**Exhibit10.499**

 

**FOURTH****AMENDMENT TO AGREEMENT OF PURCHASE AND SALE**

 

THIS FOURTH AMENDMENT TOAGREEMENT OF PURCHASE AND SALE (the “Second Amendment”) is made and enteredinto this 29th day**orDecember, 2004 by and between Eastern Retail Holdings Limited Partnership, aDelaware limited partnership (“Seller”) and Inland Real Estate Acquisitions,Inc., an Illinois corporation (“Purchaser”).

 

**Recitals**

 

A.                                    Purchaserand Seller entered into an Agreement of Purchase and Sale dated October 5,2004, as amended by First Amendment to Agreement of Purchase and Sale dated November 4,2004, the Second Amendment to Agreement of Purchase and Sale dated November 10,2004 and the Third Amendment to Agreement of Purchase and Sale dated December 13,2004 (collectively, the “Purchase Agreement”).

 

B.                                      Purchaserand Seller now desire to amend certain terms of the Purchase Agreement.

 

NOW, THEREFORE, inconsideration of the mutual premises contained herein, and other good andvaluable consideration, the receipt and sufficiency of which are herebyacknowledged, the parties hereto agree as follows:

 

**Amendments**

 

1.                DefinedTerms. Except as otherwise expressly indicated herein to the contrary, all capitalizedwords and phrases contained herein shall have the same meaning and definitionas are contained in the Purchase Agreement.

 

2.                PurchasePrice Adjustment. The first grammatical paragraph of Section 1.3 ofthe Purchase Agreement, entitled “Amount and Payment of Purchase Price”, ishereby restated in its entirety so as to read as follows:

 

“Subject to all of theterms and conditions hereof, the purchase price (“Purchase Price”) shall beTwenty One Million Five Hundred and Ninety-Five Thousand Dollars($21,595,000.00). The Purchase Price shall be allocated Twelve Million EightHundred Thousand Dollars ($12,800,000.00) to Irmo and Eight Million SevenHundred and Ninety-Five Thousand Dollars ($8,795,000.00) to Evans. The PurchasePrice shall be paid as follows:”

 

3.               Closing.                           Section 5.1,entitled “Time and Place”, is amended and restated in its entirety so as toread as follows:

 

“Unless this Agreement isextended or sooner terminated, Buyer and Seller agree to make full settlementon or before December 31, 2004.”

 

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4.                Miscellaneous.

 

(a)          Allsection headings of this Fourth Amendment are for convenience of referenceonly, and form no part hereof.

 

(b)         Inthe event of any conflict between the terms and conditions of this Fourth Amendmentand the terms and conditions of the Purchase Agreement, the terms andconditions of this Fourth Amendment shall control and prevail.

 

(c)          Exceptas expressly modified and amended by this Fourth Amendment, the PurchaseAgreement shall remain unmodified and in full force and effect, and thePurchase Agreement, as so amended, shall bind and inure to the benefit ofSeller and Buyer and their respective successors, legal representatives andassigns.

 

(d)         ThisFourth Amendment may be executed in counterpart originals, and all executedcounterparts shall, when taken together, constitute the entire Fourth Amendment.

 

IN WITNESS WHEREOF, theparties hereto have executed this Fourth Amendment as of the date first writtenabove.

 
|   | SELLER:                                      |
|--------|----------------------------------------------|
|   |                                         |
|   | EASTERN RETAIL HOLDINGS  LIMITED             |
|   | PARTNERSHIP, a Delaware  limited partnership |
|   |                                         |
|   | By:                                          | LMRES Real Estate  Advisers, Inc., its |
|   |                                         | General Partner |
|   |                                         |   |
|   |                                         | By: | /s/  Beth L. Vopper |
|   |                                         | Name: | BETH  L. VOPPER |
|   |                                         | Its: | VICE  PRESIDENT |
|   |                                         |
|   |                                         |
|   | PURCHASER:                                   |
|   |                                         |
|   | INLAND REAL ESTATE  ACQUISITIONS, INC.,      |
|   | an Illinois  corporation,                    |
|   |                                         |   |
|   |                                         |   |
|   | By:                                          |   |
|   | Name:                                        |   |
|   | Its:                                         |   |

 

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**THIRDAMENDMENT TO AGREEMENT OF PURCHASE AND SALE**

 

THISTHIRD AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (the “Third Amendment”)is made and entered into this 13th**day of December by and between Eastern Retail Holdings LimitedPartnership, a Delaware limited partnership (“Seller”) and Inland Real EstateAcquisitions, Inc., an Illinois corporation (“Purchaser”).

 

**Recitals**

 

A.                                   Purchaserand Seller entered into an Agreement of Purchase and Sale dated October 5,2004, as heretofore amended, (the “Purchase Agreement”).  Capitalized terms used but not defined hereinshall have the meaning ascribed thereto in the Purchase Agreement.

 

B.                                     Purchaserand Seller now desire to amend certain terms of the Purchase Agreement.

 

NOW, THEREFORE, inconsideration of the mutual premises contained herein, and other good andvaluable consideration, the receipt and sufficiency of which are herebyacknowledged, the parties hereto agree as follows:

 

**Amendments**

 

1.                                       Thedate of Closing is extended to December 23, 2004.

 

2.                                       Exceptas set forth herein, all other terms and conditions set forth in the Purchase Agreementshall remain unchanged. In the event of an inconsistency between the terms ofthe Purchase and Agreement and the terms of this Third Amendment, this ThirdAmendment shall control.

 

 

***(The******remainder of this page is intentionallyblank)***

 

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**SECONDAMENDMENT TO AGREEMENT OF PURCHASE AND SALE**

 

THIS SECOND AMENDMENT TOAGREEMENT OF PURCHASE AND SALE (the “Second Amendment”) is made and enteredinto this 10th day of November, 2004 by and between Eastern RetailHoldings Limited Partnership, a Delaware limited partnership (“Seller”) andInland Real Estate Acquisitions, Inc., an Illinois corporation (“Purchaser”).

 

**Recitals**

 

A.                                   Purchaserand Seller entered into an Agreement of Purchase and Sale dated October 5,2004,**as amended by First Amendment to Agreement of Purchase AndSale dated November 4, 2004 (collectively, the “Purchase Agreement”).

 

B.                                     Purchaserand Seller now desire to amend certain terms of the Purchase Agreement.

 

NOW, THEREFORE, inconsideration of the mutual premises contained herein, and other good andvaluable consideration, the receipt and sufficiency of which are herebyacknowledged, the parties hereto agree as follows:

 

**Amendments**

 

1.                    DefinedTerms. Except as otherwise expressly indicated herein to the contrary, all capitalizedwords and phrases contained herein shall have the same meaning and definitionas are contained in the Purchase Agreement.

 

2.                    PurchasePrice Adjustment. The first grammatical paragraph of Section 1.3 ofthe Purchase Agreement, entitled “Amount and Payment of Purchase Price”, ishereby restated in its entirety so as to read as follows:

 

“Subject to all of theterms and conditions hereof, the purchase price (“Purchase Price”) shall beTwenty One Million Six Hundred and Thirty Thousand Dollars ($21,630,000.00).The Purchase Price shall be allocatedTwelve Million Eight Hundred Thousand Dollars ($12,800,000.00) to Irmo andEight Million Eight Hundred and Thirty Thousand Dollars ($8,830,000.00) toEvans. The Purchase Price shall be paid as follows:”

 

3.                     Adjustmentsto Purchase Price. Section 1.4 of the Purchase Agreement, entitled “Adjustmentsto Purchase Price”, and Exhibit B to the Purchase Agreement, entitled “Schedule ofUnleased Stores”, are hereby deleted in their entirety from**the Purchase Agreement.

 

4.                     EvaluationPeriod. With respect to Section 2.1 of the Purchase Agreement, Buyer herebyacknowledges that, except as hereafter provided, Buyer is either satisfied withor has waived the results of its testings, reviews, inspections and examinationof documents and matters identified in Exhibit C of the Agreement, and, subjectto the satisfaction of the following items, Buyer hereby gives Seller Notice toProceed. Those items which remain unsatisfied and except for subsection 4(c)below, must be satisfied prior to Closing, are as follows:

 

 

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IN WITNESS WHEREOF, theparties hereto have executed this Fourth Amendment as of the date first writtenabove.

 

 
|   | SELLER:                                      |
|--------|----------------------------------------------|
|   |                                         |
|   | EASTERN RETAIL HOLDINGS  LIMITED             |
|   | PARTNERSHIP, a Delaware  limited partnership |
|   |                                         |
|   | By:                                          | LMRES Real Estate  Advisers, Inc., its |
|   |                                         | General Partner |
|   |                                         |   |
|   |                                         | By: | /s/  Beth L. Vopper |
|   |                                         | Name: | BETH  L. VOPPER |
|   |                                         | Its: | VICE  PRESIDENT |
|   |                                         |
|   |                                         |
|   | PURCHASER:                                   |
|   |                                         |
|   | INLAND REAL ESTATE  ACQUISITIONS, INC.,      |
|   | an Illinois  corporation,                    |
|   |                                         |   |
|   |                                         |   |
|   | By:                                          | /s/ G. Joseph Cosenza |
|   | Name:                                        | G. Joseph Cosenza |
|   | Its:                                         | President |

 

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(a) Seller shall provideBuyer with copies of certificatesof occupancy issued during years 2003 and 2004 to tenants of Evans and Irmo;

 

(b) Seller shall****provideBuyer with a list containing the names of the contact persons for all tenantsof Evans and Irmo, and the addresses and telephone numbers of the contactpersons;

 

(c) Seller shalluse commercially reasonable efforts to obtain current sales reports for thecurrent year from the following tenants: Zita, Inc. (Quiznos), Thuan C. Hguyenand Hoa V. Nguyen (US Nails) and Sun Rayz Tanning and shall deliver them toBuyer;

 

(d) Ita TaekwondoAcademy of Irmo, a tenant under a lease dated August 19, 2004, must be inoccupancy and must have paid its first month’s rent;

 

(e) Seller shall obtainlease renewal from Dr. John L. Edwards, D.D.S., a tenant at Irmo under a leasedated April 1, 2000.

 

5.                     Closing.Section 5.1, entitled “Time and Place”, is amended and restated in itsentirety so as to read as follows:

 

“Unless this Agreement isextended or sooner terminated, Buyer and Seller agree to make full settlementon or before thirty (30) days following the date of this Fifth Amendment.”

 

6.                     Titleand Survey. Notwithstanding anything to the contrary contained in Section 2.2of the Purchase Agreement, Buyer shall have until Closing to satisfy itself asto the title to the Property and the Survey.

 

7.                     Remedies.If the requirements for Closing as contained in this Second Amendment have notbeen satisfied within the time periods herein set forth, then the Buyer shall,as**Buyer’s sole remedy, have theright to terminate this Agreement by written notice of termination to Seller,whereupon the Deposit shall immediately be refunded to Buyer, this Agreementshall become null and void and all parties hereto shall be released from allliability and responsibility hereunder.

 

8.                     Miscellaneous.

 

(a) All section headingsof this Second Amendment are for convenience of reference only, and form nopart hereof.

 

(b) In the eventof any conflict between the terms and conditions of this Second Amendment andthe****terms and conditions of thePurchase Agreement, the terms and conditions of this Second Amendment shallcontrol and prevail.

 

(c) Except asexpressly modified and amended by this Second Amendment, the Purchase Agreementshall remain unmodified and in full force and effect, and the Purchase

 

 

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Agreement, as so amended,shall bind and inure to the benefit of Seller and Buyer and their respective successors,legal representatives and assigns.

 

(d) This Second Amendmentmay be executed in counterpart originals, and all executed counterparts shall,when taken together, constitute the entire Second Amendment.

 

 

***(The remainder of this page is intentionally blank)***

 

 

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IN WITNESS WHEREOF, theparties hereto have executed this Second Amendment as of the date first writtenabove.

 

 
|   | SELLER:                                      |
|--------|----------------------------------------------|
|   |                                         |
|   | EASTERN RETAIL HOLDINGS  LIMITED             |
|   | PARTNERSHIP, a Delaware  limited partnership |
|   |                                         |
|   | By:                                          | LMRES Real Estate  Advisers, Inc., its  General Partner |
|   |                                         |   |
|   |                                         |   |
|   |                                         | By: | /s/ Beth L. Vopper |
|   |                                         | Name: | Beth L. Vopper |
|   |                                         | Its: | Vice President |
|   |                                         |
|   |                                         |
|   | PURCHASER:                                   |
|   |                                         |
|   | INLAND REAL ESTATE  ACQUISITIONS, INC.,      |
|   | an Illinois  corporation,                    |
|   |                                         |
|   |                                         |
|   | By:                                          | /s/ G. Joseph Cosenza |
|   | Name:                                        | G. Joseph Cosenza |
|   | Its:                                         | President |
|        |                                              |  |  |  |

 

 

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**FIRSTAMENDMENT TO AGREEMENT OF PURCHASE AND SALE**

 

THIS FIRST AMENDMENT TOAGREEMENT OF PURCHASE AND SALE (the “First Amendment”) is made and entered intothis 4th day of November by and between Eastern Retail HoldingsLimited Partnership, a Delaware limited partnership (“Seller”) and Inland RealEstate Acquisitions, Inc., an Illinois corporation (“Purchaser”).

 

**Recitals**

 

A.                                       Purchaserand Seller entered into an Agreement of Purchase and Sale (the “PurchaseAgreement”) dated October 5, 2004. Capitalized terms used but not definedherein shall have the meaning ascribed thereto in the Purchase Agreement.

 

B.                                         Purchaserand Seller now desire to amend certain terms of the Purchase Agreement.

 

NOW, THEREFORE, inconsideration of the mutual premises contained herein, and other good andvaluable consideration, the receipt and sufficiency of which are herebyacknowledged, the parties hereto agree as follows:

 

**Amendments**

 

1.                                          Notwithstandingthe provisions of Section 2.1 of the Purchase Agreement, the EvaluationPeriod shall be deemed to be extended to and end at 6:00 p.m. (CST), Chicago, Illinoistime, on November 10, 2004.

 

2.                                          Exceptas set forth herein, all other terms and conditions set forth in the Purchase Agreementshall remain unchanged. In the event of an inconsistency between the terms ofthe Purchase and Agreement and the terms of this First Amendment shall control.

 

 

***(The remainder of this page is intentionally blank)***

 

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IN WITNESS WHEREOF, theparties hereto have executed this First Amendment as of the date first writtenabove.

 

 
|   | SELLER:                                      |
|--------|----------------------------------------------|
|   |                                         |
|   | EASTERN RETAIL HOLDINGS  LIMITED             |
|   | PARTNERSHIP, a Delaware  limited partnership |
|   |                                         |
|   | By:                                          | LMRES Real Estate  Advisers, Inc., its  General Partner |
|   |                                         |   |
|   |                                         |   |
|   |                                         | By: | /s/ Beth L. Vopper |
|   |                                         | Name: | Beth L. Vopper |
|   |                                         | Its: | Vice President |
|   |                                         |
|   |                                         |
|   | PURCHASER:                                   |
|   |                                         |
|   | INLAND REAL ESTATE  ACQUISITIONS, INC.,      |
|   | an Illinois  corporation,                    |
|   |                                         |
|   |                                         |
|   | By:                                          | /s/ G. Joseph Cosenza |
|   | Name:                                        | G. Joseph Cosenza |
|   | Its:                                         | PRESIDENT |
|        |                                              |  |  |  |

 

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***AGREEMENT OF PURCHASE AND SALE***

 

 

***BETWEEN***

 

 

***EASTERN RETAIL HOLDINGS LIMITED PARTNERSHIP***

***SELLER***

 

 

***AND***

 

 

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

***BUYER***

 

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*TABLEOF CONTENTS*

 
| *1.1.*   | *Property*                                           |   |
|----------|------------------------------------------------------|--------|
|     |                                                 |   |
| *1.2.*   | *Sale and Purchase*                                  |   |
|     |                                                 |   |
| *1.3.*   | *Amount and Payment of  Purchase Price*              |   |
|     |                                                 |   |
| *1.4.*   | *Adjustments to Purchase Price*                      |   |
|     |                                                 |   |
| *2.1.*   | *Evaluation Period; Tests*                           |   |
|     |                                                 |   |
| *2.2.*   | *Title and Survey*                                   |   |
|     |                                                 |   |
| *2.3.*   | *Inventory of Personal  Property*                    |   |
|     |                                                 |   |
| *2.4.*   | *Rent Roll; Leases*                                  |   |
|     |                                                 |   |
| *2.5.*   | *Contracts*                                          |   |
|     |                                                 |   |
| *2.7.*   | *Condition of Title*                                 |   |
|     |                                                 |   |
| *2.8.*   | *Tenant Estoppel Letters*                            |   |
|     |                                                 |   |
| *3.1.*   | *Representations and  Warranties by Seller*          |   |
|     |                                                 |   |
| *3.2.*   | *Representations by Buyer*                           |   |
|     |                                                 |   |
| *4.1.*   | *Conditions Precedent to the  Obligations of Buyer*  |   |
|     |                                                 |   |
| *4.2.*   | *Conditions Precedent to the  Obligations of Seller* |   |
|     |                                                 |   |
| *5.1.*   | *Time and Place*                                     |   |
|     |                                                 |   |
| *5.2.*   | *Payment of Purchase Price*                          |   |
|     |                                                 |   |
| *5.3.*   | *Transfer of Title to Real  Property*                |   |
|     |                                                 |   |
| *5.4.*   | *Closing Documents*                                  |   |
|     |                                                 |   |
| *5.5.*   | *Definition of Closing*                              |   |
|     |                                                 |   |
| *5.6.*   | *Possession*                                         |   |
|     |                                                 |   |
| *6.1.*   | *Closing Costs*                                      |   |
|     |                                                 |   |
| *6.2.*   | *Closing Adjustments*                                |   |
|     |                                                 |   |
| *6.3.*   | *Security Deposits*                                  |   |
|     |                                                 |   |
| *6.4.*   | *Survival of Closing*                                |   |
|     |                                                 |   |
| *7.1.*   | *Casualty*                                           |   |
| * * |                                                 |   |
| *7.2.*   | *Condemnation*                                       |   |
|     |                                                 |   |
| *8.1.*   | *Appointment of Escrow Agent*                        |   |
|     |                                                 |   |
| *8.2.*   | *Duties of Escrow Agent*                             |   |
|     |                                                 |   |
| *8.3.*   | *Survival of Termination*                            |   |
|     |                                                 |   |
| *9.1.*   | *Brokerage*                                          |   |

 

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| *9.2.*  | *Remedies Upon Default*                  |   |
|---------|------------------------------------------|--------|
|    |                                     |   |
| *9.3.*  | *Indemnification*                        |   |
|    |                                     |   |
| *9.4.*  | *Amendment*                              |   |
|    |                                     |   |
| *9.5.*  | *Notices*                                |   |
|    |                                     |   |
| *9.6.*  | *Assignment*                             |   |
|    |                                     |   |
| *9.7.*  | *Parties Bound*                          |   |
|    |                                     |   |
| *9.8.*  | *Time of Essence*                        |   |
|    |                                     |   |
| *9.9.*  | *Waiver*                                 |   |
|    |                                     |   |
| *9.10.* | *Construction*                           |   |
|    |                                     |   |
| *9.11.* | *Entire  Agreement*                      |   |
|    |                                     |   |
| *9.12.* | *Pronouns*                               |   |
|    |                                     |   |
| *9.13.* | *Headings*                               |   |
|    |                                     |   |
| *9.14.* | *Applicable  Law*                        |   |
|    |                                     |   |
| *9.15.* | *Covenant  Against Recording*            |   |
|    |                                     |   |
| *9.16.* | *Computation  of Time*                   |   |
|    |                                     |   |
| *9.17.* | *Counterparts*                           |   |
|    |                                     |   |
| *9.18.* | *Waiver  of Tender*                      |   |
|    |                                     |   |
| *9.19.* | *Condition  of Property*                 |   |
|    |                                     |   |
| *9.20.* | *Withholding  on Sales of Real Property* |   |

 

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**AGREEMENTOF PURCHASE AND SALE**

 

THIS AGREEMENT OFPURCHASE AND SALE (this “Agreement”), dated as of the    day ofAugust, 2004, by and between EASTERN RETAIL HOLDINGS LIMITED PARTNERSHIP, aDelaware Limited Partnership (“Seller”) and INLAND REAL ESTATE ACQUISITIONS,INC., an Illinois corporation, or its permitted Assignee, (“Buyer” or “Purchaser”);

 

**WITNESSETH:**

 

THAT, for good andvaluable consideration, the receipt and sufficiency of which are herebyacknowledged, Seller and Buyer, intending to be legally bound, do hereby agreeas follows:

 

**ARTICLE 1**

**SALEOF THE PROPERTY**

 

1.1.                              Property.

 

As used herein, the term “Property”shall refer collectively to the “Real Property” and the “Personal Property”which are defined as follows:

 

1.1.1.                     “RealProperty” means, collectively, all of the following:

 

(a)          the landand improvements thereon known as Irmo Station Shopping Center (“Irmo”) andlocated at the intersection of Lake Murray Boulevard and Saint AndrewsRoad, Lexington County, South Carolina. The land is more particularly describedin Exhibit A-l attached hereto and made a part hereof; and

 

(b)         the land andimprovements thereon known as Evans Towne Centre Shopping Center (“Evans”)located on Washington Road in Columbia County, Georgia. The land is moreparticularly described in Exhibit A-2 attached hereto and made a part hereof.

 

1.1.2                        The landis more particularly described in Exhibit A-l and A-2 attached hereto and madea part hereof. The Real Property includes all of Seller’s right, title, andinterest in and to all leases, tenements, hereditaments, appurtenances,beneficial easements and rights of way in any way appertaining, belonging, orincident thereto, all of Seller’s rights in adjacent avenues, streets, andalleys, open or proposed, and all strips and gores as well as all of Seller’srights in machinery, fixtures, and equipment (to the extent the sameconstitutes real property and is not part of the Personal Property) used oruseful in the operation, maintenance, ownership, or use thereof, together withall modifications, substitutions, deletions, and additions thereto from andafter the date hereof and through and including Closing (as defined in Section 5.5);

 

1.1.3                        “PersonalProperty” means all of the Seller’s right, title and interest in all personalproperty owned or leased by Seller and used in connection with the RealProperty, including all of Seller’s right, title and interest in: machinery,equipment, and fixtures (to the extent the same constitute personal property,and are not part of the Real Property), any inventory as of Closing, allpermits, certificates of use and occupancy, licenses or other authorizations oragreements, (to the extent the same may be transferred pursuant to applicablelaw), the trade names “Irmo Station

 

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Shopping Center” and “EvansTowne Centre Shopping Center”; all telephone listings and advertisementsrelating to the use or operation of the Property; all plans, specifications,and “as built” surveys relating to the Real Property and all books and recordsrelating to the Property that are maintained by or for Seller, together withall modifications, substitutions, deletions and additions to any of theforegoing from and after the date hereof and through and including Closing.

 

1.1.4              “Contracts” meanscollectively all written contracts and agreements pertaining to the Property,and not cancelable on thirty (30) days notice without penalty or premium, including,but not limited to: (i) all management leasing, construction, architectural, maintenance,operating and service contracts, (ii) all equipment leases and all rights andoptions of Seller thereunder relating to equipment or property located in orupon the Property or used in connection therewith, and (iii) guarantees and warrantiesin effect with respect to the Property or any portion thereof.

 

1.1.5              “Property” means theReal Property, the Personal Property, and the Contracts.

 

1.2.                              Saleand Purchase.

 

Subject to all of theterms and conditions hereof, Seller hereby agrees to sell to Purchaser, andPurchaser hereby agrees to purchase from Seller, (a) the Real Property in feesimple, and (b) the Personal Property.

 

1.3.                              Amountand Payment of Purchase Price.

 

Subject to all the termsand conditions hereof, and in particular Section 1.4 hereof, the purchaseprice (“Purchase Price”) shall be Twenty One Million Nine Hundred EightyThousand Dollars ($21,980,000.00). The Purchase Price shall be allocatedThirteen Million One Hundred Thousand Dollars ($13,100,000.) to Irmo and EightMillion Eight Hundred and Eighty Thousand Dollars ($8,880,000.) to Evans. ThePurchase Price shall be paid as follows:

 

1.3.1.                          Concurrentlywith execution of this Agreement by Seller, Buyer shall deposit Four HundredThousand Dollars ($400,000.00) with the Escrow Agent pursuant to Article 8.hereof. The term “Deposit” shall mean all sums deposited with Escrow Agenthereunder. At Closing, the Deposit shall, at Purchaser’s option, be creditedagainst the Purchase Price or returned to Purchaser. Except as otherwiseprovided in this Agreement, the Deposit shall be non-refundable after theexpiration of the Evaluation Period.

 

1.3.2.                          Thefull Purchase Price shall be paid by Buyer at Closing by wire transfer of immediatelyavailable funds to the order of Seller at Closing.

 

1.4.                              Adjustmentsto Purchase Price.

 

Attached hereto asExhibit B is a schedule identifying those stores, by Suite Number, whichare not under lease at Evans and Irmo as of the Effective Date, and astipulated value assigned to each unleased store. If, on the Closing Date, anyone or more of such unleased stores have not been leased for a term of at leastthree (3) years and at base rents per square foot at least equal to the amountsset forth on Exhibit B for each store with (i) all tenant improvements requiredthereunder completed and paid for, (ii) all leasing commissions due inconnection therewith paid in full, (iii) a certificate of occupancy having beenissued for such space, and (iv) the tenant thereunder is, open for business andpaying at least the amount of Base Rent stipulated in Exhibit B for the spacein question, plus the tenant’s pro rate share of common area maintenance, taxesand insurance, then the Purchase Price shall be reduced by the stipulated

 

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value assigned toeach such unleased store. For example, if Suite 7 in Evans is unleased as ofthe Closing Date, then that portion of the Purchase Price allocated to Evansshall be reduced by $51,888.00. then the Purchase Price shall be reduced by thestipulated value assigned to each such unleased store. For example, if Suite 7in Evans is unleased as of the Closing Date, then that portion of the PurchasePrice allocated to Evans shall be reduced by $51,888.00. –If, at Closing, thereis a fully executed lease on one or more of the stores shown on Exhibit B, andsuch lease or leases meet all of the requirements of this Section 14except that one or more of the requirements set forth in subsections. 14 (i),(ii), (iii) and (iv) have not been satisfied (such leases are herein called “Non-ConformingLeases”), then the amount by which the Purchase Price is so reduced shall bedeposited in escrow with the Escrow Agent. If, within twelve (12) monthsfollowing Closing, all of the requirements of subsections 14 (i), (ii), (iii)and (iv) have been satisfied for any Non-Conforming Lease, then the Purchasershall so notify the Escrow Agent and the Seller in writing, whereupon theEscrow Agent shall immediately pay over to Seller the amount of the escrowdeposit attributed to the Non-Conforming Lease or Leases in question. If,within twelve (12) months following Closing, all of the requirements ofsubsections 14 (i), (ii), (iii) and (iv) have not been satisfied for anyNon-Conforming Lease, then the Purchaser shall so notify the Escrow Agent andthe Seller, whereupon the Escrow Agent shall immediately pay over to Purchaserthe amount of the escrow deposit attributed to the Non-Conforming Lease orLeases in question.

 

**ARTICLE 2**

**EVALUATIONPERIOD; ACTIONS PRIOR TO CLOSING**

 

2.1.                              EvaluationPeriod; Tests.

 

Buyer shall have a periodcommencing with the date of this Agreement, which shall be the date upon whichthe last of Buyer and Seller have executed this Agreement (the “Effective Date”)and terminating at 6:00 p.m. Chicago, Illinois time on the thirtieth (30) daythereafter (the “Evaluation Period”) to make and conduct any and allinvestigations (including but not limited to investigations of the matterspertaining to the Property which are disclosed, by reference or otherwise, inthis Agreement and its Exhibits), tests, engineering evaluations, economicfeasibility evaluations, design evaluations, review of all financial andproperty-related information, review of County real estate taxes, building codeand zoning records pertaining to the Property, and any other tests, studies, orevaluations which Buyer may, in its sole discretion, deem necessary ordesirable in order to evaluate the Property, and to review the leases ofportions of the Property (“Leases”) and the suitability of the Property forBuyer’s purposes. In the event that Buyer shall, in its sole discretion,determine that the Property (and the terms and conditions of the Leases) aresuitable for Buyer’s purposes, then Buyer may, by giving written notice (“Noticeto Proceed”) to Seller at any time prior to the expiration of the EvaluationPeriod, elect to proceed with this Agreement. All studies and tests made orconducted by or for Buyer pursuant to this Section 2.1 shall be at Buyer’ssole cost and expense and shall be subject to the provisions of Section 2.1.1.In the event that Closing does not occur under this Agreement for any reasonother than Seller’s default, then, notwithstanding any other provision of thisAgreement purporting to terminate all rights and obligations hereunder, alldata and material, including plans, specifications, surveys, title commitments,engineering studies and drawings, surveys, sketches, test results, contracts,agreements and Leases relating to the Property delivered by Seller to Buyershall, at Seller’s request, be returned by Buyer to Seller.

 

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If,**on or prior to the date ofexpiration of the Evaluation Period, Buyer shall either fail to give SellerNotice to Proceed, or shall fail to give Seller written notice of its electionto terminate this Agreement, then Buyer shall be deemed to have terminated thisAgreement pursuant to this Section 2.1 whereupon the Deposit shall beimmediately refunded to Buyer, this Agreement shall become null and void andall parties hereto shall be released from all liability and responsibilityhereunder.

 

It shall beclearly understood that the Buyer may give Notice to Proceed only with respect toboth Irmo and Evans. If the Buyer gives Notice to Proceed with respect to oneof the two shopping centers, then such Notice to Proceed shall be treated as atermination of this Agreement pursuant to this Section 2.1.

 

2.1.1.                     Tests;Entry. Buyer shall have the right (subject to the provisions of this Section 2.1.1and any other applicable provisions of this Agreement) from and after theEffective Date and until the end of the Evaluation Period (and until Closing ifthis Agreement is not terminated during the Evaluation Period);

 

(a)          To performor cause to be performed such engineering, structural, mechanical, water,sanitary sewer, utility, topographic, market, financial, environmental, infestation,and/or other studies, tests, or investigations as Buyer may, in its solediscretion, elect;

 

(b)         To enter, orcause its agents or representatives to enter, upon the Property for the purposeof making any of the aforesaid tests, investigations and/or studies. Anyexercise by Buyer of its rights to perform tests upon the Property pursuant to Section 2.1,this Section 2.1.1 or any other provision of this Agreement or to reviewthe files and records of Seller or the manager of the Property (the “Manager”)shall only be taken or made upon reasonable prior notice to Seller and to theManager. All tests, inspections, reports and investigations made by or forBuyer pursuant to Section 2.1, this Section 2.1.1 or any otherprovision of this Agreement shall be at Buyer’s sole risk, cost and expense andall such tests, inspections, reports and investigations shall (to the extentconducted or made at the Property) be conducted or made with due regard to thebusiness operations being conducted at the Property and the rights, privilegesand convenience of Seller’s tenants, guests, invitees and licensees; and

 

(c)          In connectionwith any entry upon the Property prior to Closing, Buyer shall (i) permit arepresentative of Seller to accompany Buyer and (ii) indemnify, defend and saveand hold harmless Seller from any and all damage to the Property or injury topersons caused by such entry and at Seller’s option, prior to Buyer’s entryupon the Property, Buyer shall provide Seller with a certificate evidencingliability insurance in the amount of not less than $1,000,000., naming Selleras an additional insured.

 

2.1.2.                     Accessto Information. Within five (5) days of the Effective Date, Seller shalldeliver the Buyer the items set forth on Exhibit C attached hereto, except forthose items crossed out or noted on Exhibit C as, “not applicable”, “Seller notto provide” and those items not considered as applicable under item 2 ofExpense Information on Exhibit C. Those items noted on Exhibit C as “availablein management office”, or “if available, located in management office”, may beinspected by Buyer in the office of the Seller’s management company.

 

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2.2.          Titleand Survey.

 

Buyer shall, at Buyers’expense, satisfy itself as to the title to the Property in accordance with thefollowing provisions:

 

2.2.1.                     Withinfive (5) days after the Effective Date, Buyer shall request, and thereaftershall cause, Buyer shall cause Chicago Title Insurance Company (the “TitleInsurer”) to issue the Title Commitment (as hereinafter defined), together withlegible copies of any and all title exception documents referenced therein. The“Title Commitment” shall mean a commitment for an ALTA Owner’s Title InsurancePolicy (Form B) for the Real Property issued by the Title Company in the fullamount of the Purchase Price, covering title to the Real Property on or afterthe date hereof, showing Seller as owner of the Real Property in fee simple,and providing for full extended coverage over all general title exceptionscontained in such policies and containing the following special endorsements(collectively, the “Special Title Endorsements”) Zoning Endorsement 3.1(amended to include parking and loading dock coverage), owner’s comprehensive,access, survey (legal description equivalency), P.I.N., contiguity (ifapplicable, encroachment (if applicable), utility facility, subdivision,location, environmental lien and deletion of the arbitration provision andcreditors’ rights provision.

 

2.2.2                        Withinfive (5) days after the Effective Date, Seller shall order, and Seller shall,at Buyer’s expense cause a duly licensed land surveyor to deliver a currentALTA/ACSM Title Survey of the Real Property prepared in accordance with theMinimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys jointlyestablished by the American Land Title Association and the American Congress onSurveying and Mapping in 1999, that meets the accuracy requirements of an UrbanSurvey, as defined therein, and includes items 1, 3, 4, 6,7 (a, b and c), 8-11and 13-16 of Table A thereof (the “Survey”). The Survey shall be otherwisecertified to Buyer and prepared in accordance with the certification andadditional requirements set forth on Exhibit D. attached hereto.

 

2.2.3  (a) In the event (i) the Survey shows anyeasement, right-of-way, encroachment, conflict, protrusion or other matteraffecting the Real Property that is unacceptable to Buyer, or (ii) anyexceptions appear in the Title Commitment that are unacceptable to Buyer, Buyershall notify Seller in writing of such facts (“Buyer’s Title Objections”) notlater than 5:00 p.m. Central Time upon the date which is the later of theexpiration of the Evaluation Period or five (5) business days after the dateBuyer has received delivery of both the Survey and Title Commitment (the “TitleApproval Period”). Upon the expiration of the Title Approval Period, except forBuyer’s Title Objections, Monetary Liens (as hereafter defined), and any othermatters arising subsequent to the date of the Survey and Title Commitment,Buyer shall be deemed to have accepted the form and substance of the Survey,the Title Commitment and all matters shown or addressed therein (collectively,the “Approved Title Matters”).

 

(b)                                 Notwithstandinganything to the contrary contained herein, except for any Monetary Liens andany matters created after the date of the Title Commitment, Seller shall haveno obligation to take any steps or bring any action or proceeding or otherwiseto incur any effort or expense whatsoever to eliminate or modify any of Buyer’sTitle Objections; provided, however, Seller, at its sole option, may attempt toeliminate or modify all or a portion of Buyer’s Title Objections to Buyer’sreasonable satisfaction prior to the Closing Date. In the event Seller isunable or unwilling to attempt to eliminate or modify all of Buyer’s TitleObjections to the reasonable satisfaction of Buyer, Seller shall providewritten notice thereof to Buyer within ten (10) business days of its receipt ofBuyer’s Title Objections (“Seller’s Notice”). Buyer may

 

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thereafter elect to closenotwithstanding Buyer’s Title Objections (in which case Seller shall have noliability to eliminate or modify, and Buyer shall take the Property subject to,the Buyer’s Title Objections) or Buyer may (as its sole and exclusive remedy)terminate this Agreement by delivering notice thereof in writing to Seller, inwhich event neither party shall have any obligation hereunder other than theSurviving Obligations and Buyer shall be entitled to return of the Deposit.Seller shall cause all mortgages, deeds of trust and monetary liens (includingliens for delinquent taxes, mechanics’ liens and judgment liens) affecting theProperty and all indebtedness secured thereby (the “Monetary Liens”) to befully satisfied, released and discharged of record on or prior to the ClosingDate.

 

(c)                                  Theterm “Permitted Exceptions” as used herein includes: (i) all of the ApprovedTitle Matters, and (ii) any Buyer’s Title Objection other than Monetary Liensor those items Seller agreed to eliminate or modify pursuant to Section 2.2.3(b),that Buyer has elected to waive its objection with respect thereto pursuant to Section 2.2.3(b).

 

2.3.                              Inventoryof Personal Property.

 

An inventory of tangiblePersonal Property (the “Inventory”) which Inventory shall be updated as ofClosing, and which update shall reveal no material changes to the Inventory, isattached hereto as Exhibit E.

 

2.4.                              RentRoll; Leases.

 

The rent roll for theProperty (the “Rent Roll” is attached hereto as Exhibit F).

 

2.5.                              Contracts.

 

It is acknowledged andagreed that as of the date hereof Seller and/or the Manager have entered into,or are otherwise responsible for, certain employment, supply, service,operating, leasing, tenant improvement and other contracts relating to theProperty. Copies of all such contracts and certificates confirming insurancecoverage will be delivered to Buyer within five (5) business days after theEffective Date. A listing of all such contracts is set forth as Exhibit G.Buyer shall review such contracts during the Evaluation Period and, if Buyergives Seller Notice to Proceed, Buyer will, prior to the expiration of theEvaluation Period, advise Seller which of such contracts must be terminated bySeller at or prior to Closing, as a condition of Closing. All such contracts whichare not to be terminated at or prior to Closing, and all other contractsrelating to the Property entered into after the date hereof with the priorwritten consent of Buyer (which consent Buyer agrees not to unreasonably withholdor delay, provided such contracts are terminable by Seller at any time for anyreason on no more than 30 days prior written notice) are herein collectivelyreferred to as the “Continuing Contracts.” In no event shall Buyer be obligatedto enter into or consent to any amendment, replacement or termination of aContinuing Contract after the Evaluation Period except on such terms as may beapproved in writing by Buyer in advance.

 

2.6                                 ConductPending Closing or Termination.

 

Prior to the earlier ofClosing or the termination of this Agreement:

 

2.6.1                        ConductNot Permitted. Seller shall not engage in or permit or suffer any of thefollowing acts to occur:

 

(a)  Any sale, assignment, disposition, orencumbrance of any portion of the Real Property (except as otherwise expresslyprovided in this Agreement) or of all or

 

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any substantial portionof the Personal Property without Buyer’s prior written consent;

 

(b)  Any intentional action by Seller that wouldresult in any of Seller’s warranties and representations set forth in Article 3not being and remaining true and correct as of Closing;

 

(c)  After the expiration of the EvaluationPeriod, if the Buyer has given the Seller Notice to Proceed, Seller shall notexecute any new lease for any portion of the Property or a material amendment,replacement, or termination of any of the Leases unless such execution,amendment, replacement, or termination occurs with Buyer’s prior writtenconsent: provided, however, that Seller may enter into leases of the unleasedspace listed in Exhibit B hereto, so long as such leases meet the criteria of Section 1.4hereof. Seller shall immediately notify Buyer of any such actions taken duringthe Evaluation Period, and Buyer shall have at least ten (10) business days toreview any such action. Any such action taken without Buyer’s prior writtenconsent shall, at Buyer’s option, give Buyer the right either to terminate thisAgreement and receive a return of the Deposit or to proceed to Closing withoutany abatement of the Purchase Price; and

 

(d)  Seller shall not execute any new contractsrelating to the operation and maintenance of the Property to the extent suchcontracts extend beyond Closing without the prior written consent of Buyer,which consent shall not be unreasonably withheld. Seller shall immediatelynotify Buyer of any such proposed actions.

 

2.6.2                        Seller’sCovenants. Seller agrees that:

 

(a)  Seller shall furnish to Buyer copies of anyand all written notices that Seller receives from any governmental entity withrespect to the Property;

 

(b)  until Closing, Seller shall maintain forSeller’s own benefit its existing insurance coverage on the Property (and Buyershall have the right at its cost and expense to maintain such additionalinsurance with respect to the Property and its interest therein as Buyer maydeem to be necessary or appropriate);

 

(c)  after the expiration of the EvaluationPeriod, Seller shall not settle any fire or casualty loss claims, or agree toany award or payment in a Condemnation (as defined in Section 7.2),without obtaining Buyer’s prior written consent in each case; provided,however, that Buyer’s prior written consent shall not be required, and Sellershall be free to make any settlement or agreement it deems necessary or appropriatefrom and after the date, if any, on which the parties exercise (or are deemedto have exercised) their option pursuant to Sections 7.1 or 7.2 to terminate thisAgreement for or on account of any such casualty or Condemnation; and furtherprovided that Seller may make a partial settlement to obtain insurance proceeds(and may use such proceeds) to perform interim repairs or renovations to theProperty as required by any Lease, by any governmental authority or as requiredto prevent further damage or deterioration to the Property;

 

(d)  Seller shall continue to operate and maintainthe Property in accordance with good business practices and shall maintain theProperty in good condition including making all necessary repairs andreplacements; and

 

(e)  At Closing there shall be no contractspertaining to the Property other than the Continuing Contracts which will beassigned to Buyer.

 

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2.7.                           Conditionof Title.

 

At Closing, title to theReal Property shall be subject only to the Permitted Exceptions.

 

2.8.                           TenantEstoppel Letters.

 

Seller agrees touse reasonable efforts to obtain tenant estoppel letters addressed to Buyer (the“Tenant Estoppel Letters”) in the form attached hereto as Exhibit H. from allof the tenants of the Property shown on the Rent Roll; to deliver to Buyer allsuch letters which Seller is able to obtain through the use of reasonableefforts signed by the tenants no later than five (5) days prior to Closing; andto use reasonable efforts to cause tenants to sign corrected letters in theevent any such letter contains errors, omissions, or inaccuracies. In addition,Seller agrees to execute and deliver estoppel letters in form as attachedhereto as Exhibit H-l, in place of and with respect to all tenants other thanthe tenants identified in Sections 4.1.10(a) and (b) hereof, who do nototherwise deliver a Tenant Estoppel Letter.

 

**ARTICLE 3**

**REPRESENTATIONSAND WARRANTIES**

 

3.1.                              Representationsand Warranties by Seller.

 

As of the date hereof,Seller hereby represents and warrants to Buyer as follows:

 

3.1.1.                         Selleris authorized to enter into this Agreement and to consummate the transactionscontemplated hereby. The execution and delivery of this Agreement and the conveyanceof the Property by Seller pursuant to this Agreement, do not otherwise requirethe consent of any person, agency, entity or, as applicable, partner orshareholder not a party to this Agreement.

 

3.1.2.                         Sellerhas granted no option (which remains outstanding) or otherwise made any commitment(which remains outstanding) to any person other than Buyer to sell, transfer,or dispose of the Property or any interest therein (other than a leaseholdinterest pursuant to the Leases).

 

3.1.3.                         ThisAgreement does not violate the terms of any other contract or instrument to whichSeller is a party or by which Seller is bound.

 

3.1.4.                         Exceptfor the Continuing Contracts or as otherwise disclosed to Buyer, Seller is nota party to any written or oral contract, and otherwise has no liability, actualor contingent, for (i) the employment of any person with respect to theProperty, (ii) the payment of or provision for any bonus, profit-sharing plan,retirement benefit, vacation benefit, hospitalization insurance, or similarplan or practice, formal or informal, with respect to any current or pastemployees with respect to the Property, or (iii) any labor union with respectto the Property.

 

3.1.5.                         Selleris not a “foreign person” as the term is defined in §1445 of the Internal RevenueCode of 1986, as amended or replaced (the “Code”) and Seller agrees to executean affidavit to that effect at Closing.

 

3.1.6.                     Thereare no actions or proceedings pending or to the best of Seller’s actualknowledge, threatened to place Seller in bankruptcy or appoint a receiver forSeller.

 

3.1.7.                     Property.With respect to the Property and the ownership, leasing, management andoperation thereof, Seller represents and warrants that:

 

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(a) There are notenancies or occupancies affecting the Property or persons in possession of anypart thereof, except under the Leases described in the Rent Roll.

 

(b) Seller is nota party to, and has no knowledge of, any of the following with respect to theProperty: (i) leases or conditional sales agreements of any personalty, (ii)employment contracts, or union agreements, or retirement or pension plans,(iii) signage agreements, (iv) licenses granting rights to parties other thanSeller, (v) merchants’ association or promotional service agreements, or (vi)any similar commitments or agreements whatsoever incidental to the management,operation or leasing of the Property, written or oral, except (A) the Contractsset forth in Exhibit G, (B) the Leases, (C) the Permitted Exceptions and (D)the existing management and leasing contracts and other contracts to becanceled by Seller at or before Closing, unless otherwise continued by Buyer atBuyer’s sole election.

 

(c) Copies of theRent Roll and Leases and the Contingency Contracts set forth in Exhibits F andG which have been delivered to Buyer on or prior to the date hereof are true,accurate and complete copies of all documents comprising the Leases and theContracts set forth in Exhibits F and G, with all supplements, amendments andexhibits thereto and there are no modifications or other agreements, written ororal, affecting the Leases or the Contracts set forth in Exhibits F and G.

 

(d) There is no prepaidrent (other than rent prepaid no more than one (1) month in advance pursuant tothe terms of the relevant Leases) with respect to the Property, and no securitydeposits relating to the Leases or otherwise affecting any of the Property havebeen collected other than as reflected on Exhibit F hereto. Except as set forthon Exhibit I hereto, and otherwise to the best of Seller’s knowledge, there isno material default by any party under any of the Leases.

 

(e) There is nolitigation, claim, audit, action or proceeding pending or to the best of Seller’sknowledge, threatened before or by any court, public board or body orgovernmental or administrative agency or instrumentality against Seller oragainst Seller by any tenant or by any other person or entity in any manneraffecting the Property, except for claims by third parties for personalinjuries at the Property which are being defended by Seller’s insurancecompany, and except as shown on Exhibit J hereof. As to such claims, Sellerhereby agrees to protect, defend, indemnify and save Buyer and Buyer’spermitted assignee harmless from any and all claims, demands, liabilities anddamages, arising therefrom.

 

(f) As of theEffective Date there is no delinquent property tax, levy or assessment againstthe Property.

 

(g) To the best ofSeller’s knowledge, except as shown on Exhibit K hereto, there is no pending orthreatened condemnation proceeding against the Property or any portion thereof,nor have Seller or its agents received any written notice of any publicrequest, plans or proposals for changes in road grade, access or other municipalimprovements that may affect the Property or result in a tax, levy orassessment against the Property.

 

(h) As of the EffectiveDate Seller has received no written notice of any alleged violation of anyfire, zoning, applicable comprehensive plans, building, health or

 

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environmental laws,regulations or rulings, whether federal, state or local, or of any otheralleged violations of law which affect the Property. (i) To the best of Seller’sknowledge as of the Effective Date, (i) there are no hazardous waste orhazardous substances stored or located upon or under any portion of theProperty; (ii) the Property is not used to treat, store or dispose of wastematerials, hazardous substances, asbestos or PCBs; (iii) there is no leaking ordrainage of waste materials or hazardous substances into the ground waterbeneath or adjacent to the Property; and (iv) there are no buried orsemi-buried or otherwise placed tanks, storage vessels, drums or containers ofany kind manufactured, stored or located on the Property.

 

3.2.                              Representationsby Buyer.

 

As of the date hereof,Buyer hereby represents and warrants to Seller as follows:

 

3.2.1.                      Buyeris fully competent and authorized to enter into this Agreement and to consummatethe transactions contemplated hereby. The execution and delivery of this Agreementand the consummation of the transactions contemplated hereby by Buyer do not requirethe consent of any person, agency or entity not a party to this Agreement.

 

3.2.2.                      Thereare no actions or proceedings pending or threatened to liquidate, reorganize, arrange,place in bankruptcy, appoint a receiver for, or dissolve Buyer.

 

3.2.3.                      ThisAgreement does not violate the terms of any other contract or instrument to whichBuyer is a party or by which Buyer is bound.

 

**ARTICLE 4**

**CONDITIONSOF CLOSING**

 

4.1.                              ConditionsPrecedent to the Obligations of Buyer.

 

In addition to any otherconditions precedent stated in this Agreement, the obligations of Buyer topurchase and make payment for the Property pursuant to the provisions of thisAgreement shall be subject to the following conditions:

 

4.1.1.                     Therepresentations and warranties made by Seller hereunder shall be true andcorrect on and as of Closing.

 

4.1.2.                         Therewill not be pending or threatened as of Closing any litigation, proceeding or investigation,including but not limited to, any bankruptcy, arrangement, reorganization, insolvencyor foreclosure proceedings (but excluding any Condemnation which shall begoverned by Article 7 hereof): (i) materially and adversely affecting theProperty; or (ii) against or involving Seller that would materially andadversely affect Seller’s title to the Property.

 

4.1.3.                         Betweenthe date of this Agreement and Closing, Seller shall have complied with theobligations and covenants contained in Sections 2.7 and 2.9 hereof.

 

4.1.4.                         Asof Closing, the status of title of the Property shall be as set forth in Section 2.8hereof.

 

4.1.5.                         Theholder of all mortgages encumbering the Property shall have executed and deliveredletters to the Escrow Agent and the Buyer stating the amounts necessary to payoff and then satisfy such mortgages as of Closing; including prepaymentpremiums and other charges, all of which shall be Seller’s responsibility to pay.

 

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4.1.6.                      Sellershall execute and deliver all documents and shall take all other actions requiredof Seller pursuant to Article 5.

 

4.1.7.                      Buyershall not have discovered or become aware of any environmental liability associatedwith or arising out of the use, operation, or ownership of the Property.

 

4.1.8.                      Buyershall have obtained a letter or letters from the appropriate local municipal authorityor authorities in form and content reasonably acceptable to Buyer, stating insubstance that the Property is zoned for its current use, that all requireddevelopment and subdivision approvals have been obtained and that there are noknown building code violations.

 

4.1.9.                      Allcontracts which are not Continuing Contracts shall have been terminated at or priorto Closing and written evidence thereof submitted to Buyer.

 

4.1.10.                Sellershall have delivered to Buyer prior to Closing, Tenant Estoppel Letters reasonablysatisfactory to Buyer from (a) Kroger, Pizza Hut and Dollar Tree in the case ofIrmo, (b) Publix, in the case of Evans, and (c) Seventy Percent (70%) in numberof all other tenants, dated not more than thirty (30) days prior to Closing. Inaddition, Seller agrees to execute and deliver estoppel letters in form asattached hereto as Exhibit H-l, in place of and with respect to all tenantsother than tenants identified in Sections 4.1.10(a) and (b) hereof, who do not otherwisedeliver a Tenant Estoppel Letter.

 

4.2.                              ConditionsPrecedent to the Obligations of Seller.

 

In addition to any otherconditions precedent stated in this Agreement, the obligations of Seller tosell the Property pursuant to the provisions of this Agreement shall be subjectto the following conditions:

 

4.2.1.                       Therepresentations and warranties made by Buyer in Section 3.2 shall be trueand correct on and as of Closing.

 

4.2.2.                       Therewill not be pending any litigation, proceeding, or investigation, including butnot limited to, any bankruptcy, arrangement, reorganization, or insolvency proceedingagainst or involving Buyer that would materially and adversely affect Buyer’sability to consummate Closing.

 

4.2.3.                       Buyershall pay the Purchase Price, shall execute and deliver all documents, and shalltake all other actions required of Buyer pursuant to Article 5.

 

**ARTICLE 5CLOSING**

 

5.1.                              Timeand Place.

 

Unless thisAgreement is extended or sooner terminated, Buyer and Seller agree to make fullsettlement on or before thirty (30) days following the date Buyer gives Noticeto Proceed to Seller, but in no event shall Closing occur on September 8,2004 through and including September 20, 2004 or December 8, 2004through and including December 20, 2004, at the offices of the EscrowAgent or at such other time, place and date as may be agreed upon by Buyer andSeller in their respective sole discretion.

 

5.2.                              Paymentof Purchase Price.

 

At Closing, Escrow Agentshall deliver the Deposit to Seller, and Buyer shall pay the balance of thePurchase Price as provided in Section 1.3.2.

 

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5.3.                              Transferof Title to Real Property.

 

At Closing, andupon payment of the Purchase Price and full performance by Buyer, Seller shallconvey to Buyer, by limited warranty deed, in the case of Irmo, and limitedwarranty deed, in the case of Evans,, title to the Real Property in fee simpleabsolute, subject to the Permitted Exceptions, which shall include ad valoremreal property taxes for the year of closing and subsequent years, provided thatnone of such taxes are due and payable and prorated as elsewhere providedherein.

 

5.4.                              ClosingDocuments.

 

The following documentsshall be executed and/or delivered as of Closing with respect to each of Irmoand Evans:

 

5.4.1.                        Sellershall execute and deliver the limited warranty deeds conveying the Real Propertyto Buyer. If the Buyer obtains a new or updated survey of the Real Property andthe legal description set forth in Purchaser’s survey differs from the legaldescription set forth in Exhibit A hereto, Seller shall also execute anddeliver a quitclaim deed containing a legal description based upon Purchaser’ssurvey.

 

5.4.2.                        Sellershall execute and deliver a Bill of Sale transferring to Buyer all of Seller’s right,title and interest in the Personal Property, if any, free and clear of allcharges, security interests, mortgages, liens, and encumbrances created orarising by or through Seller (other than Permitted Exceptions).

 

5.4.3.                        (a)Seller and Buyer shall each execute and deliver an Assignment and Assumption ofLeases pursuant to which Seller shall assign, and Buyer shall from and afterthe date of Closing, assume, all of Seller’s right, title, interest, rights,duties, and obligations under all Leases;

 

(b) Seller and Buyershall each execute and deliver an Assignment and Assumption of Contracts andWarranties pursuant to which Seller shall assign, and Buyer shall from andafter the date of Closing, assume all of Seller’s rights, title interest,duties and obligations under the Contracts and all Continuing Contracts in forceand effect as of Closing, and such other matters (limited to Seller’s rightstherein and only to the extent assignable) as are to be assigned by Seller toBuyer hereunder (such other matters to include any warranties, permits,licenses, and other items necessary or useful in connection with the operationof the Property).

 

5.4.4.                           Tothe extent not previously delivered, at Closing Seller shall deliver to Buyer(i) the originals of all Leases then in force and effect (or to the extent thatSeller does not have an original executed copy of any of the Leases in Seller’spossession, a photostatic copy of such Lease, together with a certification bySeller that such photostatic copy is a true and correct copy of such Lease) andthe originals or true copies of all Continuing Contracts then in force and effect;(ii) the originals or true copies of all real estate tax records, utilitybills, and other records relating to the use, ownership and operation of theReal Property during the period owned by Seller to the extent in Seller’s or anaffiliate or agent of Seller’s possession as of Closing; (iii) all plans,specifications and “as builts” relating to the Real Property to the extent inSeller’s or an affiliate or agent of Seller’s possession as of Closing; (iv)the most recent certificates of use and occupancy to the extent in Seller’s oran affiliate or agent of Seller’s possession as of Closing; (v) to the extentnot already provided herein, any warranties, guarantees, operating manuals ordocuments, maintenance, supply, and service contracts, engineering data, andother documents

 

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respecting the use,operation, or ownership of the Property which are in Seller’s or an affiliateor agent of Seller’s possession as of Closing; (vi) the Tenant Estoppel Lettersrequired to be delivered pursuant to Section 2.9 above to the extent thesame have been obtained by Seller; and (viii) all access, operating, or otherkeys to the Property in Seller’s possession as of Closing.

 

5.4.5.                        Sellershall deliver the Inventory of the Personal Property, if any, updated as of Closing.

 

5.4.6.                        Sellerand Buyer shall approve a closing statement reflecting costs and adjustmentsset forth in Sections 6.1 and 6.2.

 

5.4.7.                        Sellershall execute and deliver to Buyer an affidavit confirming that Seller is not a“foreign person” under §1445 of the Code.

 

5.4.8.                        Sellershall deliver in a form reasonably acceptable to Buyer a notification to tenantsof the sale and purchase of the Property, which notification shall instruct thetenants to pay all rent and charges directly to Buyer, from and after theClosing.

 

5.4.9.                        Sellershall deliver to Buyer the letter or letters required by Section 4.1.8.hereof.

 

5.4.10.                  Sellershall execute and deliver to Buyer the audit letter in the form of Exhibit L attachedhereto.

 

5.5.                              Definitionof Closing.

 

All of the actionsdescribed in Sections 5.3 through 5.4 shall be deemed to have been takensimultaneously, none of such actions shall be deemed to have been taken unconditionallyuntil all of such actions have been fully performed, and all of such actionsare collectively referred to herein as “Closing.”

 

5.6.                              Possession.

 

Seller shall deliverpossession of and occupancy to the Property to Buyer as of Closing, subject toall Leases, all Permitted Exceptions, and any other matters permitted by thisAgreement or created or otherwise consented to in writing by Buyer.

 

**ARTICLE 6**

**CLOSING****COSTS AND ADJUSTMENTS**

 

6.1.                              ClosingCosts.

 

Buyer shall pay the costsof recording the deed and other title transfer documents and cost of anyfinancing obtained by Buyer, including the fee owner’s and any mortgagee’stitle policy, premiums, title commitment fees, recording fees, commitment feesand mortgage loan fee. Each party shall bear the fees of its respectiveattorneys and advisors. Seller shall pay any brokerage commission due Seller’sagent, Trammell Crow Company, in connection with this sale and purchasetransaction. Realty transfer taxes shall be paid by Seller. Buyer shall pay forthe cost of the survey referenced in Section 2.3 hereof.

 

6.2.                              ClosingAdjustments.

 

6.2.1.                     Except ashereinafter specifically provided to the contrary, all minimum rent, additionalrent and other sums payable under the Leases; all current operating expenses,all real estate taxes, (on the basis of the actual fiscal years for which suchtaxes are assessed), other taxes and assessments (whether general or special);and all utilities, water and sewer charges

 

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(excluding, however, anyutilities, water and sewer charges paid or payable directly by the tenantsunder the Leases), shall be adjusted and prorated as of Closing. Any credit dueto Buyer pursuant to this subsection 6.2.1 shall be applied against thePurchase Price; and any credit due to Seller pursuant to this Section 6.2.1shall be paid by Buyer to Seller at Closing as an addition to the PurchasePrice in the manner of payment set forth in Section 1.3.3.

 

6.2.2.                       Sellerand Buyer acknowledge and agree that it may not be possible to effect a finalreconciliation of all income and expense items that are to be adjusted untilafter Closing. The parties agree to cooperate in good faith in effecting such afinal reconciliation and each party shall promptly pay (or reimburse the otherparty for) any expenses item that is chargeable to the other party and shallpromptly remit any income item to the other party if entitled thereto. Seller covenantsthat it shall retain the financial ability to make such adjustments.

 

6.2.3.                       Sellershall use its best efforts to arrange for the rendition of final bills by the utilitycompanies involved as of Closing (excluding, however, any bills for utilitiesconsumed by an individual tenant if such tenant is obligated by its lease topay separately for the utilities consumed by it), but in the event such finalbills cannot be rendered or obtained by Closing, final adjustments shall bemade within sixty (60) days after Closing.

 

6.2.4.                       Notwithstandinganything contained herein to the contrary, rent in arrears for months prior toClosing shall not be prorated. Buyer shall promptly pay to Seller any rental receivedby Buyer attributable to rents in arrears as of Closing (and Buyer shall applyany rental received to the most current rental due and owing when such paymentwas made). Buyer shall use reasonable efforts to collect back rent due Seller,but shall not be required to file suit or to evict delinquent tenants. Withinninety (90) days after Closing, Buyer shall deliver to Seller a written reportsetting forth the status of its collection of delinquent rents as of sixty (60)days after Closing. The terms of this Section 6.2.4 shall survive Closing.

 

6.2.5.                       Theapportionment of percentage rental, if any, payable under any of the Leases (“PercentageRent”) (and the amounts due Buyer and Seller respectively under each of theLeases with respect thereto) shall be made and paid on or before the thirtieth(30th) day following the date when the last amount due on account of suchPercentage Rent shall have been paid by the tenant under its Lease with respectto the percentage rent lease year (as defined in each of the Leases) in whichthe Closing occurs. The amount to be apportioned shall be the total of the amountscollected by both Buyer and Seller as percentage rent for such percentage rentlease year. Seller’s portion thereof shall be an amount which bears the sameratio to the total percentage rent for the applicable percentage rent leaseyear as the number of days up to and including the date of Closing in suchpercentage rent lease year shall bear to the full number of days in suchpercentage rent lease year; and Buyer shall be entitled to the remainingportion. Buyer shall use its reasonable efforts to cause all Percentage Rentpayments for the percentage rent lease years with respect to which percentagerent is to be apportioned between Buyer and Seller to be paid to Buyer by alltenants under the Leases; and Buyer shall divide and distribute the amounts socollected between Buyer and Seller in accordance with the provisions hereof. Eachof Seller and Buyer shall deliver to the other (promptly after receipt) copiesof all sales reports received by it from tenants under the Leases for thepercentage rent lease years in which the date of Closing occurs.

 

Notwithstanding anythingto the contrary contained in this Section 6.2.5., it is understood andagreed that if, at the time of Buyer’s receipt of percentage rent from aparticular tenant, such tenant is in arrears for all or any portion if its 2005pass-through charges (the “Pass Through Charge Arrearage”) then the Sellershall only be entitled to receive its portion of that amount of

 

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the percentage rentpayment which exceeds the amount of the Pass-Through Charge Arrearage. If, onor before December 31, 2005, such tenant subsequently remits to Buyer theamount of the Pass-Through Charge Arrearage, then Buyer will pay to Seller theSeller’s remaining portion of the percentage rent payment withheld as aforesaid.

 

6.2.6.                     Seller shallbe deemed to have retained and reserved to itself at Closing all claims againsttenants or former tenants or their bankrupt estates for arrearages under any ofthe Leases existing at Closing or under any prior leases. The claims retainedand reserved to Seller pursuant to the provisions of this Section 6.2.6shall be limited to claims and actions for the collection of money, and at notime shall Seller have the right after the completion of Closing to seekejectment of a tenant under any of the Leases or termination of a Lease.

 

6.3.                              SecurityDeposits.

 

At Closing Buyer shallreceive a credit against the Purchase Price for the total sum of all tenantsecurity deposits paid by tenants under the Leases.

 

6.4.                              Survivalof Closing.

 

The obligations of Sellerand Buyer in this Article 6, shall survive Closing.

 

**ARTICLE 7CASUALTY AND CONDEMNATION**

 

7.1.                              Casualty.

 

7.1.1.                        Subjectto the provisions of this Article 7, risk of loss or damage to the Real Propertyfrom fire or other casualty shall remain on Seller until Closing.

 

7.1.2.                        Ifany of the improvements included in the Real Property shall be destroyed or damagedprior to the Closing, and if either the estimated cost of repair or replacementexceeds Five Hundred Thousand Dollars ($500,000.), or the damage permits thetermination of one or more of the Leases or, except to the extent affected bythe matters described in Exhibit K, causes loss of parking or access, Buyermay, by written notice given to Seller within twenty (20) days after receipt ofwritten notice from Seller of such damage or destruction, elect to terminatethis Agreement, in which event the rights, duties, obligations, and liabilitiesof all parties hereunder shall immediately terminate and be of no further forceor effect, and the Deposit shall forthwith be returned to Buyer. If Buyer doesnot elect to terminate this Agreement pursuant to this Section 7.1.2, orhas no right to terminate this Agreement (because the damage or destruction doesnot exceed $500,000.00 and does not permit the termination of one or more ofthe Leases), or there is no loss of parking or access other than such asresults from the matters described in Exhibit K hereof, and the sale of theProperty is consummated, Purchaser shall receive an assignment of all insuranceproceeds paid or payable to Seller by reason of such destruction or damageunder Seller’s insurance policies (less amounts of insurance theretoforereceived and applied by Seller to costs actually incurred for restoration), togetherwith a credit in the amount of Seller’s deductible. Seller shall not settle orrelease any damage or destruction claims without obtaining Buyer’s priorwritten consent in each case. All said insurance proceeds received by Seller bythe date of Closing shall be paid by Seller to Buyer at Closing. In addition,at Closing, Seller shall pay over to Buyer and assign to Buyer, all proceeds ofany rent loss insurance for the period of time commencing on the date ofClosing. If the amount of said casualty or rent loss

 

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insurance proceeds is notsettled by the date or Closing, Seller shall execute at Closing all proofs ofloss, assignments of claim, and other similar instruments in order that Buyerreceive all of Seller’s right, title, and interest in and under said insuranceproceeds.

 

7.2.                              Condemnation.

 

If, on or prior to theClosing, any portion of the Property except as set forth on Exhibit I issubjected to a bona fide threat of condemnation by a body having the power ofeminent domain or is taken by eminent domain or condemnation (or sale in lieuthereof), or if Seller has received notice that any condemnation action orproceeding with respect to the Property is contemplated by a body having thepower of eminent domain, Seller shall give Buyer immediate written notice ofsuch threatened or contemplated condemnation or of such taking or sale, andBuyer may by written notice to Seller given within thirty (30) days of thereceipt of such notice from Seller, elect to cancel this Agreement. If Buyerchooses to cancel this Agreement in accordance with this Section 7.2, therights, duties, obligations, and liabilities of the parties hereunder shallimmediately terminate and be of no further force and effect. If Buyer does notelect to cancel this Agreement in accordance herewith, this Agreement shallremain in full force and effect and the sale of the Property contemplated bythis Agreement, less any interest taken by eminent domain or condemnation, orsale in lieu thereof, shall be effected with no further adjustment and withoutreduction of the Purchase Price, and at the Closing, Seller shall assign,transfer, and set over to Buyer all of the right, title, and interest of Sellerin and to any awards that have been or that may thereafter be made for suchtaking. At such time as all or a part of the Property is subjected to a bonafide threat of condemnation and Buyer shall not have elected to terminate thisAgreement as hereinabove provided, Purchase shall be permitted to participatein the proceedings as if Buyer were a party to the action. Seller shall notsettle or agree to any award or payment pursuant to condemnation, eminentdomain, or sale in lieu thereof without obtaining Buyer’s prior written consentthereto in each case.

 

**ARTICLE 8**

**ESCROWAGENT**

 

8.1.                              Appointmentof Escrow Agent.

 

The parties herebydesignate Chicago Title Insurance Company to serve as escrow agent hereunder(herein “Escrow Agent”).

 

8.2.                              Dutiesof Escrow Agent.

 

Escrow Agent shalldeposit the Deposit, as received, in a federally insured account in a bank orother financial institution as directed by Buyer in the name of Escrow Agent asescrow agent. Escrow Agent shall have the right to disburse the Deposit inaccordance with the terms of this Agreement and any interest earned on thedeposit shall be disbursed by the Escrow Agent as directed by the Purchaser.The Escrow Agent shall have no liability to any party on account of EscrowAgent’s failure to disburse the Deposit if a dispute shall have arisen withrespect to the propriety of such disbursement; and, in the event of any disputeas to who is entitled to receive the Deposit the Escrow Agent may disburse itin accordance with the final order of a court of competent jurisdiction, or maydeposit the Deposit with such a court pending a final decision of suchcontroversy (and any reasonable attorney’s fees or legal costs paid or incurredby Escrow Agent shall be out-of-pocket disbursements for which the partiesshall be liable to reimburse

 

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Escrow Agent). Theparties hereto further expressly agree that Escrow Agent shall not be liablefor failure of any depository and shall be otherwise liable only in the eventof Escrow Agent’s gross negligence or willful misconduct.

 

8.3.                              Survivalof Termination.

 

Escrow Agent’sobligations to disburse or refund the Deposit, the obligation of the partieswith respect to the reimbursement of Escrow Agent’s out-of-pocket expenses andthe other provisions of this ARTICLE 8 shall survive any termination ofthis Agreement.

 

**ARTICLE 9**

**MISCELLANEOUS**

 

9.1.          Brokerage.

 

Seller and Buyerrepresent and warrant to each other that neither has dealt with a broker inconnection with this transaction except as set forth below. Seller and Buyereach warrant and represent to the other that, except as set forth below, noagent, broker, or finder has acted for the warranting party in connection withthis Agreement or is entitled to compensation on account of the transactionscontemplated hereby. Seller acknowledges that it has utilized the services of TrammellCrow Company in connection with this transaction, and shall pay all brokeragecommissions for the services of Trammell Crow Company. The obligations of theparties pursuant to this Section 9.1 shall survive Closing hereof and anytermination hereof.

 

9.2.          Remedies UponDefault.

 

9.2.1.                           Buyerand Seller agree that it would be impracticable and difficult to ascertain the actualdamages which would be suffered by Seller if Buyer wrongfully fails toconsummate the purchase and sale contemplated herein. Buyer and Seller havecarefully considered the loss to Seller occasioned by taking the Property offthe market as a consequence of the negotiation and execution of this Agreement,the Seller’s performance hereunder, and the other damages, general and special,which Buyer and Seller realize and recognize Seller will sustain but whichcannot be calculated with certainty. Based on all those considerations, Buyerand Seller have agreed that the damage to Seller from an uncured breach byBuyer of its obligation to complete Closing would reasonably be expected toequal the amount of the Deposit. Accordingly, if all conditions precedent toBuyer’s obligation to consummate the transactions herein contemplated have beenwaived by Buyer or satisfied, but Buyer does not timely complete Closing, andif Buyer fails to cure such breach or default within ten (10) days afterwritten notice thereof from Seller, the Seller shall as its sole and exclusive remedy,be entitled to be paid, and to retain, the Deposit as full and completeliquidated damages. Thereafter, this Agreement shall terminate, and the partieshereto shall have no further rights or obligations to each other under thisAgreement, either at law or in equity or otherwise, except that the obligationsof Buyer pursuant to the provisions of Section 2.1.1(c)(ii) shall continuein full force and effect.

 

9.2.2.                           Ifall conditions precedent to Seller’s obligations to consummate the transactionsherein contemplated have been waived by Seller or satisfied and if Buyer hasmaterially performed its covenants and obligations and is not otherwise inmaterial default hereunder, but Seller has breached its covenants, warranties,representations, agreements, undertakings, or obligations or is otherwise indefault hereunder and, as a result, is unable to consummate the

 

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purchase and salecontemplated herein at Closing and if Seller fails to cure such breach ordefault within thirty (30) days after notice thereof from Buyer, or if allconditions precedent to Buyer’s obligation to consummate the transactionsherein contemplated have not been waived by Buyer or satisfied, then the soleand exclusive remedies of Buyer shall be either to terminate this Agreement bygiving Seller written notice of termination, in which event the Deposit shallbe forthwith returned to Buyer, and the parties hereto shall have no furtherrights or obligations to each other under this Agreement, either at law or inequity or otherwise, or to waive such breach, failure to satisfy condition(s)precedent or default and bring an action against Seller for specificperformance of its obligations hereunder to sell and convey the Property toBuyer.

 

9.3.          Indemnification.

 

9.3.1.                       Buyerand Seller each agree to indemnify and hold the other harmless from and againstall claims, demands, debts, dues, liabilities, actions, causes of action,costs, and expenses (including reasonable attorneys’ fees) that may be assertedagainst or paid or incurred by the indemnified party for, on account of, or inconnection with any breach by the indemnifying party of its payment obligationsand/or warranties and representations contained in Section 9.1.

 

9.3.2.                       Theindemnity contained in this Section 9.3 shall survive Closing or anysooner termination of this Agreement.

 

9.4.          Amendment.

 

This Agreement may not bemodified, amended, or discharged, and no provision hereof may be waived, exceptby an instrument in writing and duly executed by the party against whomenforcement of the amendment, modification, discharge, or waiver is sought.

 

9.5.          Notices.

 

All notices,waivers, approvals, consents, demands, requests, or other communications (collectively,“Notices”) which may be or are required to be given, served, or sent by anyparty hereto to the other party hereto pursuant to, or in connection with, thisAgreement shall be in writing and shall be hand delivered, sent by FederalExpress, or similar overnight service, or mailed by first class, registered, orcertified mail, return receipt requested, or transmitted by telegram, telex, ortelecopy, addressed as follows:

 

If to Seller:                                                                                       EasternRetail Holdings Limited

Partnership

1600 Market Street, Suite1310 

Philadelphia, PA 19103-7501

att: Benjamin A. Suit 

Fax #215-446-8101

 

With a copy to:                                                             JohnS. Randolph, Jr., Esq. 

555 Croton Road 

Suite 120

King of Prussia, PA19406-3176 

Fax #610-337-8281

 

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If to Buyer:                                                                                    InlandReal Estate Acquisitions, Inc.

501C ManateeAvenue West 

Holmes Beach,Florida 34217 

Attn: StevenSanders 

Phone: (941)779-1000 

Fax: (941) 779-2000

 

With a copy to:                                                             TheInland Real Estate Group, Inc. 

Law Department 

2901 ButterfieldRoad

Oak Brook,Illinois 60523

Attn: Dennis K.Holland, Esq.

Phone: (630) 218-8000 

Fax: (630) 218-4900

 

If to Escrow Agent:                                        ChicagoTitle Insurance Company

171 N. ClarkStreet

Chicago, Illinois

Attn: Ms. NancyCastro

Phone: (312) 223-3909

Fax: (312) 223-2108

 

Each party may designateby Notice in writing, at least five (5) business days before its effectivedate, a new address or addressee to which any Notice may thereafter be given,served, or sent. Each Notice which is given, served, or sent in the mannerspecified in this Section 9.5 shall be deemed to have been given andreceived as of the date it is delivered or as of the date on which delivery isrefused or unclaimed by the addressee upon presentation. Notices may be given,served or sent by registered or certified mail, by express mail delivery or byfacsimile transmission.

 

9.6.          Assignment.

 

Buyer shall have theright to assign this Agreement without Seller’s consent to an entity in whicheither it, Inland Western Retail Real Estate Trust, Inc., or an affiliate ofeither is a managing member or general partner. Otherwise, Buyer shall have noright to assign this Agreement unless Seller’s prior written consent isobtained.

 

9.7.          Parties Bound.

 

All terms, conditions,covenants, warranties, representations, agreements, undertakings, andobligations hereunder shall be binding upon and inure to the benefit of theparties hereto and their respective heirs, legal representatives, successors,and assigns.

 

9.8.          Time ofEssence.

 

TIME IS OF THE ESSENCE OFTHIS AGREEMENT.

 

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9.9.          Waiver.

 

Neither the waiver byeither of the parties hereto of a breach of or a default under any of theprovisions of this Agreement, nor the failure of either of the parties, on oneor more occasions, to enforce any of the provisions of this Agreement or toexercise any right or privilege hereunder shall thereafter be construed as awaiver of any subsequent breach or default of a similar nature, or as a waiverof any of such provisions, rights, or privileges hereunder.

 

9.10.        Construction.

 

Buyer and Selleracknowledge that they both participated equally in the negotiation and draftingof this Agreement and that, accordingly, no court construing this Agreementshall construe it more stringently against one of such parties than against theother.

 

9.11.        Entire Agreement.

 

This Agreement, includingthe Exhibits which are an integral part hereof, constitutes the entireagreement between Seller and Buyer with respect to the transactionscontemplated herein, and it supersedes all prior oral or written agreements,commitments, or understandings with respect to the matters provided for herein.No agreements, representations, or warranties have been made by Buyer or Sellerexcept as specifically set forth in this Agreement, and in particular, no oralor written expression, or non-verbal conduct of a person intended by suchperson as a substitute for oral or written expression, will be attributed toBuyer or Seller as an agreement or a warranty or representation, except as specificallyset forth in this Agreement. The provisions of this Section 9.11 shallsurvive Closing or a termination of this Agreement.

 

9.12.        Pronouns.

 

All pronouns and anyvariations thereof shall be deemed to refer to the masculine, feminine, neuter,singular or plural, as the identity of the person or entity may require.

 

9.13.        Headings.

 

Article and Section headingscontained in this Agreement are inserted for convenience of reference only,shall not be deemed to be a part of this Agreement for any purpose, and shallnot in any way define or affect the meaning, construction or scope of any ofthe provisions hereof.

 

9.14.        Applicable Law.

 

This Agreement shall begiven effect and construed by application of the law of the Commonwealth ofPennsylvania without regard to principles of conflicts of laws.

 

9.15.        Covenant AgainstRecording.

 

This Agreement shall notbe recorded in any public record, and neither party shall cause to be recordeda notice of the existence of this Agreement, or any other writing asserting aninterest in the Property prior to the Closing. Any recordation in violation ofthis Section 9.15 shall relieve the non-recording party from any furtherobligation, and shall entitle that party to resort to the remedies provided in Section 9.2.

 

9.16.        Computation ofTime.

 

In computing any time forgiving Notices or other period of time prescribed or allowed by any provisionof this Agreement, the day of the act, event, or default from which thedesignated

 

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period of time begins torun shall not be included. The last day of the period so computed shall beincluded, unless it is a Saturday, Sunday, or a legal holiday in Philadelphia,Pennsylvania in which event the period runs until the end of the next day whichis not a Saturday, Sunday or legal holiday. Unless otherwise specified herein,all notice or other periods expire as of 5:00 p.m., eastern standard time onthe last day of the notice or other period.

 

9.17.*       *Counterparts.

 

This Agreement may beexecuted in counterparts by the parties, each of which shall be deemed anoriginal document, and all of which together shall be considered a singledocument.

 

9.18.        Waiver of Tender.

 

The tender of an executedDeed by Seller and the tender by Buyer of the Purchase Price at Closing arehereby mutually waived; but nothing herein contained shall be construed as awaiver of Seller’s obligation to deliver the Deed and/or of the concurrentobligation of Buyer to pay the Purchase Price at Closing.

 

9.19.        Condition ofProperty.

 

Except as explicitlyotherwise provided in the Agreement, the Property shall be conveyed to Buyer “ASIS, WHERE IS”, without any representation or warranty of title or conditions ofthe Property, either express or implied.

 

9.20.        Withholding onSales of Real Property

 

Seller is hereby advisingBuyer that South Carolina law and Georgia law will require Buyer to withholdfrom the sales proceeds an amount equal to state income taxes from the sale ofthe Property, and to remit the withheld amount to the applicable state taxingauthorities unless the Seller can qualify as a “deemed resident” of the statein question. Seller and Buyer will cooperate with each other to assure that thewithholding requirements, if any, of each state are complied with.

 

 

*(SignaturePage on Following Page)*

 

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IN WITNESS WHEREOF,Seller and Buyer have caused this Agreement to be executed and delivered as ofthe date first above written.

 
| WITNESSES:      | SELLER: |   | EASTERN RETAIL HOLDINGS  LIMITED PARTNERSHIP |
|-----------------|---------|--------|----------------------------------------------|
|            |    |   | By:                                          | LMRES Real Estate  Advisers, Inc.,  general partner |
|            |    |   |                                         |
|            |    |   |                                         |
|            |    |   |                                         |   | By: |
|            |    |   | Vice  President                              |
|            |    |   |                                         |
|            |    |   |                                         |
|            | BUYER:  |   | INLAND REAL ESTATE  ACQUISITIONS, INC.       |
|            |    |   |                                         |
|            |    |   | By:                                          | /s/ [ILLEGIBLE] |
| /s/ [ILLEGIBLE] |    |   |                                         | Its: | President |
|            |    |   |                                         |
|            |    |   |                                         |
|            | ESCROW  |   | CHICAGO TITLE INSURANCE                      |
|            | AGENT:  |   | COMPANY                                      |
|            |    |   |                                         |
|            |    |   | By:                                          |   |
|            |    |   |                                         | Its: |   |

 

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