Exhibit
10.456


 


PURCHASE AND SALE AGREEMENT


 


AMONG


 


FRC WEST PROPERTY, L.L.C.;


AMERICAN EXPRESS TRAVEL
RELATED SERVICES COMPANY, INC.; and


IDS PROPERTY CASUALTY
INSURANCE COMPANY,


 


collectively, SELLER


 


AND


 


INLAND REAL ESTATE
ACQUISITIONS, INC., or its designees,


 


collectively, PURCHASER


 


DATED AS OF DECEMBER 16,
2004


 





















 


TABLE OF CONTENTS


 


	
  1.

  	
  SALE OF PROPERTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  2.

  	
  PURCHASE PRICE AND DEPOSIT

  	
   

  
	
   

  	
   

  	
   

  
	
  3.

  	
  APPORTIONMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  4.

  	
  CLOSING
  DATE

  	
   

  
	
   

  	
   

  	
   

  
	
  5.

  	
  PERMITTED
  ENCUMBRANCES

  	
   

  
	
   

  	
   

  	
   

  
	
  6.

  	
  TITLE

  	
   

  
	
   

  	
   

  	
   

  
	
  7.

  	
  PROPERTY NOT INCLUDED
  IN SALE

  	
   

  
	
   

  	
   

  	
   

  
	
  8.

  	
  REPRESENTATIONS AND
  WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  9.

  	
  CLOSING COSTS

  	
   

  
	
   

  	
   

  	
   

  
	
  10.

  	
  CONDITIONS
  PRECEDENT TO CLOSING

  	
   

  
	
   

  	
   

  	
   

  
	
  11.

  	
  DOCUMENTS
  TO BE DELIVERED BY SELLER AT CLOSING

  	
   

  
	
   

  	
   

  	
   

  
	
  12.

  	
  DOCUMENTS AND PAYMENTS TO BE
  DELIVERED BY PURCHASER AT CLOSING

  	
   

  
	
   

  	
   

  	
   

  
	
  13.

  	
  OPERATION OF THE
  PROPERTIES PRIOR TO THE CLOSING DATE

  	
   

  
	
   

  	
   

  	
   

  
	
  14.

  	
  AS-IS

  	
   

  
	
   

  	
   

  	
   

  
	
  15.

  	
  BROKER

  	
   

  
	
   

  	
   

  	
   

  
	
  16.

  	
  CASUALTY; CONDEMNATION

  	
   

  
	
   

  	
   

  	
   

  
	
  17.

  	
  REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  18.

  	
  INTENTIONALLY DELETED

  	
   

  
	
   

  	
   

  	
   

  
	
  19.

  	
  INTENTIONALLY DELETED

  	
   

  
	
   

  	
   

  	
   

  
	
  20.

  	
  INTENTIONALLY DELETED

  	
   

  
	
   

  	
   

  	
   

  
	
  21.

  	
  ASSIGNMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  22.

  	
  INTENTIONALLY DELETED

  	
   

  
	
   

  	
   

  	
   

  
	
  23.

  	
  NOTICES

  	
   

  
	
   

  	
   

  	
   

  
	
  24.

  	
  PROPERTY
  INFORMATION AND CONFIDENTIALITY

  	
   

  
	
   

  	
   

  	
   

  
	
  25.

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULES:

  	
   

  
	
   

  	
   

  
	
  1-A

  	
  DESCRIPTION OF THE LAND (20022 N. 31st Ave., Phoenix, AZ)

  	
   

  
	
  l-B

  	
  DESCRIPTION OF THE LAND (20002 N. 19th Ave., Phoenix, AZ)

  	
   

  
	
  1-C

  	
  DESCRIPTION OF THE LAND (1001 N. 3rd Ave. South,
  Minneapolis, MN)

  	
   

  
	
  1-D

  	
  DESCRIPTION OF THE LAND (3500 Packerland Dr., Depere, WI)

  	
   

  



 


i





















 


	
  1-E

  	
  INTENTIONALLY OMITTED.

  	
   

  
	
  1-F

  	
  DESCRIPTION OF THE LAND (4315 South 2700 West, Salt Lake City, UT)

  	
   

  
	
  1-G

  	
  DESCRIPTION OF THE LAND (7701 Airport Center, Greensboro, NC)

  	
   

  
	
  1-H

  	
  DESCRIPTION OF THE LAND (777 American Expressway, Ft. Lauderdale, FL)

  	
   

  
	
  2

  	
  PERMITTED ENCUMBRANCES

  	
   

  
	
  8(4)(2)

  	
  MATERIALLY CONTRAVENED DOCUMENTS

  	
   

  
	
  8(4)(4)

  	
  DUE DILIGENCE ITEMS DELIVERED TO PURCHASER

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS:

  	
   

  
	
   

  	
   

  	
   

  
	
  A.

  	
  FORM OF ESCROW AGREEMENT

  	
   

  
	
  B.

  	
  SELLER’S EQUIPMENT AND PERSONALTY

  	
   

  
	
  C.

  	
  DOCUMENTS TO WHICH SELLER IS A PARTY

  	
   

  
	
  D.

  	
  FORM OF SNDA

  	
   

  
	
  E.

  	
  FORM OF DEEDS

  	
   

  
	
  F.

  	
  FORM OF LEASE

  	
   

  
	
  G.

  	
  NON-FOREIGN AFFIDAVIT UNDER INTERNAL REVENUE CODE SECTION 1445(b)(2)

  	
   

  



 


ii





















 


TABLE
OF DEFINED TERMS


 


The following capitalized teams are defined
in the respective Section of the Agreement identified below:


 


•              “AEPC
Property” - as such term is defined in the WHEREAS clauses hereof.


 


•              “AESC
- F Property” - as such term is defined in the WHEREAS clauses hereof.


 


•              “AESC
- G Property” - as such term is defined in the WHEREAS clauses hereof.


 


•              “AESC
- P Property” - as such term is defined in the WHEREAS clauses hereof.


 


•              “AESC
- SLC Property” - as such term is defined in the WHEREAS clauses hereof.


 


•              “Agreement”
- as such term is defined in the opening paragraph hereof.


 


•              “CITIGROUP”
- as such term is defined in Section 15 hereof.


 


•              “Closing”
- as such term is defined in Section 4 hereof.


 


•              “Closing
Date” - as such term is defined in Section 4 hereof.


 


•              “Data
Center Property” - as such term is defined in the WHEREAS clauses hereof.


 


•              “Deed”
- as such term is defined in Section 11(1) hereof.


 


•              “Deposit”
- as such term is defined in Section 2(2) hereof.


 


•              “Environmental
Laws” - as such term is defined in Section 14(1) hereof.


 


•              “Excess
Land” – as such term is defined in Section 4 hereof.


 


•              “Escrow
Agent” - as such term is defined in Section 2(3) hereof.


 


•              “Exculpated
Parties” - as such term is defined in Section 8(1) hereof.


 


•              “FRC”
- as such term is defined in the opening paragraph hereof.


 


•              “FRC-W
Property” - as such term is defined in the WHEREAS clauses hereof.


 


•              “Governmental
Action” - as such term is defined in Section 8(4)(3)
hereof.


 


•              “Governmental
Authority” - as such term is defined in Section 8(4)(3)
hereof.


 


•              “Guarantor”
- as such term is defined in Section 8(4)(2)(B) hereof.


 


iii





















 


•              “Hazardous
Substances” - as such term is defined in Section 14(1) hereof.


 


•              “Involuntary
Liens” - as such term is defined in Section 6(2) hereof.


 


•              “IDS”
- as such term is defined in the opening paragraph hereof.


 


•              “Lease”
- as such term is defined in Section 11(2) hereof.


 


•              “Permitted
Encumbrances” - as such term is defined in Section 5 hereof.


 


•              “Property”
or “Properties” - as such term is defined in the WHEREAS clauses hereof.


 


•              “Property
Information” - as such term is defined in Section 24(4) hereof.


 


•              “Purchase
Price” - as such term is defined in Section 2 hereof.


 


•              “Purchaser”
- as such term is defined in the opening paragraph hereof.


 


•              “Purchaser’s
Representatives” - as such
term is defined in Section 24(4) hereof.


 


•              “Seller”
- as such term is defined in the opening paragraph hereof.


 


•              “Seller’s
Affiliates” - as such term is defined in Section 25(5) hereof


 


•              “Subdivision
Properties” - as such term is defined in Section 4 hereof.


 


•              “Surveys”
- as such term is defined in Section 6(1)(i) hereof.


 


•              “Surviving
Obligations” - as such term is defined in Section 25(19) hereof.


 


•              “Taking”
- as such term is defined in Section 16(2) hereof.


 


•              “TCC”
- as such term is defined in Section 14(3) hereof


 


•              “Termination
Obligations” - as such term is defined in Section 17(1) hereof.


 


•              “Third
Party Reports” - as such term is defined in Section 8(1) hereof.


 


•              “Title
Commitments” - as such term is defined in Section 6(1)(i) hereof.


 


•              “Title
Company” - as such term is defined in Section 6(1)(ii)
hereof.


 


•              “Title
Items” - as such term is defined in Section 6(1)(i)
hereof.


 


•              “Title
Objection Letters” - as such term is defined in Section 6(1)(i) hereof.


 


iv





















 


•              “Transfer
Tax Payments” - as such term is defined in Section 9 hereof.


 


•              “Transfer
Tax Return” - as such term is defined in Section 9 hereof.


 


•              “TRS”
- as such term is defined in the opening paragraph hereof


 


•              “TRS
Properties” - as such term is defined in the opening paragraph hereof.


 


•              “Unacceptable
Encumbrances” - as such term is defined in Section 6(1)(ii) hereof


 


•              “Voluntary
Liens” - as such term is defined in Section 6(2) hereof.


 


v





















 


PURCHASE AND
SALE AGREEMENT


 


PURCHASE AND
SALE AGREEMENT (this “Agreement”)
dated as of the      day of        ,
2004, by and among FRC WEST PROPERTY, L.L.C., an Arizona limited liability
company (“FRC”), AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC., a New York corporation (“TRS”),
and IDS PROPERTY CASUALTY INSURANCE COMPANY, a Wisconsin corporation (“IDS”), (each individually and collectively, the “Seller”), each having an office at c/o American Express
Company, 200 Vesey Street, New York, New York 10285, and INLAND REAL ESTATE
ACQUISITIONS, INC., a corporation of the State of Illinois (with its designees,
the “Purchaser”), having an office at c/o
The Inland Real Estate Group, Inc., 2901 Butterfield Road, Oak Brook, Illinois
60523.


 


W I T N E S
S E T H


 


WHEREAS,
(i) TRS is the owner of the parcels of land described on Schedule 1-A (the
“AESC - P Property”), Schedule 1-C
(the “Data Center Property”), Schedule 1-F
(the “AESC - SLC Property”), Schedule 1-G
(the “AESC - G Property”) and Schedule 1-H
(the “AESC - F Property”) attached hereto
and the buildings located thereon (such parcels of land and such buildings
being hereinafter referred to collectively together as the “TRS
Properties”), (ii) FRC is the owner of the parcels of land described
on Schedule 1-B attached hereto and the buildings located thereon (the “FRC-W Property”), and (iii) IDS is the owner of the parcels
of land described on Schedule 1-D attached hereto and the buildings
located thereon (the “AEPC Property”),
(each of the TRS Properties, the FRC-W Property, and the AEPC Property referred
to individually as a “Property” and
collectively as the “Properties”);
and


 


WHEREAS,
Seller and Purchaser now desire to enter into an agreement whereby, subject to
the terms and conditions contained herein, (i) Seller shall sell the Properties
to Purchaser and Purchaser shall purchase the Properties from Seller, and (ii)
Seller, or an affiliate of Seller, shall lease back the Properties from
Purchaser.


 


NOW,
THEREFORE, in consideration of ten ($10.00) dollars
and the mutual covenants and agreements hereinafter set forth, and intending to
be legally bound hereby, it is hereby agreed as follows:


 


1.             SALE
OF PROPERTIES.


 


Seller agrees
to sell and convey to Purchaser, and Purchaser agrees to purchase from Seller,
at the price and upon the terms and conditions set forth in this Agreement, the
Properties.


 


2.             PURCHASE PRICE AND DEPOSIT.


 


(1)           The
purchase price to be paid by Purchaser to Seller for the Properties (the “Purchase Price”) is THREE HUNDRED FORTY-EIGHT MILLION AND
NO/100 ($348,000,000.00) Dollars payable at the Closing by bank wire transfer
of immediately available funds to Seller’s account or to the account or
accounts of such other party or parties as may be designated by Seller on or at
least two (2) business days prior to the Closing Date.


 


Subject to the
Canada Contract (as hereinafter defined), this Agreement is intended to be a
single unitary agreement, and Seller is required to sell the


 





















 


Properties to
Purchaser pursuant to the terms and provisions of this Agreement, and Purchaser
is required to purchase the Properties from Seller pursuant to the terms and
provisions of this Agreement and subject to the conditions contained herein.
The parties agree that the Purchase Price is hereby allocated among the
Properties as follows:


 


	
  Purchaser’s Designees

  	
   

  	
  Properties

  	
   

  	
  Purchase Price Allocation

  	
   

  	
  Deposit Allocation

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Inland Western Phoenix

  31ST Avenue, L.L.C.

  	
   

  	
  AESC - P Property

  	
   

  	
  $

  	
  54,000,000.00

  	
   

  	
  $

  	
  2,769,230.77

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Inland Western Phoenix

  19th Avenue, L.L.C.

  	
   

  	
  FRC-W Property

  	
   

  	
  $

  	
  14,000,000.00

  	
   

  	
  $

  	
  717,948.85

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Inland Western Minneapolis

  3rd Avenue, L.L.C.

  	
   

  	
  Data Center Property

  	
   

  	
  $

  	
  95,000,000.00

  	
   

  	
  $

  	
  4,871,794.85

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Inland Western
  Taylorsville

  2700 West, L.L.C.

  	
   

  	
  AESC - SLC Property

  	
   

  	
  $

  	
  48,000,000.00

  	
   

  	
  $

  	
  2,461,538.44

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Inland Western Greensboro

  Airport Center, L.L.C.

  	
   

  	
  AESC - G Property

  	
   

  	
  $

  	
  56,000,000.00

  	
   

  	
  $

  	
  2,871,794.85

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Inland Western Plantation

  Express, L.L.C.

  	
   

  	
  AESC - F Property

  	
   

  	
  $

  	
  63,000,000.00

  	
   

  	
  $

  	
  3,230,769.21

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Inland Western
  DePere,

  L.L.C. 

  	
   

  	
  AEPC Property 

  	
    

  	
  $

  	
  18,000,000.00
  

  	
    

  	
  $

  	
  923,076.90 

  	
    

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  $

  	
  348,000,000.00

  	
   

  	
  $

  	
  17,846,154.87

  	
   

  



 


(2)           Simultaneously
with the execution of this Agreement by Purchaser, Purchaser is delivering to
Chicago Title Insurance Company, as escrow agent (the “Escrow Agent”)
Purchaser’s tax identification number and (i) an unendorsed bank check issued
by a bank which is a member of the New York Clearinghouse Association, payable
directly to the order of “Chicago Title Insurance Company, as Escrow Agent” or
(ii) a wire transfer of immediately available federal funds to the Escrow
Agent, in the amount of SEVENTEEN MILLION EIGHT HUNDRED FORTY- SIX THOUSAND,
ONE HUNDRED FIFTY-FOUR AND 87/100 ($17,846,154.87) Dollars (the “Deposit”); provided no Deposit shall be required with
respect to the AESC-SLC Property;


 


(3)           Upon
receipt by Escrow Agent of the Deposit, Escrow Agent shall cause the same to be
deposited into an interest bearing account selected by Escrow Agent (it being
agreed that Escrow Agent shall be required to obtain a rate of interest at
least equal to that currently being earned by United States Government Treasury
Bills available on an overnight basis, but shall not be obligated to obtain any
higher rate) in accordance with the terms of that certain Escrow Agreement of
even date herewith between Seller, Purchaser and Escrow Agent, in substantially
the form as attached hereto as Exhibit “A”. If
the Closing shall occur, the


 


2





















 


interest on the Deposit, if
any, shall be paid to Seller and, if the Closing shall not occur and this
Agreement shall be terminated, then the interest earned on the Deposit shall be
paid to the party entitled to receive the Deposit as provided in this
Agreement, The party receiving such interest shall pay any income taxes
thereon.


 


(4)           Except and to the extent (i) as set forth in
Sections 6, 8(5), 10(3) and 17(1), (ii) Seller defaults hereunder or (iii)
Seller fails to satisfy any condition precedent to Purchaser’s obligation to
close which is not waived by Purchaser, the Deposit shall be nonrefundable. At
the Closing, the Deposit shall be paid to Seller, and Purchaser shall deliver
the balance of the Purchase Price (i.e., the Purchase Price less the Deposit)
to Escrow Agent for delivery to Seller in accordance with appropriate closing
escrow instructions to be provided by Seller to Escrow Agent at or prior to
Closing. In the event Seller fails, for reasons beyond Seller’s reasonable
control, to close on not more than two (2) of the Properties, Purchaser shall
be entitled to a pro-rated credit of the Deposit against the Purchase Price
based upon the allocation of the Purchase Price by Property set forth in Section 2
hereof (the “Deposit Allocation”). In the
event Seller fails for reasons beyond Seller’s reasonable control to close on
three (3) or more of the Properties, either party shall have the right, by
notice delivered to the other party, to terminate this Agreement and in the
event of such termination, Purchaser shall be entitled to the return of the
Deposit. Simultaneously with execution of this Agreement, affiliates of Seller
and Purchaser are also entering into a Purchase and Sale Agreement (the “Canada Contract”) with respect to 101 McNabb Street,
Markham, Ontario, Canada (the “Canada Property”).
In the event that Seller fails, for reasons beyond Seller’s reasonable control,
to close on the Canada Property under the Canada Contract, then the references
in the third and fourth sentences of this Section 2(4) to “not more than
two (2) of the Properties”, and “on three (3) or more of die Properties”,
respectively, shall be deemed changed to “not more than one (1) of the
Properties” and “on two (2) or more of the Properties.”


 


(5)           If there shall be any real property tax or
assessment appeals with respect to the period prior to Closing allocable to the
Property, Seller may, at its option and at its sole cost and expense, continue
the prosecution of such appeals and take related action which Seller reasonably
deems appropriate in connection therewith. Purchaser shall have the right, at
its sole cost and expense, to be present at any hearings in connection with
such proceedings with respect to the 2004 calendar year real property taxes.
Purchaser shall cooperate with Seller in connection with such proceedings and
appeals and collection of any refund, credit or rebate of real property taxes
paid relating to the time period prior to the Closing, but shall not be
obligated to incur any expense as a result thereof. With respect to the period
prior to Closing, Seller owns and retains all right, title and interest in and
to such real property tax and tax assessment appeals and all rebates, credits
or refunds, and all amounts payable in connection therewith or resulting from
any statutory or legislative change shall be paid directly to Seller by the
applicable authorities. With respect to the period prior to Closing, if such
refund, rebate or credit or any part thereof is received by Purchaser or
otherwise credited to Purchaser or to the tax roll for the Property, Purchaser
shall promptly pay such amount to Seller unless Purchaser or the lessor under
the Lease is obligated to pay such amount to the tenant under the Lease.
Purchaser agrees that it shall make available to Seller


 


3





















 


copies
of all correspondence and other documentation relating to the reassessment of
real property taxes relating to Property, which comes into the possession or
control of the Purchaser subsequent to the Closing and relates to real property
taxes for the period prior to the Closing.


 


The provisions
of this Section 2(5) shall survive the Closing.


 


(6)           Purchaser shall forthwith restore any
damage to the Property resulting from any audits, inspections or tests
performed for or on behalf of Purchaser at the Property. Seller reserves,
without limiting any of its other rights at law, equity or under this
Agreement, the right to offset against the Deposit, the cost of repair and
restoration of Property necessary as a result of damage or destruction caused
by Purchaser’s “due diligence” which has not been repaired or restored by
Purchaser within a reasonable period of time after Purchaser has been notified
of such damage.


 


3.             APPORTIONMENTS.


 


Insofar as
Seller or an affiliate of Seller and Purchaser will be entering into a Lease at
the Closing with respect to each Property, there shall not be any
apportionments or adjustments between Seller or
Purchaser with respect to income and expenses for any Property. The provisions
of this Section 3 shall survive the Closing.


 


4.             CLOSING DATE. The delivery of the Deeds
and the consummation of the transactions contemplated by this Agreement (the “Closing”) shall take place at a location reasonably agreed
upon by Seller and Purchaser, at 10 a.m. local time on or about December 16,
2004 (the “Closing Date”). Time shall be of the essence with
respect to the obligations of Purchaser to close the sale contemplated by this
Agreement on the Closing Date and execute and deliver a Lease for each Property
that Seller is able to convey in accordance with this Agreement on the Closing
Date. The parties agree that with respect to ancillary closing documents (i.e.,
all documents to be delivered at Closing pursuant to this Agreement except
Leases, SNDA’s, estoppels, Memoranda of Leases, Deeds and any other closing
documents that the parties hereto agree to record) required to be delivered on
the Closing Date, executed facsimile copies of ancillary closing documents
shall be acceptable; provided that originals of such ancillary documents shall
be delivered within two (2) business days after the Closing Date.


 


Purchaser
acknowledges that Seller intends to effectuate (i) a legal subdivision of the
AESC-SLC Property and (ii) a legal re-subdivision of the AEPC Property (the
AESC-SLC Property and the AEPC Property, together, the “Subdivision Properties”).
Seller intends to retain ownership of (i) that portion of the AESC-SLC Property
designated as the Excess Land on Schedule 1-F attached hereto and (ii) a
re-subdivided portion of Lot 1 of the AEPC Property (such portions of the
Subdivided Properties being referred to herein as “Excess Land”).
Purchaser further acknowledges that despite Seller’s diligent efforts in
pursuing such legal subdivision and re-subdivision, such subdivision and re-subdivision
will not be completed as of the Closing Date. Purchaser shall cooperate with
Seller in good faith to effectuate such subdivision and re-subdivision
including, without limitation, by signing such documents as may be required to
be signed by the owner of the Excess Land and by appointing Seller as Purchaser’s
agent for purposes of appearing


 


4





















 


before any
municipal agency or planning commission solely in connection with effecting the
subdivision or re-subdivision of the Excess Land from the balance of the
applicable Subdivision Property and without any other changes to such
Subdivision Property, except those required in order to effectuate the
subdivision or re-subdivision, as applicable, and conditions thereto, and
provided that Purchaser has the reasonable prior right of approval with respect
to such changes. Purchaser and Seller agree that because the Subdivision
Properties will not be legally subdivided or re-subdivided (as applicable) as
desired by Seller by the Closing Date, Seller shall proceed to closing on such
unsubdivided or unre-subdivided Subdivision Propert(ies), together with the
related Excess Land, in accordance with the terms of this Agreement, and Seller
shall have an option, at such times as the previously uncompleted subdivisions
or re-subdivision are legally completed, to purchase the then-subdivided or
re-subdivided Excess Land for a purchase price equal to One and No/100 ($1.00)
Dollar for each such parcel of Excess Land. Purchaser and Seller agree to
cooperate in good faith to effectuate any purchase of Excess Land by Seller in
a timely and orderly manner and Purchaser agrees to execute and deliver to
Seller such documents as may be reasonably required by Seller and its attorneys,
including, without limitation, a special warranty deed and such certificates
and affidavits as may be required by Seller’s title insurance company in order
to convey title to the Excess Land to Seller, free of all liens, encumbrances
and other matters not reasonably acceptable to Seller. Seller agrees that if
Excess Land is conveyed to Seller, Seller shall, at the time of such
conveyance, arrange for updated title commitments (including (i) all
endorsements included in Purchaser’s title insurance policy delivered at the
original closing of the Subdivision Property and the related Excess Land and
(ii) only those exceptions to title as were included in Purchaser’s title
insurance policy delivered at the original closing of the Subdivision Property
and the related Excess Land and any other exceptions to title as may be
reasonably approved by or consented to by Purchaser) and updated ALTA certified
surveys showing no survey defects to be delivered to Purchaser with respect to
the applicable Subdivision Property. Upon the legal completion of a subdivision
or re-subdivision hereunder and the conveyance of title to the Excess Land to
Seller, if the fair value (determined by having the original appraisal for the
applicable Subdivision Property (exclusive of the Excess Land) used in
connection with determining the Purchase Price Allocation for such Subdivision
Property updated to the date of the legal completion of the subdivision, the “Fair Value”), of the
Subdivision Property (exclusive of the Excess Land), exceeds the Purchase Price
Allocation (i.e., $18,000,000.00 for the AEPC Property and $48,000,000.00 for
the AESC-SLC Property) for such Subdivision Property, then (X) Purchaser shall
pay to Seller, in cash, the difference between (i) the Fair Value of the
applicable Subdivision Property (exclusive of the Excess Land) as of the date
of the legal completion of the subdivision or re-subdivision (as applicable)
and (ii) the Purchase Price Allocation for such Subdivision Property and (Y)
the Base Rent (as defined in the Lease) to be paid by Seller to Purchaser under
the Lease for the applicable Subdivision Property shall be increased
proportionately. In the event that the Fair Value of the Subdivision Property
(exclusive of the Excess Land) is less than the Purchase Price Allocation for
such Subdivision Property, then there shall be no adjustment in the purchase
price hereunder or the Base Rent under the Lease for the applicable Subdivision
Property.


 


In the event
that a subdivision or re-subdivision is not legally completed by the date that
is 180 days after the Closing Date (“the Subdivision Outside
Date”) or if Seller does not elect to purchase the Excess Land
pursuant to its option as set forth above, then, at the earlier of such date
that (i) Seller gives Purchaser written notice that Seller has elected


 


5





















 


not to
purchase the Excess Land or (ii) the Subdivision Outside Date has occurred
(such date, the “Re-valuation Date”), (I)
Purchaser shall pay to Seller an amount equal to the difference between (x) the
Fair Value of the Subdivision Property and the Excess Land as of the
Re-valuation Date and (y) the Purchase Price Allocation for the Subdivision
Property and (II) the Base Rent to be paid by Seller to Purchaser under the
Lease for the applicable Subdivision Property shall be increased
proportionately.


 


If Seller
elects to proceed to subdivide or re-subdivide (as applicable) the Subdivision
Properties, Purchaser and Seller shall cooperate in good faith and at no cost
to Purchaser, to cause the subdivision and re-subdivision and transfers
contemplated by this paragraph to occur in a timely and orderly manner.
Purchaser shall take all action reasonably requested by Seller in order to
effect such subdivision and re-subdivision.


 


5.             PERMITTED
ENCUMBRANCES. Subject to Purchaser’s review in accordance with Section 6(1)
below, Seller shall convey and Purchaser shall accept title to the Properties
subject to those matters set forth on Schedule “2” annexed hereto and made
a part hereof (collectively the “Permitted Encumbrances”);
provided, however, that upon the request of either party hereto, Schedule 2
may be revised after the execution of this Agreement so long as any subsequent
revisions to the Permitted Encumbrances schedule (i) are to include items
of the same type and category as those items set forth on Schedule 2
attached to this Agreement as of the date of the execution of this Agreement,
(ii) are reasonably acceptable to both parties, (iii) do not create any
encroachments or violate any restrictions of record or covenants of record for
the applicable Property(ies) other than encroachments with respect to which
Title Company has agreed to insure over or restrictions of record or covenants
of record that do not interfere with the use or enjoyment of the Properties and
for which the Title Company has agreed to issue a “Comprehensive 1 Endorsement”
or a “Restrictions Endorsement”, in either event confirming “no violations” and
(iv) do not occur after the Closing Date.


 


6.             TITLE.


 


(1)          (i)             Prior
to the date of this Agreement, Purchaser has received (x) title commitments and
the related underlying documents (together, “Title
Commitments”) for each of the Properties from the Title Company and
(y) surveys as more particularly described on Schedule 2 as items 1(a)-
(h) (the “Surveys”, together with the Title
Commitments, the “Title Items”). Purchaser has
provided Seller with notices for each of the Properties of its comments and
objections to the Title Items (each such notice, a “Title Objection Letter” and
collectively, the “Title Objection Letters”),
Purchaser and Seller have, and shall continue, in good faith, to address
Purchaser’s comments and attempt to eliminate Purchaser’s objections as
contained in the Title Objection Letters. Not later than one (1) business day
after Purchaser determines that the Title Items for a Property are reasonably
acceptable, Purchaser shall give notice to Seller stating same and the Deposit
Allocation for such Property shall become non-refundable to Purchaser, unless
Seller defaults hereunder or Seller fails to satisfy any condition precedent to
Purchaser’s obligation to close which is not waived by Purchaser, in which case
the applicable Deposit Allocation shall be refunded to Purchaser, in accordance
with the terms of this Agreement.


 


6





















 


(ii)           In
the event that, prior to the Closing, (x) Purchaser and Seller have not, to the
reasonable satisfaction of Purchaser, addressed Purchaser’s comments and/or
eliminated Purchaser’s objections to the Title Items as contained in the Title
Objection Letters or (y) Purchaser receives updated Title Commitments or
Surveys which indicate the existence of any liens, encumbrances or other
defects or exceptions in or to title to the Properties other than Permitted
Encumbrances and those identified on the initial Title Items, (collectively,
the “Unacceptable Encumbrances”), subject
to which Purchaser is unwilling to accept title, then provided Purchaser gives
Seller notice of the same within one (1) business day after receipt of such
updated Title Items, Seller shall undertake to eliminate such Unacceptable
Encumbrances. Purchaser hereby waives any right Purchaser may have to advance
as objections to title or as grounds for Purchaser’s refusal to close this
transaction any Unacceptable Encumbrance with respect to which Purchaser has
not notified Seller prior to the Closing (failure to so notify Seller shall be
deemed to be a waiver by Purchaser of its right to raise such Unacceptable
Encumbrance as an objection to title or as a ground for Purchaser’s refusal to
close this transaction). Seller, in its sole discretion, may adjourn the
Closing, as to any one of more Properties, one or more times for up to sixty
(60) days in the aggregate in order to attempt, in good faith, to eliminate
Unacceptable Encumbrances and to complete the subdivision of the AESC-SLC
Property. Purchaser shall cooperate with Seller and shall also use its
reasonable good faith efforts to eliminate Unacceptable Encumbrances. Seller
shall cooperate with Purchaser so that Purchaser may obtain title insurance
from Chicago Title Insurance Company (the “Title Company”);
provided, however, in no event shall Seller be required to spend any money or
satisfy any conditions for Chicago Title Insurance Company that Seller would
not have been required to satisfy for LandAmerica and in no event shall
extensions of time be granted in this Section 6(1) for new searches or
commitments that duplicate what is made available to Purchaser by LandAmerica.
Purchaser and Seller shall each pay $195,533.49 in respect of all title
searches, reports, premiums and closing fees in connection with title insurance
policies issued by Chicago Title Insurance Company for the Properties and
Chicago Title Insurance Company’s agreement to act as Escrow Agent.


 


(2)           Notwithstanding
anything to the contrary set forth in this Section 6 or elsewhere in this
Agreement, Seller shall not be obligated to bring any action or proceeding, to
make any payments or otherwise to incur any expense in order to eliminate any
Title Item objected to by Purchaser or Unacceptable Encumbrances not waived by
Purchaser or to arrange for title insurance insuring against enforcement of
such Title Items or Unacceptable Encumbrances against, or collection of the
same out of, the Properties; except that Seller shall (A) either (i) satisfy or
(ii) cause a reputable title company to insure over (it being agreed that
Purchaser shall be required to accept such “cure” from any reputable title company
agreeing to insure over such matter) (x) mortgages voluntarily imposed by
Seller, (y) judgments against Seller or (z) other liens voluntarily imposed by
Seller (excluding mechanic’s liens) (collectively, “Voluntary
Liens”) secured by or affecting the Properties which can be
satisfied by payment of liquidated amounts and (B) with respect to (x)
judgments as to which Seller is disputing or contesting, and (y) liens not
voluntarily imposed by Seller (collectively, “Involuntary


 


7





















 


Liens”)
affecting the Properties which can be satisfied by payment of liquidated
amounts, Seller shall be obligated to spend, with respect to the applicable
affected Property, an amount not to exceed the lesser of (i) two (2%) percent of the Purchase Price
allocated for such Property or (ii) $500,000.00 per affected Property, to
satisfy or cause a reputable title company to insure over (it being agreed that
Purchaser shall be required to accept such “cure” from any reputable title company
agreeing to insure over such matter) such Involuntary Lien. Without limiting
the generality of the preceding provisions of this Section 6(2), for the
purposes of this Agreement (including, without limitation Sections 6(1) and
17(1)), Seller’s failure or refusal to bring any action or proceeding, to make
any payments or to otherwise incur any expense (except for Seller’s obligation
to satisfy or cause a reputable title insurance company to insure over such
Voluntary Liens and Involuntary Liens as aforesaid) in order to eliminate
Unacceptable Encumbrances not waived by Purchaser or to arrange for such title
insurance shall not be a default by Seller hereunder (willful or otherwise) and
Purchaser shall not be entitled to any damages in connection therewith.
Further, if Purchaser elects not to close the transaction solely due to Seller’s
failure to cure or cause a reputable title company to insure over any Voluntary
Liens or Involuntary Liens as aforesaid, such failure shall not be a default by
Seller hereunder, however, Seller shall reimburse Purchaser for its actual,
reasonable third party costs incurred in connection with this Agreement, not to
exceed $100,000. With respect to any Involuntary Lien, Seller shall not be
permitted to elect to reimburse Purchaser for its actual, reasonable third
party costs incurred in connection with this Agreement in lieu of Seller’s
obligation to attempt to cure an Involuntary Lien as aforesaid; provided,
however, if Seller, in its reasonable opinion reasonably exercised, believes
that the expenditure of the lesser of (i) two (2%) percent of the Purchase
Price allocated for such Property or (ii) $500,000 per affected Property, will
not “cure” such Involuntary Lien, then Seller shall not be obligated to expend
such sums, and Seller shall remain liable to reimburse Purchaser for its actual
reasonable third party costs, not to exceed $100,000. Notwithstanding anything
contained in this Agreement to the contrary, in no event shall Seller be liable
for any damages, cost and/or expenses, including, without limitation, damages,
suffered by Purchaser or any of Purchaser’s affiliates resulting from, or in
any way related to, the expiration of Purchaser’s “rate lock”, which the
parties acknowledge expires on December 17, 2004. With respect to mechanic’s
liens, Seller shall address mechanic’s liens as provided for in the Lease.


 


(3)           If
on the Closing Date there are any Liens or other encumbrances, subject to Section 6(2),
which Seller must pay or discharge in order to convey to Purchaser such title
as is herein provided to be conveyed, Seller may use any portion of the
Purchase Price to satisfy the same, provided:


 


(i)            Seller
shall deliver to Purchaser or the Title Company, at the Closing, instruments in
recordable form and sufficient to satisfy such Liens or other encumbrances of
record together with the cost of recording or filing said instruments; or


 


8





















 


(ii)           Seller,
having made arrangements with the Title Company, shall deposit with said
company sufficient monies acceptable to said company to insure the obtaining
and the recording of such satisfactions; and


 


(iii)          The
existence of any such Liens or other encumbrances shall not be deemed
objections to title if Seller shall comply with the foregoing requirements.


 


(4)           If
on the Closing Date there shall be conditional bills of sale, chattel mortgages
or security interests filed against any of the Properties, the same shall not
constitute objections to title provided Seller executes and delivers an
affidavit and an indemnity (in form and substance and from an indemnitor
reasonably acceptable to Purchaser) to the effect either (i) that the personal
property (as defined in the Lease) covered by said conditional bills of sale,
chattel mortgages, or security interests is no longer in or on the Properties,
or (ii) if such personal property is still in or on any of the Properties, that
it has either (x) been fully paid for, (y) is not the personal property of
Seller or (z) would qualify as “Lessee’s Equipment or Personalty” under any of
the Leases.


 


(5)           Any
franchise or corporate tax open, levied or imposed against Seller or other
owners in the chain of title that may be a Lien on the Closing Date, shall not
be an objection to title if the Title Company omits same from the title policy
issued pursuant to the Title Commitment or excepts same but insures Purchaser against
collection thereof out of the Properties.


 


(6)           If
a search of title discloses judgments, bankruptcies or other returns against
other persons or entities having names the same as or similar to that of
Seller, Seller will deliver to Purchaser and the Title Company an affidavit
stating that such judgments, bankruptcies or other returns are not against
Seller, whereupon, provided the Title Company omits such returns as exceptions
to title or provides affirmative coverage with respect thereto, such returns
shall not be deemed an objection to title.


 


7.             PROPERTY
NOT INCLUDED IN SALE.


 


Notwithstanding
anything to the contrary contained herein, it is expressly agreed by the
parties hereto that any alterations at, on or in any of the Properties that (i)
are readily removable without unrepaired damage to the Property, (ii) do not
reduce the value, economic life or utility of the Property if removed, (iii)
are not integral to the structure or operation of the Property, and (iv) are
not required for the lawful occupancy of the Property shall not be included in
the Properties to be sold to Purchaser hereunder. In addition, Seller’s
Equipment and Personalty as described on Exhibit “B”,
attached hereto and made a part hereof, shall also not be included in the
Properties to be sold to Purchaser hereunder. With respect to the FRC-W
Property, FRC shall assign to TRS at Closing all of FRC’s right, title and interest
in the property described above in this paragraph (including but not limited to
Seller’s Equipment and Personalty described on Exhibit “B”
attached hereto) as not being sold to Purchaser hereunder.


 


8.             REPRESENTATIONS
AND WARRANTIES.


 


(1)           Purchaser
expressly acknowledges that, except as expressly set forth in this Agreement or
in any Lease, neither Seller, nor any person acting on behalf of Seller,


 


9





















 


nor any person
or entity which prepared or provided for any of the materials reviewed by
Purchaser in conducting its due diligence, nor any direct or indirect officer,
director, partner, shareholder, employee, agent, representative, accountant,
advisor, attorney, principal, affiliate, consultant, contractor, successor or
assign of any of the foregoing parties (Seller, and all of the other parties
described in the preceding portions of this sentence (other than (i) Purchaser
and (ii) any parties who have issued writings which specifically state that
Purchaser is entitled to rely upon the accuracy, truthfulness or completeness
thereof or delivered a Third Party Report) shall be referred to herein
collectively as the “Exculpated Parties”) has made any oral or written representations or
warranties, whether expressed or implied, by operation of law or otherwise,
with respect to the Properties (including, without limitation, the
environmental condition of the Properties), the zoning and other laws,
regulations and rules applicable thereto or the compliance by the Properties
therewith, the revenues and expenses generated by or associated with the
Properties, or otherwise relating to the Properties or the transactions
contemplated herein. Without limiting the generality of the foregoing,
Purchaser has not relied on any representations or warranties, and neither
Seller nor any of Seller’s Affiliates, nor any of their agents or
representatives has or is willing to make any representations or warranties,
express or implied, other than as may be expressly set forth herein and in the
Lease, as to (i) the status of title to the Properties, (ii) existing lease
agreements, (iii) the current or future real estate tax liability, assessment
or valuation of the Properties; (iv) the potential qualification of the
Properties for any and all benefits conferred by any laws whether for
subsidies, special real estate tax treatment, insurance, mortgages or any other
benefits, whether similar or dissimilar to those enumerated; (v) the compliance
of the Properties in their current or any future state with applicable laws or
any violations thereof, including, without limitation, those relating to access
for the handicapped, environmental or zoning matters, and the ability to obtain
a change in the zoning or a variance in respect to the Properties’
non-compliance, if any, with zoning laws; (vi) the nature and extent of any
right-of-way, lease, possession, lien, encumbrance, license, reservation,
condition or otherwise; (vii) the availability of any financing for the
purchase, alteration, rehabilitation or operation of the Properties from any
source, including, without limitation, any government authority or any lender;
(viii) the current or future use of the Properties, including, without
limitation, the Properties’ use for commercial, manufacturing or general office
purposes; (ix) the present and future condition and operating state of any
personal property and the present or future structural and physical condition
of the improvements on the Properties, their suitability for rehabilitation or
renovation, or the need for expenditures for capital improvements, repairs or
replacements thereto; (x) the viability or financial condition of any tenant;
(xi) the status of the leasing market in which the Properties are located; or
(xii) the actual or projected income or operating expenses of the Properties.


 


(2)           Purchaser
expressly acknowledges that it is acquiring the Properties based solely on its
own independent investigation and inspection of the Properties and not in
reliance on any information provided by Seller, or any of the other Exculpated
Parties, except for the representations expressly set forth herein or in any
Lease, Notwithstanding anything to the contrary herein, as used herein the term
“Exculpated Parties” shall not include any parties or entities who have
prepared any of the Third Party Reports, but in no event shall this sentence be
deemed to exclude


 


10





















 


Seller nor any direct or
indirect officer, director, partner, shareholder or employee of Seller as an
Exculpated Party. “Third Party Reports”
shall mean all Environmental Reports (as defined in any Lease), appraisals,
certificates, reports, assessments, studies or other information delivered to
Purchaser for its review with respect to the Properties. Purchaser acknowledges
that Seller has afforded Purchaser the opportunity for full and complete
investigations, examinations and inspections of the Properties and all Property
Information. Purchaser further acknowledges and agrees that (i) the Property
Information delivered or made available to Purchaser and Purchaser’s
Representatives by Seller or Seller’s Affiliates, or any of their agents or
representatives may have been prepared by third parties and may not be the work
product of Seller and/or any of Seller’s Affiliates; (ii) neither Seller nor
any of Seller’s Affiliates has made any independent investigation or
verification of, or has any knowledge of, the accuracy or completeness of, the
Property Information; (iii) the Property Information delivered or made
available to Purchaser and Purchaser’s Representatives is furnished to each of
them at the request, and for the convenience of, Purchaser; (iv) Seller
expressly disclaims any representations or warranties with respect to the
accuracy or completeness of the Property Information prepared by either Seller
or any third-party vendors and Purchaser releases Seller and Seller’s
Affiliates, and their agents and representatives, from any and all liability
with respect thereto; and (v) any further distribution of the Property
Information is subject to Section 24. Purchaser and Seller hereby agree
that this paragraph does not constitute a waiver of any of Purchaser’s rights
or Seller’s obligations that arise in connection with the offering memorandum
covering the subject matter of and issued in connection with this Agreement.


 


(3)           This Agreement, as written, contains all the
terms of the agreement entered into between the parties as of the date hereof,
and Purchaser acknowledges that neither Seller nor any of Seller’s Affiliates,
nor any of their agents or representatives, nor any broker has made any
representations or held out any inducements to Purchaser, and Seller hereby
specifically disclaims any representation, oral or written, past, present or
future, other than those specifically set forth in Sections 8 and 14 and in the
Lease. Purchaser acknowledges and agrees that Seller’s liability with respect
to Seller’s representations and warranties in this Agreement and the Leases
shall be limited to Seller or Seller’s interest in the Properties, and
Purchaser shall have no recourse against Seller’s Affiliates, or their
respective directors, shareholders, employees, agents, representatives, whom
shall have no personal liability. Purchaser further acknowledges and agrees
that its obligations under this Agreement shall not be subject to any financing
contingency or other contingencies or satisfaction of conditions except to the
extent specifically set forth herein and Purchaser shall have no right to
terminate this Agreement or receive a return of the Deposit (or the accrued
interest thereon), except as expressly provided in the Agreement.


 


(4)           Each Seller, individually and not jointly,
represents and warrants to the respective Purchaser as follows:


 


1.             Seller is validity existing and in good
standing under the laws of its State of incorporation and the State in which it
owns any property. Seller has either (i) the company or (ii) corporate power
and authority


 


11





















 


to conduct its
business in all material respects as now conducted, to own or hold its
Property, to lease its Property and to enter into and perform its obligations
under this Agreement and when executed and delivered will have either (i) the
company or (ii) the corporate power and authority to enter into and perform its
obligations under the documents described on Exhibit “C”
attached hereto. To the extent applicable, Seller is duly qualified to do
business and is in good standing as a foreign business entity in the
jurisdiction where it owns property.


 


2.             (A)
This Agreement has been and, when executed and delivered by the Seller, each of
the documents required to be executed and/or delivered pursuant to Section 11
hereof, including but not limited to those described on Exhibit “C”,
will have been duly (a) authorized by all necessary (i) company or (ii)
corporate action, and (b) executed and delivered to Purchaser. At Closing,
performance of this Agreement and each of the documents required to be executed
and/or delivered pursuant to Section 11 hereof, including but not limited
to those described on Exhibit “C”,
that have been executed and delivered by Seller to Purchaser will not, (x)
require any approval of the members/stockholders of Seller or any approval or
consent of any trustee or holder of any indebtedness or obligation of Seller,
other than such consents and approvals as have been obtained, (y) contravene
any applicable law binding on Seller or (z) except as set forth on Schedule 8(4)(2),
materially contravene or result in any material breach of or constitute any
material default under Seller’s organizational documents or any indenture,
judgment, order, mortgage, loan agreement, contract, partnership or joint
venture agreement, lease or other agreement or instrument to which Seller is a
party or by which Seller is bound, or result in the creation of any Lien upon
any Property.


 


(B) When
executed and delivered by American Express Financial Corporation (“Guarantor”)
at Closing, the Guaranty will have been duly (a) authorized by all necessary
corporate action, and (b) executed and delivered to Purchaser. At Closing,
performance of the Guaranty will not, (x) require any approval of the
stockholders of Guarantor or any approval or consent of any trustee or holder
of any indebtedness or obligation of Guarantor other than such consents and
approvals as have been obtained, (y) contravene any applicable law binding on
Guarantor or (z) except as set forth on Schedule 8(4)(2), materially
contravene or result in any material breach of or constitute any material
default under the organizational documents of Guarantor, or any indenture,
judgment, order, mortgage, loan agreement, contract, partnership or joint
venture agreement, lease or other agreement or instrument to which Guarantor is
a party or by which Guarantor is bound, or result in the creation of any Lien
upon the Property.


 


3.             All
action by any Governmental Authority (“Governmental Action”)
required in connection with the execution, delivery and performance by Seller
of the documents required to be executed and/or delivered


 


12





















 


pursuant to Section 11
hereof, including but not limited to those described on Exhibit “C”, has been or will have been
obtained, given or made at or prior to Closing, including, without limitation,
obtaining all approvals from any federal or state bank regulatory authorities.
For purposes of this Agreement, “Governmental
Authority” shall mean the United
States, the states or provinces in which the Properties are located and any
political subdivision thereof, and any and all agencies, departments,
commissions, boards, bureaus, bodies, councils, offices, authorities, or
instrumentality of any of them, of any nature whatsoever for any governmental
unit (federal, state, county, municipal, city, foreign or otherwise) whether
now or hereafter in existence.


 


4.             To
Seller’s knowledge, but without independent investigation or duty of inquiry,
except as may be set forth in the reports listed on Schedule 8(4)(4) (copies of which Purchaser acknowledges receipt prior
to the date hereof), Seller has not received any written notice of building
code violations or violations of Environmental Laws that (a) have not been
cured, or (b) are not de minimis in nature.


 


5.             Seller
has no actual knowledge (i) and has received no written notice of any special
assessments affecting the Properties that would materially and adversely affect
the value of the Properties; (ii) and has received no written notice of any
condemnation proceedings affecting any of the Properties; (iii) of any of
Seller’s employees having any contracts or agreements with Seller and relating
to the Properties that will survive the expiration of the Lease or of any other
material contracts that are binding on any of the Properties and that will
survive the expiration of the Lease, other than those that are cancelable
without penalty upon no more than thirty (30) days’ notice.


 


6.             Except
for that certain lease between TRS, as lessor, and American Express Bank
Federal Savings Bank, as lessee, which commenced on February 1, 2004, as
the same may have been amended, for a portion of the AESC-SLC Property and that
certain Amended and Restated Lease Agreement No. [2] between TRS, as lessor,
and American Express Centurion Bank, as lessee, made as of January 1,
2004, as the same may have been amended, for a portion of the AESC-SLC
Property, which leases shall be subordinated to the Lease to TRS for the
AESC-SLC Property, Seller represents to Purchaser that there are no recorded
leases on any of the Properties or any other rights to occupy the Properties.


 


7.             Except
as expressly set forth in this Agreement, none of Seller’s representations,
warranties or covenants shall survive Closing or the termination of this Agreement.


 


(5)           If
at or prior to the Closing, (A) Purchaser shall become aware (whether through
its own efforts, by notice from Seller or otherwise) that any of the
representations or warranties made herein by Seller are untrue, inaccurate or
incorrect and shall give Seller notice thereof at or prior to the Closing, or
(B) Seller shall notify


 


13





















 


Purchaser that
a representation or warranty made herein by Seller is untrue, inaccurate or
incorrect, then Seller may, in its sole discretion, elect by notice to
Purchaser to adjourn the Closing one or more times for up to sixty (60) days in
the aggregate in order to cure or correct such untrue, inaccurate or incorrect
representation or warranty. If any such representation or warranty is
materially untrue, inaccurate or incorrect, and is not cured or corrected by
Seller on or before the Closing Date (or the final adjourned Closing Date as
provided above, if Seller elects to adjourn the Closing), then Purchaser, as
its sole remedy for any and all such materially untrue, inaccurate or incorrect
material representations or warranties, shall elect either (x) to waive such
misrepresentations or breaches of warranties and consummate the transactions
contemplated hereby without any reduction of or credit against the Purchase
Price, (y) if such misrepresentation is specific to a Property (as opposed to
being applicable to all Properties), to delete such Property from this
Agreement and receive a credit against the Purchase Price in an amount equal to
the portion of the Purchase Price allocated to such Property (which includes
the applicable Deposit Allocation) or (z) if such misrepresentation is not
specific to a Property, to terminate this Agreement by notice given to Seller
on the Closing Date, in which event, this Agreement shall be terminated, the
Deposit (and all interest accrued thereon, if any) shall revert to Purchaser
and neither party shall have any further rights, obligations or liabilities
hereunder, except for the Termination Obligations. Purchaser acknowledges and
agrees that (x) at or prior to the Closing, Purchaser’s rights and remedies in
the event any of Seller’s representations or warranties made in this Agreement
are untrue, inaccurate or incorrect shall be only as provided in this Section 8,
and (y) if the Closing does not occur by virtue of such breach, Purchaser
hereby expressly waives, relinquishes and releases all other rights or remedies
available to it at law, in equity or otherwise (including, without limitation,
the right to seek damages from Seller) as a result of any of Seller’s
representations or warranties made in this Agreement being untrue, inaccurate
or incorrect. If Purchaser elects to consummate the transactions contemplated
hereby after receipt of notice of the breach or after its having otherwise
become aware of such breach, then Purchaser shall be deemed to have waived such
misrepresentation or breach of warranty and there shall be no reduction of or
credit against the Purchase Price, and the Purchaser shall not use Seller’s
breach as a basis for delaying or refusing to proceed to Closing.


 


(6)           In
the event the Closing occurs, notwithstanding anything contained in this Section 8
or elsewhere in this Agreement to the contrary, Purchaser hereby expressly
waives, relinquishes and releases any right or remedy available to it at law,
in equity or under this Agreement to make a claim against Seller for damages
that Purchaser may incur, or to rescind this Agreement and the transactions
contemplated hereby, as the result of any of Seller’s representations or
warranties being untrue, inaccurate or incorrect if Purchaser knew that such
representation or warranty was untrue, inaccurate or incorrect at the time of
the Closing and Purchaser nevertheless closes title hereunder.


 


(7)           The
representations and warranties of Seller set forth in this Section 8 and
elsewhere in this Agreement shall be true, accurate and correct in all material
respects upon the execution of this Agreement and shall be deemed to be
repeated on and as of the Closing Date. The representations and warranties
(whether


 


14





















 


express or
implied) of Seller set forth in this Section 8 and elsewhere in this
Agreement shall remain operative and shall survive the Closing and the
execution and delivery of the Deed for a period of two hundred seventy (270)
days following the Closing Date, and no action or claim based thereon shall be
commenced after such period, but any claim made within such 270-day period shall
survive such period until finally determined and all amounts, if and as
required, are paid. If Purchaser shall have timely commenced an action with
respect to a breach of a representation or warranty made by Seller hereunder
and a court of competent jurisdiction shall determine that (A) Seller was in
breach of the applicable representation or warranty as of the date of this
Agreement or as of the Closing Date, (B) Purchaser suffered damages by reason
of such breach, and (C) Purchaser did not have knowledge of such breach on or
prior to the date of the Closing, then, Purchaser shall be entitled to receive
an amount equal to its damages; provided that in no event shall Purchaser be
entitled to receive, in connection with any and all breaches of the representations
and warranties of Seller hereunder, an amount in excess of $2,000,000.00 for
its damages notwithstanding that the amount of any damages suffered by
Purchaser exceeds $2,000,000.00.


 


(8)           Purchaser
represents and warrants to Seller as follows:


 


1.             Purchaser
is, and any entity or entities to whom Purchaser may assign this Agreement will
be, validly existing and in good standing under the laws of its State of
incorporation and the State in which it will own, following the Closing, the
Properties. Purchaser has either (i) the company (ii) corporate and/or (iii)
trust power and authority to conduct its business in all material respects as
now conducted, to own or hold its assets, to own or hold the Properties, to
lease the Properties and to enter into and perform its obligations under all
documents to which it is or is to become a party. Purchaser is duly qualified
to do business and is in good standing as a foreign corporation in any
jurisdiction where the failure to also qualify would have a material adverse
effect on its ability to perform its obligations under all documents to which
it is a party.


 


2.             Each
of the documents to which Purchaser is a party has been duly authorized by all
necessary (i) company, (ii) corporate or (iii) trust action, executed and
delivered to Seller, and performance thereof by Purchaser will not, (1) require
any approval of the members/stockholders of Purchaser or any approval or
consent of any trustee or holder of any indebtedness or obligation of
Purchaser, other than such consents and approvals as have been obtained, (2)
contravene any applicable law binding on Purchaser or (3) contravene or result
in any breach of or constitute any default under Purchaser’s organizational
documents, or any indenture, judgment, order, mortgage, loan agreement,
contract, partnership or joint venture agreement, lease or other agreement or
instrument to which Purchaser is a party or by which Purchaser is bound, or
result in the creation of any Lien upon any property of Purchaser.


 


15





















 


3.             All
Governmental Action required in connection with the execution, delivery and
performance by Purchaser of all of the documents to which it is a party, has
been or will have been obtained, given or made, including, without limitation,
obtaining all approvals from any federal or state bank regulatory authorities.


 


4.             If
at or prior to the Closing, (A) Seller shall become aware (whether through its
own efforts, by notice from Purchaser or otherwise) that any of the representations
or warranties made herein by Purchaser are untrue, inaccurate or incorrect and
shall give Purchaser notice thereof at or prior to the Closing, or (B)
Purchaser shall notify Seller that a representation or warranty made herein by
Purchaser is untrue, inaccurate or incorrect, then Purchaser may, in its sole
discretion, elect by notice to Seller to adjourn the Closing one or more times
for up to sixty (60) days in the aggregate in order to cure or correct such
untrue, inaccurate or incorrect representation or warranty. If any such
representation or warranty is materially untrue, inaccurate or incorrect, and
is not cured or corrected by Purchaser on or before the Closing Date (whether
or not the Closing is adjourned as provided above), then Seller, as its sole
remedy for any and all such materially untrue, inaccurate or incorrect material
representations or warranties, shall elect either (x) to waive such
misrepresentations or breaches of warranties and consummate the transactions
contemplated hereby without any adjustment of the Purchase Price, (y) if such
misrepresentation is specific to a Property (as opposed to being applicable to
all Properties), to delete such Property from this Agreement and to reduce the
Purchase Price in an amount equal to the portion of the Purchase Price
allocated to such Property or (z) if
such misrepresentation is not specific to a Property, to terminate this
Agreement by notice given to Purchaser on the Closing Date, in which event,
this Agreement shall be terminated, the Deposit (and all interest accrued
thereon, if any) shall be delivered to Seller and neither party shall have any
further rights, obligations or liabilities hereunder, except for the Surviving
Obligations. Seller acknowledges and agrees that (a) at or prior to the
Closing, Seller’s rights and remedies in the event any of Purchaser’s
representations or warranties made in this Agreement are untrue, inaccurate or
incorrect shall be only as provided in this Section 8, and (b) if the
Closing does not occur by virtue of such breach, Seller hereby expressly
waives, relinquishes and releases all other rights or remedies available to it
at law, in equity or otherwise (including, without limitation, the right to
seek damages from Purchaser) as a result of any of Purchaser’s representations
or warranties made in this Agreement being untrue, inaccurate or incorrect. If
Seller elects to consummate the transactions contemplated hereby after receipt
of notice of the breach then Seller shall be deemed to have waived such misrepresentation
or breach of warranty and there shall be no adjustment in the Purchase Price,
and Seller shall not use Purchaser’s breach as a basis for delaying or refusing
to proceed to Closing.


 


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5.             Purchaser
(including for the purposes of this Section 8(8)(5), any entity that is
directly or indirectly 15% or more owned by Purchaser or as to which Purchaser
directly or indirectly has the right to vote 15% or more of the voting
securities thereof) is not a Significant Competitor (as defined in the Lease)
of Seller, and no entity that directly or indirectly has a 15% or greater
interest in Purchaser is a Significant Competitor (as defined in the Lease) of
Seller.


 


(9)           The
representations and warranties of Purchaser set forth in this Section 8
and elsewhere in this Agreement shall be true, accurate and correct in all
material respects upon the execution of this Agreement, shall be deemed to be
repeated on and as of the Closing Date. The representations and warranties
(whether express or implied) of Purchaser set forth in this Section 8 and
elsewhere in this Agreement shall remain operative and shall survive the
Closing and the execution and delivery of the Deed for a period of one (1) year
following the Closing Date, and no action or claim based thereon shall be
commenced after such period.


 


(10)         Seller
represents to Purchaser, as of the date of this Agreement, that Seller has no
right, after the Closing, to re-purchase the Property, or any portion thereof,
from Purchaser except as expressly set forth in this Agreement. Purchaser
represents to Seller, as of the date of this Agreement, that Purchaser has no
right, after the Closing, to require Seller to re-purchase the Property.


 


9.             CLOSING
COSTS.


 


(1)           At
the Closing, Seller shall be liable for the payment of (i) the applicable state
and/or any other jurisdiction transfer and recording taxes (the “Transfer Tax Payments”) imposed pursuant to the laws of the
states where the Properties are located or any other Governmental Authority in
respect of the transactions contemplated by this Agreement by wire transfer to
the Title Company or delivery to the Title Company of good, unendorsed,
certified or official bank checks, drawn on, or by a Clearing House Bank and
payable to the order of the relevant Governmental Authority together with any
return (the “Transfer Tax Return”) required
thereby which shall be duly executed by Seller and Purchaser, (ii) recording
charges to discharge any mortgages or financing statements, (iii) its share of
the title insurance related costs as described in Section 6(1)(ii), (iv)
one-half of any escrow fees, and (v) the cost of the appraisals, engineering
reports and Phase 1 environmental reports ordered by Seller.


 


(2)           At
the Closing, Purchaser shall be responsible for (i) its share of the title
insurance related costs as described in Section 6(1)(ii),
(ii) recording charges in connection with the conveyance of the Properties to
Purchaser (including, without limitation, recording fees), (iii) one-half of
any escrow fees, and (iv) the cost of the appraisals, engineering reports and
Phase 1 environmental reports ordered by Purchaser.


 


(3)           Seller
and Purchaser agree that each party shall pay its own costs, fees and expenses
of counsel retained by each party in connection with the consummation of this
transaction.


 


17





















 


(4)           Purchaser
shall be responsible for the payment of all costs and expenses relating to the
debt to be secured by Purchaser to finance the purchase of the Properties,
including, without limitation, mortgage recording taxes, debt placement fees,
initial rating agency fees (but not on-going fees), surety bond fees and fees
and expenses of counsel for the debt. The provisions of this Section 9
shall survive the Closing.


 


10.           CONDITIONS
PRECEDENT TO CLOSING.


 


(1)           Purchaser’s
obligation under this Agreement to purchase the Properties is subject to the
fulfillment of each of the following conditions, subject, however, to the
provisions of Section 10(3):


 


1.             The
representations and warranties of Seller contained herein shall be materially
true, accurate and correct as of the Closing Date (subject to the provisions of
Section 8(5));


 


2.             Seller
shall be ready, willing and able to deliver title to the Properties in
accordance with the terms and conditions of this Agreement;


 


3.             Seller
shall have delivered all the documents and other items required pursuant to Section 11
hereof, and shall have performed all other covenants, undertakings and
obligations, and complied with all conditions required by this Agreement to be
performed or complied with by the Seller at or prior to the Closing;


 


4.             Purchaser
shall have received at Closing title policies for the Properties with all
endorsements required by this Agreement, updated ALTA surveys, the Leases,
estoppel certificates in form reasonably acceptable to Seller and
subordination, non-disturbance and attornment agreements substantially in the
form attached hereto as Exhibit “D” (“SNDA”), it being agreed and understood that no event shall
Seller’s failure to deliver any estoppel certificates or SNDA be deemed a
default by Seller nor shall any such failure or delay give Purchaser any right
whatsoever to fail to close this transaction as described herein in the manner
and at the time otherwise prescribed by this Agreement;


 


5.             As
of the Closing Date, there shall be no material reduction in the credit rating
of the tenants under the Leases for the Properties (or with respect to the
Lease for the AEPC Property, Guarantor) from the date this Agreement is
executed. (For the purposes of this Section 10(1)5, “material
reduction” means, for tenant TRS, an S&P rating of “A” or below
and a Moody’s rating of “Al” or below, and for Guarantor, a Moody’s rating of “A2”
or below);


 


6.             All
material consents and approvals by any Governmental Authority and parties to
agreements to which Seller is a party or by which Seller’s assets are bound
that are required with respect to the consummation of the transactions
contemplated by this Agreement shall have been obtained and copies thereof or
other evidence satisfactory thereof shall have been delivered to Purchaser at
or prior to the Closing;


 


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7.             No
order or injunction of any court or administrative agency of competent
jurisdiction nor any statute, rule, regulation or executive order promulgated
by any Governmental Authority of competent jurisdiction shall be in effect as
of the Closing which prohibits the transfer of the Properties or the consummation
of any other transaction contemplated hereby; and


 


8.             On
or prior to the Closing Date, (A) Seller shall not have applied for or
consented to the appointment of a receiver, trustee or liquidator for itself or
any of its assets unless the same shall have been discharged prior to the
Closing Date, and no such receiver, liquidator or trustee shall have otherwise
been appointed, unless same shall have been discharged prior to the Closing
Date, (B) Seller shall not have admitted in writing an inability to pay its
debts as they mature, (C) Seller shall not have made a general assignment for
the benefit of creditors, (D) Seller shall not have been adjudicated as
bankrupt or insolvent, or had a petition for reorganization granted with
respect to Seller, (E) Seller shall not have filed a voluntary petition seeking
reorganization or an arrangement with creditors or taken advantage of any
bankruptcy, reorganization, insolvency, readjustment or debt, dissolution or
liquidation law or statute, or filed an answer admitting the material
allegations of a petition filed against it in any proceedings under any such
law, or had any petition filed against it in any proceeding under any of the
foregoing laws unless the same shall have been dismissed, canceled or terminated
prior to the Closing Date.


 


(2)           Seller’s
obligation under this Agreement to sell the Properties to Purchaser is subject
to the fulfillment of each of the following conditions, subject, however to the
provisions of Section 10(3):


 


1.             The
representations and warranties of Purchaser contained herein shall be
materially true, accurate and correct as of the Closing Date;


 


2.             Purchaser
shall have delivered the funds required hereunder and all the documents to be
executed by Purchaser set forth in Section 12 hereof and shall have
performed all other covenants, undertakings and obligations, and complied with
all conditions required by this Agreement to be performed or complied with by
Purchaser at or prior to the Closing;


 


3.             All
consents and approvals by any Governmental Authority and parties to agreements
to which Purchaser is a party or by which Purchaser’s assets are bound that are
required with respect to the consummation of the transactions contemplated by
this Agreement shall have been obtained and copies thereof shall have been
delivered to Seller at or prior to the Closing;


 


4.             No
order or injunction of any court or administrative agency of competent
jurisdiction nor any statute, rule, regulation or executive order promulgated
by any Governmental Authority of competent jurisdiction shall be in effect as
of the Closing which prohibits the


 


19





















 


transfer
of the Properties or the consummation of any other transaction contemplated
hereby; and


 


5.             On
or prior to the Closing Date, (A) Purchaser shall not have applied for or
consented to the appointment of a receiver, trustee or liquidator for itself or
any of its assets unless the same shall have been discharged prior to the
Closing Date, and no such receiver, liquidator or trustee shall have otherwise
been appointed, unless same shall have been discharged prior to the Closing
Date, (B) Purchaser shall not have admitted in writing an inability to pay its
debts as they mature, (C) Purchaser shall not have made a general assignment
for the benefit of creditors, (D) Purchaser shall not have been adjudicated as
bankrupt or insolvent, or had a petition for reorganization granted with
respect to Purchaser, (E) Purchaser shall not have filed a voluntary petition
seeking reorganization or an arrangement with creditors or taken advantage of
any bankruptcy, reorganization, insolvency, readjustment or debt, dissolution
or liquidation law or statute, or filed an answer admitting the material
allegations of a petition filed against it in any proceedings under any such
law, or had any petition filed against it in any proceeding under any of the
foregoing laws unless the same shall have been dismissed, canceled or
terminated prior to the Closing Date.


 


(3)           In
the event that any condition contained in Section 10(1) or 10(2) is not
satisfied, the party entitled to the satisfaction of such condition as a
condition to its obligation to close title hereunder shall have as its sole
remedy hereunder the right to elect to (i) waive such unsatisfied condition
whereupon title shall close as provided in this Agreement, (ii) if such failure
is by Seller and is specific to a Property, Purchaser may delete such Property
from this Agreement and receive credit against the Purchase Price in an amount equal
to the portion of the Purchase Price allocated to such Property (which includes
the applicable Deposit Allocation) or, (iii) if such failures relate to more
than one of the Properties if such failures were by Seller, Purchaser may
terminate this Agreement, or (iv) if such failure is by Purchaser or Seller and
is not specific to a Property, terminate this Agreement. Nothing contained in
this Section 10(3) shall be construed so as to bestow any right of
termination upon a party for the failure of a condition to be satisfied unless
such party is expressly entitled to the satisfaction of such condition as
provided in Section 10(1) or 10(2). The provisions of this Section 10(3)
shall survive the Closing.


 


11.           DOCUMENTS TO BE DELIVERED BY SELLER AT
CLOSING. At or prior to the Closing, Seller shall execute, acknowledge and
deliver or cause to be delivered to the Title Company for delivery to
Purchaser, pursuant to escrow instructions from Seller and Purchaser, the
following for each Property:


 


(1)           A
special warranty deed, limited warranty deed or bargain and sale deed, as
applicable (collectively, the “Deed”)
conveying title to each of the Properties in the forms shown in Exhibit “E” annexed hereto and made a part hereof;


 


(2)           A
lease for each Property, substantially in the form of the lease attached hereto
as Exhibit “F” (a “Lease”);


 


20





















 


(3)           Pro
Forma fee title insurance polic(ies) with all
endorsements required pursuant to this Agreement insuring the Properties for
the Purchase Price;


 


(4)           Current
ALTA surveys certified to Purchaser and Purchaser’s lender, if any;


 


(5)           Certificates
of Occupancy for the Properties, to the extent required by the applicable
municipality as a condition of a transfer of title;


 


(6)           Tenants’
insurance certificates as required by the applicable Lease;


 


(7)           A
Bring Down Certificate from Seller confirming applicable representations and
warranties in this Agreement at Closing, or if a particular representation or
warranty cannot be re-made at Closing specifying such representation or
warranty and disclosing the materially changed circumstances with respect to
such representation or warranty;


 


(8)           Such
organizational documentation, if any, as the Title Company may reasonably
require in order to issue an owner’s fee title
insurance policy based on the Title Commitment;


 


(9)           The
Transfer Tax Payments together with the Transfer Tax Returns, if any;


 


(10)         “FIRPTA”
affidavit sworn to by each party constituting Seller in the form of Exhibit “G” annexed hereto and made a part
hereof. Purchaser acknowledges and agrees that upon Seller’s delivery of such
affidavit, Purchaser shall not withhold any portion of the Purchase Price
pursuant to Section 1445 of the Internal Revenue Code of 1986, as amended,
and the regulations promulgated thereunder;


 


(11)         All
other documents Seller is required to deliver pursuant to the provisions of
this Agreement and of any applicable laws and/or regulations;


 


(12)         Such
SNDAs and estoppel certificates as may be agreed to by Seller in connection
with Purchaser’s financing; and


 


(13)         Closing
Statements for Purchaser and Seller indicating deposits, credits and charges
with respect to each Property, including an undertaking by each of Purchaser
and Seller to re-adjust any item on or omitted from same.


 


All items to
be delivered under this Section 11 shall be in form and substance
acceptable to Purchaser and its counsel, acting reasonably and in good faith.


 


12.           DOCUMENTS AND PAYMENTS TO BE
DELIVERED BY PURCHASER AT CLOSING. At the Closing, Purchaser shall execute,
acknowledge and deliver or cause to be delivered to the Title Company for
delivery to Seller, pursuant to escrow instructions from Seller and Purchaser,
the following for each Property:


 


(1)           The
cash portion of the Purchase Price payable at the Closing pursuant to Section 2(1),
subject to adjustments as expressly provided in this Agreement;


 


(2)           A
Lease for each Property;


 


21





















 


(3)           If
Purchaser is a trust, certified copies of the trust agreement
pursuant to which Purchaser was formed;


 


(4)           Transfer
Tax Returns, if any;


 


(5)           Such
organizational documentation, if any, as the Title Company may reasonably
require in order to issue an owner’s fee title
insurance policy based on the Title Commitment;


 


(6)           A
Bring Down Certificate from Purchaser confirming applicable representations and
warranties in this Agreement at Closing, or if a particular representation or
warranty cannot be re-made at Closing specifying such representation or warranty
and disclosing the materially changed circumstances with respect to such
representation or warranty;


 


(7)           All
other documents Purchaser is required to deliver pursuant to the provisions of
this Agreement and of any applicable laws and/or regulations;


 


(8)           A
certification from an authorized officer of Inland Western Retail Real Estate
Trust, Inc., that Purchaser (including for the purposes of this Section 12(7),
any entity that is directly or indirectly 15% or more owned by Purchaser or as
to which Purchaser directly or indirectly has the right to vote 15% or more of
the voting securities thereof) is not a Significant Competitor (as defined in
the Lease) of Seller, and no entity that directly or indirectly has a 15% or
greater interest in Purchaser is a Significant Competitor (as defined in the
Lease) of Seller.  Such evidence may
include, but shall not be limited to, certificates of incorporation or
formation, and operating agreements;


 


(9)           An
Assignment and Assumption Agreement between Purchaser and Purchaser’s
Designees, in form and substance reasonably acceptable to Seller; and


 


(10)         Closing
Statements for Purchaser and Seller indicating deposits, credits and charges
with respect to each Property, including an undertaking by each of Purchaser
and Seller to re-adjust any item on or omitted from same.


 


All items to
be delivered under this Section 12 shall be in form and substance
acceptable to Seller and its counsel, acting reasonably and in good faith.


 


13.           OPERATION
OF THE PROPERTIES PRIOR TO THE CLOSING DATE. Between the date hereof and
the Closing Date, Seller shall have the right and the obligation to continue to
operate and maintain the Properties in the same general manner as operated and
maintained prior to the date hereof.


 


14.           AS-IS.


 


(1)           PURCHASER
ACKNOWLEDGES AND AGREES THAT UPON CLOSING SELLER SHALL SELL AND CONVEY TO
PURCHASER AND PURCHASER SHALL ACCEPT THE PROPERTIES “AS IS, WHERE IS, WITH ALL
FAULTS”, INCLUDING, WITHOUT LIMITATION, THOSE ARISING FROM, RELATED TO OR IN
CONNECTION WITH HAZARDOUS SUBSTANCES AT, IN, ON, ABOVE, UNDER, ABOUT, OR
MIGRATING TO OR FROM OR


 


22





















 


AFFECTING THE
PROPERTIES, PURCHASER HAS HAD THE OPPORTUNITY TO INVESTIGATE THE PROPERTIES
(INCLUDING, WITHOUT, LIMITATION THE ENVIRONMENTAL CONDITION OF EACH PROPERTY)
AND HAS NOT RELIED AND WILL NOT RELY ON, AND SELLER IS NOT LIABLE FOR OR BOUND
BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS
OR INFORMATION PERTAINING TO THE PROPERTIES OR RELATING THERETO (INCLUDING
SPECIFICALLY, WITHOUT LIMITATION, ENVIRONMENTAL CONDITIONS) MADE OR FURNISHED
BY SELLER DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING EXCEPT FOR THE
REPRESENTATIONS AND WARRANTIES OF THE SELLER CONTAINED HEREIN OR IN THE LEASES.
Purchaser and Purchaser’s successors, assigns, operators, mortgagees, tenants,
licensees and occupants of the Properties waive, release and discharge Seller
and its parents, subsidiaries, affiliates, partners, officers, directors,
employees, agents, representatives, shareholders, predecessors, successors and
assigns from, without limitation, any and all obligation or liability, whether
known or unknown, foreseen or unforeseen, threatened or actual, now existing or
hereafter in existence, of Purchaser arising from relating to or in connection
with the presence of Hazardous Substances at, in, on, above, under, about or
migrating to or from the Properties. “Hazardous
Substances” shall mean each and every element, compound, chemical
mixture, contaminant, pollutant, material, waste, or other substance which is
defined, determined or identified as hazardous or toxic under any Environmental
Law or is otherwise regulated by any Governmental Authority. “Environmental Laws”
shall mean any federal, state or local statute, regulation or ordinance or any
judicial or administrative decree or decision, whether now existing or
hereafter enacted, promulgated or issued, with respect to any Hazardous
Substances, drinking water, ground water, wetlands, landfills, open dumps,
storage tanks, underground storage tanks, solid waste, waste water, storm water
runoff, waste emissions or wells.


 


The release
contained in this Section 14(1) above shall run with the land, be binding
upon Purchaser and Purchaser’s successors and assigns, and all future owners,
operators, mortgagees, tenants, licensees and occupants of the Properties and
shall inure to the benefit of Seller and its successors and assigns, and shall
survive the Closing.


 


(2)           Purchaser
or anyone claiming by, through or under Purchaser, hereby fully and irrevocably
releases Seller and Seller’s Affiliates, and their agents and representatives,
from any and all claims that it may now have or hereafter acquire against
Seller or Seller’s Affiliates, or their agents or representatives for any cost,
loss, liability, damage, expense, action or cause of action, whether foreseen
or unforeseen, arising from or related to any construction defects, errors or
omissions on or in the Properties, the presence of Hazardous Substances, or any
other conditions (whether patent, latent or otherwise) affecting the
Properties, except for claims against Seller based upon any obligations and
liabilities of Seller expressly provided in this Agreement or the Leases.
Purchaser further acknowledges and agrees that this release shall be given full
force and effect according to each of its expressed terms and provisions,
including, but not limited to, those relating to unknown and suspected claims,
damages and causes of action. As a material covenant and condition of this
Agreement, Purchaser agrees that in


 


23





















 


the
event of any such construction defects, errors or omissions, the presence of
Hazardous Substances, or any other conditions affecting the Properties,
Purchaser shall have no claims against Seller, except for claims against Seller
based upon any obligations and liabilities of Seller expressly provided in this
Agreement.


 


(3)           Seller
shall not be liable or bound in any manner by any oral or written “setups” or
information pertaining to the Properties or the rents furnished by Seller,
Seller’s Affiliates, their agents or representatives, any real estate broker,
including, without limitation, CITIGROUP, Trammell Crow Company (“TCC”), or other person.


 


(4)           Each
of Purchaser and Seller hereto acknowledge that it has consulted with its tax
advisors in connection with the transactions contemplated by this Agreement,
and each party hereto acknowledges that it has not relied upon any advice or
opinions given by the other party or its attorneys or agents, nor has any party
hereto guaranteed any particular tax consequences in connection with the
transactions contemplated by this Agreement.


 


(5)           Purchaser
agrees that it will not initiate any inspection of the Properties by any Governmental
Authorities but shall be entitled to contact the appropriate Governmental
Authorities to obtain zoning letters.


 


(6)           The
provisions of this Section 14 shall survive the termination of this
Agreement and/or the Closing.


 


15.           BROKER.
Purchaser and Seller each represent and warrant to the other that it has not
dealt or negotiated with, or engaged on its own behalf or for its benefit, any
broker, finder, consultant, advisor, or professional in the capacity of a
broker or finder in connection with this Agreement or the transactions
contemplated hereby other than Citigroup Global Markets, Inc. (“CITIGROUP”)
and TCC. Purchaser acknowledges and represents that it has also dealt
with Stan Johnson Company in connection with the transactions contemplated
hereby. Each party hereby agrees to indemnify, defend and hold the other
harmless from and against any and all claims, demands, causes of action,
losses, costs and expenses (including reasonable attorneys’ fees, court costs
and disbursements) arising from its breach of the foregoing representations.
Seller agrees that it shall pay CITIGROUP and TCC in accordance with separate
agreements between Seller and CITIGROUP and Seller and TCC. Purchaser agrees
that it shall pay Stan Johnson Company in accordance with a separate agreement
between Purchaser and Stan Johnson Company. The obligations and representations
and warranties contained in this Section 15 shall survive the termination
of this Agreement and/or the Closing.


 


16.           CASUALTY;
CONDEMNATION.


 


(1)           If
a “material” part (as hereinafter defined) of any of the Properties is damaged
or destroyed by fire or other casualty, Seller shall notify Purchaser of such
fact and, except as hereinafter provided, Purchaser shall have the option to
delete such Property from this Agreement upon notice to Seller given not later
than ten (10) days after receipt of Seller’s notice. Notwithstanding the
foregoing, if a “material” part of any of the Properties is damaged or
destroyed and Purchaser elects to delete such Property from this Agreement as
provided above, Purchaser’s election shall be ineffective if within ten (10)
days after Seller’s receipt of


 


24





















 


Purchaser’s
election notice, Seller shall elect by notice to Purchaser to repair such
damage or destruction and shall thereafter complete such repair within ninety
(90) days after the then scheduled Closing Date at the time of Purchaser’s
election. If Seller makes such election to repair, Seller shall have the right
to adjourn the Closing Date one or more times for up to ninety (90) days in the
aggregate in order to complete such repairs and shall have the right to retain
all insurance proceeds which Seller may be entitled to receive as a result of
such damage or destruction. If (i) Purchaser does not elect to delete such
Property from this Agreement, (ii) Purchaser elects to delete such Property
from this Agreement but such election is ineffective because Seller elects to
repair such damage and completes such repair within such 120-day period
provided above, or (iii) there is damage to or destruction of an “immaterial”
part (“immaterial” is herein deemed to be any damage or destruction which is
not “material”, as such term is hereinafter defined) of any of the Properties,
Purchaser shall close title as provided in this Agreement and, at the Closing,
Seller shall, unless Seller has repaired such damage or destruction prior to
the Closing, apply the proceeds of any insurance collected by Seller in
accordance with the terms of the Lease. A “material” part
of any of the Properties shall be deemed to have been damaged or destroyed if
the cost of repair or replacement shall be $250,000 or more as reasonably as
estimated by Seller or if Tenant can terminate its Lease or abate rent
thereunder, or the Property cannot be legally occupied. This provision shall
not survive Closing or the termination of this Agreement.


 


(2)           If,
prior to the Closing Date, all or any “significant” portion (as hereinafter
defined) of any of the Properties is taken by eminent domain or condemnation
(or is the subject of a pending taking which has not been consummated) (in each
case, a “Taking”), Seller shall notify
Purchaser of such Taking and Purchaser shall have the option to delete such
Property from this Agreement upon notice to Seller given not later than ten
(10) days after receipt of Seller’s notice. If Purchaser does not elect to
delete such Property from this Agreement, or if a Taking involves an “insignificant”
portion (“insignificant” is herein deemed to be any taking which is not “significant”,
as such term is herein defined) of any of the Properties, at the Closing Seller
shall assign and turn over, and Purchaser shall be entitled to receive and
keep, all awards or other proceeds for such Taking. A “significant” portion of
any of the Properties means a Taking of twenty percent (20%) or more of any
Property or if Tenant can terminate its Lease or abate
rent thereunder, or the Property cannot be legally occupied. This provision
shall not survive Closing or the termination of this Agreement.


 


(3)           Notwithstanding
anything contained in Section 16(1) and Section 16(2) to the
contrary, if a Property is not deleted from this Agreement as provided in Section 16(1)
or Section 16(2) and the eminent domain or condemnation proceeds payable
with respect to the affected Property as a result of any Taking exceeds the
portion of the Purchase Price allocated to such Property in Section 2(1)
of this Agreement, Seller’s obligation to pay over to Purchaser those proceeds
paid to Seller prior to the Closing shall be limited to the allocated portion
of the amount of the Purchase Price and Seller shall be entitled to retain the
remainder of such proceeds. To the extent that payment of all or any portion of
such proceeds does not occur prior to the Closing, the parties agree that
Seller shall be entitled to that portion of the proceeds in excess of the
allocated portion of the Purchase Price,


 


25





















 


which
agreement shall survive the Closing. To the extent that no proceeds are due to
Seller in connection with Section 16(1) or 16(2) above, this Section 16(3)
shall not survive the Closing.


 


(4)           If
a Property is deleted from this Agreement pursuant to Section 16(1) or Section 16(2)
above, the Purchase Price shall be reduced by an amount equal to the portion of
the Purchase Price allocated to such Property as set forth in Section 2(1)
hereof.


 


17.          REMEDIES.


 


(1)           A.                                   If
the Closing fails to occur with respect to not more than two (2) of the
Properties and such failure to close is on account of (i) Seller not
eliminating all Unacceptable Encumbrances not waived by Purchaser (which
failure to eliminate is due to circumstances beyond Seller’s reasonable control
and is not due to Seller’s willful bad faith hereunder; provided, however, in
no event shall Seller be required to bring any action or proceeding or make any
payments or otherwise incur any expenses in order to eliminate any Unacceptable
Encumbrances other than as set forth in Section 6(2)), or, in lieu thereof,
arranging for title insurance reasonably acceptable to Purchaser insuring
against enforcement of such Unacceptable Encumbrances against, or collection of
the same out of, such Properties, or (ii) Seller’s failure, for whatever reason
(other than Seller’s willful, bad faith default beyond applicable grace and
notice periods hereunder), to perform its obligations under this Agreement,
then after five (5) business days written notice from Purchaser and any
additional time as is necessary so as to afford Seller a reasonable opportunity
to cure, Purchaser, as its sole remedy for such failure of Seller to perform,
shall (x) delete such specific Property(ies) from this Agreement, (y) receive a
credit against the Purchase Price in an amount equal to the portion of the
Purchase Price allocated to such Property(ies), and (z) proceed to Closing on
the non-deleted Properties. In addition, Seller shall reimburse Purchaser for
its actual, reasonable third party costs incurred in connection with each
deleted Property, not to exceed $100,000. In the event that Seller’s failure to
perform under this Agreement with respect to not more than two (2) Properties
is, according to a judgment of a court of competent jurisdiction, willful and
in bad faith, Purchaser will also be entitled to reimbursement of its damages
up to $2,000,000 per Property, not to exceed $4,000,000 in the aggregate for
both deleted Properties. Notwithstanding any provision of this Agreement to the
contrary, in no event may Purchaser terminate this Agreement for any event of
default or non-performance for which the stated remedy for Purchaser is to
delete specific Property(ies) from this Agreement and
receive a credit against the Purchase Price in an amount equal to the portion
of the Purchase Price allocated to such Property(ies) (which includes the
applicable Deposit Allocation). In the event that Seller fails, for reasons
beyond Seller’s reasonable control, to close on the Canada Property under the
Canada Contract, then the reference in the first and third sentences of this Section 17(1)A
to “not more than two (2) Properties” shall be deemed changed to “not more than
one (I) Property” and the reference in the third sentence of this Section 17(1)A
to “$4,000,000” shall be deemed changed to “$2,000,000”.


 


26





















 


B.                                     If the Closing
fails to occur with respect to three (3) or more of the Properties and such
failure to close is on account to Seller not eliminating all Unacceptable
Encumbrances (which failure to eliminate is due to circumstances beyond Seller’s
reasonable control and is not due to Seller’s willful bad faith hereunder;
provided, however, in no event shall Seller be required to bring any action or
proceeding or make any payments or otherwise incur any expenses in order to
eliminate any Unacceptable Encumbrances other than as set forth in Section 6(2))
not waived by Purchaser, or, in lieu thereof, arranging for title insurance
reasonably acceptable to Purchaser insuring against enforcement of such
Unacceptable Encumbrances against, or collection of the same out of, the
Properties, then after five (5) business days written notice from Purchaser and
any additional time as is necessary so as to afford Seller a reasonable
opportunity to cure, Purchaser, as its sole remedy for such failure of Seller,
may terminate this Agreement by notice to Seller. If Purchaser elects to
terminate this Agreement pursuant to this Section 17(1)B,
then upon notice to Seller, this Agreement shall be terminated and neither
party shall have any further rights, obligations or liabilities hereunder,
except for those rights, obligations and liabilities which expressly survive
the termination of this Agreement in the event that no Closing occurs hereunder
(the “Termination Obligations”), and except
that Purchaser shall be entitled to a return of the Deposit. Except as set
forth in this Section 17(1), Purchaser hereby expressly waives,
relinquishes and releases any right or remedy available to it at law, in equity
or otherwise by reason of Seller not eliminating all Unacceptable Encumbrances
not waived by Purchaser, or, in lieu thereof, arranging for title insurance
reasonably acceptable to Purchaser insuring against enforcement of such
Unacceptable Encumbrances against, or collection of the same out of, the
Properties. In the event Seller fails, for reasons beyond Seller’s reasonable
control, to close on the Canada Property under the Canada Contract, then the
reference in the first sentence of this Section 17(1)B to “three (3) or
more of the Properties” shall be deemed changed to “two (2) or more of the
Properties.”


 


(2)           A.                                   If
the Closing fails to occur with respect of three (3) or more of the Properties
and such failure to close is on account of Seller’s breach of its performance
obligations under this Agreement and is in a case where such failure to close
is not covered in Section 17(1)(B) above, then after five (5) business
days written notice from Purchaser and any additional time as is necessary so
as to afford Seller a reasonable opportunity to cure, Purchaser, as its sole
remedy for such breach of Seller of its performance obligations hereunder, may
elect to either: (i) terminate this Agreement by notice to Seller; or (ii) seek
specific performance from Seller, provided that in no event shall Seller be
obligated to spend more than the lesser of (A) two (2%) percent of the
Allocated Purchase Prices of the affected Properties or (B) $500,000 per
affected Property (including, but not limited to, attorneys’ fees) to perform
hereunder; provided further, that where Purchaser has elected to terminate the
Agreement and where (and only in such instances where) Seller’s failure is
willful and in bad faith according to a judgment of a court of competent
jurisdiction, Purchaser will be entitled to reimbursement of its damages up to
$2,000,000 per Property not to exceed in the aggregate with respect to all
Properties, Five Million ($5,000,000) Dollars; and provided further, that where
Purchaser has elected to terminate this Agreement and where (and only in such
instances where) Seller’s failure is not willful and in


 


27





















 


bad faith
according to a judgment of a court of competent jurisdiction, Purchaser shall
be entitled to reimbursement of its damages up to an amount not to exceed in
the aggregate with respect to all Properties, Two Million ($2,000,000) Dollars.
In the event Seller fails, for reasons beyond Seller’s reasonable control, to
close on the Canada Property under the Canada Contract, then the reference in
the first sentence of this Section 17(1)B to “three (3) or more of the
Properties” shall be deemed changed to “two (2) or more of the Properties”.


 


B.                                     As
a condition precedent to Purchaser exercising any right it may have to bring an
action for specific performance as the result of Seller’s failure to perform
its obligations hereunder, Purchaser must commence such an action by filing a
Complaint within one hundred eighty (180) days after the occurrence of such
default. Purchaser agrees that its failure to timely commence such an action
for specific performance within such one hundred eighty (180) day period shall
be deemed a waiver by it of its right to commence such an action. If Purchaser
elects to terminate this Agreement pursuant to this Section 17(2), then
this Agreement shall be terminated and neither party shall have any further
rights, obligations or liabilities hereunder, except for the Termination
Obligations and except that Purchaser shall be entitled to a return of the
Deposit. Notwithstanding anything contained herein to the contrary, Purchaser
may pursue any rights or remedies it may have against Seller with respect to
the Termination Obligations subject to the express damages limits set forth in Section 17
(2)A above.


 


(3)           If
the Closing fails to occur by reason of Purchaser’s failure to perform its
obligations hereunder, then Seller as its sole remedy, may elect to either (i)
terminate this Agreement by notice to Purchaser and receive the Deposit, or
(ii) seek specific performance from Purchaser, and (1) where (and only in such
instances where) Purchaser’s failure is willful and in bad faith according to a
judgment of a court of competent jurisdiction, Seller shall be entitled to
reimbursement of its damages up to an amount not to exceed in the aggregate
with respect to all Properties, Five Million ($5,000,000) Dollars, or (2) where
Purchaser’s failure is not willful and in bad faith according to a judgment of
a court of competent jurisdiction, Seller shall be entitled to reimbursement of
its damages up to an amount not to exceed in the aggregate with respect to all
Properties, Two Million ($2,000,000) Dollars. If Seller elects to terminate
this Agreement pursuant to this Section 17(3), then upon notice to
Purchaser, this Agreement shall be terminated, and neither party shall have any
further rights, obligations or liabilities hereunder, except for the
Termination Obligations and except Seller shall receive the Deposit
notwithstanding any damage limits or waiver to the contrary. Nothing contained
herein shall limit or restrict Seller’s ability to pursue any rights or
remedies it may have against Purchaser with respect to the Termination
Obligations subject to the express damages limits set forth in this Section 17(3).


 


(4)           TO
THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL ASSERT AND EACH
HEREBY WAIVES ANY CLAIM AGAINST THE OTHER ON ANY THEORY OF LIABILITY, FOR
SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (AS OPPOSED TO DIRECT OR
ACTUAL DAMAGES) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.


 


28





















 


(5)           The
provisions of this Section 17 shall survive the termination of this
Agreement.


 


18.           INTENTIONALLY
DELETED.


 


19.           INTENTIONALLY
DELETED.


 


20.           INTENTIONALLY
DELETED.


 


21.           ASSIGNMENT. This Agreement may not be
assigned by Purchaser without the express written consent of Seller, which
consent Seller shall have right to withhold or grant in its sole and absolute
discretion; provided, however, that Purchaser shall be entitled,
upon giving prior written notice to Seller, to assign its rights under this
Agreement to Purchaser’s Designees listed in Section 2(1) and/or to Inland
Western Retail Real Estate Trust, Inc. (the “REIT”); provided that the Purchaser’s
Designees and the REIT, and any entity owned or controlled by the Purchaser’s
Designees or the REIT, as well as any entity that has a 15% or greater interest
in any of the Purchaser’s Designees or the REIT, is not a Significant
Competitor, as defined in the Lease. The entity to whom Purchaser assigns this
Agreement as permitted by this Section 21 shall become a “Purchaser” under
this Agreement, but such an assignment and assumption shall not relieve Inland
Real Estate Acquisitions, Inc. of the obligations of the “Purchaser” under this
Agreement.


 


22.           INTENTIONALLY
DELETED.


 


23.           NOTICES.


 


(1)            All
notices, elections, consents, approvals, demands, objections, requests or other
communications which Seller, Purchaser or Escrow Agent may be required or
desire to provide pursuant to, under or by virtue of this Agreement must be in
writing and sent by (i) a prepaid nationally recognized overnight courier
service, and any such notice shall be deemed received one (1) business day
after delivery to a nationally recognized courier service specifying overnight
delivery, (ii) by confirmed facsimile immediately followed by overnight
delivery, or (iii) U.S. certified or registered mail, return receipt requested,
postage prepaid, addressed as follows:


 


If to Seller:


 


FRC West
Property, L.L.C.


c/o
American Express Company


200 Vesey
Street


New York, New
York 10285


Attention:
Jeffrey S. Furman, Vice President Global Real Estate


Facsimile:
212/640-9685


 


American Express Travel
Related Services Company, Inc.


c/o American Express Company


200 Vesey Street


New York, New
York 10285


Attention:
Jeffrey S. Furman, Vice President Global Real Estate


Facsimile:
212/640-9685


 


29





















 


IDS Property
Casualty Insurance Company


c/o
American Express Company


200 Vesey
Street


New York, New
York 10285


Attention:
Jeffrey S. Furman, Vice President Global Real Estate


Facsimile:
212/640-9685


 


With copies
to:


 


Sills Cummis
Epstein & Gross


One Riverfront
Plaza


Newark, New
Jersey 07102


Attention:       Mark S. Levenson, Esq.


Facsimile:       973-643-6500


 


If to Purchaser:


 


Inland Real
Estate Acquisitions, Inc.


2901 Butterfield
Road


Oak Brook,
Illinois 60523


Attention: G.
Joseph Cosenza, President


Facsimile:
630-218-4935


 


With copies
to:


 


Inland Real
Estate Acquisitions, Inc.


2901 Butterfield
Road


Oak Brook,
Illinois 60523


Attention:       Gary Pechter,
Esq.


Facsimile:       630-218-4900


 


If to Escrow
Agent:


 


Chicago Title
and Trust Company


171 North
Clark Street


3rd
Floor, Div. II


Chicago,
Illinois 60601-3294


Attention:
Nancy Castro


Facsimile:
312-223-2108


 


(2)           Seller,
Purchaser or Escrow Agent may designate another addressee or change its address
for notices and other communications hereunder by a notice given to the other
parties in the manner provided in this Section 23(2). A notice or other
communication sent in compliance with the provisions of this Section 23
shall be deemed received when actually received, as evidenced by the return
receipt, or when delivery is first refused. From time to time any party may
designate a new address for purposes of notice hereunder by giving two (2) days
written notice thereof to each of the other parties hereto. All notices given
hereunder shall be irrevocable unless expressly specified otherwise.


 


30





















 


24.           PROPERTY INFORMATION AND CONFIDENTIALITY.


 


(1)           Purchaser
agrees that, prior to the Closing, all Property Information shall be kept
strictly confidential and shall not, without the prior written consent of
Seller, be disclosed by Purchaser or Purchaser’s Representatives, in any manner
whatsoever, in whole or in part, and will not be used by Purchaser or Purchaser’s
Representatives, directly or indirectly, for any purpose other than evaluating
the Properties. Moreover, Purchaser agrees that, prior to the Closing, the
Property Information will be transmitted only to Purchaser’s Representatives
who need to know the Property Information for the purpose of evaluating the
Properties, and who are informed by the Purchaser of the confidential nature of
the Property Information. The provisions of this Section 24(1) shall in no
event apply to Property Information which is a matter of public record and
shall not prevent Purchaser from complying with any law, including, without
limitation, governmental regulatory, disclosure, tax and reporting
requirements, provided that prior to Purchaser disclosing any Property
Information as set forth in this sentence, Purchaser shall notify, and consult
with, Seller regarding such disclosure. Purchaser shall indemnify and hold Seller
and Seller’s Affiliates harmless from and against any and all claims, demands,
causes of action, losses, damages, liabilities, costs and expenses (including,
without limitation, attorneys’ fees and disbursements) suffered or incurred by
Seller or any of Seller’s Affiliates and arising out of or in connection with a
breach by Purchaser or Purchaser’s Representatives of the provisions of this Section 24(1).


 


(2)           Purchaser
and Seller, for the benefit of each other, hereby agree that between the date
hereof and the Closing Date, they will not release or cause or permit to be
released any press notices, publicity (oral or written), advertising or
promotional materials relating to, or otherwise announce or disclose or cause
or permit to be announced or disclosed, in any manner whatsoever, the terms,
conditions or substance of this Agreement or the transactions contemplated
herein, without first obtaining the written consent of the other party hereto.
It is understood that the foregoing shall not preclude either party from
discussing the substance or any relevant details of the transactions
contemplated in this Agreement, subject to the terms of Section 24(1),
with any of its attorneys, accountants, professional consultants, potential
lenders or potential investors in a proposed Rule 144A offering, as the case
may be, or prevent either party hereto from complying with any law, including,
without limitation, governmental regulatory, disclosure, tax and reporting
requirements or prevent either party from making any disclosure required to
obtain any governmental consents or other third party consents that are
required to be obtained prior to the Closing or that are necessary in order to
pursue the subdivisions of the AESC-SLC Property and the AEPC Property,
provided that prior to Purchaser releasing or otherwise disclosing any
information as set forth in this sentence, Purchaser shall notify, and consult
with, Seller regarding such release or disclosure. Purchaser shall indemnify
and hold Seller harmless from and against any and all claims, demands, causes
of action, losses, damages, liabilities, costs and expenses (including, without
limitation, attorneys’ fees and disbursements) suffered or incurred and arising
out of or in connection with a breach by Purchaser of the provisions of this Section 24(2).
Notwithstanding the foregoing, Seller may make disclosures (i) that it believes
are desirable to make to its employees in explanation of this transaction and
in answering questions that Seller’s employees may raise and (ii) that Seller
believes are necessary to make under the Securities Exchange Act of 1934
(including the


 


31





















 


filing
of this Agreement as an exhibit to any filing required or otherwise necessary
under such act). Further, Seller shall be entitled to issue a press release
pertaining to the transactions contemplated by this Agreement upon (x) the
signing of this Agreement and (y) the closing of transactions contemplated
hereby (or any one of them); provided that Seller shall give Purchaser an
opportunity to review such press release(s) before same are issued.


 


(3)           In
the event this Agreement is terminated, Purchaser and Purchaser’s
Representatives shall either (i) promptly deliver to Seller all originals and
copies of the Property Information referred to in clause (i) of Section 24(4)
in the possession of Purchaser and Purchaser’s Representatives or (ii) confirm
in writing that such Property Information has been destroyed, at Purchaser’s
expense. In the event Purchaser or Purchaser’s Representatives fail to comply
with the preceding sentence within ten (10) business days after this Agreement
is terminated, Purchaser shall pay Seller $10,000 for each day after the tenth
business day that Seller has not received materially all Property Information
and/or the confirmation of destruction, and Purchaser shall indemnify, defend
and hold Seller harmless from and against all losses, damages and claims
arising from Purchaser’s or Purchaser’s Representatives’ failure.


 


(4)           As
used in this Agreement, the term “Property Information”
shall mean (i) all information and documents in any way relating to the
Properties, the operation thereof, the sale thereof or the leasing thereof
furnished to, or otherwise made available for review by, Purchaser or its
directors, officers, employees, affiliates, partners, brokers, agents or other
representatives, including, without limitation, attorneys, accountants,
contractors, consultants, engineers and financial advisors (collectively, “Purchaser’s Representatives”), by Seller or any of Seller’s
Affiliates, or their agents or representatives, including, without limitation,
their contractors, engineers, attorneys, accountants, consultants, brokers or
advisors, and (ii) all analyses, compilations, data, studies, reports or other
information or documents prepared or obtained by Purchaser or Purchaser’s
Representatives containing or based, in whole or in part, on the information or
documents described in the preceding clause (i), or otherwise reflecting their
review or investigation of the Properties.


 


(5)           In
addition to any other remedies available to Seller, Seller shall have the right
to seek equitable relief, including, without limitation, injunctive relief or
specific performance, against Purchaser or Purchaser’s Representatives in order
to enforce the provisions of this Section 24.


 


(6)           Notwithstanding
anything contained herein to the contrary, Purchaser shall continue to abide by
that certain letter agreement regarding confidentiality between American Express
Company and Purchaser, dated as of August 9, 2004.


 


(7)           The
provisions of this Section 24 shall survive the termination of this
Agreement and/or the Closing.


 


25.           MISCELLANEOUS.


 


(1)           This
Agreement shall not be altered, amended, changed, waived, terminated or
otherwise modified in any respect or particular, and no consent or approval


 


32





















 


required
pursuant to this Agreement shall be effective, unless the same shall be in
writing and signed by or on behalf of the party to be charged.


 


(2)           This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and to their respective heirs, executors, administrators, successors and
permitted assigns. This Agreement is an agreement solely for the benefit of
Seller and Purchaser (and their permitted successors and/or assigns). No other
person, party or entity shall have any rights hereunder nor shall any other
person, party or entity be entitled to rely upon the terms, covenants and provisions
contained herein. The provisions of this Section 25(2) shall survive the
Closing.


 


(3)           All
prior statements, understandings, representations and agreements between the
parties, oral or written, are superseded by and merged in this Agreement, which
alone fully and completely expresses the agreement between them in connection
with this transaction and which is entered into after full investigation,
neither party relying upon any statement, understanding, representation or
agreement made by the other not embodied in this Agreement or in the Lease.
This Agreement shall be given a fair and reasonable construction in accordance
with the intentions of the parties hereto, and without regard to or aid of
canons requiring construction against Seller or the party drafting this
Agreement.


 


(4)           Except
as otherwise expressly provided herein, Purchaser’s acceptance of the Deeds
shall be deemed a discharge of all of the obligations of Seller hereunder and
all of Seller’s representations, warranties, covenants and agreements herein
shall merge in the documents and agreements executed at the Closing and shall
not survive the Closing.


 


(5)           Purchaser
agrees that it does not have and will not have any claims or causes of action
against any disclosed or undisclosed officer, director, employee, trustee,
shareholder, partner, principal, parent, subsidiary or other affiliate of
Seller, including, without limitation, American Express Company, American
Express Financial Corporation, FRC, TRS, IDS and Ontario, Inc. or any officer,
director, employee, trustee, shareholder, partner or principal of any such
parent, subsidiary or other affiliate (collectively, “Seller’s
Affiliates”), arising out of or in connection with this Agreement or
the transactions contemplated hereby. Purchaser agrees to look solely to the
Properties for the satisfaction of any liability or obligation arising under
this Agreement or the transactions contemplated hereby, or for the performance
of any of the covenants, warranties or other agreements contained herein, and
further agrees not to sue or otherwise seek to enforce any personal obligation
against any of Seller’s Affiliates with respect to any matters arising out of
or in connection with this Agreement or the transactions contemplated hereby.
Without limiting the generality of the foregoing provisions of this Section 25(5),
Purchaser hereby unconditionally and irrevocably waives any and all claims and
causes of action of any nature whatsoever it may now or hereafter have against
Seller’s Affiliates, and hereby unconditionally and irrevocably releases and
discharges Seller’s Affiliates from any and all liability whatsoever which may
now or hereafter accrue in favor of Purchaser against Seller’s Affiliates, in
connection with or arising out of this Agreement or the transactions
contemplated hereby. The provisions of this Section 25(5) shall survive
the termination of this Agreement and/or the Closing.


 


33





















 


(6)           Seller
and Purchaser agree that, wherever this Agreement provides that either Seller
or Purchaser must send or give any notice, make an election or take some other
action within a specific time period in order to exercise a right or remedy it
may have hereunder, time shall be of the essence with respect to the taking of
such action, and if either Seller or Purchaser fails to take such action within
the applicable time period such failure shall be deemed to be an irrevocable
waiver by that Seller or Purchaser of such right or remedy.


 


(7)           No
failure or delay of either party in the exercise of any right or remedy given
to such party hereunder or the waiver by any party of any condition hereunder
for its benefit (unless the time specified herein for exercise of such right or
remedy has expired) shall constitute a waiver of any other or further right or
remedy nor shall any single or partial exercise of any right or remedy preclude
other or further exercises thereof or any other right or remedy. No waiver by
either party of any breach hereunder or failure or refusal by the other party
to comply with its obligations shall be deemed a waiver of any other or
subsequent breach, failure or refusal to so comply.


 


(8)           Neither
this Agreement nor any memorandum thereof shall be recorded and any attempted
recordation hereof shall be void and shall constitute a default.


 


(9)           Delivery
of this Agreement shall not be deemed an offer and neither Seller nor Purchaser
shall have any rights or obligations hereunder unless and until both parties
have signed and delivered an original of this Agreement. This Agreement may be
executed in one or more counterparts, each of which so executed and delivered
shall be deemed an original, but all of which taken together shall constitute
but one and the same instrument. This Agreement may also be executed by
facsimile immediately followed by overnight delivery.


 


(10)         Each
of the Exhibits and Schedules referred to herein and attached hereto is
incorporated herein by this reference.


 


(11)         The
caption headings in this Agreement are for convenience only and are not
intended to be a part of this Agreement and shall not be construed to modify,
explain or alter any of the terms, covenants or conditions herein contained.


 


(12)         This
Agreement shall be interpreted and enforced in accordance with the laws of the
state of New York without reference to principles of conflicts of laws.


 


(13)         If
any provision of this Agreement shall be unenforceable or invalid, the same
shall not affect the remaining provisions of this Agreement and to this end the
provisions of this Agreement are intended to be and shall be severable.
Notwithstanding the foregoing sentence, if (i) any provision of this Agreement
is finally determined by a court of competent jurisdiction to be unenforceable
or invalid in whole or in part, (ii) the opportunity for all appeals of such
determination have expired, and (iii) such unenforceability or invalidity
alters the substance of this Agreement (taken as a whole) so as to deny either
party, in a material way, the realization of the intended benefit of its bargain,
such party may terminate this Agreement within thirty (30) days after the final
determination by notice to the other. If such party so elects to terminate this
Agreement, then this Agreement shall be terminated and neither party shall have
any further rights,


 


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obligations
or liabilities hereunder, except for the Surviving Obligations, and except that
Purchaser shall be entitled to a return of the Deposit (together with all
interest accrued thereon, if any) subject to Section 24(3).


 


(14)         SELLER
AND PURCHASER HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, UNCONDITIONALLY AND
IRREVOCABLY WAIVE ANY RIGHT EACH MAY HAVE TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER ARISING IN TORT OR CONTRACT OR OTHERWISE)
BROUGHT BY EITHER AGAINST THE OTHER ON ANY MATTER ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS AGREEMENT OR ANY OTHER DOCUMENT EXECUTED AND DELIVERED BY
EITHER PARTY IN CONNECTION HEREWITH (INCLUDING ANY ACTION TO RESCIND OR CANCEL
THIS AGREEMENT ON THE GROUNDS THAT THIS AGREEMENT WAS FRAUDULENTLY INDUCED OR
IS OTHERWISE VOID OR VOIDABLE).


 


(15)         With
respect to the AESC – F Property, it should be noted that Radon is a naturally
occurring radioactive gas that, when it has accumulated in a building in
sufficient quantities, may present health risks to persons who are exposed to
it over time. Levels of radon that exceed federal and state guidelines have
been found in buildings in Florida. Additional information regarding radon and
radon testing may be obtained from your county health department.


 


(16)         Intentionally
Omitted.


 


(17)         Purchaser
acknowledges that a default by the Seller under one or more of the Leases shall
not give rise to any remedies under this Agreement, including, without
limitation, any right to receive back all or any portion of the Purchase Price.


 


(18)         To
extent that under any Lease, Seller, as lessee (“Lessee”),
incurs damages (including but not limited to fees and expenses of legal
counsel) under the title representation contained in Section 20.1(1) of
the Leases and Purchaser, as lessor, under the Lease (“Lessor”)
would be entitled to pursue a claim with respect to such matter under the title
policy received in connection with the Closing (without waiving any of its
rights under such policy except for a reduction in the policy amount), Lessor
shall pursue such claim under the title policy for the amount of the damages
and shall remit to Lessee the amount of any such damages that has suffered,
provided that (y) Lessee pays all of Lessor’s costs and expenses incurred in
connection with Lessor’s pursuit of such claim and (z) Lessee first pursues
such claim under any existing title policy as the former owner. To the extent
that the Title Company that issues the title policies in connection with the
Closing pays any such claim made by Lessor, Lessee shall indemnify the Lessor
against any damages resulting from the reduction of the title coverage under
the Lessor’s title policy upon the payment of such claim. The provisions of
this Section 25(18) shall survive Closing.


 


(19)         The
following Sections shall survive the Closing and/or the termination of this
Agreement as more particularly set forth in such Section: 2(5), 3, 8, 9, 10(3),
14,


 


35





















 


15, 16(3), 17,
24, 25(2), 25(5), 25(18) and 25(19) (collectively, the “Surviving Obligations”).


 


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IN WITNESS
WHEREOF, this Agreement has been duly executed by the parties hereto as of the
day and year first above written.


 


	
   

  	
  SELLER

  
	
   

  	
   

  
	
   

  	
  FRC WEST PROPERTY, L.L.C.

  
	
   

  	
   

  
	
   

  	
   

  	
  By:  American Express Travel
  Related 

  	
   

  
	
   

  	
   

  	
  Services Company, Inc.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ David L. Yowan 

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  David L. Yowan 

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Treasurer

  	
   

  
	
   

  	
   

  
	
   

  	
  AMERICAN EXPRESS TRAVEL RELATED

  SERVICES COMPANY, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David L. Yowan 

  	
   

  
	
   

  	
  Name:

  	
  David L. Yowan

  	
   

  
	
   

  	
  Title:

  	
  Treasurer

  	
   

  
	
   

  	
   

  
	
   

  	
  IDS PROPERTY CASUALTY INSURANCE

  COMPANY

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David L. Yowan

  	
   

  
	
   

  	
  Name:

  	
  David L. Yowan 

  	
   

  
	
   

  	
  Title:

  	
  [ILLEGIBLE]

  	
   

  
								



 


37





















 


	
   

  	
  PURCHASER

  
	
   

  	
   

  
	
   

  	
  INLAND REAL ESTATE ACQUISITIONS, INC., an

  Illinois corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ G. Joseph Cosenza

  	
   

  
	
   

  	
  Name:

  	
  G. Joseph Cosenza

  	
   

  
	
   

  	
  Title:

  	
  President

  
					



 


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