Exhibit 10.486


 


SECOND

AMENDMENT TO AGREEMENT


 


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


 


W I T N E S S E T H:


 


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


 


WHEREAS, Purchaser 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, Purchaser and Seller agree as
follows:


 


1.               In accordance with Section 2.3 of the
Agreement, Purchaser has notified Seller of its title objections to the Title
Commitment and to the Surveys for Green’s Corner and Newton Crossroads in that
certain title objection letter dated December 17, 2004 (the “Title Objection Letter”).  Notwithstanding the foregoing, Seller and
Purchaser agree that Purchaser shall retain its rights to object solely to
title matters first raised on the Survey for Stilesboro Oaks through December
22, 2004 at 5:00 p.m. (EST), and in the event that Purchaser has not obtained the
Survey for Stilesboro on or before such date and time, Purchaser shall have the
right to terminate the Agreement in accordance with Section 2.3.


 


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


 





















 


3.               This Second 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 agreement.  Each person executing this Second Amendment
represents that such person has full authority and legal power to do so and
bind the party on whose behalf he or she has executed this Second Amendment.  Any counterpart to this Second 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]


 


2





















 


	
   

  	
  Seller:

  
	
   

  	
   

  
	
   

  	
  FFI AMERICAN MARKET FUND, L.P. a

  
	
   

  	
  Georgia limited
  partnership

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  FFI REAL ESTATE USA, LLC,
  A

  Georgia limited liability company, its

  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Robert Cancelliere

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Robert Cancelliere

  	
   

  
	
   

  	
   

  	
  Title:

  	
  President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchaser:

  
	
   

  	
   

  
	
   

  	
  INLAND REAL ESTATE
  ACQUISITIONS,

  INC., an Illinois
  corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ G. Joseph Cosenza

  	
   

  
	
   

  	
  Name:

  	
  G. Joseph Cosenza

  
	
   

  	
  Title:

  	
    President

  
												



 


3





















 


AMENDMENT TO AGREEMENT


 


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


 


W I T N E S S E T H:


 


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


 


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


 


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


 


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


 


4.               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 agreement.  Each person
executing this Amendment represents that such person has full authority and
legal power to do so and bind the party on whose 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.


 


	
   

  	
  Seller:

  
	
   

  	
   

  
	
   

  	
  FFI
  AMERICAN MARKET FUND, L.P. a

  
	
   

  	
  Georgia limited
  partnership

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  FFI REAL ESTATE USA, LLC,
  A

  Georgia limited liability company, its

  general partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Robert Cancelliere

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Robert Cancelliere

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
  President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchaser:

  
	
   

  	
   

  
	
   

  	
  INLAND REAL ESTATE ACQUISITIONS,

  INC., an Illinois
  corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  G. Joseph Cosenza

  
	
   

  	
  Title:

  	
  President

  
											



 


2





















 


	
  

  	
  Inland
  Real Estate Acquisitions, Inc.

  2901 Butterfield
  Road

  Oak Brook, IL 60623

  Phone: (630) 218-4908 Fax: 4935

  www.inlandgroup.com

  
	
   

  	
   

  
	
  December
  2, 2004

  
	
   

  	
  EMAIL

  
	
   

  	
   

  
	
   

  	
  Ms. Bridget O’Donnell

  Investment Sales

  Maxwell Properties, Inc.

  6017 Sandy Springs Circle

  Atlanta, GA 30328

  



 


RE:                          Kroger
Portfolio

Atlanta, GA


 


Dear Bridget:


 


We have completed our
comprehensive file and lease review and have the following comments and
questions, and need for additional information on each property.


 


Green’s
Corner


 


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


 


You
had previously responded to a similar request by resending the LEASE AGREEMENT
which we already had.  The Kroger lease
consists of both parts.


 


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


 


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


 


3.                                       Subway – We are missing Exhibit B.


 


4.                                       KB’s
BBQ – We need sales figures for 2003.


 


5.                                       Golden
Palace – We need sales figures for 2003.


 


Newton Crossroads


 


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


 


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


 


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


 


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


 


9.                                       H&R Block – This lease expires 1/31/05.  Although there is a special extension
provision extending the lease to 4/30/05, in the case that the lease is not
renewed, has this lease been renewed? Are renewal terms being negotiated?


 


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


 





















 


 


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


 


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


 


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


 


Exhibit
I – Special Stipulations – We are missing some pages as we only have the first
page.


 


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


 


Stilesboro
Oaks


 


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


 


15.                                 We are missing the following tenant sales
reports.


 


•                  Clothing Care – 6/03 – 9/03


 


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


 


•                  Gondoller Pizza – 10/03


 


•                  Great Clips – 2002 and 10/03


 


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


 


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


 


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


 


Applies to All Three Properties


 


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


 


16.                                 Updated/Corrected Rent Rolls


 


17.                                 Rent Commencement Date Letters


 


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


 


•                  Stilesboro – Tae Kwon Do and Subway


 


18.                                 Last three year’s bills for insurance on each
center


 


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


 


20.                                 2004 YTD Tenant Ledgers indicating at least
the current monthly amounts paid by each tenant for CAM / Tax / Insurance plus
a YTD balance paid by each tenant


 


21.                                 11/30/04 Delinquency Report


 


22.                                 Service Agreements –


 


•                  Fire / Sprinkler Alarm Monitoring and
Maintenance


 


•                  Cleaning / Sweeping / Porter


 


2





















 


•                  Exterminating


 


•                  Landscaping


 


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


 


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


 


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


 


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


 


26.                                 Current Tenant Contact List


 


27.                                 Certificates of Insurance


 


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


 


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


 


•                  Stilesboro – Subway and Vintage Bottle Shop


 


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


 


29.                                 Certificates of Occupancy


 


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


 


•                  Newton – H&R Block, Just New Release


 


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


 


30.                                 Building
Plans and Specifications


 


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


 


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


 


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


 


	
   

  	
  Sincerely,

  
	
   

  	
   

  
	
   

  	
  INLAND REAL ESTATE
  ACQUISITIONS, INC.

  
	
   

  	
   

  
	
   

  	
  /s/ Robert W. Brinkman

  	
   

  
	
   

  	
  Robert W. Brinkman

  
	
   

  	
  Due Diligence Officer

  



 


cc: Joe Cosenza, Charles
Benvenuto, Vicki Yates, Andrew Viola, Matt Swanson


 


/kek


 


3





















 




 





PURCHASE
AND SALE AGREEMENT


 


BETWEEN


 


FFI AMERICAN MARKET FUND, L.P.,

a Georgia limited partnership


 


AS SELLER,


 


AND


 


INLAND REAL ESTATE ACQUISITIONS, INC.,


an Illinois corporation


 


AS PURCHASER


 


As of December 9, 2004


 




 
























 


PURCHASE AND SALE AGREEMENT


 


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


 


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


 


WITNESSETH:


 


ARTICLE 1


 


PURCHASE AND SALE


 


1.1                                 Agreement of Purchase and
Sale.
Subject to the terms and
conditions hereinafter set forth, Seller agrees to sell and convey and
Purchaser agrees to purchase the following:


 


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


 


(b) the buildings, structures, fixtures and other improvements on the
Land (collectively, the “Improvements”; the
Land and the Improvements being hereinafter sometimes collectively referred to
as the “Real Property”).  The
separately named facilities comprising the Real Property are listed on Exhibit
A-1 attached hereto (each, a “Project”).


 


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


 


(d) all of Seller’s right, title and interest in and to all agreements
listed and described on Exhibit B (the “List
of Leases”) attached hereto and made
a part hereof,


 





















 


pursuant
to which any portion of the Land or Improvements is used or occupied by anyone
other than Seller (collectively, the “Leases”).


 


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


 


1.2                                 Property Defined. The Land, the Improvements, the Tangible
Personal Property, the Leases and the Intangible Property are hereinafter
sometimes referred to collectively as the “Property.”


 


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


 


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


 


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


 


1.6                                 Earnest Money. On the date hereof, Purchaser shall deposit
with the Chicago, Illinois office of Escrow Agent the sum of FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($500,000.00) (the “Earnest Money”) in good funds, either by certified bank or cashier’s
check or by wire transfer of immediately available funds.  The Escrow Agent shall invest the Earnest
Money pursuant to Purchaser’s directions and in accordance with the terms and
conditions of Article 10.  All interest
accruing and other income earned on such sum shall be the property of Purchaser
in all events and shall not become a part of the Earnest Money.  If Purchaser fails to deliver the Earnest
Money to the Escrow Agent within the time period specified above, Seller shall
be entitled to terminate this Agreement (until such time as Purchaser has
deposited the Earnest Money with Escrow Agent), and upon such termination, neither
party shall have any further rights, obligations or liabilities hereunder
except to the extent that any


 


2





















 


right, obligation or
liability set forth herein expressly survives termination of this Agreement.  In any event, if Purchaser is entitled to have
the Earnest Money returned to Purchaser pursuant to any provision of this
Agreement, One Hundred Dollars ($100.00) of the Earnest Money shall
nevertheless be paid to Seller as good and sufficient consideration for
entering into this Agreement.  Time is of
the essence for the delivery of the Earnest Money.


 


1.7                                 Shopping Center Name. Seller acknowledges that after Closing,
Purchaser shall be entitled to use the names of the Projects set forth on Exhibit
A-1 as part of its names for the respective Improvements to the same extent
Seller was so entitled; provided, however, Seller makes no representation or
warranty as to any right to use such names or any other names used in
connection with the Improvements.  This
Section 1.7 shall survive the Closing.


 


ARTICLE 2


 


TITLE AND SURVEY


 


2.1                                 Title Examination; Commitment for
Title Insurance.  No
later than the Title Objection Deadline (as hereinafter defined), Purchaser
shall obtain from Escrow Agent (in its capacity as agent for the title insurer,
sometimes hereinafter referred to as the “Title Company”),
at Purchaser’s expense, commitments for owner’s polices of title insurance (collectively,
the “Title Commitments”) covering each
Project comprising the Real Property, and shall deliver to Seller a copy of
such Title Commitments, together with legible copies of all instruments
referred to therein.


 


2.2                                 Survey.  On or
before the Title Objection Deadline, Purchaser may obtain, at Purchaser’s
expense, ALTA/ACSM surveys of each Project comprising the Real Property prepared
by a licensed Georgia surveyor, and shall deliver three (3) copies of any such
surveys to Seller and to the Title Company.  Such surveys shall constitute the “Surveys” hereunder.  For purposes of the Deeds to be delivered to
Purchaser at the Closing, the legal descriptions of the Property shall be the
legal descriptions by which Seller acquired the Property, copies of which are
attached hereto as Exhibit A, less and except any rights-of-way or other
conveyances previously made by Seller.  If
the metes and bounds description drawn from any Survey reflects a legal
description different from the corresponding legal description attached hereto
as a portion of Exhibit A, Seller shall also deliver a quit claim deed
for such portion of the Property at Closing containing the legal description
drawn from the Survey.


 


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


 


3





















 


that any right, obligation
or liability set forth herein expressly survives termination of this Agreement.
 Any item contained in the Title
Commitments or any matter shown on the Surveys to which Purchaser does not
object on or before the Title Objection Deadline shall be deemed a “Permitted Exception”.
 In the event Purchaser shall
notify Seller of objections to title or to matters shown on the Surveys on or
before the Title Objection Deadline, Seller shall have the right, but not the
obligation, to cure such objections.  On
or before December 22, 2004, Seller shall notify Purchaser in writing whether
Seller elects to attempt to cure such objections (and Seller’s failure to
provide such a notice shall be deemed an election by Seller not to cure any
such objection).  If Seller elects to
attempt to cure, and provided that Purchaser shall not have terminated this
Agreement in accordance with Section 3.2 hereof, Seller shall use commercially
reasonable efforts to attempt to remove, satisfy or cure the same.  For this purpose Seller shall be entitled to a
reasonable extension of the Closing if additional time is required, but in no
event shall the extension extend for more than thirty (30) days.  If Seller elects (or is deemed to have
elected) not to cure any valid objections specified in Purchaser’s notice, or if
Seller fails or is unable to effect a cure prior to Closing (or any date to
which the Closing had been extended), Purchaser shall have the following
options: (i) to accept a conveyance of the Property subject to the Permitted
Exceptions, specifically including any matter objected to by Purchaser which
Seller is unwilling or unable to cure, and without reduction of the Purchase
Price; or (ii) to terminate this Agreement by sending written notice thereof to
Seller and Escrow Agent, and upon delivery of such notice of termination, this
Agreement shall terminate and the Earnest Money shall immediately be returned
to Purchaser in accordance with Section 1.6 of this Agreement, and thereafter
neither party hereto shall have any further rights, obligations or liabilities
hereunder except to the extent that any right, obligation or liability set
forth herein expressly survives termination of this Agreement.  If Seller notifies Purchaser that Seller does
not intend to attempt to cure any title objection, or if Seller is deemed to
have elected not to cure any title objections, or if Seller notifies Purchaser
of Seller’s intent to cure any objection and Seller later notifies Purchaser
that Seller has failed or will be unable to effect a cure thereof, Purchaser
shall, within two (2) days after receiving Seller’s notice, notify Seller in
writing whether Purchaser shall elect to accept the conveyance under clause (i)
above or to terminate this Agreement under clause (ii) above (with Purchaser’s
failure to provide such a notice deemed an election by Purchaser to accept
conveyance under clause (i) above). Notwithstanding anything contained herein
to the contrary, Seller shall be obligated at Closing to discharge (a) all
mortgages of Seller (regardless of whether Purchaser objects to such mortgages)
and (b) all undisputed monetary liens arising by, through or under Seller. The
term “mortgage” as used herein includes any mortgage, deed of trust, deed to
secure debt and similar security instrument securing an indebtedness of Seller
and encumbering the Property or any portion thereof; the terms “discharge” and “discharged”
as used herein include compliance with a statutory bonding procedure that has
the legal effect of removing the mortgage or item as a lien on the Property or
otherwise allows the mortgage or item to be removed from the title exceptions
in the Title Policies.


 


2.4                                 Conveyance of Title.  At
Closing, Seller shall convey and transfer the Property to Purchaser.  It shall be a condition to Purchaser’s
obligation to close this transaction that title to the Real Property conveyed
and transferred to Purchaser shall be such title to the Real Property as will
enable the Title Company to issue to Purchaser its extended coverage owner’s
policies of title insurance, together with such endorsements as required by
Purchaser (the “Title Policies”)


 


4





















 


covering each Project
comprising the Real Property, collectively in the full amount of the Purchase
Price, subject to the following matters, which shall be deemed to be Permitted
Exceptions:


 


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


 


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


 


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


 


(d)                                 all matters shown in Schedule B of the Title
Commitments, subject to the provisions of Section 2.3 of this Agreement or as
otherwise expressly provided in this Agreement;


 


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


 


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


 


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


 


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


 


5





















 


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


 


ARTICLE 3


 


INSPECTION PERIOD


 


3.1                                 Right of Inspection.


 


(a) Beginning on November 5, 2004 and continuing thereafter so long as
this Agreement remains in full force and effect, Purchaser shall have the right
to examine at such place or places at the Property, in the offices of the
property manager or elsewhere as the same may be located, any operating files
maintained by Seller or its property manager in connection with the leasing,
maintenance and/or management of the Property, including, without limitation, the
Leases, lease files, service contracts, bills, invoices, receipts and other
general records relating to the income and expenses of the Property, correspondence,
surveys, plans and specifications, warranties for services and materials provided
to the Property and similar materials, but excluding materials not directly related
to the leasing, maintenance, and/or management of the Property, such as Seller’s
internal memoranda,  financial
projections, insurance policies, operating budgets, appraisals, accounting and
tax records and similar proprietary or confidential information.


 


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


 


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


 


6





















 


test
pits, groundwater testing, or other Phase II or Phase III environmental testing
or any testing relating to the operation of any dry cleaner without prior
approval of Seller).  Prior to conducting
any environmental testing of the Property, including Phase I testing, Purchaser
shall obtain Seller’s prior approval of Purchaser’s environmental consultant.  Following each such entry by Purchaser with
respect to the Inspections, Purchaser shall promptly restore, or cause to be
restored, the Property to its original condition as existed prior to any such
Inspections.  Seller shall reasonably
cooperate with Purchaser in its Inspections, but shall not be obligated to
incur any liability or expense in connection therewith.


 


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


 


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


 


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


 


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


 


7





















 


December 14, 2004 (the “Inspection Date”),
or (b) failing to give written notice to Seller on or before the Inspection
Date of Purchaser’s election to proceed with this transaction and waive its
right to terminate pursuant to this Section 3.2, with Purchaser’s failure to
provide any such notice deemed an election to terminate.  Upon any such termination or deemed
termination of this Agreement pursuant to Purchaser’s rights under this Section
3.2, then this Agreement shall terminate, the Earnest Money shall be returned
to Purchaser in accordance with Section 1.6 hereof, and Purchaser and Seller
shall have no further rights and obligations hereunder except those which
expressly survive termination of this Agreement.  If Purchaser gives timely written notice of
its election to proceed and to waive its right to terminate pursuant to this
Section 3.2 on or before the Inspection Date, then Purchaser shall no longer
have the right to terminate this Agreement under this Section 3.2 and, subject
to any contrary provisions, including Purchaser’s termination rights pursuant
to Section 2.3 of this Agreement, Purchaser shall be bound to proceed to
Closing and consummate the transaction contemplated hereby pursuant to the
terms of this Agreement.  Time is of the
essence with respect to the provisions of this Section 3.2. The period
commencing on the Effective Date and ending on the Inspection Date is sometimes
referred to herein as the “Inspection Period”.


 


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


 


ARTICLE 4


 


CLOSING


 


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


 


4.2                                 Seller’s Obligations at
Closing.  At Closing, Seller shall:


 


(a) deliver to Purchaser one or more duly executed limited warranty
deeds (the “Deeds”) in recordable
form, conveying the Real Property, subject to the Permitted Exceptions; the
warranty of title in the Deeds will extend only to claims made by, through or
under Seller and not otherwise;


 


8





















 


(b) deliver to Purchaser one or more duly executed bills of sale
conveying the Tangible Personal Property and Intangible Personal Property with
special warranty of title but subject to the limitations set forth in Section
9.2;


 


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


 


(d) assign to Purchaser, and Purchaser shall assume, from and after the
date of Closing, Seller’s interest in the Designated Service Contracts (as
defined in Section 5.7(b) hereof), as amended or supplemented pursuant to this
Agreement, by one or more duly executed assignment and assumption agreements
pursuant to which (i) Seller shall indemnify Purchaser and hold Purchaser
harmless from and against any and all claims pertaining to the Designated
Service Contracts or the other Intangible Property arising from events occurring
prior to Closing and (ii) Purchaser shall indemnify Seller and hold Seller
harmless from and against any and all claims pertaining to the Designated
Service Contracts or the other Intangible Property arising from events
occurring from and after the Closing;


 


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


 


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


 


9





















 


inclusion
of any change or exception in such certificate shall not prejudice Purchaser’s
rights under this Agreement with respect to the subject matter of such change
or exception.


 


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


 


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


 


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


 


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


 


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


 


(1) deliver such additional documents as shall be reasonably requested
by the Title Company or required to consummate the transaction contemplated by
this Agreement; provided, however, that in no event shall Seller
be required to indemnify the Title Company, Purchaser, or any other party
pursuant to any such documents, or undertake any other material liability not
expressly contemplated in this Agreement, unless Seller elects to do so in its
sole discretion;


 


(m) if the one or more of the legal descriptions attached hereto as Exhibit
A differ from the legal descriptions of the Property drawn from the
Surveys, Seller shall at Closing deliver (in addition to the Deeds) one or more
quit claim deeds conveying each portion of the Property pursuant to the legal
description drawn from the corresponding Survey, which legal descriptions shall
be subject to Seller’s approval, which approval shall not be unreasonably
withheld;


 


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


 


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


 


10





















 


Georgia
sales tax withholding is not required.  If
Seller fails to deliver such certificates or affidavits, and otherwise fails to
provide Escrow Agent reasonably satisfactory assurance that withholding is not
required, then Escrow Agent shall be entitled to withhold applicable Georgia
sales taxes, if and to the extent required by applicable Georgia law and
regulation.


 


4.3                                 Purchaser’s Obligations at Closing.  At
Closing, Purchaser shall:


 


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


 


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


 


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


 


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


 


4.4                                 Credits and Prorations.


 


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


 


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


 


11





















 


tenants
under the Leases other than refundable deposits, application fees, late charges
and termination payments (of which deposits shall be treated as set forth in
Section 4.4(b)(l), but such other amounts shall be retained by Seller);


 


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


 


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


 


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


 


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


 


(b) Notwithstanding anything contained in the foregoing provisions:


 


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


 


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


 


12





















 


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 tax year differ from the
amount apportioned at Closing, the parties shall make all necessary adjustments
by appropriate payments between themselves following Closing upon the
availability of the final tax bills, but such adjustments must be made within
ninety (90) days of written notice of the final tax bills by the party who last
receives such written notice.


 


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


 


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


 


(5) The Tangible Personal Property is included in this sale, without
further charge, and Seller shall pay to the applicable taxing authority the
amount of any sales tax or other taxes payable in connection with the Tangible
Personal Property, if any, and Seller shall execute and deliver any tax returns
required of it in connection therewith, said obligations of Seller to survive
closing.


 


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


 


13





















 


improvement
costs, lease buyout costs, and moving, design, refurbishment, finish air
conditioning system allowance, club membership and other allowances.


 


(7) Unpaid and delinquent rent collected by Seller and Purchaser after
the date of Closing shall be delivered as follows: (a) if Seller collects any
unpaid or delinquent rent for the Property, Seller shall, within fifteen (15)
days after the receipt thereof, deliver to Purchaser any such rent which
Purchaser is entitled to hereunder relating to the date of Closing and any
period thereafter, and (b) if Purchaser collects any unpaid or delinquent rent
from the Property, Purchaser shall, within fifteen (15) days after the receipt
thereof, deliver to Seller any such rent which Seller is entitled to hereunder
relating to the period prior to the date of Closing.  Seller and Purchaser agree that all rent
received by Seller or Purchaser after the Closing shall be applied first to
current rentals and then to delinquent rentals, if any, in inverse order of
maturity.  Purchaser will make a good
faith effort after Closing to collect all rents in the usual course of
Purchaser’s operation of the Property, but Purchaser will not be obligated to
institute any lawsuit or other collection procedures to collect delinquent
rents.


 


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


 


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


 


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


 


4.6                                 Conditions Precedent to
Obligation of Purchaser.  The
obligation of Purchaser to consummate the transaction hereunder shall be
subject to the fulfillment on or before the date


 


14





















 


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


 


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


 


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


 


(c) All of the representations and warranties of Seller contained in
this Agreement shall be true and correct in all material respects as of the date
of Closing (with appropriate modifications permitted under this Agreement or
not adverse to Purchaser).


 


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


 


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


 


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


 


15





















 


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


 


4.7                                 Conditions Precedent to
Obligation of Seller. The obligation of Seller to consummate the
transaction hereunder shall be subject to the fulfillment on or before the date
of Closing of all of the following conditions, any or all of which may be
waived by Seller in its sole discretion:


 


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


 


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


 


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


 


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


 


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


 


ARTICLE 5


 


REPRESENTATIONS, WARRANTIES AND COVENANTS


 


5.1                                 Representations and Warranties of
Seller.  Seller hereby makes the following
representations and warranties to Purchaser as of the Effective Date.  Such representations and warranties are
subject to (i) those matters, if any, disclosed in Seller’s disclosure
statement attached hereto as Exhibit F and made a part hereof by this
reference (“Seller’s Disclosure


 


16





















 


Statement”), (ii) the Permitted Exceptions, and (iii)
all other applicable provisions of this Agreement, including without limitation
Article 9.  In addition, each individual
representation and warranty is qualified to the extent of any applicable
information or exception which is otherwise disclosed in another representation
or warranty.


 


(a) Organization and Authority.  Seller has been duly organized and is validly existing
and in good standing as a limited partnership under the laws of the State of Georgia.  Seller has the full right and authority to
enter into this Agreement and to transfer the Property pursuant hereto and to
consummate or cause to be consummated the transactions contemplated herein.  The person signing this Agreement on behalf of
Seller is authorized to do so,  Neither
the execution and delivery of this Agreement nor any other documents executed
and delivered, or to be executed and delivered, by Seller in connection with
the transactions described herein, will violate any provision of Seller’s organizational
documents or of any agreements, regulations, or laws to or by which Seller is
bound.  This Agreement has been duly
authorized, executed and delivered by Seller, is a valid and binding obligation
of Seller and is enforceable against Seller in accordance with its terms
subject to  (i) applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws affecting the rights of
creditors generally; and (ii) the exercise of judicial discretion in accordance
with general principles of equity.


 


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


 


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


 


(d) Leases.  Seller is the lessor or landlord under the
Leases.  Except as set forth in the List
of Leases, there are no other leases or occupancy agreements affecting the Property
to which Seller is a party or of which Seller is aware. Notwithstanding
anything to the contrary contained in this Agreement, Seller does not represent
or warrant that any particular Lease will be in force or effect at Closing or
that the tenants under the Leases will have performed their obligations
thereunder.  The termination of any Lease
prior to Closing by reason of the tenant’s default shall not affect the
obligations of Purchaser under this Agreement in any manner or entitle
Purchaser to an abatement of or credit


 


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against
the Purchase Price or give rise to any other claim on the part of Purchaser.  In the event that any tenant estoppel
delivered to Purchaser with respect to any of the Leases contains any statement
of fact, information or other matter which is inconsistent with any statement
in this Agreement, such tenant estoppel shall control and Seller shall have no
liability for any claim based upon a breach of representation or warranty
regarding such statement of fact, information or other matter contained in such
tenant estoppel.


 


(e) Taxes and Assessments.  True and complete copies of the most recent
real estate tax bills for the Property have been or will be delivered to
Purchaser.  Except for the Permitted
Exceptions, Seller does not have any knowledge of any pending or threatened
liens, special assessments, or impositions against the Property by any governmental
or public authority.


 


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


 


(g) Insurance.  To Seller’s knowledge, Seller has not
received prior to the Effective Date any written notice from any insurance
company or board of fire underwriters of any defects or inadequacies in or on
the Property or any part or component thereof that would materially and
adversely affect the insurability of the Property or cause any material
increase in the premiums for insurance for the Property, that have not been
cured or repaired.


 


(h) Financial Status.  Seller is solvent, has not made a general
assignment for the benefit of its creditors, and has not admitted in writing
its inability to pay its debts as they become due, nor has Seller filed, nor
does it contemplate the filing of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or any other proceeding for the relief
of debtors in general, nor has any such proceeding been instituted by or
against Seller, nor is any such proceeding to Seller’s knowledge threatened or
contemplated.  The sale of the Property
will not render Seller insolvent.


 


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


 


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


 


(k) Agreements.  To Seller’s knowledge, there exist no
off-record development, cost-sharing, recapture or like agreements burdening
the Property that will survive the Closing of the transactions described by
this Agreement.


 


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5.2                                 Knowledge Defined.  References
to the “knowledge” of Seller shall refer only
to the actual knowledge, without investigation or inquiry, on the Effective
Date of the Knowledge Parties (as hereinafter defined) of Seller, and shall not
be construed, by imputation or otherwise, to refer to the knowledge of any
other officer, agent, manager, representative, employee property manager or
broker of Seller or any affiliate of Seller, or to impose upon such Knowledge
Parties any duty to investigate the matter to which such actual knowledge, or
the absence thereof, pertains.  As used
herein, the term “Knowledge Parties” shall refer to
Robert Cancelliere (who is the President of Seller) and Bill Worthington (who
is the property manager).


 


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


 


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


 


(a) Operation of Property.  Seller shall use reasonable efforts to
operate and maintain the Property in a manner generally consistent with the manner
in which Seller has operated and maintained the Property prior to the date
hereof.


 


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


 


19





















 


Purchaser
in Purchaser’s sole discretion; provided, however, if Purchaser
does not respond in writing to Seller’s written request for Purchaser’s
approval of the terms of any proposed lease or renewal within five (5) business
days of Purchaser’s receipt of such request, Purchaser shall be deemed to have
approved such proposed lease or renewal.  Each such new lease or renewal entered into by
Seller shall constitute a “Lease” for purposes of this Agreement.


 


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


 


(d) Enforcement of Existing Leases.
 Seller shall make commercially
reasonable efforts to perform the landlord’s material obligations to the
tenants under the Leases and to enforce the material obligations of the tenants
under the Leases, in each case in accordance with the current management standards
of Seller for the Property.


 


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


 


(f) Removal and Replacement of Tangible Personal
Property.  Seller shall
not remove any Tangible Personal Property except as may be required for
necessary repair or replacement (which repair and replacement shall be of equal
quality and quantity as existed as of the time of the removal), or otherwise in
accordance with current inventory and management standards of Seller for the
Property.


 


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


 


(h) Maintenance of Permits.  Seller shall make commercially reasonable
efforts to maintain in existence all licenses, permits and approvals that are
now in existence with


 


20





















 


respect to, and are required for, the
ownership, operation or improvement of the Property, and are of a continuing
nature.


 


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


 


(a) Organization and Authority.  Purchaser has been duly organized and is
validly existing as a corporation under the laws of the State of Illinois.  Purchaser has the full right and authority to
enter into this Agreement and to purchase the Property pursuant hereto and to
consummate or cause to be consummated the transactions contemplated herein.  The person signing this Agreement on behalf of
Purchaser is authorized to do so.  Neither
the execution and delivery of this Agreement nor any other documents executed
and delivered, or to be executed and delivered, by Purchaser in connection with
the transactions described herein, will violate any provision of Purchaser’s
organizational documents or of any agreements, regulations, or laws to or by
which Purchaser is bound.  This Agreement
has been duly authorized, executed and delivered by Purchaser, is a valid and
binding obligation of Purchaser and is enforceable against Purchaser in
accordance with its terms subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws affecting the rights of creditors
generally; and (ii) the exercise of judicial discretion in accordance with
general principles of equity.


 


(b) Consents.  Purchaser has obtained all consents and
permissions (if any) related to the execution of this Agreement and, prior to
the expiration of the Inspection Period, Purchaser shall have obtained all further
consents and permissions (if any), required to consummate transactions herein
contemplated and required under any covenant, agreement, encumbrance, law or
regulation by which Purchaser is bound.


 


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


 


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


 


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5.6                                 Survival of Purchaser’s
Representations and Warranties.  The representations and warranties of
Purchaser set forth in Section 5.5 shall survive Closing for a period of one
hundred eighty (180) days after Closing.


 


5.7                                 Covenants of Purchaser.


 


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


 


(b) “Designated Service Contracts”
means (i) those certain service contracts which are assignable in accordance
with their terms that Purchaser identifies by written notice delivered to
Seller on or before the Inspection Date as the service contracts Purchaser
elects Seller to assign at Closing, (ii) those assignable service contracts
regarding which Purchaser has failed to deliver such written notice on or
before the Inspection Date, and (iii) those service contracts (the “Must Take Service Contracts”) which are
assignable in accordance with their terms and which may not be terminated
without cause or penalty, with thirty (30) days (or less) written notice;
provided, however, in no event shall any property management agreement for any
Project be deemed a Designated Service Contract.  Purchaser hereby covenants with Seller that
on or before the Inspection Date, Purchaser shall deliver written notice to
Seller instructing which of the assignable service contracts Purchaser desires
for Seller to assign to Purchaser and which it does not.  If Purchaser fails to timely deliver such
notice, Purchaser shall be deemed to have chosen to have all assignable service
contracts (other than any existing property management agreements) assigned to
Purchaser, and all such service contracts shall be deemed part of the
“Designated Service Contracts.” At Closing or as promptly as practicable
thereafter, Seller will cause the service contracts which Purchaser has elected
not to have assigned to Purchaser (other than the Must Take Service Contracts),
by operation of the aforesaid notice on or before the Inspection Date, to be
terminated at Seller’s expense, such termination to be effective within the
time period provided for in the applicable service contract or, if no such time
period is provided, as promptly as practicable after the Closing Date.  The provisions of this Section 5.7(b) shall
survive Closing.


 


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ARTICLE 6


 


DEFAULT


 


6.1                                 Default by Purchaser.  If
the sale of the Property as contemplated hereunder is not consummated due to Purchaser’s
default hereunder, then Seller shall be entitled, as its sole and exclusive
remedy for such default, to terminate this Agreement and receive the Earnest
Money as liquidated damages for the breach of this Agreement and not as a
penalty, it being agreed between the parties hereto that the actual damages to
Seller in the event of such breach are impractical to ascertain and the amount
of the Earnest Money is a reasonable estimate thereof, Seller hereby expressly
waiving and relinquishing any and all other remedies at law or in equity.  Seller’s right to receive the Earnest Money
is intended not as a penalty, but as full liquidated damages.  The right to receive the Earnest Money as
full liquidated damages is Seller’s sole and exclusive remedy in the event of
default hereunder by Purchaser, and Seller hereby waives and releases any right
to (and hereby covenants that it shall not) sue Purchaser: (a) for specific
performance of this Agreement, or (b) to recover any damages of any nature or
description other than or in excess of the Earnest Money.  Purchaser hereby waives and releases any right
to (and hereby covenants that it shall not) sue Seller or seek or claim a
refund of the Earnest Money (or any part thereof) on the grounds it is
unreasonable in amount and exceeds Seller’s actual damages or that its
retention by Seller constitutes a penalty and not agreed upon and reasonable
liquidated damages.  This Section 6.1 is
subject to Section 6.4 hereof.


 


6.2                                 Default by Seller.  If the sale of the Property as contemplated hereunder is not
consummated due to Seller’s default hereunder, then Purchaser shall be
entitled, as its sole remedy for such default, either (a) to receive, upon
notice to Escrow Agent and Seller, an immediate return of the Earnest Money, which
return shall operate to terminate this Agreement and release Seller from any
and all liability hereunder, or (b) to enforce specific performance of Seller’s
obligation to convey the Property to Purchaser pursuant to this Agreement.  Notwithstanding the foregoing, it is
understood and agreed that the remedy of specific performance shall not be
available to enforce any other obligation of Seller hereunder.  Purchaser expressly waives its rights to seek
damages in the event of Seller’s default hereunder.  In no event shall Seller be liable for
consequential, speculative, remote or punitive damages, or for actual damages
in excess of the amount set forth above.  Purchaser hereby waives any right to seek or
collect any such consequential, speculative, remote or punitive damages, or any
actual damages in excess of the amount set forth above.  Purchaser shall be deemed to have elected to
terminate this Agreement and receive back the Earnest Money if Purchaser fails
to file suit for specific performance against Seller in a court having
jurisdiction in the county and state in which the Property is located, on or
before thirty (30) days following the date upon which Closing was to have
occurred.


 


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


 


23





















 


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


 


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


 


ARTICLE 7


 


RISK OF LOSS


 


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


 


7.2                                 Major Damage.  In
the event of a “major” loss or damage, Purchaser may terminate this Agreement
by written notice to Seller and Escrow Agent, in which event the Earnest Money
shall be returned to Purchaser in accordance with Section 1.6.  If Purchaser does not elect to terminate this
Agreement within ten (10) days after Seller sends Purchaser written notice of
the occurrence of major loss or damage, then Purchaser shall be deemed to have
elected to proceed with Closing, in which event Seller shall, at Seller’s
option, either (a) perform any necessary repairs, or (b) assign to Purchaser
all of Seller’s right, title and interest to any claims and proceeds Seller may
have with respect to any casualty insurance policies or condemnation awards
relating to the premises in question.  In
the event that Seller elects to perform repairs upon the Project(s), Seller
shall use reasonable efforts to complete such repairs promptly.  If Seller does not complete such repairs
prior to Closing, Seller shall assign its casualty claim to Purchaser.  If Seller assigns its casualty claim to
Purchaser, Purchaser shall receive a credit against the Purchase Price equal to
the deductible amount under Seller’s insurance policy.  Upon Closing, full risk of loss with respect
to the Property shall pass to Purchaser.


 


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


 


24





















 


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


 


ARTICLE 8


 


COMMISSIONS


 


8.1                                 Broker’s Commission.  The parties acknowledge that Broker has been retained by and represents
Seller as broker in connection with the sale of the Property by Seller to
Purchaser, and is to be compensated for its services by Seller.  Seller agrees that Seller shall pay to Broker
upon, but only upon, final consummation of the transaction contemplated herein,
a real estate brokerage commission pursuant to a separate written agreement
between Seller and Broker.  Broker has
executed this Agreement for the purpose of acknowledging and agreeing that no
real estate commission shall be earned by it or due it if the transaction
contemplated herein does not close as a result of Seller’s default, Purchaser’s
default or otherwise.  At Closing, Broker
shall execute and deliver to Seller and Purchaser a release of any lien or
claim of lien of Broker with respect to the Property and shall execute and
deliver to Purchaser and Seller a general release of any claims arising out of
the transaction contemplated in this Agreement.


 


8.2                                 Representation and Indemnity.  Purchaser and Seller each hereby represents and warrants to the other
that it has not disclosed this Agreement or the subject matter hereof to, and
has not otherwise dealt with, any real estate broker, agent or salesman (other
than Broker) so as to create any legal right or claim in any such broker, agent
or salesman (other than Broker) for a real estate commission or similar fee or
compensation with respect to the negotiation and/or consummation of this
Agreement or the conveyance of the Property by Seller to Purchaser.  Except as provided in Section 8.1 with respect
to Broker, Purchaser and Seller hereby indemnify each other against, and agree
to hold each other harmless from, any liability or claim (and all expenses,
including reasonable attorneys’ fees, incurred in defending any such claim or
in enforcing this indemnity) for a real estate brokerage commission or similar
fee or compensation arising out of or in any way connected with any claimed
dealings with the indemnitor and relating to this Agreement or the purchase and
sale of the Property.  Broker hereby
represents and warrants to Seller and Purchaser that it has not disclosed this
Agreement or the subject matter hereof to, and has not otherwise dealt with,
any real estate broker, agent or salesman so as to create any legal right or
claim in any such broker, agent or salesman for a real estate commission or
similar fee or compensation with respect to the negotiation and/or consummation
of this Agreement or the conveyance of the Property by Seller to
Purchaser.  Further, Broker hereby
indemnifies Purchaser and Seller against, and agrees to hold Purchaser and
Seller


 


25





















 


harmless from, any liability
or claim (and all expenses, including attorneys’ fees, incurred in defending
any such claim or in enforcing this indemnity) for a real estate brokerage
commission or similar fee or compensation arising out of or in any way
connected with any claimed dealings with such Broker and relating to this
Agreement or the purchase and sale of the Property.


 


8.3                                 Execution by Broker. 
Broker has executed this Agreement solely for the purpose of
acknowledging and agreeing to the provisions of this Article 8.  Broker’s consent to any modification or
amendment of any provision of this Agreement other than this Article 8 shall not
be required.


 


8.4                                 Survival.  This
Article 8 shall survive the rescission, cancellation, termination or
consummation of this Agreement.


 


ARTICLE 9


 


DISCLAIMERS AND WAIVERS


 


9.1                                 No Reliance on Documents.  Except
as expressly stated herein, Seller makes no representation or warranty as to
the truth, accuracy or completeness of any materials, data or information
delivered by Seller to Purchaser in connection with the transaction
contemplated hereby.  Purchaser
acknowledges and agrees that all materials, data and information delivered by
Seller to Purchaser in connection with the transaction contemplated hereby are
provided to Purchaser as a convenience only and that any reliance on or use of
such materials, data or information by Purchaser shall be at the sole risk of
Purchaser, except as otherwise expressly stated herein.  Without limiting the generality of the
foregoing provisions, Purchaser acknowledges and agrees that (a) any
environmental or other report with respect to the Property which is delivered
by Seller to Purchaser shall be for general informational purposes only, (b)
Purchaser shall not have any right to rely on any such report delivered by Seller
to Purchaser, but rather will rely on its own inspections and investigations of
the Property and any reports commissioned by Purchaser with respect thereto,
and (c) neither Seller, any affiliate of Seller nor the person or entity which
prepared any such report delivered by Seller to Purchaser shall have any
liability to Purchaser for any inaccuracy in or omission from any such report.


 


9.2                                 Disclaimers.  Except
as expressly set forth in this Agreement, 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, expressed or implied, with respect to
the Property, including, but not limited to, any warranties or representations
as to habitability, merchantability, fitness for a particular purpose, title
(other than Seller’s special warranty of title to be set forth in the Deeds),
zoning, tax consequences, latent or patent physical or environmental condition,
utilities, operating history or projections, valuation, governmental approvals,
the compliance of the Property with governmental laws, the truth, accuracy or
completeness of the Property documents or any other information provided by or
on behalf of Seller to Purchaser, or any other matter or thing regarding the
Property.  Purchaser acknowledges and
agrees that upon closing Seller shall sell and convey to Purchaser and
Purchaser shall accept the Property “as is, where is, with all faults”,
except to the extent expressly provided otherwise in this Agreement.  Purchaser has not


 


26





















 


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


 


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


 


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


 


27





















 


events, circumstances or
matters regarding the Property.  The
foregoing shall not be interpreted to waive any claim of Purchaser with respect
to any breach by Seller of any express representations and warranties made by
Seller in Section 5.1 that expressly survive closing pursuant to Section 5.3.


 


Purchaser agrees that should any
investigation, cleanup, remediation or removal of Hazardous Substances or other
environmental conditions on or related to the Property be required after the
date of Closing, Seller shall have no liability to Purchaser to perform or pay
for such investigation, clean-up, removal or remediation.  The foregoing shall not be interpreted to
waive any claim of Purchaser with respect to any breach by Seller of any
express representations and warranties made by Seller in Section 5.1 that
expressly survive closing pursuant to Section 5.3.


 


9.3                                 Effect and Survival of
Disclaimers.  Seller
and Purchaser acknowledge that the provisions of this Article 9 are an integral
part of this transaction and a material inducement to Seller to enter into this
Agreement and that Seller would not enter into this Agreement but for the
provisions of this Article 9.  Seller and
Purchaser agree that the provisions of this Article 9 shall survive Closing or
any termination of this Agreement.


 


ARTICLE 10


 


ESCROW AGENT


 


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


 


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


 


10.3                           Payment on Demand.  Subject
to the terms of Section 3.2 hereof, after December 14, 2004, upon receipt of
any written certification from Seller or Purchaser claiming the Earnest Money
pursuant to the provisions of this Agreement, Escrow Agent shall promptly
forward a copy thereof to the other such party (i.e., Purchaser or Seller,
whichever did not claim the Earnest Money pursuant to such notice) and, unless
such other party within ten (10) days thereafter notifies Escrow Agent of any
objection to such requested disbursement of the Earnest Money, Escrow Agent
shall disburse the Earnest Money to the party demanding the same and shall
thereupon be released and discharged from any further duty or obligation
hereunder.


 


10.4                           Exculpation of Escrow Agent.  It is
agreed that the duties of Escrow Agent are herein specifically provided and are
purely ministerial in nature, and that Escrow Agent shall incur no liability
whatsoever except for its willful misconduct or negligence, so long as Escrow


 


28





















 


Agent is acting in good
faith.  Seller and Purchaser do each
hereby release Escrow Agent from any liability for any error of judgment or for
any act done or omitted to be done by Escrow Agent in the good faith
performance of its duties hereunder and do each hereby indemnify Escrow Agent
against, and agree to hold, save, and defend Escrow Agent harmless from, any
costs, liabilities, and expenses incurred by Escrow Agent in serving as Escrow
Agent hereunder and in faithfully discharging its duties and obligations
hereunder.


 


10.5                           Stakeholder.  Escrow Agent is acting as a stakeholder only
with respect to the Earnest Money.  If
there is any dispute as to whether Escrow Agent is obligated to deliver the
Earnest Money or as to whom the Earnest Money is to be delivered, Escrow Agent
may refuse to make any delivery and may continue to hold the Earnest Money
until receipt by Escrow Agent of an authorization in writing, signed by Seller
and Purchaser, directing the disposition of the Earnest Money, or, in the
absence of such written authorization, until final determination of the rights
of the parties in an appropriate judicial proceeding.  If such written authorization is not given, or
a proceeding for such determination is not begun, within ten (10) days of
notice to Escrow Agent of such dispute, Escrow Agent may bring an appropriate
action or proceeding for leave to deposit the Earnest Money in a court of
competent jurisdiction pending such determination.  Escrow Agent shall be reimbursed for all costs
and expenses of such action or proceeding, including, without limitation,
reasonable attorneys’ fees and disbursements, by the party determined not to be
entitled to the Earnest Money.  Upon
making delivery of the Earnest Money in any of the manners herein provided,
Escrow Agent shall have no further liability or obligation hereunder.


 


10.6                           Interest.  All
interest and other income earned on the Earnest Money deposited with Escrow
Agent hereunder shall be reported for income tax purposes as earnings of
Purchaser.  Purchaser’s taxpayer
identification number is 36-3614035.


 


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


 


10.8                           Conflict.  In
the event of a conflict between this Article 10 and Section 3.2 of this
Agreement, the terms of Section 3.2 shall control.


 


29





















 


ARTICLE 11


 


MISCELLANEOUS


 


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


 


11.2                           Public Disclosure.   Subject
to the terms of Section 11.1 hereof, prior to Closing, any release to the
public of information with respect to the sale contemplated herein or any
matters set forth in this Agreement will be made only in the form approved by
Purchaser and Seller.


 


11.3                           Assignment.  Purchaser
may not assign its rights under this Agreement without first obtaining Seller’s
written approval, which approval may be given or withheld in Seller’s sole
discretion.  Any transfer, directly or
indirectly, of any stock, partnership interest or other ownership interest in
Purchaser without Seller’s written approval, which approval may be given or
withheld in Seller’s sole discretion, shall constitute a default by Purchaser
under this Agreement; provided, however, Purchaser may assign
this Agreement at Closing to a Permitted Affiliate without Seller’s consent.  For purposes hereof, the term “Permitted
Affiliate” means an entity that controls, is controlled by, or is under common
control with Purchaser and is solvent at the time of assignment and at the time
of Closing, is not rendered insolvent by such assignment, and has sufficient
assets to consummate the transaction contemplated herein.  No transfer or assignment by Purchaser shall release
or relieve Purchaser of its obligations hereunder.  If Purchaser assigns its rights under this
Agreement in accordance with this Section 11.3, Purchaser shall deliver to
Seller, at Closing, written evidence of such assignment which includes an acknowledgement
by assignor and assignee that Seller is entitled to rely upon or is an intended
third party beneficiary of such assignment.


 


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


 


30





















 


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


 


	
  If to Seller:

  	
   

  	
  FFI American Market Fund,
  L.P.

  
	
   

  	
   

  	
  c/o FFI Real Estate USA,
  LLC

  
	
   

  	
   

  	
  4360 Chamblee Dunwoody
  Road

  
	
   

  	
   

  	
  Suite 520

  
	
   

  	
   

  	
  Atlanta, Georgia 30341

  
	
   

  	
   

  	
  Attention: Robert
  Cancelliere

  
	
   

  	
   

  	
  Telephone No. 770-457-2600

  
	
   

  	
   

  	
  Facsimile No. 770-457-3373

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  with a copy to:

  	
   

  	
  King & Spalding LLP

  
	
   

  	
   

  	
  191 Peachtree Street, N.E.

  
	
   

  	
   

  	
  Atlanta, Georgia
  30303-1763

  
	
   

  	
   

  	
  Attention: David G.
  Williams, Esq.

  
	
   

  	
   

  	
  Telephone No. 404-572-4619

  
	
   

  	
   

  	
  Facsimile No. 404-572-5148

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  If to Purchaser:

  	
   

  	
  Inland Real Estate
  Acquisitions, Inc.

  
	
   

  	
   

  	
  2901 Butterfield Road

  
	
   

  	
   

  	
  Oak Brook, Illinois 60523

  
	
   

  	
   

  	
  Attention: G. Joseph
  Cosenza, President

  
	
   

  	
   

  	
  Telephone No. 630-218-8000

  
	
   

  	
   

  	
  Facsimile No. 630-218-4935

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  with a copy to:

  	
   

  	
  The Inland Real Estate
  Group, Inc.

  
	
   

  	
   

  	
  2901 Butterfield Road

  
	
   

  	
   

  	
  Oak Brook, Illinois 60523

  
	
   

  	
   

  	
  Attention: Robert Baum,
  General Counsel

  
	
   

  	
   

  	
  Telephone No. 630-218-8000

  
	
   

  	
   

  	
  Facsimile No. 630-218-4900
  and 630-571-2360

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  If to Escrow Agent:

  	
   

  	
  Chicago Title & Trust Company

  
	
   

  	
   

  	
  171 North Clark Street

  
	
   

  	
   

  	
  Chicago, Illinois 60601

  
	
   

  	
   

  	
  Attention: Nancy Castro

  
	
   

  	
   

  	
  Telephone No. 312-223-2709

  
	
   

  	
   

  	
  Facsimile No. 312-223-2108

  



 


31





















 


	
  If to Broker:

  	
   

  	
  Maxwell Properties Inc.

  
	
   

  	
   

  	
  6017 Sandy Springs Circle

  
	
   

  	
   

  	
  Atlanta, Georgia 30328

  
	
   

  	
   

  	
  Attention: Bill
  Worthington

  
	
   

  	
   

  	
  Telephone No. 404-255-3001

  
	
   

  	
   

  	
  Facsimile No. 404-255-3382

  



 


11.5                           Modifications.  This
Agreement cannot be changed orally, and no agreement shall be effective to
waive, change, modify or discharge it in whole or in part unless such agreement
is in writing and is signed by the parties against whom enforcement of any
waiver, change, modification or discharge is sought.


 


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


 


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


 


11.8                           Entire Agreement.  This
Agreement, including the Exhibits, contain the entire agreement between the
parties pertaining to the subject matter hereof and fully supersedes all prior
written or oral agreements and understandings between the parties pertaining to
such subject matter.


 


11.9                           Further Assurances.  Each
party agrees that it will without further consideration execute and deliver
such other documents and take such other action, whether prior or subsequent to
Closing, as may be reasonably requested by the other party to consummate more
effectively the purposes or subject matter of this Agreement.  Without limiting the generality of the
foregoing, Purchaser shall, if requested by Seller, execute acknowledgments of
receipt with respect to any materials delivered by Seller to Purchaser with
respect to the Property. Upon a request therefor and after having an
opportunity to review and verify the Historical Summary of Gross Income and
Direct Operating Expenses referenced therein, Seller agrees that it shall
deliver to Purchaser’s auditor, KPMG LLP, a letter in the form attached hereto
as Exhibit D. The provisions of this Section 11.9 shall survive Closing.


 


11.10                     Counterparts.  This
Agreement may be executed in counterparts, and all such executed counterparts
shall constitute the same agreement.  It
shall be necessary to account for only one such counterpart in proving this
Agreement.


 


32





















 


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


 


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


 


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


 


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


 


11.15                     Seller’s Access to Records after Closing.  Purchaser shall cooperate with Seller for a period of three (3) years
after Closing in case of Seller’s need in response to any legal requirement,
tax audit, tax return preparation or litigation threatened or brought against
Seller, by allowing Seller and its agents or representatives access, upon
reasonable advance notice (which notice shall identity the nature of the
information sought by Seller), at all reasonable times to examine and make
copies of any and all instruments, files and records which predate the Closing,
provided, however, that nothing contained in this Section shall
require Purchaser to retain any files or records for any particular period of
time.  This Section 11.15 shall survive
Closing.


 


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


 


	
  Exhibit A

  	
   

  	
  -

  	
   

  	
  Legal Description of the
  Land

  
	
  Exhibit A-l

  	
   

  	
  -

  	
   

  	
  List of Projects

  
	
  Exhibit B

  	
   

  	
  -

  	
   

  	
  List of Leases

  
	
  Exhibit C

  	
   

  	
  -

  	
   

  	
  Service Contracts

  
	
  Exhibit D

  	
   

  	
  -

  	
   

  	
  Form of Audit Letter

  
	
  Exhibit E

  	
   

  	
  -

  	
   

  	
  [Reserved]

  



 


33





















 


	
  Exhibit F

  	
   

  	
  -

  	
   

  	
  Seller’s Disclosure
  Schedule

  
	
  Exhibit G

  	
   

  	
  -

  	
   

  	
  Form of Tenant Estoppel

  
	
  Exhibit H

  	
   

  	
  -

  	
   

  	
  Due Diligence Materials

  
	
  Exhibit I

  	
   

  	
  -

  	
   

  	
  Seller Lease Estoppel
  Certificate

  



 


11.17                     Captions.  The
section headings appearing in this Agreement are for convenience of reference
only and are not intended, to any extent and for any purpose, to limit or
define the text of any section or any subsection hereof.


 


11.18                     Construction.  The
parties acknowledge that the parties and their counsel have reviewed and
revised this Agreement and that the normal rule of construction to the effect
that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement or any exhibits or amendments
hereto.


 


11.19                     Termination of Agreement.  It is
understood and agreed that if either Purchaser or Seller terminates this
Agreement pursuant to a right of termination granted hereunder, such
termination shall operate to relieve Seller and Purchaser from all obligations
under this Agreement, except for such obligations as are specifically stated
herein to survive the termination of this Agreement.


 


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


 


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


 


[SIGNATURES ON FOLLOWING PAGES]


 


34





















 


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


 


	
   

  	
  SELLER:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FFI AMERICAN MARKET FUND, L.P.,

  a Georgia limited
  partnership

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  FFI REAL ESTATE USA, LLC,
  a

  Georgia limited liability company, its

  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Robert [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Robert
  [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
  Title:

  	
  President

  	
   

  
								



 


 


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35





















 


	
   

  	
  PURCHASER:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  INLAND REAL ESTATE
  ACQUISITIONS,

  INC., an Illinois
  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
  Name:

  	
  [ILLEGIBLE]

  	
   

  
	
   

  	
  Title:

  	
  President

  	
   

  
							



 


 


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36





















 


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


 


	
   

  	
  ESCROW
  AGENT:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CHICAGO
  TITLE & TRUST COMPANY,

  a Missouri corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nancy R. Castro

  	
   

  
	
   

  	
  Name:

  	
  NANCY R. CASTRO

  	
   

  
	
   

  	
  Title:

  	
  AVP

  	
   

  
						



 


 


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37





















 


	
   

  	
  BROKER:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MAXWELL
  PROPERTIES INC.,

  a Georgia licensed
  real estate broker

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
  Name:

  	
  [ILLEGIBLE]

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
							



 


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