Exhibit 10.474


 


Henry Town Center


McDonough, Georgia


Eighth Amendment to Agreement


 


EIGHTH AMENDMENT TO AGREEMENT


 


THIS EIGHTH AMENDMENT TO AGREEMENT (the “Eighth
Amendment”) is made and entered into as of the 1st day of December, 2004, by and between Henry Town Center,  LLC, a Georgia
limited liability company, Alpha Seven, LLC,
a Delaware limited liability company, Elliston Henry Town
Center, LLC, a Delaware limited liability company, Owen Henry Town Center, LLC, a Delaware limited liability
company, DSCongdonA, LLC, a Delaware limited
liability company, JWCongdonA, LLC,
a Delaware limited liability company, KCVanstoryA, LLC,
a Delaware limited liability company. ALCongdonA, LLC,
a Delaware limited liability company, SCTerryA, LLC,
a Delaware limited liability company. JRCongdonA, Jr., LLC,
a Delaware limited liability company, Spence Henry Town Center,
LLC, a Delaware limited liability company, and Jay Henry
Town Center, LLC, a Delaware limited liability company (collectively
“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 Purchase and Sale of Shopping Center dated July 29, 2004,
as amended (the “Agreement”), for the sale and purchase of the property commonly
known as Henry Town Center located in McDonough, Georgia, 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.               If on or prior to December 23, 2004: (i)
Lender’s rating agency does not approve the assumption of the Loan by Buyer in
the manner described in Section 10(c) of the Agreement and/or (ii) Lender’s
rating agency imposes new conditions upon Buyer in connection with approval of
the Loan assumption; and/or (iii) final receipt and execution of loan
assumption documents and satisfaction of all Closing conditions imposed by
Lender to Buyer and Seller (collectively, the “Financing Approval Contingency”),
then Buyer may terminate this Agreement provided that written notice thereof is
received by Seller on or prior to 10:00 P.M., Chicago time December 23, 2004.
Seller or its affiliates must be released from any ongoing liabilities under
the Loan or any related guaranty agreements.


 





















 


2.               Section 2(a) of the Agreement (Closing)
is hereby amended and restated as follows: “The closing of the transaction
contemplated by this Agreement (the “Closing”) shall occur via mail at the
Chicago, Illinois office of the Title Company (as hereinafter defined), on December
23, 2004.”


 


3.               This Eighth 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 Eighth Amendment.  Each person executing this Eighth 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 Eighth
Amendment.  Any counterpart to this
Eighth Amendment may be executed by facsimile copy and shall be binding on the
parties. Defined terms utilized in the Eighth Amendment shall have the meaning
ascribed to them by the Agreement.


 


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


 


PLEASE SEE FOLLOWING PAGE FOR SIGNATURES


 


2





















 


	
   

  	
  Seller:

  
	
   

  	
   

  
	
   

  	
  HENRY TOWN CENTER, LLC,

  
	
   

  	
  ALPHA SEVEN, LLC,

  
	
   

  	
  ELLISTON HENRY TOWN CENTER,
  LLC,

  
	
   

  	
  OWEN HENRY TOWN CENTER, LLC,

  
	
   

  	
  DSCONGDONA, LLC, JWCONGDONA,
  LLC,

  
	
   

  	
  KCVANSTORYA, LLC, ALCONGDONA,
  LLC,

  
	
   

  	
  SCTERRYA, LLC, JRCONGDONA, JR.,
  LLC,

  
	
   

  	
  SPENCE HENRY TOWN CENTER, LLC,

  
	
   

  	
  JAY HENRY TOWN CENTER, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven D. Bell

  	
   

  
	
   

  	
  Name: Steven D. Bell

  
	
   

  	
   

  
	
   

  	
  Title:
  Authorized Signatory for all Co-Tenant Sellers

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchaser:

  
	
   

  	
   

  
	
   

  	
  INLAND REAL ESTATE
  ACQUISITIONS,

  INC., an Illinos
  corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jason A. Lazarus

  	
   

  
	
   

  	
  Name:

  	
  Jason A. Lazarus

  	
   

  
	
   

  	
  Title:

  	
  V.P.

  	
   

  
						



 


3





















 


Henry Town Center


McDonough, Georgia


Seventh Amendment to Agreement


 


SEVENTH AMENDMENT TO AGREEMENT


 


THIS SEVENTH AMENDMENT TO AGREEMENT (the “Seventh
Amendment”) is made and entered into as of the 29th day of November,
2004, by and between Henry Town Center, LLC, a Georgia limited liability company, Alpha Seven, LLC, a Delaware limited
liability company, Elliston Henry Town Center,
LLC, a Delaware limited liability company,
Owen Henry Town Center, LLC, a Delaware limited liability company, DSCongdonA, LLC,
a Delaware limited liability company, JWCongdonA,
LLC, a Delaware limited liability
company, KCVanstoryA, LLC, a Delaware limited liability company, ALCongdonA, LLC, a Delaware limited
liability company, SCTerryA, LLC,
a Delaware limited liability company, JRCongdonA,
Jr., LLC, a Delaware
limited liability company, Spence Henry Town
Center, LLC, a Delaware
limited liability company, and Jay Henry Town Center, LLC, a Delaware
limited liability company (collectively “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 Purchase and Sale of Shopping Center dated July 29, 2004,
as amended (the “Agreement”), for the sale and purchase of the property commonly known as Henry
Town Center located in McDonough, Georgia, 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.               If on or prior to December 1, 2004: (i)
Lender does not approve the assumption of the Loan by Buyer in the manner
described in Section 10(e) of the Agreement; and/or (ii) Buyer does not agree
upon the terms of the Loan assumption in the manner described in Section 10(e) of
the Agreement (collectively, the “Financing Approval Contingency”), then Buyer
may terminate this Agreement provided that written notice thereof is received
by Seller on or prior to 10:00 P.M., Chicago time December 1, 2004, Seller or
its affiliates must be released from any
ongoing liabilities under the Loan or any related guaranty agreements.


 


2.               Section 2(a) of the Agreement (Closing)
is hereby amended and restated
as follows: “The closing of the transaction contemplated by this Agreement (the
“Closing”) shall occur via mail at the Chicago,


 





















 


Illinois
office of the Title Company (as hereinafter defined), on December 23, 2004.”


 


3.               This Seventh 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 Seventh Amendment. Each person
executing this Seventh 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 Seventh Amendment. Any counterpart to this Seventh Amendment may be
executed by facsimile copy and shall be binding on the parties. Defined terms
utilized in the Seventh Amendment shall have the meaning ascribed to them by
the Agreement.


 


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


 


PLEASE SEE FOLLOWING PAGE FOR SIGNATURES


 


2





















 


	
   

  	
  Seller:

  
	
   

  	
   

  
	
   

  	
  HENRY TOWN CENTER, LLC,

  
	
   

  	
  ALPHA SEVEN, LLC,

  
	
   

  	
  ELLISTON HENRY TOWN CENTER,
  LLC,

  
	
   

  	
  OWEN
  HENRY TOWN CENTER, LLC,

  
	
   

  	
  DSCONGDONA, LLC, JWCONGDONA LLC,

  
	
   

  	
  KCVANSTORYA, LLC, ALCONGDONA,
  LLC,

  
	
   

  	
  SCTERRYA, LLC, JRCONGDONA, JR., LLC,

  
	
   

  	
  SPENCE HENRY TOWN CENTER, LLC,

  
	
   

  	
  JAY HENRY TOWN CENTER, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven D. Bell

  	
   

  
	
   

  	
  Name: Steven D. Bell

  
	
   

  	
   

  
	
   

  	
  Title: Authorized Signatory for
  all Co-Tenant Sellers

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchaser:

  
	
   

  	
   

  
	
   

  	
  INLAND
  REAL ESTATE ACQUSITIONS,

  INC., an Illinois corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jason A. Lazarus

  	
   

  
	
   

  	
  Name:

  	
  Jason A. Lazarus

  	
   

  
	
   

  	
  Title:

  	
  V.P.

  	
   

  
							



 


3





















 


Henry Town Center


McDonough, Georgia


Sixth Amendment to Agreement


 


SIXTH AMENDMENT TO AGREEMENT


 


THIS SIXTH AMENDMENT TO AGREEMENT (the “Sixth Amendment”) is made and
entered into as of the 27th day of September 2004, by and between Henry Town Center, LLC, a Georgia limited liability
company, Alpha Seven, LLC, a Delaware limited liability
company, Elliston Henry Town Center, LLC, a Delaware limited liability company, Owen Henry Town Center, LLC, a Delaware limited liability
company, DSCongdonA, LLC, a Delaware limited
liability company, JWCongdonA, LLC,
a Delaware limited liability company, KCVanstoryA, LLC,
a Delaware limited liability company, ALCongdonA, LLC, a
Delaware limited liability company, SCTerryA, LLC,
a Delaware limited liability company, JRCongdonA, Jr., LLC,
a Delaware limited liability company, Spence Henry Town Center,
LLC, a Delaware limited liability company, and Jay Henry
Town Center, LLC, a Delaware limited liability company (collectively
“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
Purchase and Sale of Shopping Center dated July 29, 2004, as amended (the “Agreement”),
for the sale and purchase of the property commonly known as Henry Town
Center Located in McDonough, Georgia, 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.               Section 10(e)(ii)
of the Agreement is hereby
amended by deleting the following described language therefrom “...(as
determined by Buyer during the Due Diligence Period)...”


 


2.               If on or prior to
November 29, 2004: (i) Lender does not approve the assumption of the Loan by
Buyer in the manner described in Section 10(e) of the Agreement: and/or (ii)
Buyer does not agree upon the terms of the Loan assumption in the manner
described in Section 10(e) of the
Agreement (collectively, the “Financing Approval Contingency”), then Buyer may
terminate this Agreement provided that written notice therof is received by
Seller on or prior to 10:00 P.M., Chicago time November 29, 2004.  Seller or its affiliates must be released
from any ongoing liabilities under the Loan or any related guaranty agreements.


 





















 


3.               Section 2(a) of the
Agreement (Closing) is hereby amended and restated as follows: “The
closing of the transaction contemplated by this Agreement (the “Closing”) shall occur via mail at the Chicago,
Illinois office of the Title Company (as hereinafter defined), on December 21,
2004.”


 


4.               The introductory
paragraph of Agreement Section 3. Consideration. Is hereby amended and
restated as follows: “The consideration to be paid to Seller by Buyer for the purchase of the Property (the “Purchase
Price”) shall be the sum of Sixty-one Million Three Hundred Ninety-six Thousand
Six Hundred Ninety-five and no/100 Dollars ($61,396,695.00). The Purchase Price
shall be satisfied as follows:”


 


5.               This Sixth
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
Sixth Amendment. Each person executing this Sixth 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 Sixth
Amendment. Any counterpart to this Sixth Amendment may be executed by facsimile
copy and shall be binding on the parties. Defined terms utilized in the Sixth
Amendment shall have the meaning ascribed to them by the Agreement.


 


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


 


PLEASE SEE FOLLOWING PAGE FOR
SIGNATURES


 


2





















 


	
   

  	
  Seller:

  
	
   

  	
   

  
	
   

  	
  HENRY TOWN CENTER, LLC,

  
	
   

  	
  ALPHA SEVEN, LLC,

  
	
   

  	
  ELLISTON HENRY TOWN CENTER,
  LLC,

  
	
   

  	
  OWEN
  HENRY TOWN CENTER, LLC,

  
	
   

  	
  DSCONGDONA, LLC, JWCONGDONA
  LLC,

  
	
   

  	
  KCVANSTORYA, LLC, ALCONGDONA,
  LLC,

  
	
   

  	
  SCTERRYA, LLC, JRCONGDONA, JR., LLC,

  
	
   

  	
  SPENCE HENRY TOWN CENTER, LLC,

  
	
   

  	
  JAY HENRY TOWN CENTER, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven D. Bell

  	
   

  
	
   

  	
  Name: Steven D. Bell

  
	
   

  	
   

  
	
   

  	
  Title: Authorized Signatory for
  all Co-Tenant Sellers

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchaser:

  
	
   

  	
   

  
	
   

  	
  INLAND REAL ESTATE ACQUSITIONS,

  INC., an Illinois corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jason A. Lazarus, Authorized Agent

  	
   

  
	
   

  	
  Name:

  	
  Jason A. Lazarus

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
							



 


3





















 


Henry Town Center


McDonough, Georgia


Fifth Amendment to Agreement


 


FIFTH AMENDMENT TO AGREEMENT


 


THIS FIFTH AMENDMENT TO AGREEMENT (the “Fifth
Amendment”) is made and entered into as of the 27th day of September
2004, by and between Henry Town Center, LLC, a
Georgia limited liability company, Alpha Seven, LLC, a Delaware limited liability company, Elliston Henry Town Center, LLC, a Delaware
limited liability company, Owen Henry Town
Center, LLC, a Delaware
limited liability company, DSCongdonA, LLC, a
Delaware limited liability company, JWCongdonA,
LLC, a Delaware limited liability company, KCVanstoryA, LLC, a Delaware limited liability
company, ALCongdonA, LLC, a
Delaware limited liability company, SCTerryA,
LLC, a Delaware limited liability company, JRCongdonA, Jr., LLC, a Delaware limited
liability company, Spence Henry Town Center,
LLC, a Delaware limited liability company, and Jay Henry Town Center, LLC, a Delaware
limited liability company (collectively “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 Purchase and Sale of Shopping Center dated July 29, 2004,
as amended (the “Agreement”), for the sale and purchase of the property
commonly known as Henry Town Center located in McDonough, Georgia, 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.               If Buyer is not satisfied for any reason, or
for no reason, in any respect, in the judgment of Buyer, with the results of
its inspections described immediately
below, then Buyer may terminate this Agreement provided that written notice
thereof is received by Seller on or prior to 10:00 P.M., Chicago time on or
before September 29, 2004: (a) approval (in the manner described by Section
10(e) of the Agreement) by Buyer of Loan and assumption documents to be entered
into by and among Buyer, Seller and Lender, and (b) reconciliation and approval
by Buyer of Property operating income and expenses.


 


2.               This Fifth 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 Fifth Amendment. Each person
executing this Fifth 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 Fifth Amendment. Any counterpart to this Fifth Amendment may be executed
by facsimile copy and shall be binding on the parties. Defined terms utilized
in the Fifth Amendment shall have the meaning ascribed to them by the Agreement.


 


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


 


	
   

  	
  Seller:

  
	
   

  	
   

  
	
   

  	
  HENRY TOWN CENTER, LLC,

  
	
   

  	
  ALPHA SEVEN, LLC,

  
	
   

  	
  ELLISTON HENRY TOWN CENTER,
  LLC,

  
	
   

  	
  OWEN HENRY TOWN CENTER, LLC,

  
	
   

  	
  DSCONGDONA,
  LLC, JWCONGDONA, LLC,

  
	
   

  	
  KCVANSTORYA,
  LLC, ALCONGDONA, LLC,

  
	
   

  	
  SCTERRYA,
  LLC, JRCONGDONA, JR., LLC,

  
	
   

  	
  SPENCE HENRY TOWN CENTER, LLC,

  
	
   

  	
  JAY HENRY TOWN CENTER, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven D. Bell

  	
   

  
	
   

  	
  Name: Steven D. Bell

  
	
   

  	
   

  
	
   

  	
  Title: Authorized Signatory for all Co-Tenant Sellers

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchaser:

  
	
   

  	
   

  
	
   

  	
  INLAND
  REAL ESTATE ACQUSITIONS, INC., an Illinois corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jason A. Lazarus, Authorized Agent

  	
   

  
	
   

  	
  Name:

  	
  Jason A. Lazarus

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
							



 


2





















 


Henry
Town Center


McDonough,
Georgia


Fourth
Amendment to Agreement


 


FOURTH AMENDMENT TO AGREEMENT


 


THIS FOURTH AMENDMENT TO AGREEMENT (the “Fourth
Amendment”) is made and entered into as of the 24th day of September
2004, by and between Henry Town Center, LLC, a
Georgia limited liability company, Alpha
Seven, LLC, a Delaware limited liability company, Elliston Henry Town Center, LLC, a Delaware
limited liability company, Owen Henry Town
Center, LLC, a Delaware limited liability company, DSCongdonA, LLC, a Delaware limited
liability company, JWCongdonA, LLC, a
Delaware limited liability company, KCVanstoryA,
LLC, a Delaware limited liability company, ALCongdonA, LLC, a Delaware limited
liability company, SCTerryA, LLC, a
Delaware limited liability company, JRCongdonA,
Jr., LLC, a Delaware limited liability company, Spence Henry Town Center, LLC, a Delaware limited liability company, and Jay Henry Town Center, LLC, a Delaware
limited liability company (collectively “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 Purchase and Sale of Shopping Center dated July 29, 2004,
as amended (the “Agreement”), for the sale and purchase of the property
commonly known as Henry Town Center located in McDonough, Georgia, 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.               If Buyer is not satisfied for any reason, or for no reason, in any
respect, in the judgment of Buyer, with the results of its inspections
described immediately below, then Buyer may terminate this Agreement provided
that written notice thereof is received by Seller on or prior to 10:00 P.M.,
Chicago time on or before September 27, 2004; (a) approval (in the manner
described by Section 10(e) of the Agreement) by Buyer of Loan and assumption
documents to be entered into by and among Buyer, Seller and Lender; and (b)
reconciliation and approval by Buyer of Property operating income and expenses.


 


2.               This Fourth 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 Fourth Amendment. Each person executing
this Fourth 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 Fourth Amendment. Any counterpart to this Fourth Amendment may be
executed by facsimile copy and shall be binding on the parties. Defined terms
utilized in the Fourth Amendment shall have the meaning ascribed to them by the
Agreement.


 


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


 


 


	
   

  	
  Seller:

  
	
   

  	
   

  
	
   

  	
  HENRY TOWN CENTER, LLC,

  
	
   

  	
  ALPHA SEVEN, LLC,

  
	
   

  	
  ELLISTON HENRY TOWN CENTER,
  LLC,

  
	
   

  	
  OWEN HENRY TOWN CENTER, LLC,

  
	
   

  	
  DSCONGDONA,
  LLC, JWCONGDONA, LLC,

  
	
   

  	
  KCVANSTORYA,
  LLC, ALCONGDONA, LLC,

  
	
   

  	
  SCTERRYA,
  LLC, JRCONGDONA, JR., LLC,

  
	
   

  	
  SPENCE HENRY TOWN CENTER, LLC,

  
	
   

  	
  JAY HENRY TOWN CENTER, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven D. Bell

  	
   

  
	
   

  	
  Name: Steven D. Bell

  
	
   

  	
   

  
	
   

  	
  Title: Authorized Signatory for all Co-Tenant Sellers

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchaser:

  
	
   

  	
   

  
	
   

  	
  INLAND
  REAL ESTATE ACQUSITIONS, INC., an Illinois corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jason A. Lazarus, Authorized Agent

  	
   

  
	
   

  	
  Name:

  	
  Jason A. Lazarus

  	
   

  
	
   

  	
  Title:

  	
  Acqusitions Officer

  	
   

  
							



 


2





















 


Henry Town Center


McDonough, Georgia


Third Amendment to Agreement


 


THIRD AMENDMENT TO
AGREEMENT


 


THIS THIRD AMENDMENT TO AGREEMENT (the “Third
Amendment”) is made and entered into as
of the 17th day of September 2004, by and between Henry Town Center, LLC, a Georgia limited liability company, Alpha Seven, LLC, a
Delaware limited liability company, Elliston Henry Town Center, LLC, a
Delaware limited liability company, Owen
Henry Town Center, LLC, a Delaware limited liability company, DSCongdonA, LLC, a Delaware limited
liability company, JWCongdonA, LLC, a
Delaware limited liability company, KCVanstoryA,
LLC, a Delaware limited liability company, ALCongdonA, LLC, a Delaware limited
liability company, SCTerryA, LLC, a
Delaware limited liability company, JRCongdonA,
Jr., LLC, a Delaware limited liability company, Spence Henry Town Center, LLC, a Delaware limited
liability company, and Jay Henry Town Center,
LLC, a Delaware
limited liability company (collectively “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 Purchase and Sale of Shopping Center dated July 29, 2004,
as amended (the “Agreement”), for the sale and purchase of the property
commonly known as Henry Town Center located in McDonough, Georgia, 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.               If Buyer is not satisfied for any reason, or for no reason, in any respect,
in the judgment of Buyer, with the results of its inspections described immediately
below, then Buyer may terminate
this Agreement provided that written notice thereof is received by Seller on or
prior to 10:00 P.M., Chicago time on or before September 24, 2004: (a) approval
(in the manner described by Section 10(e) of the Agreement) by Buyer of Loan
and assumption documents to be entered into by and among Buyer, Seller and
Lender; and (b) reconciliation and approval by Buyer of Property operating income
and expenses.


 


2.               This Third 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 Third Amendment. Each person
executing this Third 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 Third Amendment. Any counterpart to this Third Amendment may be executed
by facsimile copy and shall be binding on the parties. Defined terms utilized
in the Third Amendment shall have the meaning ascribed to them by the
Agreement.


 


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


 


 


	
   

  	
  Seller:

  
	
   

  	
   

  
	
   

  	
  HENRY TOWN CENTER, LLC,

  
	
   

  	
  ALPHA SEVEN, LLC,

  
	
   

  	
  ELLISTON HENRY TOWN CENTER,
  LLC,

  
	
   

  	
  OWEN HENRY TOWN CENTER, LLC,

  
	
   

  	
  DSCONGDONA,
  LLC, JWCONGDONA, LLC,

  
	
   

  	
  KCVANSTORYA,
  LLC, ALCONGDONA, LLC,

  
	
   

  	
  SCTERRYA,
  LLC, JRCONGDONA, JR., LLC,

  
	
   

  	
  SPENCE HENRY TOWN CENTER, LLC,

  
	
   

  	
  JAY HENRY TOWN CENTER, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven D. Bell

  	
   

  
	
   

  	
  Name: Steven D. Bell

  
	
   

  	
   

  
	
   

  	
  Title: Authorized Signatory for all Co-Tenant Sellers

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchaser:

  
	
   

  	
   

  
	
   

  	
  INLAND
  REAL ESTATE ACQUSITIONS, INC., an Illinois corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
  Name:

  	
  [ILLEGIBLE]

  	
   

  
	
   

  	
  Title:

  	
  [ILLEGIBLE]

  	
   

  
						



 


2





















 


Henry Town Center


McDonough, Georgia


Second Amendment to Agreement


 


SECOND
AMENDMENT TO AGREEMENT


 


THIS SECOND AMENDMENT TO AGREEMENT (the “Second
Amendment”) is made and entered into as of the 15th day of September 2004, by and between Henry Town Center, LLC, a Georgia limited liability company,
Alpha Seven, LLC, a Delaware limited
liability company, Elliston Henry Town
Center, LLC, a Delaware limited liability company, Owen Henry Town Center, LLC, a Delaware limited liability
company, DSCongdonA, LLC, a Delaware limited
liability company, JWCongdonA, LLC,
a Delaware limited liability company, KCVanstoryA, LLC,
a Delaware limited liability company, ALCongdonA, LLC,
a Delaware limited liability company, SCTerryA, LLC,
a Delaware limited liability company, JRCongdonA, Jr., LLC,
a Delaware limited liability company, Spence Henry Town Center,
LLC, a Delaware limited liability company, and Jay Henry
Town Center, LLC, a Delaware limited liability company (collectively
“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 Purchase and Sale of Shopping Center dated July 29, 2004,
as amended (the “Agreement”), for the sole and purchase of the property
commonly known as Henry Town Center located in McDonough, Georgia, 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.               If Buyer is not satisfied for any reason, or
for no reason, in any respect, in the judgment of Buyer, with the results of
its inspections described immediately below, then Buyer may terminate this
Agreement provided that written notice thereof is received by Seller on or prior
to 10:00 P.M., Chicago time on or before September 17, 2004: (a) approval (in
the manner described by Section 10(e) of the Agreement) by Buyer of Loan and
assumption documents to be entered into by and among Buyer, Seller and Lender;
and (b) reconciliation and approval by Buyer of Property operating income and
expenses.


 


2.               This Second Amendment may be executed in one
or more counterparts, each of which shall constitute an original and all of which
taken together shall constitute one Second Amendment. Each person executing
this Second Amendment represents that such person


 





















 


has
full authority and legal power to do so and bind the party on whose behalf he
or she has executed this Second
Amendment. Any counterpart to this Second Amendment may be executed by
facsimile copy and shall be binding on the parties. Defined terms utilized in
the Second Amendment shall have the meaning ascribed to them by the Agreement.


 


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


 


 


	
   

  	
  Seller:

  
	
   

  	
   

  
	
   

  	
  HENRY TOWN CENTER, LLC,

  
	
   

  	
  ALPHA SEVEN, LLC,

  
	
   

  	
  ELLISTON HENRY TOWN CENTER,
  LLC,

  
	
   

  	
  OWEN HENRY TOWN CENTER, LLC,

  
	
   

  	
  DSCONGDONA,
  LLC, JWCONGDONA, LLC,

  
	
   

  	
  KCVANSTORYA,
  LLC, ALCONGDONA, LLC,

  
	
   

  	
  SCTERRYA,
  LLC, JRCONGDONA, JR., LLC,

  
	
   

  	
  SPENCE HENRY TOWN CENTER, LLC,

  
	
   

  	
  JAY HENRY TOWN CENTER, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven D. Bell

  	
   

  
	
   

  	
  Name: Steven D. Bell

  
	
   

  	
   

  
	
   

  	
  Title: Authorized Signatory for all Co-Tenant Sellers

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchaser:

  
	
   

  	
   

  
	
   

  	
  INLAND
  REAL ESTATE ACQUSITIONS, INC., an Illinois corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jason A. Lazarus, Authorized Agent

  	
   

  
	
   

  	
  Name:

  	
  Jason A. Lazarus

  	
   

  
	
   

  	
  Title:

  	
  Acquisition Officer

  	
   

  
							



 


2





















 


Henry Town Center


McDonough, Georgia


Amendment to Agreement


 


AMENDMENT TO AGREEMENT


 


THIS AMENDMENT TO AGREEMENT (the “Amendment”)
is made and entered into as of the 1st of September 2004, by and between Henry Town Center, LLC, a Georgia limited liability company, Alpha Seven, LLC, a Delaware limited liability company, Elliston Henry Town Center, LLC, a
Delaware limited liability company, Owen
Henry Town Center, LLC, a Delaware limited liability company, DSCongdonA, LLC, a Delaware limited
liability company, JWCongdonA, LLC, a
Delaware limited liability company, KCVanstoryA,
LLC, a Delaware limited liability company, ALCongdonA, LLC, a Delaware limited liability company, SCTerryA,
LLC, a Delaware limited liability company, JRCongdonA, Jr., LLC, a Delaware limited
limited liability company, Spence Henry Town
Center, LLC, a Delaware
limited liability company, and Jay Henry Town
Center, LLC, a Delaware
limited liability company (collectively “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 Purchase and Sale of Shopping Center dated July 29, 2004,
as amended (the “Agreement”) for the sale and purchase of the property commonly
known as Henry Town Center located in McDonough, Georgia, 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.               Subject to the terms of Paragraph 2, hereof, “Buyer’s
Rights to Terminate this Agreement,” as defined in Section 7 of the Agreement
is hereby amended by deleting the date of “September 1, 2004” in the 5th line of Section 7 (a) thereof, and inserting
the date “September 8, 2004,”
for the purpose of Buyer’s approval of the following: (a) receipt of a
satisfactory zoning letter from the local municipality; and (b) review and
approval of the Preliminary Commitment, exception documents, and the Survey,
all in accordance with the terms of the Agreement.


 


2.               If Buyer is not satisfied for any reason, or for no reason, in any
respect in the judgment of Buyer, with the results of its inspections described
immediately below, then Buyer may terminate this Agreement provided that
written notice thereof is received by Seller on or prior to 10:00 P.M., Chicago time on or before
September 15, 2004: (a) approval (in the manner described by Section 10(e) of
the Agreement) by Buyer of Loan and assumption documents to be entered into by
and among Buyer, Seller and Lender; and (b) reconciliation and approval by
Buyer of Property operating income and expenses; and (c)


 





















 


documentation
of existing roof warranty information and assignment of roof Buyer; and (d)
evidence of property insurance for Belk.


 


3.               Section 2(a) of the Agreement is hereby amended and restated as follows: “The
closing of the transaction contemplated by this Agreement (the “Closing”) shall
occur via mail at the Chicago, Illinois office of the Title Company (as
hereinafter defined), on December 21, 2004.”


 


4.               The fourth (4th) sentence of
Section 18(m) of the Agreement is hereby deleted in its entirety.


 


5.               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.
Defined terms utilized in the Amendment shall have the meaning ascribed to them
by the Agreement.


 


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


 


	
   

  	
  Seller:

  
	
   

  	
   

  
	
   

  	
  HENRY TOWN CENTER, LLC,

  
	
   

  	
  ALPHA SEVEN, LLC,

  
	
   

  	
  ELLISTON HENRY TOWN CENTER,
  LLC,

  
	
   

  	
  OWEN HENRY TOWN CENTER, LLC,

  
	
   

  	
  DSCONGDONA,
  LLC, JWCONGDONA, LLC,

  
	
   

  	
  KCVANSTORYA,
  LLC, ALCONGDONA, LLC,

  
	
   

  	
  SCTERRYA,
  LLC, JRCONGDONA, JR., LLC,

  
	
   

  	
  SPENCE HENRY TOWN CENTER, LLC,

  
	
   

  	
  JAY HENRY TOWN CENTER, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven D. Bell

  	
   

  
	
   

  	
  Name: Steven D. Bell

  
	
   

  	
  Title: Authorized
  Signatory for all Co-Tenant Sellers

  



 


2





















 


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


 


 


	
   

  	
  Seller:

  
	
   

  	
   

  
	
   

  	
  HENRY
  TOWN CENTER, LLC, a Georgia limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchaser:

  
	
   

  	
   

  
	
   

  	
  INLAND REAL
  ESTATE ACQUSITIONS, INC., an Illinois corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jason A. Lazarus, Authorized Agent

  	
   

  
	
   

  	
  Name:

  	
  Jason A. Lazarus

  	
   

  
	
   

  	
  Title:

  	
  Acquisition Officer

  	
   

  
								



 


2





















 


Henry Town Center


McDonough, Georgia


Amendment to Agreement


 


AMENDMENT TO AGREEMENT


 


THIS AMENDMENT TO AGREEMENT (the “Amendment”)
is made and entered into as of the 31st day of August 2004, by and between HENRY TOWN CENTER, LLC, a Georgia limited
liability company (“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 Purchase and Sale of Shopping Center dated July 29, 2004, the (“Agreement”), for the sale
and purchase of property commonly known as Henry Town Center located in
McDonough, Georgia, 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 as follows:


 


1.               The “Buyer’s
Rights to Terminate this Agreement,” as defined in Section 7 of the Agreement
is hereby amended by deleting the date of “August 31, 2004” in the 5th line of Section 7(a) thereof, and inserting
the date of “September 1, 2004,”


 


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. Defined terms utilized in the Amendment shall have the
meaning ascribed to them by the Agreement.


 


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


 


	
  Seller:

  	
   

  	
  Purchaser:

  
	
   

  	
   

  	
   

  
	
  HENRY
  TOWN CENTER LLC, a Georgia
  limited liability company

  	
   

  	
  INLAND
  REAL ESTATE ACQUISITIONS, INC., an Illinois corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Edward M. Harrington

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
										



 





















 


Henry Town Center


McDonough, Georgia


 


AGREEMENT
OF PURCHASE AND SALE OF SHOPPING CENTER


(Henry Town Center, McDonough, Georgia)


 


This
Agreement of Purchase and Sale of Real Property (the “Agreement”) is dated as
of the 29th day of July, 2004 (the “Effective Date”) and is entered into by the
following parties:


 


SELLER :              Described
upon Schedule A, attached hereto and made a part hereof


 


BUYER :                Inland Real Estate Acquisitions,
Inc. an Illinois corporation, or its nominee


 


1.             The
Property.


 


The property to be purchased by Buyer shall
consist of the following: (a) that certain real property legally described on
Exhibit A attached hereto, consisting of approximately 62.52 acres of land, and
444,295 square feet of net rentable square feet, and located on the northwest
corner of US Interstate Highway I-75 and Jonesboro Road, McDonough, Georgia and
commonly known as Henry Town Center Shopping Center (the “Property”), (b) all
of the right, title and interest of Seller in, to and under all Leases (as
defined in subsection 5(a) below) of the Property, (c) all improvements located
upon the Property, (d) all personal property, if any, owned by Seller and used
in connection with the Property, (e) all shrubs, trees, plants and other
landscaping located upon the Property, (f) all easements, rights of way, and
other rights appurtenant to the Property, and (g) all of the right, title and
interest of Seller in and to the name Henry Town Center Shopping Center.


 


Seller has financed the Property with a
permanent loan in the original principal amount of $36,000,000.00, and a
current principal balance of approximately $36,000,000.00 as of July 15, 2004
(the “Loan”) from Wachovia Bank (“Lender”), The Loan is evidenced by a
Promissory Note dated January 8, 2003 (the “Note”) payable to the order of
Lender. The Note is secured by (a) a Deed to Secure Debt (the “Mortgage”), (b)
an Assignment of Leases and Rents (the “Assignment”), (c) a Environmental
Indemnity (the “Indemnity”), (d) an Indemnity and Guaranty Agreement (the “Guaranty”)
from Steven D. Bell & Co. (“SDB”), and (e) UCC Financing Statements (the “UCC-1’s”),
all dated January 8, 2003 in favor of Lender. The Note, Mortgage, Assignment,
Indemnity, Guaranty, and UCC- 1’s are collectively referenced herein as the “Loan
Documents”.


 


2.             Closing; Escrow.


 


(a)  The
closing of the transaction contemplated by this Agreement (the “Closing”) shall
occur via mail at the Chicago, Illinois office of the Title Company (as
hereinafter defined), on October 14, 2004 (subject to Seller’s right to delay
Closing as hereinafter provided in Section 18(m), hereof).


 


(b)  The
Closing shall occur in accordance with the general provisions of the usual form
of deed and money escrow agreement then in use by the Title Company with such
special provisions inserted in the escrow agreement as may be required to
conform with this Agreement. Upon the creation of such escrow, anything herein
to the contrary notwithstanding, payment of the Purchase Price (as hereinafter
defined) and delivery of the deed shall be made through the escrow and the
Earnest Money (as hereinafter defined) shall be deposited into the escrow.
Counsel for the respective parties are hereby authorized to execute the escrow
trust instructions, as well as amendments thereto. Each of Seller and Buyer
agrees to comply with the requirements of the Title Company relative to closing
the transaction contemplated by this Agreement as a so-called “NY Style”
closing. The cost of the escrow, and all “NY Style” closing fees, shall be
divided equally between Seller and Buyer.


 


1





















 


3.             Consideration.


 


The consideration to be paid to Seller by
Buyer for the purchase of the Property (the “Purchase Price”) shall be the sum
of Sixty-two Million Three Hundred Sixty Thousand and no/100 Dollars
($62,360,000.00). The Purchase Price shall be satisfied as follows:


 


(a)  Buyer
shall deposit with Chicago Title and Trust Company, 171 North Clark Street, Chicago,
Illinois Attention: Nancy Castro, Assistant Vice President (the “Earnest Money
Escrowee”), an earnest money check in the amount of One Million and no/100
Dollars ($1,000,000.00) (the “Earnest Money”) within 2-business days of the
full execution of this Agreement, for the mutual benefit of the parties.  The disposition of the Earnest Money shall be
governed by the terms of this Agreement from and after the date hereof. In the
event the Earnest Money Escrowee receives Buyer’s written notice that Buyer has
elected to terminate this Agreement in accordance with the terms of the
Agreement, the Earnest Money and any interest earned thereon shall be returned
to Buyer. The Earnest Money, at Buyer’s option, shall be held by the Earnest
Money Escrowee in an interest bearing account (any interest shall be paid to
Buyer). At Buyer’s option, the Earnest Money shall either, be applied to the
Purchase Price and paid to Seller in cash at Closing; or the full amount of the
Purchase Price (after adjustments and credits) shall be funded by Buyer and the
Earnest Money shall be released to Buyer.


 


(b)  At
Closing, a cash payment in the amount of the purchase Price plus or minus
prorations, credits and adjustments as provided in Section 8 and elsewhere in
this Agreement, and also upon assumption of the Loan Documents, and the
obligations of Seller thereunder, by Buyer at Closing, the balance due under
the Note (the outstanding principal balance under the Note as of the date of
Closing, plus accrued and unpaid interest under the Note through the date of
Closing pursuant to the proration of interest under Sections 8(e) and 10(e),
below) shall be credited against the Purchase Price, by wire transfer or other
immediately available United States funds.


 


4.             Inspection
Rights.


 


From and after the date hereof through the
expiration of the Due Diligence Period (as hereinafter defined), Buyer may
cause one or more surveyors, engineers, architects, auditors, appraisers and/or
other experts of its choice to inspect any documents related to the Property
and to inspect, examine, survey, obtain engineering inspections on, obtain
Phase I environmental reports for, appraise, audit and otherwise perform such
non-invasive investigation activities which, in the opinion of Buyer, are necessary to determine the condition of
the Property and to determine the suitability of the Property for the uses and
investment intended by Buyer; except that, notwithstanding the foregoing, in
conducting such activities, Buyer shall not unreasonably interfere with the business
of Seller or the business of Seller’s tenants. Buyer shall defend, indemnify
and hold harmless Seller from and against any and all liability, loss, cost,
expense and damage (including, without limitation, reasonable attorneys’ fees)
suffered or incurred by Seller and caused by Buyer or its representatives or
any of their respective employees or agents in connection with such activities,
and, without limitation of the foregoing, Buyer shall repair any damage to the
Property caused by any such activities. Buyer shall provide Seller with an
insurance certificate prior to its entry onto the Property for the purposes
described by this Section 4. Seller agrees to make its books and records
relating to the Property available for inspection and audit by Buyer or its
agents and Seller further agrees to make such representations as may be
required by Buyer’s auditors in order for such auditors to issue a certified
audit, at Buyer’s sole cost and expense, of the Property’s operations. Buyer
may review and make copies of any of Seller’s files, books and records relating
to the Property. Buyer agrees that all confidential information received from
Seller and relating to the Property shall be held in confidence (except as
disclosure may be required by law) whether or not this Agreement is terminated
for any reason.


 


5.             Seller’s
Required Pre-Closing Deliveries


 


Within five (5) days of the Effective Date
Seller shall deliver to Buyer (or make available to Buyer at the


 


2





















 


Property) the following (which, along with the
Preliminary Commitment referred to in subsection 6(a) hereof and the Survey (as
hereinafter defined), are referred to herein as “Pre-Closing Deliveries”):


 


(a)  copy of the leases described
upon the Rent Roll attached hereto as Exhibit E, and made a part hereof (respectively,
the “Lease,” and collectively, the “Leases”) affecting the Property (and
subleases and license agreements in Seller’s possession) together with all
modifications and amendments thereof;


 


(b)  a certification from Seller
(pursuant to the terms of the Rent Roll) setting forth the name of each tenant at
the Property and the date of the Leases and any modifications or amendments
thereto, the amount of rent payable by each tenant throughout the term of its
respective 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 Leases, and the existence of any options
to renew or extend the term of the 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, plans and specs or any similar document
in Seller’s possession relating to the Property, or in the alternative, a
certification from Seller that no such reports, drawings, plans or
specifications are in Seller’s possession;


 


(g)  a certification from Seller
that there is no personal property located at the Property;


 


(h)  the most current survey of
the Property and a copy of the most current title commitment or owner’s title
insurance policy relative to the Property, if any, that are in Seller’s
possession or control;


 


(i)  copies of any insurance
policies or certificates insuring the Property, whether purchased by Seller or
by the tenants under the Leases;


 


(j)  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;


 


(k)  the materials described on
Buyer’s Due Diligence Checklist, attached hereto as Exhibit F, and made a part
hereof;


 


(l)  full and complete copies of
the Loan Documents; and


 


(m)  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
Effective Date hereof, and monthly operating statements for the Property for
each month of the year of the Effective Date. Such statements shall include
reasonable detail of all items of income and expense, as well as all items of
capital expenditures made during the relevant periods.


 


3





















 


6.             Title and Survey
Matters.


 


(a)  Preliminary Title Report;
Permitted Exceptions.


 


Buyer shall, at Seller’s expense (as hereinafter provided in Section 9,
hereof), as soon as practicable after the Effective Date of this Agreement,
furnish to Buyer and Seller a preliminary commitment for title insurance dated
not sooner than the Effective Date and applicable to the Property (the “Preliminary
Commitment”) issued by Chicago Title Insurance Company (the “Title Company”).
Such Preliminary Commitment shall show title to the Property being vested in
Seller, and subject only to “Permitted Exceptions.” The Title Company shall
also provide to Buyer copies of all plats and other documents constituting
title exceptions as disclosed in the Preliminary Commitment. In addition to the
Permitted Exceptions, the Preliminary Commitment may show other exceptions to
title; however, such other exceptions shall be removed by Seller at Seller’s
sole cost and expense prior to Closing. As used in this Agreement, the term “Permitted
Exceptions” shall mean and refer to:


 


(i) general real estate
taxes not due and payable;


 


(ii) the Leases and any
modifications or amendments of the Leases, and any subleases of which Seller
has provided notice of the existence to same to Buyer;


 


(iii) the Loan Documents;
and


 


(iv) any covenants,
conditions, restrictions, easements or other rights affecting title to the Property,
disclosed on the Preliminary Commitment and approved by Buyer within the last
to occur of: (A) Buyer’s receipt of the Survey, Preliminary Commitment and
copies of all documents of record, and (B) the expiration of the Due Diligence
Period.


 


Notwithstanding the foregoing, as used in this
Agreement, the “Permitted Exceptions” shall not include: (i) any claims against
title as may be apparent from the Survey (“Survey Defects”); or (ii) any
mortgage lien, mechanics’ lien or judgment lien against the Property. In the
event any such survey defect or mortgage lien, mechanics’ lien or judgment lien
appears on the Preliminary Commitment or the survey or otherwise arises with
respect to the Property on or prior to the Closing, Seller shall, at its
expense and on or prior to the Closing, cause such Survey Defect or mortgage
lien, mechanics’ lien or judgment lien to be removed from the Survey and/or
title insurance policy, as applicable, to be delivered to Buyer at the Closing,
either by correcting the condition causing such Survey Defect or satisfying
such lien out of the proceeds payable to Seller at the Closing or by causing
the Title Company to insure over such Survey Defect, mortgage lien, mechanics’
lien or judgment lien, as applicable. If Seller is unable to cure a Survey
Defect, Buyer shall have the right to either: (A) close the transaction
notwithstanding the Survey Defect, or (B) terminate this Agreement and
immediately receive a return of the Earnest Money.


 


(b)  Manner of Conveyance;
Identity of Grantee.


 


At Closing, Seller shall deliver to Buyer a Special Warranty Deed with
respect to the Property. On or prior to ten (10) days prior to the Closing
date, Buyer shall, subject to subsection 18(h) below, notify Seller in writing
of the identity of Buyer’s grantee for the Property.


 


(c)  Survey.


 


Seller shall, at Seller’s expense (as hereinafter provided) as soon as
practicable after the Effective Date, obtain an update to Seller’s existing
as-built survey of the Property, and containing a certification in the form
attached hereto as Exhibit H, and made a part hereof, and containing such Table
A Options as therein described (the “Survey”). In addition, the Survey shall
indicate whether or not the Property or any part thereof is located within a


 


4





















 


flood plain area, and the
surveyor shall prepare and deliver elevation certificates in favor of Buyer.
The Survey shall be certified to the Title Company, Buyer, Buyer’s lender, and
Buyer’s grantee, if applicable and if the name of which has been provided to
Seller.


 


(d)  Title
Insurance Policy.


 


As a condition precedent to Buyer’s
obligation to close the transactions contemplated hereby, at Closing, Buyer
shall be able to obtain, at the sole cost and expense of Seller (subject to the
terms of Section 9, hereof), an owner’s title insurance policy for the Property
in the most current ALTA form issued by the Title Company, in the amount of the
Purchase Price and showing title to the Property in Buyer’s designated nominee
(as identified pursuant to subsection 6(b) above), subject only to the
Permitted Exceptions, and with extended coverage over all standard, or general
exceptions (the “Title Policy”). The Title Policy shall also contain an
affirmative endorsement insuring that there are no violations of restrictive
covenants, if any, affecting the Property, and the endorsements described in
Section 9(a)(i), hereof.


 


7.             Buyer’s
Rights to Terminate this Agreement


 


(a)  If
Buyer is not satisfied for any reason, or for no reason, in any respect, in the
judgment of Buyer, with the results of its inspections described in Section 4,
above, or with the content of the Pre-Closing deliveries described in Section
5, hereof or with the Preliminary Commitment or Survey delivered pursuant to
Section 6, hereof, then Buyer may terminate this Agreement provided that
written notice thereof is received by Seller on or prior to 10:00 P.M., Chicago
time on or before August 31, 2004 (the “Due Diligence Period”).


 


(b)  Upon
termination of this Agreement pursuant to this Section 7; (i) the Earnest Money
(and all interest earned thereon, if any) shall immediately be returned to
Buyer by the Earnest Money Escrowee,
(ii) neither party shall have any further liability or obligation to the other
except for the Post-Termination Obligations, as hereinafter defined in
subsection 7(c), and (iii) Buyer, upon five-days prior written notice from
Seller, shall return to Seller any documents received from Seller, and shall
thereafter keep all confidential information received as a result of its inspection
in confidence.  Nothing contained in
Section 4, or this Section 7, regarding Buyer’s confidentiality obligations
shall prohibit or restrict Buyer from disclosing any confidential information
received by Buyer from Seller to lawyers, accountants, auditors or other
professionals utilized by Buyer as part of its due diligence investigations, or
any lender or due diligence officer or personnel of any broker-dealer for the
sale of securities or as may be required by law.


 


(c)  As
used in this Agreement, the “Post-Termination Obligations” shall mean and refer
to the indemnity and repair provisions of Section 4, the indemnity provisions
of Section 14 hereof, and Buyer’s confidentiality obligations described under
Section 4 and subsection 7(b), hereof. Such Post-Termination Obligations shall
survive any termination of this Agreement.


 


8.             Prorations
and Adjustments


 


The following items shall be prorated and
adjusted between Buyer and Seller at the Closing:


 


(a)  Security deposits described by the Leases
shall be credited to Buyer at Closing. Real estate property taxes and
assessments due and payable prior to the date of Closing shall be paid in full
on or prior to the Closing date. Real estate property taxes and assessments
accrued and assessed against the Property but not yet due and payable shall be
accounted for and prorated as of the date of Closing on the basis of the most
currently issued (at the time of Closing) real estate tax bills and the net
credit to Buyer shall be paid in cash or as a credit against the Purchase
Price; provided, however, real estate taxes attributable to tenants who either
reimburse annually or pay the taxing authority directly shall not be prorated
at Closing. The real estate taxes shall be reprorated within ninety (90)


 


5





















 


days of issuance of the actual tax bills. In addition, any deposits for
real estate taxes and assessments made by any tenant(s) shall be credited to
Buyer at Closing and shall be treated as a like-amount reduction in Buyer’s
real estate tax proration. If any general or special assessment (as contrasted
to ad valorem taxes) are payable in installments, Buyer shall receive a cash
credit at Closing for the gross amount due


 


(b)  Rent, percentage rent and
reimbursements for common area maintenance charges, insurance premiums and
other lease charges (other than real estate taxes and assessments, which shall
be accounted for and prorated as provided in subsection 8(a) above) shall be
accounted for and prorated as follows: except as otherwise provided in this
Agreement, Buyer shall be entitled to all rents, percentage rent, miscellaneous
income and reimbursements for common area maintenance charges, insurance
premiums and other lease charges (other than real estate taxes and assessments)
accruing on the date of and after the Closing, and Seller shall be entitled to
all such items, if any, accruing prior to the Closing.  At Closing, Seller shall credit Buyer in an
amount equal to the scheduled rent and reimbursements through the end of the
month in which Closing occurs and Seller shall retain such payments as received
from the tenants. Seller and Buyer further agree that percentage rent for each
tenant shall be prorated as of the Closing based upon the amount of percentage
rent, if any, that was payable by such tenant in the most recently completed
percentage rent year under its Lease as to which the final amount of percentage
rent, if any, that is owing has been determined (but with such adjustments, if
any, as Seller and Buyer mutually and reasonably agree are appropriate due to
any change in the manner of calculation of percentage rent that is owing from
such tenant with respect to any period as to which a proration is applicable).
Seller shall not receive any credit at Closing with respect to any unpaid
accrued rents, percentage rents and reimbursements for common area maintenance
charges, insurance premiums and other lease charges owing from tenants of the
Property as of the Closing date. Seller shall not retain any security deposits
or prepaid rent to offset any unpaid accrued rent or other unpaid amounts. With
respect to any such unpaid amounts, (x) Seller shall retain the right, at its
expense, to sue the applicable tenant for collection of any such unpaid amounts
and, to the extent the applicable lease permits, collection costs and interest
(and, in such regard, Buyer agrees to cooperate reasonably with any efforts by
Seller to collect the aforesaid unpaid amounts; provided, however, Seller shall
not be entitled to sue for possession), and provided further that Seller shall
reimburse Buyer for any cost or expense incurred by Buyer in connection with
such cooperation, and (y) if Buyer collects any such unpaid amounts, Buyer
shall promptly pay such amounts to Seller (and in such regard, if Buyer
receives any amount from a tenant of the Property as to which such tenant
specifically informs Buyer in writing to which lease obligation such payment is
to be applied, Buyer shall so apply such payment; if such tenant does not so
inform Buyer relative to how a particular payment is to be applied, Buyer shall
be entitled to apply such payment first, on account of past due amounts owed to
Buyer; second, on account of current amounts owed to Buyer; and third, on
account of past due amounts owed to Seller).


 


(c)  Expense prorations - Except
insofar as the same constitute expenses pro ratable under subsection 8(a) or 8(b)
above, utility charges and deposits, fuels and all other items of expense
customarily prorated on the transfer of properties similar to the Property
shall be prorated on an accrual basis as of the Closing date on the basis of
the most recent ascertainable bills or on other reliable information with
respect to each item of expense.  In the
alternative Seller will provide Buyer with a certification that no additional
proratable items exist with respect to the Property.


 


(d)  For purposes of calculating
prorations and adjustments, Buyer shall be deemed to be in title to the Property,
and therefore entitled to income therefrom and responsible for the expenses
thereof, for the entire day on which the Closing occurs provided that Seller
receives the funds due to Seller at Closing at or prior to 2:00 p.m., Atlanta,
Georgia time, on the Closing date, it being understood and agreed that, if the
funds are received after such time on the Closing date, Seller shall be deemed
in title to the Property as aforesaid for the entire day on which the Closing
occurs.  In the event of any
computational mistake or error, the parties shall make an appropriate adjustment(s)
in cash between them to correct such mistake or error promptly after the
discovery thereof. Otherwise, Buyer and Seller agree to adjust Closing
adjustments between the parties within 120-days after the applicable calendar
year-end period. Any amounts due shall be paid by the other party within
15-days after receipt of notice of the amount due together with supporting
documentation.


 


6





















 


(e)  The principal balance due
and owing under the Note as of the date of Closing, together with accrued and
unpaid interest under the Note to the date of Closing, shall be credited to
Buyer at Closing. At Closing, Seller shall be credited in an amount equal to
the real estate tax escrow held by Lender.


 


(f)  The obligations of Buyer and
Seller set forth in this Section 8 shall survive the Closing.


 


9.             Costs to Buyer
and Seller; Financing Costs.


 


(a)  Seller shall pay the
following:


 


(i)                                     the
costs of the Survey (to the maximum expense of $5,000.00);


 


(ii)                                  the
costs of: the title commitment, the copies of documents of record, the issuance
of the Title policy together with all Buyer required endorsements (to the
maximum expense of $50,000.00); and the cost of any title curative endorsements;


 


(iii)                               one-half of all escrow
fees and one-half of all “NY Style” closing fees;


 


(iv)                              all
State, County and local or municipal transfer taxes;


 


(v)                                 the
cost of recording releases of any mortgage or other liens, or of any other
instruments, that do not constitute Permitted Exceptions;


 


(vi)                              the
costs of Seller’s counsel; and


 


(vii)                           the costs of the Broker (as
hereinafter defined).


 


(b)  Buyer shall pay costs of
Buyer’s counsel, all recording or filing fees (other than recording fees for which
Seller is responsible as provided in subsection 9(a)(v) above), one-half of all
escrow fees, and one-half of all “NY Style” closing fees, all Loan assumption
fees payable to Lender, the costs of the Survey in excess of $5,000.00, and all
title charges (except charges related to title curative endorsements) in excess
of $50,000,00.


 


10.           Conditions
Precedent to Buyer’s Obligation.


 


Buyer’s obligation to perform under this Agreement is subject to and
contingent upon the following described matters. In the event such conditions
are not satisfied, Buyer may terminate this Agreement by written notice to
Seller prior to Closing, and upon any such termination the Earnest Money shall
immediately be returned to Buyer and this Agreement shall be null and void,
except for the provisions hereof that expressly survive the termination of this
Agreement.


 


(a)  Title Condition of the
Property.


 


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 subsection 6(d) hereof.


 


(b)  Completeness, Truth and
Accuracy.


 


The completeness, truth and accuracy in all material respects, of the
Rent Roll, and any certifications, schedules, covenants and statements prepared
and executed by Seller as part of the Pre-Closing Deliveries, the


 


7





















 


completeness in all material respects of the Leases delivered by Seller
as part of the Pre-Closing Deliveries, the completeness, truth and accuracy in
all material respects, as of Closing, of the representations of Seller
contained in Section 11 hereof, and the performance by Seller, to the extent
possible by the date of Closing, of the covenants contained in Section 11
hereof. It shall be a condition to Buyer’s obligation to close with respect to
the Property that, at the Closing, Seller shall deliver to Buyer a Certificate
that shall confirm 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.


 


(c)  Other Conditions.


 


The other conditions to Buyer’s obligation to close as set forth in
subsection 7(a), Section 15, Section 16, or elsewhere in this Agreement,
including the performance by Seller of all its obligations hereunder in all
material respects, being satisfied.


 


(d)  Estoppels.


 


The receipt by Buyer of the tenant and REA estoppel letters described
in Section 16(a), hereof.


 


(e)  Loan Assumption.


 


(i) that Seller shall not be in default under the Loan as of the date
of Closing, (ii) that the Lender allows assumption of the Loan by Buyer, on
such terms as are reasonably acceptable to Buyer (as determined by Buyer during
the Due Diligence Period), and (iii) that Buyer receives the estoppel
certificate, in form and substance reasonably acceptable to Buyer, described in
Section 12 (b)(ix), hereof. (Buyer shall determine its satisfaction of the
availability and form of the estoppel during the Due Diligence Period.) In the
event such conditions are not satisfied as of the date of Closing, Buyer may
terminate this Agreement by written notice to Seller prior to Closing, and upon
any such termination the Earnest Money shall immediately be returned to Buyer
and this Agreement shall be null and void. Interest accrued but unpaid (and not
yet due) under the Note as of Closing shall be prorated between Buyer and
Seller as of the date of Closing and thereafter paid by Buyer when due. Any
prepaid charges under the Note and Loan shall be pro rated to the date of
Closing, with Seller receiving a credit for the portion relating to the period
after the date of Closing and for the real estate tax escrow held by Lender in
connection with the Loan. Buyer and Seller agree to cause affiliates that may
have signed or may be required to sign guaranties or other Loan Documents, to
execute and deliver the documents required to effect assumption of the Loan by
Buyer. Notwithstanding any provision herein to the contrary, if, at any time,
Lender rejects Buyer as the transferee of the Loan or if Lender fails to
approve Buyer as transferee of the Loan on or before the date of Closing, or if
Buyer and Lender are not able to reasonably agree upon the form of Loan
assumption documents, either Buyer or Seller may elect to terminate this
Agreement by delivery of written notice to the other, and upon such termination
by Buyer or Seller, the Earnest Money and all interest, if any, earned thereon
shall then immediately be returned to Buyer and this Agreement shall be null
and void.


 


Buyer hereby agrees, from and after the date of Closing, that it shall
fully perform the obligations of Seller under the Loan Documents, and shall indemnify,
defend and hold harmless Seller from and against any and all claims, actions,
liabilities, liens, obligations, losses and costs (including without limitation
reasonable attorneys’ fees) arising and accruing in connection with the Loan
and the Loan Documents from and after the date of Closing, these obligations to
survive Closing under this Agreement and shall not be merged with delivery of
the Deed. Seller agrees to indemnify, defend and hold harmless Buyer (or its
nominee) from and against any and all claims, actions, liabilities, liens,
obligations, losses and costs (including without limitation reasonable
attorneys’ fees) arising and accruing in connection with the Loan and the Loan
Documents prior to the date of Closing, these obligations to survive Closing
under this Agreement and shall not be merged with delivery of the Deed. Buyer
also agrees to


 


8





















 


cooperate with Seller’s efforts to obtain the
release by Lender of any liability of Seller under the Loan Documents from and
after the date of Closing.


 


11.  Representations
and Covenants of Seller


 


Seller hereby makes the following
representations and covenants to Buyer with regard to the Property, all of
which representations and covenants shall be deemed remade as of Closing and
shall survive the Closing for a period of twelve (12) months:


 


(a)  As
of the date hereof, (i) Seller, to its knowledge, is not aware of and has
received no written building code violation notices with respect to the Property
(other than notices of violations which have been removed or corrected); and
(ii) Seller, to its knowledge, is not aware of and has received no written
notices of any action or governmental proceeding in eminent domain, or for a
zoning change, which would affect the Property; and (iii) Seller to its
knowledge, is not aware of any structural problems in the improvements
constructed upon the Property.


 


(b)  As
of the date hereof, there are no leases or rental agreements affecting the
Property other than the Leases delivered by Seller to Buyer pursuant to
subsection 5(a) above. The Leases do not grant any tenant a right to purchase
all or any part of the Property.  Between
the date hereof and the earlier of the Closing date or the termination of this
Agreement, Seller shall not amend, modify or terminate the Leases, or enter
into new leases, of space at the Property, other than in accordance with
subsection16(b) below.  As of the date
hereof, Seller is the holder of all of the landlord’s right, title and interest
in, to and under the Leases. To the best of Seller’s knowledge, Seller has not
received, nor is Seller aware of, any claim from any tenant under the Leases
alleging any type of uncured default by the landlord under the Leases or
demanding any work or payment from landlord.


 


(c)  Except
as may be disclosed in the Pre-Closing Deliveries, there are no persons
employed by Seller in connection with the operation of the Property, and except
as may be disclosed in the Pre-Closing Deliveries, there are no maintenance,
advertising, management, leasing, employment, or service contracts affecting
the Property that will be in effect at Closing unless expressly assumed in
writing by Buyer. Otherwise, Seller shall terminate any such employee and any
such contracts (not expressly assumed by Buyer) at or prior to Closing.


 


(d)  That
(i) Seller has the capacity and requisite authority to enter into and carry out
this Agreement and the transactions contemplated hereby and will provide
evidence thereof to Buyer at Closing; (ii) Seller owns fee simple title to the
Property subject to all matters of record; and (iii) no third party has any
right to purchase all or any part of Property.


 


(e)  Except
as otherwise expressly provided herein, Seller shall not further encumber the Property
or any of the improvements or personal property located thereon. Between the
date of this Agreement and the earlier of the Closing date or the termination
of this Agreement, Seller shall not voluntarily create any exception to title
to the Property other than in accordance with subsection 16(b) below.


 


(f)  To
the best of Seller’s knowledge, as of the date hereof, there is no suit, action
or arbitration, or legal or other proceeding or governmental investigation,
pending which materially and adversely affects the Property.


 


(g)  To
the best of Seller’s knowledge, as of the date hereof, there exists at the
Property no violation of any applicable federal, state or local law, statute,
ordinance, rule or regulation regulating the use, generation, storage, handling
or disposal of any hazardous wastes, toxic, hazardous or dangerous substances
or similar substances or materials defined as hazardous, toxic or
environmentally unsafe under any of the aforesaid laws, statutes, ordinances, rules
or regulations.


 


(h)  No
change in the manner of calculation of percentage rent will occur from the date
of delivery of the


 


9





















 


Pre-Closing Deliveries under Section 5 hereof, through the date of
Closing, except as expressly set forth in the Leases.


 


(i) Seller hereby agrees to indemnify, defend and hold harmless Buyer
from and against any and all claims, losses, costs and expenses arising in
regard to any unpaid sales lien owed to the State of Georgia Department of
Revenue and based upon sales made during the period of time the Property was
owned by Seller.


 


“Seller’s knowledge,” is hereby defined as the knowledge of Leilani
Jones, manager of the Property, and Edward M. Harrington, President of SDB.


 


12.  Possession; Closing Documents.


 


(a)  Possession. Full
possession of the Property (subject to the rights of the tenants under the
Leases and any other Permitted Exceptions) shall be delivered to Buyer by
Seller at Closing.


 


(b)  Seller’s Closing
Documents. At Closing, Seller shall deliver, or cause to be delivered, to
Buyer the following, each in form reasonably acceptable to Buyer:


 


(i) A Special Warranty Deed with regard to the Property.


 


(ii) An Assignment of Leases executed by Seller and in the form of
Exhibit B attached hereto and relating to the Leases (which instrument shall
also be executed by Seller’s managing agent, if any), and the original Leases.


 


(iii) As to any warranties for materials and workmanship (e.g. roof,
HVAC, parking lot-including, by way of illustration and not limitation, the
roof warranty for materials and workmanship for the Ingles demised premises),
copies thereof and an assignment executed by Seller of all of its right, title
and interest in, to and under the same, and also the original transfer of such
warranties assented to by the material and/or service provider at no cost or
expense to Buyer.


 


(iv) All as-built plans and specifications, if any, relative to the
Property in the possession or control of Seller.


 


(v) All certificates of occupancy, building permits and similar
governmental approvals affecting the Property.


 


(vi) A Closing and Proration Statement conforming to the proration and
other relevant provisions of this Agreement.


 


(vii) Letters to the tenants of the Property in the form attached hereto
as Exhibit I, and made a part hereof.


 


(viii) The tenant estoppel letters and REA estoppel letters required to
be delivered pursuant to subsection 16(a) hereof.


 


(ix) An estoppel certificate from the Lender addressed to Buyer,
stating: (a) that no default then exists under the terms of the Loan, and (b)
the amount of principal and interest due and owing under the Loan at the time
of Closing, and (c) the amount of the real estate tax deposit escrow then being
held by Lender pursuant to the terms of the Loan.


 


10





















 


(x) An Audit Letter addressed to Buyer’s accountants in the form
attached hereto as Exhibit G, and made a part hereof.


 


(xi) Such other documents and instruments as may reasonably be required
by Buyer and the Title Company and which may be necessary to consummate this
transaction and otherwise to effect the agreements of the parties hereto.


 


(c) Buyer’s Closing Documents.


 


At Closing, Buyer shall deliver, or cause to be delivered, to Seller,
the following in form and substance reasonably acceptable to Seller:


 


(i) Cash on account of the Purchase Price (by wire transfer or other
immediately available United States funds) as required by Section 3 above.


 


(ii) An Assignment and Assumption of the Leases executed by Buyer and
in the form of Exhibit B attached hereto, and relating to the Leases in effect
at Closing.


 


(iii) An assumption by Buyer of the warranties and contracts that are
being assigned to Buyer.


 


(iv) A Closing and Proration Statement conforming to the proration and
other relevant provisions of this Agreement.


 


(v) The Loan assumption documentation required by Lender and the Title
Company.


 


(vi) Such other documents and instruments as reasonably may be required
by Seller and the Title Company and which may be necessary to consummate this
transaction and otherwise to effect the agreements of the parties hereto.


 


13.  Default.


 


(a)  Seller Default Discovered
Prior to Closing. If, on or before the Closing date, (x) Buyer is or
becomes aware that any of the representations and warranties made by Seller in
this Agreement, or in any document or instrument executed by Seller and
delivered to Buyer in connection with this Agreement or the Closing hereunder,
including the representations made in Section 11 hereof, are not true and
correct, or (y) Buyer is or becomes aware that there is any material inaccuracy
in any, certifications, schedules, covenants or statements prepared and
executed by Seller as part of the Pre-Closing Deliveries, or (z) Seller has failed to perform in
any respect any of the covenants, agreements and indemnities contained herein
or in any of the aforesaid other documents and instruments to be performed by
him, her or it within the time for performance as specified herein (including
Seller’s obligation to close) or therein, then, provided Buyer has notified
Seller in writing of same and Seller has failed to cure such condition or
circumstance or non-performance within 5 days of receipt of such notice, Buyer’s
remedies on account of any such breach shall be to:


 


(i) terminate this Agreement by delivering written notice of Buyer’s
election to terminate to Seller, in which event the Earnest Money (and all
interest thereon) shall be returned immediately to Buyer and neither Seller nor
Buyer shall have any further liability to the other except for the
Post-Termination Obligations except that Seller will reimburse Buyer for all of
its actual costs and expenses incurred in connection with its due diligence of
the Property (not to exceed $100,000.00); or


 


11





















 


(ii) complete the purchase of the Property notwithstanding Seller’s
default, in which event Seller shall reimburse Buyer for all of its damages
incurred as a result of Seller’s breach hereunder (not to exceed $100,000.00);
or


 


(iii) waive any claim for damages (except for reimbursement for costs
and expenses as set forth in this clause) and file an action (the “Specific
Performance Action”) for specific performance of this Agreement to compel Seller
to close in accordance with the terms of this Agreement, and Buyer shall be
entitled to reimbursement for all of its costs and expenses, including
reasonable attorneys’ fees, incurred in connection with such Specific
Performance Action, if it prevails.


 


(b)  Buyer Default. In the
event that Buyer shall have failed to perform in any material respect any of
the covenants, agreements and indemnities contained herein to be performed by
Buyer within the time for performance as specified herein (including Buyer’s
obligation to close), and provided Seller has notified Buyer in writing of the
same and Buyer has failed to cure such condition or circumstance or
non-performance within 5-days of receipt of such notice, Seller’s sole remedy
on account thereof shall be to terminate this Agreement by delivering written
notice of its election to so terminate to Buyer, in which event the Earnest
Money (not including any interest thereon which shall be paid to Buyer) shall
be paid to Seller as liquidated damages, it being understood that Seller’s
actual damages in the event of such default are difficult to ascertain and that
such proceeds represent the parties’ best current estimate of such damage and
thereupon neither party shall have any further obligation to the other under
this Agreement except for the Post-Termination Obligations.


 


14.  Brokerage.


 


Seller and Buyer acknowledge that Steven D. Bell & Company (the “Broker”) has
participated as a broker or consultant to Seller in this transaction. Seller
shall pay the Broker’s commission from the Closing Escrow pursuant to an
agreement between Seller and Broker. In addition, at or prior to Closing,
Seller shall pay any and all leasing fees and commissions due and payable in
connection with any Lease. Buyer and Seller each represent and warrant to the
other that they have dealt with no other brokers, finders or intermediaries of
any kind in connection with this transaction. Seller does hereby indemnify and
agree to hold Buyer harmless from and against any and all causes, claims,
demands, losses, liabilities, fees, commissions, settlements, judgments,
damages, expenses and fees (including, without limitation, reasonable attorneys’
fees and court costs) in connection with any claim for commissions, fees,
compensation or other charges relating in any way to any Lease and this
transaction, or the consummation thereof, which may be made by any person, firm
or entity (including Broker) as the result of any of Seller’s acts or the acts
of Seller’s representatives, or as a result of Seller’s breach of its
representations to Buyer contained in this Section. Buyer does hereby indemnify
and agree to hold Seller harmless from and against any and all causes, claims,
demands, losses, liabilities, fees, commissions, settlements, judgments, damages,
expenses and fees (including, without limitation, reasonable attorney’s fees
and court costs) in connection with any claim for commissions, fees,
compensation or other charges relating in any way to this transaction, or the
consummation thereof, which may be made by any person, firm, or entity
(excluding Broker) as the result of any of Buyer’s acts or the acts of Buyer’s
representatives, or as a result of Buyer’s breach of its representations to
Seller contained in this Section. The obligations of Buyer and Seller under
this Section 14 shall survive any termination of or Closing under this
Agreement.


 


15.  Buyer’s Condition
Precedent as to Property Tenancies.


 


(a)  It is a condition to Buyer’s
obligation to close that as of the date of Closing: (i) all Anchor and National
Credit Tenant spaces (as hereinafter defined) and all Non-Anchor/Non-Credit
spaces (as hereinafter defined) be leased to tenants under leases with all
Tenant Conditions (as hereinafter defined) having been fulfilled, pursuant to
the Rent Roll attached hereto as Exhibit E, and made a part hereof; provided,
however an annual vacancy factor attributable to Non-Anchor/Non-Credit
Tenants of $35,124 Base Rent and $6,459 CAM/Insurance/Real Estate


 


12





















 


Tax/Management Fee reimbursements (the “Reimbursements”) shall be
acceptable (the “Maximum Threshold”), and (ii) all tenant improvement
allowances and leasing commissions for any tenant lease shall have been fully
paid and discharged (or credited to Buyer at Closing).


 


(b)  For purposes hereof, the “Non-Anchor/Non-Credit
Tenants” shall be defined as: Dollar Exclusive, Fantastic Sams, Motherhood
Maternity, Cellular Depot, Serenity Spa & Salon; The School Box, Oreck Home
Care, Gecko Grill, Scrap Happy, Nails & Tan, Planet Beach, Mattress King,
Orthodontic Centers, Hong Kong Cafe, Woody’s Bar B Que, Dessert Factory and
Water Sports South and the Anchor and National Credit spaces shall include all
other tenants on the Rent Roll.


 


(c)  For purposes hereof, the
term “Tenant Conditions” for any Property space gross leaseable area shall be
collectively defined as: (i) a signed lease with a tenant, and (ii) the tenant
open for business to the public with a fully-stocked store, and (iii) the
tenant paying Base Rent and Reimbursements pursuant to the Rent Roll, and (iv)
all the leasing commissions and tenant improvement allowances having either
been paid by Seller or credited
to Buyer, (v) no material default on the part of landlord or tenant; (v) a
certificate of occupancy or its equivalent issued by the local governmental
authorities for such tenant’s demised premises; and (vi) receipt by Buyer of an
acceptable estoppel certificate (as defined in Section 16) from the tenant.


 


(d)  The
condition contained in 15 (a) above shall be deemed to have been met if:


 


(i)            In the event that,
on the date of Closing, the actual annual tenant vacancy at the Property
exceeds the value of $35,124 Base Rent and $6,459 Reimbursements but is less
than $465,194 Base Rent and $128,228 Reimbursements, then Seller agrees that it
will “Master Lease” gross leaseable area to the extent necessary to reach the
Maximum Threshold, for a period of two years. Seller shall place in escrow an
amount equal to two years worth of Base Rent and Reimbursements for the vacant
spaces (as determined at Closing pursuant to the pro forma rental rates
described by the Rent Roll), but no greater than the amount necessary to reach
the Maximum Threshold, plus leasing commissions calculated at $4 per square
foot and tenant improvements calculated at $15 per square foot. Buyer may draw
upon the escrow monthly following Closing (prorated for any partial month). In
the event that any space is leased following Closing then, at the time the
Tenant Conditions are fulfilled for such space, an amount equal to the unused
Base Rent, Reimbursements and any unused leasing commission and tenant
improvement cost for such space, shall be remitted to Seller. Seller’s
obligations pursuant to the Master Lease shall not exceed the amount in escrow
and shall terminate at the earlier of the time the Maximum Threshold is reached
or two years following Closing; or


 


(ii)           In the event that,
on the date of Closing, the actual annual tenant vacancy at the Property equals
or exceeds the value of $465,194 Base Rent and $128,228 Reimbursements, then
Buyer shall have the option of terminating this Agreement and receiving an
immediate refund of its Earnest Money.


 


16.  Seller’s Obligations
Regarding the Leases


 


(a)  It shall be conditions to
Buyer’s obligation to close with respect to the Property that on or prior to
ten (10) days before the date of Closing under this Agreement, Buyer shall have
received: (i) an estoppel certificate from BJ’s Wholesale Club, Ross, Marshall’s,
Staples, Michaels, Bed, Bath & beyond, PetsMart, Books A Million, Famous
Footwear, Pier One Imports, Dress Barn, Hibbets, Belk, and Longhorn
(collectively, the “Anchors”), inform and substance reasonably acceptable to
Buyer, and (ii) from each tenant at the Property (other than Anchors)
comprising no less than 85% of the remaining (not including Anchors) Property
gross leasable area (the “85% Threshold”), an estoppel certificate,
substantially in the form of Exhibit C, attached hereto and by this reference
made a part hereof, with non-material changes thereto, or in another form
reasonably acceptable to Buyer (the Anchors may deliver their typical forms of
estoppel and receipt of guarantor estoppels shall not be a condition of closing
except in the case of an anchor lease guarantor); and (iii) a Seller estoppel
certificate for any non-Anchor


 


13





















 


tenant not delivering an estoppel once the 85% Threshold has been met,
and (iv) a REA estoppel certificate substantially in the form of Exhibit D,
attached hereto and made a part hereof, from Target and from each other party
to any reciprocal easement agreement (REA) or like-agreement affecting the
Property. Buyer shall also have the right to contact any tenant or REA party if
such tenant or REA party does not deliver an estoppel certificate or if the
estoppel certificate delivered by such tenant or REA party contains material
changes to the required form. Seller shall use its best efforts to resolve
material changes between the estoppel certificate furnished to each tenant and
REA party and the estoppel certificate received from any tenant and REA party.


 


(b)  Between the date of this
Agreement and the earlier of the Closing or the termination of this Agreement,
Seller shall not be permitted to amend, modify or terminate any Lease affecting
all or any portion of the Property, or to enter into new leases of space at the
Property, without first obtaining Buyer’s prior written approval which approval
shall not be unreasonably withheld or delayed and shall be deemed approved if
no response from Buyer is received by Seller within 5-business days of Buyer’s
receipt of same.


 


17.  Indemnity.


 


From and after the date of Closing, (a) Seller agrees to indemnify,
protect, defend and hold Buyer, its directors, officers, employees, partners,
lenders and agents harmless from and against all claims, actions, losses,
damages, costs and expenses, including, but not limited to, reasonable attorney’s
fees and court costs and liabilities (except those caused solely by the willful
misconduct or negligent acts or omissions of Buyer or its directors, officers,
employees, partners, lenders and agents), arising out of the ownership and
operation of the Property prior to the Closing date, whether arising in
contract, tort, or related to the actual or alleged injury to, or death of, any
person or loss of or damage to property in or upon the Property; and (b) Buyer
agrees to indemnify, protect, defend and hold Seller, its directors, officers,
partners, employees, lenders and agents harmless from and against all claims,
actions, losses, damages, costs and expenses, including, but not limited to,
reasonable attorney’s fees and court costs and liabilities (except those caused
solely by the willful misconduct or negligent acts or omissions of Seller or
its directors, officers, partners, employees, lenders and agents), arising out
of the ownership and operation of the Property by Buyer from and after the
Closing date, whether arising in contract, tort, or related to the actual or
alleged injury to, or death of, any person or loss of or damage to property in
or upon the Property.


 


18.  Miscellaneous


 


(a)  All notices, consents and
approvals required by this Agreement shall be either: (i) personally delivered;
or (ii) sent via facsimile transmission; or (iii) sent by overnight courier for
next-business day delivery via Federal Express, UPS, Purolator or another
national reputable courier. Said notices, consents and approvals shall be
deemed received on the date the same are actually received or delivery thereof
is refused. Said notices, consents and approvals shall be sent to the parties
hereto at the following addresses, unless otherwise notified in writing:


 


	
  TO SELLER:

  	
  c/o Steven D. Bell & Co.

  823 North Elm Street, Suite 200

  Greensboro, NC 27401

  

  Attn: Mr. Shoffner Allison

  Facsimile: 336-378-9705

  
	
   

  	
   

  
	
  Copy to:

  	
  Schell Bray Aycock Abel & Livingston P.L.L.C.

  230 North Elm Street, Suite 1500

  Greensboro, NC 27401

  Attn: Ms. Barbara R. Christy

  Facsimile: 336-370-8830

  



 


14





















 


	
  TO BUYER:

  	
  Inland Real Estate Acquisitions, Inc.

  2901 Butterfield Road

  Oak Brook, Illinois 60523

  Attn: Jason Lazarus

  Facsimile: 678-996-2140 and 630-218-4935

  
	
   

  	
   

  
	
  Copy to:

  	
  The Inland Real Estate Group, Inc.

  2901 Butterfield Road

  Oak Brook, Illinois 60523

  Attn: General Counsel

  Facsimile: 630-218-4900 and 630-571-2360

  



 


(b)  Waiver of Jury Trial.


 


Each of Seller and Buyer hereby expressly waives any right to trial by
jury of any claim, demand, action or cause of action (i) arising under this
Agreement or any other instrument executed or delivered in connection herewith
or (ii) in any way connected with or related or incidental to its dealings with
respect to this Agreement or any other instrument executed or delivered in
connection herewith, or the transactions related hereto or thereto, in each
case whether now existing or hereafter arising, and whether sounding in
contract or tort or otherwise; and each of Seller and Buyer hereby agrees and
consents that any such claim, demand, action or cause of action shall be
decided by court trial without a jury.


 


(c)  Entire Agreement and
Amendments.


 


This Agreement, together with any Exhibits referred to herein,
constitute the entire understanding between the parties hereto and supersedes
any and all prior arrangements or understandings between the parties. This
Agreement can be amended only by a writing signed by Buyer and Seller.


 


(d)  Exhibits.


 


All exhibits attached hereto are hereby incorporated by reference and
made a part hereof.


 


(e)  Insurance; Destruction of
Improvements.


 


Between the date of this Agreement and the earlier of the Closing date
or the termination of this Agreement, Seller agrees to maintain with respect to
the Property its existing casualty insurance with replacement cost and agreed
amount coverage.


 


If prior to Closing all or any part of the Property is destroyed or
damaged or is taken by condemnation, eminent domain or other governmental
acquisition provisions, then the following procedues shall apply:


 


(i)                  If
the cost of repair or replacement or the value of the governmental taking is
Five Hundred Thousand Dollars ($500,000.00) or less in the reasonable opinion
of Buyer’s and Seller’s respective engineering consultants, and the Leases of
the Property are not terminable on account thereof (assuming any necessary
repairs, replacements or alterations required under the Leases are


 


15





















 


diligently pursued by the landlord thereunder) or, if any Leases is so
terminable, the tenant under such Leases has waived its termination rights and
no abatement of rent occurs as a result of the damage, destruction or
condemnation, Buyer shall close and take the Property as diminished by such
events with no reduction in the Purchase Price, and Seller shall assign the
right to all casualty insurance and condemnation proceeds due with respect to
such destruction, damage or taking to Buyer, as well as, to the extent the same
are assignable, the proceeds and benefits under any rent loss or business interruption
policies attributable to the period following the Closing and deductibles.


 


(ii)               If
the cost of repair or replacement or the value of the governmental taking is
greater than Five Hundred Thousand Dollars ($500,000.00) in the reasonable
opinion of Buyer’s and Seller’s respective engineering consultants, or the
Leases are terminable on account thereof (assuming any necessary repairs,
replacements or alterations required under the Leases are diligently pursued by
the landlord thereunder) and the tenant under such Lease has not waived its
termination rights, or if an abatement of rent occurs as a result of the
damage, destruction or condemnation, then Buyer, at its sole option, may elect
either to (x) terminate this Agreement by written notice to Seller and receive
an immediate return of the Earnest Money (and all interest thereon) and neither
party shall have any further liability to the other hereunder except for the
Post-Termination Obligations; or (y) accept an assignment of Seller’s rights to
all casualty insurance and condemnation proceeds with respect thereto with no
reduction in the Purchase Price, it being understood and agreed that, in such
event, Seller shall cooperate with Buyer in the adjustment and settlement of
the insurance or condemnation claim. The proceeds and benefits under any rent
loss or business interruption policies attributable to the period following the
Closing and deductibles shall likewise, to the extent the same are assignable,
be transferred and paid over to Buyer.


 


(iii)            In the event of a dispute between Seller
and Buyer with respect to the cost of repair, restoration or replacement with
respect to the matters set forth in this subsection 18(e), an engineer
designated by Seller and an engineer designated by Buyer shall select an
independent engineer licensed to practice in the jurisdiction where such
Property is located who shall resolve such dispute. All fees, costs and
expenses of the engineer so selected shall be shared equally by Buyer and
Seller.


 


(f)  Time of the Essence.


 


Time is of the essence in connection with all dates or periods of time
referred to herein.


 


(g)  Choice of Law.


 


This Agreement is to be governed by, and construed in accordance with,
the laws of the State of Georgia.


 


(h)  Successors and Assigns.


 


Except as otherwise provided herein, the provisions and covenants
contained herein shall inure to and be binding upon the heirs, successors and
assigns of the parties hereto. However, Buyer shall have no right to assign any
of its rights, privileges, duties or obligations under this Agreement prior to
Closing, without the prior written consent of Seller in its sole discretion.
Notwithstanding the foregoing, Buyer shall be permitted, without Seller’s
consent, to assign its rights, privileges, duties and obligations under this
Agreement to an entity which is an affiliate of The Inland Real Estate Group,
Inc. Promptly following, and as a condition to, any assignment by Buyer
permitted under this subsection 18(h), Buyer shall deliver to Seller an
assumption by the assignee of all of Buyer’s duties and obligations under this
Agreement. In the event Seller assigns its rights and obligations under this
Agreement, the liability of Seller shall in no way be affected and the
liability of the Seller for the representations, warranties and


 


16





















 


covenants made by the Seller herein shall
continue as though no such assignment had been made.


 


(i)  Section Headings.


 


The headings of the Sections of this
Agreement are inserted solely for convenience of reference, and are not
intended to govern, limit or aid in the construction of any term or provision
hereof.


 


(j)  Waiver.


 


No claim of waiver, consent or acquiescence
with respect to any provision of this Agreement shall be made against either
party except on the basis of a written instrument executed by or on behalf of
such party. The party for whose benefit a condition is herein inserted shall
have the unilateral right to waive such condition.


 


(k)  Further
Actions.


 


Each of Buyer and Seller agrees to execute
such further documents, and take such further actions, as may reasonably be required to carry
out the provisions of this Agreement, or any agreement or document relating
hereto or entered into in connection herewith. In addition, each of Buyer and
Seller agrees to use reasonable efforts (not including, without limitation, the
prosecution of any litigation or other actions outside of the ordinary course
of business) to cause any conditions to its obligation to close to be satisfied.


 


(l)  Neutral
Construction.


 


Each of the parties hereto has been involved
in the negotiation, review, and execution of this Agreement and each has had
the opportunity to receive independent legal advice from attorneys of its
choice with respect to the advisability of making and executing this Agreement.
In the event of any dispute or controversy regarding this Agreement, the
parties hereto shall be considered to be the joint authors of this Agreement
and no provision of this Agreement shall be interpreted against a party hereto
because of authorship.


 


(m)  Tax
Free Exchange.  Each party hereby
agrees to take reasonable actions at Closing as are reasonably necessary to
help the other to effectuate a like-kind exchange of the Property pursuant to
§1031 of Internal Revenue Code (the “Code”). Provided, however, that in no
event shall the non-requesting party be required to sign any document, nor take
title to any other real property, nor to incur any additional expenses or
liability in order to effectuate the like-kind exchange. In addition, except as
hereinafter provided, the Closing shall not be delayed by the requesting party.
Upon notice to Buyer within 15-days prior to the date of Closing, Seller shall
have the one-time right to delay the date of Closing for a period not to exceed
45-days the purpose of effectuating its §1031 like-kind exchange. Seller or
Buyer, as the case may be, agrees to indemnify, defend and hold the other party
harmless from and against any and all costs, expenses, claims and other liabilities
of any kind arising with regard to the effectuation of a tax free exchange as
described herein. Notwithstanding anything to the contrary provided herein, the
non-requesting party makes no representations or warranties as to the tax
treatment of the transaction contemplated hereby or the ability of the
transaction contemplated to qualify for like-kind exchange treatment pursuant
to § 1031 of the Code. In the event both parties desire to effectuate a
like-kind exchange as described herein, each party shall pay any and all costs
associated with their respective transactions.


 


17





















 


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


 


 


	
  BUYER:

  	
  Inland Real Estate
  Acquisitions, Inc.,

  an Illinois corporation,

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jason A. Lazarus

  	
   

  
	
   

  	
  Jason A. Lazarus

  	
   

  
	
   

  	
  Authorized Agent

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ON BEHALF OF ALL
  SELLERS:

  	
  Steven D. Bell &
  Company,

  	
   

  
	
   

  	
  a North Carolina
  corporation, as agent

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Edward M.
  Harrington

  	
   

  
	
   

  	
  Name:

  	
   Edward M. Harrington

  	
   

  
	
   

  	
  As Its:

  	
   President

  	
   

  
					



 


18