Exhibit
10.443


 


AMENDMENT TO AGREEMENT


 


THIS AMENDMENT TO AGREEMENT (the “Amendment”) is made and entered into
as of the 8th
of November 2004, by and between KIMCO
TAMPA LP, a Florida limited partnership (“Seller”) and INLAND REAL ESTATE ACQUISITIONS, INC. (“Buyer”).


 


W I T N E S S E T H:


 


WHEREAS, Seller
and Buyer entered into that certain Agreement of Sale dated September 3,
2004, (as amended) (“the Agreement”), for the sale and purchase of the property
commonly known as Northwoods Square located in Tampa, Florida, as legally
described by the Agreement (the “Property”).


 


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


 


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


 


1.     Prior to Closing, Buyer shall have approved
of the Amendment to Development Order described in paragraph 4.4 of the
Agreement and the post closing obligations to be assumed by an affiliate of
Seller in regard to same.


 


2.     Paragraph 11.1 is hereby amended by placing a
period immediately after the words “Closing Date” in line 10 thereof and
truncating the remainder of that sentence.


 


3.     Paragraph 11.2(B)(d) (Cash Flow Holdback
Escrow) is hereby deleted in its entirety.


 


4.     A new paragraph 3 D, is hereby added: “Notwithstanding
the terms of this Section 3 which describe payment of the Purchase Price
by Purchaser to Seller at Closing, a portion of the $20,200,000 Purchase Price shall
be subject to the “Earnout” provisions hereinafter described.


 


(i)            At Closing, Buyer shall pay to Seller that
part of the Purchase Price equal to the value of the Property then existing
(based upon tenants under leases satisfying the Tenant Conditions (as
hereinafter defined in paragraph 11.1, hereof)): Thirteen Million Nine Hundred
Sixty-three Thousand Eight Hundred Forty-seven and no/100


 





















 


Dollars ($13,963,847.00)
(the “Initial Closing Payment”).


 


(ii)           For a period of one (1) year
from the Closing Date (the “Earnout Period”), Seller shall have the right to
earn payment from Buyer of an amount equal to the difference between the
Purchase Price (less the Tire Kingdom Payment (as hereinafter defined)) and the
Initial Closing Payment: Four Million Six Hundred Twenty-five Thousand Four
Hundred Sixteen and no/100 Dollars ($4,625,416.00) (the “Building C Payment”)
(the “Building C Earnout”). The Building C Earnout applies to the Property
spaces described upon Exhibit A, attached hereto and made a part hereof (the “Earnout
Spaces”). The Building C Payment shall be made by Buyer to Seller at one or
more Earnout closings (to occur no more frequently than every 30-days) during
the Earnout Period upon notice to Buyer by Seller (accompanied by a current
title later-date search showing no liens or other encumbrances having been
placed of record by reason of Seller or tenants under Earnout Spaces activities
upon the Property) stating that one or more of the tenants for the Earnout
Spaces have satisfied the Tenant Conditions (including copies of documentation
evincing same).


 


(a)           One qualification to the requirement that
each tenant for the Earnout Spaces must satisfy each of the Tenant Conditions
prior to an Earnout closing is that in the event any 2-tenants (only) under
lease for an Earnout Space have satisfied each of the Tenant Conditions, except
that such tenant(s) have not opened for business to the public, Seller may call
for an Earnout closing as to those 2-tenants (only).


 


(b)           A second qualification to the requirement
that each tenant for the Earnout Spaces must satisfy each of the Tenant  Conditions
prior to  an Earnout closing is that
Seller may tender a Seller estoppel in the form, and in lieu, of a  tenant estoppel from the applicable tenant. The
Seller estoppel  shall  survive the applicable Earnout closing for a
period of time from the earnout closing until the first to occur of: (A)


 


2





















 


one (1) year following the Earnout closing and
(B) the date an acceptable (to Buyer) tenant estoppel is received from the
applicable tenant.


 


(c)           In addition, with regard to the
Friedman Jeweler space
(described upon Exhibit A), the Building C Payment is subject to adjustment
(increase or decrease) by dividing the base rent divider of .079296 into the
initial year base rent achieved by the lease then signed for the Friedman
Jeweler space (the “Friedman Jeweler Space Achieved Value”). The Building C
Payment adjustment in regard to the Friedman Jeweler space shall be calculated
by subtracting the proforma value of the Friedman Jeweler space: Five Hundred
One Thousand Nine Hundred Sixteen and 87/100 Dollars ($501,916.87) from the
Friedman Jeweler Space Achieved Value. If the sum is a positive number, the
Building C Payment shall be increased by that amount. If the sum is a negative
number, the Building C Payment shall be decreased by that amount.


 


(iii)          During the Earnout Period, Seller shall have
the right to earn payment from Buyer of an amount equal to One Million Six
Hundred Ten Thousand Seven Hundred Thirty-seven and no/100 Dollars
($1,610,737.00) (the “Tire Kingdom Payment”). The Tire Kingdom Payment shall be
made by Buyer to Seller upon notice from Seller to Buyer during the Earnout
Period (accompanied by a current title later-date search showing no liens or
other encumbrances having been placed of record by reason of Seller or tenants
under Earnout Spaces activities upon the Property) stating that the Tire
Kingdom tenant has satisfied the Tenant Conditions (including copies of
documentation evincing same).”


 


5.     In regard to the construction activities of
Seller upon the Property after the Closing Date, Seller agrees to comply with
the Development Covenants described upon Exhibit B, attached hereto and made a
part hereof.


 


3





















 


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


 


7.     In recognition of the structure of the
purchase and sale transaction described by the Agreement, as of the Closing
Date, Seller shall assign its interests in and to the Agreement to an affiliate
of Seller (as constituted as of the date hereof).  References to Seller described by this
Agreement shall be to Seller’s assignee from and after the Closing Date.


 


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


 


(2-SIGNATURE
PAGES FOLLOW)


 


4





















 


	
   

  	
  BUYER:

  
	
   

  	
  INLAND REAL ESTATE ACQUISITIONS,

  INC.

  
	
   

  	
   

  
	
  WITNESSES:

  	
   

  
	
   

  	
   

  
	
  /s/ [ILLEGIBLE]

  	
   

  	
  By:

  	
  /s/ G. Joseph Cosenza

  
	
   

  	
   

  	
   

  	
  G. Joseph Cosenza,
  President

  
	
  /s/ [ILLEGIBLE]

  	
   

  	
   

  	
  Date of Execution:

  	
  11/8/04

  	
   

  



 


 


	
   

  	
  SELLER:

  
	
   

  	
  KIMCO TAMPA, L.P.

  
	
   

  	
   

  
	
   

  	
  By:       Kimco Tampa 470, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
  WITNESSES:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
  Date
  of Execution:

  	
   

  
						



 


 


	
  WITNESSES:

  	
  ESCROW AGENT:

  
	
   

  	
  CHICAGO TITLE & TRUST COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Nancy
  Castro, Senior Escrow Officer

  	
   

  
	
   

  	
   

  	
   

  	
  Date
  of Execution:

  	
   

  	
   

  
								



 


5





















 


	
   

  	
  Inland
  Guarantor signs to confirm its

  agreement with the provisions of Section 3

  D., hereof.

  
	
   

  	
   

  
	
  WITNESSES:

  	
  INLAND GUARANTOR:

  INLAND WESTERN RETAIL REAL

  ESTATE TRUST INC.,

  a Maryland corporation

  
	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  
	
  /s/ [ILLEGIBLE]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ G. Joe Cosenza

  
	
   

  	
   

  	
  Name:
  G. Joe Cosenza

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Agent

  
	
   

  	
   

  	
  Date
  of Execution:

  	
  11/8/04

  
								



 


 


	
   

  	
  Kimco
  Guarantor signs to confirm its

  agreement with the provisions of Section 3

  D. (ii)(b), and Section 5 hereof.

  
	
   

  	
   

  
	
  WITNESSES:

  	
  KIMCO GUARANTOR:

  

  KIMCO DEVELOPERS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
  Date
  of Execution:

  	
   

  	
   

  
										



 


6





















 


EXHIBIT A


PAD C EARNOUT SPACES


 


7





















 





 





















 


EXHIBIT B


DEVELOPMENT COVENANTS


 


a.     To the fullest extent permitted by law,
Seller hereby agrees to indemnify, defend and hold Purchaser and its agents and
employees, harmless from and against any and all causes of action, damages, losses,
demands, judgments, liens, claims, costs, and expenses (including reasonable
attorney’s fees and court costs) which arise or occur in connection with: (1)
any matter related to bodily injury, death or property damage arising in the
performance of Seller’s work, and (2) any mechanics lien claim arising in the
performance of Seller’s work, and (3) any matter related to the payment of
money owed for the obligations of Seller in regard to the performance of Seller’s
work. In the event any liens are placed of record in regard to the performance
of Seller’s work, within 30-days from the date Seller is notified thereof,
Seller agrees that Seller shall either cause said encumbrance to be removed
from title or Seller shall bond over said encumbrance or provide appropriate
indemnities to the Title Company as may be required to allow the Title Company
to issue its later date endorsement (or like-coverage) to Buyer and its lender,
if any, under its respective Policies of title insurance.  In the event a lien is placed of record
against the Property by reason of tenant work, Seller agrees to reasonably
cooperate with Buyer in regard to causing said tenant to cause the lien to be
removed in accordance with the terms of the applicable lease.


 


b.     Seller, or Seller’s contractor, shall
purchase and maintain, in a company or companies lawfully authorized to do
business in the State of Florida, comprehensive general liability insurance and
insurance for protection from claims under worker’s or workmen’s compensation
acts and other employee benefit acts which are applicable, claims for damages
because of bodily injury, including death, and from claims for damages, other
than for the Seller’s work itself, to property which may arise out of or result
from the performance of Seller’s work, whether actually performed by Seller or a
contractor/subcontractor or anyone directly or indirectly employed by any of
them.  This insurance shall be written
for not less than $2,000,000.00 and shall include contractual liability insurance
applicable to Seller’s obligations.


 


c.     Seller shall assign to Purchaser all
warranties in respect of Seller’s work at the time of the applicable Earnout
closing.


 


8





















 


AMENDMENT
TO AGREEMENT


 


THIS AMENDMENT TO
AGREEMENT (the “Amendment”) is made and entered into as of the 12th
of October 2004, by and between KIMCO TAMPA, L.P.,
a Florida limited partnership (“Seller”) and INLAND REAL
ESTATE ACQUISITIONS, INC. (“Buyer”).


 


W I T N E S S E T
H:


 


WHEREAS, Seller and Buyer
entered into that certain Agreement of Sale dated September 3, 2004, (“the
Agreement”), for the sale and purchase of the property commonly known as
Northwoods Shopping Center located in Tampa, Florida, as legally described by
the Agreement (the “Property”).


 


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


 


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


 


1.     The “Due Diligence Period”, as defined in Section 1.7
of the Agreement is hereby amended by deleting the words “on the 30th business day thereafter or the first
business day after such 30th day if such 30th day is not a business day,” and inserting the date of “November 1,
2004” therein.


 


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


 


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


 


(SIGNATURE
PAGE FOLLOWS)


 





















 


	
   

  	
  BUYER:

  
	
   

  	
  INLAND REAL ESTATE ACQUISITIONS,

  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  WITNESSES:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ G. Joseph Cosenza

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
  Date:

  	
  10-12-04

  	
   

  
							



 


 


	
   

  	
  SELLER:

  
	
   

  	
  KIMCO TAMPA, L.P.

  
	
   

  	
   

  
	
   

  	
  By:       Kimco Tampa
  470, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
  WITNESSES:

  	
   

  
	
   

  	
   

  
	
  /s/ [ILLEGIBLE]

  	
   

  	
  By:

  	
  /s/ Daniel C. Slattery

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  DANIEL C. SLATTERY

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Executive Vice President

  	
   

  
	
   

  	
   

  	
   

  	
  Date:

  	
  10-12-04

  	
   

  
									



 


 


	
   

  	
  Escrow
  Agent signs to confirm its agreement

  with the provisions of Section 3(A)(ii)

  hereof:

  
	
   

  	
   

  
	
   

  	
   

  
	
  WITNESSES:

  	
  ESCROW AGENT:

  
	
  CHICAGO TITLE & TRUST COMPANY

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/  Nancy Castro

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Nancy Castro

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
  AVP 

  	
   

  
	
   

  	
   

  	
   

  	
  Date:

  	
  10/13/04

  	
   

  
								



 


2





















 


AGREEMENT OF
SALE


 


THIS AGREEMENT made this 3rd day of Sept, 2004, between Kimco Tampa, LP, a Florida Limited Partnership, 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, prior to closing the partners of Seller shall transfer their
interests in Seller to a newly formed Limited Partnership, Kimco Tampa Holding,
L.P. (Affiliate Seller);


 


WHEREAS, prior to closing Seller shall merge into the newly formed
Limited Liability company known as Inland Western Tampa Northwoods, LLC, a
Delaware limited liability company whose sole member and owner of 100%
Membership Interests (the “Interests”) shall be Affiliate Seller;


 


WHEREAS,
Seller owns a portion of the shopping center commonly known as Northwoods Square,
located in Tampa, 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;


 


WHEREAS, at closing Affiliate Seller shall then assign all of its interests
in Owner to Buyer; and


 


WHEREAS, as the Shopping Center consists of: (a) the Real Estate subject
to the Permitted Exceptions and Space Leases, (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 (g) the right to use, in common with others the
name “Northwoods Shopping Center” provided Buyer’s use of same is done in a
commercially reasonable manner in connection with the first class operation of
the Property.


 


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 interests 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, on the 30th business day
thereafter or the first business day
after such 30th day if such 30th day is not a business day.


 


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
Three Hundred Thousand ($300,000.00) Dollars,
plus all interest earned thereon.


 


1.11         “REA” means that certain Operation and Easement Agreement by and among
Target Corporation, Kimco Tampa L.P., Northwood Centers, LLP and MJG, LTD,
dated March 23, 2001 and recorded in


 


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, all of Seller’s right, title and
interest in and to the (“Interests”).


 


3.             PURCHASE PRICE.
The “Purchase Price” for the Property shall be Twenty
Million, Two Hundred Thousand, ($20,200,000.00) Dollars plus the Contingent Amount if any,
as set forth in Section 11.6 hereof, 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.


 


2





















 


C.            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 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; (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.


 


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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 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           Amendment to the Development Order for
Northwood Development Regional Impact (Resolution No, 86-17).  There
is a pending amendment to the current Resolution No. 86-17, which is currently
scheduled to be voted on August 6, 2004
(the “Amendment to DRI”).  The Amendment
to DRI would impose certain financial obligations on the Seller for
construction of Pipeline Project A as defined therein.  The Amendment to DRI effects several
properties including the Real Estate. The various owners of the effected
properties (Northwood Centers LLP, MJG Ventures, Ltd. the Spano Corporation and
Seller) are currently negotiating a Joint Agreement to allocate the financial obligations
imposed by the Amendment to DRI. Seller hereby agrees that it shall be
responsible for any and all costs imposed on the Real Estate by the Amendment
to DRI and the Joint Agreement.  Buyer acknowledges
and agrees that Seller shall be entitled to any and all “Reimbursements” or
equivalent term or repayment that enure to the Real Estate pursuant to the
Joint Agreement or Amendment to DRI, that arise in
connection therewith. In the event same are paid to Buyer as successor in
interest to owner of the Real Estate, Buyer shall promptly forwarded
to Seller. Seller’s and Buyer’s obligations set forth in this Section 4.4
shall survive Closing.


 


4.5           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).
However as to the following tenants (“the Credit Tenants”) Superfresh and
Blockbuster, Seller shall at closing, receive a credit in an amount equal to
real estate taxes that have accrued as of the Closing Date but are either
unpaid or not yet due and payable from the Credit Tenants as of the Closing
Date. Except as provided in the preceding sentence in respect
of the Credit Tenants. 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;


 


4





















 


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 Closing,
Seller shall deliver in 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


 


5





















 


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 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 (the costs of which shall be
borne solely by Buyer) updates of the Existing Survey to the certification
standards described upon the Surveyor’s certification attached hereto 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 (the costs of which shall be borne by Buyer) 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


 


6





















 


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 lights 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
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 encumbrance 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


 


7





















 


Due Diligence Period) including the costs of any excess coverage or
endorsements Zoning 3.1; Survey; Access, Usury, Location, Tax ID, Contiguity,
EPA, Comprehensive and Doing Business, to the extent available or applicable,
shall be borne solely by Buyer (the “Title Policy”) and costs of updated Survey
shall be borne solely by Buyer, however 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.


 


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 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 he 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


 


8





















 


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 DOMAlN.  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 Real Estate Trust,
Int., 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 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         Ownership of Transferred Interest. The Seller is the sole member of the Owner as
of the date hereof, and holds one hundred (100%) percent of the membership
interests in the Owner. The Interests were issued to the Seller without
violating any state or federal laws applicable to the issuance of securities or
otherwise. The Seller is the legal and beneficial owner of the Interests and
will be the legal and beneficial owner of the Interests immediately prior to
Closing; such ownership consists of and will consist of good, valid and
indefeasible title thereto, free of all liens and encumbrances of any


 


9





















 


kind or nature whatsoever; and upon consummation of the transfer of the
Interests to Buyer pursuant to the terms hereof, Buyer will acquire title to
the Interests, free and clear of all liens and encumbrances whatsoever and will
own, in the aggregate, one hundred (100%) percent of the membership interests
in the Owner.


 


10.6         Organization. The Owner or if entity not formed will be at the time of closing a is duly organized and validly existing as a limited
liability company under the laws of the State of Delaware.


 


10.7         Other Agreements.  Except
for this Agreement, there are no agreements or arrangements to which Owner or
Seller is a party, or by which Owner or Seller is bound, relating to the issuance,
acquisition or disposition of any interest in Owner, and there are no
agreements or arrangements to which Owner or Seller is a party or by which they
arc bound relating to the repurchase or redemption of any interest in
Owner.  Except for this Agreement, there
are no outstanding options, warrants or other rights to subscribe for or
purchase or acquire any interest in Owner or any agreements or arrangements to
which Owner or Seller is a party or by which they are bound pursuant to which
any Owner or Seller is or may be required to issue or sell any additional
interest in Owner.  Owner does not own,
directly or indirectly, any capital stock or other equity securities of any
corporation or have any direct or indirect equity or other ownership interest
in any entity or business.


 


10.8         Organizational Liabilities.   All
federal, state and local income, excise, sales, property and other tax returns
required to be filed by the Owner, if any, have been timely filed and are correct
and complete in all material respects. 
All taxes, assessments, penalties and interest due in respective of any
such tax returns have been paid in full, and there are no pending or threatened
claims, assessments, deficiencies, audits or notices with respect to any such
taxes. The Owner is not a party or otherwise subject to any judgment, order,
writ, injunction or decree of any court, governmental or any administrative
agency or a tribunal having jurisdiction over the Interests. There are no and
have never been any employees of the Owner and the Owner shall not have any
employees through the date of Closing. 
The Owner does not maintain, sponsor, participate in or contribute to,
and in the past, the Owner has not maintained, sponsored, participated in or
contributed to, any employee health or benefit plan (as defined in Section 3(1)
of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),
any employee pension benefit plan (as defined in Section 3(2)(A) of ERISA),
or any bonus, severance, deferred compensation, retirement option or any other
plans or amendments providing for any benefits to employees of the Owner, and
the Owner is not, and has not been, a member of any controlled group of
entities, a group of trades or
businesses under common control, or an affiliated service group, as defined in
ERISA and the Internal Revenue Code of 1986, as amended.


 


10.9         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.


 


10.10       As of the date hereof: (i) to Norm Brody and Todd Zinmaster’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 Norm Brody and Todd Zinmaster’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 Norm Brody and Todd
Zinmaster’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.


 


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 the first business day after the
expiration of the Due Diligence Period, but in no event earlier than October 1,
2004  not later
than November 17, 2004. In the event the condition precedent to Closing
described at Section 16(c)(ii) (the “Lease-up Requirement”) is not
satisfied as of November 17, 2004, the following shall apply so long as
Seller is not then in default of its obligations hereunder: (A)(i) Closing
shall be delayed until such time as the Lease-up Requirement is achieved (in no
event later than April. 1 2005), and (ii) at Closing, Seller shall credit Buyer
an amount equal to Twenty-eight Thousand and no/100 Dollars ($28,000.00) per
month for each 30-day period that
Closing does not occur from and including November 18, 2004 (prorated for
any partial month) through the Closing Date, or at Seller’s option (B) if the
Property is no less than seventy-five percent (75%) leased (within the context
of Section 16(c)(ii), Buyer and Seller shall close on November 17,
2004 and Seller shall deposit into the Cash Flow Holdback escrow (described in Section 11.3(d),
hereof), a sum equal to six (6) months of rent and reimbursements for such
tenant spaces leased but with the Tenant Conditions (as hereinafter defined)
not satisfied (the “Lease-up Requirement Shortfall Escrow”). For the purposes
hereof, the Tenant Conditions are hereby defined as (i)


 


10





















 


a signed lease, and (ii) with Tenant either paying full rent and
reimbursements and 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, and (vi) Seller obtains an
estoppel from the Tenant stating that the delivery conditions (i.e. landlord
work) has been completed or Seller shall give a Seller estoppel to that effect.


 


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)           Intentionally Deleted.


 


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


 


(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 the Space Lease Tenants operating under the trade
names Marshall’s and Petco (hereinafter “Anchor Tenant”), as well as from sixty
(60%) percent of the remaining tenants (each such tenant hereinafter referred
to as a “Non-Anchor Tenant”) (collectively such Non-Anchor Tenants hereinafter
referred to as the “Minimum Threshold”), 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 for any
tenant (other than an Anchor Tenant and so long as the Minimum Threshold is
met) not delivering an estoppel as required to achieve one hundred percent
(100%) estoppel delivery for the Property. 
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 for any Anchor Tenant nor for more than thirty (30%) percent of the Non-Anchor
Tenants at the Property) , 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)           (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


 


11





















 


assignment (and inspection, if required) (not to exceed One Thousand Dollars (S1,000.00))
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 of membership Interests in Inland Western Northwoods
LLC in form set forth as Exhibit 8.


 


(b)           Intentionally Deleted.


 


(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)           Cash Flow Holdback.  To
the extent at Closing the Rent Commencement Date (“RCD”) of a Space Lease, as
the RCD is defined in the respective Space Lease, has not occurred, (such a
Space Lease being hereinafter referred to as a “Pending Lease”) then Seller shall put in escrow account to be held
by the title company the “Cash Flow Deficiency” as hereinafter defined for any
such Pending Leases.  The Cash Flow Deficiency
shall mean the Fixed Rent, CAM, taxes and insurances payable under the Pending
Lease calculated from the day of the Closing to the RCD under such Pending Lease.  At Closing the parties shall enter into
formal Escrow Agreement outlining the terms of the Cash Flow Holdback.


 


11.4         Each party shall pay its own legal fees and travel and lodging expenses
in connection with this transaction.  Seller
and Buyer shall split the payment in accordance with local custom for all
transfer taxes and the parties shall each pay 1/2 of the documentary stamps or 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.


 


12.           BROKERS.


 


Each party represents and warrants to the other that it dealt with no
broker other than Cushman & Wakefield
(the “Broker”) in connection with this transaction. Seller shall pay Broker
pursuant to a separate agreement and Buyer shall pay Broker one hundred fifty
thousand dollars ($150,000.00). 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.


 


12





















 


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:

  	
   

  
	
   

  	
   

  
	
   

  	
  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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  with
  a copy to:

  
	
   

  	
   

  
	
   

  	
  1111
  Burlington Avenue

  Suite 113

  Lisle, IL 60532

  Attn: Daniel Slattery

  Phone: (630) 322-9206

  Fax: (630) 322-9204

  
	
   

  	
   

  
	
  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:

  	
  Steven
  D. Sanders

  Fax: (914) 779-2000

  
	
   

  	
   

  
	
   

  	
  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 scaled and addressed. Any Notice may also be given by
telecopier to the following 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.


 


13





















 


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.


 


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.


 


14





















 


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
or Norm Brody’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 in 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 space
currently occupied by Petco and Marshalls and ninety-five percent (95%) of the
remainder of Property gross leasable area being leased to tenants, excluding
the Marshalls and Petco spaces.


 


[SEE SIGNATURE BLOCKS ON NEXT PAGE]


 


15





















 


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.

  
	
   

  	
   

  
	
  WITNESSES:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
  Date of Execution:

  	
   

  



 


 


	
   

  	
  SELLER:

  
	
   

  	
  KIMCO TAMPA, L.P.

  
	
   

  	
   

  
	
   

  	
  By:      Kimco Tampa 470, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
  WITNESSES:

  	
   

  
	
   

  	
   

  
	
  /s/ [ILLEGIBLE]

  	
   

  	
  By:

  	
  /s/ Daniel C. Slattery

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Daniel C. Slattery

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Executive Vice
  President

  	
   

  
	
  /s/ [ILLEGIBLE]

  	
   

  	
   

  	
  Date
  of Execution:

  	
  9/3/04

  
								



 


 


	
   

  	
  Escrow
  Agent signs to confirm its

  agreement with the provisions of

  Section 3(A)(ii) hereof:

  
	
   

  	
   

  
	
   

  	
   

  
	
  WITNESSES:

  	
  ESCROW AGENT:

  
	
  CHICAGO TITLE & TRUST COMPANY

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Nancy Castro

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Date of Execution:

  	
   

  
										



 


16





















 


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.

  
	
   

  	
   

  
	
  WITNESSES:

  	
   

  
	
   

  	
   

  
	
  /s/ [ILLEGIBLE]

  	
   

  	
  By:

  	
  /s/ [ILLEGIBLE]

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title: SR VP

  
	
  /s/ [ILLEGIBLE]

  	
   

  	
   

  	
  Date of Execution:

  	
    8/31/04

  



 


 


	
   

  	
  SELLER:

  
	
   

  	
  KIMCO TAMPA, L.P.

  
	
   

  	
   

  
	
   

  	
  By:      Kimco Tampa 470, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
  WITNESSES:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Date
  of Execution:

  	
   

  
								



 


 


	
   

  	
  Escrow
  Agent signs to confirm its

  agreement with the provisions of

  Section 3(A)(ii) hereof:

  
	
   

  	
   

  
	
   

  	
   

  
	
  WITNESSES:

  	
  ESCROW AGENT:

  
	
  CHICAGO TITLE & TRUST COMPANY

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Nancy Castro

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Date of Execution:

  	
   

  
										



 


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