Exhibit 10.478


 


AGREEMENT OF SALE


 


THIS
AGREEMENT made this 19th
day of November, 2004, between KIMCOPANAMA CITY, LLC, a Delaware limited liability company, with an
office at 3333 New Hyde Park Road, Suite 100 (P. O. Box 5020), New Hyde Park,
New York 11042 (hereinafter, “Seller”), and INLAND REAL
ESTATE ACQUISITIONS, INC., an Illinois Corporation, with an office
at 2901 Butterfield Road, Oak Brook, Illinois 60523 (hereinafter, “Buyer”).


 


WHEREAS,
Seller owns a portion of the shopping center located at West 23rd Street and Jenks Avenue in Panama City,
Florida (the “Shopping Center”) and Seller wishes to sell and Buyer wishes to
buy Seller’s entire right title and interest in the Shopping Center;


 


NOW,
THEREFORE, in consideration of the mutual covenants herein
contained, the parties agree as follows:


 


1.                                       DEFINITIONS. The following
expressions shall have the meanings set forth below:


 


1.1                                 “Real
Estate” means the fee interest in the land described on Exhibit 1 and
all of the buildings and other improvements constructed thereon.


 


1.2                                 “Space
Lease(s)” means all lease(s), license(s), concessions or other occupancy or use
agreements, including all modifications, addenda and supplements thereto and
guarantees thereof, applicable to any part of the Real Estate. All existing
Space Leases as of the date hereof are listed on attached Exhibit 2.


 


1.3                                 “Property”
means collectively all of Seller’s rights and interest in the Real Estate, the
Space Leases and the other assets described in Article 2 hereof.


 


1.4                                 “Closing
Date” means the date on which Closing occurs. “Closing” means the event whereby
title to the Property is actually conveyed by Seller to Buyer.


 


1.5                                 “Service
Contracts” means all written agreements pursuant to which goods, services or
supplies are furnished on a recurring basis for the operation of the Real
Estate and are approved by Buyer during the Due Diligence Period (as
hereinafter defined). Copies of such Service Contracts are attached as Exhibit
3.


 


1.6                                 “Escrow
Agent” means Chicago Title and Trust Company, 171 North Clark Street, Chicago,
Illinois, Attn: Nancy Castro, Escrow Agent. Chicago Title and Trust Company may
also be hereinafter referred to as the “Title Company”.


 


1.7                                 “Due
Diligence Period” means a period of time commencing on the date a fully executed
copy of this Agreement is received by Buyer in accordance with Article 13
hereof and expiring at midnight, New York time, December 2, 2004.


 


1.8                                 “Permitted
Exceptions” means those certain title exceptions set forth in Exhibit 6 attached
hereto that are approved by Buyer in accordance with the terms of Article 6
hereof.


 


1.9                                 “Personal
Property” means all personal property and equipment (if any) owned by Seller
and located on the Real Estate.


 


1.10                           “Deposit” means a deposit, to be paid by
Buyer to Escrow Agent upon the execution hereof, in the amount of One Hundred Thousand ($100,000.00) Dollars,
plus all interest earned thereon.


 


1.11                           “Declaration”
means that certain Declaration of Covenants, Conditions, Easements and
Restrictions dated January 27, 1999 in the Official Records of Bay County,
Florida, Book 1848, page 2123 as amended.


 


1.12                           “OEA”
means that certain Restrictive Covenants Agreement between Kimco Panama City,
LLC and Home Depot U.S.A., Inc. dated May 30, 2002 recorded under Clerk’s file
2002-032768 at Book 214B, page 817 of the official Records of Bay County.
Florida, as amended.


 


2.                                       SALE AND PURCHASE. In accordance
with the provisions of this Agreement, Seller agrees to sell, convey, assign
and transfer to Buyer, and Buyer agrees to purchase and acquire from Seller,
subject to the Permitted Exceptions and Space Leases, all of Seller’s right,
title and interest in and to: (a) the Real Estate, (b) the Space Leases, (c)
any Personal Property, (d) any land lying in the bed of


 





















 


any street, road or avenue,
opened or proposed, in front of or adjoining the Real Estate, (e) any strips or
gores adjoining the Real Estate, (f) all appurtenances and hereditaments
appertaining to the Real Estate and (g) the right to use, in common with others
the name “23rd Street Plaza Shopping Center” provided Buyer’s use of same is
done in a commercially reasonable manner in connection with the first class
operation of the


 


3.                                       PURCHASE
PRICE. The “Purchase Price” for the Property
shall be Seven Million, Two Hundred Fifty-Seven
Thousand,, Four Hundred Ninety-Eight ($7,257,498.00)
Dollars shall be paid
as follows:


 


A.                                   (i)                                     Upon
the execution of this Agreement Buyer shall pay the Deposit to Escrow Agent by
bank check to the order of Escrow Agent or wire transfer of federal funds for
immediate credit.


 


(ii)                                  The
Deposit shall be invested by Escrow Agent in a sound financial institution’s
money market fund or account which pays interest or dividends, in Escrow Agent’s
name separate from its personal and business accounts. All investment decisions
shall be made by Buyer. If no Closing occurs, all interest or dividends earned
shall be paid to the party entitled to the escrowed proceeds, which party shall
pay all income taxes thereon. The parties shall furnish Escrow Agent with their
respective tax identification numbers. At Closing, Escrow Agent shall pay the
Deposit (together with all interest earned thereon) to Seller; and the
principal portion of the Deposit shall be a credit against the Purchase Price
(but no such credit shall be given for the interest earned on such principal
portion of the Deposit, if any, which shall be the property of Buyer). All
escrow fees, if any, charged by Escrow Agent shall be equally shared by Seller
and Buyer, Escrow Agent shall hold the Deposit as set forth above unless either
Seller or Buyer makes a written demand upon Escrow Agent for the Deposit
accompanied by an affidavit signed by the party making the demand stating
sufficient facts to show that said party is entitled to receive the Deposit
pursuant to the terms of this Agreement. Upon receipt of such demand, Escrow
Agent shall give ten (10) days written notice to the other party of such demand
and of Escrow Agent’s intention to remit the Deposit to the party making the
demand on the stated date, together with a copy of the affidavit. If Escrow
Agent does not receive a written objection before the proposed date for
remitting the Deposit, Escrow Agent is hereby authorized to so remit. If,
however, Escrow Agent actually receives written objection from the other party
before the proposed date on which the Deposit is to be remitted, Escrow Agent
shall continue to hold the Deposit until otherwise directed by joint written
instructions from Seller and Buyer or until a final judgment of an appropriate
court. In the event of a dispute, Escrow Agent may place the Deposit with an
appropriate court and, after giving written notice of such action to the
parties, Escrow Agent shall have no further obligations with respect to the
Deposit. The parties acknowledge that Escrow Agent is acting as a stakeholder
at their request and for their convenience, that Escrow Agent shall not be
deemed to be the agent of either of the parties, and the Escrow Agent shall not
be liable to either of the parties for any act or omission on its part unless
taken or suffered in bad faith or in willful or negligent disregard of this
Agreement. Seller and Buyer shall jointly and severally indemnify and hold
Escrow Agent harmless from and against all costs, claims and expenses,
including reasonable attorney’ fees, incurred in connection with the faithful
performance of Escrow Agent’s duties hereunder. Escrow Agent acknowledges
agreement to the provisions of this Agreement applicable to it by signing on
the signature page of this Agreement. Notwithstanding the foregoing, Buyer
shall have the right to deliver a notice of termination of this Agreement to
Escrow Agent and Seller on or prior to the expiration of the Due Diligence
Period and Escrow Agent shall be authorized, immediately upon receipt of such
notice and verification of Seller’s receipt of same, to return the Earnest
Money to Buyer. Buyer agrees to return all documents provided to Buyer by or on
behalf of Seller to Seller within fifteen (15) days of Tenant’s delivery of the
notice of termination to Escrow Agent and Seller.


 


B.                                     At
Closing, and subject to the terms and provisions of this Agreement, Buyer shall
pay Seller the balance of the Purchase Price by wire transfer of immediately
available federal funds into a so-called “New York Style” closing escrow to be
established by the Escrow Agent. Seller shall furnish Escrow Agent with wire
transfer instructions prior to Closing.


 


C.                                     Intentionally
Deleted.


 


D.                                    In
connection with any Personal Property included in the sale, the parties agree that
no part of the Purchase Price shall be deemed to have been paid by Buyer on
account thereof.


 


4.                                       CONDITIONS PRIOR TO CLOSING; DUE DILIGENCE PERIOD.


 


4.1                                 (A)
Buyer shall at Closing accept the Property in AS IS physical condition as
exists on the date hereof, subject to reasonable wear and tear between the date
hereof and the Closing Date. Buyer acknowledges that Buyer will have the Due
Diligence Period to inspect the Shopping Center


 


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or cause an inspection
thereof to be made on Buyer’s behalf and it is understood and agreed that
neither Seller nor any person acting or purporting to act for Seller has made
or now makes any representation as to the physical condition (latent or patent
or otherwise), income, expense, operation, legality of current rents, or any
other matter of thing affecting or relating to the Shopping Center except as
herein specifically set forth. Buyer hereby expressly acknowledges that except
as expressly set forth herein, no such representations have been made and Buyer
further agrees to take the Shopping Center “as is” as of the date hereof and
subject to normal use, wear, tear, and deterioration between now and Closing.
Buyer agrees that Seller is not liable or bound in any manner by any financial
or written statements, representations, real estate brokers’ “set-ups”, or
information pertaining to the Shopping Center furnished by any real estate
broker, agent, employee, trustee, servant or other person, unless the same are
specifically set forth herein. It is understood and agreed that all
understandings and agreements heretofore had between the parties are hereby
merged in this Agreement which alone fully and completely expresses their
agreement and that the same is entered into after full investigation, neither
party relying upon any statement or representation made by the other not
embodied in this Agreement.


 


(B) Seller’s
Required Pre-Closing Deliveries


 


Seller shall, as soon as
practicable after the date of this Agreement but not later than five (5)
business days after the date of this Agreement,, deliver to Buyer the following
(which are referred to herein as “Pre-Closing Deliveries”): (a) copy of the
Space Leases affecting the Property and the Ground Leases; (b) a certification
from Seller (pursuant to the terms of the Rent Roll (Exhibit 2) setting forth
the name of each tenant at the Property and the date of the Space Leases and
any modifications or amendments thereto, the amount of rent payable by each
tenant throughout the term of its respective Space Lease, any concessions
granted to the tenants, the amount of security deposits, if any, (or a
certification that Seller is not holding any security deposits), the expiration
date of the Space Leases, and the existence of any options to renew or extend
the term of the Space Leases or to purchase all or any part of the Property and
such information with respect to any subtenant if Seller has knowledge thereof;
(c) a certification by Seller that there are no employees at the Property; (d)
a certification by Seller that, other than as disclosed to Buyer, there are no
service agreements, maintenance contracts or other similar agreements affecting
the Property; (e) copies of the most recent tax bill for the Property, together
with copies of any notice of assessments received by Seller, or any other
information relative to taxes assessed against the Property; (f) copies, if
any, of any environmental reports, architectural drawings, warranties,
guarantees, plans and specs or any similar document in Seller’s possession
relating to the Property; (g) copies of any insurance policies or certificates
insuring the Property, whether purchased by Seller or by the tenants under the
Space Leases; (h) copies of certificates of occupancy for each tenant at the
Property and copies of any building code violations received by Seller with
respect to the Property during the last two years and evidence reasonably
acceptable to Buyer that such violations have been corrected, or a
certification from Seller that it has not received any notice of building code
violations; (i) the materials described on Buyer’s Due Diligence Checklist,
attached hereto as Exhibit 12, and made a part hereof; (j) as applicable
(depending upon the number of years the Property has been operating), an
operating statement for the Property for the two calendar years prior to the
year of the date hereof, and monthly operating statements for the Property for
each month of the year of the date hereof. Such statements shall include
reasonable detail of all items of income and expense, other than construction
costs as well as all items of capital expenditures made during the relevant
periods, other than capital expenditures made in connection with the initial
construction of the Shopping Center, and (k) an engagement and representation
letter signed by Seller and prepared by and for the benefit of Buyer’s auditors
substantially in the form attached hereto as Exhibit 18, and made a part
hereof.


 


4.2                                 On
and after the date hereof, Buyer shall have access to the Property for the purpose
of making engineering, survey or non-intrusive inspections and independent
investigations; and Seller will on receipt of reasonable prior written notice,
provide Buyer with access to information within its possession or control with
respect to the Property, including (without limitation) full and accurate copies
of Space Leases, Service Contracts, title information or instruments, and books
and operating records of the Shopping Center. Buyer agrees to defend, indemnify
and hold Seller harmless from any personal injury or property damage caused by
Buyer in doing any testing, inspections or survey and such obligation shall
survive the Closing or sooner termination of this Agreement. Buyer shall give
Seller true, accurate and complete copies of all written reports prepared by
third parties resulting from Buyer’s inspections and investigations.


 


4.3                                 (a)                                  Buyer
shall have the Due Diligence Period within which to inspect and examine the
Real Estate, the Space Leases and the Service Contracts.


 


(b)                                 In
the event that during the Due Diligence Period, Buyer, in its sole judgment,
and absolute discretion, determines that Buyer is not satisfied with the
condition of the Real Estate, the Property, the Space Leases, the Ground
Leases, or the Service Contracts then, prior to the end of the Due Diligence
Period, Buyer shall have the right by giving written notice to Seller and
Escrow


 


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Agent to cancel and
terminate this Agreement without liability except as set forth in Sections 4.2
and 15.8. Upon receipt of such notice prior to the end of the Due Diligence
Period, Escrow Agent shall deliver the Deposit to Buyer. In the event Buyer
fails to give such notice prior to the end of the Due Diligence Period, Buyer’s
right to cancel this Agreement pursuant to this Section 4 shall lapse.


 


4.4                                 Audit.
At such time as Buyer’s auditors (KPMG) complete the audit of Property
operations, Seller agrees to execute and deliver to KPMG the audit letter
attached hereto as Exhibit 18, and made a part hereof. The provisions of this Section 4.5
shall survive Closing.


 


5.                                       ADJUSTMENTS AND PRORATIONS.


 


5.1                                 Seller
shall be entitled to all income produced from the operation of the Property
which is allocable to the period prior to the Closing Date and shall be
responsible for all expenses allocable to that period; and Buyer shall be
entitled to all income and responsible for all expenses allocable to the period
beginning at 12:01 A.M. on the Closing Date. At Closing, all items of income
and expense with respect to the Property shall be prorated in accordance with
the foregoing provisions and the rules for the specific items set forth
hereafter:


 


5.1.1                        Seller
shall arrange for a billing under all those Service Contracts for which fees
are based on usage and with utility companies for a billing for utilities, to
include all utilities or service used up to the Closing Date, and Seller shall
pay the resultant bills. In the event any of the Service Contracts set forth in
Exhibit 3 cover periods beyond the Closing Date the same shall be
prorated on a per diem basis.


 


5.1.2                        Real
estate taxes, general, special and/or betterment assessments and personal
property taxes shall be prorated for those taxes which are due and payable as
of the Closing Date. In the event that as of the Closing Date the actual tax
bills for the tax year or years in question are not available and the amount of
taxes to be prorated as aforesaid cannot be ascertained, then rates, millages
and assessed valuation of the previous year, with known changes, shall be used;
and after the Closing occurs and when the actual amount of taxes for the year
or years in question shall be determinable, such taxes will be re-prorated
between the parties to reflect the actual amount of such taxes.


 


5.1.3                        Rentals
and other payments (other than “percentage rent” and common area maintenance
charges which are dealt with in Section 5.1.4 and Section 5.1.6)
which are payable pursuant to Space Leases shall be prorated on a per diem
basis as and when collected (subject to the provisions of Section 5.3).
Buyer shall not be obligated to make any payment or give any credit to Seller on
account of or by reason of any rental or other payments which are unpaid as of
the Closing Date, but shall be required to turn over Seller’s share of the same
within ten (10) days if, as and
when received by Buyer after the Closing; likewise, Seller agrees to turn over
Buyer’s share of any payments received from tenants applicable to any period
from and after the date of Closing within ten (10) days of Seller’s receipt of
same; this provision shall survive Closing.


 


5.1.4                        Percentage
rent; if any, payable under each Space Lease shall be prorated with respect to
the lease year thereunder in which Closing occurs on a per diem basis as and when
collected. Any percentage rent collected by Buyer including any percentage rent
which is delinquent and pertaining to (i) an entire lease year or accounting
period of a tenant under a Space Lease which ends on a date prior to the
Closing Date, or (ii) that portion of a lease year or accounting period of such
tenant covering a period prior to the Closing Date where such lease year or
accounting period begins prior to the Closing Date and ends thereafter shall in
both cases be paid to Seller within ten (10) days of receipt by Buyer; and if
any tenant’s Space Lease provides for offsets or deductions against percentage
rent, then such offsets or deductions
shall be prorated in the same
manner as the percentage rent itself is prorated. This provision shall survive
Closing.


 


5.1.5                        Gas,
water, electricity, heat, fuel, sewer and other utilities charges to which Section 5.1.1
cannot be applied, and the governmental licenses, permits and inspection fees
and operating expenses relating to the Shopping Center (expressly excluding
therefrom, however, such expenses relating to the initial construction of the
Shopping Center), shall be prorated on a per diem basis.


 


5.1.6                        Common
area maintenance expenses and charges shall be prorated. Seller shall be
responsible for all common area expenses and charges incurred prior to the
Closing Date, and Buyer shall be responsible for the same accruing on and
subsequent to the Closing Date. All common area expense payments made by each
tenant and such charges paid under its Space Lease for the entire lease year
during which the Closing occurs, including end-of-year adjustments, if any,
shall be prorated between Seller and Buyer in the following manner: Not later
than three (3) days prior to


 


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Closing, Seller shall
deliver to Buyer, with regard to each Shopping Center tenant required to pay
common area charges (“CAM Charges”) under its lease, a detailed computation
showing all CAM Charge expenses incurred by Seller for the period from the
beginning of each such tenant’s then current billing period for CAM Charges
(e.g., calendar year, lease year, etc.) through the Closing Date, any CAM
estimated payments or charges collected by Seller relating to such tenant
(hereinafter “CAM Estimates”), and a bill for the tenant’s pro rata share of
CAM Charges (i.e., for CAM charges through the Closing Date net of any such CAM
Estimates held by Seller), together with all invoices and other evidence
documenting such CAM Charges in detail required by such tenant’s lease. Buyer
shall send any such bills to tenants promptly following Closing, in which event
such tenant shall pay any amount shown due directly to Seller, and except as
otherwise stated in Section 5.3.3 below Buyer shall have no responsibility
to collect same. However, if any tenant rightfully refuses to pay such bill for
CAM Charges due through the Closing Date, then Buyer shall resubmit such bill
to any such tenant at the same time as Buyer next submits Buyer’s own bill to
any such tenant; and any payment thereafter made by any such tenant on account
of CAM Charges shall belong to and be forwarded within ten (10) days of its
receipt to Seller until Seller’s bill is paid in full.


 


Any CAM Estimates for any
tenant shall be retained by Seller up to the amount of the pre-Closing CAM
Charges payable by such tenant as evidenced by such bills and computations
delivered by Seller at Closing, and Buyer shall receive a credit for any excess
CAM Estimates collected by Seller.


 


5.1.7                        All
prepaid rentals, other prepaid payments(other than monthly real estate tax
estimates or installments), security deposits paid pursuant to Space Leases,
electric, gas, sewer and water deposits deposited with Seller by tenants,
(including any accrued interest required under any Space Lease on all of the
foregoing, unless Seller is entitled to retain the benefit thereof) under any
Space Leases, license agreements or concession agreements relating to the
Property, shall all belong to Buyer and all shall be assigned and delivered to
Buyer at Closing, whereupon Seller shall be released from all liability with
respect thereto. At Seller’s option, Buyer shall receive a cash credit in the
amount of all Security Deposits to be delivered to Buyer at Closing, and Seller
may retain same.


 


5.1.8                        Buyer
shall not be responsible for any charges, salaries, vacation pay or fringe
benefits of employees of Seller prior to or following the Closing and none of
the foregoing shall be prorated.


 


5.2                                 All
prorations and payments to be made under the foregoing provisions shall be made
on the basis of a written statement or statements delivered to Buyer by Seller
and approved by Buyer. In the event any prorations, apportionments or computation shall prove to be incorrect
for any reason, then either party shall be entitled to an adjustment to correct
the same, provided that it makes written demand on the one from who it is
entitled to such adjustment within two (2) years after the erroneous payment or
computation was made; this provision shall survive Closing.


 


5.3                                 All
accounts receivable flowing from the Property shall be treated as follows:


 


5.3.1                        Buyer and
Seller agree to treat all base or minimum rental payments received from a
tenant as applicable to base or minimum rent which was owed by that tenant, if
any, first for the month prior to the month in which Closing occurs and next
for the month in which Closing occurs until the base or minimum rental amount
due to Seller for such periods have been collected. In the event that there
remains any unpaid base or minimum rent for a period prior to such periods, all
payments of base or minimum rent received from such tenant shall be applied to
sums owed Buyer before any part thereof shall be treated as belonging to
Seller. In the event that there remains any unpaid tenant receivable other than
base or minimum rent (including without limitation any tax, CAM, insurance or percentage
rent payments) for any period prior to Closing, all payments received from any
tenant in arrears (whether base or minimum rent or any other amount) shall be
applied first to any such sums owed Buyer from such tenant before any part
thereof shall be treated as belonging to Seller.


 


5.3.2                        In the
event that any tenant of Seller or Buyer shall hereafter apply or shall have
heretofore applied for relief under the provisions of any bankruptcy or similar
laws for the protection of debtors, the provisions of Section 5.3.1
shall not apply, and the parties shall have the right to seek collection of
their respective accounts, their entitlements being determined by the Closing
and the other provisions of this Agreement. Neither party shall have the right
to enter into any transactions that purport to compromise claims belonging to
the other, without the other party’s prior written consent.


 


5.3.3                        “If at the
Closing Date any tenants owe Seller any money (i.e. reimbursements to Seller
for payment of liens or violations on the Property that were created by tenant(s)
but that Seller is required hereunder to satisfy in order to effectuate the
sale of the Property or rent arrears (which shall include CAM and tax
reimbursements)), Seller shall have


 


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the right, subsequent to
the Closing, to collect such sums directly from the tenants, including bringing
lawsuits against the tenants (at Seller’s sole expense) for such collection
(except that Seller is prohibited from bringing a lawsuit against any tenant(s)
to collect rent in arrears for a period of thirty (30) days after such dispute
or arrears has arisen (the “Buyer Collection Period”); instead Buyer agrees to
use commercially reasonable efforts to collect such arrears on Seller’s behalf,
if Buyer is unsuccessful in collecting the tenant arrears by the expiration of
the Buyer Collection Period, then Seller shall have the right to collect such
sums directly form the tenants including bringing lawsuits against the tenants
(at Sellers sole expense) for such collection, however, Seller agrees that any
such legal action or collection shall not include any disturbance of the
possession, use or occupancy of the tenants or any right to evict the tenants,
whether pursuant to the lease provisions or otherwise, and Buyer shall at
Seller’s expense join in any lawsuit and/or also participate or cooperate with
Seller in its collection attempts. Buyer will (at Seller’s expense) join in
such a lawsuit or action only if the same does not include or require
disturbance of the possession of any tenants.”


 


5.3.4                        In the
event Seller has granted rent concessions to tenants under space lease(s) that
would extend beyond the Closing Date, Buyer shall receive credit for same.


 


5.4                                 Intentionally
Deleted.


 


5.5                                 The
provisions of this Article 5 will survive Closing.


 


6.                                       TITLE AND SURVEY.


 


6.1                                 Seller
shall convey and Buyer shall accept, subject to the right of Buyer to review
and approve all title matters, documents and plats of record in regard to the
condition of title to the Property, title such as the Title Company will be
willing to approve and insure subject only to Permitted Exceptions as provided
for in this Agreement. Buyer acknowledges that it has heretofore received
copies of Seller’s existing title insurance policy for the Real Estate (the “Existing
Title Policy”) and of Seller’s existing survey of the Real Estate (the “Existing
Survey”). Promptly following the execution of this Agreement, Buyer may (if it
so elects) obtain(see Section 6.4 for allocation of costs) updates of the
Existing Survey to the certification standards described upon the Surveyor’s
certification attached hereto as Exhibit 13 and made a part hereof (such
updated survey hereinafter referred to as the “Updated Survey”); if Buyer does
obtain such an Updated Survey, Buyer shall cause it to be certified to Seller
and Buyer shall promptly furnish Buyer, Seller and the Title Company with a
copy thereof. Promptly following the execution of this Agreement, Buyer shall
also (see Section 6.4 for allocation of costs) obtain a commitment for
ALTA Form B Leasehold Title Insurance (the “Title Commitment”); and Buyer shall
promptly cause the Title Company to furnish Seller and Buyer with true accurate
and complete copies thereof (including true, accurate and complete copies of
all underlying title exception documents referenced therein). Not later than
the expiration of the Due Diligence Period, Buyer shall give Seller written
notice (“Buyer’s Title/Survey Notice”) of any title exceptions which are
contained in the Title Commitment and/or the Survey which are not Permitted
Exceptions. Failure by Buyer to give Buyer’s Title/Survey Notice (or to object
to any matter referenced in the Title Commitment) to Seller on or before said
date shall constitute Buyer’s final and irrevocable approval of the condition
of title (and to any such unobjected to matter) in and to the Real Estate. If
Buyer’s Title/Survey Notice shall be timely given Seller shall have a period of
fifteen (15) days following Seller’s receipt of Buyer’s Title/Survey Notice, to
commence to remove, correct, cure or satisfy (provided Seller does in fact
elect to so remove, correct, cure or satisfy) any title exceptions that were
identified in Buyer’s Title/Survey Notice as not being Permitted Exceptions, it
being nevertheless agreed that Seller shall have no obligation to undertake any
action or to incur any expense in order to effectuate any such removal,
correction, cure or satisfaction (except that notwithstanding the foregoing
Seller shall be required to remove or discharge any fee mortgages or deeds of
trust, as well as any other liens in an ascertainable dollar amount). In the
event that Seller elects not to attempt to remove, correct, cure or satisfy the
matters raised in Buyer’s Title/Survey Notice, or if having elected to do so,
does not within thirty (30) days thereafter, (or such additional time as is
reasonably necessary (not to exceed an additional fifteen (15) days without
Buyer’s written consent) to remove, correct, cure or satisfy the matter(s) so
raised using commercially reasonable good faith efforts) effectuate any such
removal, correction, cure or satisfaction as aforesaid (hereinafter called “title
correction”), Buyer shall have the right at its sole option either (a) to
terminate this Agreement, in which event the Deposit shall be returned to Buyer
and neither party shall thereafter have any further liability hereunder, or (b)
to accept such title as is disclosed by the Title Commitment and/or Survey
without title correction and without Survey correction and without any
reduction to the Purchase Price, thereby waiving any rights against Seller with
respect thereto. Said election shall be made by Buyer within three (3) days
following Buyer’s receipt of written notification by Seller that Seller has not
effectuated (or has elected not to effectuate) title correction. In the event
that Seller (even though under no duty to do so) shall undertake title
correction and/or Survey correction as aforesaid, and shall be successful, this
Agreement shall continue in full force and effect and Buyer shall close the
transaction


 


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contemplated hereby in
accordance with the terms hereof. In the event that Seller shall only be
partially successful in obtaining title and/or Survey correction, Buyer shall
have the same alternative rights as Buyer would have in the event Seller had declined
to seek title and/or Survey correction (as set forth above). Buyer shall make
its election within three (3) days after Buyer’s receipt of written notice from
Seller to Buyer of the extent to which title and/or the Survey has been
corrected.


 


6.2                                 If
at the Closing Date there may be any liens or encumbrances which render title
unmarketable or otherwise are not permitted title exceptions hereunder, and
which Seller is obligated or desires to pay and discharge, Seller may use any
portion of the balance of the Purchase Price to satisfy the same, provided
Seller shall simultaneously either deliver to Buyer at the Closing instruments
in recordable form and sufficient to satisfy such liens and encumbrances of
record together with the cost of recording or filing said instruments; or provided that Seller has made
arrangements with the title company in advance of Closing, Seller will deposit
with said company sufficient monies, acceptable to and required by it to insure
obtaining and the recording of such satisfactions and the issuance of title
insurance to Buyer either free of any such liens and encumbrances, or with
insurance against enforcement of same out of the insured premises. The
existence of any such liens and encumbrances shall not be deemed objections to
title, if Seller shall comply with the foregoing requirements. Unpaid liens for
taxes, water charges, sewer rents and assessments which are the obligation of
Seller to satisfy and discharge shall be objections to title, and thus the
amount thereof, plus interest and penalties thereon, shall be deducted from the
Purchase Price to be paid hereunder and allowed to Buyer, subject to the
provisions for apportionment of taxes, water charges and sewer rents contained
herein. Unpaid franchise tax of any entity in the chain of title to which such
tax is applicable, or estate, income or other taxes which may be liens against
the Property as of the Closing Date shall not be an objection to title,
provided the title company agrees to insure against the collection of said taxes
from the Property and in such event if required by the title company, Seller agrees to deposit at Closing with
the title company an amount deemed reasonable by it to secure the payment of
such unpaid franchise tax, or other tax.


 


6.3                                 In
the event that Seller is unable to convey title in accordance with the terms of
this Agreement, or if any representation of Seller herein is untrue in a
material respect on the Closing Date and Seller does not correct same (it being
understood Seller will be entitled to a reasonable adjournment of Closing for
such purpose, not to exceed fifteen (15) days), the sole responsibility of
Seller will be to refund (or cause to be refunded by the Escrow Agent) to Buyer
any amount paid on account of the Purchase Price; upon the making of such
refund, this Agreement shall be deemed canceled, neither party shall have any
further claim against the other by reason of this Agreement, except that Buyer
shall remain liable on its obligations under Sections 4.2 and 15.8.


 


6.4                                 The
costs of obtaining the Title Commitment, the policy of title insurance to issue
at Closing (in form subject to Buyer’s sole discretion, and agreed to prior to
the expiration of the Due Diligence Period) with premium up to the amount of
the Purchase Price “Basic Title Policy” shall be split equally between Buyer
and Seller. The costs of any excess coverage or endorsements including, but not
limited to, Zoning 3.1; Survey; Access, Usury, Location, Tax ID, Contiguity,
EPA, Comprehensive and Doing Business, to the extent available or applicable
(the “Title Endorsements”), shall be borne by Buyer (Basic Title Policy plus
endorsements shall be referred to collectively as the “Title Policy”) and
expressly excluding therefrom, however, the costs to release any monetary
encumbrance affecting the Property and any title curative endorsements which
shall be borne by Seller. All costs of the survey shall be borne equally by
Seller and Buyer.


 


7.                                       DAMAGE,
DESTRUCTION OR REQUIRED ALTERATION.


 


7.1
Prior to Closing, in the event of any damage to or destruction of all or part
of the Real Estate (notice of which shall be given to Buyer by Seller as soon
as practicable following its occurrence), then Seller shall have the right (but
not the obligation) to adjourn the Closing Date for up to sixty (60) days in
order to repair or replace such damage or destruction, except that if the cost
of such repair or replacement exceeds ten percent of the Purchase Price, then
in any such case (i) Buyer shall have the right to terminate this Agreement by
giving Seller written notice of its intention to do so, such notice by Buyer to
Seller to be given not later than three (3) days after Buyer shall have
received the notice from Seller of such aforesaid occurrence, (in which event
the Deposit shall forthwith be returned to Buyer, whereupon this Agreement
shall be null and void and of no
further force or effect whatsoever, except that Buyer shall remain liable on
its obligations under Sections 4.2 and 15.8); or (ii) if Buyer elects not to
(or does not have the right to) terminate this Agreement, this Agreement shall
continue in full force and effect except that at Closing Buyer shall receive an
abatement of the Purchase Price in an amount equal to Seller’s reasonable good
faith estimate of the amount required to repair and restore all unrepaired
damage (and Seller shall retain all rights to collect insurance proceeds for
such loss). Buyer may elect to have its architect provide a good faith estimate
of the amount required to repair and restore all unrepaired damage. If Seller’s
estimate disagrees with Buyer’s architect’s estimate, the parties shall select
another architect to make a final determination of the amount required to
repair and restore all


 


7





















 


unrepaired damage and
both parties shall be bound by the third architect’s determination. The party
whose architect differs most from the third architect’s determination shall pay
the third architect’s fee.


 


7.2(a)          In
the event that any governmental authority having jurisdiction of all or part of
the Real Estate has notified Seller before the Closing that some alteration of
or addition to the Real Estate is required to be made by law, rule or
regulation (notice of which shall
be given to Buyer by Seller as soon as practicable after its receipt) or
otherwise requires a cure of a violation, then (subject to the provisions of Section 7.2(b))
Seller shall have the right (but not the obligation) to undertake such
alteration or addition or cure; provided, however, that if the cost of such
alteration or addition or cure shall exceed the sum of one (1%) percent of the
Purchase Price, then in such event Seller may either elect to pay the entire
cost and cure the same before the Closing or may decline to undertake the same,
in which event Buyer shall have the option, exercisable within three (3) days
following notice from Seller of the requirement and Seller’s refusal to comply
therewith, (i) to terminate this Agreement by giving Seller notice thereof (in
which event the Deposit shall forthwith be returned to Buyer, whereupon the
Agreement shall be null and void and of no further force or effect whatsoever,
except that Buyer shall remain liable on its obligations under Sections 4.2 and
15.8); or (ii) if such notice of termination is not timely given, to proceed
with the Closing, in which event the Purchase Price shall be reduced by Seller’s
reasonable good faith estimate of the cost to cure, up to the maximum sum of
one percent of the Purchase Price. Buyer may elect to have its engineer provide
a good faith estimate of the cost to cure. If Seller’s estimate disagrees with
Buyer’s architect’s estimate, the parties shall select a another engineer to
make a final determination of the cost to cure and both parties shall be bound
by the third engineer’s determination. The party whose engineer differs most
from the third engineer’s determination shall pay the third engineer’s fee.


 


(b)              Notwithstanding
the foregoing provisions of Section 7.2(a), Seller may elect but shall
have no obligation to cure or pay for, any violation which either (i) is first
placed (i.e., notice first given to Seller or first placed of record) after the
date of this Agreement, or (ii) is the responsibility of a Shopping Center
tenant to cure or discharge pursuant to its Space Lease. In the event Seller
elects to cure or pay for such violation(s), Seller shall have a period of
fifteen (15) days after receipt of notice of the violation to commence to cure
or pay for same, and shall proceed with diligence to cure same, however, if
Seller elects to cure a violation, and Seller reasonably believe that the
Closing Date (as hereinafter defined) will need to be extended more than thirty
(30) days to effectuate the cure, then Seller shall not commence to cure the
violation then Buyer may elect to (i) complete the purchase without any
adjustment in the Purchase Price or (ii) terminate the Agreement in such event,
unless Buyer agrees to the required extension. In the event Seller elects not
to cure or pay for such violation, the sole responsibility of Seller will be to
refund (or cause to be refunded by the Escrow Agent) to Buyer any amount paid
on account of the Purchase Price; upon the making of such refund, this
Agreement shall be deemed cancelled, neither party shall have any further claim
against the other by reason of this Agreement, except that Buyer shall remain
liable on its obligations under Sections 4.2 and 15.8.


 


8.                                       EMINENT
DOMAIN. In the event
that any eminent domain proceedings shall be commenced prior to the Closing
affecting (i) any of the parking area(s) within the Real Estate or any access
roadway serving the Real Estate that is not replaced by an access roadway in a
comparable location with respect to the Real Estate; or (ii) which is of such a
nature as would permit any tenant occupying leased premises to cancel its Space
Lease, Buyer shall have the right to terminate this Agreement, by written
notice given to Seller within three (3) days after the event, (in which case
the Deposit shall forthwith be returned to Buyer, whereupon the Agreement shall
be null and void and of no further force or effect whatsoever). In any case
wherein Buyer has the right to terminate this Agreement pursuant to this Section 8
and Buyer elects not to terminate, or in any case wherein Buyer does not have
the right to terminate, Buyer and Seller shall consummate Closing on the
Closing Date, without any reduction to or abatement of the Purchase Price, and
all theretofore unpaid condemnation awards shall belong to Buyer.


 


9.                                       NO
ASSIGNMENT. Buyer shall
not have the right to assign this Agreement or its rights under this Agreement
without obtaining in each instance Seller’s prior written consent.
Notwithstanding the foregoing, Buyer shall have the right, without Seller’s
consent, to assign its entire right, title and interest in and to this
Agreement, expressly including the Deposit, to any entity controlling,
controlled by, or under common control with Buyer or Inland Western Retail Real
Estate Trust, Inc., a Maryland corporation, (an “Affiliate”); provided that,
not less than three (3) business days prior to Closing, Seller receives an
executed assignment and assumption agreement, in a commercially reasonable
form, which expressly assigns the Deposit and in which such assignee expressly
assumes performance of this Agreement for the benefit of Seller. No such
assignment or designation shall relieve or release Buyer from any obligations
under this Agreement (whether arising


 


8





















 


pre- or post-closing),
and Buyer shall remain jointly and severally liable for all of same together with such assignee.


 


10.                                 COVENANTS AND REPRESENTATIONS. As of
the date hereof, and to the best of Seller’s knowledge, Seller covenants,
warrants and represents to Buyer the following:


 


10.1                           Seller
has obtained any consents from partners and/or shareholders required to permit
the transactions contemplated by this Agreement including the sale of the
Property to Buyer.


 


10.2                           There
is no pending or threatened litigation affecting the Property brought by or
against Seller that would materially adversely affect Buyer except as set forth
in Exhibit 7 attached hereto and made a part hereof. If Seller is served
with process or receives notice that litigation relating to the Property has
been commenced against it, Seller shall promptly notify Buyer. The provisions
of this Section shall not apply to any litigation relating to the property
involving personal injury or property damage(s) covered by insurance.


 


10.3                           The
Space Leases described in Exhibit 2 comprise all the Space Leases
presently existing, and same have not been materially amended or modified
except (if at all) as may be set forth in Exhibit 2. Seller has neither given
nor received any outstanding, uncured notice of default to or from any Space
Lease tenant. Following a date which is five (5) business days prior to the
expiration of the Due Diligence Period (the “Cut Off Date”), and prior to
Closing, Seller will not, without the prior written consent of Buyer(which
Buyer agrees not to reasonably withhold or delay), cancel (except for default
by a tenant) or materially amend any Space Lease, or enter into any new Space
Lease or any Service Contract affecting the Property not cancelable on 30 days
notice. On or prior to the Cut Off Date, Seller may take any of the foregoing
actions without Buyer’s consent, provided it delivers a copy of any new
documentation evidencing same to Buyer not later than three (3) business days
prior to the expiration of the Due Diligence Period.


 


10.4                           Except
as otherwise expressly provided herein, there are no contracts or agreements
affecting the Property other than the Service Contracts, Space Leases, and
Permitted Exceptions; and there are no on-site employees or hired persons in
connection with the management, operation or maintenance of the Property; and
Buyer shall have no obligation, liability or responsibility with respect to
charges, salaries, vacation pay, fringe benefits or like items subsequent to
Closing, nor with any management or employment agreements with respect to the
Property.


 


10.5                           The
signatories to this Agreement on behalf of Seller have the power and authority
to enter into this Agreement and to bind Seller to the provisions hereof.


 


10.6                           As of
the date hereof: (i) to Daniel Slattery’s knowledge Seller is not aware of and
has receive no building code violation notices with respect to the Property
(other than notices of violations which have been removed or corrected); and
(ii) to Daniel Slattery’s knowledge Seller is not aware of and has received no
notices of any action or governmental proceeding in connection with eminent
domain, or for a zoning change, which would affect the Property; and (iii) to
Daniel Slattery’s knowledge Seller is not aware of any structural problems in
the improvements constructed upon the Property and the exterior structures are
in good condition and repair.


 


10.7                           Intentionally
Deleted.


 


11.                                 THE CLOSING.


 


11.1                           The
Closing shall be held at the Title Company’s offices (at the address set forth
above) at 9:00 A.M. on the Closing Date. The Closing Date shall be December 9,
2004.


 


11.2                           At
Closing, Buyer shall pay the Purchase Price as adjusted in accordance with the
provisions of this Agreement; and Buyer shall execute and deliver such other
instruments as Seller may reasonably request in connection with or to
consummate the transactions contemplated by this Agreement.


 


11.3                           (A)                              At
Closing, Seller shall deliver to Buyer the following:


 


(a)                                  A
Special Warranty Deed in favor of Buyer for the Real Estate in proper recordable
form and duly executed and acknowledged by Seller.


 


(b)                                 A
F.I.R.P.T.A. affidavit.


 


9





















 


(c)                                  It
shall be a condition precedent to Buyer’s obligation to remit the remainder of
the Purchase Price to the Title Company on the Closing Date and effectuate the
transaction contemplated herein that on or before the third (3rd) business day
prior to the Closing Date, Buyer shall have received an estoppel certificate
from each tenant under a Space Lease each such estoppel to be dated not more
than 30 days prior to the Closing Date, in either the form required by its
Space Lease, or otherwise in the form attached hereto as Exhibit 10, and made a
part hereof, as well as Seller’s estoppel in the form of Exhibit 10. If Seller
is unable to obtain any such required estoppel from a tenant prior to Closing,
Seller shall deliver its own estoppel in the form attached as Exhibit 10
(provided, however, Buyer shall not be obligated to accept Seller’s estoppel,
which shall survive Closing (but if post-Closing Seller delivers any such
tenant estoppel, Seller shall be relieved from responsibility under any Seller
estoppel it delivered regarding all matters confirmed by such tenant estoppel).
If Seller fails to deliver any such required estoppel, Seller shall have no
liability by reason thereof provided, however that Seller shall not be required
to deliver its own estoppel containing an assertion that Seller in good faith
believes to be untrue, and Buyer’s sole right shall be to terminate this
Agreement and to obtain a refund of the Deposit as set forth in Section 14.3.
If any estoppel certificate is dated earlier than forty (40) days prior to the
Closing Date, in lieu of requiring Seller to obtain a new estoppel from the
subject tenant(s), which shall be required of Seller if any estoppel
certificate is dated earlier than sixty (60) days prior to the Closing Date,
Buyer agrees that Seller may deliver, at Closing, its representation that to
the best of Seller’s knowledge, the facts in said estoppel remain true in all
material respects as of the Closing Date.


 


(d)                                 Seller
shall use its commercially reasonable good faith efforts to obtain, prior to
the expiration of the Due Diligence Period, an estoppel certificate from each
party to, or affected by any declaration, association, reciprocal easement, or
like agreement affecting the Property (hereinafter “REA estoppel”). Seller will
request that the estoppel be in a form substantially similar to the form
attached hereto as Exhibit 11 and made a part hereof. In the alternative,
within five (5) days of the date this Agreement is fully executed by Seller and
Buyer, Seller shall provide Buyer with the necessary information for each REA
party such that during the Due Diligence Period, Buyer may request the REA
estoppel from the REA parties directly. In the event Seller and Buyer are
unable to obtain these estoppels despite Seller’s commercially reasonable good
faith efforts prior to the expiration of the Due Diligence Period, Seller may
deliver and Buyer may accept (although nothing contained herein shall require
Buyer to accept), its own estoppel in the form attached as Exhibit 11, which
shall survive Closing (but if post-Closing Seller delivers any such REA
estoppel, Seller shall be relieved from responsibility under any Seller
estoppel it delivered regarding all matters confirmed by such “REA” estoppel).


 


(e)                                  It
shall be a condition precedent to Buyer’s obligation to remit the remainder of
the Purchase Price to the Title Company on the Closing Date and effectuate the
transaction contemplated herein that on or before the third (3rd)
business day prior to the Closing Date, Buyer shall have received an assignment
of all warranties and guaranties, if available, for materials and workmanship
benefiting the Property, including an acknowledgment by the material and/or
service provider of the acceptance of the assignment where required by the
terms of the warranty and/or guaranty, with all fees and costs of such
assignment (and inspection, if required) (not to exceed One Thousand Dollars
($1,000.00)) being paid at the sole cost and expense of Seller; any such costs
or fees in excess of One Thousand Dollars ($1,000.00) being shared equally
between the parties hereto.


 


(B)                                At
Closing, Seller and Buyer shall each execute and deliver to the other the
following:


 


(a)                                  An
Assignment and Assumption Agreement for the Space Leases in the form of Exhibit
4 attached hereto.


 


(b)                                 An
Assignment and Assumption Agreement for the Service Contracts, in the form of Exhibit
5 attached hereto.


 


(c)                                  Notices
to tenants, in the form attached hereto as Exhibit 14, and made a part hereof,
notifying them of the sale and (if applicable) the transfer of their security
deposit to Buyer.


 


(d)                                 Notice
to OEA parties in form required by the OEA.


 


(e)                                  To
the extent at closing Seller has not entered into a lease for the space for
2,675 square feet vacancy noted on Exhibit 9, then Seller shall master lease
same pursuant to the terms hereof (the “New Vacant Space”) a Master Lease for a
term expiring on the earlier of (i) twelve (12) months or (ii) such date as
Seller leases the Vacant Space. Lease-up of the Property shall in no event
yield an average Fixed Rent and Reimbursements amount that is less than the sum
of Fixed Rent and Reimbursements per the Rent Roll. The Master Lease shall be
in the form of Exhibit 8 attached hereto and


 


10





















 


shall incorporate
that portion of the Property vacant space for which a bona fide Space Lease(s)
had been executed but have become vacant between the date hereof and the date
of Closing with the “Tenant Conditions” (as hereinafter defined) having been
satisfied. For the purposes hereof, the Tenant Conditions for any Property
vacant space gross leasable area are hereby defined as (i) a signed lease, and
(ii) with Tenant either paying full rent and reimbursements or the all
conditions precedent to Rent Commencement Date (as defined in such tenant
lease) shall have occurred or been satisfied and (iii) with all the leasing
commissions and tenant improvement allowances either paid for by Seller or
credited to Buyer and (iv) with a certificate of occupancy or its equivalent
occupancy permit issued by the local governmental authorities, for such tenant’s
respective demised premises (v) Tenant shall have open and operated for its
permitted use for at lease one day (vi) and Seller obtains an estoppel from
Tenant that the delivery conditions (i.e. Landlord Work) has been completed or
Seller shall give a Seller estoppel to that effect. If a bona fide Space Lease
for the Vacant Space or any portion thereof with the Tenant Conditions
satisfied is executed prior to the Closing Date, the parties shall either not
enter into a Seller Lease or the applicable provisions thereof (including but
not limited to the annual base rent) shall be adjusted accordingly to reflect
that portion of the Vacant Space that is leased and thus released and not
covered by the Master Lease. Seller acknowledges and agrees that it shall be
responsible for placing all vacant space in Vanilla Box condition however, it
may be satisfied by second generation space in “as is” condition such that a
tenant has already occupied same, and needn’t be in “new” condition.


 


11.4                           Each
party shall pay its own legal fees and travel and lodging expenses in
connection with this transaction. Seller shall pay for all transfer taxes and
documentary stamps and the parties shall each pay 1/2 of the
recording charges for transfer of title to the Real Estate and the “New York
Style” closing escrow fees charged by the Title Company.


 


11.5                           Buyer
also agrees to cooperate with Seller to permit the conveyance of the Property
to be consummated as a part of a transaction intended by Seller to qualify as a
tax-free exchange under Section 1031 of the Internal Revenue Code and in
conjunction therewith to execute such documents as Seller may reasonably
request (such cooperation may include, without limitation, accepting a
conveyance from a party other than Seller and paying the Purchase Price to a
party other than Seller). In no event, however, shall (a) Buyer bear any
expense associated with the exchange transaction, (b) Buyer be obligated to
take title to Seller’s exchange property, (c) the consummation of such tax-free
exchange materially delay the conveyance to Buyer of the Property, (d) Buyer
have any liability to Seller or any other party for the qualification of the
exchange transaction for tax-free exchange treatment under Section 1031 of
the Internal Revenue Code or under any other provision and (e) the consummation
of such tax free exchange relieve Seller of any of its obligations hereunder.


 


11.6                           Intentionally
Deleted.


 


11





















 


12.                                 BROKERS.


 


Each party
represents and warrants to the other that it dealt with no broker in connection
with this transaction. Each party agrees to defend, indemnify and hold the
other harmless from and against any and all loss, liability and expense,
including reasonable attorney’s fees, that the indemnitee may incur arising by
reason of the above representation by the indemnitor being false. The
provisions of this Section 12 shall survive Closing.


 


13.                                 NOTICES.  All notices, demands,
requests, consents, approvals or other communications (for the purpose of this Section collectively
called “Notices”) required or permitted to be given hereunder or which are
given with respect to this Agreement shall be valid only if in writing and sent
by registered or certified United States mail, return receipt requested,
postage prepaid, or delivered by Federal Express or UPS courier service,
addressed as follows:


 


	
   

  	
  To Seller:

  	
  8383 Wilshire Boulevard

  
	
   

  	
   

  	
  Suite 950

  
	
   

  	
   

  	
  Beverly Hills, CA 90211

  
	
   

  	
   

  	
  Attn: Jerald Friedman

  
	
   

  	
   

  	
  Phone: (323) 866-3519

  
	
   

  	
   

  	
  Fax: (323) 866-3511

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  With a copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  3333 New Hyde Park Road

  
	
   

  	
   

  	
  Suite 100

  
	
   

  	
   

  	
  New Hyde Park, New York
  11042

  
	
   

  	
   

  	
  Attn: Barbara E.
  Briamonte, Esq.

  
	
   

  	
   

  	
  Phone: (516) 869-7157

  
	
   

  	
   

  	
  Fax: (516) 869-7201

  
	
   

  	
   

  	
   

  
	
   

  	
  and a copy to:

  	
  1111 Burlington Avenue

  
	
   

  	
   

  	
  Suite 113

  
	
   

  	
   

  	
  Lisle, IL 60532

  
	
   

  	
   

  	
  Phone: (630) 437-6610

  
	
   

  	
   

  	
  Fax: (630) 322-9204

  
	
   

  	
   

  	
  Attention: Daniel
  Slattery

  
	
   

  	
   

  	
   

  
	
  To
  Buyer:

  	
  Inland Real Estate
  Acquisitions, Inc.

  
	
   

  	
   

  	
  2901 Butterfield Road
  Oakbrook, IL 60523

  
	
   

  	
   

  	
  Phone: (630) 218-4948

  
	
   

  	
   

  	
  Fax: (630) 218-4935

  
	
   

  	
   

  	
  Attention: G. Joseph
  Cosenza

  
	
   

  	
   

  	
   

  
	
   

  	
  and a copy to:

  	
  Jason Lazarus

  
	
   

  	
   

  	
  Fax: (678) 996-2140

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The Inland Group, Inc.

  
	
   

  	
   

  	
  2901 Butterfield Road

  
	
   

  	
   

  	
  Oak Brook, IL 60523

  
	
   

  	
   

  	
  Attn: Robert Baum,
  General Counsel

  
	
   

  	
   

  	
  Facsimile Nos: (630)
  218-4900

  
	
   

  	
   

  	
  Copy via facsimile:

  
	
   

  	
   

  	
  Charles R. Benvenuto
  (630) 571-2360

  
	
   

  	
   

  	
   

  
	
   

  	
  To Escrow Agent:

  	
  CHICAGO TITLE &
  TRUST COMPANY

  
	
   

  	
   

  	
  171 North Clark Street

  
	
   

  	
   

  	
  Chicago, Illinois 60601

  
	
   

  	
   

  	
  Attn: Nancy Castro,
  Escrow Agent

  
	
   

  	
   

  	
  Phone: (312) 223-2709

  
	
   

  	
   

  	
  Fax: (312) 223-2108

  



 


or such other address as
such party shall hereafter have specified by Notice given by the same means.
Any Notice shall be deemed given when delivered to the carrier delivering same,
delivery charges prepaid, and properly sealed and addressed. Any Notice may
also be given by telecopier to the following


 


12





















 


numbers; Seller (516)
869-7201, Buyer (843) 852-3675, (630) 218-4935, (678) 996-2140 and (630)
218-4900;, and Escrow Agent (312) 223-2108, Attn: Nancy Castro, provided that a
“hard copy” of such notice is sent within one (1) business day after such
telecopier transmission in the manner above set forth; and in the case of
notice by telecopier (with confirmation sent as aforesaid), notice shall be
deemed given upon electronic confirmation of receipt.


 


14.                                 DEFAULTS.


 


14.1                           If
Closing does not take place because of Buyer’s default the Deposit shall be
retained by Seller as agreed upon liquidated damages as Seller’s sole remedy
for such default, and thereupon this Agreement shall be null and void and of no
further force or effect whatsoever (except that Buyer shall remain liable on
its obligations under Sections 4.2 and 15.8). The parties hereto expressly
agree that Seller’s actual damages in the event of a default by Buyer would be
extremely difficult or impractical to ascertain and that the amount of the
Deposit represents the parties’ reasonable estimate of such damages.


 


14.2                           If
Closing does not occur due to Seller’s willful default and refusal to close
despite Buyer’s willingness to do so (such willingness includes waiver by Buyer
of any uncured title objection properly made by Buyer under Section 6.1 or
material breach of representation or warranty by Seller) (such willful default
and refusal being hereinafter referred to as a “Seller Default”), then Buyer,
as its sole and exclusive right and remedy as a result of such Seller Default,
may elect to either (i) cancel this Agreement, in which event the Deposit shall
be returned to Buyer, Seller shall be liable for any title and survey costs, as
well as environmental site assessment, appraisal and legal fees theretofore incurred by Buyer (however Seller
shall not be obligated to reimburse Buyer more than Twenty-Five Thousand
Dollars ($25,000.00) in the aggregate for such environmental site assessment,
appraisal and legal fees), and thereupon no party shall have any further right
or obligation hereunder (except that Buyer shall remain liable on its
obligations under Sections 4.2 and 15.8), or (ii) Buyer may enforce specific
performance of this Agreement without any reduction or abatement of the
Purchase Price, together with the right of Buyer to collect its reasonable
attorney’s fees and costs of suit, subject to the limitation on Landlord’s
reimbursement of same described above.


 


14.3                           Subject
to the provisions of Article 14.1 and 14.2 above, if Closing should not
occur for any reason whatsoever other than a default by Buyer or a Seller
Default (including without limitation by reason of a material breach of
representation or warranty of Seller or an uncured title objection properly
made by Buyer under Section 6.1, or a failure to deliver any tenant
estoppel required hereunder) which Buyer is not willing to waive, then in such
event this Agreement shall be and be deemed cancelled, the Deposit shall be
returned to Buyer, and thereupon Buyer shall have no other right, by way of
damages or otherwise, against Seller notwithstanding the existence of any
failure or breach of representation, warranty, covenant, title, provision of
estoppel or other Closing condition (provided that Buyer will remain liable on
its obligations under Sections 4.2 and 15.8).


 


15.                                 MISCELLANEOUS.


 


15.1                           The
representations, warranties and covenants contained in Article 10 of this
Agreement shall survive delivery of the deed for a period of twelve (12)
months. Other than the survival of such representations, warranties and
covenants, the acceptance of the deed by Buyer shall be conclusive evidence of
the performance by Seller of all of the provisions of this Agreement to be performed by Seller.


 


15.2                           This
Agreement (including the Exhibits attached hereto) contains the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior or contemporaneous understandings, if any, with respect
thereto.


 


15.3                           This
Agreement may not be canceled, modified, changed or supplemented, nor may any
obligation hereunder be waived, except by written instrument signed by the
party to be charged or by its agent duly authorized in writing.


 


15.4                           The
parties do not intend to confer any benefit hereunder on any person, firm or
corporation other than the parties hereto and their respective successors or
assigns.


 


15.5                           “TIME IS OF THE ESSENCE” with respect to all provisions of
this Agreement, with the sole exception that each of Buyer and Seller shall be
entitled to a single adjournment (not to exceed two (2) business days in any
event) of the Closing Date.


 


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15.6                           This
Agreement shall extend to and be binding upon the legal representatives, heirs,
executors, administrators and, subject to the provisions of this Agreement, the
permitted assigns of the parties hereto.


 


15.7                           Intentionally
Deleted.


 


15.8                           Buyer
represents and warrants that it will keep all information and/or reports and/or
documents obtained from Seller or its agents (including without limitation the
rent and other terms of the Space Leases), or related to or connected with the
Property (including without limitation the existence of this Agreement and the
Purchase Price) strictly confidential and will not disclose any such
information to any person or entity (except for Buyer’s attorneys, consultants
and advisors and except as required by law; provided that any such parties
similarly agree to treat such material confidentially), without the prior
written consent of Seller. In amplification and not in limitation of the
foregoing, Buyer may not make any public disclosure of the existence or terms
of this Agreement prior to Closing.


 


15.9                           This
Agreement shall be governed by, interpreted under, and construed and enforced
in accordance with, the laws of the State wherein the Property is located. This
Agreement shall be construed in accordance with its plain meaning and without
reference to any maxim or rule of interpretation providing that a writing
should be construed against the party responsible for the drafting thereof.


 


15.10                     This
Agreement shall not be recorded or filed in the public records of any
jurisdiction by either party and any attempt to do so may be treated by the
other party as a breach of this Agreement.


 


15.11                     This
Agreement may be executed in one or more counterparts, each of which when so
executed and delivered shall be deemed an original.


 


16. Conditions
Precedent to Buyer’s Obligation.


 


In addition to the
conditions precedent described in Article 11-3(A) (c), (d) & (e),
Buyer’s obligation to remit the remainder of the Purchase Price to the Title
Company on the Closing Date and effectuate the transaction contemplated
hereunder is subject to and contingent upon the following;


 


(a)          The Title Company’s issuing
or committing to issue the Title Policy insuring that fee simple title to the
Property is vested in Buyer as required in Article 6 hereof;


 


(b)         The completeness, truth
and accuracy in all material respects and to the best of Ruth Mitteldorf’s or
Daniel Slattery’s knowledge of the Rent Roll, and any certifications,
schedules, covenants and statements prepared and executed by Seller as part of
the Pre-Closing Deliveries, the completeness in all material respects and to
the best of Seller’s knowledge of the Space Leases delivered by Seller as part
of the Pre-Closing Deliveries, the completeness, truth and accuracy in all
material respects and to the best of Seller’s knowledge as of Closing, of the
representations and warranties of Seller contained in Section 10 hereof,
and the performance by Seller, to the extent possible by the date of Closing,
of the covenants contained in Section 10 hereof. It shall be a condition
to Buyer’s obligation to close with respect to the Property that, at the
Closing, Seller shall deliver to Buyer a Certificate that shall confirm, to the
best of Seller’s knowledge, the truth and accuracy in all material respects, as
of Closing, of Seller’s representations contained in this Agreement, and the
representations contained in such certificate, as well as any continuing
obligations of Seller hereunder, shall survive the Closing for a period of
twelve (12) months; and


 


(c)          That as of the date of
closing: (i) neither Seller, as landlord under the Space Leases, nor any tenant
thereunder, shall be in material default under the terms of any Space Lease and
(ii) and eight-five percent (85%) of the Property gross leaseable area being
leased to tenants with the Tenant Conditions satisfied.


 


[SEE SIGNATURE
BLOCKS ON NEXT PAGE]


 


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IN WITNESS WHEREOF,
Seller and Buyer have executed this Agreement as of the day and year first
above written.


 


	
   

  	
  BUYER:

  
	
   

  	
  INLAND REAL ESTATE
  ACQUISITIONS, INC.

  
	
  WITNESS:

  	
   

  
	
  [ILLEGIBLE]

  	
   

  	
   

  
	
  [ILLEGIBLE]

  	
   

  	
  By:

  	
  /s/ Jason A. Lazarus

  	
   

  
	
   

  	
   

  	
  Name: Jason A. Lazarus

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
  Date of Execution:

  	
  November 19,
  2004

  	
   

  
	
   

  	
   

  
	
   

  	
  SELLER:

  
	
   

  	
  KIMCO PANAMA CITY, LLC

  
	
  WITNESS:

  	
   

  
	
   

  	
  By:  [ILLEGIBLE]

  
	
  [ILLEGIBLE]

  	
   

  	
   

  
	
  [ILLEGIBLE]

  	
   

  	
  By:

  	
  /s/ Ruth Mitteldorf

  	
   

  
	
   

  	
   

  	
  Name: Ruth Mitteldorf

  
	
   

  	
   

  	
  Title: VP- Finance

  
	
   

  	
   

  	
  Date of Execution:

  	
  11/19/04

  	
   

  
	
   

  	
   

  
	
   

  	
  Escrow Agent signs to
  confirm its

  agreement with the provisions of

  Section 3(A)(b) hereof:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ESCROW AGENT:

  
	
  WITNESS:

  	
   

  
	
  CHICAGO TITLE &
  TRUST COMPANY

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Nancy Castro

  	
   

  
	
   

  	
  Title:

  
	
   

  	
   

  	
  Date of Execution: