Exhibit 10.480


 


Coram Plaza


Coram, NY


Amendment to Agreement


 


AMENDMENT TO AGREEMENT


 


THIS AMENDMENT TO
AGREEMENT (the “Amendment”) is made and entered into as of the 21st day of
October, 2004, by and between Coram Property Development
LLC, a Delaware limited liability company (“Seller”) and Inland Real Estate Acquisitions, Inc., an Illinois
corporation (“Buyer”).


 


WITNESSETH:


 


WHEREAS, Seller
and Buyer entered into that certain Agreement of Purchase and Sale dated September 20,
2004 (“the Agreement”) as amended by Letter Agreement dated October 15,
2004, for the sale and purchase of the property commonly known as Century Plaza
shopping center located in Coram, New York as legally described by the
Agreement (“the Property”).


 


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


 


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


 


1.                                       The
“Closing”, as defined in Paragraph 3.1 of the Agreement is hereby amended by
deleting “October 22, 2004” and inserting “November 5, 2004” therein.


 


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


 


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


 


Signatures on following page


 





















 


 


 


	
  BUYER:

  	
  Inland Real Estate Acquisitions,
  Inc., 

  as Illinois corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ G. Joseph Cosenza

  	
   

  
	
   

  	
  Name:

  	
  G. Joseph Cosenza

  	
   

  
	
   

  	
  Title:

  	
  President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SELLER:

  	
  Coram Property Development LLC,
  a

  Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Arthur W. Hooper,
  Jr.

  	
   

  
	
   

  	
  Name:

  	
  Arthur W. Hooper, Jr.

  	
   

  
	
   

  	
  Title:

  	
  Exec. Vice President

  	
   

  
							



 


2





















 


AGREEMENT OF PURCHASE AND SALE


 


BY AND
BETWEEN


 


CORAM PROPERTY DEVELOPMENT LLC


 


And


 


INLAND REAL ESTATE ACQUISITIONS, INC.


 


 


DATED AS OF September 20, 2004


 





















 


TABLE OF
CONTENTS


 


	
  ARTICLE 1 - Purchase
  and Sale

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  1.1

  	
  Covenant to Sell and
  Purchase

  	
   

  
	
   

  	
  1.2

  	
  Purchase Price; Escrow
  Agent

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2
  - Title and Condition of Property; Financing

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  2.1

  	
  State of
  Title

  	
   

  
	
   

  	
  2.2

  	
  Investigations;
  No Reliance on Documents; As-Is Sale

  	
   

  
	
   

  	
  2.3

  	
  Due
  Diligence Period

  	
   

  
	
   

  	
  2.4

  	
  Buyer’s Right to Terminate

  	
   

  
	
   

  	
  2.5

  	
  Prepayment of Existing
  Loans; Assumption of Existing F Property Loan

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3 - The Closing

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  3.1

  	
  Time and
  Place

  	
   

  
	
   

  	
  3.2

  	
  Closing

  	
   

  
	
   

  	
  3.3

  	
  Delivery of Possession

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4
  - Apportionments and Allocation of Expenses

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  4.1

  	
  Credits and Prorations

  	
   

  
	
   

  	
  4.2

  	
  Other
  Adjustments

  	
   

  
	
   

  	
  4.3

  	
  Transaction and Closing
  Costs

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5
  - Representations and Warranties

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  5.1

  	
  Seller’s
  Representations and Warranties

  	
   

  
	
   

  	
  5.2

  	
  Buyer’s Representations and
  Warranties

  	
   

  
	
   

  	
  5.3

  	
  Changed Circumstances

  	
   

  
	
   

  	
  5.4

  	
  Survival
  of Representations and Warranties

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6 -
  Additional Agreements

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  6.1

  	
  Operations Pending Closing

  	
   

  
	
   

  	
  6.2

  	
  Mutual Cooperation

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7 - Risk of Loss

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  7.1

  	
  Casualty

  	
   

  
	
   

  	
  7.2

  	
  Condemnation

  	
   

  



 


i





















 


	
  ARTICLE

  	
  8 - Remedies Upon
  Default

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  8.1

  	
  Time of Essence

  	
   

  
	
   

  	
  8.2

  	
  Default
  by Buyer

  	
   

  
	
   

  	
  8.3

  	
  Default
  by Seller

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9 -
  Agents and Commission

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  9.1

  	
  Brokers

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10 -
  Miscellaneous

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  10.1

  	
  Notices

  	
   

  
	
   

  	
  10.2

  	
  No Recording

  	
   

  
	
   

  	
  10.3

  	
  No Agency

  	
   

  
	
   

  	
  10.4

  	
  Severability

  	
   

  
	
   

  	
  10.5

  	
  Assignment and Succession

  	
   

  
	
   

  	
  10.6

  	
  Amendments and Waivers

  	
   

  
	
   

  	
  10.7

  	
  Further Assurances

  	
   

  
	
   

  	
  10.8

  	
  Absence of
  Third-Party Beneficiaries

  	
   

  
	
   

  	
  10.9

  	
  Governing Law;
  Jurisdiction

  	
   

  
	
   

  	
  10.10

  	
  Interpretation

  	
   

  
	
   

  	
  10.11

  	
  Entire
  Agreement

  	
   

  
	
   

  	
  10.12

  	
  Counterparts

  	
   

  
	
   

  	
  10.13

  	
  Expenses

  	
   

  
	
   

  	
  10.14

  	
  Consents

  	
   

  
	
   

  	
  10.15

  	
  Headings

  	
   

  
	
   

  	
  10.16

  	
  Waiver of Trial by Jury

  	
   

  
	
   

  	
  10.17

  	
  Confidentiality

  	
   

  
	
   

  	
  10.18

  	
  Drafts not an Offer to
  Enter into a Legally Binding Contract

  	
   

  
	
   

  	
  10.19

  	
  Exculpation

  	
   

  
	
   

  	
  10.20

  	
  Joint and Several

  	
   

  



 


ii





















 


AGREEMENT OF PURCHASE AND SALE


 


THIS
AGREEMENT OF PURCHASE AND SALE
(hereinafter referred to as the “Agreement”), dated as of this 20th
day of September, 2004, between Coram Property Development LLC, a Delaware
limited liability company, having an address at 1720 Post Road, Fairfield, CT
06824 (referred to as “Seller”), and Inland Real Estate Acquisitions,
Inc., an Illinois corporation, having an address at 2901 Butterfield Road, Oak
Brook, Illinois 60523 (hereinafter referred to as “Buyer”).


 


W1TNESSETH:


 


WHEREAS,
Seller is the owner of certain real property containing
approximately 24.01 acres of land known as Century Plaza and located in the
Town of Coram, County of Suffolk, State of New York (hereinafter referred to as
the “Real Property”).


 


WHEREAS,
Seller desires to sell to Buyer and Buyer desires to purchase
from Seller the Real Property subject to the terms and conditions hereinafter
provided; and


 


NOW,
THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties intending to be
legally bound, hereby agree as follows;


 


ARTICLE 1


 


Purchase
and Sale


 


1.1                               Covenant to Sell and Purchase,
Seller shall sell and convey to Buyer, and Buyer shall purchase from Seller,
the following:


 


(a)                                  the
Real Property owned by Seller, together with all of the tenements,
hereditaments and appurtenances appertaining thereto, including any estate, right,
title, interest, property, claim and demand of Seller in and to all streets,
alleys, rights-of-way, sidewalks, easements, and utility lines or agreements
(hereinafter collectively referred to the “Land”);


 


(b)                                 all
improvements, buildings and structures owned by Seller situate on the Land,
including the shopping center and other facilities located thereon, and any
apparatus, equipment, appliances and fixtures incorporated therein and used in connection
with the operation and occupancy thereof, to the extent owned by Seller (hereinafter
collectively referred to as the “Improvements”, and the Land and the Improvements
are hereinafter collectively referred to as the “Property” and individually as
a “Property”);


 


(c)                                  all
right, title and interest of Seller in and to the leases and other occupancy
agreements with the tenants set forth on Exhibit “B” attached hereto covering
all or any portion of the Real Property or the improvements to the extent they


 


1





















 


are in effect on the
Closing Date (as such term is defined in Section 3.1 hereof) (hereinafter
collectively referred to as the “Leases”), together with all current rents and
other sums due thereunder (hereinafter referred to as the “Rents”);


 


(d)                                 the
non-exclusive right to use all of Seller’s architectural and engineering plans,
specifications and drawings, soil studies, land surveys, environmental studies
and reports, hazardous waste studies and reports, market reports and surveys
which are in the possession of the Seller (if any) which relate to the Property
(hereinafter collectively referred to as the “Plans”);


 


(e)                                  all
utility, service, equipment, maintenance and other contracts relating to the
ownership, maintenance or use of the Property, as approved during the Due
Diligence Period (as hereinafter defined) by Buyer (hereinafter collectively
referred to as the “Property Contracts”);


 


(f)                                    to
the extent assignable, all permits, approvals and licenses issued by any
federal, state or local governmental authority or agency pertaining to the ownership,
operation, maintenance or use of the Land, including, without limitation, zoning,
site plan and subdivision approvals and developers’ agreements (hereinafter collectively
referred to as the “Permits”);


 


(g)                                 all
books, records and operating reports in Seller’s possession, which are
necessary to ensure continuity of operation of the Property (hereinafter
collectively referred to as the “Records”);


 


(h)                                 all
right, title and interest, if any, of Seller in and to the name of Century
Plaza; and


 


(i)                                     all
warranties and/or guaranties for materials and workmanship benefiting the
Purchaser, to the extent assignable by their terms (hereinafter collectively
referred to as the “Warranties”).


 


1.2                               Purchase Price; Escrow Agent.


 


(a)                                  Seller
is to sell and Buyer is to purchase all of the Property for the aggregate
Purchase Price of Thirty Eight Million five Hundred Thousand and 00/100
($38,500,000.00) DOLLARS (hereinafter referred to as the “Purchase Price”).


 


(b)                                 Upon
the execution and delivery of this Agreement by Seller and Buyer, Buyer shall
deposit with Chicago Title Insurance Company, 171 N. Clark Street, Chicago, IL
60601, the sum of Four Hundred and 00/100 ($400,000.00) DOLLARS (hereinafter
referred to as the “Good Faith Deposit”). This Agreement shall not be deemed to
be effective and binding upon the parties hereto unless and until the Good
Faith Deposit is so delivered. If the Good Faith Deposit is not paid
within two business days following complete execution of this Agreement by all
parties, this Agreement shall be null and void and no party shall be bound by
the terms hereof. The Escrow Agent shall hold the Good Faith Deposit in an
interest-bearing trust account maintained by the Escrow Agent at Chicago Title
Insurance Company, Chicago Office


 


2





















 


(hereinafter referred to
as the “Deposit Escrow Account”), in accordance with the terms and conditions
of this Agreement. The term “Deposit” shall mean and refer to the Good Faith
Deposit plus all accrued interest in the Deposit Escrow Account. The Deposit
shall be distributed in accordance with the terms of this Agreement.


 


(c)                                  At
the Closing (as such term is defined in Section 2.1 hereof), the Purchase
Price shall be paid by Buyer to Seller as follows:


 


(i)                                     By
delivery of the Deposit by the Escrow Agent to or at the direction of the
Seller;


 


(ii)                                  By
payment on the Closing Date, by wire transfer from the Closing Escrow of
immediately available funds to a bank account designated by Seller in writing
to Buyer prior to the Closing of the amount equal to the aggregate Purchase
Price, as such amount may be increased or decreased by prorations and
adjustments as herein provided, minus the Good Faith Deposit.


 


(d)                                 (i)                                     The
duties of the Escrow Agent are limited to those specifically provided for
herein and are purely ministerial in nature. Escrow Agent shall incur no
liability hereunder or otherwise except for its own gross negligence or willful
misconduct, and Seller and Buyer hereby release Escrow Agent from any liability
(other than as excepted herein) for any action taken by it hereunder or for any
failure or refusal to act hereunder or for any other matter. Unless Escrow
Agent shall have been guilty of gross negligence or willful misconduct, Seller
and Buyer, jointly and severally, agree to indemnify and hold harmless Escrow
Agent from and against any liability incurred by it as a result of its acting
as escrow Agent hereunder. Notwithstanding the immediately preceding sentence,
however, Buyer shall be solely responsible for the payment of all fees and
other compensation charged by the Escrow Agent for acting as such hereunder, including
the reimbursement of any costs and expenses incurred by the Escrow Agent in connection
with its acting as Escrow Agent hereunder.


 


(ii)                                  Escrow
Agent shall not be bound in any way or by any agreement or contract between
Seller or Buyer, whether or not it has knowledge thereof, and Escrow Agent’s
only duties and responsibilities shall be to hold the Deposit as escrow agent
and to dispose of the Deposit in accordance with the terms of this Agreement.
Without limiting the generality of the foregoing, Escrow Agent shall, in the
absence of its gross negligence or willful misconduct, have no responsibility
to protect the Deposit and shall not be responsible for any failure to demand,
collect or enforce any obligation with respect to the Deposit or for any
diminution in value of the Deposit for any cause. Escrow Agent may, at the
expense of Seller and Buyer, consult with counsel and accountants in connection
with its duties under this Agreement and Escrow Agent shall be fully protected
in any act taken, suffered or permitted by it in good faith in accordance with
the advice of such counsel and accountants. Escrow Agent shall not be obligated
to take any action hereunder which may, in its reasonable judgment, involve it
in any liability unless Escrow Agent shall have been furnished with reasonable
indemnity satisfactory in amount, form and substance to Escrow Agent.


 


3





















 


(iii)                               Escrow
Agent is acting as a stakeholder only with respect to the Deposit. If there is
any dispute as to whether Escrow Agent is obligated to disburse the Deposit or
as to whom the Deposit is to be delivered, Escrow Agent shall not make any
delivery, but in such event Escrow Agent shall hold the Deposit until receipt
by Escrow Agent of any authorization in writing, signed by all parties having
an interest in such dispute, directing the disposition of the Deposit. In the
absence of such authorization Escrow Agent shall hold the Deposit until the
final determination of the rights of the parties in any appropriate proceeding.
Escrow Agent shall have no responsibility to determine the authenticity or
validity of any notice, in accordance with any written notice, direction or
instruction given to it under this Agreement and believed by it to be
authentic. If such written authorization is not given, or proceedings for such
determination are not begun, within thirty (30) days after the dispute arises,
Escrow Agent may, but is not required to, bring an appropriate action or
proceeding for leave to deposit the Deposit with a court of the State of New
York. Pending such determination Escrow Agent shall be reimbursed for all costs
and expenses of such action or proceeding, including, without limitation,
attorneys’ fees and disbursements by the party determined not to be entitled to
the Deposit. Upon making delivery of the Deposit in the manner provided in this
Agreement, Escrow Agent shall have no further liability hereunder. In no event
shall Escrow Agent be under any duty to institute, defend or participate in any
proceeding which may arise between Seller and Buyer in connection with the
Deposit.


 


(iv)                              Escrow
Agent or any successor Escrow Agent may resign at any time by giving fifteen
(15) days’ prior notice of resignation to the other parties hereto, such
resignation to be effective on the date specified in such notice. In case the
office of Escrow Agent shall become vacant for any reason, Seller may appoint a
title company, bank or trust company that is reasonably acceptable to Buyer as
successor Escrow Agent to the retiring Escrow Agent, whereupon such successor
Escrow Agent shall succeed to all rights and obligations of the retiring Escrow
Agent as if originally named hereunder, and the retiring Escrow Agent shall
duly transfer and deliver to such successor Escrow Agent the funds and records,
including without limitation the Deposit, held by the retiring Escrow Agent
hereunder.


 


(e)                                  Escrow
Agent shall execute this Agreement solely for the purpose of being bound by the
provisions of Sections l.2(b) and (d) hereof and to acknowledge its receipt of
the Good Faith Deposit.


 


4





















 


ARTICLE 2


 


Title
and Condition of Property; Financing


 


2.1                               State of Title.


 


(a)                                  Title
shall be conveyed to Buyer at Closing in fee simple by New York form bargain
and sale deed with covenants against grantor’s acts and shall be insurable at
regular rates free and clear of any and all liens, claims, encumbrances,
mortgages, deeds of trust and security interests (except for the lien of real
estate taxes not yet due and payable), but subject to all Permitted Exceptions
(as such term is defined in Section 2.1(c) hereof).


 


(b)                                 Buyer,
the cost and expense thereof to be equally shared by Seller and Buyer, shall
obtain a preliminary title search (hereinafter referred to as the “Title
Commitment”) from Chicago Title Insurance Company (in such capacity,
hereinafter referred to as the “Title Company”), pursuant to which the Title
Company has committed to insure (upon the payment of a requisite premium at
regular rates) that Buyer shall own good and indefeasible fee simple title to
the Property as described in Section 2.1(a) of this Agreement. Buyer shall
forward a complete copy of the Title Commitment to Seller within five (5)
business days after Buyer’s receipt of same. Buyer shall have until 5 p.m. on October 15,
2004 (hereinafter referred to as the “Due Diligence Period”) within which to
object, by written notice to Seller, to any exceptions to title set forth in
the Title Commitment. Seller, the cost and expense thereof to be shared equally
by Seller and Buyer, shall cause reputable surveyors licensed in the State of
New York, to prepare and deliver an ALTA as-built survey of the Property (to
specifications approved by Buyer) (the “Survey”) to Buyer and Seller and the
Title Company no later than the expiration of the Due Diligence Period. Buyer
shall have until 5:00 p.m. on the last day of the Due Diligence Period within
which to notify Seller in writing that Buyer objects to any state of facts as
shown on any Survey, which written notice must be given contemporaneously with
any written notice given as to exceptions to title referred to above. If Buyer
notifies Seller in writing that Buyer objects to any exceptions to title and/or
to any state of facts in the Survey (hereinafter referred to as a “Title
Objection Notice”), Seller shall have ten (10) business days after receipt of
such notification to notify Buyer (i) that Seller will remove the Title
Objection Notice exceptions from title or, if applicable, remove the matters as
shown on the Survey on or before the Closing or (ii) that Seller elects not to
cause such exceptions or matters to be removed. If Seller fails to notify Buyer
within such ten (10) business days, Seller shall be deemed to have given notice
under clause (ii) above. If Seller gives (or is deemed to have given) Buyer
notice under clause (ii) above, Buyer shall have five (5) business days from
the date of receipt of such notice (or in a case where Seller gives no such
notice, from the last date on which such notice could have been given) in which
to notify Seller and the Escrow Agent (x) that Buyer will nevertheless proceed
with the transactions contemplated by this Agreement and take title to the
Property subject to such exceptions and such matters without reduction of the
Purchase Price or (y) that Buyer will terminate this Agreement. If Buyer does
not


 


5





















 


provide any notice
contemplated by the immediately preceding sentence, Buyer shall be deemed to
have elected to take title to the Property pursuant to clause (x) above. If
this Agreement is terminated pursuant to the provisions of Section 2.1(b)(y),
(i) this Agreement shall terminate and be of no further force and effect, (ii)
no party hereto shall have any further rights or obligations hereunder (except
for representations, warranties and/or any indemnity obligations of any party
pursuant to the provisions of this Agreement which expressly survive
termination of this Agreement), and (iii) the Escrow Agent shall immediately
return the Deposit to Buyer.


 


(c)                                  The
term “Permitted Exceptions” as used herein shall mean (i) the lien of real
estate taxes, assessments and water and sewer charges not yet due and payable,
(ii) all matters set forth in the Title Commitment and approved by Buyer or deemed
approved by Buyer as provided hereinabove, provided, however, matters set forth
in the Title Commitment for which the Standards of Title of the New York Bar Association
recommend no curative action be taken shall be deemed approved (iii) intentionally
deleted, (iv) all existing building, zoning and other city, state, county or federal
laws, codes and regulations affecting the Property, (v) any existing general
utility easements serving the Property (provided that such easements do not
subject any owner of such Property to obligations other than are usual and
customary in similar easements and provided further that no Improvements (other
than parking areas and access aisles) are constructed on such easements), (vi)
such state of facts as would be shown by accurate survey of the Property, (vii)
the Leases, and (viii) any title exception created directly by any act or
omission of Buyer or its representatives, agents, employees or invitees.


 


(d)                                 Seller’s
obligation to convey title to the Property is solely as set forth in Section 2.1(a)
hereof. To the extent that Buyer may elect, at its option, to request the Title
Company to issue endorsements to the most current form of ALTA owner’s title insurance
policy as currently and customarily used in the State of New York, the issuance
of such endorsements shall be shared equally by Buyer and Seller, and (to the
extent that Buyer has not terminated this Agreement during the Due Diligence
Period in accordance with the terms of Section 2.4 hereof) the issuance of any such endorsements shall not be a
pre-condition to Buyer’s obligation to consummate the transactions contemplated
by this Agreement.


 


2.2                               Investigations; No Reliance on
Documents; As-Is Sale.


 


(a)                                  Except
as expressly set forth in this Agreement, neither Seller nor Buyer makes any
representations or warranties as to the truth, accuracy or completeness of any
materials, data or information delivered by such party or its brokers or agents
to the other party in connection with the transaction contemplated hereby
Seller and Buyer acknowledge and agree that all materials, data and information
delivered by the other party in connection with the transactions contemplated
hereby are provided to the other party as a convenience only and that any
reliance on or use of such materials, data or information shall be at the sole
risk of the party receiving such materials, data or information from the other
party, except as otherwise expressly stated herein. Neither Seller, nor any
affiliate of Seller, nor the persons or entities which prepared any report or


 


6





















 


reports (unless Buyer has
obtained reliance letters from any such persons or entities or has established
legal privity with such persons or entities by some other means) delivered by
Seller to Buyer, shall have any liability to Buyer for any
inaccuracy in or omission from any such reports.


 


(b)                                 Except
as expressly set forth in this Agreement and in any documents delivered by
Seller at the Closing, it is understood and agreed that Seller is not making
and has not at any time made any warranties or representations of any kind or
character, express or implied, with respect to the Property, including, but not
limited to, any warranties or representations as to habitability,
merchantability or fitness for a particular purpose, or as to the state of
title, physical condition, environmental condition and/or zoning of the
Property.


 


BUYER ACKNOWLEDGES AND
AGREES THAT UPON CLOSING SELLER SHALL SELL AND CONVEY OR ASSIGN TO BUYER AND
BUYER SHALL ACCEPT THE Property “AS IS, WHERE IS, WITH ALL
FAULTS” AND WITH ALL LATENT OR PATENT DEFECTS, EXCEPT TO THE EXTENT
EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT OR THE DOCUMENTS EXECUTED AND
DELIVERED BY SELLER AT THE CLOSING. BUYER HAS NOT RELIED AND WILL NOT RELY ON,
AND SELLER IS NOT LIABLE FOR OR BOUND BY ANY EXPRESS OR IMPLIED WARRANTIES,
GUARANTIES, STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO ANY
PROPERTY OR RELATING THERETO MADE OR FURNISHED BY SELLER, OR ANY REAL ESTATE
BROKER OR AGENT PURPORTING TO REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN,
DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, UNLESS SPECIFICALLY SET FORTH IN
THIS AGREEMENT OR DOCUMENTS EXECUTED AND DELIVERED BY SELLER AT THE CLOSING.
BUYER ALSO ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS AND TAKES INTO ACCOUNT
THAT THE PROPERTY IS BEING SOLD “AS IS, WHERE IS, WITH ALL
FAULTS”. IN ADDITION, SELLER WILL HAVE NO OBLIGATION TO PROVIDE ANY
REPAIRS, ALTERATIONS OR IMPROVEMENTS TO THE PROPERTY AS A CONDITION PRECEDENT
TO BUYER’S OBLIGATION TO CLOSE TITLE. IN FURTHERANCE OF THE FOREGOING AND NOT
IN LIMITATION THEREOF, BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT EXCEPT
AS SPECIFICALLY SET FORTH HEREIN TO THE CONTRARY, BUYER IS NOT RELYING ON ANY
REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, WHETHER ORAL OR WRITTEN,
EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, FROM SELLER OR ANY PARTNER, MEMBER,
MANAGER, SHAREHOLDER, OFFICER OR DIRECTOR OF SELLER OR FROM ANY EMPLOYEE,
ATTORNEY, AGENT OR REPRESENTATIVE OF SELLER AS TO ANY MATTER CONCERNING ANY
PROPERTY OR ANY MATERIALS PROVIDED BY THE SELLER PURSUANT TO SECTION 2.3
HEREOF, INCLUDING WITHOUT LIMITATION: (i) THE QUALITY, NATURE, HABITABILITY,
MERCHANTABILITY, USE, OPERATION, VALUE, MARKETABILITY, ADEQUACY OR PHYSICAL
CONDITION OF THE PROPERTY OR ANY ASPECT OR PORTION THEREOF, INCLUDING, WITHOUT


 


7





















 


LIMITATION, STRUCTURAL
ELEMENTS, FOUNDATIONS, ROOFS, APPURTENANCES, ACCESS, LANDSCAPING, PARKING
FACILITIES, ELECTRICAL, MECHANICAL, HVAC, PLUMBING, SEWAGE, UTILITY SYSTEMS,
FACILITIES, APPLIANCES, SOILS, GEOLOGY OR GROUNDWATER, (ii) THE DIMENSIONS OR
LOT SIZE OF ANY PROPERTY OR THE SQUARE FOOTAGE OF THE IMPROVEMENTS THEREON OR
OF ANY TENANT SPACE THEREIN, (iii) THE DEVELOPMENT OR INCOME POTENTIAL, OR
DEVELOPMENT OR OTHER RIGHTS OF OR RELATING TO PROPERTY, (iv) PROPERTY’S
INSURABILITY, MERCHANTABILITY, FITNESS, SUITABILITY, OR ADEQUACY FOR ANY
PARTICULAR PURPOSE, (v) THE ZONING OR OTHER LEGAL STATUS OF PROPERTY OR ANY
OTHER PUBLIC OR PRIVATE RESTRICTIONS ON THE USE OF PROPERTY, (vi) THE
COMPLIANCE OF THE PROPERTY OR ITS OPERATION WITH ANY APPLICABLE CODES, LAWS,
REGULATIONS, STATUTES, ORDINANCES, COVENANTS, CONDITIONS OR RESTRICTIONS OF ANY
GOVERNMENTAL AUTHORITY OR OF ANY OTHER PERSON OR ENTITY (INCLUDING, WITHOUT
LIMITATION, THE AMERICANS WITH DISABILITIES ACT), (viii) THE ABILITY OF BUYER
TO OBTAIN ANY GOVERNMENTAL APPROVALS, LICENSES OR PERMITS NECESSARY FOR BUYER’S
INTENDED USE OR DEVELOPMENT OF THE PROPERTY, (viii) THE PRESENCE OR ABSENCE OF
HAZARDOUS MATERIALS ON, IN, UNDER, ABOVE OR ABOUT THE PROPERTY OR ANY ADJOINING
OR NEIGHBORING PROPERTY, (ix) THE DESIGN, CONSTRUCTION OR THE QUALITY OF ANY
LABOR AND MATERIALS USED IN THE CONSTRUCTION OF ANY IMPROVEMENTS, (x) THE
CONDITION OF TITLE TO THE PROPERTY, (xi) THE LEASES, CONTRACTS OR ANY OTHER
AGREEMENTS AFFECTING THE PROPERTY OR THE INTENTIONS OF ANY PARTY WITH RESPECT
TO THE NEGOTIATION AND/OR EXECUTION OF ANY LEASE OR CONTRACT WITH RESPECT TO
THE PROPERTY, OR THE APPLICABLE SELLER’S OWNERSHIP, DEVELOPMENT OR OPERATION OF
THE PROPERTY OR (xii) THE ECONOMICS OF, OR THE INCOME AND EXPENSES, REVENUE OR
EXPENSE PROJECTIONS OR OTHER FINANCIAL MATTERS, RELATING TO THE PROPERTY, OR
THE OPERATION THEREOF. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER
AGREES THAT BUYER IS NOT RELYING ON ANY REPRESENTATION OR WARRANTY OF SELLER,
WHETHER SUCH REPRESENTATION OR WARRANTY IS IMPLIED, PRESUMED OR EXPRESSLY
PROVIDED, ARISING BY VIRTUE OF ANY STATUTE OR COMMON LAW. BUYER AGREES THAT
SELLER IS UNDER NO DUTY TO MAKE ANY INQUIRY REGARDING ANY
MATTER THAT MAY OR MAY NOT BE KNOWN TO ANY SELLER OR TO CONFIRM, INVESTIGATE OR
QUESTION THE ADEQUACY OF ANY APPRAISAL, REPORT, ANALYSES OR STUDY OF ANY ASPECT
OF THE PROPERTY PREPARED OR OBTAINED BY SELLER.


 


(c)                                  Buyer’s
acceptance of Seller’s deeds for the Property shall be deemed to be full
performance by Seller of, and will discharge Seller from, all liabilities and
obligations under this Agreement, and thereafter Seller shall have no liability
or obligation to Buyer or to any subsequent owner of the Property with respect
to the Property, nor any liability or obligation to any other person, firm,
corporation or public


 


8





















 


body with respect to
actions or claims which arise on or after the Closing Date with respect to the
Property. Upon transfer of the Property, Buyer shall be deemed to have accepted
and shall be subject to the terms, conditions and other obligations applicable
to the owner of, and relating to, the Property which are set forth in any
governmental approvals relating to the construction, use or occupancy of the
Property, including without limitation, site plan approvals and developer’s
agreements, whether or not same shall have been recorded.


 


(d)                                 Buyer,
in consideration for the promises and covenants contained in this Agreement,
and for other good and valuable consideration, the receipt of which is hereby
acknowledged, as of Closing does hereby release and forever discharge Seller
from any and all actions, causes of action, suits, controversies, claims and
demands whatsoever, in law and in equity, for or on account of injuries claimed
to have been received by Buyer in connection with the condition of the Property
as of the date of Closing, including without limitation the geophysical and
environmental condition on, or originating from, the Property. It is expressly
understood and agreed by Buyer and Seller that this release specifically
applies to any claims made in connection with any possible environmental
contamination on, or originating from, the Property, and/or any violation of
the Environmental Laws (as such term is hereinafter defined) by the Seller in
connection with the Property. For the purposes of this release, the term “environmental
contamination” shall include any type of environmental orders, statutes or
regulations applicable to the Property, including without limitation to the
Comprehensive Environmental Response, Compensation and Liability Act, the
Superfund Amendments and Reauthorization Act, the Federal Clean Water Act, the
Spill Compensation and Control Act, the Federal Water Pollution Control Act,
the Underground Storage of Hazardous Substances Act, the Resource Conservation
and Recovery Act and all other applicable federal, state and/or local environmental
acts (hereinafter collectively referred to as the “Environmental Laws”) as the
same are currently in force or may be later amended, as well as any other
claims, suits or actions arising from or related to the environmental condition
of the Property. By accepting title to the Property at Closing, Buyer shall be
deemed to have agreed that Buyer: (i) is satisfied with the environmental
conditions of the Property (regardless of whether the Property complies with
all Environmental Laws or other laws, orders, statutes or regulations affecting
the Property) and that Buyer shall have been given the opportunity to
determine, to its own satisfaction, that the Property complies with all
Environmental Laws or other laws, orders, statutes or regulations affecting the
Property; (ii) accepts that Property in an “AS IS” condition without relying on
any verbal or written statement or representation relating to the Property that
may have been made by the Seller (except as expressly set forth in this
Agreement); and (iii) shall be solely responsible for any environmental
contamination on, or originating from, the Property which is not disclosed in
the Environmental Assessments to be obtained by Buyer pursuant to Section 2.3
hereof or which otherwise occurs after the Closing Date due to the actions or
inactions of the Buyer, its successors and/or assigns or any third party, and
Buyer agrees that it will be solely responsible for any such environmental
contamination. It is understood and agreed that Seller does not admit any
liability for any environmental contamination, and liability on the part of
Seller is expressly denied.


 


9





















 


(e)                                  The
provisions of this Section 2.2 
shall survive Closing or termination of this Agreement.


 


2.3                               Due Diligence Period. Buyer shall have
until 5 p.m. (prevailing New York City, New York time) on the last day of the
Due Diligence Period to inspect the Property, to conduct and prepare studies,
tests and surveys and to investigate and review any and all matters relating to
the Property which Buyer shall reasonably deem appropriate, including, without
limitation, zoning matters, environmental matters, the Plans, the Property
Contracts, the Permits, the Leases, the Records, the Title Commitment and the
condition of the Property. In connection with Buyer’s review of the Property,
Seller, respectively, shall deliver to Buyer within five (5) business days
after the signing of this Agreement copies of the documents described on the
Due Diligence Checklist attached hereto as Exhibit “C” and made a part hereof,
including copies (if any) of (i) the most recent tax bills, (ii) the most
recent title report and survey of the Property as are available, (iii) each of
the Leases and any amendments thereto, (iv) all Property Contracts, (v) all
Plans, (vi) all Permits, (vii) all Records, (viii) all Warranties, (ix) all environmental
reports and studies relating to the Property and (x) all unrecorded developer’s
agreements. All of the foregoing tests, investigations and studies shall be conducted
by Buyer or its agents at Buyer’s sole risk, cost and expense. Prior to any
such entry unto the Property, Buyer shall afford Seller not less that one (1)
business day’s advance written notice of such inspection. Buyer covenants and
agrees that none of its tests, investigations or studies shall materially
interfere with or disrupt in any manner whatsoever (hereinafter referred to
collectively as “Interference”) (x) the operation of any Property or any part
thereof by any Seller or any tenant under any Lease or (y) the conduct of
business by any Seller or any tenant under any Lease. Prior to entry on any Property
by Buyer, Buyer shall deliver to Seller certificates of insurance (prepared on
an insurance certificate form known as an “Accord 27”) from an insurance
company or companies reasonably satisfactory to Seller, naming Seller and any
other party requested by Seller as additional insureds which certificates shall
evidence policies of insurance insuring against claims for bodily injury, death
and property damage with confirmed single limit amounts of $1,000,000.00 and
aggregate amounts of $2,000,000.00. So long as no Interference results therefrom,
Seller will provide Buyer and its agents with access to all structures located
on the respective Property to permit Buyer to fully conduct its due diligence
activities. Buyer shall repair and restore any damage caused to the Property as
a result of entry by Buyer or its agents or representatives. Buyer shall
defend, indemnify and hold Seller harmless from and against any and all
damages, losses, liabilities, costs and expenses (including, without
limitation, reasonable attorneys’ fees and court costs) suffered or incurred by
Seller or any tenant under any Leases with respect to all claims for personal
injury, death or for loss or damage to property in connection with Buyer’s or
its agents’, representatives’, contractors’ or subcontractors’ entry onto the
Property and/or performance of such studies, tests and surveys. Buyer’s indemnification
obligations under this Section 2.3 shall survive the Closing or termination
of this Agreement.


 


2.4                               Buyer’s Right to Terminate. Buyer
shall have until 5:00 p.m. (prevailing New York City, New York time) on the
last day of the Due Diligence Period within which to notify Seller and Escrow
Agent in writing (hereinafter referred to as a


 


10





















 


“Termination Notice”), of
its election to terminate this Agreement in its entirety (but not otherwise,
except as set forth in Section 2.5(b)(ii) hereof), for any reason or for
no reason whatsoever. If this Agreement is terminated pursuant to the
provisions of this Section 2.4, (i) this Agreement shall terminate and be
of no further force and effect, (ii) no party hereto shall have any further
rights or obligations hereunder (except for representations, warranties and/or
any indemnity obligations of any party pursuant to the provisions of this
Agreement which expressly survive termination of this Agreement), and (iii) the
Escrow Agent shall immediately return the Deposit to Buyer. If Buyer shall not
deliver an appropriate Termination Notice within the time period set forth
herein, Buyer shall be deemed to have accepted the results of its due diligence
examination of the Property, this Agreement shall remain in full force and
effect and Buyer shall have no further right to cancel or terminate this
Agreement, except as otherwise expressly provided herein. If Buyer terminates
this Agreement, Buyer shall promptly return all due diligence material provided
by Seller.


 


2.5                               Prepayment of Existing Loans.


 


Buyer hereby acknowledges
that the Property is currently subject to that certain mortgage loan generally
described on Exhibit “D” attached hereto and made a part hereof
(hereinafter collectively referred to as the “Existing Loan”) made by
the Lender (hereinafter referred as the “Existing Lender”) identified on
Exhibit “D” hereto. Buyer and Seller hereby acknowledge and agree that
Buyer is not assuming the obligations of the Seller under the Existing Loan,
and that all principal and accrued and unpaid interest under the Existing Loan
shall be prepaid out of the proceeds of the Closing of the transactions
contemplated hereby. Notwithstanding the foregoing, Seller agrees to reasonably
cooperate with Buyer’s efforts to cause the Existing Lender to assign the
Existing Loan documents to Buyer’s lender (if any) at Closing.


 


ARTICLE 3


 


The
Closing


 


3.1                               Time and Place. Consummation of the transactions
contemplated hereby (hereinafter referred to as the “Closing”) shall take place
using the services of Chicago Title Insurance Company (“Chicago Title”), as
escrow agent. Seller and Buyer shall deliver all of their respective closing
documents in escrow to Chicago with instructions on the distribution of the
documents at such time as Chicago Title has wired to Seller the net funds due
Seller in accordance with the closing statement agreed upon between the parties.
The Closing shall take place on a date to be agreed upon by Seller and Buyer (hereinafter
referred to as the “Closing Date”), which date shall not be later than October 22,
2004.


 


3.2                               Closing.
At the Closing (or such earlier date as set forth herein), Seller and Buyer
shall take such actions and deliver such agreements and other instruments and documents
necessary or appropriate to effect the transactions contemplated by this Agreement
in accordance with the terms hereof, including, without limitation, the following:


 


11





















 


(a)     Buyer
shall deliver to Seller the portion of the Purchase Price payable pursuant to Section 1.2(c)
hereof and the Escrow Agent shall deliver the Deposit to the Seller.


 


(b)    Seller
and Buyer shall execute and deliver closing statements each in a form
reasonably acceptable to Seller, Buyer and their respective counsel.


 


(c)     Seller
shall convey and transfer to Buyer good and insurable title to the Property,
subject to the Permitted Exceptions, by executing, acknowledging and delivering
to Buyer (the “Deed”).


 


(d)    Seller
and Buyer shall execute and deliver assignment and assumption agreements in
substantially the form attached hereto as Exhibit “E” and made a part hereof,
duly executed and acknowledged by Seller and Buyer and in proper form for
recording (if necessary), pursuant to which Seller will assign to Buyer all of
Seller’s rights, title and interest as lessor in and to the respective Leases,
and pursuant to which Buyer will assume all obligations as lessor under the
Leases. Seller will simultaneously deliver to Buyer an original executed copy
of each of the Leases and all guarantees of the Leases and a letter, duly
executed by the respective Seller, in form satisfactory to Buyer, addressed to
each of the tenants under the Leases advising the tenants of the assignment of
the Leases.


 


(e)     Seller
shall cause each commercial tenant under each Lease to deliver to Buyer a
written tenant estoppel certificate in the form required under each such Lease,
or if no form is specified and if no form is generally used by a tenant in
similar transactions, in substantially the form attached hereto as Exhibit “F”
and made a part hereof.


 


(f)       Seller
shall deliver to Buyer a rent roll for the Property owned by it containing a schedule of
the Rents and other charges and payments due from tenants under the Leases,
including without limitation any which are in arrears, all dated as of the
Closing Date and certified by Seller as true and correct.


 


(g)    Seller
shall deliver to Buyer an affidavit of title in customary form, duly executed
and acknowledged by Seller.


 


(h)    Seller
and Buyer shall deliver to the Title Company all documents, affidavits and
instruments reasonably required by the Title Company and in a form reasonably
acceptable to Seller, Buyer, their respective counsel and the Title Company.


 


(i)        Seller
shall deliver to Buyer a limited liability company certificate, satisfactory to
the Title Company and Buyer, with respect to the authority of Seller to approve
this Agreement and the transactions contemplated hereby.


 


12





















 


(j)        Buyer
shall deliver to Seller a corporate resolution, satisfactory to the Title
Company and Seller, with respect to the authority of Buyer to approve this
Agreement and the transactions contemplated hereby.


 


(k)     Seller
shall deliver to Buyer all Plans, Property Contracts, Permits, Records and all
other records pertinent to the ownership, operation, maintenance or use of the
Property which are in such Seller’s possession. Seller and Buyer shall execute
and deliver an assignment and assumption agreement, pursuant to which Seller
will assign to Buyer all of such Seller’s right, title and interest in the
Plans, Property Contracts, Permits and Records, and pursuant to which Buyer
will assume all obligations with respect thereto.


 


(1)     Seller
shall deliver to Buyer an affidavit stating that such Seller is not a “foreign
person” as that term is defined pursuant to the Foreign Investment in Real
Property Tax Act of 1980 (hereinafter referred to as “FIRPTA”).


 


(m)  Seller
shall execute a notice to the Tenants of the Property in substantially the form
attached hereto as Exhibit “G”, which notices shall be delivered to Buyer at
Closing for Buyer to forward to the respective Tenants.


 


(n)    The
parties shall execute and deliver to each other any other instrument or
instruments (i) required to be delivered under any provision of this Agreement
and (ii) reasonably requested by the attorney for either party in connection
with this transaction.


 


(o)    To
the extent obtained by Buyer (with Seller’s cooperation in accordance with Section 6.2(c)
hereof), and to the extent paid for on before Closing by Buyer, Seller shall
cause all Warranties to be transferred to the name of Buyer.


 


(p)    To
the extent obtained by Seller in accordance with Section 6.2(c) hereof,
estoppel certificates from parties to any reciprocal easement or similar
agreement affecting the Property (hereinafter referred to as the “REA Estoppels”)
in either the form prescribed by any such document or in substantially the same
form attached hereto as Exhibit “H”.


 


(q)    Seller
shall obtain from The Stop & Shop Supermarket Company LLC (formerly know as
The Stop & Shop Supermarket Company) (“Stop & Shop”) a waiver of the
right of first offer set forth in Article XX of that certain lease
agreement between Seller and Stop & Shop, dated December 30, 2002,
being assigned as part of the Closing in the form of Exhibit “I”.


 


(r)       Seller
shall execute and deliver to Buyer’s auditors, KPMG, an audit letter in the
form attached as Exhibit J, attached hereto and made a part hereof. In the
event the audit of Property operations has not been performed by KPMG at or
prior to the date of Closing, Seller agrees to


 


13





















 


execute and
deliver the audit letter at such time as the audit is performed. The terms of
this provision shall survive Closing.


 


3.3                               Delivery of Possession. Possession of
the Property shall be delivered to Buyer at the Closing upon execution and
delivery of the Deed free of all tenancies and occupants, except with respect
to tenants under the Leases.


 


ARTICLE 4


Apportionments
and Allocation of Expenses


 


4.1                               Credits and Prorations. Subject to any
provision of this Agreement to the contrary, the following items shall be
apportioned for the calendar year in which the Closing occurs as of midnight on
the calendar day immediately preceding the Closing: (a) all Rents, revenues and
other income, if any, from the Property, (b) real estate taxes; (c) water and
sewer charges and other utility charges, if any, (d) all security deposits under
Leases shall be credited to Buyer at Closing, and (e) any other income, expense
or other items relating to the Property which is customarily prorated between a
purchaser and a seller of real property in the counties in which the Property
is located.


 


4.2                               Other Adjustments.


 


(a)                                  Notwithstanding
anything contained in Section 4.1 hereof, any taxes paid at or prior to
Closing shall be prorated based upon the amounts actually paid. If taxes and
assessments due and payable during the year of Closing have not been paid before
Closing, Seller shall be charged at Closing an amount equal to that portion of
such taxes and assessments, plus interest and penalties, if any, which relate
to the period before Closing and Buyer shall pay the taxes and assessments
prior to their becoming delinquent. Any such apportionment made with respect to
a tax year for which the tax rate or assessed valuation, or both, have not yet
been fixed shall be based upon the tax rate and/or assessed valuation last
fixed. To the extent that the actual taxes and assessments for the current year
differ from the amount apportioned at Closing, the parties shall make all
necessary adjustments by appropriate payments between themselves within thirty
(30) days after such amounts are determined following Closing, subject to the
provisions of Section 4.2(b) of this Agreement.


 


(b)                                 Except
as otherwise provided herein, any expense amount which cannot be ascertained
with certainty as of Closing (and for which Buyer and Seller are unable to
adjust and/or allocate at or prior to Closing) shall be prorated on the basis
of the parties’ reasonable estimates of such amount, and shall be the subject
of a final proration ninety (90) days after Closing, or as soon thereafter as
the precise amounts can be ascertained. Buyer shall promptly notify Seller when
it becomes aware that any such estimated amount has been ascertained. Once all
revenue and expense amounts have been ascertained, Buyer shall prepare, and
certify as correct, a final proration statement which shall be subject to
Seller approval. Upon the acceptance and approval by Seller of any final
proration statement submitted by Buyer, such statement shall be conclusively deemed
to be accurate and final.


 


14





















 


(c)                                  All
rents, including without limitation all basic rent, additional rent, CAM
charges, tenant real estate tax reimbursements and all amounts due and payable
to the landlord under the Leases (hereinafter collectively referred to as “Rents”),
shall be prorated and adjusted as of the Closing Date based upon the number of
days in the month in which the Closing occurs. In furtherance of the foregoing,
and in furtherance of the desire of Buyer and Seller to negotiate appropriate
credits for all tenant matters, Seller shall prepare all CAM reconciliations
for calendar year 2004 prior to the end of the Due Diligence Period, and shall
deliver copies thereof to Buyer. Based upon (i) the overpayments and
underpayments shown on the CAM reconciliations (ii) the delinquency, if any, at
such time in the payment of Rent by any Tenants and (iii) the existence, if
any, of any unpaid tenant improvements or leasing commissions or any unexpired
free rent periods (hereinafter collectively referred to as “Tenant Concessions”)
Buyer and Seller shall negotiate in good faith with each other appropriate
credits to one another to be allocated at Closing in connection with the Leases.
Such good faith negotiations shall include negotiations with respect to Rents
which remain unpaid on and as of the anticipated Closing Date, as well as
allocation of responsibility for the economic effect of the payment or
realization of Tenant Concessions, it being the intent of the Buyer and Seller
to negotiate fair and equitable credits such that (i) Seller will have no claims
against Tenants following Closing for past due Rent, CAM payments, other additional
rent and Tenant Concessions, (ii) Seller will owe no additional payments to Buyer
in respect of Rent, CAM payments, other additional rent and Tenant Concessions,
and (iii) Buyer will owe no additional payments to Seller in respect thereof.


 


(d)                                 All
common area expenses, maintenance, taxes other than real estate taxes (such as
rental taxes), other expenses incurred in operating the Property, and any other
costs incurred in the ordinary course of business or in the management and operation
of the Property, shall be prorated on the basis of the actual number of days elapsed
(monthly or annually, as applicable). Subject to the negotiations referred to in
Section 4.2(c) hereof, Seller shall pay all such expenses that accrue
prior to Closing and Buyer shall pay all such expenses accruing as of the
Closing Date and thereafter. Seller and Buyer shall obtain billings and meter
readings as of the Closing Date to aid in such prorations, to the extent
available or necessary.


 


(e)                                  Buyer
shall be entitled to a credit in the amount of the tenant security deposits set
forth on Schedule 4.2(e) attached hereto.


 


(f)                                    Subject
to the final sentence of Section 4.2(b) hereof, the provisions of this Section 4.2
shall survive Closing.


 


4.3                               Transaction and Closing Costs.


 


(a)                                  Seller
and Buyer shall execute such returns, questionnaires and other documents as
shall be required with regard to all applicable real property transaction taxes
imposed by applicable federal, state or local law or ordinance.


 


(b)                                 Seller
shall pay the fees of counsel representing Seller in connection with this
transaction. In addition, Seller shall also pay the following costs and
expenses:


 


15





















 


(i) any realty
transfer tax, sales tax, documentary stamp tax or similar tax which becomes
payable by reason of the transfer of the Property;


 


(ii) the fees for
any consultants which have been hired or retained by Seller in connection with
the transactions contemplated by this Agreement;


 


(iii) one-half of
all survey and title charges;


 


(c)  Buyer shall pay the fees of counsel
representing Buyer in connection with this transaction, if any. In addition,
Buyer shall also pay the following costs and expenses:


 


(i) one-half of
all survey and title charges;


 


(ii) the cost of
appraisals, Environmental Assessments of the Property prepared on Buyer’s
behalf or at Buyer’s direction;


 


(iii) the fees for
recording the Deed and any other recordable Transfer Documents;


 


(iv) except as set
forth in Section 9.1 hereof, the fees for any other brokers or consultants
which have been hired or retained by Buyer in connection with the transaction
contemplated by this Agreement; and


 


(v) the fees and
expenses of the Escrow Agent, as set forth in Section 1.2(d)(i) hereof.


 


(d)                                 All
costs and expenses incident to the transaction contemplated hereby and the
closing thereof, and not specifically described above, shall be paid by the party
incurring same.


 


(e)                                  The
provisions of this Section 4.3 shall survive the Closing or termination of
this Agreement.


 


4.4                               Master
Lease.


 


Simultaneously with the
Closing, Seller shall enter into a master lease (the “Master Lease”) with Buyer
for all of the vacant space (“Vacant Space”) at the Property (currently
estimated to be 11,700 s.f.) at a rental rate of $15.00 p.s.f. plus the pro
rata share of CAM and taxes for a period of two (2) years. Pursuant to the
Master Lease Seller shall make monthly payments in advance on the first day of
each month of the term for rent, CAM and taxes. The determination of the square
footage of the Vacant Space shall be made as of the date of the Closing.
Subsequent to the Closing and prior to the end of the two (2) year Master
Lease, if any portion of the Vacant Space is leased and put in service (“Leased
Space”), the Master Lease shall terminate as to the applicable Vacant Space as
of such date. “Leased Space” shall mean space for which: (i) a tenant has
executed a lease for any portion of the Vacant Space, accepted its space,
subject to any


 


16





















 


normal punch list items,
and (ii) opened for business to the public, and (iii) commenced the payment of
full rent, common area maintenance and taxes, and (iv) all the leasing
commissions and tenant improvement allowances having either paid for by Seller
or credited to Buyer, and (v) a certificate of occupancy or its equivalent
occupancy permit issued by the local governmental authorities, for such tenant’s
respective demised premises, and (vi) the tenant executes and delivers an
acceptable estoppel certificate to Buyer. Notwithstanding the foregoing, in the
event a ground lease is entered into for any portion of the Property the term “Leased
Space” for such ground lease parcel shall mean space for which: (i) a tenant
has executed a ground lease; and (ii) a tenant has commenced the payment of
full rent, common area maintenance and taxes, and (iii) all the leasing
commissions and tenant improvement allowances having either paid for by Seller
or credited to Buyer; and (iv) the tenant executes and delivers an acceptable
estoppel certificate to Buyer. It is understood that at no time shall Buyer be
entitled to receive a rental payment from a tenant and also a rental payment
attributable to such tenant from the Master Lease (whether due to partial
satisfaction of the Leased Space criteria, or otherwise), and Buyer agrees to
immediately remit such duplicate payment to Seller upon receipt.


 


4.5                     Vacant Space Escrow.


 


Seller
shall escrow with Escrow Agent the sum of $30.00 p.s.f. for tenant improvements
and leasing commissions for the Vacant Space (the “Vacant Space Escrow”).
Subsequent to the Closing and prior to the end of the two (2) year Master Lease,
if any portion of the Vacant Space is leased and put in service (“Leased Space”),
Seller shall be entitled to immediately receive from escrow agent the sum of
$30.00 p.s.f. for the applicable Leased Space. If, at the end of the two (2)
year Master Lease, there then exists any Vacant Space, the amount remaining in
the Vacant Space Escrow attributable to tenant improvements and leasing
commissions for the then Vacant Space shall be released to Buyer.


 


ARTICLE 5


 


Representations
and Warranties


 


5.1                               Seller Representations and
Warranties. Seller, hereby makes the following representations and
warranties to Buyer as of the date of this Agreement, which representations and
warranties shall be true and correct as of the Closing Date as a condition to
Buyer’s obligation to close hereunder:


 


(a)                                  Seller
is a limited liability company duly organized, validly existing and in good
standing under the laws of its state of formation. Seller has all requisite
power and authority to own and operate its Property and carry on its business
with respect to such Property as now being conducted. Seller has the requisite
power and authority to enter into this Agreement and to perform its obligations
hereunder and to consummate the transactions contemplated hereby. Neither the
execution, delivery and performance by Seller of this Agreement, nor the
consummation of the transactions


 


17





















 


contemplated hereby or
thereby will violate or conflict with any provision of the articles of
organization or operating agreement of Seller.


 


(b)                                 Seller
is not a “foreign person” as such term is defined pursuant to FIRPTA.


 


(c)                                  The
execution, delivery and performance by Seller of this Agreement, and the
consummation of the transactions contemplated hereby and thereby, will not
violate any provision of Seller’s organization documents.


 


(d)                                 The
Leases are the only leases and tenancies in effect with respect to the Property
and no individuals or entities occupy the Property or any portion thereof
except pursuant to the Leases. The copies of the Leases previously delivered or
to be delivered to Buyer are or will be true, correct and complete copies of
all the Leases and any amendments thereto. Except as disclosed herein or in the
Leases, copies of which shall be reviewed by Buyer during the Due Diligence
Period, no Lease provides the tenant thereunder with a right of first refusal
to purchase its demised premises or any of the Property.


 


(e)                                  No
Seller has received any written notice from a tenant under any Lease of such
tenant’s intention to vacate or abandon its demised premises prior to the end
of the term of its Lease. The applicable Seller shall promptly provide Buyer
with a copy of any written notice of default under any Lease given or received between
the date hereof and the date of the Closing.


 


(f)                                    No
Seller has received any written notice from any tenant under any Lease which
claim any default by Landlord thereunder. The applicable Seller shall promptly
provide Buyer with a copy of any written notice of default under any Lease
given or received between the date hereof and the date of the Closing.


 


(g)                                 Except
as otherwise disclosed to Buyer, no Seller has received any written notice of
any violations of any federal, state or municipal zoning, fire, environmental,
building or other laws, codes, statutes, ordinances, orders, regulations or
requirements affecting the Property owned by it, the terms of which have not
been complied with, and Seller will promptly notify Buyer of the receipt of any
written notice of any such violations received by such Seller between the date
hereof and the date of the Closing.


 


(h)                                 There
are no attachments, executions, assignments for the benefit of creditors,
receiverships, conservatorships or voluntary or involuntary proceedings in
bankruptcy or actions pursuant to any other debtor relief laws contemplated by
any Seller or pending against such Seller and regarding the Property owned by
it.


 


(i)                                     No
tenant is entitled to any rent concessions or “free rent” under the terms of
any of the leases, all tenant improvement allowances due under any of the
leases have either been paid, or if not yet due and payable, will be escrowed
by Seller from the net funds due Seller at the Closing, with Chicago Title.


 


18





















 


(j)                                     Schedule 5.1(j)
sets forth any unpaid leasing commissions and the amount hereof. All leasing
commissions for which a lien could be filed shall be paid on or before the
Closing Date


 


5.2                               Buyer’s Representations and Warranties.
Buyer hereby makes the following representations and warranties to Seller as of
the date of this Agreement, which representations and warranties shall be true
and correct as of the Closing Date as a condition to Seller’s obligation to
close hereunder.


 


(a)                                  Buyer
is a corporation duly organized, validly existing and in good standing under
the laws of the State of Illinois. Buyer has the requisite power and authority
to enter into this Agreement and the Buyer Ancillary Documents, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement and the consummation by Buyer of the transactions
contemplated hereby and thereby have been duly authorized by Buyer and no consents
of any third parties are necessary for Buyer’s execution, delivery and performance
of this Agreement and the transactions contemplated hereby and thereby. Neither
the execution, delivery and performance by Buyer of this Agreement, nor the consummation
of the transactions contemplated hereby or thereby will violate or conflict with
any provision of the documents and instruments under which Buyer is
constituted.


 


(b)                                 No
action or other proceeding whatsoever is now pending or, to the best knowledge
of Buyer, threatened against Buyer or any shareholders, partners, members or
owners, as the case may be, of the foregoing which calls into question or seeks
to set aside or enjoin any of the approvals or authorizations of the
transactions contemplated by this Agreement, or the performance of Buyer’s obligations
hereunder, or which will or may otherwise impede the Closing.


 


(c)                                  Buyer
has all funds available to it which are sufficient to consummate the
transaction contemplated by this Agreement.


 


(d)                                 Buyer
fully understands the nature and significance of the transactions provided for
in this Agreement and the limitations provided in Section 2.2 hereof and
elsewhere herein. Buyer is satisfied with the amount being paid by it for the Property,
as set forth herein, based and in sole reliance upon its own valuation of the Property
and its review and analysis of the rent roll for each Property, reports of
physical inspections (including without limitation, environmental inspections),
business, operations, condition and prospects for the Property.


 


5.3                               Changed Circumstances. Seller and Buyer
shall promptly notify the other in writing, if, after the execution of this
Agreement and prior to the Closing, any event occurs or condition exists which
renders any of the foregoing representations and warranties made by it
materially untrue or misleading. All of the foregoing representations and
warranties, respectively, shall be deemed made by Seller, respectively, and
Buyer on the date of this Agreement and at the time of the Closing.


 


19





















 


5.4                               Survival of Representations and
Warranties; Limitation on Seller’s Liability. Unless otherwise set forth in
this Agreement, the representations and warranties of Seller and Buyer,
respectively, as set forth in this Article 5 and elsewhere in this
Agreement and in any other agreements, affidavits, estoppels, instruments or
other documents executed by any of the Seller in connection with the
transactions contemplated hereby (hereinafter collectively referred to as the “Closing
Documents”) shall survive Closing for six (6) months. In the event that the
Closing for the transactions contemplated herein occurs, and to the extent
that, thereafter, Buyer incurs any actual costs or losses during the six (6)
month period referred to above as a result of any incorrect representations or
warranties made by Seller hereunder or under the Closing Documents which exceed
$25,000.00. No claims based upon any incorrect representation or warranties may
be brought by Buyer to the extent that the costs or losses actually incurred by
Buyer do not individually or collectively exceed the Minimum Threshold, and no
such claims may be brought at any time following the six-month anniversary of
the Closing. In addition, to the extent that Buyer actually knows at or prior
to Closing that any of Seller’s representations or warranties are inaccurate,
untrue or incorrect in any way, such representations and warranties shall be
deemed modified to reflect Buyer’s knowledge. Without limitation, Seller shall
not have any liability in connection with this Agreement by reason of any
inaccuracy of a representation or warranty if and to the extent that such
inaccuracy has been identified by Seller by notice to Buyer or otherwise is
actually known by Buyer at the time of Closing (whether matters contradicting
any representation or warranty is contained in any Exhibit or Schedule to
this Agreement, whether such matters are contained in any materials delivered
to Buyer by or on behalf of Seller, or whether such matters are contained in any
study, test, analysis or report prepared by or for the benefit of Buyer in
connection with the transactions contemplated hereunder), and Buyer consummates
the Closing.


 


ARTICLE 6



 


Additional
Agreements


 


6.1                               Operations Pending Closing. Between
the date of execution of this Agreement and the Closing, Seller shall comply
with all covenants, conditions, restrictions, laws, statutes, rules and
regulations and ordinances applicable to the Property, and shall own, manage
and operate the Property in a manner consistent with past practices and shall
use reasonable and prudent efforts to preserve for Buyer the favorable
relationships which Seller has with tenants, suppliers, vendors and others
having ongoing relationships with the respective Property. Seller (a) may, at
Seller’s option, after prior notice to Buyer, in the ordinary course and
consistent with Seller’s current practices, negotiate with prospective tenants,
and (b) enter into Leases (on terms that Seller believes, in its good faith
business judgment, to be market terms), enforce Leases and perform landlord’s
obligations under the Leases (other than with respect to Leases that have been
or that are in the process of being terminated). Seller shall not, without
first obtaining written consent of Buyer, which consent shall not be
unreasonably withheld, conditions or delayed, enter into new Leases or modify
the terms of or


 


20





















 


terminate any Leases. In
addition, Seller shall promptly notify Buyer, in writing, of (i) any default
beyond applicable grace periods committed by any tenants (other than defaults
in the payment of rent, adjustments for which will be made at Closing) and (ii)
any written notices received from any tenants regarding Seller’s defaults or any
tenant’s intention to terminate its lease.


 


6.2                               Mutual Cooperation.
Seller and Buyer agree to cooperate fully with one another in connection with
the transactions contemplated herein during the Due Diligence Period. In
furtherance of the foregoing, Seller agrees to (a) to provide contact
information to Buyer with respect to persons who prepared previous surveys,
environmental assessments and appraisals, if any, with respect to the Property,
(b) to execute all documents (at no cost to Seller) to effectuate the transfer
to Buyer of any Warranties and (c) to use its commercially reasonable efforts
(which for purposes of this Section 6.4(e) shall not require any Seller to
incur unreasonable costs) to obtain the REA Estoppels.


 


Article 7


 


Risk of
Loss


 


7.1                               Casualty.


 


(a)                                  If,
at or prior to Closing, any damage, destruction or casualty shall have occurred
as to which a tenant (i) has the responsibility to repair and restore the Property
under its respective Lease and (ii) has no right of rent abatement or offset, in
full or in part as a result of such casualty, the parties shall proceed to
Closing in accordance with the terms of this Agreement without any reduction in
the Purchase Price.


 


(b)                                 (i)
If, at or prior to Closing, any other damage, destruction or casualty, of any
Property, occurs, which damage, destruction or casualty creates loss valued at
ten (10%) percent or less of the Purchase Price, then this Agreement shall continue
in full force and effect and the Seller shall give written notice of such event
to Buyer (which notice will include a description of the nature, extent and
estimated amount of damage or loss suffered by the Property in connection with
such casualty), in which event the parties shall proceed to Closing in
accordance with the terms of this Agreement without any reduction in the
Purchase Price, and the Seller shall (A) assign to Buyer at Closing all of its
rights to and interest in all proceeds of casualty insurance and business interruption
and rent loss insurance relating to the period from and after the date of Closing
payable on account of such casualty, (B) pay to Buyer at Closing an amount equal
to the full amount of the deductible applicable under such insurance policies,
by way of a credit against the Purchase Price equal to the deductible unless
tenants are responsible for the deductible in CAM. The Seller shall cooperate
reasonably with Buyer before and after Closing to file and process an insurance
claim for all insured loss arising out of such casualty.           The Seller shall not settle or adjust any
such insurance claim without Buyer’s prior written consent. Seller shall have
no obligation to repair or restore any Property other than necessary measures
as may be necessary to secure any such Property from natural elements,
vandalism or further deterioration.


 


21





















 


(ii)                                  If,
at or prior to Closing, any other damage, destruction or casualty, of any
Property, occurs which damage, destruction or casualty creates a loss valued in
excess of ten (10%) percent of the Purchase Price allocated to such Property,
then the Seller shall notify Buyer in writing (hereinafter referred to as a “Seller
Casualty Notice”), which Seller Casualty Notice will include a description of
the nature, extent and estimated amount of damage or loss suffered by the
affected Property in connection with such casualty. Within ten (10) days after
receipt of the Seller Casualty Notice, Buyer shall notify the applicable
Seller, in writing, as to whether (A) Buyer will elect to proceed to Closing or
(B) Buyer will elect to terminate this Agreement. If Buyer does not make such
written election within the time period specified above, Buyer will be deemed
to have made the election set forth in clause (A).


 


(iii)                               If
Buyer makes (or is deemed to have made) the election set forth clause (A) of Section 7.1(b)(ii)
above, then this Agreement shall continue in full force and effect and the
parties shall proceed to Closing in accordance with the terms of this Agreement
without any reduction in the Purchase Price, and the Seller shall (A) assign to
Buyer at Closing all of its rights to and interest in all proceeds of casualty
insurance and business interruption and rent loss insurance relating to the
period from and after the date of Closing payable on account of such casualty
and (B) pay to Buyer at Closing an amount equal to the full amount of the
deductible applicable under such insurance policies, by way of a credit against
the Purchase Price equal to the deductible. The Seller shall cooperate reasonably
with Buyer before and after Closing to file and process an insurance claim for
all insured loss arising out of such casualty. The Seller shall not settle or
adjust any such insurance claim without Buyer’s prior written consent. The
Seller shall have no obligation to repair or restore any Property other than
necessary measures as may be necessary to secure any such Property from natural
elements, vandalism or further deterioration.


 


7.2                               Condemnation. If, at or prior to the
time of Closing, all or any portion of any Property shall be condemned or taken
pursuant to any governmental or other power of eminent domain, any written
notice of taking or condemnation with respect to all or any portion of a
Property is issued, or any proceedings are instituted by any governmental
authority having the power of eminent domain to take all or any portion of such
Property, then (a) the Seller shall notify Buyer in writing of such action, (b)
Buyer shall proceed to closing with a reduction in the Purchase Price equal to
any condemnation award previously paid to the Seller, (c) the Seller shall
assign to Buyer at the time of Closing all of such Seller’s right to any unpaid
condemnation awards and (d) such Seller shall convey the entire Property (or
remainder thereof) to Buyer.


 


ARTICLE 8


 


Remedies
Upon Default


 


8.1                               Time of Essence. If full performance of this
Agreement is not completed by the Closing Date, either party shall have the
right after such date to declare time to be of the essence of this Agreement by
giving notice of such election to the other party. Such notice shall contain a
declaration that time is of the essence and shall fix the time,


 


22





















 


date and place of final
settlement, which date may not be sooner than twenty (20) days nor later than
thirty (30) days following the effective date of giving such notice.


 


8.2                               Default by Buyer. In the event the sale of the
Property as contemplated hereunder is not consummated due to Buyer’s default
hereunder, Seller shall be entitled, as its sole remedy, to terminate this
Agreement and receive the Deposit as liquidated damages, and not as a penalty,
for the breach of this Agreement (which shall operate to terminate this
Agreement and release Buyer and Seller from any and all liability hereunder
other than with respect to those representations, warranties and/or indemnities
which survive termination of this Agreement), it being agreed between the
parties hereto that the actual damages to Seller in the event of such breach
are difficult, if not impossible, to determine and the Deposit and any accrued
interest thereon, is a reasonable estimate thereof. Seller expressly waives its
right to seek compensatory or consequential damages in the event of Buyer’s
default hereunder.


 


8.3                               Default by Seller. In the event the sale of
the Property as contemplated hereunder is not consummated due to a default by
all Seller hereunder, Buyer shall be entitled, at its election, as its sole
remedy, (a) to waive such default and close title in accordance with the terms
of this Agreement without any reduction of the Purchase Price, (b) to receive
the return of the Deposit which shall operate to terminate this Agreement and
release Buyer and Seller from any and all liability hereunder (other than with
respect to those representations, warranties and/or indemnities which survive
termination of this Agreement), or (c) to enforce specific performance of the
Seller’s obligations to convey the Property to Buyer in accordance with the
terms of this Agreement, including a claim for reasonable attorney’s fees and
costs of suit.


 


ARTICLE 9


 


Agents
and Commission


 


9.1                               Brokers. With respect to the
transaction contemplated by this Agreement, Seller and Buyer represent that the
sole broker is Jeffrey R. Dunne, CB Richard Ellis (hereinafter referred to as
the “Broker”), which is to paid a commission pursuant to separate agreement. In
the event that any claim for commission or finder’s fee other than the Broker’s
Fees is brought by any person or entity as a consequence of the transaction
contemplated hereby and as a result of any action or omission of Seller or
Buyer, then Seller or Buyer, as the case may be, shall hold harmless the other
party against any loss, cost or expense of any nature, including, but not
limited to, court costs and reasonable attorney’s fees arising as a consequence
of the claim for the commission or fee. The terms of this Section 9.1
shall survive the Closing or termination of this Agreement.


 


23





















 


ARTICLE 10


 


Miscellaneous


 


10.1                        Notices. Every notice or other
communication required or contemplated by this Agreement by any party shall be
in writing and shall be delivered by (i) personal delivery, (ii)
internationally recognized express courier, such as Federal Express, UPS or DHL
or (iii) facsimile with a confirmation copy sent simultaneously in the manner
contemplated by clauses (i) or (ii) of this Section 10.1, in each case
addressed to the party for whom intended at the following address:


 


	
   

  	
  (i)

  	
  If to Buyer:

  	
  Inland Real Estate
  Acquisitions, Inc.

  
	
   

  	
   

  	
   

  	
  2901 Butterfield Road

  
	
   

  	
   

  	
   

  	
  Oak Brook, Illinois
  60523

  
	
   

  	
   

  	
   

  	
  Attn: G. Joseph
  Cosenza, President

  
	
   

  	
   

  	
   

  	
  Fax No.: 630-218-4935

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (ii)

  	
  With a copy to:

  	
  Inland Real Estate
  Group, Inc.

  
	
   

  	
   

  	
   

  	
  2901 Butterfield Road

  
	
   

  	
   

  	
   

  	
  Oak Brook, Illinois
  60523

  
	
   

  	
   

  	
   

  	
  Attn: Robert Baum,
  General Counsel

  
	
   

  	
   

  	
   

  	
  Fax No.: 630-218-4900
  and 630-571-2360

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (iii)

  	
  If to Seller:

  	
  Coram Property
  Development LLC

  
	
   

  	
   

  	
   

  	
  1720 Post Road

  
	
   

  	
   

  	
   

  	
  Fairfield, Connecticut
  06824

  
	
   

  	
   

  	
   

  	
  Attn: Arthur W. Hooper,
  Jr.

  
	
   

  	
   

  	
   

  	
  Fax No.: 203-256-4019

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (iv)

  	
  With a copy to:

  	
  Pillsbury Winthrop LLP

  
	
   

  	
   

  	
   

  	
  695 E. Main Street

  
	
   

  	
   

  	
   

  	
  P.O. Box 6760

  
	
   

  	
   

  	
   

  	
  Stamford, CT 06905-6760

  
	
   

  	
   

  	
   

  	
  Attn: Kent S. Nevins,
  Esq.

  
	
   

  	
   

  	
   

  	
  Fax No.: 203-965-8226

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (v)

  	
  If to the Escrow Agent:

  	
  Chicago Title Insurance
  Company

  
	
   

  	
   

  	
   

  	
  171 N. Clark Street

  
	
   

  	
   

  	
   

  	
  Chicago, IL 60601

  
	
   

  	
   

  	
   

  	
  Attn: Nancy Castro

  
	
   

  	
   

  	
   

  	
  Fax No.: 312-223-2108

  



 


24





















 


or at such other address
as the intended recipient previously shall have designated by written notice to
the other parties. Notice by registered or certified mail shall be effective on
the date it is officially recorded as delivered to the intended recipient by
return receipt or equivalent, and in the absence of such record of delivery,
the effective date shall be presumed to have been the third (3rd) business day
after it was deposited in the mail. All notices and other communications
required or contemplated by this Agreement to be delivered in person or sent by
courier shall be deemed to have been delivered to and received by the addressee
and shall be effective on the date of personal delivery; notices delivered by
facsimile with simultaneous confirmation copy by registered or certified or
equivalent mail or courier shall be deemed delivered to and received by the
addressee and effective on the date sent. Notice not given in writing shall be
effective only if acknowledged in writing by a duly authorized representative
of the party to whom it was given.


 


10.2                        No Recording. Neither Seller nor
Buyer shall cause or permit this Agreement nor any memorandum hereof to be
filed of record in any office or place of public record and if Buyer or Seller
shall fail to comply with the terms hereof by recording or attempting to record
the same, such act shall not operate to bind or cloud title to the Property. If
either party or counsel acting for either party shall cause or permit this
Agreement, a copy hereof, or a memorandum hereof to be filed in an office of
place of public record, the other party, at its option, may treat such act as a
default under this Agreement.


 


10.3                        No
Agency. This Agreement shall not constitute an appointment of any of the
parties hereto as the legal representative or agent of any other party hereto
nor shall any party hereto have any right or authority to assume, create or
incur in any manner any obligation or other liability of any kind, express or
implied, against, or in the name or on behalf of, the other party hereto.


 


10.4                        Severability.
In the event any provision of this Agreement shall be determined to be invalid
or unenforceable under applicable law, all other provisions of this Agreement
shall continue in full force and effect unless such invalidity or unenforceability
causes substantial deviation from the underlying intent of the parties expressed
in this Agreement or unless the invalid or unenforceable provisions comprise an
integral part of, or in inseparable from, the remainder of this Agreement. If
this Agreement continues in full force and effect as provided above, the
parties shall replace the invalid provision with a valid provision which
corresponds as far as possible to the spirit and purpose of the invalid
provision.


 


10.5                        Assignment and Succession. Except as
expressly permitted herein, no party may assign or otherwise transfer any
rights, interests or obligations under this Agreement (excluding an assignment
resulting by operation of law as a result of the merger or consolidation of any
such party) without the prior written consent of the other party, which consent
may be withheld in the sole and absolute discretion of such party for any
reason whatsoever or for no reason. This Agreement shall inure to the benefit
of the parties hereto and to their respective permitted successors and assigns.
Notwithstanding


 


25





















 


the foregoing, within ten
(10) days prior to Closing, Buyer shall have the right to notify Seller of the
names of its nominee entity taking title to the Property.


 


10.6                        Amendments and Waivers. No amendment,
modification, termination or waiver of any provision of this Agreement or
consent to any departure by any party therefrom, shall in any event be
effective without the written concurrence of the other party hereto. Any waiver
or consent shall be effective only in the specific instance and for the
specific purpose for which it is given. No notice to or demand on any party in
any case shall entitle any other party to any other or further notice or demand
in similar or other circumstances.


 


10.7                        Further Assurances. Each of the
parties hereto agrees that, from and after the Closing, upon the reasonable
request of the other party hereto and without further consideration, such party
will execute and deliver to such other party such documents and further
assurances and will take such other actions (without cost to such party) as
such other party may reasonably request in order to carry out the purpose and
intention of this Agreement including but not limited to the effective
consummation of the transactions contemplated under the provisions of this
Agreement. The provisions of this Section 10.7 shall survive Closing.


 


10.8                        Absence of Third-Party
Beneficiaries. No provisions of this Agreement, express or implied, are
intended or shall be construed to confer upon or give to any person or entity
other than the parties hereto, any rights, remedies or other benefits under or
by reason of this Agreement unless specifically provided otherwise herein, and
except as so provided, all provisions hereof shall be personal solely between
the parties to this Agreement.


 


10.9                        Governing Law; Jurisdiction. The
validity, construction, performance and enforceability of this Agreement shall
be governed in all respects by the laws of the State of Connecticut, without
reference to the choice-of-law principles thereof. Buyer and Seller agree to
submit to personal jurisdiction in the State of New York in any action or proceeding
arising out of this Agreement. In furtherance of such agreement, the parties hereto
agree and consent that without limiting other methods of obtaining
jurisdiction, personal jurisdiction over the each party in any such action or
proceeding may be obtained within or without the jurisdiction of any court
located in New York and that any process or notice of motion or other
application to any such court in connection with any such action or proceeding
may be served upon the party by registered or certified mail to, or by personal
service at, the respective addresses listed in Section 10.1 herein (or as otherwise
established by notice to the other party), whether such address may be within or
without the jurisdiction of any such court. The parties hereto further agree
that the venue of any litigation arising in connection with this Agreement or
in respect of any of the obligations of the parties hereto under this
Agreement, shall, to the extent permitted by law, be in Fairfield County,
Connecticut.


 


10.10                 Interpretation.
This Agreement, including any exhibits, schedules and amendments, has been
negotiated at arm’s length and between persons sophisticated and knowledgeable
in the matters dealt with in this Agreement. Each party has been


 


26





















 


represented by
experienced and knowledgeable legal counsel. Accordingly, any rule of law or
legal decision that would require interpretation of any ambiguities in this
Agreement against the party that has drafted it is not applicable and is
waived. The provisions of this Agreement shall be interpreted in a reasonable
manner to effect the purposes of the parties and this Agreement.


 


10.11                 Entire Agreement. The terms of this Agreement
and the other writings referred to herein (including but not limited to all
schedules, exhibits, addenda, and related agreements) and delivered by the
parties hereto are intended by the parties to be the final expression of their
agreement with respect to the subject matter hereof and may not be contradicted
by evidence of any prior or contemporaneous agreement. The parties further
intend that this Agreement, together with the exhibits and schedules hereto
shall constitute the complete and exclusive statement of its terms and shall
supersede any prior agreement with respect to the subject matter hereof.


 


10.12                 Counterparts.
This Agreement may be executed simultaneously in multiple counterparts, each of
which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument. Execution and delivery of this Agreement
by exchange of facsimile copies bearing the facsimile signature of a party hereto
shall constitute a valid and binding execution and delivery of this Agreement
by such party. Such facsimile copies shall constitute enforceable original
documents.


 


10.13                 Expenses.
Each of the parties agrees to pay its own expenses in connection with the transactions
contemplated by this Agreement, including without limitation legal, consulting,
accounting and investment banking fees, whether or not such transactions are
consummated.


 


10.14                 Consents.
Whenever this Agreement requires or permits consent by or on behalf of any
party hereto, such consent shall be given in writing.


 


10.15                 Headings.
The article and section headings contained in this Agreement are
for reference purposes only and will not affect in any way the meaning or interpretation
of this Agreement.


 


10.16                 Waiver
of Trial by Jury. EACH PARTY HEREBY WAIVES, IRREVOCABLY AND
UNCONDITIONALLY, TRIAL BY JURY IN ANY ACTION BROUGHT ON, UNDER OR BY VIRTUE OF
OR RELATING IN ANY WAY TO THIS AGREEMENT OR ANY OF THE DOCUMENTS EXECUTED IN CONNECTION
HEREWITH, THE PROPERTY, OR ANY CLAIMS, DEFENSES, RIGHTS OR SET-OFF OR OTHER
ACTIONS PERTAINING HERETO OR TO ANY OF THE FOREGOING.


 


10.17                 Confidentiality.


 


(a)                                  Buyer
shall use is best efforts, and cause its attorneys, representatives and
consultants (hereinafter collectively referred to as the “Buyer Parties”)
to use their best efforts, to use all information, documents, surveys, leases
and other materials provided to them by the Seller hereunder (hereinafter
collectively referred to as the “Due Diligence


 


27





















 


Materials”)
exclusively for the purpose of evaluating the merits of a possible purchase of
the Property as contemplated by this Agreement and not for any other purpose
whatsoever. Buyer further agrees, except as may be required by applicable law,
that it will not disclose any Due Diligence Materials or use them to the
detriment of any Seller.


 


(b)                                 In
the event this Agreement is terminated prior to the consummation of the purchase
and sale contemplated hereunder, all Due Diligence Materials and all copies thereof
will be returned to Seller promptly. All analyses, compilation, studies or
other documents prepared by or for Buyer and reflecting any Due Diligence
Material or otherwise based thereon will be (at Buyer’s option) either (i)
destroyed or (ii) retained by Buyer in accordance with the confidentiality
restrictions set forth in this Section 10.17.


 


(c)                                  Buyer
acknowledges that the Due Diligence Materials are proprietary in nature and
that Seller would suffer significant and irreparable harm in the event of the misuse
or disclosure of the Due Diligence Materials. Without affecting any other
rights or remedies that either party may have, Buyer acknowledges and agrees
that Seller shall be entitled to seek the remedies of injunction, specific
performance and other equitable relief for any breach or threatened breach of
the provisions of this Agreement relating to confidentiality by any Buyer Party.


 


(d)                                 Buyer
hereby indemnifies and holds harmless Seller from and against all loss,
liability, claim, damage and expense arising out of any breach of this Section 10.17
by Buyer or by any Buyer Party.


 


(e)                                  Prior
to Closing neither party shall issue any press release or public statement with
respect to the transactions contemplated by this Agreement without the prior
consent of the other party, except to the extent such release or statement is
required by law or the regulations of the Securities and Exchange Commission or
the New York Stock Exchange, and (ii) after Closing, any such release or
statement issued by Seller or Buyer shall be subject to the review and approval
of the other respective party (which approval shall not be unreasonably
withheld). If Seller or Buyer is required by law to issue a release or
statement, such party shall, at least two (2) Business Days prior to the issuance
of same, deliver a copy of the proposed release to the other party for its
review.


 


(f)                                    This
Section 10.17 shall survive Closing and any termination of this Agreement.


 


10.18                 Drafts not an Offer to Enter into a
Legally Binding Contract. The submission of a draft, or a marked up draft, of
this Agreement by one party to another is not intended by either party to be an
offer to enter into a legally binding contract with respect to the purchase and
sale of the Property. The parties shall be legally bound with respect to the
purchase and sale of the Property pursuant to the terms of this Agreement only
if and when the parties have been able to negotiate all of the terms and
provisions of this Agreement in a matter acceptable to each of the parties in
their respective sole discretion, including, without limitation, all of the
Exhibits hereto, and Seller and Buyer have fully executed and delivered to each
other a counterpart of this Agreement, including, without limitation, all
Exhibits hereto.


 


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10.19                 Exculpation.
This Agreement and all documents, agreement, understandings, and arrangements
relating to this transaction have been executed by the undersigned in his
capacity as Managing Member of Coram Property Development LLC, and neither the
officer executing this Agreement nor the members, managers or officers of the
Seller shall be bound or have any personal liability hereunder. Neither Seller,
on the one hand, or Buyer, on the other hand, will seek recourse or commence
any action against the officer of the other executing this Agreement or any of
the members, managers or officers of the other, or any of their personal
assets, for the performance or payment of any obligation hereunder or
thereunder. The foregoing shall also apply to any future documents, agreement,
understandings, arrangements and transactions between or among the parties.


 


10.20                 Intentionally
Deleted.


 


10.21                 Business Day. As
used herein, the term Business day means any day other than a Saturday, Sunday
and any other day which is a legal holiday in the State of Connecticut on which
offices of the State of New York are routinely scheduled to be closed.


 


10.22                 Tax Free
Exchange (a) Seller reserves the right to include this transaction as part
of a tax-deferred exchange under Section 1031 of the Code for the benefit
of such Seller, so long as the same is at no cost, expense or liability to
Purchaser. Each member of Seller expressly reserves the right to assign, on or
before the Closing Date, its rights (but not its obligations) hereunder to a “Qualified
Intermediary” as defined in, and provided for, in IRC Reg. 1.1031(k)-1(g)(4).
Purchaser agrees to execute any and all documents as are reasonably necessary
in connection with such exchange, provided that the closing of this transaction
for the conveyance of the Premises shall not be contingent upon or subject to
the completion of such exchange. In connection herewith, and for the purpose of
engaging in such an exchange, each member of Seller may make such transfers
prior to the Closing of its interest in the Premises or in such Seller to its shareholders,
partners (general or limited), members and/or principals in their individual capacities
as may be required by such member of Seller for the purpose of holding title to
the Premises, provided that any such transfer shall be subject to the terms of
this Contract and shall not in any way alter or modify the obligations of such
member of Seller hereunder. In the event of any such transfer, Purchaser
acknowledges that the shareholders, partners (general or limited), members,
principals of such member of Seller shall not, by virtue of such transfer
accept or consent to any personal liability under the terms of this Contract
and that Seller shall remain solely liable for any obligations contained herein
regardless of any such transfer.


 


(b) Purchaser
reserves the right to include this transaction as part of a tax-deferred
exchange under Section 1031 of the Code for the benefit of Purchaser, so
long as the same is at no cost, expense or liability to Seller. Purchaser
expressly reserves the right to assign, on or before the Closing Date, its
rights (but not its obligations) hereunder to a “Qualified Intermediary” as
defined in, and provided for, in IRC Reg. 1.1031(k)-1(g)(4). Seller agrees to
execute any and all documents as are reasonably necessary in connection with
such exchange, provided that the closing of this transaction for the


 


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conveyance of the
Premises shall not be contingent upon or subject to the completion of such
exchange.


 


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IN WITNESS WHEREOF, the parties hereto have
set executed or caused their duly authorized representatives to execute this
Agreement of Purchase and Sale as of the day and year first written above.


 


	
   

  	
  SELLER:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CORAM PROPERTY
  DEVELOPMENT

  	
   

  
	
   

  	
  LLC

  	
   

  	
  ]

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Louis L. Ceruzzi,
  Jr.,

  	
   

  
	
   

  	
  Louis
  L. Ceruzzi, Jr.,

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BUYER:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  INLAND REAL ESTATE

  ACQUISITIONS, INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ G. Joseph Cosenza

  	
   

  
	
   

  	
  G.
  Joseph Cosenza, President

  	
   

  
						



 


The undersigned
hereby joins in this Agreement solely in its capacity as Escrow Agent and
solely to evidence its agreement to be bound by the terms of Sections 1.2(b) and
(d) hereof and acknowledge receipt of the $400,000.00 Good Faith Deposit.


 


	
   

  	
  Chicago Title Insurance
  Company

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nancy Castro

  	
   

  
				



 


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