Exhibit
10.501


 


	
  PURCHASE AND
  SALE AGREEMENT

  
	
   

  
	
  AMONG

  
	
   

  
	
  1001674 ONTARIO,
  INC.,

  
	
   

  
	
  and

  
	
   

  
	
  1001675 ONTARIO,
  INC.,

  
	
   

  
	
  collectively,
  SELLER

  	
   

  
	
   

  
	
  AND

  
	
   

  
	
  INLAND REAL
  ESTATE ACQUISITIONS, INC.,

  
	
   

  
	
  PURCHASER.

  	
   

  
	
   

  
	
  DATED AS OF JANUARY 25,
  2005

  



 





















 


TABLE
OF CONTENTS


 


 


	
  1.

  	
  SALE OF PROPERTY

  	
   

  
	
   

  	
   

  	
   

  
	
  2.

  	
  PURCHASE PRICE

  	
   

  
	
   

  	
   

  	
   

  
	
  3.

  	
  APPORTIONMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  4.

  	
  CLOSING DATE/ELECTRONIC REGISTRATION

  	
   

  
	
   

  	
   

  	
   

  
	
  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 PROPERTY PRIOR TO THE CLOSING
  DATE

  	
   

  
	
   

  	
   

  	
   

  
	
  14.

  	
  AS-IS

  	
   

  
	
   

  	
   

  	
   

  
	
  15.

  	
  BROKER

  	
   

  
	
   

  	
   

  	
   

  
	
  16.

  	
  CASUALTY; EXPROPRIATION

  	
   

  
	
   

  	
   

  	
   

  
	
  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

  	
   

  



 


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  EXHIBITS:

  	
   

  
	
   

  	
   

  	
   

  
	
  A.

  	
  INTENTIONALLY
  DELETED

  	
   

  
	
  B.

  	
  SELLER’S
  EQUIPMENT AND PERSONALTY

  	
   

  
	
  C.

  	
  DOCUMENTS
  TO WHICH SELLER OR AMEX CANADA INC. IS A PARTY

  	
   

  
	
  D.

  	
  FORM
  OF SNDA

  	
   

  
	
  E.

  	
  FORM
  OF DEED

  	
   

  
	
  F.

  	
  FORM
  OF LEASE

  	
   

  
	
  G.

  	
  INCOME
  TAX ACT SECTION 116 DECLARATION

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULES:

  	
   

  
	
   

  	
   

  	
   

  
	
  1

  	
  DESCRIPTION
  OF THE LAND

  	
   

  
	
  2

  	
  PERMITTED
  ENCUMBRANCES

  	
   

  
	
  8(4)(2) MATERIALLY CONTRAVENED
  DOCUMENTS

  	
   

  
	
  8(4)(5) DUE DILIGENCE ITEMS DELIVERED
  TO PURCHASER

  	
   

  



 


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TABLE
OF DEFINED TERMS


 


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


 


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


 


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


 


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


 


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


 


•              “Current
Lease” - as such term is defined in the Recitals hereof.


 


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


 


•              “Environmental
Laws” - as such term is defined in Section 8(2) hereof.


 


•              “Excluded
Equipment” - as such term is defined in Section 7 hereof.


 


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


 


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


 


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


 


•              “Lease”
- as such term is defined in Section 11(3) hereof.


 


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


 


•              “Property”
- as such term is defined in the recitals 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.


 


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


 


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


 


•              “Seller’s
Solicitors” - as such term is defined in Section 4(1) hereof.


 


•              “Survey”
- 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.


 


•              “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)(i) hereof.


 


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


 


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


 


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


 


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


 


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


 


•              “US
Properties PSA” - as such term is defined in the recitals hereof.


 


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


 


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PURCHASE AND SALE
AGREEMENT


 


PURCHASE AND SALE
AGREEMENT (this “Agreement”) dated as of the 25th day of January,
2005, by and among 1001674  ONTARIO, INC. and 1001675 ONTARIO, INC., each being a
corporation governed by the laws of the Province of Ontario, and each having an
office at 101 McNabb Street, Markham, Ontario L3R 4H8 (individually and
collectively, the “Seller”), and INLAND REAL ESTATE ACQUISTIONS, INC., a corporation
governed by the laws of the State of Illinois (the “Purchaser”), having
an office at 2901 Butterfield Road, Oak Brook, Illinois 60523.


 


W
I T N E S S E T H


 


WHEREAS,
1001674 Ontario, Inc. is the only owner of registered title
to the parcel of land described on Schedule “1”
attached hereto and the buildings and improvements located thereon
(such land, buildings and improvements being collectively referred to herein as
the “Property”) and 1001675 Ontario, Inc. is the
only owner of beneficial title to the Property; and


 


WHEREAS,
Seller’s affiliate, Amex Canada Inc., currently leases the Property from Seller
(the “Current Lease”);
and


 


WHEREAS,
Seller and Purchaser now desire to enter into an agreement
whereby, subject to the terms and conditions contained herein, (i) Seller
agrees to sell the Property to Purchaser or its affiliated assignee and
Purchaser’s affiliated assignee shall purchase the Property from Seller and (ii)
Amex Canada Inc. shall lease the Property from Purchaser’s affiliated assignee
commencing immediately upon closing of such purchase; and


 


WHEREAS,
Purchaser intends to assign this Agreement (subject to Section 21
hereof) to its affiliate, Inland Western Markham Corp., a corporation governed
by the laws of the Province of New Brunswick (“Purchaser’s Designee”); and


 


WHEREAS,
on December 16, 2004, Seller’s affiliates, IDS Property
Casualty Insurance Company, FRC West Property, L.L.C. and American Express
Travel Related Services Company, Inc., as seller, and Purchaser, as purchaser,
entered into that certain Purchase and Sale Agreement for various properties
located in the United States of America (the “US Properties PSA”).


 


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 PROPERTY.


 


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 Property. 


 


2.             PURCHASE
PRICE.


 


(1)                 The
purchase price to be paid by Purchaser to Seller for the Property (the “Purchase Price”) is Forty Two Million and No/100 ($42,000,000.00) 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. Any
payment made by wire transfer shall not be deemed to have been made until
confirmed as received by Seller’s bank and credited to Seller’s account.


 


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


 


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


 


(3)                                  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.


 


3.             APPORTIONMENTS.


 


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


 


4.             CLOSING
DATE/ELECTRONIC REGISTRATION.


 


(1)                                  The
delivery of the Deed and the consummation of the transactions contemplated by
this Agreement (the “Closing”)
shall take place at the offices of Fasken Martineau DuMoulin LLP, Toronto,
Ontario (the “Seller’s Solicitors”) at 10 a.m.


 


2





















 


local time on or about January 25,
2005 (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 the Property 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 the Lease, the SNDA, the estoppel, the Notice
of Lease, the Deed and any other closing documents that the parties hereto
agree to record) required to be delivered on the Closing Date, executed
facsimile copies of such ancillary closing documents shall be acceptable;
provided that originals of such ancillary closing documents shall be delivered
within two (2) business days after the Closing Date.


 


(2)                                  In
the event that the electronic registration system (hereinafter referred to as “TERS”) is operative in the applicable Land Registry Office
in which the Property is registered, the following provisions shall prevail,
namely:


 


(a)           the
Purchaser shall be obliged to retain a lawyer in good standing with the Law
Society of Upper Canada to represent the Purchaser in connection with the completion
of this transaction, and shall authorize and instruct such lawyer to enter into
an escrow closing agreement with the Seller’s Solicitors on the latter’s standard
form (hereinafter referred to as the “Escrow Registration
Agreement”), establishing the procedures and timing for completing
this transaction;


 


(b)           the
delivery and exchange of documents and monies and the release thereof to the
Seller and the Purchaser, as the case may be:


 


(i)            shall
not occur contemporaneously with the registration of the Transfer/Deed; and


 


(ii)           shall
be governed by the Escrow Registration Agreement, pursuant to which the
solicitor receiving the documents and/or certified funds will be required to
hold the same in escrow, and will not be entitled to release the same except in
strict accordance with the provisions of the Escrow Registration Agreement.


 


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 Property
subject to those instruments, documents and 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 Property and for which the Title Company has


 


3





















 


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) a title commitment
and the related underlying documents (together, “Title Commitment”) for
the Property from the Title Company and (y) a survey as more particularly
described on Schedule 2 as item 1(f) (the “Survey”, together with the Title Commitment,
the “Title Items”). Purchaser has provided Seller with
a notice of Purchaser’s comments and objections to the Title Items (a “Title Objection Letter”). 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 Letter.


 


(ii)                                  In
the event that, prior to the Closing Date, 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 Letter, or (y) Purchaser receives an updated Title Commitment which
indicates the existence of any liens, encumbrances, or other defects or
exceptions in or to title to the Property 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 Item,
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 one or more times for
up to sixty (60) days in the aggregate in order to attempt, in good faith, to
eliminate Unacceptable Encumbrances. 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 to satisfy any conditions for the Title 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.
The parties hereto acknowledge and agree that all fees due to the Title Company
and to LandAmerica have been paid in full.


 


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(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 Property; 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 Property 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 Liens”) affecting the Property which can be
satisfied by payment of liquidated amounts, Seller shall be obligated to spend,
with respect to the Property, an amount not to exceed the lesser of (i) two
(2%) percent of the Purchase Price or (ii) $500,000.00 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 in an amount that,
when aggregated with the reasonable third party costs to which the “Purchaser”
under the US Properties PSA would be entitled under Section 6(2) of that
agreement, does not 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 or (ii) $500,000, 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 in an
amount that, when aggregated with the reasonable third party costs to which the
“Purchaser” under the US Properties PSA would be entitled under Section 6(2)
of that agreement, does not 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,


 


5





















 


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 expired 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 Sections
6(2) and 6(5), 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


 


(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 security interests filed against the
Purchaser under the Personal Property
Security Act (Ontario) specifically referencing the Property, the
same shall not constitute objections to title provided Seller executes and
delivers an officer’s certificate to the effect either (i) that the personal property
(as defined in the Lease) covered by said security interests is no longer in or
on the Property, or (ii) if such personal property is still in or on the
Property, 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 the Lease.


 


(5)                                  In
the event that a discharge of any mortgage or charge held by a Chartered Bank, Trust
Company, Credit Union or Insurance Company and which is not to be assumed by
the Purchaser on completion, is not available in registrable form on Closing,
the Purchaser agrees to accept the Seller’s Solicitor’s personal undertaking to
obtain, out of the closing funds, a discharge or cessation of charge in
registrable form and to register same on title within a reasonable period of
time (not to exceed 60 days) after completion, provided that on or before Closing
the Seller shall provide to the Purchaser a mortgage statement prepared by the mortgagee
setting out the balance required to obtain the discharge together with a direction
executed by the Seller directing payment to the mortgagee of the amount required
to obtain the discharge out of the balance due on completion.


 


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 Property 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


 


6





















 


Property shall not be
included in the Property 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 Property to be sold
to Purchaser hereunder. Seller shall assign to Amex Canada Inc. at Closing all
of Seller’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 the Lease, neither Seller, nor any person acting on behalf of Seller, 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 express or implied, by operation of law or otherwise, with
respect to the Property (including, without limitation, the environmental
condition of the Property), the zoning and other laws, regulations and rules
applicable thereto or the compliance by the Property therewith, the revenues
and expenses generated by or associated with the Property, or otherwise
relating to the Property 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 Property, (ii) existing lease agreements, (iii) the current or future
real estate tax liability, assessment or valuation of the Property; (iv) the
potential qualification of the Property 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 Property in its 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 Property 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
Property from any source, including, without limitation, any government
authority or any lender; (viii) the current or future use of the Property,
including, without limitation, the Property’s 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 Property, its suitability for
rehabilitation or renovation, or the need for expenditures for capital
improvements,


 


7





















 


repairs or replacements
thereto; (x) the viability or financial condition of any tenant; (xi) the
status of the leasing market in which the Property is located; or (xii) the
actual or projected income or operating expenses of the Property.


 


(2)                                  Purchaser
expressly acknowledges that it is acquiring the Property based solely on its
own independent investigation and inspection of the Property 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 the
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 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 the Lease), appraisals, certificates, reports, assessments,
studies or other information delivered to Purchaser for its review with respect
to the Property. Purchaser acknowledges that Seller has afforded Purchaser the
opportunity for full and complete investigations, examinations and inspections of
the Property 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 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 15 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’s interest in the
Property, and Purchaser shall have no recourse against Seller, 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


 


8





















 


Purchaser shall have no
right to terminate this Agreement, except as expressly provided in the
Agreement.


 


(4)                                  The
Seller represents and warrants to the Purchaser as follows:


 


1.                                       Seller
is validly existing and in good standing under the laws of the Province of
Ontario. Seller has the corporate power and authority 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 the corporate power and
authority to enter into and perform its obligations under the documents
described on Exhibit “C” attached
hereto to which it is a signatory.


 


2.                                       (A)          This
Agreement has been duly (a) authorized by all necessary corporate action and
(b) executed and delivered to Purchaser. When executed and delivered by Seller
or Amex Canada Inc., as the case may be, at Closing, 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 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, or Amex Canada Inc., as the
case may be, to Purchaser will not, (x) require any approval of the
stockholders of Seller, or Amex Canada Inc., as the case may be, or any
approval or consent of any trustee or holder of any indebtedness or obligation
of Seller, or Amex Canada Inc., as the case may be, other than such consents
and approvals as have been obtained, (y) contravene any applicable law binding
on Seller, or Amex Canada Inc., as the case may be, 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 Seller, or Amex Canada Inc., as the case may be, or any indenture,
judgment, order, mortgage, loan agreement, contract, partnership or joint
venture agreement, lease or other agreement or instrument to which Seller, or
Amex Canada Inc., as the case may be, is a party or by which Seller, or Amex
Canada Inc., as the case may be, is bound, or result in the creation of any
Lien upon the Property.


 


(B)           When
executed and delivered by American Express Travel Related Services Company,
Inc. (“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


 


9





















 


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 or Amex
Canada Inc., as the case may be, 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”, 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 Canada,
the province in which the Property is 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, provincial, county,
municipal, city, foreign or otherwise) whether now or hereafter in existence.


 


4.                                       Seller
is not a non-resident of Canada within the meaning of Section 116 of the Income Tax Act (Canada).


 


5.                                       To
Seller’s knowledge, but without independent investigation or duty of inquiry,
except as may be set forth on Schedule 8(5) (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.


 


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


 


7.                                       Except
for the Current Lease, there are no registered leases on any of the Property or
any other rights to occupy the Property.


 


10





















 


8.                                       Seller
is in compliance with the subdivision control provisions of the Planning Act,
and covenants to remain, at its sole cost and expense, in compliance with such
provisions at all times until Closing.


 


9.                                       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 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 postpone 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 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; or (y) if such misrepresentation is specific
to a Property (as opposed to being applicable to all Property), 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
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 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


 


11





















 


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 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 as damages, in
connection with any and all breaches of the representations and warranties of
Seller hereunder, an amount in excess of between zero dollars and $2,000,000
which, when aggregated with the damages for the “Seller’s” breaches of its
representations and warranties to which the “Purchaser” under the US Properties
PSA would be entitled under Section 8(7) of that agreement, would not cause
such aggregated amount to exceed $2,000,000 notwithstanding that the amount of
any damages suffered by Purchaser exceeds $2,000,000.


 


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


 


1.                                       Purchaser
is validly existing and in good standing under the laws of the State of
Illinois. Purchaser’s Designee will be at Closing validly existing and in good
standing under the laws of the Province of New Brunswick. Purchaser has the
corporate power and authority to conduct its business as now conducted, to own
or hold its assets, to own or hold the Property or to lease the Property, as
the case may be, 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) corporate or (ii) trust action, executed and delivered to Seller,
and performance thereof by Purchaser will not,


 


12





















 


(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 the organizational documents of Purchaser,
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.


 


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.                                       Purchaser’s
Designee is and/or will be at Closing registered under Subdivision d of
Division V of Part IX of the Excise Tax Act (“ETA”)
for the collection and remittance of the goods and services tax payable
thereunder (“GST”) and its registration number
is 860614973 RT0001.


 


5.                                       Purchaser’s
Designee is not a non-Canadian within the meaning of the Investment Canada Act (Canada).


 


6.                                       Purchaser
(including for the purposes of this Section 8(8)(6), 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.


 


7.                                       Purchaser
is neither the legal nor beneficial owner of any real property adjoining any
part of the Property.


 


(9)                                  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


 


13





















 


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, or (y) if such misrepresentation is specific to a Property (as
opposed to being applicable to all Property), 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 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.


 


(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.
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.


 


(11)         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.


 


9.             CLOSING
COSTS.


 


(1)                                  At
the Closing, Seller shall be liable for the payment of (i) all applicable Land
Transfer Tax and registration fees (the “Transfer Tax Payments”)
imposed pursuant to the laws of the Province of Ontario or any other
Governmental Authority in respect of the transactions contemplated by this
Agreement by wire transfer to the Seller’s Solicitors or delivery to the Seller’s
Solicitors of certified cheques drawn on one of the five largest (by asset
size) Schedule 1 Chartered Canadian Banks and payable to the order of the
relevant Governmental Authority together with any return (the “Transfer Tax Return”)
required thereby which


 


14





















 


shall be duly executed by
Purchaser, (ii) recording charges to discharge any mortgages that are not to be
assumed (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 Property to Purchaser (including, without limitation,
recording fees), (iii) one-half of any escrow fees, (iv) the cost of the appraisals,
engineering reports and Phase 1 environmental reports ordered by Purchaser, and
(v) all applicable provincial sales tax and federal goods and services tax
payable in connection with the sale, transfer, assignment and delivery of the
Property by the Seller to the 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.


 


(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 Property, including,
without limitation, recording fees, 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 Property 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 Property 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 a title policy for the Property with all
endorsements required by this Agreement, an updated ALTA survey, the Lease,
estoppel certificates in form reasonably acceptable to Seller and a
subordination, non-disturbance and attornment agreement substantially in the
form attached hereto as Exhibit “D” (“SNDA”), it being agreed and understood that in no event
shall Seller’s failure to deliver any estoppel certificate or SNDA be deemed


 


15





















 


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, Guarantor under the Lease for the Property, shall have an
S&P credit rating of higher than “A”;


 


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;


 


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 Property or the consummation
of any other transaction contemplated hereby;


 


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; and


 


9.                                       The
Current Lease shall have been terminated concurrently with the Closing.


 


(2)                                  Seller’s
obligation under this Agreement to sell the Property 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;


 


16





















 


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 transfer of the Property or the consummation
of any other transaction contemplated hereby;


 


5.                                       On
or prior to the Closing Date, (A) Purchaser shall not have applied for or
consented to the appointment of a receiver, receiver-manager, 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, receiver-manager,
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;


 


6.                                       Purchaser’s
Designee and its affiliates, Inland Western Markham Limited Partnership and
Inland Western Markham DST, shall have entered into that certain Canadian Tax
Monitoring And Indemnity Agreement with Amex Canada Inc. in the form attached
hereto as Exhibit “E”; and


 


7.                                       Purchaser’s
Affiliate, Inland Western Retail Real Estate Trust, Inc., shall have executed
and delivered the Indemnification Guaranty in the form attached as an exhibit
to the Lease (as defined below).


 


17





















 


(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, or (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
or, (iii) if such failures relate to more than one of the Property 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 the Purchaser, the following for the Property:


 


(1)                                  An
electronically registrable transfer/deed of land for the Property with the statements
pursuant to Section 50(22) of the Planning
Act (Ontario) completed by the Seller and the Seller’s Solicitors
(collectively, the “Deed”)
conveying title to the Property in the form shown in Exhibit “F” annexed hereto and made a part hereof;


 


(2)                                  A
lease for the Property, substantially in the form of the lease attached hereto
as Exhibit “G” (the “Lease”)
and a notice thereof for recording in the land records where the Property is
located;


 


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


 


(4)                                  A
current ALTA survey certified to Purchaser and Purchaser’s lender, if any;


 


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


 


(6)                                  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,
with a copy of such documentation to Purchaser;


 


(7)                                  Land
Transfer Tax Returns, if any, to be prepared by Seller and
signed by Purchaser;


 


(8)                                  The
Transfer Tax Payments, if any;


 


(9)                                  A
statutory declaration stating that Seller is not a non-resident of Canada
within the meaning of Section 116 of the Income
Tax Act (Canada) as attached and made a part hereof as Exhibit “H”;


 


18





















 


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


 


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


 


(12)         A
transfer/deed of land for the Property from 1001675 Ontario, Inc. not for registration,
but in registrable form, along with its authorization and direction to 1001674
Ontario, Inc. to convey to the Purchaser registered title to the Property; 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 Article 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 Seller, the following for the Property:


 


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


 


(2)                                 The
Lease;


 


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


 


(4)                                 If
such is required by the terms of any Permitted Encumbrance, a specific assumption
agreement pursuant to which the Purchaser assumes the obligations of the Seller
contained in such document from and after the Closing;


 


(5)                                 Land
Transfer Tax Returns, if any, to be prepared by Seller and signed by Purchaser;


 


(6)                                 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;


 


(7)                                 On
Closing, the Purchaser shall either remit to the Seller all GST payable pursuant
to the ETA in respect of the sale of the Property or self assess for the exigible
GST and deliver prior to closing to the Seller a notarial copy of the Purchaser’s
GST registration certificate and a declaration and indemnity stating the
following:


 


(i)                                     The
Purchaser’s Designee is registered under Subdivision d of Division V of Part IX
of the ETA for the collection and remittance of GST and its Registration Number
is 860614973 RT0001;


 


19





















 


(ii)                                  The
Purchaser shall remit directly to the Receiver General of Canada all GST, if
any, which the Purchaser is required to remit in accordance with the ETA, and
file the prescribed form in connection with the sale or conveyance of the
Property;


 


(iii)                               The
Property is being purchased by the Purchaser as principal for its own account
and is not being purchased by the Purchaser as an agent, trustee or otherwise
on behalf of or for another person;


 


(iv)                              The
Purchaser shall indemnify and save harmless the Seller from any GST, penalty,
interest or other amounts which may be payable by or assessed against the
Seller under the ETA as a result of or in connection with the Seller’s failure
to collect and remit any GST applicable on the sale and conveyance of the
Property by the Seller.


 


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


 


(9)                              A
certification from an authorized officer of Inland Western Retail Real Estate Trust,
Inc. that Purchaser (including for the purposes of this Section 12(9), 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;
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 Article 12 shall be in form and substance acceptable to Seller
and its counsel, acting reasonably and in good faith.


 


13.                                 OPERATION
OF THE PROPERTY 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 Property 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 Property “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 affecting the Property. Purchaser has had the
opportunity to investigate the Property (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 Property relating thereto (including specifically, without limitation,
environmental conditions) made or furnished by Seller directly


 


20





















 


or indirectly, orally or
in writing except for the representations and warranties of the Seller
contained herein or in the Lease. Purchaser and Purchaser’s successors,
assigns, operators, mortgagees, tenants, licensees and occupants of the
Property 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 Property. “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, provincial 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 and
include, without limitation, those Environmental Laws relating to the storage,
generation, use, handling, manufacture, processing, labelling, advertising,
sale, display, transportation, treatment, release and disposal of Hazardous
Substances, including without limitation, the Canadian
Environmental Protection Act, 1999, S.C. 1999, c.33, the Transportation of Dangerous Goods Act, 1992,
c.34, the Environmental Protection Act, R.S.O.
1990, c. E.19, the Ontario Water Resources
Act, R.S.O. 1990, c. O.40 and any regulation, order, guideline or
policy made pursuant to any of such statutes or in respect of any of such
statutes.


 


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 Property 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 Property, the presence of Hazardous Substances, or any
other conditions (whether patent, latent or otherwise) affecting the Property,
except for claims against Seller based upon any obligations and liabilities of
Seller expressly provided in this Agreement or the Lease. 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 the event of any such construction defects, errors or omissions,
the presence of Hazardous Substances, or any other conditions affecting the
Property, Purchaser


 


21





















 


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 Property 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)                               The
Purchaser agrees that it will not initiate any inspection of the Property by
any Governmental Authority but shall be entitled to contact the appropriate Governmental
Authority to obtain a zoning letter.


 


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


 


16.                                 CASUALTY;
EXPROPRIATION.


 


(1)                                  If
a “material” part (as hereinafter defined) of the Property 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
terminate 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 Property is damaged or destroyed and Purchaser elects to
terminate this Agreement as provided above, Purchaser’s election shall be
ineffective if within ten (10) days after Seller’s receipt of 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


 


22





















 


Date at the time of
Purchaser’s election. If Seller makes such election to repair, Seller shall
have the right to postpone 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
terminate this Agreement, (ii) Purchaser elects to terminate this Agreement but
such election is ineffective because Seller elects to repair such damage and
completes such repair within such 90-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 the Property, 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 the Property shall be
deemed to have been damaged or destroyed if the cost of repair or replacement
shall be $250,000 or more as reasonably 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 the Property is taken by eminent domain or expropriation (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 terminate 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 terminate 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 the Property, 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 the Property means a Taking of twenty percent 20% or more of the
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 this Agreement is not terminated as provided in Section 16(1) or Section 16(2)
and the eminent domain or expropriation proceeds payable with respect to the
Property as a result of any Taking exceeds the Purchase Price 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 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 Purchase Price, which agreement shall survive
the Closing. To the extent that no proceeds are due to Seller in connection
with Section 16(1) and Section 16(2), this Section 16(3) shall
not survive the Closing.


 


23





















 


17.           REMEDIES.


 


(1)                                  If
the Closing fails to occur and such failure to close is on account of (i)
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 Property, 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,
then 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), 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”).
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
Property.


 


(2)                                  A.            If
the Closing fails to occur 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 and close is not covered in Section 17(1) 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,
then Purchaser, as its sole remedy for such breach of Seller’s 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 Purchase Price or (B)$500,000 (including, but not limited
to, legal 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 the lesser of (a) $2,000,000 or (b) an amount between zero
dollars and $2,000,000 which, when aggregated with the damages for the “Seller’s”
willful and bad faith failure to which the “Purchaser” under the US Properties
PSA would be entitled under Section 17(2)A of that agreement, would not
cause such aggregated amount to exceed $5,000,000; 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 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 between zero dollars and
$2,000,000 which, when


 


24





















 


aggregated with the damages
for the “Seller’s” failure that is not willful and not in bad faith to which
the “Purchaser” under the US Properties PSA would be entitled under Section 17(2)A
of that agreement, would not cause such aggregated amount to exceed $2,000,000.


 


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.
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, 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 between zero dollars and $5,000,000 which, when
aggregated with the damages for the “Purchaser’s” willful and bad faith failure
to which the “Seller” under the US Properties PSA would be entitled under Section 17(3)(1)
of that agreement, would not cause such aggregated amount to exceed $5,000,000
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 between zero dollars and $2,000,000
which, when aggregated with the damages for the “Purchaser’s” failure that is
not willful and not in bad faith to which the “Seller” under the US Properties
PSA would be entitled under Section 17(3)(2) of that agreement, would not
cause such aggregated amount to exceed $2,000,000. 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. 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.


 


25





















 


(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 Inland Western Retail Real Estate
Trust, Inc. (the “REIT”); provided that the REIT,
and any entity owned or controlled by the REIT and any entity that has a 15% or
greater interest in 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, whether Purchaser’s Designee or
otherwise, shall become the “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, or Purchaser 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, or (ii)
U.S. certified or registered mail, return receipt requested, postage prepaid,
addressed as follows, or (iii) by telefax followed by a copy sent in the manner
of either clause (i) or (ii) above:


 


If to Seller:


 


1001674 Ontario, Inc.


c/o
American Express Company


200 Vesey Street


New York, New York 10285


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


Telefax: 212/ 640-9685


 


With copies to:


 


Sills Cummis Epstein
& Gross, P.C.


One Riverfront Plaza 


Newark, New Jersey 07102 


Attention: Mark S. Levenson, Esq. 


Telefax: 973-643-6500


 


26





















 


With copies to:


 


Amex Bank of Canada


101 McNabb Street


Markham, Ontario


L3R 4H8


Attn: Chairman of the Board, President, Chief
Executive Officer and General Manager


Telefax: 905-474-8708


 


and


 


Amex Bank of Canada


101 McNabb Street


Markham, Ontario


L3R 4H8


Attn: Vice President and Group Counsel


Telefax: 905-474-9985


 


If to Purchaser:


 


The Inland Real Estate
Group, Inc.  


2901 Butterfield Road 


Oak Brook, Illinois 60523 


Attention: G. Joseph Cosenza, President 


Telefax:  630-218-4935


 


With copies to:


 


The Inland Real Estate
Group, Inc.  


2901 Butterfield Road 


Oak Brook, Illinois 60523 


Attention: Gary Pechter, Esq. 


Telefax:  630-218-4900


 


(2)           Seller
or Purchaser 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.


 


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


 


27





















 


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 Property.
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 Property, 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 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 Seller believes are desirable to its employees in
explanation of this transaction and 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 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


 


28





















 


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
Property, 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 Property.


 


(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 January 5, 2005.


 


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


 


29





















 


(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 Deed
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, or any of Seller’s affiliates
which is a party to the US Properties PSA, 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 Seller and the Property 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 the Closing.


 


(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


 


30





















 


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.


 


(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
Province of Ontario and the Laws of Canada applicable therein 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, obligations
or liabilities hereunder, except for the Surviving Obligations, and subject to
Section 24(3).


 


31





















 


(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) 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)         INTENTIONALLY
OMITTED.


 


(16)         Purchaser
acknowledges that a default by the Seller’s Affiliate under the Lease 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.


 


(17)         To
the extent that under the Lease, Seller’s Affiliate, 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
Lease 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 Lessee 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) Seller 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(17) shall survive Closing.


 


(18)         Any
tender of documents or money may be made upon the Seller or the Purchaser or
upon their respective solicitors.


 


(19)         This
Agreement is conditional on compliance with Section 50 of the Planning Act,
R.S.O. 1990, as amended.


 


(20)         The
Purchaser hereby waives compliance by the Seller with any applicable bulk sales
legislation. The Seller agrees to indemnify and save the Purchaser harmless from
all claims, suits, courses of action which any
creditor may institute with respect to the Property pursuant to or arising out
of non-compliance with such legislation.


 


(21)         All
references herein to “Dollars” or the symbol “$” shall mean currency of the United
States of America.


 


(22)         The
following Sections shall survive the Closing and/or the termination of this Agreement
as more particularly set forth in such Section: 2(2), 3, 8, 9, 10(3), 14, 15,
16(3), 17, 24, 25(2), 25(5), 25(19) and 25(20) (collectively, the “Surviving Obligations”).


 


32





















 


[No further text on this page; two signature pages follow]


 


33





















 


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


 


 


	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  1001674 ONTARIO, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Elizabeth Daruwala

  	
   

  
	
   

  	
   

  	
  Name: Elizabeth Daruwala

  
	
   

  	
   

  	
  Title:   Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Beth S. Horowitz

  	
   

  
	
   

  	
   

  	
  Name: Beth S. Horowitz

  
	
   

  	
   

  	
  Title:   Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  1001675 ONTARIO, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Elizabeth Daruwala

  	
   

  
	
   

  	
   

  	
  Name: Elizabeth Daruwala

  
	
   

  	
   

  	
  Title:   Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Beth S. Horowitz

  	
   

  
	
   

  	
   

  	
  Name: Beth S. Horowitz

  
	
   

  	
   

  	
  Title:   Director

  
					



 


34





















 


	
   

  	
  PURCHASER:

  
	
   

  	
   

  	
   

  
	
   

  	
  INLAND REAL ESTATE ACQUISITIONS,

  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ G. Joseph Cosenza

  	
   

  
	
   

  	
   

  	
  Name: G. Joseph Cosenza

  
	
   

  	
   

  	
  Title:   Authorized Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Karen M. Kautz

  	
   

  
	
   

  	
   

  	
  Name: Karen M. Kautz

  
	
   

  	
   

  	
  Title:   Vice
  President

  
					



 


35





















 


SCHEDULE
1 


 


DESCRIPTION
OF THE LAND


 


Municipal Address: 101 McNabb Street,
Markham, Ontario


 


And legally
described as:


 


Parcel Block 15-1,
Section M1915; Block 15, Plan M1915; subject to LA823764 Markham, Regional Municipality
of York


 


PIN:  02990-0020 (LT)


 


PT BLK 6 PLM1915,
designated as Part 2 on Plan 65R-10022, Town of Markham, Regional Municipality
of York


 


PIN: 02990-0068 (LT)


 


BLK7 PLM19I5, save and
except PT 1, Plan 65R-9950, Town of Markham, Regional Municipality of York


 


PIN:  02990-0070 (LT)


 


PTBLK7 PL M1915
designated as Part 1 on Plan 65R-9980, Town of Markham, Regional Municipality
of York


 


PIN:  02990-0071 (LT)


 


PT BLK 16 PL M1915
designated as Part 1 on Plan 65R-20771, Town of Markham, Regional Municipality
of York, T/W PT ELK 16 PL Ml915 designated as Part 2 on Plan 65R-8188, as in
LT246604


 


PIN:  02990-0072 (LT)


 


PT BLK 6 PL Ml 915
designated as Part 3 on Plan 65R-10022, Town of Markham, Regional Municipality
of York


 


PIN:  02990-0076 (LT); and


 


PT BLK 16 PL M1915
designated as Parts 3, 4and 5 on Plan 65R-9980, Town of Markham, Regional
Municipality of York, S/T easement over Part 2, Plan 65R-18257 in favour of
Part 1, Plan 65R-I 5257 as in LT1084755; 8/T easement over PT 6 Plan 65R-8188
in favour of Pt. 1, 2, 7, 8, Plan 65R-8188 as in LT246605; S/T easement over PT
6, Plan 65R-8188 and PT2, Plan 66R-11550 in favour of PTS 1,2,7,8, Plan
65R-8188 as in LT246606; S/T LA823764.


 


PIN:  02990-0078 (LT)


 





















 


SCHEDULE
2


 


PERMITTED
ENCUMBRANCES


 


Purchaser shall take title to the Property subject to:


 


1.                                                                                       (a)           Industrial
Subdivision Agreement between Cedarland Property Limited and The Corporation of
the Town of Markham registered October 2, 1979 as Instrument No. LA803357;


 


(b)           Transfer
of Easement from Cedarland Property Limited in favour of The Corporation of the
Town of Markham registered December 14, 1979 as Instrument No. LA823764;


 


(c)           Intentionally
Deleted;


 


(d)           Site
Plan Control Agreement between American Express Canada Inc. and The Corporation
of the Town of Markham registered September 3, 1981 as Instrument No. LT57946;


 


(e)           Amendment
to Site Plan Control Agreement between American Express Canada Inc. and The
Corporation of the Town of Markham registered February 2, 1987 as Instrument No.
LT355945;


 


(f)            Instrument
No. LT244318 is an Application to register By-Law No. 168-85 with respect to
Part Lot Control registered August 27, 1985 relating to PIN Nos. 02990-0078 and
02990-0072;


 


(g)           Instrument
No. LT217670Z is an Application to Register Condition, Restriction or Covenant
by Cedarland Properties Limited on March 20, 1985 relating to PIN Nos.
02990-0068, 02990-0070, 02990-0071 and 02990-0076;


 


(h)           Instrument
No. LT1410472 is an Application to register Notice of Site Plan Control
Agreement registered March 20, 1985 relating to PIN Nos. 02990-0068, 02990-0070
and 02990-0072;


 


(i)            Instrument
No. LT367375 is an Application to Register Notice of a Site Plan Agreement
registered March 26, 1987 relating to PIN No. 02990-0076;


 


(j)            Intentionally
Deleted;


 


(k)           Intentionally
Deleted;


 


(l)            Intentionally
Deleted;


 


(m)          Notice of
Lease registered as Instrument No. ~ on ~ between
Inland Western Markham Corp. and Amex Canada Inc., containing a Right of First
Refusal for the Tenant to purchase the premises;


 





















 


(n)           Easement
over Part 2 on Plan 65R-18257 in favour of the owners of Part 1 on Plan 65R-18257
as described in Instrument No. LT1084755;


 


(o)           Easement
over Part 6, Plan 65R-8188 in favour of the owners of Parts 1, 2, 7 and 8 on
Plan 65R-8188 as described in Instrument No. LT246605;


 


(p)           Easement
over Part 6, Plan 65R-8188 and Part 2 on Plan 66R-11550 in favour of the owners
of Parts 1, 2, 7 and 8 on Plan 65R-8188 as described
in Instrument No. LT246606; and


 


(q)           The
location, boundaries, perimeter description and easements disclosed on the
survey dated January 11, 2005 and prepared by Les Rudnicki of Speight, Van
Nostrand & Gibson Limited.


 


2.                                                                                       Any
reservations or exceptions contained in the original grants from the Crown as
varied by statute.


 


2





















 


SCHEDULE 8(4)(2)


 


BREACHES
OR DEFAULTS UNDER OTHER DOCUMENTS


 


None


 


3





















 


SCHEDULE
8(4)(5)


 


DUE
DILIGENCE ITEMS DELIVERED TO PURCHASER


 


1. Plan of Survey with Topography Blocks 7 and 15 part of blocks 6 and 16 Registered Plan M-1915 dated
September 23, 2004 prepared by Speight, Van Nostrang & Gibson
Limited.


 


2. Draft Phase I Environmental Assessment of GFS International dated
June 7, 2004 prepared by Property Solutions Incorporated (Property Solutions
document no. 20041390) with final drafts sent November 29, 2004.


 


3. Draft Property Condition Assessment of American
Express Service Center dated June 8, 2004, prepared by
Property Solutions Incorporated (Property Solutions document no. 20041391).


 


4. Environmental Reliance
Letters / Bank of America modifications.


 


5. Existing title
commitment dated May 13, 2004, prepared by LandAmerica Lawyers Title Insurance
Corporation.


 


6. Evidence of Zoning
Compliance dated June 3, 2004 from Markham Development Services Commission
Building Standards.


 


7. Property Tax Bill
dated January 9, 2004 from Town of Markham - Tax Inquiries.


 


4