (Closing)is hereby amended and restatedas follows: “The closing of the transaction contemplated by this Agreement (the“Closing”) shall occur via mail at the Chicago,

 

----

 

Illinoisoffice of the Title Company (as hereinafter defined), on December 23, 2004.”

 

3.               This Seventh Amendment may be executed in oneor more counterparts, each of which shall constitute an original and all ofwhich taken together shall constitute one Seventh Amendment. Each personexecuting this Seventh Amendment represents that such person has full authorityand legal power to do so and bind the party on whose behalf he or she has executedthis Seventh Amendment. Any counterpart to this Seventh Amendment may beexecuted by facsimile copy and shall be binding on the parties. Defined termsutilized in the Seventh Amendment shall have the meaning ascribed to them bythe Agreement.

 

Except as modified herein by this Seventh Amendment, and as previouslyamended, the Agreement shall remain unmodified and in full force and effect.

 

**PLEASE SEE FOLLOWING PAGE FOR SIGNATURES**

 

2

----

 
|       | Seller:                                                            |
|------------|--------------------------------------------------------------------|
|       |                                                               |
|       | **HENRY TOWN CENTER, LLC,**                                        |
|       | **ALPHA SEVEN, LLC,**                                              |
|       | **ELLISTON HENRY TOWN CENTER,  LLC,**                              |
|       | **OWEN  HENRY TOWN CENTER, LLC,**                                  |
|       | **DSCONGDONA, LLC, JWCONGDONA LLC,**                               |
|       | **KCVANSTORYA, LLC, ALCONGDONA,  LLC,**                            |
|       | **SCTERRYA, LLC, JRCONGDONA,****JR.,****LLC,**                     |
|       | **SPENCE HENRY TOWN CENTER, LLC,**                                 |
|       | **JAY HENRY TOWN CENTER, LLC**                                     |
|       |                                                               |
|       |                                                               |
|       | By:                                                                | /s/ Steven D. Bell |   |
|       | Name: Steven D. Bell                                               |
|       |                                                               |
| * *   | ***Title: Authorized Signatory for  all Co-Tenant Sellers***       |
| * *   | * *                                                           |
| * *   | * *                                                           |
|       | Purchaser:                                                         |
|       |                                                               |
| ** ** | **INLAND  REAL ESTATE ACQUSITIONS,  INC.,**an Illinois corporation |
|       |                                                               |
|       | By:                                                                | /s/ Jason A. Lazarus |   |
|       | Name:                                                              | Jason A. Lazarus |   |
|       | Title:                                                             | V.P. |   |
|            |                                                                    |  |  |  |  |  |

 

3

----

 

Henry Town Center

McDonough, Georgia

Sixth Amendment to Agreement

 

**SIXTH AMENDMENT TO AGREEMENT**

 

THIS SIXTH AMENDMENT TO AGREEMENT (the “Sixth Amendment”) is made andentered into as of the 27th day of September 2004, by and between**Henry Town Center, LLC,** a Georgia limited liabilitycompany, **Alpha Seven, LLC,** a Delaware limited liabilitycompany, **Elliston Henry Town****Center****, LLC,** a Delaware limited liability company, **Owen Henry Town Center, LLC,** a Delaware limited liabilitycompany, **DSCongdonA, LLC,** a Delaware limitedliability company, **JWCongdonA, LLC,**a Delaware limited liability company, **KCVanstoryA, LLC,**a Delaware limited liability company, **ALCongdonA, LLC,**aDelaware limited liability company,**SCTerryA, LLC**,a Delaware limited liability company, **JRCongdonA, Jr., LLC,**a Delaware limited liability company, **Spence Henry Town Center,LLC,** a Delaware limited liability company, and **Jay HenryTown Center, LLC,** a Delaware limited liability company (collectively“Seller”) and **INLAND REAL ESTATE ACQUISITIONS, INC.**(“Buyer”).

 

W I T N E S S E T H:

 

WHEREAS, Seller and Buyer entered into that certain Agreement ofPurchase and Sale of Shopping Center dated July 29, 2004, as amended (the “Agreement”),for the sale and purchase of the property commonly known as Henry TownCenter Located in McDonough, Georgia, as legally described by the Agreement(the “Property”).

 

WHEREAS, Buyer and Seller have mutually agreed to amend certainprovisions of the Agreement.

 

NOW THEREFORE, in consideration of the foregoing, and other good andvaluable consideration, the receipt and sufficiency of which is herebyacknowledged, Buyer and Seller agree as follows:

 

1.               Section 10(e)(ii)of the Agreement is herebyamended by deleting the following described language therefrom “...(asdetermined by Buyer during the Due Diligence Period)...”

 

2.               If on or prior toNovember 29, 2004: (i) Lender does not approve the assumption of the Loan byBuyer in the manner described in Section 10(e) of the Agreement: and/or (ii)Buyer does not agree upon the terms of the Loan assumption in the mannerdescribed in Section 10(e) of theAgreement (collectively, the “Financing Approval Contingency”), then Buyer mayterminate this Agreement provided that written notice therof is received bySeller on or prior to 10:00 P.M., Chicago time November 29, 2004.  Seller or its affiliates must be releasedfrom any ongoing liabilities under the Loan or any related guaranty agreements.

 

----

 

3.               Section 2(a) of theAgreement (Closing) is hereby amended and restated as follows: “Theclosing of the transaction contemplated by this Agreement (the “Closing”) shall occur via mail at the Chicago,Illinois office of the Title Company (as hereinafter defined), on December 21,2004.”

 

4.               The introductoryparagraph of Agreement Section 3. Consideration. Is hereby amended andrestated as follows: “The consideration to be paid to Seller by Buyer for the purchase of the Property (the “PurchasePrice”) shall be the sum of Sixty-one Million Three Hundred Ninety-six ThousandSix Hundred Ninety-five and no/100 Dollars ($61,396,695.00). The Purchase Priceshall be satisfied as follows:”

 

5.               This SixthAmendment may be executed in one or more counterparts, each of which shallconstitute an original and all of which taken together shall constitute oneSixth Amendment. Each person executing this Sixth Amendment represents thatsuch person has full authority and legalpower to do so and bind the party on whose behalf he or she has executed this SixthAmendment. Any counterpart to this Sixth Amendment may be executed by facsimilecopy and shall be binding on the parties. Defined terms utilized in the SixthAmendment shall have the meaning ascribed to them by the Agreement.

 

Except as modified herein by this Sixth Amendment, and as previouslyamended, the Agreement shall remain unmodified and in full force and effect.

 

**PLEASE SEE FOLLOWING PAGE FORSIGNATURES**

 

2

----

 
|   | Seller:                                                            |
|--------|--------------------------------------------------------------------|
|   |                                                               |
|   | **HENRY TOWN CENTER, LLC,**                                        |
|   | **ALPHA SEVEN, LLC,**                                              |
|   | **ELLISTON HENRY TOWN CENTER,  LLC,**                              |
|   | **OWEN  HENRY TOWN CENTER, LLC,**                                  |
|   | **DSCONGDONA, LLC, JWCONGDONA  LLC,**                              |
|   | **KCVANSTORYA, LLC, ALCONGDONA,  LLC,**                            |
|   | **SCTERRYA, LLC, JRCONGDONA,****JR.,****LLC,**                     |
|   | **SPENCE HENRY TOWN CENTER, LLC,**                                 |
|   | **JAY HENRY TOWN CENTER, LLC**                                     |
|   |                                                               |
|   | By:                                                                | /s/ Steven D. Bell |   |
|   | Name: Steven D. Bell                                               |
|   |                                                               |
|   | ***Title: Authorized Signatory for  all Co-Tenant Sellers***       |
|   |                                                               |
|   |                                                               |
|   | Purchaser:                                                         |
|   |                                                               |
|   | **INLAND REAL ESTATE ACQUSITIONS,  INC.**, an Illinois corporation |
|   |                                                               |
|   | By:                                                                | /s/ Jason A. Lazarus, Authorized Agent |   |
|   | Name:                                                              | Jason A. Lazarus |   |
|   | Title:                                                             | Vice President |   |
|        |                                                                    |  |  |  |  |  |

 

3

----

 

Henry Town Center

McDonough, Georgia

Fifth Amendment to Agreement

 

**FIFTH AMENDMENT TO AGREEMENT**

 

THIS FIFTH AMENDMENT TO AGREEMENT (the “FifthAmendment”) is made and entered into as of the 27th day of September2004, by and between **Henry Town Center, LLC,**aGeorgia limited liability company, **Alpha****Seven, LLC,** a Delaware limited liability company, **Elliston Henry Town Center, LLC,**a Delawarelimited liability company, **Owen Henry TownCenter,****LLC,** a Delawarelimited liability company, **DSCongdonA, LLC,**aDelaware limited liability company, **JWCongdonA,LLC,**a Delaware limited liability company, **KCVanstoryA, LLC,**a Delaware limited liabilitycompany, **ALCongdonA, LLC,**aDelaware limited liability company, **SCTerryA,LLC,**a Delaware limited liability company, **JRCongdonA, Jr., LLC,**a Delaware limitedliability company, **Spence Henry Town Center,LLC,**a Delaware limited liability company, and **Jay Henry Town Center, LLC,**a Delawarelimited liability company (collectively “Seller”) and **INLAND REAL ESTATE ACQUISITIONS, INC.**(“Buyer”).

 

W I T N E S S E T H:

 

WHEREAS, Seller and Buyer entered into thatcertain Agreement of Purchase and Sale of Shopping Center dated July 29, 2004,as amended (the “Agreement”), for the sale and purchase of the propertycommonly known as Henry Town Center located in McDonough, Georgia, as legallydescribed by the Agreement (the “Property”).

 

WHEREAS, Buyer 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.               If Buyer is not satisfied for any reason, orfor no reason, in any respect, in the judgment of Buyer, with the results ofits inspections described immediatelybelow, then Buyer may terminate this Agreement provided that written noticethereof is received by Seller on or prior to 10:00 P.M., Chicago time on orbefore September 29, 2004: (a) approval (in the manner described by Section10(e) of the Agreement) by Buyer of Loan and assumption documents to be enteredinto by and among Buyer, Seller and Lender, and (b) reconciliation and approvalby Buyer of Property operating income and expenses.

 

2.               This Fifth Amendment may be executed in oneor more counterparts, each of which shall constitute an original and all ofwhich taken together shall constitute one Fifth Amendment. Each personexecuting this Fifth 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 Fifth Amendment. Any counterpart to this Fifth Amendment may be executedby facsimile copy and shall be binding on the parties. Defined terms utilizedin the Fifth Amendment shall have the meaning ascribed to them by the Agreement.

 

Except as modified herein by this FifthAmendment, and as previously amended, the Agreement shall remain unmodified andin full force and effect.

 
|       | Seller:                                                           |
|------------|-------------------------------------------------------------------|
|       |                                                              |
|       | **HENRY TOWN CENTER, LLC,**                                       |
|       | **ALPHA SEVEN, LLC,**                                             |
|       | **ELLISTON HENRY TOWN CENTER,  LLC,**                             |
|       | **OWEN HENRY TOWN CENTER, LLC,**                                  |
|       | **DSCONGDONA,  LLC, JWCONGDONA, LLC,**                            |
|       | **KCVANSTORYA,  LLC, ALCONGDONA, LLC,**                           |
|       | **SCTERRYA,  LLC, JRCONGDONA, JR., LLC,**                         |
|       | **SPENCE HENRY TOWN CENTER, LLC,**                                |
|       | **JAY****HENRY****TOWN CENTER, LLC**                              |
|       |                                                              |
|       |                                                              |
|       | By:                                                               | /s/ Steven D. Bell |   |
|       | Name: Steven D. Bell                                              |
|       |                                                              |
| * *   | ***Title*****: *Authorized Signatory for all Co-Tenant Sellers*** |
|       |                                                              |
|       |                                                              |
|       | Purchaser:                                                        |
|       |                                                              |
| ** ** | **INLAND  REAL ESTATE ACQUSITIONS, INC.,**an Illinois corporation |
|       |                                                              |
|       | By:                                                               | /s/ Jason A. Lazarus, Authorized Agent |   |
|       | Name:                                                             | Jason A. Lazarus |   |
|       | Title:                                                            | Vice President |   |
|            |                                                                   |  |  |  |  |  |

 

2

----

** **

HenryTown Center

McDonough,Georgia

FourthAmendment to Agreement

 

**FOURTH AMENDMENT TO AGREEMENT**

 

THIS FOURTH AMENDMENT TO AGREEMENT (the “FourthAmendment”) is made and entered into as of the 24th day of September2004, by and between **Henry Town Center, LLC,**aGeorgia limited liability company, **AlphaSeven, LLC,**a Delaware limited liability company, **Elliston Henry Town Center, LLC,**a Delawarelimited liability company, **Owen Henry TownCenter, LLC,**a Delaware limited liability company, **DSCongdonA, LLC,**a Delaware limitedliability company, **JWCongdonA, LLC,**aDelaware limited liability company, **KCVanstoryA,LLC,**a Delaware limited liability company, **ALCongdonA, LLC,**a Delaware limitedliability company, **SCTerryA, LLC,**aDelaware limited liability company, **JRCongdonA,Jr., LLC,**a Delaware limited liability company, **Spence Henry Town Center,****LLC,** a Delaware limited liability company, and **Jay Henry Town Center, LLC,**a Delawarelimited liability company (collectively “Seller”) and **INLAND REAL ESTATE ACQUISITIONS, INC.**(“Buyer”).

 

W I T N E S S E T H:

 

WHEREAS, Seller and Buyer entered into thatcertain Agreement of Purchase and Sale of Shopping Center dated July 29, 2004,as amended (the “Agreement”), for the sale and purchase of the propertycommonly known as Henry Town Center located in McDonough, Georgia, as legallydescribed by the Agreement (the “Property”).

 

WHEREAS, Buyer 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.               If Buyer is not satisfied for any reason, or for no reason, in anyrespect, in the judgment of Buyer, with the results of its inspectionsdescribed immediately below, then Buyer may terminate this Agreement providedthat written notice thereof is received by Seller on or prior to 10:00 P.M.,Chicago time on or before September 27, 2004; (a) approval (in the mannerdescribed by Section 10(e) of the Agreement) by Buyer of Loan and assumptiondocuments to be entered into by and among Buyer, Seller and Lender; and (b)reconciliation and approval by Buyer of Property operating income and expenses.

 

2.               This Fourth Amendment may be executed in oneor more counterparts, each of which shall constitute an original and all ofwhich taken together shall constitute one Fourth Amendment. Each person executingthis Fourth Amendment represents that such person has full

 

----

 

authorityand legal power to do so and bind the party on whose behalf he or she hasexecuted this Fourth Amendment. Any counterpart to this Fourth Amendment may beexecuted by facsimile copy and shall be binding on the parties. Defined termsutilized in the Fourth Amendment shall have the meaning ascribed to them by theAgreement.

 

Except as modified herein by this FourthAmendment, and as previously amended, the Agreement shall remain unmodified andin full force and effect.

 

 
|       | Seller:                                                           |
|------------|-------------------------------------------------------------------|
|       |                                                              |
|       | **HENRY TOWN CENTER, LLC,**                                       |
|       | **ALPHA SEVEN, LLC,**                                             |
|       | **ELLISTON HENRY TOWN CENTER,  LLC,**                             |
|       | **OWEN HENRY TOWN CENTER, LLC,**                                  |
|       | **DSCONGDONA,  LLC, JWCONGDONA, LLC,**                            |
|       | **KCVANSTORYA,  LLC, ALCONGDONA, LLC,**                           |
|       | **SCTERRYA,  LLC, JRCONGDONA, JR., LLC,**                         |
|       | **SPENCE HENRY TOWN CENTER, LLC,**                                |
|       | **JAY****HENRY****TOWN CENTER, LLC**                              |
|       |                                                              |
|       |                                                              |
|       | By:                                                               | /s/ Steven D. Bell |   |
|       | Name: Steven D. Bell                                              |
|       |                                                              |
| * *   | ***Title*****: *Authorized Signatory for all Co-Tenant Sellers*** |
|       |                                                              |
|       |                                                              |
|       | Purchaser:                                                        |
|       |                                                              |
| ** ** | **INLAND  REAL ESTATE ACQUSITIONS, INC.,**an Illinois corporation |
|       |                                                              |
|       | By:                                                               | /s/ Jason A. Lazarus, Authorized Agent |   |
|       | Name:                                                             | Jason A. Lazarus |   |
|       | Title:                                                            | Acqusitions Officer |   |
|            |                                                                   |  |  |  |  |  |

 

2

----

 

Henry Town Center

McDonough, Georgia

Third Amendment to Agreement

 

**THIRD AMENDMENT****TOAGREEMENT**

 

THIS THIRD AMENDMENT TO AGREEMENT (the “ThirdAmendment”) is made and entered into asof the 17th day of September 2004, by and between **Henry Town Center, LLC,**a Georgia limited liability company, **Alpha****Seven, LLC,** aDelaware limited liability company, **Elliston Henry Town Center, LLC,**aDelaware limited liability company, **OwenHenry Town Center, LLC,**a Delaware limited liability company, **DSCongdonA, LLC,**a Delaware limitedliability company, **JWCongdonA, LLC,**aDelaware limited liability company, **KCVanstoryA,LLC,**a Delaware limited liability company, **ALCongdonA, LLC,**a Delaware limitedliability company, **SCTerryA, LLC,**aDelaware limited liability company, **JRCongdonA,Jr., LLC,**a Delaware limited liability company, **Spence Henry****Town Center, LLC,**a Delaware limitedliability company, and **Jay Henry Town Center,LLC,**a Delawarelimited liability company (collectively “Seller”) and **INLAND REAL****ESTATE ACQUISITIONS, INC.**(“Buyer”).

 

W I T N E S S E T H:

 

WHEREAS, Seller and Buyer entered into thatcertain Agreement of Purchase and Sale of Shopping Center dated July 29, 2004,as amended (the “Agreement”), for the sale and purchase of the propertycommonly known as Henry Town Center located in McDonough, Georgia, as legallydescribed by the Agreement (the “Property”).

 

WHEREAS, Buyer 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.               If Buyer is not satisfied for**any reason, or for no reason, in any respect,in the judgment of Buyer, with the results of its inspections described immediatelybelow, then Buyer may terminatethis Agreement provided that written notice thereof is received by Seller on orprior to 10:00 P.M., Chicago time on or before September 24, 2004: (a) approval(in the manner described by Section 10(e) of the Agreement) by Buyer of Loanand assumption documents to be entered into by and among Buyer, Seller andLender; and (b) reconciliation and approval by Buyer of Property operating incomeand expenses.

 

2.               This Third Amendment may be executed in oneor more counterparts, each of which shall constitute an original and all ofwhich taken together shall constitute one Third Amendment. Each personexecuting this Third 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 Third Amendment. Any counterpart to this Third Amendment may be executedby facsimile copy and shall be binding on the parties. Defined terms utilizedin the Third Amendment shall have the meaning ascribed to them by theAgreement.

 

Except as**modifiedherein by this Third Amendment, and as previously amended, the Agreement shallremain unmodified and in full force and effect.

 

 
|       | Seller:                                                           |
|------------|-------------------------------------------------------------------|
|       |                                                              |
|       | **HENRY TOWN CENTER, LLC,**                                       |
|       | **ALPHA SEVEN, LLC,**                                             |
|       | **ELLISTON HENRY TOWN CENTER,  LLC,**                             |
|       | **OWEN HENRY TOWN CENTER, LLC,**                                  |
|       | **DSCONGDONA,  LLC, JWCONGDONA, LLC,**                            |
|       | **KCVANSTORYA,  LLC, ALCONGDONA, LLC,**                           |
|       | **SCTERRYA,  LLC, JRCONGDONA, JR., LLC,**                         |
|       | **SPENCE HENRY TOWN CENTER, LLC,**                                |
|       | **JAY****HENRY****TOWN CENTER, LLC**                              |
|       |                                                              |
|       |                                                              |
|       | By:                                                               | /s/ Steven D. Bell |   |
|       | Name: Steven D. Bell                                              |
|       |                                                              |
| * *   | ***Title*****: *Authorized Signatory for all Co-Tenant Sellers*** |
|       |                                                              |
|       |                                                              |
|       | Purchaser:                                                        |
|       |                                                              |
| ** ** | **INLAND  REAL ESTATE ACQUSITIONS, INC.,**an Illinois corporation |
|       |                                                              |
|       | By:                                                               | /s/ [ILLEGIBLE] |   |
|       | Name:                                                             | [ILLEGIBLE] |   |
|       | Title:                                                            | [ILLEGIBLE] |   |
|            |                                                                   |  |  |  |  |

 

2

----

 

Henry Town Center

McDonough, Georgia

Second Amendment to Agreement

 

**SECOND****AMENDMENT TO AGREEMENT**

 

THIS SECOND AMENDMENT TO AGREEMENT (the “SecondAmendment”) is made and entered into as of the 15th day of September 2004, by and between **Henry Town Center, LLC,** a Georgia limited liability company,**Alpha Seven, LLC,** a Delaware limitedliability company, **Elliston Henry TownCenter, LLC,** a Delaware limited liability company, **Owen Henry Town Center, LLC,** a Delaware limited liabilitycompany, **DSCongdonA, LLC,** a Delaware limitedliability company, **JWCongdonA, LLC,**a Delaware limited liability company, **KCVanstoryA, LLC,**a Delaware limited liability company, **ALCongdonA, LLC,**a Delaware limited liability company, **SCTerryA, LLC,**a Delaware limited liability company, **JRCongdonA, Jr., LLC,**a Delaware limited liability company, **Spence Henry Town Center,LLC,** a Delaware limited liability company, and **Jay HenryTown Center, LLC,** a Delaware limited liability company (collectively“Seller”) and **INLAND REAL ESTATE ACQUISITIONS, INC.**(“Buyer”).

 

W I T N E S S E T H:

 

WHEREAS, Seller and Buyer entered into thatcertain Agreement of Purchase and Sale of Shopping Center dated July 29, 2004,as amended (the “Agreement”), for the sole and purchase of the propertycommonly known as Henry Town Center located in McDonough, Georgia, as legallydescribed by the Agreement (the “Property”).

 

WHEREAS, Buyer 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.               If Buyer is not satisfied for any reason, orfor no reason, in any respect, in the judgment of Buyer, with the results ofits inspections described immediately below, then Buyer may terminate thisAgreement provided that written notice thereof is received by Seller on or priorto 10:00 P.M., Chicago time on or before September 17, 2004: (a) approval (inthe manner described by Section 10(e) of the Agreement) by Buyer of Loan andassumption documents to be entered into by and among Buyer, Seller and Lender;and (b) reconciliation and approval by Buyer of Property operating income andexpenses.

 

2.               This Second Amendment may be executed in oneor more counterparts, each of which shall constitute an original and all of whichtaken together shall constitute one Second Amendment. Each person executingthis Second Amendment represents that such person

 

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hasfull authority and legal power to do so and bind the party on whose behalf heor she has executed this**SecondAmendment. Any counterpart to this Second Amendment may be executed byfacsimile copy and shall be binding on the parties. Defined terms utilized inthe Second Amendment shall have the meaning ascribed to them by the Agreement.

 

Except as modified herein by this SecondAmendment, and as**previouslyamended, the Agreement shall remain unmodified and in full force and effect.

 

 
|       | Seller:                                                           |
|------------|-------------------------------------------------------------------|
|       |                                                              |
|       | **HENRY TOWN CENTER, LLC,**                                       |
|       | **ALPHA SEVEN, LLC,**                                             |
|       | **ELLISTON HENRY TOWN CENTER,  LLC,**                             |
|       | **OWEN HENRY TOWN CENTER, LLC,**                                  |
|       | **DSCONGDONA,  LLC, JWCONGDONA, LLC,**                            |
|       | **KCVANSTORYA,  LLC, ALCONGDONA, LLC,**                           |
|       | **SCTERRYA,  LLC, JRCONGDONA, JR., LLC,**                         |
|       | **SPENCE HENRY TOWN CENTER, LLC,**                                |
|       | **JAY****HENRY****TOWN CENTER, LLC**                              |
|       |                                                              |
|       |                                                              |
|       | By:                                                               | /s/ Steven D. Bell |   |
|       | Name: Steven D. Bell                                              |
|       |                                                              |
| * *   | ***Title*****: *Authorized Signatory for all Co-Tenant Sellers*** |
|       |                                                              |
|       |                                                              |
|       | Purchaser:                                                        |
|       |                                                              |
| ** ** | **INLAND  REAL ESTATE ACQUSITIONS, INC.,**an Illinois corporation |
|       |                                                              |
|       | By:                                                               | /s/ Jason A. Lazarus, Authorized Agent |   |
|       | Name:                                                             | Jason A. Lazarus |   |
|       | Title:                                                            | Acquisition Officer |   |
|            |                                                                   |  |  |  |  |  |

 

2

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Henry Town Center

McDonough, Georgia

Amendment to Agreement

 

**AMENDMENT TO AGREEMENT**

 

THIS AMENDMENT TO AGREEMENT (the “Amendment”)is made and entered into as of the 1st of September 2004, by and between **Henry Town Center, LLC,**a Georgia limited liability company, **Alpha Seven, LLC,**a Delaware limited liability company, **Elliston Henry Town Center, LLC,**aDelaware limited liability company, **OwenHenry Town Center, LLC,**a Delaware limited liability company, **DSCongdonA, LLC,**a Delaware limitedliability company, **JWCongdonA, LLC,**aDelaware limited liability company, **KCVanstoryA,LLC,**a Delaware limited liability company, **ALCongdonA, LLC,**a Delaware limited liability company, **SCTerryA,LLC,** a Delaware limited liability company, **JRCongdonA, Jr., LLC,**a Delaware limitedlimited liability company, **Spence Henry TownCenter, LLC,**a Delawarelimited liability company, and **Jay Henry TownCenter, LLC,**a Delawarelimited liability company (collectively “Seller”) and **INLAND REALESTATE ACQUISITIONS, INC.**(“Buyer”).

 

W I T N E S S E T H:

 

WHEREAS, Seller and Buyer entered into thatcertain Agreement of Purchase and Sale of Shopping Center dated July 29, 2004,as amended (the “Agreement”) for the sale and purchase of the property commonlyknown as Henry Town Center located in McDonough, Georgia, as legally describedby the Agreement (the “Property”).

 

WHEREAS, Buyer 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.               Subject to the terms of Paragraph 2, hereof, “Buyer’sRights to Terminate this Agreement,” as defined in Section 7 of the Agreementis hereby amended by deleting the date of “September 1, 2004” in the 5th line of Section 7 (a) thereof, and insertingthe date “September 8, 2004,”for the purpose of Buyer’s approval of the following: (a) receipt of asatisfactory zoning letter from the local municipality; and (b) review andapproval of the Preliminary Commitment, exception documents, and the Survey,all in accordance with the terms of the Agreement.

 

2.               If Buyer is not satisfied for**any reason, or for no reason, in anyrespect in the judgment of Buyer, with the results of its inspections describedimmediately below, then Buyer may terminate this Agreement provided thatwritten notice thereof is received by Seller on or prior to 10:00 P.M., Chicago time on or beforeSeptember 15, 2004: (a) approval (in the manner described by Section 10(e) ofthe Agreement) by Buyer of Loan and assumption documents to be entered into byand among Buyer, Seller and Lender; and (b) reconciliation and approval byBuyer of Property operating income and expenses; and (c)

 

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documentationof existing roof warranty information and assignment of roof Buyer; and (d)evidence of property insurance for Belk.

 

3.               Section 2(a) of the Agreement is**hereby amended and restated as follows: “Theclosing of the transaction contemplated by this Agreement (the “Closing”) shalloccur via mail at the Chicago, Illinois office of the Title Company (ashereinafter defined), on December 21, 2004.”

 

4.               The fourth (4th) sentence ofSection 18(m) of the Agreement is hereby deleted in its entirety.

 

5.               This**Amendmentmay**be executed in one or morecounterparts, each of which shall constitute an original and all of which takentogether shall constitute one Amendment. Each person executing this Amendment representsthat such person has full authority and legal power to do so and bind the partyon whose behalf he or she has executed this Amendment. Any counterpart to thisAmendment may be executed by facsimile copy and shall be binding on the parties.Defined terms utilized in the Amendment shall have the meaning ascribed to themby the Agreement.

 

Except as modified herein by this Amendment,and as previously amended, the Agreement shall remain unmodified and in fullforce and effect.

 
|   | Seller:                                                |
|--------|--------------------------------------------------------|
|   |                                                   |
|   | **HENRY TOWN CENTER, LLC,**                            |
|   | **ALPHA SEVEN, LLC,**                                  |
|   | **ELLISTON HENRY TOWN CENTER,  LLC,**                  |
|   | **OWEN HENRY TOWN CENTER, LLC,**                       |
|   | **DSCONGDONA,  LLC, JWCONGDONA, LLC,**                 |
|   | **KCVANSTORYA,  LLC, ALCONGDONA, LLC,**                |
|   | **SCTERRYA,  LLC, JRCONGDONA, JR., LLC,**              |
|   | **SPENCE HENRY TOWN CENTER, LLC,**                     |
|   | **JAY****HENRY****TOWN CENTER, LLC**                   |
|   |                                                   |
|   |                                                   |
|   | By:                                                    | /s/ Steven D. Bell |   |
|   | Name: Steven D. Bell                                   |
|   | Title: Authorized  Signatory for all Co-Tenant Sellers |

 

2

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Except as modified herein by this Amendment, the Agreement shall remainunmodified and in full force and effect.

 

 
|       | Seller:                                                           |
|------------|-------------------------------------------------------------------|
|       |                                                              |
|       | **HENRY  TOWN CENTER, LLC,**a Georgia limited liability company   |
|       |                                                              |
|       | By:                                                               |   |   |
|       | Name:                                                             |   |   |
|       | Title:                                                            |   |   |
|       |                                                              |
|       |                                                              |
|       | Purchaser:                                                        |
|       |                                                              |
| ** ** | **INLAND REAL  ESTATE ACQUSITIONS, INC.,**an Illinois corporation |
|       |                                                              |
|       | By:                                                               | /s/ Jason A. Lazarus, Authorized Agent |   |
|       | Name:                                                             | Jason A. Lazarus |   |
|       | Title:                                                            | Acquisition Officer |   |
|            |                                                                   |  |  |  |  |  |  |

 

2

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Henry Town Center

McDonough, Georgia

Amendment to Agreement

 

**AMENDMENT TO****AGREEMENT**

 

THIS AMENDMENT TO AGREEMENT (the “Amendment”)is made and entered into as of the 31st day of August 2004, by and between **HENRY TOWN CENTER, LLC,**a Georgia limitedliability company (“Seller”) and **INLAND REALESTATE ACQUISITIONS,****INC.,** (“Buyer”).

 

W I T N E S S E T H:

 

WHEREAS, Seller and Buyer entered into thatcertain Agreement of Purchase and Sale of Shopping Center dated July 29*,*2004, the (“Agreement”), for the saleand purchase of property commonly known as Henry Town Center located inMcDonough, Georgia, as legally described by the Agreement (the “Property”).

 

WHEREAS, Buyer 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****herebyacknowledged, Buyer and Seller as follows:

 

1.               The**“Buyer’sRights to Terminate this Agreement,” as defined in Section 7 of the Agreementis hereby amended by deleting the date of “August 31, 2004” in the 5th line of Section 7(a) thereof, and insertingthe date of “September 1, 2004,”

 

2.               This Amendment may be executed in one or morecounterparts, each of which shall constitute an original and all of which takentogether shall constitute one Amendment. Each person executing this 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 Amendment. Anycounterpart to this Amendment may be executed by facsimile copy and shall bebinding on the parties. Defined terms utilized in the Amendment shall have themeaning ascribed to them by the Agreement.

 

Except as modified herein by this Amendment,the Agreement shall remain unmodified and in Full force and effect.

 
| Seller:                                                         |                      | Purchaser:                                                            |
|-----------------------------------------------------------------|---------------------------|-----------------------------------------------------------------------|
| ** **                                                      |                      | ** **                                                            |
| **HENRY  TOWN CENTER LLC,**a Georgia  limited liability company |                      | **INLAND  REAL ESTATE****ACQUISITIONS, INC.,**an Illinois corporation |
|                                                            |                      |                                                                  |
|                                                            |                      |                                                                  |
| By:                                                             | /s/  Edward M. Harrington |                                                                  |   |
| Name:                                                           |                      |                                                                  | By: |   |   |
| Title:                                                          |                      |                                                                  | Name: |   |   |
|                                                            |                      | Title:                                                                |   |   |
|                                                                 |                           |                                                                       |  |  |  |  |  |  |  |

 

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Henry Town Center

McDonough, Georgia

 

**AGREEMENTOF PURCHASE AND SALE OF SHOPPING CENTER**

(Henry Town Center, McDonough, Georgia)

 

ThisAgreement of Purchase and Sale of Real Property (the “Agreement”) is dated asof the 29th day of July, 2004 (the “Effective Date”) and is entered into by thefollowing parties:

 

**SELLER**:              Describedupon Schedule A, attached hereto and made a part hereof

 

**BUYER**:                Inland Real Estate Acquisitions,Inc. an Illinois corporation, or its nominee

 

1.             TheProperty.

 

The property to be purchased by Buyer shallconsist of the following: (a) that certain real property legally described onExhibit A attached hereto, consisting of approximately 62.52 acres of land, and444,295 square feet of net rentable square feet, and located on the northwestcorner of US Interstate Highway I-75 and Jonesboro Road, McDonough, Georgia andcommonly known as Henry Town Center Shopping Center (the “Property”), (b) allof the right, title and interest of Seller in, to and under all Leases (asdefined in subsection 5(a) below) of the Property, (c) all improvements locatedupon the Property, (d) all personal property, if any, owned by Seller and usedin connection with the Property, (e) all shrubs, trees, plants and otherlandscaping located upon the Property, (f) all easements, rights of way, andother rights appurtenant to the Property, and (g) all of the right, title andinterest of Seller in and to the name Henry Town Center Shopping Center.

 

Seller has financed the Property with apermanent loan in the original principal amount of $36,000,000.00, and acurrent principal balance of approximately $36,000,000.00 as of July 15, 2004(the “Loan”) from Wachovia Bank (“Lender”), The Loan is evidenced by aPromissory Note dated January 8, 2003 (the “Note”) payable to the order ofLender. The Note is secured by (a) a Deed to Secure Debt (the “Mortgage”), (b)an Assignment of Leases and Rents (the “Assignment”), (c) a EnvironmentalIndemnity (the “Indemnity”), (d) an Indemnity and Guaranty Agreement (the “Guaranty”)from Steven D. Bell & Co. (“SDB”), and (e) UCC Financing Statements (the “UCC-1’s”),all dated January 8, 2003 in favor of Lender. The Note, Mortgage, Assignment,Indemnity, Guaranty, and UCC- 1’s are collectively referenced herein as the “LoanDocuments”.

 

2.             Closing; Escrow.

 

(a)  Theclosing of the transaction contemplated by this Agreement (the “Closing”) shalloccur via mail at the Chicago, Illinois office of the Title Company (ashereinafter defined), on October 14, 2004 (subject to Seller’s right to delayClosing as hereinafter provided in Section 18(m), hereof).

 

(b)  TheClosing shall occur in accordance with the general provisions of the usual formof deed and money escrow agreement then in use by the Title Company with suchspecial provisions inserted in the escrow agreement as may be required toconform with this Agreement. Upon the creation of such escrow, anything hereinto the contrary notwithstanding, payment of the Purchase Price (as hereinafterdefined) and delivery of the deed shall be made through the escrow and theEarnest Money (as hereinafter defined) shall be deposited into the escrow.Counsel for the respective parties are hereby authorized to execute the escrowtrust instructions, as well as amendments thereto. Each of Seller and Buyeragrees to comply with the requirements of the Title Company relative to closingthe transaction contemplated by this Agreement as a so-called “NY Style”closing. The cost of the escrow, and all “NY Style” closing fees, shall bedivided equally between Seller and Buyer.

 

1

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3.             Consideration.

 

The consideration to be paid to Seller byBuyer for the purchase of the Property (the “Purchase Price”) shall be the sumof Sixty-two Million Three Hundred Sixty Thousand and no/100 Dollars($62,360,000.00). The Purchase Price shall be satisfied as follows:

 

(a)  Buyershall deposit with Chicago Title and Trust Company, 171 North Clark Street, Chicago,Illinois Attention: Nancy Castro, Assistant Vice President (the “Earnest MoneyEscrowee”), an earnest money check in the amount of One Million and no/100Dollars ($1,000,000.00) (the “Earnest Money”) within 2-business days of thefull execution of this Agreement, for the mutual benefit of the parties.  The disposition of the Earnest Money shall begoverned by the terms of this Agreement from and after the date hereof. In theevent the Earnest Money Escrowee receives Buyer’s written notice that Buyer haselected to terminate this Agreement in accordance with the terms of theAgreement, the Earnest Money and any interest earned thereon shall be returnedto Buyer. The Earnest Money, at Buyer’s option, shall be held by the EarnestMoney Escrowee in an interest bearing account (any interest shall be paid toBuyer). At Buyer’s option, the Earnest Money shall either, be applied to thePurchase Price and paid to Seller in cash at Closing; or the full amount of thePurchase Price (after adjustments and credits) shall be funded by Buyer and theEarnest Money shall be released to Buyer.

 

(b)  AtClosing, a cash payment in the amount of the purchase Price plus or minusprorations, credits and adjustments as provided in Section 8 and elsewhere inthis Agreement, and also upon assumption of the Loan Documents, and theobligations of Seller thereunder, by Buyer at Closing, the balance due underthe Note (the outstanding principal balance under the Note as of the date ofClosing, plus accrued and unpaid interest under the Note through the date ofClosing pursuant to the proration of interest under Sections 8(e) and 10(e),below) shall be credited against the Purchase Price, by wire transfer or otherimmediately available United States funds.

 

4.             InspectionRights.

 

From and after the date hereof through theexpiration of the Due Diligence Period (as hereinafter defined), Buyer maycause one or more surveyors, engineers, architects, auditors, appraisers and/orother experts of its choice to inspect any documents related to the Propertyand to inspect, examine, survey, obtain engineering inspections on, obtainPhase I environmental reports for, appraise, audit and otherwise perform suchnon-invasive investigation activities which, in**the opinion of Buyer, are necessary to determine the condition ofthe Property and to determine the suitability of the Property for the uses andinvestment intended by Buyer; except that, notwithstanding the foregoing, inconducting such activities, Buyer shall not unreasonably interfere with the businessof Seller or the business of Seller’s tenants. Buyer shall defend, indemnifyand hold harmless Seller from and against any and all liability, loss, cost,expense and damage (including, without limitation, reasonable attorneys’ fees)suffered or incurred by Seller and caused by Buyer or its representatives orany of their respective employees or agents in connection with such activities,and, without limitation of the foregoing, Buyer shall repair any damage to theProperty caused by any such activities. Buyer shall provide Seller with aninsurance certificate prior to its entry onto the Property for the purposesdescribed by this Section 4. Seller agrees to make its books and recordsrelating to the Property available for inspection and audit by Buyer or itsagents and Seller further agrees to make such representations as may berequired by Buyer’s auditors in order for such auditors to issue a certifiedaudit, at Buyer’s sole cost and expense, of the Property’s operations. Buyermay review and make copies of any of Seller’s files, books and records relatingto the Property. Buyer agrees that all confidential information received fromSeller and relating to the Property shall be held in confidence (except asdisclosure may be required by law) whether or not this Agreement is terminatedfor any reason.

 

5.             Seller’sRequired Pre-Closing Deliveries

 

Within five (5) days of the Effective DateSeller shall deliver to Buyer (or make available to Buyer at the

 

2

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Property) the following (which, along with thePreliminary Commitment referred to in subsection 6(a) hereof and the Survey (ashereinafter defined), are referred to herein as “Pre-Closing Deliveries”):

 

(a)  copy of the leases describedupon the Rent Roll attached hereto as Exhibit E, and made a part hereof (respectively,the “Lease,” and collectively, the “Leases”) affecting the Property (andsubleases and license agreements in Seller’s possession) together with allmodifications and amendments thereof;

 

(b)  a certification from Seller(pursuant to the terms of the Rent Roll) setting forth the name of each tenant atthe Property and the date of the Leases and any modifications or amendmentsthereto, the amount of rent payable by each tenant throughout the term of itsrespective Lease, any concessions granted to the tenants, the amount of securitydeposits, if any, (or a certification that Seller is not holding any securitydeposits), the expiration date of the Leases, and the existence of any optionsto renew or extend the term of the Leases or to purchase all or any part of theProperty and such information with respect to any subtenant if Seller hasknowledge thereof;

 

(c)  a certification by Seller thatthere are no employees at the Property;

 

(d)  a certification by Sellerthat, other than as disclosed to Buyer, there are no service agreements, maintenancecontracts or other similar agreements affecting the Property;

 

(e)  copies of the most recenttax bill for the Property, together with copies of any notice of assessments receivedby Seller, or any other information relative to taxes assessed against theProperty;

 

(f)  copies, if any, of anyenvironmental reports, architectural drawings, plans and specs or any similar documentin Seller’s possession relating to the Property, or in the alternative, acertification from Seller that no such reports, drawings, plans orspecifications are in Seller’s possession;

 

(g)  a certification from Sellerthat there is no personal property located at the Property;

 

(h)  the most current survey ofthe Property and a copy of the most current title commitment or owner’s titleinsurance policy relative to the Property, if any, that are in Seller’spossession or control;

 

(i)  copies of any insurancepolicies or certificates insuring the Property, whether purchased by Seller orby the tenants under the Leases;

 

(j)  copies of certificates ofoccupancy for each tenant at the Property and copies of any building codeviolations received by Seller with respect to the Property during the last twoyears and evidence reasonably acceptable to Buyer that such violations havebeen corrected, or a certification from Seller that it has not received anynotice of building code violations;

 

(k)  the materials described onBuyer’s Due Diligence Checklist, attached hereto as Exhibit F, and made a parthereof;

 

(l)  full and complete copies ofthe Loan Documents; and

 

(m)  as applicable (dependingupon the number of years the Property has been operating), an operatingstatement for the Property for the two calendar years prior to the year of theEffective Date hereof, and monthly operating statements for the Property foreach month of the year of the Effective Date. Such statements shall includereasonable detail of all items of income and expense, as well as all items ofcapital expenditures made during the relevant periods.

 

3

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6.             Title and SurveyMatters.

 

(a)  Preliminary Title Report;Permitted Exceptions.

 

Buyer shall, at Seller’s expense (as hereinafter provided in Section 9,hereof), as soon as practicable after the Effective Date of this Agreement,furnish to Buyer and Seller a preliminary commitment for title insurance datednot sooner than the Effective Date and applicable to the Property (the “PreliminaryCommitment”) issued by Chicago Title Insurance Company (the “Title Company”).Such Preliminary Commitment shall show title to the Property being vested inSeller, and subject only to “Permitted Exceptions.” The Title Company shallalso provide to Buyer copies of all plats and other documents constitutingtitle exceptions as disclosed in the Preliminary Commitment. In addition to thePermitted Exceptions, the Preliminary Commitment may show other exceptions totitle; however, such other exceptions shall be removed by Seller at Seller’ssole cost and expense prior to Closing. As used in this Agreement, the term “PermittedExceptions” shall mean and refer to:

 

(i) general real estatetaxes not due and payable;

 

(ii) the Leases and anymodifications or amendments of the Leases, and any subleases of which Sellerhas provided notice of the existence to same to Buyer;

 

(iii) the Loan Documents;and

 

(iv) any covenants,conditions, restrictions, easements or other rights affecting title to the Property,disclosed on the Preliminary Commitment and approved by Buyer within the lastto occur of: (A) Buyer’s receipt of the Survey, Preliminary Commitment andcopies of all documents of record, and (B) the expiration of the Due DiligencePeriod.

 

Notwithstanding the foregoing, as used in thisAgreement, the “Permitted Exceptions” shall not include: (i) any claims againsttitle as may be apparent from the Survey (“Survey Defects”); or (ii) anymortgage lien, mechanics’ lien or judgment lien against the Property. In theevent any such survey defect or mortgage lien, mechanics’ lien or judgment lienappears on the Preliminary Commitment or the survey or otherwise arises withrespect to the Property on or prior to the Closing, Seller shall, at itsexpense and on or prior to the Closing, cause such Survey Defect or mortgagelien, mechanics’ lien or judgment lien to be removed from the Survey and/ortitle insurance policy, as applicable, to be delivered to Buyer at the Closing,either by correcting the condition causing such Survey Defect or satisfyingsuch lien out of the proceeds payable to Seller at the Closing or by causingthe Title Company to insure over such Survey Defect, mortgage lien, mechanics’lien or judgment lien, as applicable. If Seller is unable to cure a SurveyDefect, Buyer shall have the right to either: (A) close the transactionnotwithstanding the Survey Defect, or (B) terminate this Agreement andimmediately receive a return of the Earnest Money.

 

(b)  Manner of Conveyance;Identity of Grantee.

 

At Closing, Seller shall deliver to Buyer a Special Warranty Deed withrespect to the Property. On or prior to ten (10) days prior to the Closingdate, Buyer shall, subject to subsection 18(h) below, notify Seller in writingof the identity of Buyer’s grantee for the Property.

 

(c)  Survey.

 

Seller shall, at Seller’s expense (as hereinafter provided) as soon aspracticable after the Effective Date, obtain an update to Seller’s existingas-built survey of the Property, and containing a certification in the formattached hereto as Exhibit H, and made a part hereof, and containing such TableA Options as therein described (the “Survey”). In addition, the Survey shallindicate whether or not the Property or any part thereof is located within a

 

4

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flood plain area, and thesurveyor shall prepare and deliver elevation certificates in favor of Buyer.The Survey shall be certified to the Title Company, Buyer, Buyer’s lender, andBuyer’s grantee, if applicable and if the name of which has been provided toSeller.

 

(d)  TitleInsurance Policy.

 

As a condition precedent to Buyer’sobligation to close the transactions contemplated hereby, at Closing, Buyershall be able to obtain, at the sole cost and expense of Seller (subject to theterms of Section 9, hereof), an owner’s title insurance policy for the Propertyin the most current ALTA form issued by the Title Company, in the amount of thePurchase Price and showing title to the Property in Buyer’s designated nominee(as identified pursuant to subsection 6(b) above), subject only to thePermitted Exceptions, and with extended coverage over all standard, or generalexceptions (the “Title Policy”). The Title Policy shall also contain anaffirmative endorsement insuring that there are no violations of restrictivecovenants, if any, affecting the Property, and the endorsements described inSection 9(a)(i), hereof.

 

7.             Buyer’sRights to Terminate this Agreement

 

(a)  IfBuyer is not satisfied for any reason, or for no reason, in any respect, in thejudgment of Buyer, with the results of its inspections described in Section 4,above, or with the content of the Pre-Closing deliveries described in Section5, hereof or with the Preliminary Commitment or Survey delivered pursuant toSection 6, hereof, then Buyer may terminate this Agreement provided thatwritten notice thereof is received by Seller on or prior to 10:00 P.M., Chicagotime on or before August 31, 2004 (the “Due Diligence Period”).

 

(b)  Upontermination of this Agreement pursuant to this Section 7; (i) the Earnest Money(and all interest earned thereon, if any) shall immediately be returned toBuyer by the Earnest Money Escrowee,(ii) neither party shall have any further liability or obligation to the otherexcept for the Post-Termination Obligations, as hereinafter defined insubsection 7(c), and (iii) Buyer, upon five-days prior written notice fromSeller, shall return to Seller any documents received from Seller, and shallthereafter keep all confidential information received as a result of its inspectionin confidence.  Nothing contained inSection 4, or this Section 7, regarding Buyer’s confidentiality obligationsshall prohibit or restrict Buyer from disclosing any confidential informationreceived by Buyer from Seller to lawyers, accountants, auditors or otherprofessionals utilized by Buyer as part of its due diligence investigations, orany lender or due diligence officer or personnel of any broker-dealer for thesale of securities or as may be required by law.

 

(c)  Asused in this Agreement, the “Post-Termination Obligations” shall mean and referto the indemnity and repair provisions of Section 4, the indemnity provisionsof Section 14 hereof, and Buyer’s confidentiality obligations described underSection 4 and subsection 7(b), hereof. Such Post-Termination Obligations shallsurvive any termination of this Agreement.

 

8.             Prorationsand Adjustments

 

The following items shall be prorated andadjusted between Buyer and Seller at the Closing:

 

(a)  Security deposits described by the Leasesshall be credited to Buyer at Closing. Real estate property taxes andassessments due and payable prior to the date of Closing shall be paid in fullon or prior to the Closing date. Real estate property taxes and assessmentsaccrued and assessed against the Property but not yet due and payable shall beaccounted for and prorated as of the date of Closing on the basis of the mostcurrently issued (at the time of Closing) real estate tax bills and the netcredit to Buyer shall be paid in cash or as a credit against the PurchasePrice; provided, however, real estate taxes attributable to tenants who eitherreimburse annually or pay the taxing authority directly shall not be proratedat Closing. The real estate taxes shall be reprorated within ninety (90)

 

5

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days of issuance of the actual tax bills. In addition, any deposits forreal estate taxes and assessments made by any tenant(s) shall be credited toBuyer at Closing and shall be treated as a like-amount reduction in Buyer’sreal estate tax proration. If any general or special assessment (as contrastedto ad valorem taxes) are payable in installments, Buyer shall receive a cashcredit at Closing for the gross amount due

 

(b)  Rent, percentage rent andreimbursements for common area maintenance charges, insurance premiums andother lease charges (other than real estate taxes and assessments, which shallbe accounted for and prorated as provided in subsection 8(a) above) shall beaccounted for and prorated as follows: except as otherwise provided in thisAgreement, Buyer shall be entitled to all rents, percentage rent, miscellaneousincome and reimbursements for common area maintenance charges, insurancepremiums and other lease charges (other than real estate taxes and assessments)accruing on the date of and after the Closing, and Seller shall be entitled toall such items, if any, accruing prior to the Closing.  At Closing, Seller shall credit Buyer in anamount equal to the scheduled rent and reimbursements through the end of themonth in which Closing occurs and Seller shall retain such payments as receivedfrom the tenants. Seller and Buyer further agree that percentage rent for eachtenant shall be prorated as of the Closing based upon the amount of percentagerent, if any, that was payable by such tenant in the most recently completedpercentage rent year under its Lease as to which the final amount of percentagerent, if any, that is owing has been determined (but with such adjustments, ifany, as Seller and Buyer mutually and reasonably agree are appropriate due toany change in the manner of calculation of percentage rent that is owing fromsuch tenant with respect to any period as to which a proration is applicable).Seller shall not receive any credit at Closing with respect to any unpaidaccrued rents, percentage rents and reimbursements for common area maintenancecharges, insurance premiums and other lease charges owing from tenants of theProperty as of the Closing date. Seller shall not retain any security depositsor prepaid rent to offset any unpaid accrued rent or other unpaid amounts. Withrespect to any such unpaid amounts, (x) Seller shall retain the right, at itsexpense, to sue the applicable tenant for collection of any such unpaid amountsand, to the extent the applicable lease permits, collection costs and interest(and, in such regard, Buyer agrees to cooperate reasonably with any efforts bySeller to collect the aforesaid unpaid amounts; provided, however, Seller shallnot be entitled to sue for possession), and provided further that Seller shallreimburse Buyer for any cost or expense incurred by Buyer in connection withsuch cooperation, and (y) if Buyer collects any such unpaid amounts, Buyershall promptly pay such amounts to Seller (and in such regard, if Buyerreceives any amount from a tenant of the Property as to which such tenantspecifically informs Buyer in writing to which lease obligation such payment isto be applied, Buyer shall so apply such payment; if such tenant does not soinform Buyer relative to how a particular payment is to be applied, Buyer shallbe entitled to apply such payment first, on account of past due amounts owed toBuyer; second, on account of current amounts owed to Buyer; and third, onaccount of past due amounts owed to Seller).

 

(c)  Expense prorations - Exceptinsofar as the same constitute expenses pro ratable under subsection 8(a) or 8(b)above, utility charges and deposits, fuels and all other items of expensecustomarily prorated on the transfer of properties similar to the Propertyshall be prorated on an accrual basis as of the Closing date on the basis ofthe most recent ascertainable bills or on other reliable information withrespect to each item of expense.  In thealternative Seller will provide Buyer with a certification that no additionalproratable items exist with respect to the Property.

 

(d)  For purposes of calculatingprorations and adjustments, Buyer shall be deemed to be in title to the Property,and therefore entitled to income therefrom and responsible for the expensesthereof, for the entire day on which the Closing occurs provided that Sellerreceives the funds due to Seller at Closing at or prior to 2:00 p.m., Atlanta,Georgia time, on the Closing date, it being understood and agreed that, if thefunds are received after such time on the Closing date, Seller shall be deemedin title to the Property as aforesaid for the entire day on which the Closingoccurs.  In the event of anycomputational mistake or error, the parties shall make an appropriate adjustment(s)in cash between them to correct such mistake or error promptly after thediscovery thereof. Otherwise, Buyer and Seller agree to adjust Closingadjustments between the parties within 120-days after the applicable calendaryear-end period. Any amounts due shall be paid by the other party within15-days after receipt of notice of the amount due together with supportingdocumentation.

 

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(e)  The principal balance dueand owing under the Note as of the date of Closing, together with accrued andunpaid interest under the Note to the date of Closing, shall be credited toBuyer at Closing. At Closing, Seller shall be credited in an amount equal tothe real estate tax escrow held by Lender.

 

(f)  The obligations of Buyer andSeller set forth in this Section 8 shall survive the Closing.

 

9.             Costs to Buyerand Seller; Financing Costs.

 

(a)  Seller shall pay thefollowing:

 

(i)                                     thecosts of the Survey (to the maximum expense of $5,000.00);

 

(ii)                                  thecosts of: the title commitment, the copies of documents of record, the issuanceof the Title policy together with all Buyer required endorsements (to themaximum expense of $50,000.00); and the cost of any title curative endorsements;

 

(iii)                               one-half of all escrowfees and one-half of all “NY Style” closing fees;

 

(iv)                              allState, County and local or municipal transfer taxes;

 

(v)                                 thecost of recording releases of any mortgage or other liens, or of any otherinstruments, that do not constitute Permitted Exceptions;

 

(vi)                              thecosts of Seller’s counsel; and

 

(vii)                           the costs of the Broker (ashereinafter defined).

 

(b)  Buyer shall pay costs ofBuyer’s counsel, all recording or filing fees (other than recording fees for whichSeller is responsible as provided in subsection 9(a)(v) above), one-half of allescrow fees, and one-half of all “NY Style” closing fees, all Loan assumptionfees payable to Lender, the costs of the Survey in excess of $5,000.00, and alltitle charges (except charges related to title curative endorsements) in excessof $50,000,00.

 

10.           ConditionsPrecedent to Buyer’s Obligation.

 

Buyer’s obligation to perform under this Agreement is subject to andcontingent upon the following described matters. In the event such conditionsare not satisfied, Buyer may terminate this Agreement by written notice toSeller prior to Closing, and upon any such termination the Earnest Money shallimmediately be returned to Buyer and this Agreement shall be null and void,except for the provisions hereof that expressly survive the termination of thisAgreement.

 

(a)  Title Condition of theProperty.

 

The Title Company’s issuing or committing to issue the Title Policyinsuring that fee simple title to the Property is vested in Buyer as requiredin subsection 6(d) hereof.

 

(b)  Completeness, Truth andAccuracy.

 

The completeness, truth and accuracy in all material respects, of theRent Roll, and any certifications, schedules, covenants and statements preparedand executed by Seller as part of the Pre-Closing Deliveries, the

 

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completeness in all material respects of the Leases delivered by Selleras part of the Pre-Closing Deliveries, the completeness, truth and accuracy inall material respects, as of Closing, of the representations of Sellercontained in Section 11 hereof, and the performance by Seller, to the extentpossible by the date of Closing, of the covenants contained in Section 11hereof. It shall be a condition to Buyer’s obligation to close with respect tothe Property that, at the Closing, Seller shall deliver to Buyer a Certificatethat shall confirm the truth and accuracy in all material respects, as ofClosing, of Seller’s representations contained in this Agreement, and the representationscontained in such certificate, as well as any continuing obligations of Sellerhereunder, shall survive the Closing for a period of twelve (12) months.

 

(c)  Other Conditions.

 

The other conditions to Buyer’s obligation to close as set forth insubsection 7(a), Section 15, Section 16, or elsewhere in this Agreement,including the performance by Seller of all its obligations hereunder in allmaterial respects, being satisfied.

 

(d)  Estoppels.

 

The receipt by Buyer of the tenant and REA estoppel letters describedin Section 16(a), hereof.

 

(e)  Loan Assumption.

 

(i) that Seller shall not be in default under the Loan as of the dateof Closing, (ii) that the Lender allows assumption of the Loan by Buyer, onsuch terms as are reasonably acceptable to Buyer (as determined by Buyer duringthe Due Diligence Period), and (iii) that Buyer receives the estoppelcertificate, in form and substance reasonably acceptable to Buyer, described inSection 12 (b)(ix), hereof. (Buyer shall determine its satisfaction of theavailability and form of the estoppel during the Due Diligence Period.) In theevent such conditions are not satisfied as of the date of Closing, Buyer mayterminate this Agreement by written notice to Seller prior to Closing, and uponany such termination the Earnest Money shall immediately be returned to Buyerand this Agreement shall be null and void. Interest accrued but unpaid (and notyet due) under the Note as of Closing shall be prorated between Buyer andSeller as of the date of Closing and thereafter paid by Buyer when due. Anyprepaid charges under the Note and Loan shall be pro rated to the date ofClosing, with Seller receiving a credit for the portion relating to the periodafter the date of Closing and for the real estate tax escrow held by Lender inconnection with the Loan. Buyer and Seller agree to cause affiliates that mayhave signed or may be required to sign guaranties or other Loan Documents, toexecute and deliver the documents required to effect assumption of the Loan byBuyer. Notwithstanding any provision herein to the contrary, if, at any time,Lender rejects Buyer as the transferee of the Loan or if Lender fails toapprove Buyer as transferee of the Loan on or before the date of Closing, or ifBuyer and Lender are not able to reasonably agree upon the form of Loanassumption documents, either Buyer or Seller may elect to terminate thisAgreement by delivery of written notice to the other, and upon such terminationby Buyer or Seller, the Earnest Money and all interest, if any, earned thereonshall then immediately be returned to Buyer and this Agreement shall be nulland void.

 

Buyer hereby agrees, from and after the date of Closing, that it shallfully perform the obligations of Seller under the Loan Documents, and shall indemnify,defend and hold harmless Seller from and against any and all claims, actions,liabilities, liens, obligations, losses and costs (including without limitationreasonable attorneys’ fees) arising and accruing in connection with the Loanand the Loan Documents from and after the date of Closing, these obligations tosurvive Closing under this Agreement and shall not be merged with delivery ofthe Deed. Seller agrees to indemnify, defend and hold harmless Buyer (or itsnominee) from and against any and all claims, actions, liabilities, liens,obligations, losses and costs (including without limitation reasonableattorneys’ fees) arising and accruing in connection with the Loan and the LoanDocuments prior to the date of Closing, these obligations to survive Closingunder this Agreement and shall not be merged with delivery of the Deed. Buyeralso agrees to

 

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cooperate with Seller’s efforts to obtain therelease by Lender of any liability of Seller under the Loan Documents from andafter the date of Closing.

 

11.  Representationsand Covenants of Seller

 

Seller hereby makes the followingrepresentations and covenants to Buyer with regard to the Property, all ofwhich representations and covenants shall be deemed remade as of Closing andshall survive the Closing for a period of twelve (12) months:

 

(a)  Asof the date hereof, (i) Seller, to its knowledge, is not aware of and hasreceived no written building code violation notices with respect to the Property(other than notices of violations which have been removed or corrected); and(ii) Seller, to its knowledge, is not aware of and has received no writtennotices of any action or governmental proceeding in eminent domain, or for azoning change, which would affect the Property; and (iii) Seller to itsknowledge, is not aware of any structural problems in the improvementsconstructed upon the Property.

 

(b)  Asof the date hereof, there are no leases or rental agreements affecting theProperty other than the Leases delivered by Seller to Buyer pursuant tosubsection 5(a) above. The Leases do not grant any tenant a right to purchaseall or any part of the Property.  Betweenthe date hereof and the earlier of the Closing date or the termination of thisAgreement, Seller shall not amend, modify or terminate the Leases, or enterinto new leases, of space at the Property, other than in accordance withsubsection16(b) below.  As of the datehereof, Seller is the holder of all of the landlord’s right, title and interestin, to and under the Leases. To the best of Seller’s knowledge, Seller has notreceived, nor is Seller aware of, any claim from any tenant under the Leasesalleging any type of uncured default by the landlord under the Leases ordemanding any work or payment from landlord.

 

(c)  Exceptas may be disclosed in the Pre-Closing Deliveries, there are no personsemployed by Seller in connection with the operation of the Property, and exceptas may be disclosed in the Pre-Closing Deliveries, there are no maintenance,advertising, management, leasing, employment, or service contracts affectingthe Property that will be in effect at Closing unless expressly assumed inwriting by Buyer. Otherwise, Seller shall terminate any such employee and anysuch contracts (not expressly assumed by Buyer) at or prior to Closing.

 

(d)  That(i) Seller has the capacity and requisite authority to enter into and carry outthis Agreement and the transactions contemplated hereby and will provideevidence thereof to Buyer at Closing; (ii) Seller owns fee simple title to theProperty subject to all matters of record; and (iii) no third party has anyright to purchase all or any part of Property.

 

(e)  Exceptas otherwise expressly provided herein, Seller shall not further encumber the Propertyor any of the improvements or personal property located thereon. Between thedate of this Agreement and the earlier of the Closing date or the terminationof this Agreement, Seller shall not voluntarily create any exception to titleto the Property other than in accordance with subsection 16(b) below.

 

(f)  Tothe best of Seller’s knowledge, as of the date hereof, there is no suit, actionor arbitration, or legal or other proceeding or governmental investigation,pending which materially and adversely affects the Property.

 

(g)  Tothe best of Seller’s knowledge, as of the date hereof, there exists at theProperty no violation of any applicable federal, state or local law, statute,ordinance, rule or regulation regulating the use, generation, storage, handlingor disposal of any hazardous wastes, toxic, hazardous or dangerous substancesor similar substances or materials defined as hazardous, toxic orenvironmentally unsafe under any of the aforesaid laws, statutes, ordinances, rulesor regulations.

 

(h)  Nochange in the manner of calculation of percentage rent will occur from the dateof delivery of the

 

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Pre-Closing Deliveries under Section 5 hereof, through the date ofClosing, except as expressly set forth in the Leases.

 

(i) Seller hereby agrees to indemnify, defend and hold harmless Buyerfrom and against any and all claims, losses, costs and expenses arising inregard to any unpaid sales lien owed to the State of Georgia Department ofRevenue and based upon sales made during the period of time the Property wasowned by Seller.

 

“Seller’s knowledge,” is hereby defined as the knowledge of LeilaniJones, manager of the Property, and Edward M. Harrington, President of SDB.

 

12.  Possession; Closing Documents.

 

(a)  Possession. Fullpossession of the Property (subject to the rights of the tenants under theLeases and any other Permitted Exceptions) shall be delivered to Buyer bySeller at Closing.

 

(b)  Seller’s ClosingDocuments. At Closing, Seller shall deliver, or cause to be delivered, toBuyer the following, each in form reasonably acceptable to Buyer:

 

(i) A Special Warranty Deed with regard to the Property.

 

(ii) An Assignment of Leases executed by Seller and in the form ofExhibit B attached hereto and relating to the Leases (which instrument shallalso be executed by Seller’s managing agent, if any), and the original Leases.

 

(iii) As to any warranties for materials and workmanship (e.g. roof,HVAC, parking lot-including, by way of illustration and not limitation, theroof warranty for materials and workmanship for the Ingles demised premises),copies thereof and an assignment executed by Seller of all of its right, titleand interest in, to and under the same, and also the original transfer of suchwarranties assented to by the material and/or service provider at no cost orexpense to Buyer.

 

(iv) All as-built plans and specifications, if any, relative to theProperty in the possession or control of Seller.

 

(v) All certificates of occupancy, building permits and similargovernmental approvals affecting the Property.

 

(vi) A Closing and Proration Statement conforming to the proration andother relevant provisions of this Agreement.

 

(vii) Letters to the tenants of the Property in the form attached heretoas Exhibit I, and made a part hereof.

 

(viii) The tenant estoppel letters and REA estoppel letters required tobe delivered pursuant to subsection 16(a) hereof.

 

(ix) An estoppel certificate from the Lender addressed to Buyer,stating: (a) that no default then exists under the terms of the Loan, and (b)the amount of principal and interest due and owing under the Loan at the timeof Closing, and (c) the amount of the real estate tax deposit escrow then beingheld by Lender pursuant to the terms of the Loan.

 

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(x) An Audit Letter addressed to Buyer’s accountants in the formattached hereto as Exhibit G, and made a part hereof.

 

(xi) Such other documents and instruments as may reasonably be requiredby Buyer and the Title Company and which may be necessary to consummate thistransaction and otherwise to effect the agreements of the parties hereto.

 

(c) Buyer’s Closing Documents.

 

At Closing, Buyer shall deliver, or cause to be delivered, to Seller,the following in form and substance reasonably acceptable to Seller:

 

(i) Cash on account of the Purchase Price (by wire transfer or otherimmediately available United States funds) as required by Section 3 above.

 

(ii) An Assignment and Assumption of the Leases executed by Buyer andin the form of Exhibit B attached hereto, and relating to the Leases in effectat Closing.

 

(iii) An assumption by Buyer of the warranties and contracts that arebeing assigned to Buyer.

 

(iv) A Closing and Proration Statement conforming to the proration andother relevant provisions of this Agreement.

 

(v) The Loan assumption documentation required by Lender and the TitleCompany.

 

(vi) Such other documents and instruments as reasonably may be requiredby Seller and the Title Company and which may be necessary to consummate thistransaction and otherwise to effect the agreements of the parties hereto.

 

13.  Default.

 

(a)  Seller Default DiscoveredPrior to Closing. If, on or before the Closing date, (x) Buyer is orbecomes aware that any of the representations and warranties made by Seller inthis Agreement, or in any document or instrument executed by Seller anddelivered to Buyer in connection with this Agreement or the Closing hereunder,including the representations made in Section 11 hereof, are not true andcorrect, or (y) Buyer is or becomes aware that there is any material inaccuracyin any, certifications, schedules, covenants or statements prepared andexecuted by Seller as part of the Pre-Closing Deliveries, or (z) Seller has failed to perform inany respect any of the covenants, agreements and indemnities contained hereinor in any of the aforesaid other documents and instruments to be performed byhim, her or it within the time for performance as specified herein (includingSeller’s obligation to close) or therein, then, provided Buyer has notifiedSeller in writing of same and Seller has failed to cure such condition orcircumstance or non-performance within 5 days of receipt of such notice, Buyer’sremedies on account of any such breach shall be to:

 

(i) terminate this Agreement by delivering written notice of Buyer’selection to terminate to Seller, in which event the Earnest Money (and allinterest thereon) shall be returned immediately to Buyer and neither Seller norBuyer shall have any further liability to the other except for thePost-Termination Obligations except that Seller will reimburse Buyer for all ofits actual costs and expenses incurred in connection with its due diligence ofthe Property (not to exceed $100,000.00); or

 

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(ii) complete the purchase of the Property notwithstanding Seller’sdefault, in which event Seller shall reimburse Buyer for all of its damagesincurred as a result of Seller’s breach hereunder (not to exceed $100,000.00);or

 

(iii) waive any claim for damages (except for reimbursement for costsand expenses as set forth in this clause) and file an action (the “SpecificPerformance Action”) for specific performance of this Agreement to compel Sellerto close in accordance with the terms of this Agreement, and Buyer shall beentitled to reimbursement for all of its costs and expenses, includingreasonable attorneys’ fees, incurred in connection with such SpecificPerformance Action, if it prevails.

 

(b)  Buyer Default. In theevent that Buyer shall have failed to perform in any material respect any ofthe covenants, agreements and indemnities contained herein to be performed byBuyer within the time for performance as specified herein (including Buyer’sobligation to close), and provided Seller has notified Buyer in writing of thesame and Buyer has failed to cure such condition or circumstance ornon-performance within 5-days of receipt of such notice, Seller’s sole remedyon account thereof shall be to terminate this Agreement by delivering writtennotice of its election to so terminate to Buyer, in which event the EarnestMoney (not including any interest thereon which shall be paid to Buyer) shallbe paid to Seller as liquidated damages, it being understood that Seller’sactual damages in the event of such default are difficult to ascertain and thatsuch proceeds represent the parties’ best current estimate of such damage andthereupon neither party shall have any further obligation to the other underthis Agreement except for the Post-Termination Obligations.

 

14.  Brokerage.

 

Seller and Buyer acknowledge that Steven D. Bell & Company (the “Broker”) hasparticipated as a broker or consultant to Seller in this transaction. Sellershall pay the Broker’s commission from the Closing Escrow pursuant to anagreement between Seller and Broker. In addition, at or prior to Closing,Seller shall pay any and all leasing fees and commissions due and payable inconnection with any Lease. Buyer and Seller each represent and warrant to theother that they have dealt with no other brokers, finders or intermediaries ofany kind in connection with this transaction. Seller does hereby indemnify andagree to hold Buyer harmless from and against any and all causes, claims,demands, losses, liabilities, fees, commissions, settlements, judgments,damages, expenses and fees (including, without limitation, reasonable attorneys’fees and court costs) in connection with any claim for commissions, fees,compensation or other charges relating in any way to any Lease and thistransaction, or the consummation thereof, which may be made by any person, firmor entity (including Broker) as the result of any of Seller’s acts or the actsof Seller’s representatives, or as a result of Seller’s breach of itsrepresentations to Buyer contained in this Section. Buyer does hereby indemnifyand agree to hold Seller harmless from and against any and all causes, claims,demands, losses, liabilities, fees, commissions, settlements, judgments, damages,expenses and fees (including, without limitation, reasonable attorney’s feesand court costs) in connection with any claim for commissions, fees,compensation or other charges relating in any way to this transaction, or theconsummation thereof, which may be made by any person, firm, or entity(excluding Broker) as the result of any of Buyer’s acts or the acts of Buyer’srepresentatives, or as a result of Buyer’s breach of its representations toSeller contained in this Section. The obligations of Buyer and Seller underthis Section 14 shall survive any termination of or Closing under thisAgreement.

 

15.  Buyer’s ConditionPrecedent as to Property Tenancies.

 

(a)  It is a condition to Buyer’sobligation to close that as of the date of Closing: (i) all Anchor and NationalCredit Tenant spaces (as hereinafter defined) and all Non-Anchor/Non-Creditspaces (as hereinafter defined) be leased to tenants under leases with allTenant Conditions (as hereinafter defined) having been fulfilled, pursuant tothe Rent Roll attached hereto as Exhibit E, and made a part hereof; provided,however an annual vacancy factor attributable to Non-Anchor/Non-CreditTenants of $35,124 Base Rent and $6,459 CAM/Insurance/Real Estate

 

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Tax/Management Fee reimbursements (the “Reimbursements”) shall beacceptable (the “Maximum Threshold”), and (ii) all tenant improvementallowances and leasing commissions for any tenant lease shall have been fullypaid and discharged (or credited to Buyer at Closing).

 

(b)  For purposes hereof, the “Non-Anchor/Non-CreditTenants” shall be defined as: Dollar Exclusive, Fantastic Sams, MotherhoodMaternity, Cellular Depot, Serenity Spa & Salon; The School Box, Oreck HomeCare, Gecko Grill, Scrap Happy, Nails & Tan, Planet Beach, Mattress King,Orthodontic Centers, Hong Kong Cafe, Woody’s Bar B Que, Dessert Factory andWater Sports South and the Anchor and National Credit spaces shall include allother tenants on the Rent Roll.

 

(c)  For purposes hereof, theterm “Tenant Conditions” for any Property space gross leaseable area shall becollectively defined as: (i) a signed lease with a tenant, and (ii) the tenantopen for business to the public with a fully-stocked store, and (iii) thetenant paying Base Rent and Reimbursements pursuant to the Rent Roll, and (iv)all the leasing commissions and tenant improvement allowances having eitherbeen paid by Seller or**creditedto Buyer, (v) no material default on the part of landlord or tenant; (v) acertificate of occupancy or its equivalent issued by the local governmentalauthorities for such tenant’s demised premises; and (vi) receipt by Buyer of anacceptable estoppel certificate (as defined in Section 16*)*from the tenant.

 

(d)  Thecondition contained in 15 (a) above shall be deemed to have been met if:

 

(i)            In the event that,on the date of Closing, the actual annual tenant vacancy at the Propertyexceeds the value of $35,124 Base Rent and $6,459 Reimbursements but is lessthan $465,194 Base Rent and $128,228 Reimbursements, then Seller agrees that itwill “Master Lease” gross leaseable area to the extent necessary to reach theMaximum Threshold, for a period of two years. Seller shall place in escrow anamount equal to two years worth of Base Rent and Reimbursements for the vacantspaces (as determined at Closing pursuant to the pro forma rental ratesdescribed by the Rent Roll), but no greater than the amount necessary to reachthe Maximum Threshold, plus leasing commissions calculated at $4 per squarefoot and tenant improvements calculated at $15 per square foot. Buyer may drawupon the escrow monthly following Closing (prorated for any partial month). Inthe event that any space is leased following Closing then, at the time theTenant Conditions are fulfilled for such space, an amount equal to the unusedBase Rent, Reimbursements and any unused leasing commission and tenantimprovement cost for such space, shall be remitted to Seller. Seller’sobligations pursuant to the Master Lease shall not exceed the amount in escrowand shall terminate at the earlier of the time the Maximum Threshold is reachedor two years following Closing; or

 

(ii)           In the event that,on the date of Closing, the actual annual tenant vacancy at the Property equalsor exceeds the value of $465,194 Base Rent and $128,228 Reimbursements, thenBuyer shall have the option of terminating this Agreement and receiving animmediate refund of its Earnest Money.

 

16.  Seller’s ObligationsRegarding the Leases

 

(a)  It shall be conditions toBuyer’s obligation to close with respect to the Property that on or prior toten (10) days before the date of Closing under this Agreement, Buyer shall havereceived: (i) an estoppel certificate from BJ’s Wholesale Club, Ross, Marshall’s,Staples, Michaels, Bed, Bath & beyond, PetsMart, Books A Million, FamousFootwear, Pier One Imports, Dress Barn, Hibbets, Belk, and Longhorn(collectively, the “Anchors”), inform and substance reasonably acceptable toBuyer, and (ii) from each tenant at the Property (other than Anchors)comprising no less than 85% of the remaining (not including Anchors) Propertygross leasable area (the “85% Threshold”), an estoppel certificate,substantially in the form of Exhibit C, attached hereto and by this referencemade a part hereof, with non-material changes thereto, or in another formreasonably acceptable to Buyer (the Anchors may deliver their typical forms ofestoppel and receipt of guarantor estoppels shall not be a condition of closingexcept in the case of an anchor lease guarantor); and (iii) a Seller estoppelcertificate for any non-Anchor

 

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tenant not delivering an estoppel once the 85% Threshold has been met,and (iv) a REA estoppel certificate substantially in the form of Exhibit D,attached hereto and made a part hereof, from Target and from each other partyto any reciprocal easement agreement (REA) or like-agreement affecting theProperty. Buyer shall also have the right to contact any tenant or REA party ifsuch tenant or REA party does not deliver an estoppel certificate or if theestoppel certificate delivered by such tenant or REA party contains materialchanges to the required form. Seller shall use its best efforts to resolvematerial changes between the estoppel certificate furnished to each tenant andREA party and the estoppel certificate received from any tenant and REA party.

 

(b)  Between the date of thisAgreement and the earlier of the Closing or the termination of this Agreement,Seller shall not be permitted to amend, modify or terminate any Lease affectingall or any portion of the Property, or to enter into new leases of space at theProperty, without first obtaining Buyer’s prior written approval which approvalshall not be unreasonably withheld or delayed and shall be deemed approved ifno response from Buyer is received by Seller within 5-business days of Buyer’sreceipt of same.

 

17.  Indemnity.

 

From and after the date of Closing, (a) Seller agrees to indemnify,protect, defend and hold Buyer, its directors, officers, employees, partners,lenders and agents harmless from and against all claims, actions, losses,damages, costs and expenses, including, but not limited to, reasonable attorney’sfees and court costs and liabilities (except those caused solely by the willfulmisconduct or negligent acts or omissions of Buyer or its directors, officers,employees, partners, lenders and agents), arising out of the ownership andoperation of the Property prior to the Closing date, whether arising incontract, tort, or related to the actual or alleged injury to, or death of, anyperson or loss of or damage to property in or upon the Property; and (b) Buyeragrees to indemnify, protect, defend and hold Seller, its directors, officers,partners, employees, lenders and agents harmless from and against all claims,actions, losses, damages, costs and expenses, including, but not limited to,reasonable attorney’s fees and court costs and liabilities (except those causedsolely by the willful misconduct or negligent acts or omissions of Seller orits directors, officers, partners, employees, lenders and agents), arising outof the ownership and operation of the Property by Buyer from and after theClosing date, whether arising in contract, tort, or related to the actual oralleged injury to, or death of, any person or loss of or damage to property inor upon the Property.

 

18.  Miscellaneous

 

(a)  All notices, consents andapprovals required by this Agreement shall be either: (i) personally delivered;or (ii) sent via facsimile transmission; or (iii) sent by overnight courier fornext-business day delivery via Federal Express, UPS, Purolator or anothernational reputable courier. Said notices, consents and approvals shall bedeemed received on the date the same are actually received or delivery thereofis refused. Said notices, consents and approvals shall be sent to the partieshereto at the following addresses, unless otherwise notified in writing:

 
| TO SELLER: | c/o Steven D. Bell & Co.  823 North Elm Street, Suite 200  Greensboro, NC 27401  Attn: Mr. Shoffner Allison  Facsimile: 336-378-9705                         |
|------------|------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|       |                                                                                                                                                             |
| Copy to:   | Schell Bray Aycock Abel & Livingston P.L.L.C.  230 North Elm Street, Suite 1500  Greensboro, NC 27401  Attn: Ms. Barbara R. Christy  Facsimile: 336-370-8830 |

 

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| TO BUYER: | Inland Real Estate Acquisitions, Inc.  2901 Butterfield Road  Oak Brook, Illinois 60523  Attn: Jason Lazarus  Facsimile: 678-996-2140 and 630-218-4935 |
|-----------|--------------------------------------------------------------------------------------------------------------------------------------------------------|
|      |                                                                                                                                                   |
| Copy to:  | The Inland Real Estate Group, Inc.  2901 Butterfield Road  Oak Brook, Illinois 60523  Attn: General Counsel  Facsimile: 630-218-4900 and 630-571-2360  |

 

(b)  Waiver of Jury Trial.

 

Each of Seller and Buyer hereby expressly waives any right to trial byjury of any claim, demand, action or cause of action (i) arising under thisAgreement or any other instrument executed or delivered in connection herewithor (ii) in any way connected with or related or incidental to its dealings withrespect to this Agreement or any other instrument executed or delivered inconnection herewith, or the transactions related hereto or thereto, in eachcase whether now existing or hereafter arising, and whether sounding incontract or tort or otherwise; and each of Seller and Buyer hereby agrees andconsents that any such claim, demand, action or cause of action shall bedecided by court trial without a jury.

 

(c)  Entire Agreement andAmendments.

 

This Agreement, together with any Exhibits referred to herein,constitute the entire understanding between the parties hereto and supersedesany and all prior arrangements or understandings between the parties. ThisAgreement can be amended only by a writing signed by Buyer and Seller.

 

(d)  Exhibits.

 

All exhibits attached hereto are hereby incorporated by reference andmade a part hereof.

 

(e)  Insurance; Destruction ofImprovements.

 

Between the date of this Agreement and the earlier of the Closing dateor the termination of this Agreement, Seller agrees to maintain with respect tothe Property its existing casualty insurance with replacement cost and agreedamount coverage.

 

If prior to Closing all or any part of the Property is destroyed ordamaged or is taken by condemnation, eminent domain or other governmentalacquisition provisions, then the following procedues shall apply:

 

(i)                  Ifthe cost of repair or replacement or the value of the governmental taking isFive Hundred Thousand Dollars ($500,000.00) or less in the reasonable opinionof Buyer’s and Seller’s respective engineering consultants, and the Leases ofthe Property are not terminable on account thereof (assuming any necessaryrepairs, replacements or alterations required under the Leases are

 

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diligently pursued by the landlord thereunder) or, if any Leases is soterminable, the tenant under such Leases has waived its termination rights andno abatement of rent occurs as a result of the damage, destruction orcondemnation, Buyer shall close and take the Property as diminished by suchevents with no reduction in the Purchase Price, and Seller shall assign theright to all casualty insurance and condemnation proceeds due with respect tosuch destruction, damage or taking to Buyer, as well as, to the extent the sameare assignable, the proceeds and benefits under any rent loss or business interruptionpolicies attributable to the period following the Closing and deductibles.

 

(ii)               Ifthe cost of repair or replacement or the value of the governmental taking isgreater than Five Hundred Thousand Dollars ($500,000.00) in the reasonableopinion of Buyer’s and Seller’s respective engineering consultants, or theLeases are terminable on account thereof (assuming any necessary repairs,replacements or alterations required under the Leases are diligently pursued bythe landlord thereunder) and the tenant under such Lease has not waived itstermination rights, or if an abatement of rent occurs as a result of thedamage, destruction or condemnation, then Buyer, at its sole option, may electeither to (x) terminate this Agreement by written notice to Seller and receivean immediate return of the Earnest Money (and all interest thereon) and neitherparty shall have any further liability to the other hereunder except for thePost-Termination Obligations; or (y) accept an assignment of Seller’s rights toall casualty insurance and condemnation proceeds with respect thereto with noreduction in the Purchase Price, it being understood and agreed that, in suchevent, Seller shall cooperate with Buyer in the adjustment and settlement ofthe insurance or condemnation claim. The proceeds and benefits under any rentloss or business interruption policies attributable to the period following theClosing and deductibles shall likewise, to the extent the same are assignable,be transferred and paid over to Buyer.

 

(iii)            In the event of a dispute between Sellerand Buyer with respect to the cost of repair, restoration or replacement withrespect to the matters set forth in this subsection 18(e), an engineerdesignated by Seller and an engineer designated by Buyer shall select anindependent engineer licensed to practice in the jurisdiction where suchProperty is located who shall resolve such dispute. All fees, costs andexpenses of the engineer so selected shall be shared equally by Buyer andSeller.

 

(f)  Time of the Essence.

 

Time is of the essence in connection with all dates or periods of timereferred to herein.

 

(g)  Choice of Law.

 

This Agreement is to be governed by, and construed in accordance with,the laws of the State of Georgia.

 

(h)  Successors and Assigns.

 

Except as otherwise provided herein, the provisions and covenantscontained herein shall inure to and be binding upon the heirs, successors andassigns of the parties hereto. However, Buyer shall have no right to assign anyof its rights, privileges, duties or obligations under this Agreement prior toClosing, without the prior written consent of Seller in its sole discretion.Notwithstanding the foregoing, Buyer shall be permitted, without Seller’sconsent, to assign its rights, privileges, duties and obligations under thisAgreement to an entity which is an affiliate of The Inland Real Estate Group,Inc. Promptly following, and as a condition to, any assignment by Buyerpermitted under this subsection 18(h), Buyer shall deliver to Seller anassumption by the assignee of all of Buyer’s duties and obligations under thisAgreement. In the event Seller assigns its rights and obligations under thisAgreement, the liability of Seller shall in no way be affected and theliability of the Seller for the representations, warranties and

 

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covenants made by the Seller herein shallcontinue as though no such assignment had been made.

 

(i)  Section Headings.

 

The headings of the Sections of thisAgreement are inserted solely for convenience of reference, and are notintended to govern, limit or aid in the construction of any term or provisionhereof.

 

(j)  Waiver.

 

No claim of waiver, consent or acquiescencewith respect to any provision of this Agreement shall be made against eitherparty except on the basis of a written instrument executed by or on behalf ofsuch party. The party for whose benefit a condition is herein inserted shallhave the unilateral right to waive such condition.

 

(k)  FurtherActions.

 

Each of Buyer and Seller agrees to executesuch further documents, and take such further actions, as may reasonably be required to carryout the provisions of this Agreement, or any agreement or document relatinghereto or entered into in connection herewith. In addition, each of Buyer andSeller agrees to use reasonable efforts (not including, without limitation, theprosecution of any litigation or other actions outside of the ordinary courseof business) to cause any conditions to its obligation to close to be satisfied.

 

(l)  NeutralConstruction.

 

Each of the parties hereto has been involvedin the negotiation, review, and execution of this Agreement and each has hadthe opportunity to receive independent legal advice from attorneys of itschoice with respect to the advisability of making and executing this Agreement.In the event of any dispute or controversy regarding this Agreement, theparties hereto shall be considered to be the joint authors of this Agreementand no provision of this Agreement shall be interpreted against a party heretobecause of authorship.

 

(m)  TaxFree Exchange.  Each party herebyagrees to take reasonable actions at Closing as are reasonably necessary tohelp the other to effectuate a like-kind exchange of the Property pursuant to§1031 of Internal Revenue Code (the “Code”). Provided, however, that in noevent shall the non-requesting party be required to sign any document, nor taketitle to any other real property, nor to incur any additional expenses orliability in order to effectuate the like-kind exchange. In addition, except ashereinafter provided, the Closing shall not be delayed by the requesting party.Upon notice to Buyer within 15-days prior to the date of Closing, Seller shallhave the one-time right to delay the date of Closing for a period not to exceed45-days the purpose of effectuating its §1031 like-kind exchange. Seller orBuyer, as the case may be, agrees to indemnify, defend and hold the other partyharmless from and against any and all costs, expenses, claims and other liabilitiesof any kind arising with regard to the effectuation of a tax free exchange asdescribed herein. Notwithstanding anything to the contrary provided herein, thenon-requesting party makes no representations or warranties as to the taxtreatment of the transaction contemplated hereby or the ability of thetransaction contemplated to qualify for like-kind exchange treatment pursuantto § 1031 of the Code. In the event both parties desire to effectuate alike-kind exchange as described herein, each party shall pay any and all costsassociated with their respective transactions.

 

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IN WITNESS WHEREOF, Buyer and Seller have executed this document as ofthe day and year first herein above written.

 

 
| BUYER:                     | Inland Real Estate  Acquisitions, Inc.,  an Illinois corporation, |                       |
|----------------------------|-------------------------------------------------------------------|----------------------------|
|                       |                                                              |                       |
|                       | By:                                                               | /s/ Jason A. Lazarus       |   |
|                       | Jason A. Lazarus                                                  |                       |
|                       | Authorized Agent                                                  |                       |
|                       |                                                              |                       |
|                       |                                                              |                       |
| ON BEHALF OF ALL  SELLERS: | Steven D. Bell &  Company,                                    |                       |
|                       | a North Carolina  corporation, as agent                           |                       |
|                       |                                                              |                       |
|                       | By:                                                               | /s/ Edward M.  Harrington  |   |
|                       | Name:                                                             |  Edward M. Harrington |   |
|                       | As Its:                                                           |  President            |   |
|                            |                                                                   |                            |  |  |

 

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