Exhibit
10.499


 


FOURTH
AMENDMENT TO AGREEMENT OF PURCHASE AND SALE


 


THIS FOURTH AMENDMENT TO
AGREEMENT OF PURCHASE AND SALE (the “Second Amendment”) is made and entered
into this 29th day or
December, 2004 by and between Eastern Retail Holdings Limited Partnership, a
Delaware limited partnership (“Seller”) and Inland Real Estate Acquisitions,
Inc., an Illinois corporation (“Purchaser”).


 


Recitals


 


A.                                    Purchaser
and Seller entered into an Agreement of Purchase and Sale dated October 5,
2004, as amended by First Amendment to Agreement of Purchase and Sale dated November 4,
2004, the Second Amendment to Agreement of Purchase and Sale dated November 10,
2004 and the Third Amendment to Agreement of Purchase and Sale dated December 13,
2004 (collectively, the “Purchase Agreement”).


 


B.                                      Purchaser
and Seller now desire to amend certain terms of the Purchase Agreement.


 


NOW, THEREFORE, in
consideration of the mutual premises contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:


 


Amendments


 


1.                Defined
Terms. Except as otherwise expressly indicated herein to the contrary, all capitalized
words and phrases contained herein shall have the same meaning and definition
as are contained in the Purchase Agreement.


 


2.                Purchase
Price Adjustment. The first grammatical paragraph of Section 1.3 of
the Purchase Agreement, entitled “Amount and Payment of Purchase Price”, is
hereby restated in its entirety so as to read as follows:


 


“Subject to all of the
terms and conditions hereof, the purchase price (“Purchase Price”) shall be
Twenty One Million Five Hundred and Ninety-Five Thousand Dollars
($21,595,000.00). The Purchase Price shall be allocated Twelve Million Eight
Hundred Thousand Dollars ($12,800,000.00) to Irmo and Eight Million Seven
Hundred and Ninety-Five Thousand Dollars ($8,795,000.00) to Evans. The Purchase
Price shall be paid as follows:”


 


3.               Closing.                           Section 5.1,
entitled “Time and Place”, is amended and restated in its entirety so as to
read as follows:


 


“Unless this Agreement is
extended or sooner terminated, Buyer and Seller agree to make full settlement
on or before December 31, 2004.”


 


1





















 


4.                Miscellaneous.


 


(a)          All
section headings of this Fourth Amendment are for convenience of reference
only, and form no part hereof.


 


(b)         In
the event of any conflict between the terms and conditions of this Fourth Amendment
and the terms and conditions of the Purchase Agreement, the terms and
conditions of this Fourth Amendment shall control and prevail.


 


(c)          Except
as expressly modified and amended by this Fourth Amendment, the Purchase
Agreement shall remain unmodified and in full force and effect, and the
Purchase Agreement, as so amended, shall bind and inure to the benefit of
Seller and Buyer and their respective successors, legal representatives and
assigns.


 


(d)         This
Fourth Amendment may be executed in counterpart originals, and all executed
counterparts shall, when taken together, constitute the entire Fourth Amendment.


 


IN WITNESS WHEREOF, the
parties hereto have executed this Fourth Amendment as of the date first written
above.


 


	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  EASTERN RETAIL HOLDINGS
  LIMITED

  
	
   

  	
  PARTNERSHIP, a Delaware
  limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  LMRES Real Estate
  Advisers, Inc., its

  
	
   

  	
   

  	
  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Beth L. Vopper

  
	
   

  	
   

  	
  Name:

  	
  BETH
  L. VOPPER

  
	
   

  	
   

  	
  Its:

  	
  VICE
  PRESIDENT

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  INLAND REAL ESTATE
  ACQUISITIONS, INC.,

  
	
   

  	
  an Illinois
  corporation,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Its:

  	
   

  



 


2





















 


THIRD
AMENDMENT TO AGREEMENT OF PURCHASE AND SALE


 


THIS
THIRD AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (the “Third Amendment”)
is made and entered into this 13th day of December by and between Eastern Retail Holdings Limited
Partnership, a Delaware limited partnership (“Seller”) and Inland Real Estate
Acquisitions, Inc., an Illinois corporation (“Purchaser”).


 


Recitals


 


A.                                   Purchaser
and Seller entered into an Agreement of Purchase and Sale dated October 5,
2004, as heretofore amended, (the “Purchase Agreement”).  Capitalized terms used but not defined herein
shall have the meaning ascribed thereto in the Purchase Agreement.


 


B.                                     Purchaser
and Seller now desire to amend certain terms of the Purchase Agreement.


 


NOW, THEREFORE, in
consideration of the mutual premises contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:


 


Amendments


 


1.                                       The
date of Closing is extended to December 23, 2004.


 


2.                                       Except
as set forth herein, all other terms and conditions set forth in the Purchase Agreement
shall remain unchanged. In the event of an inconsistency between the terms of
the Purchase and Agreement and the terms of this Third Amendment, this Third
Amendment shall control.


 


 


(The remainder of this page is intentionally
blank)


 





















 


SECOND
AMENDMENT TO AGREEMENT OF PURCHASE AND SALE


 


THIS SECOND AMENDMENT TO
AGREEMENT OF PURCHASE AND SALE (the “Second Amendment”) is made and entered
into this 10th day of November, 2004 by and between Eastern Retail
Holdings Limited Partnership, a Delaware limited partnership (“Seller”) and
Inland Real Estate Acquisitions, Inc., an Illinois corporation (“Purchaser”).


 


Recitals


 


A.                                   Purchaser
and Seller entered into an Agreement of Purchase and Sale dated October 5,
2004, as amended by First Amendment to Agreement of Purchase And
Sale dated November 4, 2004 (collectively, the “Purchase Agreement”).


 


B.                                     Purchaser
and Seller now desire to amend certain terms of the Purchase Agreement.


 


NOW, THEREFORE, in
consideration of the mutual premises contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:


 


Amendments


 


1.                    Defined
Terms. Except as otherwise expressly indicated herein to the contrary, all capitalized
words and phrases contained herein shall have the same meaning and definition
as are contained in the Purchase Agreement.


 


2.                    Purchase
Price Adjustment. The first grammatical paragraph of Section 1.3 of
the Purchase Agreement, entitled “Amount and Payment of Purchase Price”, is
hereby restated in its entirety so as to read as follows:


 


“Subject to all of the
terms and conditions hereof, the purchase price (“Purchase Price”) shall be
Twenty One Million Six Hundred and Thirty Thousand Dollars ($21,630,000.00).
The Purchase Price shall be allocated
Twelve Million Eight Hundred Thousand Dollars ($12,800,000.00) to Irmo and
Eight Million Eight Hundred and Thirty Thousand Dollars ($8,830,000.00) to
Evans. The Purchase Price shall be paid as follows:”


 


3.                     Adjustments
to Purchase Price. Section 1.4 of the Purchase Agreement, entitled “Adjustments
to Purchase Price”, and Exhibit B to the Purchase Agreement, entitled “Schedule of
Unleased Stores”, are hereby deleted in their entirety from the Purchase Agreement.


 


4.                     Evaluation
Period. With respect to Section 2.1 of the Purchase Agreement, Buyer hereby
acknowledges that, except as hereafter provided, Buyer is either satisfied with
or has waived the results of its testings, reviews, inspections and examination
of documents and matters identified in Exhibit C of the Agreement, and, subject
to the satisfaction of the following items, Buyer hereby gives Seller Notice to
Proceed. Those items which remain unsatisfied and except for subsection 4(c)
below, must be satisfied prior to Closing, are as follows:


 


 


1





















 


 


IN WITNESS WHEREOF, the
parties hereto have executed this Fourth Amendment as of the date first written
above.


 


 


	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  EASTERN RETAIL HOLDINGS
  LIMITED

  
	
   

  	
  PARTNERSHIP, a Delaware
  limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  LMRES Real Estate
  Advisers, Inc., its

  
	
   

  	
   

  	
  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Beth L. Vopper

  
	
   

  	
   

  	
  Name:

  	
  BETH
  L. VOPPER

  
	
   

  	
   

  	
  Its:

  	
  VICE
  PRESIDENT

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  INLAND REAL ESTATE
  ACQUISITIONS, INC.,

  
	
   

  	
  an Illinois
  corporation,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ G. Joseph Cosenza

  
	
   

  	
  Name:

  	
  G. Joseph Cosenza

  
	
   

  	
  Its:

  	
  President

  



 


2





















 


(a) Seller shall provide
Buyer with copies of certificates
of occupancy issued during years 2003 and 2004 to tenants of Evans and Irmo;


 


(b) Seller shall provide
Buyer with a list containing the names of the contact persons for all tenants
of Evans and Irmo, and the addresses and telephone numbers of the contact
persons;


 


(c) Seller shall
use commercially reasonable efforts to obtain current sales reports for the
current year from the following tenants: Zita, Inc. (Quiznos), Thuan C. Hguyen
and Hoa V. Nguyen (US Nails) and Sun Rayz Tanning and shall deliver them to
Buyer;


 


(d) Ita Taekwondo
Academy of Irmo, a tenant under a lease dated August 19, 2004, must be in
occupancy and must have paid its first month’s rent;


 


(e) Seller shall obtain
lease renewal from Dr. John L. Edwards, D.D.S., a tenant at Irmo under a lease
dated April 1, 2000.


 


5.                     Closing.
Section 5.1, entitled “Time and Place”, is amended and restated in its
entirety so as to read as follows:


 


“Unless this Agreement is
extended or sooner terminated, Buyer and Seller agree to make full settlement
on or before thirty (30) days following the date of this Fifth Amendment.”


 


6.                     Title
and Survey. Notwithstanding anything to the contrary contained in Section 2.2
of the Purchase Agreement, Buyer shall have until Closing to satisfy itself as
to the title to the Property and the Survey.


 


7.                     Remedies.
If the requirements for Closing as contained in this Second Amendment have not
been satisfied within the time periods herein set forth, then the Buyer shall,
as Buyer’s sole remedy, have the
right to terminate this Agreement by written notice of termination to Seller,
whereupon the Deposit shall immediately be refunded to Buyer, this Agreement
shall become null and void and all parties hereto shall be released from all
liability and responsibility hereunder.


 


8.                     Miscellaneous.


 


(a) All section headings
of this Second Amendment are for convenience of reference only, and form no
part hereof.


 


(b) In the event
of any conflict between the terms and conditions of this Second Amendment and
the terms and conditions of the
Purchase Agreement, the terms and conditions of this Second Amendment shall
control and prevail.


 


(c) Except as
expressly modified and amended by this Second Amendment, the Purchase Agreement
shall remain unmodified and in full force and effect, and the Purchase


 


 


3





















 


Agreement, as so amended,
shall bind and inure to the benefit of Seller and Buyer and their respective successors,
legal representatives and assigns.


 


(d) This Second Amendment
may be executed in counterpart originals, and all executed counterparts shall,
when taken together, constitute the entire Second Amendment.


 


 


(The remainder of this page is intentionally blank)


 


 


4





















 


IN WITNESS WHEREOF, the
parties hereto have executed this Second Amendment as of the date first written
above.


 


 


	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  EASTERN RETAIL HOLDINGS
  LIMITED

  
	
   

  	
  PARTNERSHIP, a Delaware
  limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  LMRES Real Estate
  Advisers, Inc., its

  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Beth L. Vopper

  
	
   

  	
   

  	
  Name:

  	
  Beth L. Vopper

  
	
   

  	
   

  	
  Its:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  INLAND REAL ESTATE
  ACQUISITIONS, INC.,

  
	
   

  	
  an Illinois
  corporation,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ G. Joseph Cosenza

  
	
   

  	
  Name:

  	
  G. Joseph Cosenza

  
	
   

  	
  Its:

  	
  President

  
					



 


 


5





















 


FIRST
AMENDMENT TO AGREEMENT OF PURCHASE AND SALE


 


THIS FIRST AMENDMENT TO
AGREEMENT OF PURCHASE AND SALE (the “First Amendment”) is made and entered into
this 4th day of November by and between Eastern Retail Holdings
Limited Partnership, a Delaware limited partnership (“Seller”) and Inland Real
Estate Acquisitions, Inc., an Illinois corporation (“Purchaser”).


 


Recitals


 


A.                                       Purchaser
and Seller entered into an Agreement of Purchase and Sale (the “Purchase
Agreement”) dated October 5, 2004. Capitalized terms used but not defined
herein shall have the meaning ascribed thereto in the Purchase Agreement.


 


B.                                         Purchaser
and Seller now desire to amend certain terms of the Purchase Agreement.


 


NOW, THEREFORE, in
consideration of the mutual premises contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:


 


Amendments


 


1.                                          Notwithstanding
the provisions of Section 2.1 of the Purchase Agreement, the Evaluation
Period shall be deemed to be extended to and end at 6:00 p.m. (CST), Chicago, Illinois
time, on November 10, 2004.


 


2.                                          Except
as set forth herein, all other terms and conditions set forth in the Purchase Agreement
shall remain unchanged. In the event of an inconsistency between the terms of
the Purchase and Agreement and the terms of this First Amendment shall control.


 


 


(The remainder of this page is intentionally blank)


 





















 


IN WITNESS WHEREOF, the
parties hereto have executed this First Amendment as of the date first written
above.


 


 


	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  EASTERN RETAIL HOLDINGS
  LIMITED

  
	
   

  	
  PARTNERSHIP, a Delaware
  limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  LMRES Real Estate
  Advisers, Inc., its

  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Beth L. Vopper

  
	
   

  	
   

  	
  Name:

  	
  Beth L. Vopper

  
	
   

  	
   

  	
  Its:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  INLAND REAL ESTATE
  ACQUISITIONS, INC.,

  
	
   

  	
  an Illinois
  corporation,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ G. Joseph Cosenza

  
	
   

  	
  Name:

  	
  G. Joseph Cosenza

  
	
   

  	
  Its:

  	
  PRESIDENT

  
					



 





















 


AGREEMENT OF PURCHASE AND SALE


 


 


BETWEEN


 


 


EASTERN RETAIL HOLDINGS LIMITED PARTNERSHIP


SELLER


 


 


AND


 


 


INLAND REAL ESTATE ACQUISITIONS, INC.


BUYER


 





















 


TABLE
OF CONTENTS


 


	
  1.1.

  	
  Property

  	
   

  
	
   

  	
   

  	
   

  
	
  1.2.

  	
  Sale and Purchase

  	
   

  
	
   

  	
   

  	
   

  
	
  1.3.

  	
  Amount and Payment of
  Purchase Price

  	
   

  
	
   

  	
   

  	
   

  
	
  1.4.

  	
  Adjustments to Purchase Price

  	
   

  
	
   

  	
   

  	
   

  
	
  2.1.

  	
  Evaluation Period; Tests

  	
   

  
	
   

  	
   

  	
   

  
	
  2.2.

  	
  Title and Survey 

  	
   

  
	
   

  	
   

  	
   

  
	
  2.3.

  	
  Inventory of Personal
  Property

  	
   

  
	
   

  	
   

  	
   

  
	
  2.4.

  	
  Rent Roll; Leases

  	
   

  
	
   

  	
   

  	
   

  
	
  2.5.

  	
  Contracts

  	
   

  
	
   

  	
   

  	
   

  
	
  2.7.

  	
  Condition of Title

  	
   

  
	
   

  	
   

  	
   

  
	
  2.8.

  	
  Tenant Estoppel Letters

  	
   

  
	
   

  	
   

  	
   

  
	
  3.1.

  	
  Representations and
  Warranties by Seller

  	
   

  
	
   

  	
   

  	
   

  
	
  3.2.

  	
  Representations by Buyer

  	
   

  
	
   

  	
   

  	
   

  
	
  4.1.

  	
  Conditions Precedent to the
  Obligations of Buyer

  	
   

  
	
   

  	
   

  	
   

  
	
  4.2.

  	
  Conditions Precedent to the
  Obligations of Seller

  	
   

  
	
   

  	
   

  	
   

  
	
  5.1.

  	
  Time and Place

  	
   

  
	
   

  	
   

  	
   

  
	
  5.2.

  	
  Payment of Purchase Price

  	
   

  
	
   

  	
   

  	
   

  
	
  5.3.

  	
  Transfer of Title to Real
  Property

  	
   

  
	
   

  	
   

  	
   

  
	
  5.4.

  	
  Closing Documents

  	
   

  
	
   

  	
   

  	
   

  
	
  5.5.

  	
  Definition of Closing

  	
   

  
	
   

  	
   

  	
   

  
	
  5.6.

  	
  Possession

  	
   

  
	
   

  	
   

  	
   

  
	
  6.1.

  	
  Closing Costs

  	
   

  
	
   

  	
   

  	
   

  
	
  6.2.

  	
  Closing Adjustments

  	
   

  
	
   

  	
   

  	
   

  
	
  6.3.

  	
  Security Deposits

  	
   

  
	
   

  	
   

  	
   

  
	
  6.4.

  	
  Survival of Closing

  	
   

  
	
   

  	
   

  	
   

  
	
  7.1.

  	
  Casualty

  	
   

  
	
   

  	
   

  	
   

  
	
  7.2.

  	
  Condemnation

  	
   

  
	
   

  	
   

  	
   

  
	
  8.1.

  	
  Appointment of Escrow Agent

  	
   

  
	
   

  	
   

  	
   

  
	
  8.2.

  	
  Duties of Escrow Agent

  	
   

  
	
   

  	
   

  	
   

  
	
  8.3.

  	
  Survival of Termination

  	
   

  
	
   

  	
   

  	
   

  
	
  9.1.

  	
  Brokerage

  	
   

  



 





















 


	
  9.2.

  	
  Remedies Upon Default

  	
   

  
	
   

  	
   

  	
   

  
	
  9.3.

  	
  Indemnification

  	
   

  
	
   

  	
   

  	
   

  
	
  9.4.

  	
  Amendment

  	
   

  
	
   

  	
   

  	
   

  
	
  9.5.

  	
  Notices

  	
   

  
	
   

  	
   

  	
   

  
	
  9.6.

  	
  Assignment

  	
   

  
	
   

  	
   

  	
   

  
	
  9.7.

  	
  Parties Bound

  	
   

  
	
   

  	
   

  	
   

  
	
  9.8.

  	
  Time of Essence

  	
   

  
	
   

  	
   

  	
   

  
	
  9.9.

  	
  Waiver

  	
   

  
	
   

  	
   

  	
   

  
	
  9.10.

  	
  Construction

  	
   

  
	
   

  	
   

  	
   

  
	
  9.11.

  	
  Entire
  Agreement

  	
   

  
	
   

  	
   

  	
   

  
	
  9.12.

  	
  Pronouns

  	
   

  
	
   

  	
   

  	
   

  
	
  9.13.

  	
  Headings

  	
   

  
	
   

  	
   

  	
   

  
	
  9.14.

  	
  Applicable
  Law

  	
   

  
	
   

  	
   

  	
   

  
	
  9.15.

  	
  Covenant
  Against Recording

  	
   

  
	
   

  	
   

  	
   

  
	
  9.16.

  	
  Computation
  of Time

  	
   

  
	
   

  	
   

  	
   

  
	
  9.17.

  	
  Counterparts

  	
   

  
	
   

  	
   

  	
   

  
	
  9.18.

  	
  Waiver
  of Tender

  	
   

  
	
   

  	
   

  	
   

  
	
  9.19.

  	
  Condition
  of Property

  	
   

  
	
   

  	
   

  	
   

  
	
  9.20.

  	
  Withholding
  on Sales of Real Property

  	
   

  



 





















 


AGREEMENT
OF PURCHASE AND SALE


 


THIS AGREEMENT OF
PURCHASE AND SALE (this “Agreement”), dated as of the    day of
August, 2004, by and between EASTERN RETAIL HOLDINGS LIMITED PARTNERSHIP, a
Delaware Limited Partnership (“Seller”) and INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation, or its permitted Assignee, (“Buyer” or “Purchaser”);


 


WITNESSETH:


 


THAT, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Seller and Buyer, intending to be legally bound, do hereby agree
as follows:


 


ARTICLE 1


SALE
OF THE PROPERTY


 


1.1.                              Property.


 


As used herein, the term “Property”
shall refer collectively to the “Real Property” and the “Personal Property”
which are defined as follows:


 


1.1.1.                     “Real
Property” means, collectively, all of the following:


 


(a)          the land
and improvements thereon known as Irmo Station Shopping Center (“Irmo”) and
located at the intersection of Lake Murray Boulevard and Saint Andrews
Road, Lexington County, South Carolina. The land is more particularly described
in Exhibit A-l attached hereto and made a part hereof; and


 


(b)         the land and
improvements thereon known as Evans Towne Centre Shopping Center (“Evans”)
located on Washington Road in Columbia County, Georgia. The land is more
particularly described in Exhibit A-2 attached hereto and made a part hereof.


 


1.1.2                        The land
is more particularly described in Exhibit A-l and A-2 attached hereto and made
a part hereof. The Real Property includes all of Seller’s right, title, and
interest in and to all leases, tenements, hereditaments, appurtenances,
beneficial easements and rights of way in any way appertaining, belonging, or
incident thereto, all of Seller’s rights in adjacent avenues, streets, and
alleys, open or proposed, and all strips and gores as well as all of Seller’s
rights in machinery, fixtures, and equipment (to the extent the same
constitutes real property and is not part of the Personal Property) used or
useful in the operation, maintenance, ownership, or use thereof, together with
all modifications, substitutions, deletions, and additions thereto from and
after the date hereof and through and including Closing (as defined in Section 5.5);


 


1.1.3                        “Personal
Property” means all of the Seller’s right, title and interest in all personal
property owned or leased by Seller and used in connection with the Real
Property, including all of Seller’s right, title and interest in: machinery,
equipment, and fixtures (to the extent the same constitute personal property,
and are not part of the Real Property), any inventory as of Closing, all
permits, certificates of use and occupancy, licenses or other authorizations or
agreements, (to the extent the same may be transferred pursuant to applicable
law), the trade names “Irmo Station


 


1





















 


Shopping Center” and “Evans
Towne Centre Shopping Center”; all telephone listings and advertisements
relating to the use or operation of the Property; all plans, specifications,
and “as built” surveys relating to the Real Property and all books and records
relating to the Property that are maintained by or for Seller, together with
all modifications, substitutions, deletions and additions to any of the
foregoing from and after the date hereof and through and including Closing.


 


1.1.4              “Contracts” means
collectively all written contracts and agreements pertaining to the Property,
and not cancelable on thirty (30) days notice without penalty or premium, including,
but not limited to: (i) all management leasing, construction, architectural, maintenance,
operating and service contracts, (ii) all equipment leases and all rights and
options of Seller thereunder relating to equipment or property located in or
upon the Property or used in connection therewith, and (iii) guarantees and warranties
in effect with respect to the Property or any portion thereof.


 


1.1.5              “Property” means the
Real Property, the Personal Property, and the Contracts.


 


1.2.                              Sale
and Purchase.


 


Subject to all of the
terms and conditions hereof, Seller hereby agrees to sell to Purchaser, and
Purchaser hereby agrees to purchase from Seller, (a) the Real Property in fee
simple, and (b) the Personal Property.


 


1.3.                              Amount
and Payment of Purchase Price.


 


Subject to all the terms
and conditions hereof, and in particular Section 1.4 hereof, the purchase
price (“Purchase Price”) shall be Twenty One Million Nine Hundred Eighty
Thousand Dollars ($21,980,000.00). The Purchase Price shall be allocated
Thirteen Million One Hundred Thousand Dollars ($13,100,000.) to Irmo and Eight
Million Eight Hundred and Eighty Thousand Dollars ($8,880,000.) to Evans. The
Purchase Price shall be paid as follows:


 


1.3.1.                          Concurrently
with execution of this Agreement by Seller, Buyer shall deposit Four Hundred
Thousand Dollars ($400,000.00) with the Escrow Agent pursuant to Article 8.
hereof. The term “Deposit” shall mean all sums deposited with Escrow Agent
hereunder. At Closing, the Deposit shall, at Purchaser’s option, be credited
against the Purchase Price or returned to Purchaser. Except as otherwise
provided in this Agreement, the Deposit shall be non-refundable after the
expiration of the Evaluation Period.


 


1.3.2.                          The
full Purchase Price shall be paid by Buyer at Closing by wire transfer of immediately
available funds to the order of Seller at Closing.


 


1.4.                              Adjustments
to Purchase Price.


 


Attached hereto as
Exhibit B is a schedule identifying those stores, by Suite Number, which
are not under lease at Evans and Irmo as of the Effective Date, and a
stipulated value assigned to each unleased store. If, on the Closing Date, any
one or more of such unleased stores have not been leased for a term of at least
three (3) years and at base rents per square foot at least equal to the amounts
set forth on Exhibit B for each store with (i) all tenant improvements required
thereunder completed and paid for, (ii) all leasing commissions due in
connection therewith paid in full, (iii) a certificate of occupancy having been
issued for such space, and (iv) the tenant thereunder is, open for business and
paying at least the amount of Base Rent stipulated in Exhibit B for the space
in question, plus the tenant’s pro rate share of common area maintenance, taxes
and insurance, then the Purchase Price shall be reduced by the stipulated


 


2





















 


value assigned to
each such unleased store. For example, if Suite 7 in Evans is unleased as of
the Closing Date, then that portion of the Purchase Price allocated to Evans
shall be reduced by $51,888.00. then the Purchase Price shall be reduced by the
stipulated value assigned to each such unleased store. For example, if Suite 7
in Evans is unleased as of the Closing Date, then that portion of the Purchase
Price allocated to Evans shall be reduced by $51,888.00. –If, at Closing, there
is a fully executed lease on one or more of the stores shown on Exhibit B, and
such lease or leases meet all of the requirements of this Section 14
except that one or more of the requirements set forth in subsections. 14 (i),
(ii), (iii) and (iv) have not been satisfied (such leases are herein called “Non-Conforming
Leases”), then the amount by which the Purchase Price is so reduced shall be
deposited in escrow with the Escrow Agent. If, within twelve (12) months
following Closing, all of the requirements of subsections 14 (i), (ii), (iii)
and (iv) have been satisfied for any Non-Conforming Lease, then the Purchaser
shall so notify the Escrow Agent and the Seller in writing, whereupon the
Escrow Agent shall immediately pay over to Seller the amount of the escrow
deposit attributed to the Non-Conforming Lease or Leases in question. If,
within twelve (12) months following Closing, all of the requirements of
subsections 14 (i), (ii), (iii) and (iv) have not been satisfied for any
Non-Conforming Lease, then the Purchaser shall so notify the Escrow Agent and
the Seller, whereupon the Escrow Agent shall immediately pay over to Purchaser
the amount of the escrow deposit attributed to the Non-Conforming Lease or
Leases in question.


 


ARTICLE 2


EVALUATION
PERIOD; ACTIONS PRIOR TO CLOSING


 


2.1.                              Evaluation
Period; Tests.


 


Buyer shall have a period
commencing with the date of this Agreement, which shall be the date upon which
the last of Buyer and Seller have executed this Agreement (the “Effective Date”)
and terminating at 6:00 p.m. Chicago, Illinois time on the thirtieth (30) day
thereafter (the “Evaluation Period”) to make and conduct any and all
investigations (including but not limited to investigations of the matters
pertaining to the Property which are disclosed, by reference or otherwise, in
this Agreement and its Exhibits), tests, engineering evaluations, economic
feasibility evaluations, design evaluations, review of all financial and
property-related information, review of County real estate taxes, building code
and zoning records pertaining to the Property, and any other tests, studies, or
evaluations which Buyer may, in its sole discretion, deem necessary or
desirable in order to evaluate the Property, and to review the leases of
portions of the Property (“Leases”) and the suitability of the Property for
Buyer’s purposes. In the event that Buyer shall, in its sole discretion,
determine that the Property (and the terms and conditions of the Leases) are
suitable for Buyer’s purposes, then Buyer may, by giving written notice (“Notice
to Proceed”) to Seller at any time prior to the expiration of the Evaluation
Period, elect to proceed with this Agreement. All studies and tests made or
conducted by or for Buyer pursuant to this Section 2.1 shall be at Buyer’s
sole cost and expense and shall be subject to the provisions of Section 2.1.1.
In the event that Closing does not occur under this Agreement for any reason
other than Seller’s default, then, notwithstanding any other provision of this
Agreement purporting to terminate all rights and obligations hereunder, all
data and material, including plans, specifications, surveys, title commitments,
engineering studies and drawings, surveys, sketches, test results, contracts,
agreements and Leases relating to the Property delivered by Seller to Buyer
shall, at Seller’s request, be returned by Buyer to Seller.


 


3





















 


If, on or prior to the date of
expiration of the Evaluation Period, Buyer shall either fail to give Seller
Notice to Proceed, or shall fail to give Seller written notice of its election
to terminate this Agreement, then Buyer shall be deemed to have terminated this
Agreement pursuant to this Section 2.1 whereupon the Deposit shall be
immediately refunded to Buyer, this Agreement shall become null and void and
all parties hereto shall be released from all liability and responsibility
hereunder.


 


It shall be
clearly understood that the Buyer may give Notice to Proceed only with respect to
both Irmo and Evans. If the Buyer gives Notice to Proceed with respect to one
of the two shopping centers, then such Notice to Proceed shall be treated as a
termination of this Agreement pursuant to this Section 2.1.


 


2.1.1.                     Tests;
Entry. Buyer shall have the right (subject to the provisions of this Section 2.1.1
and any other applicable provisions of this Agreement) from and after the
Effective Date and until the end of the Evaluation Period (and until Closing if
this Agreement is not terminated during the Evaluation Period);


 


(a)          To perform
or cause to be performed such engineering, structural, mechanical, water,
sanitary sewer, utility, topographic, market, financial, environmental, infestation,
and/or other studies, tests, or investigations as Buyer may, in its sole
discretion, elect;


 


(b)         To enter, or
cause its agents or representatives to enter, upon the Property for the purpose
of making any of the aforesaid tests, investigations and/or studies. Any
exercise by Buyer of its rights to perform tests upon the Property pursuant to Section 2.1,
this Section 2.1.1 or any other provision of this Agreement or to review
the files and records of Seller or the manager of the Property (the “Manager”)
shall only be taken or made upon reasonable prior notice to Seller and to the
Manager. All tests, inspections, reports and investigations made by or for
Buyer pursuant to Section 2.1, this Section 2.1.1 or any other
provision of this Agreement shall be at Buyer’s sole risk, cost and expense and
all such tests, inspections, reports and investigations shall (to the extent
conducted or made at the Property) be conducted or made with due regard to the
business operations being conducted at the Property and the rights, privileges
and convenience of Seller’s tenants, guests, invitees and licensees; and


 


(c)          In connection
with any entry upon the Property prior to Closing, Buyer shall (i) permit a
representative of Seller to accompany Buyer and (ii) indemnify, defend and save
and hold harmless Seller from any and all damage to the Property or injury to
persons caused by such entry and at Seller’s option, prior to Buyer’s entry
upon the Property, Buyer shall provide Seller with a certificate evidencing
liability insurance in the amount of not less than $1,000,000., naming Seller
as an additional insured.


 


2.1.2.                     Access
to Information. Within five (5) days of the Effective Date, Seller shall
deliver the Buyer the items set forth on Exhibit C attached hereto, except for
those items crossed out or noted on Exhibit C as, “not applicable”, “Seller not
to provide” and those items not considered as applicable under item 2 of
Expense Information on Exhibit C. Those items noted on Exhibit C as “available
in management office”, or “if available, located in management office”, may be
inspected by Buyer in the office of the Seller’s management company.


 


4





















 


2.2.          Title
and Survey.


 


Buyer shall, at Buyers’
expense, satisfy itself as to the title to the Property in accordance with the
following provisions:


 


2.2.1.                     Within
five (5) days after the Effective Date, Buyer shall request, and thereafter
shall cause, Buyer shall cause Chicago Title Insurance Company (the “Title
Insurer”) to issue the Title Commitment (as hereinafter defined), together with
legible copies of any and all title exception documents referenced therein. The
“Title Commitment” shall mean a commitment for an ALTA Owner’s Title Insurance
Policy (Form B) for the Real Property issued by the Title Company in the full
amount of the Purchase Price, covering title to the Real Property on or after
the date hereof, showing Seller as owner of the Real Property in fee simple,
and providing for full extended coverage over all general title exceptions
contained in such policies and containing the following special endorsements
(collectively, the “Special Title Endorsements”) Zoning Endorsement 3.1
(amended to include parking and loading dock coverage), owner’s comprehensive,
access, survey (legal description equivalency), P.I.N., contiguity (if
applicable, encroachment (if applicable), utility facility, subdivision,
location, environmental lien and deletion of the arbitration provision and
creditors’ rights provision.


 


2.2.2                        Within
five (5) days after the Effective Date, Seller shall order, and Seller shall,
at Buyer’s expense cause a duly licensed land surveyor to deliver a current
ALTA/ACSM Title Survey of the Real Property prepared in accordance with the
Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys jointly
established by the American Land Title Association and the American Congress on
Surveying and Mapping in 1999, that meets the accuracy requirements of an Urban
Survey, as defined therein, and includes items 1, 3, 4, 6,7 (a, b and c), 8-11
and 13-16 of Table A thereof (the “Survey”). The Survey shall be otherwise
certified to Buyer and prepared in accordance with the certification and
additional requirements set forth on Exhibit D. attached hereto.


 


2.2.3  (a) In the event (i) the Survey shows any
easement, right-of-way, encroachment, conflict, protrusion or other matter
affecting the Real Property that is unacceptable to Buyer, or (ii) any
exceptions appear in the Title Commitment that are unacceptable to Buyer, Buyer
shall notify Seller in writing of such facts (“Buyer’s Title Objections”) not
later than 5:00 p.m. Central Time upon the date which is the later of the
expiration of the Evaluation Period or five (5) business days after the date
Buyer has received delivery of both the Survey and Title Commitment (the “Title
Approval Period”). Upon the expiration of the Title Approval Period, except for
Buyer’s Title Objections, Monetary Liens (as hereafter defined), and any other
matters arising subsequent to the date of the Survey and Title Commitment,
Buyer shall be deemed to have accepted the form and substance of the Survey,
the Title Commitment and all matters shown or addressed therein (collectively,
the “Approved Title Matters”).


 


(b)                                 Notwithstanding
anything to the contrary contained herein, except for any Monetary Liens and
any matters created after the date of the Title Commitment, Seller shall have
no obligation to take any steps or bring any action or proceeding or otherwise
to incur any effort or expense whatsoever to eliminate or modify any of Buyer’s
Title Objections; provided, however, Seller, at its sole option, may attempt to
eliminate or modify all or a portion of Buyer’s Title Objections to Buyer’s
reasonable satisfaction prior to the Closing Date. In the event Seller is
unable or unwilling to attempt to eliminate or modify all of Buyer’s Title
Objections to the reasonable satisfaction of Buyer, Seller shall provide
written notice thereof to Buyer within ten (10) business days of its receipt of
Buyer’s Title Objections (“Seller’s Notice”). Buyer may


 


5





















 


thereafter elect to close
notwithstanding Buyer’s Title Objections (in which case Seller shall have no
liability to eliminate or modify, and Buyer shall take the Property subject to,
the Buyer’s Title Objections) or Buyer may (as its sole and exclusive remedy)
terminate this Agreement by delivering notice thereof in writing to Seller, in
which event neither party shall have any obligation hereunder other than the
Surviving Obligations and Buyer shall be entitled to return of the Deposit.
Seller shall cause all mortgages, deeds of trust and monetary liens (including
liens for delinquent taxes, mechanics’ liens and judgment liens) affecting the
Property and all indebtedness secured thereby (the “Monetary Liens”) to be
fully satisfied, released and discharged of record on or prior to the Closing
Date.


 


(c)                                  The
term “Permitted Exceptions” as used herein includes: (i) all of the Approved
Title Matters, and (ii) any Buyer’s Title Objection other than Monetary Liens
or those items Seller agreed to eliminate or modify pursuant to Section 2.2.3(b),
that Buyer has elected to waive its objection with respect thereto pursuant to Section 2.2.3(b).


 


2.3.                              Inventory
of Personal Property.


 


An inventory of tangible
Personal Property (the “Inventory”) which Inventory shall be updated as of
Closing, and which update shall reveal no material changes to the Inventory, is
attached hereto as Exhibit E.


 


2.4.                              Rent
Roll; Leases.


 


The rent roll for the
Property (the “Rent Roll” is attached hereto as Exhibit F).


 


2.5.                              Contracts.


 


It is acknowledged and
agreed that as of the date hereof Seller and/or the Manager have entered into,
or are otherwise responsible for, certain employment, supply, service,
operating, leasing, tenant improvement and other contracts relating to the
Property. Copies of all such contracts and certificates confirming insurance
coverage will be delivered to Buyer within five (5) business days after the
Effective Date. A listing of all such contracts is set forth as Exhibit G.
Buyer shall review such contracts during the Evaluation Period and, if Buyer
gives Seller Notice to Proceed, Buyer will, prior to the expiration of the
Evaluation Period, advise Seller which of such contracts must be terminated by
Seller at or prior to Closing, as a condition of Closing. All such contracts which
are not to be terminated at or prior to Closing, and all other contracts
relating to the Property entered into after the date hereof with the prior
written consent of Buyer (which consent Buyer agrees not to unreasonably withhold
or delay, provided such contracts are terminable by Seller at any time for any
reason on no more than 30 days prior written notice) are herein collectively
referred to as the “Continuing Contracts.” In no event shall Buyer be obligated
to enter into or consent to any amendment, replacement or termination of a
Continuing Contract after the Evaluation Period except on such terms as may be
approved in writing by Buyer in advance.


 


2.6                                 Conduct
Pending Closing or Termination.


 


Prior to the earlier of
Closing or the termination of this Agreement:


 


2.6.1                        Conduct
Not Permitted. Seller shall not engage in or permit or suffer any of the
following acts to occur:


 


(a)  Any sale, assignment, disposition, or
encumbrance of any portion of the Real Property (except as otherwise expressly
provided in this Agreement) or of all or


 


6





















 


any substantial portion
of the Personal Property without Buyer’s prior written consent;


 


(b)  Any intentional action by Seller that would
result in any of Seller’s warranties and representations set forth in Article 3
not being and remaining true and correct as of Closing;


 


(c)  After the expiration of the Evaluation
Period, if the Buyer has given the Seller Notice to Proceed, Seller shall not
execute any new lease for any portion of the Property or a material amendment,
replacement, or termination of any of the Leases unless such execution,
amendment, replacement, or termination occurs with Buyer’s prior written
consent: provided, however, that Seller may enter into leases of the unleased
space listed in Exhibit B hereto, so long as such leases meet the criteria of Section 1.4
hereof. Seller shall immediately notify Buyer of any such actions taken during
the Evaluation Period, and Buyer shall have at least ten (10) business days to
review any such action. Any such action taken without Buyer’s prior written
consent shall, at Buyer’s option, give Buyer the right either to terminate this
Agreement and receive a return of the Deposit or to proceed to Closing without
any abatement of the Purchase Price; and


 


(d)  Seller shall not execute any new contracts
relating to the operation and maintenance of the Property to the extent such
contracts extend beyond Closing without the prior written consent of Buyer,
which consent shall not be unreasonably withheld. Seller shall immediately
notify Buyer of any such proposed actions.


 


2.6.2                        Seller’s
Covenants. Seller agrees that:


 


(a)  Seller shall furnish to Buyer copies of any
and all written notices that Seller receives from any governmental entity with
respect to the Property;


 


(b)  until Closing, Seller shall maintain for
Seller’s own benefit its existing insurance coverage on the Property (and Buyer
shall have the right at its cost and expense to maintain such additional
insurance with respect to the Property and its interest therein as Buyer may
deem to be necessary or appropriate);


 


(c)  after the expiration of the Evaluation
Period, Seller shall not settle any fire or casualty loss claims, or agree to
any award or payment in a Condemnation (as defined in Section 7.2),
without obtaining Buyer’s prior written consent in each case; provided,
however, that Buyer’s prior written consent shall not be required, and Seller
shall be free to make any settlement or agreement it deems necessary or appropriate
from and after the date, if any, on which the parties exercise (or are deemed
to have exercised) their option pursuant to Sections 7.1 or 7.2 to terminate this
Agreement for or on account of any such casualty or Condemnation; and further
provided that Seller may make a partial settlement to obtain insurance proceeds
(and may use such proceeds) to perform interim repairs or renovations to the
Property as required by any Lease, by any governmental authority or as required
to prevent further damage or deterioration to the Property;


 


(d)  Seller shall continue to operate and maintain
the Property in accordance with good business practices and shall maintain the
Property in good condition including making all necessary repairs and
replacements; and


 


(e)  At Closing there shall be no contracts
pertaining to the Property other than the Continuing Contracts which will be
assigned to Buyer.


 


7





















 


2.7.                           Condition
of Title.


 


At Closing, title to the
Real Property shall be subject only to the Permitted Exceptions.


 


2.8.                           Tenant
Estoppel Letters. 


 


Seller agrees to
use reasonable efforts to obtain tenant estoppel letters addressed to Buyer (the
“Tenant Estoppel Letters”) in the form attached hereto as Exhibit H. from all
of the tenants of the Property shown on the Rent Roll; to deliver to Buyer all
such letters which Seller is able to obtain through the use of reasonable
efforts signed by the tenants no later than five (5) days prior to Closing; and
to use reasonable efforts to cause tenants to sign corrected letters in the
event any such letter contains errors, omissions, or inaccuracies. In addition,
Seller agrees to execute and deliver estoppel letters in form as attached
hereto as Exhibit H-l, in place of and with respect to all tenants other than
the tenants identified in Sections 4.1.10(a) and (b) hereof, who do not
otherwise deliver a Tenant Estoppel Letter.


 


ARTICLE 3


REPRESENTATIONS
AND WARRANTIES


 


3.1.                              Representations
and Warranties by Seller.


 


As of the date hereof,
Seller hereby represents and warrants to Buyer as follows:


 


3.1.1.                         Seller
is authorized to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the conveyance
of the Property by Seller pursuant to this Agreement, do not otherwise require
the consent of any person, agency, entity or, as applicable, partner or
shareholder not a party to this Agreement.


 


3.1.2.                         Seller
has granted no option (which remains outstanding) or otherwise made any commitment
(which remains outstanding) to any person other than Buyer to sell, transfer,
or dispose of the Property or any interest therein (other than a leasehold
interest pursuant to the Leases).


 


3.1.3.                         This
Agreement does not violate the terms of any other contract or instrument to which
Seller is a party or by which Seller is bound.


 


3.1.4.                         Except
for the Continuing Contracts or as otherwise disclosed to Buyer, Seller is not
a party to any written or oral contract, and otherwise has no liability, actual
or contingent, for (i) the employment of any person with respect to the
Property, (ii) the payment of or provision for any bonus, profit-sharing plan,
retirement benefit, vacation benefit, hospitalization insurance, or similar
plan or practice, formal or informal, with respect to any current or past
employees with respect to the Property, or (iii) any labor union with respect
to the Property.


 


3.1.5.                         Seller
is not a “foreign person” as the term is defined in §1445 of the Internal Revenue
Code of 1986, as amended or replaced (the “Code”) and Seller agrees to execute
an affidavit to that effect at Closing.


 


3.1.6.                     There
are no actions or proceedings pending or to the best of Seller’s actual
knowledge, threatened to place Seller in bankruptcy or appoint a receiver for
Seller.


 


3.1.7.                     Property.
With respect to the Property and the ownership, leasing, management and
operation thereof, Seller represents and warrants that:


 


8





















 


(a) There are no
tenancies or occupancies affecting the Property or persons in possession of any
part thereof, except under the Leases described in the Rent Roll.


 


(b) Seller is not
a party to, and has no knowledge of, any of the following with respect to the
Property: (i) leases or conditional sales agreements of any personalty, (ii)
employment contracts, or union agreements, or retirement or pension plans,
(iii) signage agreements, (iv) licenses granting rights to parties other than
Seller, (v) merchants’ association or promotional service agreements, or (vi)
any similar commitments or agreements whatsoever incidental to the management,
operation or leasing of the Property, written or oral, except (A) the Contracts
set forth in Exhibit G, (B) the Leases, (C) the Permitted Exceptions and (D)
the existing management and leasing contracts and other contracts to be
canceled by Seller at or before Closing, unless otherwise continued by Buyer at
Buyer’s sole election.


 


(c) Copies of the
Rent Roll and Leases and the Contingency Contracts set forth in Exhibits F and
G which have been delivered to Buyer on or prior to the date hereof are true,
accurate and complete copies of all documents comprising the Leases and the
Contracts set forth in Exhibits F and G, with all supplements, amendments and
exhibits thereto and there are no modifications or other agreements, written or
oral, affecting the Leases or the Contracts set forth in Exhibits F and G.


 


(d) There is no prepaid
rent (other than rent prepaid no more than one (1) month in advance pursuant to
the terms of the relevant Leases) with respect to the Property, and no security
deposits relating to the Leases or otherwise affecting any of the Property have
been collected other than as reflected on Exhibit F hereto. Except as set forth
on Exhibit I hereto, and otherwise to the best of Seller’s knowledge, there is
no material default by any party under any of the Leases.


 


(e) There is no
litigation, claim, audit, action or proceeding pending or to the best of Seller’s
knowledge, threatened before or by any court, public board or body or
governmental or administrative agency or instrumentality against Seller or
against Seller by any tenant or by any other person or entity in any manner
affecting the Property, except for claims by third parties for personal
injuries at the Property which are being defended by Seller’s insurance
company, and except as shown on Exhibit J hereof. As to such claims, Seller
hereby agrees to protect, defend, indemnify and save Buyer and Buyer’s
permitted assignee harmless from any and all claims, demands, liabilities and
damages, arising therefrom.


 


(f) As of the
Effective Date there is no delinquent property tax, levy or assessment against
the Property.


 


(g) To the best of
Seller’s knowledge, except as shown on Exhibit K hereto, there is no pending or
threatened condemnation proceeding against the Property or any portion thereof,
nor have Seller or its agents received any written notice of any public
request, plans or proposals for changes in road grade, access or other municipal
improvements that may affect the Property or result in a tax, levy or
assessment against the Property.


 


(h) As of the Effective
Date Seller has received no written notice of any alleged violation of any
fire, zoning, applicable comprehensive plans, building, health or


 


9





















 


environmental laws,
regulations or rulings, whether federal, state or local, or of any other
alleged violations of law which affect the Property. (i) To the best of Seller’s
knowledge as of the Effective Date, (i) there are no hazardous waste or
hazardous substances stored or located upon or under any portion of the
Property; (ii) the Property is not used to treat, store or dispose of waste
materials, hazardous substances, asbestos or PCBs; (iii) there is no leaking or
drainage of waste materials or hazardous substances into the ground water
beneath or adjacent to the Property; and (iv) there are no buried or
semi-buried or otherwise placed tanks, storage vessels, drums or containers of
any kind manufactured, stored or located on the Property.


 


3.2.                              Representations
by Buyer.


 


As of the date hereof,
Buyer hereby represents and warrants to Seller as follows:


 


3.2.1.                      Buyer
is fully competent and authorized to enter into this Agreement and to consummate
the transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby by Buyer do not require
the consent of any person, agency or entity not a party to this Agreement.


 


3.2.2.                      There
are no actions or proceedings pending or threatened to liquidate, reorganize, arrange,
place in bankruptcy, appoint a receiver for, or dissolve Buyer.


 


3.2.3.                      This
Agreement does not violate the terms of any other contract or instrument to which
Buyer is a party or by which Buyer is bound.


 


ARTICLE 4


CONDITIONS
OF CLOSING


 


4.1.                              Conditions
Precedent to the Obligations of Buyer.


 


In addition to any other
conditions precedent stated in this Agreement, the obligations of Buyer to
purchase and make payment for the Property pursuant to the provisions of this
Agreement shall be subject to the following conditions:


 


4.1.1.                     The
representations and warranties made by Seller hereunder shall be true and
correct on and as of Closing.


 


4.1.2.                         There
will not be pending or threatened as of Closing any litigation, proceeding or investigation,
including but not limited to, any bankruptcy, arrangement, reorganization, insolvency
or foreclosure proceedings (but excluding any Condemnation which shall be
governed by Article 7 hereof): (i) materially and adversely affecting the
Property; or (ii) against or involving Seller that would materially and
adversely affect Seller’s title to the Property.


 


4.1.3.                         Between
the date of this Agreement and Closing, Seller shall have complied with the
obligations and covenants contained in Sections 2.7 and 2.9 hereof.


 


4.1.4.                         As
of Closing, the status of title of the Property shall be as set forth in Section 2.8
hereof.


 


4.1.5.                         The
holder of all mortgages encumbering the Property shall have executed and delivered
letters to the Escrow Agent and the Buyer stating the amounts necessary to pay
off and then satisfy such mortgages as of Closing; including prepayment
premiums and other charges, all of which shall be Seller’s responsibility to pay.


 


10





















 


4.1.6.                      Seller
shall execute and deliver all documents and shall take all other actions required
of Seller pursuant to Article 5.


 


4.1.7.                      Buyer
shall not have discovered or become aware of any environmental liability associated
with or arising out of the use, operation, or ownership of the Property.


 


4.1.8.                      Buyer
shall have obtained a letter or letters from the appropriate local municipal authority
or authorities in form and content reasonably acceptable to Buyer, stating in
substance that the Property is zoned for its current use, that all required
development and subdivision approvals have been obtained and that there are no
known building code violations.


 


4.1.9.                      All
contracts which are not Continuing Contracts shall have been terminated at or prior
to Closing and written evidence thereof submitted to Buyer.


 


4.1.10.                Seller
shall have delivered to Buyer prior to Closing, Tenant Estoppel Letters reasonably
satisfactory to Buyer from (a) Kroger, Pizza Hut and Dollar Tree in the case of
Irmo, (b) Publix, in the case of Evans, and (c) Seventy Percent (70%) in number
of all other tenants, dated not more than thirty (30) days prior to Closing. In
addition, Seller agrees to execute and deliver estoppel letters in form as
attached hereto as Exhibit H-l, in place of and with respect to all tenants
other than tenants identified in Sections 4.1.10(a) and (b) hereof, who do not otherwise
deliver a Tenant Estoppel Letter.


 


4.2.                              Conditions
Precedent to the Obligations of Seller.


 


In addition to any other
conditions precedent stated in this Agreement, the obligations of Seller to
sell the Property pursuant to the provisions of this Agreement shall be subject
to the following conditions:


 


4.2.1.                       The
representations and warranties made by Buyer in Section 3.2 shall be true
and correct on and as of Closing.


 


4.2.2.                       There
will not be pending any litigation, proceeding, or investigation, including but
not limited to, any bankruptcy, arrangement, reorganization, or insolvency proceeding
against or involving Buyer that would materially and adversely affect Buyer’s
ability to consummate Closing.


 


4.2.3.                       Buyer
shall pay the Purchase Price, shall execute and deliver all documents, and shall
take all other actions required of Buyer pursuant to Article 5.


 


ARTICLE 5

CLOSING


 


5.1.                              Time
and Place.


 


Unless this
Agreement is extended or sooner terminated, Buyer and Seller agree to make full
settlement on or before thirty (30) days following the date Buyer gives Notice
to Proceed to Seller, but in no event shall Closing occur on September 8,
2004 through and including September 20, 2004 or December 8, 2004
through and including December 20, 2004, at the offices of the Escrow
Agent or at such other time, place and date as may be agreed upon by Buyer and
Seller in their respective sole discretion.


 


5.2.                              Payment
of Purchase Price.


 


At Closing, Escrow Agent
shall deliver the Deposit to Seller, and Buyer shall pay the balance of the
Purchase Price as provided in Section 1.3.2.


 


11





















 


5.3.                              Transfer
of Title to Real Property.


 


At Closing, and
upon payment of the Purchase Price and full performance by Buyer, Seller shall
convey to Buyer, by limited warranty deed, in the case of Irmo, and limited
warranty deed, in the case of Evans,, title to the Real Property in fee simple
absolute, subject to the Permitted Exceptions, which shall include ad valorem
real property taxes for the year of closing and subsequent years, provided that
none of such taxes are due and payable and prorated as elsewhere provided
herein.


 


5.4.                              Closing
Documents.


 


The following documents
shall be executed and/or delivered as of Closing with respect to each of Irmo
and Evans:


 


5.4.1.                        Seller
shall execute and deliver the limited warranty deeds conveying the Real Property
to Buyer. If the Buyer obtains a new or updated survey of the Real Property and
the legal description set forth in Purchaser’s survey differs from the legal
description set forth in Exhibit A hereto, Seller shall also execute and
deliver a quitclaim deed containing a legal description based upon Purchaser’s
survey.


 


5.4.2.                        Seller
shall execute and deliver a Bill of Sale transferring to Buyer all of Seller’s right,
title and interest in the Personal Property, if any, free and clear of all
charges, security interests, mortgages, liens, and encumbrances created or
arising by or through Seller (other than Permitted Exceptions).


 


5.4.3.                        (a)
Seller and Buyer shall each execute and deliver an Assignment and Assumption of
Leases pursuant to which Seller shall assign, and Buyer shall from and after
the date of Closing, assume, all of Seller’s right, title, interest, rights,
duties, and obligations under all Leases;


 


(b) Seller and Buyer
shall each execute and deliver an Assignment and Assumption of Contracts and
Warranties pursuant to which Seller shall assign, and Buyer shall from and
after the date of Closing, assume all of Seller’s rights, title interest,
duties and obligations under the Contracts and all Continuing Contracts in force
and effect as of Closing, and such other matters (limited to Seller’s rights
therein and only to the extent assignable) as are to be assigned by Seller to
Buyer hereunder (such other matters to include any warranties, permits,
licenses, and other items necessary or useful in connection with the operation
of the Property).


 


5.4.4.                           To
the extent not previously delivered, at Closing Seller shall deliver to Buyer
(i) the originals of all Leases then in force and effect (or to the extent that
Seller does not have an original executed copy of any of the Leases in Seller’s
possession, a photostatic copy of such Lease, together with a certification by
Seller that such photostatic copy is a true and correct copy of such Lease) and
the originals or true copies of all Continuing Contracts then in force and effect;
(ii) the originals or true copies of all real estate tax records, utility
bills, and other records relating to the use, ownership and operation of the
Real Property during the period owned by Seller to the extent in Seller’s or an
affiliate or agent of Seller’s possession as of Closing; (iii) all plans,
specifications and “as builts” relating to the Real Property to the extent in
Seller’s or an affiliate or agent of Seller’s possession as of Closing; (iv)
the most recent certificates of use and occupancy to the extent in Seller’s or
an affiliate or agent of Seller’s possession as of Closing; (v) to the extent
not already provided herein, any warranties, guarantees, operating manuals or
documents, maintenance, supply, and service contracts, engineering data, and
other documents


 


12





















 


respecting the use,
operation, or ownership of the Property which are in Seller’s or an affiliate
or agent of Seller’s possession as of Closing; (vi) the Tenant Estoppel Letters
required to be delivered pursuant to Section 2.9 above to the extent the
same have been obtained by Seller; and (viii) all access, operating, or other
keys to the Property in Seller’s possession as of Closing.


 


5.4.5.                        Seller
shall deliver the Inventory of the Personal Property, if any, updated as of Closing.


 


5.4.6.                        Seller
and Buyer shall approve a closing statement reflecting costs and adjustments
set forth in Sections 6.1 and 6.2.


 


5.4.7.                        Seller
shall execute and deliver to Buyer an affidavit confirming that Seller is not a
“foreign person” under §1445 of the Code.


 


5.4.8.                        Seller
shall deliver in a form reasonably acceptable to Buyer a notification to tenants
of the sale and purchase of the Property, which notification shall instruct the
tenants to pay all rent and charges directly to Buyer, from and after the
Closing.


 


5.4.9.                        Seller
shall deliver to Buyer the letter or letters required by Section 4.1.8.
hereof.


 


5.4.10.                  Seller
shall execute and deliver to Buyer the audit letter in the form of Exhibit L attached
hereto.


 


5.5.                              Definition
of Closing.


 


All of the actions
described in Sections 5.3 through 5.4 shall be deemed to have been taken
simultaneously, none of such actions shall be deemed to have been taken unconditionally
until all of such actions have been fully performed, and all of such actions
are collectively referred to herein as “Closing.”


 


5.6.                              Possession.


 


Seller shall deliver
possession of and occupancy to the Property to Buyer as of Closing, subject to
all Leases, all Permitted Exceptions, and any other matters permitted by this
Agreement or created or otherwise consented to in writing by Buyer.


 


ARTICLE 6


CLOSING
COSTS AND ADJUSTMENTS


 


6.1.                              Closing
Costs.


 


Buyer shall pay the costs
of recording the deed and other title transfer documents and cost of any
financing obtained by Buyer, including the fee owner’s and any mortgagee’s
title policy, premiums, title commitment fees, recording fees, commitment fees
and mortgage loan fee. Each party shall bear the fees of its respective
attorneys and advisors. Seller shall pay any brokerage commission due Seller’s
agent, Trammell Crow Company, in connection with this sale and purchase
transaction. Realty transfer taxes shall be paid by Seller. Buyer shall pay for
the cost of the survey referenced in Section 2.3 hereof.


 


6.2.                              Closing
Adjustments.


 


6.2.1.                     Except as
hereinafter specifically provided to the contrary, all minimum rent, additional
rent and other sums payable under the Leases; all current operating expenses,
all real estate taxes, (on the basis of the actual fiscal years for which such
taxes are assessed), other taxes and assessments (whether general or special);
and all utilities, water and sewer charges


 


13





















 


(excluding, however, any
utilities, water and sewer charges paid or payable directly by the tenants
under the Leases), shall be adjusted and prorated as of Closing. Any credit due
to Buyer pursuant to this subsection 6.2.1 shall be applied against the
Purchase Price; and any credit due to Seller pursuant to this Section 6.2.1
shall be paid by Buyer to Seller at Closing as an addition to the Purchase
Price in the manner of payment set forth in Section 1.3.3.


 


6.2.2.                       Seller
and Buyer acknowledge and agree that it may not be possible to effect a final
reconciliation of all income and expense items that are to be adjusted until
after Closing. The parties agree to cooperate in good faith in effecting such a
final reconciliation and each party shall promptly pay (or reimburse the other
party for) any expenses item that is chargeable to the other party and shall
promptly remit any income item to the other party if entitled thereto. Seller covenants
that it shall retain the financial ability to make such adjustments.


 


6.2.3.                       Seller
shall use its best efforts to arrange for the rendition of final bills by the utility
companies involved as of Closing (excluding, however, any bills for utilities
consumed by an individual tenant if such tenant is obligated by its lease to
pay separately for the utilities consumed by it), but in the event such final
bills cannot be rendered or obtained by Closing, final adjustments shall be
made within sixty (60) days after Closing.


 


6.2.4.                       Notwithstanding
anything contained herein to the contrary, rent in arrears for months prior to
Closing shall not be prorated. Buyer shall promptly pay to Seller any rental received
by Buyer attributable to rents in arrears as of Closing (and Buyer shall apply
any rental received to the most current rental due and owing when such payment
was made). Buyer shall use reasonable efforts to collect back rent due Seller,
but shall not be required to file suit or to evict delinquent tenants. Within
ninety (90) days after Closing, Buyer shall deliver to Seller a written report
setting forth the status of its collection of delinquent rents as of sixty (60)
days after Closing. The terms of this Section 6.2.4 shall survive Closing.


 


6.2.5.                       The
apportionment of percentage rental, if any, payable under any of the Leases (“Percentage
Rent”) (and the amounts due Buyer and Seller respectively under each of the
Leases with respect thereto) shall be made and paid on or before the thirtieth
(30th) day following the date when the last amount due on account of such
Percentage Rent shall have been paid by the tenant under its Lease with respect
to the percentage rent lease year (as defined in each of the Leases) in which
the Closing occurs. The amount to be apportioned shall be the total of the amounts
collected by both Buyer and Seller as percentage rent for such percentage rent
lease year. Seller’s portion thereof shall be an amount which bears the same
ratio to the total percentage rent for the applicable percentage rent lease
year as the number of days up to and including the date of Closing in such
percentage rent lease year shall bear to the full number of days in such
percentage rent lease year; and Buyer shall be entitled to the remaining
portion. Buyer shall use its reasonable efforts to cause all Percentage Rent
payments for the percentage rent lease years with respect to which percentage
rent is to be apportioned between Buyer and Seller to be paid to Buyer by all
tenants under the Leases; and Buyer shall divide and distribute the amounts so
collected between Buyer and Seller in accordance with the provisions hereof. Each
of Seller and Buyer shall deliver to the other (promptly after receipt) copies
of all sales reports received by it from tenants under the Leases for the
percentage rent lease years in which the date of Closing occurs.


 


Notwithstanding anything
to the contrary contained in this Section 6.2.5., it is understood and
agreed that if, at the time of Buyer’s receipt of percentage rent from a
particular tenant, such tenant is in arrears for all or any portion if its 2005
pass-through charges (the “Pass Through Charge Arrearage”) then the Seller
shall only be entitled to receive its portion of that amount of


 


14





















 


the percentage rent
payment which exceeds the amount of the Pass-Through Charge Arrearage. If, on
or before December 31, 2005, such tenant subsequently remits to Buyer the
amount of the Pass-Through Charge Arrearage, then Buyer will pay to Seller the
Seller’s remaining portion of the percentage rent payment withheld as aforesaid.


 


6.2.6.                     Seller shall
be deemed to have retained and reserved to itself at Closing all claims against
tenants or former tenants or their bankrupt estates for arrearages under any of
the Leases existing at Closing or under any prior leases. The claims retained
and reserved to Seller pursuant to the provisions of this Section 6.2.6
shall be limited to claims and actions for the collection of money, and at no
time shall Seller have the right after the completion of Closing to seek
ejectment of a tenant under any of the Leases or termination of a Lease.


 


6.3.                              Security
Deposits.


 


At Closing Buyer shall
receive a credit against the Purchase Price for the total sum of all tenant
security deposits paid by tenants under the Leases.


 


6.4.                              Survival
of Closing.


 


The obligations of Seller
and Buyer in this Article 6, shall survive Closing.


 


ARTICLE 7

CASUALTY AND CONDEMNATION


 


7.1.                              Casualty.


 


7.1.1.                        Subject
to the provisions of this Article 7, risk of loss or damage to the Real Property
from fire or other casualty shall remain on Seller until Closing.


 


7.1.2.                        If
any of the improvements included in the Real Property shall be destroyed or damaged
prior to the Closing, and if either the estimated cost of repair or replacement
exceeds Five Hundred Thousand Dollars ($500,000.), or the damage permits the
termination of one or more of the Leases or, except to the extent affected by
the matters described in Exhibit K, causes loss of parking or access, Buyer
may, by written notice given to Seller within twenty (20) days after receipt of
written notice from Seller of such damage or destruction, elect to terminate
this Agreement, in which event the rights, duties, obligations, and liabilities
of all parties hereunder shall immediately terminate and be of no further force
or effect, and the Deposit shall forthwith be returned to Buyer. If Buyer does
not elect to terminate this Agreement pursuant to this Section 7.1.2, or
has no right to terminate this Agreement (because the damage or destruction does
not exceed $500,000.00 and does not permit the termination of one or more of
the Leases), or there is no loss of parking or access other than such as
results from the matters described in Exhibit K hereof, and the sale of the
Property is consummated, Purchaser shall receive an assignment of all insurance
proceeds paid or payable to Seller by reason of such destruction or damage
under Seller’s insurance policies (less amounts of insurance theretofore
received and applied by Seller to costs actually incurred for restoration), together
with a credit in the amount of Seller’s deductible. Seller shall not settle or
release any damage or destruction claims without obtaining Buyer’s prior
written consent in each case. All said insurance proceeds received by Seller by
the date of Closing shall be paid by Seller to Buyer at Closing. In addition,
at Closing, Seller shall pay over to Buyer and assign to Buyer, all proceeds of
any rent loss insurance for the period of time commencing on the date of
Closing. If the amount of said casualty or rent loss


 


15





















 


insurance proceeds is not
settled by the date or Closing, Seller shall execute at Closing all proofs of
loss, assignments of claim, and other similar instruments in order that Buyer
receive all of Seller’s right, title, and interest in and under said insurance
proceeds.


 


7.2.                              Condemnation.


 


If, on or prior to the
Closing, any portion of the Property except as set forth on Exhibit I is
subjected to a bona fide threat of condemnation by a body having the power of
eminent domain or is taken by eminent domain or condemnation (or sale in lieu
thereof), or if Seller has received notice that any condemnation action or
proceeding with respect to the Property is contemplated by a body having the
power of eminent domain, Seller shall give Buyer immediate written notice of
such threatened or contemplated condemnation or of such taking or sale, and
Buyer may by written notice to Seller given within thirty (30) days of the
receipt of such notice from Seller, elect to cancel this Agreement. If Buyer
chooses to cancel this Agreement in accordance with this Section 7.2, the
rights, duties, obligations, and liabilities of the parties hereunder shall
immediately terminate and be of no further force and effect. If Buyer does not
elect to cancel this Agreement in accordance herewith, this Agreement shall
remain in full force and effect and the sale of the Property contemplated by
this Agreement, less any interest taken by eminent domain or condemnation, or
sale in lieu thereof, shall be effected with no further adjustment and without
reduction of the Purchase Price, and at the Closing, Seller shall assign,
transfer, and set over to Buyer all of the right, title, and interest of Seller
in and to any awards that have been or that may thereafter be made for such
taking. At such time as all or a part of the Property is subjected to a bona
fide threat of condemnation and Buyer shall not have elected to terminate this
Agreement as hereinabove provided, Purchase shall be permitted to participate
in the proceedings as if Buyer were a party to the action. Seller shall not
settle or agree to any award or payment pursuant to condemnation, eminent
domain, or sale in lieu thereof without obtaining Buyer’s prior written consent
thereto in each case.


 


ARTICLE 8


ESCROW
AGENT


 


8.1.                              Appointment
of Escrow Agent.


 


The parties hereby
designate Chicago Title Insurance Company to serve as escrow agent hereunder
(herein “Escrow Agent”).


 


8.2.                              Duties
of Escrow Agent.


 


Escrow Agent shall
deposit the Deposit, as received, in a federally insured account in a bank or
other financial institution as directed by Buyer in the name of Escrow Agent as
escrow agent. Escrow Agent shall have the right to disburse the Deposit in
accordance with the terms of this Agreement and any interest earned on the
deposit shall be disbursed by the Escrow Agent as directed by the Purchaser.
The Escrow Agent shall have no liability to any party on account of Escrow
Agent’s failure to disburse the Deposit if a dispute shall have arisen with
respect to the propriety of such disbursement; and, in the event of any dispute
as to who is entitled to receive the Deposit the Escrow Agent may disburse it
in accordance with the final order of a court of competent jurisdiction, or may
deposit the Deposit with such a court pending a final decision of such
controversy (and any reasonable attorney’s fees or legal costs paid or incurred
by Escrow Agent shall be out-of-pocket disbursements for which the parties
shall be liable to reimburse


 


16





















 


Escrow Agent). The
parties hereto further expressly agree that Escrow Agent shall not be liable
for failure of any depository and shall be otherwise liable only in the event
of Escrow Agent’s gross negligence or willful misconduct.


 


8.3.                              Survival
of Termination.


 


Escrow Agent’s
obligations to disburse or refund the Deposit, the obligation of the parties
with respect to the reimbursement of Escrow Agent’s out-of-pocket expenses and
the other provisions of this ARTICLE 8 shall survive any termination of
this Agreement.


 


ARTICLE 9


MISCELLANEOUS


 


9.1.          Brokerage.


 


Seller and Buyer
represent and warrant to each other that neither has dealt with a broker in
connection with this transaction except as set forth below. Seller and Buyer
each warrant and represent to the other that, except as set forth below, no
agent, broker, or finder has acted for the warranting party in connection with
this Agreement or is entitled to compensation on account of the transactions
contemplated hereby. Seller acknowledges that it has utilized the services of Trammell
Crow Company in connection with this transaction, and shall pay all brokerage
commissions for the services of Trammell Crow Company. The obligations of the
parties pursuant to this Section 9.1 shall survive Closing hereof and any
termination hereof.


 


9.2.          Remedies Upon
Default.


 


9.2.1.                           Buyer
and Seller agree that it would be impracticable and difficult to ascertain the actual
damages which would be suffered by Seller if Buyer wrongfully fails to
consummate the purchase and sale contemplated herein. Buyer and Seller have
carefully considered the loss to Seller occasioned by taking the Property off
the market as a consequence of the negotiation and execution of this Agreement,
the Seller’s performance hereunder, and the other damages, general and special,
which Buyer and Seller realize and recognize Seller will sustain but which
cannot be calculated with certainty. Based on all those considerations, Buyer
and Seller have agreed that the damage to Seller from an uncured breach by
Buyer of its obligation to complete Closing would reasonably be expected to
equal the amount of the Deposit. Accordingly, if all conditions precedent to
Buyer’s obligation to consummate the transactions herein contemplated have been
waived by Buyer or satisfied, but Buyer does not timely complete Closing, and
if Buyer fails to cure such breach or default within ten (10) days after
written notice thereof from Seller, the Seller shall as its sole and exclusive remedy,
be entitled to be paid, and to retain, the Deposit as full and complete
liquidated damages. Thereafter, this Agreement shall terminate, and the parties
hereto shall have no further rights or obligations to each other under this
Agreement, either at law or in equity or otherwise, except that the obligations
of Buyer pursuant to the provisions of Section 2.1.1(c)(ii) shall continue
in full force and effect.


 


9.2.2.                           If
all conditions precedent to Seller’s obligations to consummate the transactions
herein contemplated have been waived by Seller or satisfied and if Buyer has
materially performed its covenants and obligations and is not otherwise in
material default hereunder, but Seller has breached its covenants, warranties,
representations, agreements, undertakings, or obligations or is otherwise in
default hereunder and, as a result, is unable to consummate the


 


17





















 


purchase and sale
contemplated herein at Closing and if Seller fails to cure such breach or
default within thirty (30) days after notice thereof from Buyer, or if all
conditions precedent to Buyer’s obligation to consummate the transactions
herein contemplated have not been waived by Buyer or satisfied, then the sole
and exclusive remedies of Buyer shall be either to terminate this Agreement by
giving Seller written notice of termination, in which event the Deposit shall
be forthwith returned to Buyer, and the parties hereto shall have no further
rights or obligations to each other under this Agreement, either at law or in
equity or otherwise, or to waive such breach, failure to satisfy condition(s)
precedent or default and bring an action against Seller for specific
performance of its obligations hereunder to sell and convey the Property to
Buyer.


 


9.3.          Indemnification.


 


9.3.1.                       Buyer
and Seller each agree to indemnify and hold the other harmless from and against
all claims, demands, debts, dues, liabilities, actions, causes of action,
costs, and expenses (including reasonable attorneys’ fees) that may be asserted
against or paid or incurred by the indemnified party for, on account of, or in
connection with any breach by the indemnifying party of its payment obligations
and/or warranties and representations contained in Section 9.1.


 


9.3.2.                       The
indemnity contained in this Section 9.3 shall survive Closing or any
sooner termination of this Agreement.


 


9.4.          Amendment.


 


This Agreement may not be
modified, amended, or discharged, and no provision hereof may be waived, except
by an instrument in writing and duly executed by the party against whom
enforcement of the amendment, modification, discharge, or waiver is sought.


 


9.5.          Notices. 


 


All notices,
waivers, approvals, consents, demands, requests, or other communications (collectively,
“Notices”) which may be or are required to be given, served, or sent by any
party hereto to the other party hereto pursuant to, or in connection with, this
Agreement shall be in writing and shall be hand delivered, sent by Federal
Express, or similar overnight service, or mailed by first class, registered, or
certified mail, return receipt requested, or transmitted by telegram, telex, or
telecopy, addressed as follows:


 


If to Seller:                                                                                       Eastern
Retail Holdings Limited


Partnership


1600 Market Street, Suite
1310 


Philadelphia, PA 19103-7501



att: Benjamin A. Suit 


Fax #215-446-8101


 


With a copy to:                                                             John
S. Randolph, Jr., Esq. 


555 Croton Road 


Suite 120


King of Prussia, PA
19406-3176 


Fax #610-337-8281


 


18





















 


If to Buyer:                                                                                    Inland
Real Estate Acquisitions, Inc.


501C Manatee
Avenue West 


Holmes Beach,
Florida 34217 


Attn: Steven
Sanders 


Phone: (941)
779-1000 


Fax: (941) 779-2000


 


With a copy to:                                                             The
Inland Real Estate Group, Inc. 


Law Department 


2901 Butterfield
Road


Oak Brook,
Illinois 60523


Attn: Dennis K.
Holland, Esq.


Phone: (630) 218-8000 


Fax: (630) 218-4900


 


If to Escrow Agent:                                        Chicago
Title Insurance Company


171 N. Clark
Street


Chicago, Illinois


Attn: Ms. Nancy
Castro


Phone: (312) 223-3909


Fax: (312) 223-2108


 


Each party may designate
by Notice in writing, at least five (5) business days before its effective
date, a new address or addressee to which any Notice may thereafter be given,
served, or sent. Each Notice which is given, served, or sent in the manner
specified in this Section 9.5 shall be deemed to have been given and
received as of the date it is delivered or as of the date on which delivery is
refused or unclaimed by the addressee upon presentation. Notices may be given,
served or sent by registered or certified mail, by express mail delivery or by
facsimile transmission.


 


9.6.          Assignment.


 


Buyer shall have the
right to assign this Agreement without Seller’s consent to an entity in which
either it, Inland Western Retail Real Estate Trust, Inc., or an affiliate of
either is a managing member or general partner. Otherwise, Buyer shall have no
right to assign this Agreement unless Seller’s prior written consent is
obtained.


 


9.7.          Parties Bound.


 


All terms, conditions,
covenants, warranties, representations, agreements, undertakings, and
obligations hereunder shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, legal representatives, successors,
and assigns.


 


9.8.          Time of
Essence.


 


TIME IS OF THE ESSENCE OF
THIS AGREEMENT.


 


19





















 


9.9.          Waiver.


 


Neither the waiver by
either of the parties hereto of a breach of or a default under any of the
provisions of this Agreement, nor the failure of either of the parties, on one
or more occasions, to enforce any of the provisions of this Agreement or to
exercise any right or privilege hereunder shall thereafter be construed as a
waiver of any subsequent breach or default of a similar nature, or as a waiver
of any of such provisions, rights, or privileges hereunder.


 


9.10.        Construction.


 


Buyer and Seller
acknowledge that they both participated equally in the negotiation and drafting
of this Agreement and that, accordingly, no court construing this Agreement
shall construe it more stringently against one of such parties than against the
other.


 


9.11.        Entire Agreement.


 


This Agreement, including
the Exhibits which are an integral part hereof, constitutes the entire
agreement between Seller and Buyer with respect to the transactions
contemplated herein, and it supersedes all prior oral or written agreements,
commitments, or understandings with respect to the matters provided for herein.
No agreements, representations, or warranties have been made by Buyer or Seller
except as specifically set forth in this Agreement, and in particular, no oral
or written expression, or non-verbal conduct of a person intended by such
person as a substitute for oral or written expression, will be attributed to
Buyer or Seller as an agreement or a warranty or representation, except as specifically
set forth in this Agreement. The provisions of this Section 9.11 shall
survive Closing or a termination of this Agreement.


 


9.12.        Pronouns.


 


All pronouns and any
variations thereof shall be deemed to refer to the masculine, feminine, neuter,
singular or plural, as the identity of the person or entity may require.


 


9.13.        Headings.


 


Article and Section headings
contained in this Agreement are inserted for convenience of reference only,
shall not be deemed to be a part of this Agreement for any purpose, and shall
not in any way define or affect the meaning, construction or scope of any of
the provisions hereof.


 


9.14.        Applicable Law.


 


This Agreement shall be
given effect and construed by application of the law of the Commonwealth of
Pennsylvania without regard to principles of conflicts of laws.


 


9.15.        Covenant Against
Recording.


 


This Agreement shall not
be recorded in any public record, and neither party shall cause to be recorded
a notice of the existence of this Agreement, or any other writing asserting an
interest in the Property prior to the Closing. Any recordation in violation of
this Section 9.15 shall relieve the non-recording party from any further
obligation, and shall entitle that party to resort to the remedies provided in Section 9.2.


 


9.16.        Computation of
Time.


 


In computing any time for
giving Notices or other period of time prescribed or allowed by any provision
of this Agreement, the day of the act, event, or default from which the
designated


 


20





















 


period of time begins to
run shall not be included. The last day of the period so computed shall be
included, unless it is a Saturday, Sunday, or a legal holiday in Philadelphia,
Pennsylvania in which event the period runs until the end of the next day which
is not a Saturday, Sunday or legal holiday. Unless otherwise specified herein,
all notice or other periods expire as of 5:00 p.m., eastern standard time on
the last day of the notice or other period.


 


9.17.        Counterparts.


 


This Agreement may be
executed in counterparts by the parties, each of which shall be deemed an
original document, and all of which together shall be considered a single
document.


 


9.18.        Waiver of Tender.


 


The tender of an executed
Deed by Seller and the tender by Buyer of the Purchase Price at Closing are
hereby mutually waived; but nothing herein contained shall be construed as a
waiver of Seller’s obligation to deliver the Deed and/or of the concurrent
obligation of Buyer to pay the Purchase Price at Closing.


 


9.19.        Condition of
Property.


 


Except as explicitly
otherwise provided in the Agreement, the Property shall be conveyed to Buyer “AS
IS, WHERE IS”, without any representation or warranty of title or conditions of
the Property, either express or implied.


 


9.20.        Withholding on
Sales of Real Property


 


Seller is hereby advising
Buyer that South Carolina law and Georgia law will require Buyer to withhold
from the sales proceeds an amount equal to state income taxes from the sale of
the Property, and to remit the withheld amount to the applicable state taxing
authorities unless the Seller can qualify as a “deemed resident” of the state
in question. Seller and Buyer will cooperate with each other to assure that the
withholding requirements, if any, of each state are complied with.


 


 


(Signature
Page on Following Page)


 


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IN WITNESS WHEREOF,
Seller and Buyer have caused this Agreement to be executed and delivered as of
the date first above written.


 


	
  WITNESSES:

  	
  SELLER:

  	
   

  	
  EASTERN RETAIL HOLDINGS

  LIMITED PARTNERSHIP

  
	
   

  	
   

  	
   

  	
  By:

  	
  LMRES Real Estate
  Advisers, Inc.,

  general partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  By:

  
	
   

  	
   

  	
   

  	
  Vice
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  BUYER:

  	
   

  	
  INLAND REAL ESTATE

  ACQUISITIONS, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ [ILLEGIBLE]

  
	
  /s/ [ILLEGIBLE]

  	
   

  	
   

  	
   

  	
  Its:

  	
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ESCROW

  	
   

  	
  CHICAGO TITLE INSURANCE

  
	
   

  	
  AGENT:

  	
   

  	
  COMPANY

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Its:

  	
   

  



 


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