Exhibit 10.484


 


AGREEMENT OF
PURCHASE AND SALE


 


THIS AGREEMENT OF PURCHASE AND SALE (this “Agreement”) is made and
entered into by and between VV ARIZONA, L.P., a Delaware limited partnership (“Seller”),
and INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation (“Purchaser”),
to be effective as of the date on which the last of Seller or Purchaser
executes this Agreement as indicated below (the “Effective Date”).


 


W I T N E S S E T H:


 


ARTICLE I

PURCHASE AND SALE


 


1.1                                 Agreement of Purchase and Sale. Subject to the terms and conditions
hereinafter set forth and for the consideration stated herein, Seller agrees to
sell to Purchaser, and Purchaser agrees to purchase from Seller, the following:


 


(a)                                  All that certain tract or parcel of land
situated in Maricopa County, Arizona, more particularly described on Exhibit
A attached hereto and made a part hereof for all purposes, together with all
improvements situated thereon (including, without limitation, a retail shopping
center known as Mesa Fiesta containing approximately 194,892 square feet of net
rentable area), together with all rights, tenements, hereditaments, casements,
privileges and appurtenances pertaining thereto, including any right, title and
interest of Seller in and to any and all adjacent roads, highways and
rights-of-way (collectively, the “Realty”);


 


(b)                                 All of Seller’s right, title and interest in
and to all tenant leases now or hereafter covering any of the Realty
(collectively, the “Leases”) and any security or other deposits actually held
by Seller in connection therewith, all as set forth on the List of Leases (the “List
of Leases”) attached hereto as Exhibit I;


 


(c)                                  All tangible and intangible personal property
owned by Seller and situated upon and used in connection with the ownership,
operation, use, enjoyment or occupancy of the Realty, including, without
limitation, all existing surveys, blue prints, drawings, plans and
specifications, assignable telephone numbers and listings, assignable permits, inventory
and equipment, if any (collectively, the “Personalty”);


 


(d)                                 All of Seller’s right, title and interest in
and to the name “Mesa Fiesta Shopping Center” (the “Name”) for the Realty;


 


(e)                                  All of Seller’s right, title and interest in
and to all assignable warranties and guaranties issued in connection with any
of the Realty and any of the Personalty (collectively, the “Warranties”); and


 


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(f)                                    All of Seller’s right, title and interest in
and to all assignable contracts and agreements relating to the upkeep, repair,
maintenance or operation of any of the Realty and any of the Personalty
(collectively, the “Operating Agreements”).


 


1.2                                 Property Defined. The property and interests described in
Sections 1.1(a) through 1.1(f) above are hereinafter sometimes referred to
collectively as the “Property.” The Property does not include (i) any of Seller’s
insurance policies applicable to the Realty or Seller’s business or (ii) that
certain Property Management Agreement, dated July 27, 1998, between Seller
and Vestar Property Management Company, which shall be terminated effective as
of the Closing Date, as defined in Section 4.1 below.


 


1.3                                 Permitted Exceptions.  The
Property shall be conveyed subject to the following matters (collectively, the “Permitted
Exceptions”):


 


(a)                                  real property taxes for the year of Closing
(hereinafter defined) (if such taxes are not yet due and payable) and
subsequent years;


 


(b)                                 the Leases; and


 


(c)                                  matters shown on the Title Commitment (as
defined below), as approved or deemed approved by Purchaser.


 


1.4                                 Purchase Price. 
Seller shall sell and Purchaser shall purchase the Property for a total
purchase price of Thirty Six Million Eight Hundred Fifty Four Thousand Seven
Hundred Thirty Six Thousand and No/100 Dollars ($36,854,736.00) (the “Purchase
Price”).


 


1.5                                 Earnest Money.  Not
later than two (2) Business Days after the Effective Date, Purchaser shall
deliver to the Title Company the sum of Four Hundred Thousand and No/100 Dollars
($400,000.00) in immediately available funds as earnest money, to be deposited
in an interest bearing account and held pursuant to an Earnest Money Escrow
Agreement in the form attached hereto as Exhibit B (such sum, together
the Additional Earnest Money, as defined in Section 3.3 below, with all
interest earned thereon, is referred to herein as the “Earnest Money”). The
Earnest Money shall be applied against the Purchase Price at Closing.  In the event that Purchaser fails to deliver
the Earnest Money to the Title Company in the manner and within the time
provided herein, this Agreement shall automatically terminate, and neither
party shall have any further obligation hereunder.


 


1.6                                 Payment of Purchase Price.  The
Purchase Price shall be paid by Purchaser to Seller in immediately available
funds at Closing.


 


1.7                                 Independent Contract Consideration. 
Simultaneously with the execution of this Agreement, Purchaser shall
deliver to Seller a check in the amount of One Hundred Dollars ($100.00) (the “Independent
Contract Consideration”), which amount Seller and Purchaser hereby acknowledge
and agree has been bargained for and agreed to as consideration for Seller’s execution
and delivery of this Agreement.  The
Independent Contract Consideration is in


 


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addition
to and independent of any other consideration or payment provided for in this
Agreement, and is nonrefundable in all events.


 


ARTICLE II

TITLE AND SURVEY


 


2.1                                 Commitment for Title Insurance. Seller has delivered to Purchaser, a
Commitment for Title Insurance (the “Title Commitment”), issued by Lawyers
Title Insurance Corporation, through its national accounts office in Richmond,
Virginia (the “Title Company”), covering the Realty, showing all matters
affecting title to the Realty and binding the Title Company to issue an Owner
Policy of Title Insurance (such policy in the amount of the Purchase Price with
extended coverage and the Special Endorsements described below is referred to
herein as the “Owner’s Title Policy”). Promptly after the Effective Date,
Seller shall request that the Title Company modify the Title Commitment to add
Purchaser as the proposed insured, specify that coverage will be equal to the
Purchase Price and commit to issue the following endorsements (the “Special
Endorsements”): 3.1 zoning (long form) with parking and loading docks, owner’s
comprehensive, survey, access, P.I.N., subdivision, utility facility,
contiguity, environmental lien, removal of creditor’s rights exception, and
removal of the arbitration clause. If the Title Company does not, within seven
(7) days after the Effective Date, (i) modify the Title Commitment as required
above and (ii) commit in writing to issue one or more of the Special
Endorsements (subject only to satisfaction of customary underwriting requirements),
Purchaser shall either (i) agree that the Special Endorsement in question need
not be issued such that the requirement is waived or (ii) terminate this
Agreement and receive a refund of the Earnest Money. Such election shall be
made prior to the Due Diligence Deadline, as defined in Section 3.3 below.
To the extent not previously delivered, the Title Company shall deliver copies
of instruments listed as exceptions to title, the same being as legible as the
record permits. If the Title Commitment shall reveal any exception that is
objectionable to Purchaser, Purchaser may deliver written notice to Seller
objecting to such exception not later than the Due Diligence Deadline.
Purchaser’s failure to deliver written notice of objection prior to the Due Diligence
Deadline shall be deemed approval by Purchaser of all matters shown on the
Title Commitment. Within two (2) Business Days after receipt of Purchaser’s
notice of objection, Seller shall indicate in writing whether Seller agrees to
cure such objection, with Seller’s failure to respond being deemed an election
not to cure. Seller shall be under no obligation to cure any title exception,
but if Seller shall fail to cure or commit in writing to cure any of Purchaser’s
objections within such two (2) Business Day period, Purchaser may either (i)
waive such objection, or (ii) terminate this Agreement. Purchaser’s failure to
waive all unsatisfied objections prior to the date scheduled for Closing shall
constitute an election to terminate. Purchaser shall receive a refund of the
Earnest Money upon such termination or deemed termination.


 


2.2                                 Survey. Seller has delivered to Purchaser a copy of the latest survey of the
Property prepared by a licensed surveyor (the “Surveyor”). Seller shall cause
the Surveyor to prepare an updated survey of the Realty certified as of a date
no more than thirty (30) days prior to delivery thereof (the “Survey”).  The Survey shall meet the requirements of, and
be certified in accordance with, the current requirements for an urban survey
jointly established and adopted by


 


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the
American Land Title Association and the American Congress on Surveying and
Mapping with all Table A options, excluding Items 5 (contours) and Item
7(b)(3). Two (2) copies of the Survey shall be delivered to each of Seller,
Purchaser and the Title Company not later than ten (10) days after the
Effective Date.


 


2.3                                 Owner’s Title Policy. At Closing, the Title Company shall furnish
to Purchaser the Owner’s Title Policy with the Special Endorsements, insuring
title to the Realty, in the amount of the Purchase Price, subject only to the
Permitted Exceptions, except:


 


(a)                                  The exception relating to discrepancies,
conflicts or shortages in area or boundary lines, or any encroachment or any
overlapping of improvements which a survey might show shall be modified to
delete such exception, except as to shortages in area, and substitute matters
shown on the Survey in lieu thereof;


 


(b)                                 The exception relating to ad valorem taxes shall
be limited to taxes owing for the current and subsequent years; and


 


(c)                                  There shall be no exception for (i) “parties
in possession” other than parties claiming under Leases or (ii) yet to be filed
materialmen’s or mechanics’ liens.


 


ARTICLE III

SUBMISSION ITEMS/INSPECTION RIGHTS


 


3.1                                 Delivery of Materials. No later than three (3) Business Days after
the Effective Date, Seller shall deliver to Purchaser in the case of (g), the
following items (to the extent in Seller’s possession):


 


(a)                                  Copies of all Warranties and Operating
Agreements, excluding the Management Agreement;


 


(b)                                 Copies of the real estate and tangible
personalty ad valorem tax statements for the preceding calendar year on the
Realty and the Personal Property;


 


(c)                                  Copies of all operating statements for the
Realty for the calendar year 2003 with copies of any interim statements that
have been prepared for calendar year 2004;


 


(d)                                 An inventory of the tangible Personalty, if
available;


 


(e)                                  Copies of all plans and specifications of all
improvements constituting a part of the Realty;


 


(f)                                    Certificate(s) of Occupancy for the Realty
and any amendments thereto;


 


(g)                                 Copies of the Leases;


 


(h)                                 A copy of any existing environmental
assessment report for the Realty;


 


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(i)                                     Evidence of the hazard insurance coverages in
effect with respect to the Realty; and


 


(j)                                     Copies of any governmental licenses and
permits, special use, and zoning variances related to the Property.


 


The
items listed in (a) through (j) above are herein called the “Submission Items.”


 


SELLER
MAKES NO REPRESENTATION OR WARRANTY CONCERNING SUBMISSION ITEMS, AND PURCHASER
ACKNOWLEDGES AND AGREES THAT ANY RELIANCE BY PURCHASER ON OR USE OF SUBMISSION
ITEMS SHALL BE AT THE SOLE RISK OF PURCHASER.


 


3.2                                 Right of Inspection. Purchaser shall have the right from the
date of execution of this Agreement until the Due Diligence Deadline, as
defined in Section 3.3 below (and thereafter until the Closing, if this
Agreement is not terminated by Purchaser pursuant to Section 3.3 below),
to make physical inspections of the Property, to interview Tenants, and to
examine all books and records maintained by Seller relating to the Property
(excluding information relating solely to Seller’s partnership affairs [the “Proprietary
Information”]) at such place or places as such books and records may be
located. Prior to entry on the Property, Purchaser shall provide evidence of
liability insurance with minimum limits of Two Million Dollars ($2,000,000.00)
and otherwise reasonably satisfactory to Seller.  In exercising the privileges granted pursuant
to this Section, Purchaser shall avoid interfering with the use and enjoyment
of the Property by any Tenant, and Purchaser shall substantially restore the
Property to the condition existing prior to such activities on the
Property.  No physically invasive testing
may be undertaken without the prior written consent of Seller. Purchaser agrees
to indemnify, defend and hold Seller harmless from and against claims of third
parties for any loss, liability, cost, damage or expense (including, without
limitation, attorneys’ fees, accountants’ fees, court costs and interest) resulting
from such inspection and examination. 
All inspections and Tenant interviews shall occur at reasonable times
agreed upon by Seller and Purchaser and shall be conducted so as not to
unreasonably interfere with use of the Property by Seller or the Tenants.
Seller shall have the right to have a representative present at any such
inspections or Tenant interviews. Purchaser’s indemnification obligation shall
survive Closing or termination of this Agreement, as applicable.


 


3.3                                 Due Diligence Period. Purchaser shall have the right to terminate
this Agreement for any reason or no reason by delivering written notice of
termination to Seller and the Title Company (the “Termination Notice”) no later
than 5:00 p.m. (EST) on December 20, 2004 (the “Due Diligence Deadline”).  If Purchaser affirmatively elects to proceed
with Closing by delivering written notice of acceptance to Seller on or before
the Due Diligence Deadline or Purchaser fails to deliver a Termination Notice
prior to the Due Diligence Deadline, (i) this Agreement shall remain in full
force and effect, (ii) Purchaser shall be deemed to have elected to close and
(ii) Purchaser shall, on or before the Due Diligence Deadline, deliver to
Escrow Agent the sum of Eight Hundred Thousand and No/100 Dollars ($800,000.00)
(the “Additional Earnest Money”) to be treated as Earnest Money for all
purposes and applied against the Purchase Price at Closing.  If Purchaser timely delivers a Termination
Notice, the Earnest Money shall be


 


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refunded
to Purchaser and the parties shall be released from liability hereunder, except
for any liability that expressly survives termination.


 


ARTICLE IV

CLOSING


 


4.1                                 Time and Place. The closing of the transaction contemplated
hereby (“Closing”) shall take place via escrow with the Title Company at 10:00
a.m., Chicago, Illinois time, on or before December 23, 2004 (the “Closing
Date”), and/or at such other location and at such time as may be agreed upon in
writing by Seller and Purchaser.  Time is
of the essence with respect to the Closing.


 


4.2                                 Seller’s Obligations at Closing. At Closing, Seller shall:


 


(a)                                  deliver to Purchaser a Special Warranty Deed
(the “Deed”), executed and acknowledged by Seller in the form attached hereto
as Exhibit C (with such reasonable changes thereto as may be required by
the Title Company to comply with the laws of the State of Arizona), conveying
the Realty to Purchaser free and clear of all encumbrances except the Permitted
Exceptions;


 


(b)                                 join with Purchaser in the execution and
acknowledgment of a Bill of Sale and Assignment (the “Bill of Sale”) in the
form attached hereto as Exhibit D, conveying the Personalty, the Name,
the Warranties, and the Operating Agreements (excluding the Management
Agreement) to Purchaser free and clear of all encumbrances except the Permitted
Exceptions;


 


(c)                                  join with Purchaser in the execution and
acknowledgment of an Assignment and Assumption of Tenant Leases (the “Lease
Assignment”) in the form attached hereto as Exhibit E, conveying to
Purchaser the Leases and all security and other deposits held by Seller with
respect to the Leases free and clear of all encumbrances except the Permitted
Exceptions;


 


(d)                                 join with Purchaser in the execution of a
Closing Statement (the “Closing Statement”);


 


(e)                                  execute and deliver to Purchaser a FIRPTA
Affidavit in the form attached hereto as Exhibit F;


 


(f)                                    deliver to Purchaser possession and occupancy
of the Property, subject to the Permitted Exceptions;


 


(g)                                 join with purchaser in the execution of a
letter to each Tenant under the Leases (collectively, the “Tenant Letters”) in
the form attached hereto as Exhibit G, the Tenant Letters to be prepared
by Seller and delivered to the Tenants promptly after Closing by Purchaser;


 


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(h)                                 deliver to Purchaser such evidence as
Purchaser and/or the Title Company may reasonably require as to the authority
of the person or persons executing documents on behalf of Seller;


 


(i)                                     request the Title Company to issue the Owner’s
Title Policy to Purchaser, upon payment of the premium therefor;


 


(j)                                     deliver to Purchaser all keys and
combinations to locks on the Property in Seller’s possession;


 


(k)                                  deliver to Purchaser all original Leases and
assumed Operating Agreements in Seller’s possession or control;


 


(l)                                     deliver to Purchaser all books, records,
advertising materials, and correspondence in the possession of Seller
pertaining to the Property and all documents in the possession of Seller
pertaining to Tenants, including, but not by way of limitation, all
applications, correspondence and credit reports relating to each such Tenant;


 


(m)                               deliver to Purchaser all permits issued by the appropriate governmental
authorities and utility companies when the improvements on the Realty were
completed, to the extent available;


 


(n)                                 deliver to the Title Company an affidavit
duly executed by Seller stating that there are no unpaid bills or claims
(except for bills or expenses to be prorated pursuant to this Agreement at
Closing) for labor performed or materials furnished in connection with the
Property;


 


(o)                                 deliver to Purchaser a certificate duly
executed by Seller to the effect that, to Seller’s actual knowledge, all of the
representations and warranties set forth in Section 5.1 hereof are true
and correct in all material respects as of the Closing Date, except due to a
Changed Circumstance which has been disclosed in writing to Purchaser pursuant
to Section 4.7 below;


 


(p)                                 deliver to Purchaser estoppel certificates
(the “Tenant Estoppel Certificates”) signed by not less than seven (7) of the
eight (8) Tenants leasing space in the Property, in the form attached hereto as
Exhibit H or in the form customarily issued by the Tenant in question;
provided that (i) the foregoing shall merely be a condition to Closing and
Seller shall not be deemed to be in default under this Agreement if Seller is
unable to deliver such Tenant Estoppel Certificates from the requisite Tenants
as long as Seller uses commercially reasonable efforts to obtain the same, (ii)
Seller may extend the Closing Date for up to fifteen (15) days in order to
pursue the obtaining of such Tenant Estoppel Certificates, notwithstanding Section 4.1
above, and (iii) if Seller obtains Tenant Estoppel Certificates from seven (7)
Tenants but the eighth Tenant has not delivered a Tenant Estoppel Certificate
as of the Closing Date (including the 15-day extension provided above if Seller
shall so elect), Seller shall deliver a Landlord’s Certificate (the “Landlord’s
Certificate”) as to the tenant and the lease for which an estoppel has not been


 


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received. The Landlord’s Certificate shall verify, to Seller’s actual
knowledge, the information set forth in the form Tenant Estoppel Certificate,
as to the missing estoppel. Any exception in the Landlord’s Certificate shall
be subject to the provisions of Section 4.7 below.


 


(q)                                 deliver to the appropriate party an affidavit
of Property value duly executed by Seller for the purpose of recording the
Deed.


 


4.3                                 Purchaser’s Obligations at Closing. At Closing, Purchaser shall:


 


(a)                                  pay to Seller the Purchase Price in
immediately available funds;


 


(b)                                 join with Seller in execution of the Bill of
Sale, the Lease Assignment, the Closing Statement and the Tenant Letters
described in Sections 4.2(b), 4.2(c), 4.2(d), and 4.2(g) hereof, respectively;
and


 


(c)                                  deliver to Seller such evidence as Seller
and/or the Title Company may reasonably require as to the authority of the
person or persons executing documents on behalf of Purchaser.


 


4.4                                 Prorations.


 


(a)                                  The following shall be apportioned as of the
Closing Date with respect to the Property:


 


(i)                                     rents collected under the Leases for the
month of Closing and each Tenant’s portion of operating expenses;


 


(ii)                                  percentage rent payable under the Leases
(with any percentage rent received by Purchaser after Closing being allocated
and prorated across the entire calendar year in which percentage rent accrued
as opposed to only the months in which percentage rent is actually payable or
collected);


 


(iii)                               real property and tangible personal property ad valorem taxes with respect
to the Realty and the Personalty for the current year, with any apportionment
of such taxes for a tax year as to which either the tax rate or the assessed
valuation, or both, have not yet been fixed to be made upon the basis of the
tax rate and/or assessed valuation last fixed; provided that Seller and
Purchaser agree that, to the extent the actual taxes for the current year
differ from the amount so apportioned at Closing, Seller and Purchaser will
make all necessary adjustments by appropriate payments between themselves
following Closing;


 


(iv)                              current expenses under the Operating Agreements that will remain in
effect after Closing; and


 


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(v)                                 gas, electricity, water, trash disposal and
other utility charges with respect to the Realty.


 


(b)                                 In making such apportionments, Purchaser
shall be entitled to rents and other income earned and due from the Property
with respect to the Closing Date, and Purchaser shall be responsible for real
property taxes and other expenses accrued or incurred with respect to the
Closing Date.  All such apportionments
shall be subject to post-Closing adjustments as necessary to reflect later
relevant information not available at Closing (including the amount of
percentage rents due after Closing) and to correct any errors made at Closing
with respect to such apportionments and the party receiving more than it was
entitled to hereunder shall reimburse the other party hereto in the amount of such
overpayment within thirty (30) days after receiving written demand therefor. Notwithstanding
the foregoing, such apportionments shall be deemed final and not subject to
further post-Closing adjustments if no such adjustments have been requested after
a period of thirty (30) days from such time as all necessary information is
available to make a complete and accurate determination of such apportionments;
provided that any prorated percentage rent due to Seller shall be paid to
Seller upon receipt without request or demand. 
All other matters with respect to apportionments shall be governed by
the Closing Statement. The provisions of this Section 4.4(b) shall survive
the Closing.


 


(c)                                  At Closing, Seller shall credit to the
account of Purchaser against the Purchase Price allocable to the Realty any
security deposits or prepaid rent, the continuing obligations for which are actually
and explicitly transferred to Purchaser at Closing pursuant to any Leases
executed by Seller or Seller’s predecessors in interest, as lessor, which will
continue in effect after Closing, and Seller shall retain all security deposits
and prepaid rent.


 


(d)                                 After Closing, Purchaser shall use
commercially efforts to collect any delinquent rents or other payments due as
of the Closing Date, and shall pay such amounts to Seller within ten (10)
Business Days after collection.  Any
rents and other payments collected after Closing shall be applied first to
current charges and then to delinquencies. If delinquencies remain unpaid
within ninety (90) days after the Closing Date, Seller shall be entitled to
pursue its own collection efforts, but Seller shall not have any right to file
any action to evict any Tenant that is delinquent.


 


4.5                                 Closing Costs. Seller shall pay (a) the fees of any
counsel representing it in connection with the transaction contemplated hereby,
(b) the premium for the Owner’s Title Policy standard coverage (excluding
extended coverage and any endorsements desired by Purchaser), and (c) one-half
(1/2) of any escrow fees charged by the Title Company. Purchaser shall pay (a)
the fees of any counsel representing Purchaser in connection with the
transaction contemplated hereby, (b) the premium for the Owner’s Title Policy
extended coverage and any endorsements obtained by Purchaser, (c) the cost of
the Survey, (d) the cost of any tests, inspections or environmental site
assessments conducted or obtained by Purchaser, (e) transfer taxes, documentary
stamps and similar charges (if any, Seller having been advised that Arizona
does not impose such taxes, stamps or charges), (f) recording fees due in
connection with the recording of the Deed and other conveyance documents; and
(g) one-half (1/2) of any escrow


 


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fees
charged by the Title Company. Purchaser shall also reimburse Seller for the
cost of the Phase I environmental site assessment obtained by Seller from URS
Corporation (or one of its affiliates); provided that issuer of such assessment
delivers a reliance letter to Purchaser.  All other costs and expenses incident to the
transaction contemplated hereby and the closing thereof shall be paid by the
party incurring the same.


 


4.6                                 Closing Constitutes Waiver. 
Notwithstanding Article V and without limiting Section 9.1
below, if any of the representations or warranties of Seller contained in this Agreement
or in any certificate delivered in connection herewith are materially false or inaccurate,
or Seller is in breach or default of any of its obligations under this
Agreement, but Purchaser nonetheless closes the transaction hereunder and
purchases the Property, then (i) Seller shall have no liability or obligation
respecting such false or inaccurate representations or warranties or other
breach or default (and any cause of action resulting therefrom shall terminate upon
the Closing) in the event and to the extent that on or prior to the Closing,
Purchaser shall have had actual knowledge of the false or inaccurate
representations or warranties or other breach or default, and (ii) to the
extent the Submission Items furnished to Purchaser contain provisions or
information that are inconsistent with the foregoing representations and
warranties (unless Seller had knowledge of such inconsistency and willfully
failed to disclose the same to Purchaser), such representations and warranties
shall be deemed to be modified to the extent necessary to eliminate such
inconsistency and to conform such representations and warranties to such
Submission Items.


 


4.7                                 Changed Circumstance.  If
Seller obtains actual knowledge of any changed circumstance that causes any
representation or warranty of Seller to no longer be true in any material
respect (the “Material Changed Circumstance”), Seller shall promptly send
written notice thereof to Purchaser describing the Material Changed
Circumstance and the manner in which it has made any of Seller’s
representations or warranties herein untrue. As used herein, a change in Seller’s
representation and warranty shall be deemed “material” if (i) the market value of
the Property is decreased by more than $100,000 as a result of such Material
Changed Circumstance, or (ii) it is a Lease Status Representation (as defined
in Section 5.1(c) below.  If Purchaser
does not approve the Material Changed Circumstance in writing on or before the Closing
Date, Seller shall not be in default and Seller shall have the right, but not
the obligation, to attempt to remedy the Material Changed Circumstance.  In the Seller fails or refuses to remedy the
Material Changed Circumstance to the reasonable satisfaction of Purchaser on or
before the Closing Date, Seller shall have the right to extend the Closing Date
for up to thirty (30) days to attempt to remedy the same.  If Seller has not remedied the Material
Adverse Change on or before the Closing Date (including the extension provided above),
Purchaser shall, as its sole and exclusive remedy,  either (i) waive and approve the Material
Changed Circumstance, in which event the applicable representation or warranty
shall be deemed modified, or (ii) terminate this Agreement, in which event the
Earnest Money shall be returned to Purchaser and neither Seller nor Purchaser
shall have any further rights or obligations hereunder one to the other except
with respect to these obligations which expressly survive the termination of
this Agreement.


 


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ARTICLE V

REPRESENTATIONS, WARRANTIES AND COVENANTS


 


5.1                                 Representations and Warranties of Seller. Seller hereby makes the following
representations and warranties to Purchaser, which representations and warranties
shall survive Closing for a period of one hundred eighty (180) days, but no
longer:


 


(a)                                  Seller is a limited partnership, duly
organized and validly existing in good standing under the laws of the State of
Delaware.


 


(b)                                 Seller has complete capacity, power and
authority to enter into this Agreement and all other agreements to be executed
and delivered by Seller pursuant to the terms and provisions hereof, to perform
its obligations hereunder and thereunder, and to consummate the transaction
contemplated hereby.


 


(c)                                  (i) All Leases are shown on the list attached
hereto as Exhibit I, the Leases are all in full force and effect and the
tenants thereunder are in occupancy, open for business and paying full rent
thereunder; (ii) to Seller’s actual knowledge, no Leases are in default for
failure to pay rent and other sums when due, and there exists no material non-monetary
default under the Leases; (iii) to Seller’s actual knowledge, Seller has not failed
to perform its material obligations under the Leases (the representations in
the foregoing subsections (i), (ii) and (iii) being referred to herein as “Lease
Status Representations”) ; (iv) there are no oral agreements with any Tenants,
the breach of which would have a material adverse effect on the rental income
from the Realty; (v) all leasing commissions due for current terms of Leases
now in effect will be paid at or prior to Closing; (vi) Seller has received no
written notice of any condemnation proceedings instituted against the Realty
and has no notice of any threatened condemnation proceedings with respect to
the Property; (vii) to Seller’s actual knowledge, Seller has received no
written notice that the Property is subject to any remedial obligations under any
applicable laws; (viii) to Seller’s actual knowledge, there are no material
actions or claims affecting Seller or the Property being currently prosecuted;
(ix) Seller has no actual knowledge of any threatened actions or claims
affecting Seller or the Property; and (x) Seller has received no written notice
that the Realty fails to comply with any applicable governmental
regulations.  As used herein, any
reference to “knowledge” with respect to Seller shall mean the current, actual
(as opposed to the constructive, deemed or imputed) knowledge of Kathleen
Burgi-Sandell (as Seller’s primary asset manager), without any duty of
investigation or inquiry. 
Notwithstanding the foregoing, there shall be no personal liability on the
part of Kathleen Burgi-Sandell hereunder.


 


5.2                                 Covenants of Seller.  Seller hereby covenants with Purchaser that,
until the Closing, Seller will:


 


(a)                                  perform all of Seller’s material obligations
under the Leases;


 


(b)                                 advise Purchaser immediately if Seller
acquires actual knowledge of any litigation or administrative proceedings
instigated or threatened against the Property;


 


11





















 


(c)                                  (i) maintain the casualty loss insurance now
in effect for the Realty and tangible Personalty; (ii) not enter into any new
Leases nor modify any of the Leases without first obtaining the written consent
of Purchaser, which consent shall not be unreasonably withheld or delayed;
(iii) not enter into any service, employment or management contract pertaining
to or encumbering the Property unless the same is cancelable at or prior to
Closing without penalty or premium, without first obtaining the written consent
of Purchaser, which consent shall not be unreasonably withheld or delayed; (iv)
continue to operate the Property in substantially the same manner it is being operated
on the date of execution of this Agreement; (v) not voluntarily create any new lien
on the Property that will not be discharged at Closing out of the Purchase
Price; and (vi) not voluntarily create any non-lien encumbrance or modify, extend,
renew or change an existing non-lien encumbrance on title to the Realty (except
new Leases permitted hereby) without first obtaining the written consent of
Purchaser, which consent shall not be unreasonably withheld or delayed; and


 


(d)                                 pay all tenant improvement and other expenses
agreed to be paid by Landlord under the Leases and pay all real estate
commissions agreed to be paid by Seller in respect of the current term of said
Leases, but this agreement shall not extend to (i) expenses or commissions relating
to Lease expansions or renewals occurring after the Effective Date, or (ii) any
commissions, allowances or concessions payable with respect to any Leases that
are signed by Seller after the Effective Date with Purchaser’s approval, the
foregoing expenses in items (i) and (ii) being Purchaser’s costs if Closing
occurs.


 


5.3                                 Representations and Warranties of Purchaser. Purchaser hereby makes the following
representations and warranties to Seller, which representations and warranties
shall be deemed to be restated at Closing and shall survive Closing:


 


(a)                                  Purchaser is a corporation, duly organized
and validly existing in good standing under the laws of the State of Illinois.


 


(b)                                 Purchaser has complete capacity, power and
authority to enter into this Agreement and all other agreements to be executed
and delivered by Purchaser pursuant to the terms and provisions hereof, to
perform its obligations hereunder and thereunder, and to consummate the
transaction contemplated hereby.


 


(c)                                  Purchaser will not use the assets of an
employee benefit plan as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974 (“ERISA”) and covered under Title I,
Part 4 of ERISA or Section 4975 of the Internal Revenue Code of 1986, as
amended, in the performance or discharge of its obligations hereunder,
including the acquisition of the Property, and Purchaser will not assign its
interest hereunder to any person or entity which does not expressly make this
representation and warranty for the benefit of Seller.


 


(d)                                 (i) Neither Purchaser nor any person or
entity which controls Purchaser is currently identified by the Office of
Foreign Assets Control, Department of the Treasury (“OFAC”) or otherwise
qualifies as an Embargoed Person; (ii) Purchaser is not in


 


12





















 


violation of any applicable law relating to anti-money laundering or
anti-terrorism, including, without limitation, those related to transacting
business with Embargoed Persons or the requirements of the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001, U.S. Public Law 107-56, and the related
regulations issued thereunder, including temporary regulations (collectively,
as the same may be amended from time to time, the “Patriot Act”); and (iii)
Purchaser shall not (A) be or become subject at any time to any law,
regulation, or list of any government agency (including, without limitation,
the list maintained by OFAC and accessible through the OFAC website) that
prohibits or limits Seller from conducting business with Purchaser or (B) fail
to provide documentary and other evidence of Purchaser’s identity as may be
requested by Seller at any time to enable Seller to verify Purchaser’s identity
or to comply with any applicable law or regulation, including, without
limitation, the Patriot Act.


 


ARTICLE VI

DEFAULT


 


6.1                                 Default by Purchaser.  In
the event that Purchaser fails to consummate this Agreement for any reason,
except Seller’s default, Seller shall be entitled to terminate this Agreement
and receive the Earnest Money as liquidated damages.


 


6.2                                 Default by Seller. In the event that Seller fails to
consummate this Agreement for any reason, except Purchaser’s default, Purchaser
shall be entitled, as its sole and exclusive remedies, either (a) to enforce
specific performance of this Agreement, or (b) to terminate this Agreement and
receive a refund of the Earnest Money, it being the intention of Seller and Purchaser
that specific performance should be awarded, if such performance is possible,
even though monetary damages or another remedy is otherwise available at
law.  Under no circumstance will Seller
be liable for consequential or other damages. 
Notwithstanding the foregoing, if specific performance is not available
because of an intentional default by Seller in contravention of this Agreement,
Purchaser may recover the out of pocket costs incurred by Purchaser in
connection with this Agreement up to a maximum of Twenty Thousand Dollars ($20,000.00).


 


6.3                                 Limitation of Liability. 
Notwithstanding anything to the contrary contained in this Agreement or
any documents executed in connection herewith, if the Closing of the transaction
contemplated hereunder shall have occurred, the aggregate liability of Seller
arising pursuant to or in connection with the representations, warranties,
covenants or other obligations (whether express or implied) of Seller under
this Agreement (or any document or certificate executed or delivered in
connection herewith) shall not exceed One Million and No/100 Dollars ($1,000,000.00),
absent fraud by Seller.  The provisions
of this Section 6.3 shall survive the Closing.


 


6.4                                 No Limitation of Indemnification Obligations. 
Sections 6.1, 6.2 and 6.3 shall not limit the liability of any party
for, or the ability of any party to fully enforce, any indemnification provision
of this Agreement.


 


13





















 


ARTICLE VII

RISK OF LOSS


 


7.1                                 In the event of any damage or destruction to
any portion of the Property prior to the Closing Date, the estimated cost of
repair of which, as determined by a third party contractor selected by Seller
and approved by Purchaser, is in excess of Five Hundred Thousand Dollars ($500,000.00),
or any tenant under a Lease has a right to terminate its Lease by virtue of
such damage or destruction unless such termination right is waived in writing
by such tenant, Purchaser may cither terminate this Agreement and receive a
refund of the Earnest Money, or Purchaser may elect to consummate the
transaction contemplated hereby, in which event Seller’s right to all insurance
proceeds resulting from such damage or destruction shall be assigned in writing
by Seller to Purchaser (less any amounts previously expended by Seller to restore
the Property and less any rent loss or business interruption insurance proceeds
attributable to the period prior to Closing), Seller shall credit Purchaser the
amount of its insurance deductible at Closing and Seller shall have no further
obligation to Purchaser with regard to such damage or destruction. In the event
of any damage or destruction to the Property prior to the Closing Date, the
estimated cost of repair of which, as determined by a third party contractor
selected by Seller and approved by Purchaser, is Five Hundred Thousand Dollars
($500,000.00) or less and no tenant under a Lease has a right to terminate its
Lease by virtue of such damage or destruction (unless such termination right is
waived in writing by such tenant), Purchaser shall have no right to terminate
this Agreement as a result thereof, and all of Seller’s right to all insurance
proceeds resulting from such damage or destruction shall be assigned in writing
by Seller to Purchaser (less any amounts previously expended by Seller to
restore the Property and less any rent loss or business interruption insurance
proceeds attributable to the period prior to Closing), Seller shall credit
Purchaser the amount of its insurance deductible at Closing and Seller shall
have no further obligation to Purchaser with regard to such damage or
destruction.


 


7.2                                 In the event of a taking by condemnation or
similar proceedings or actions of all or any material portion of the Property,
prior to the Closing Date, Purchaser shall have the option to terminate this
Agreement upon written notice to Seller prior to Closing. If Purchaser does not
exercise its option under the immediately preceding sentence of this Section to
terminate this Agreement, then the Agreement shall remain in full force and
effect and Seller shall assign or pay to Purchaser, at Closing, Seller’s entire
interest in and to any and all condemnation awards or proceeds from any such
proceedings or actions in lieu thereof (less any reasonable costs incurred to
obtain to awards). Any termination under this Section 7.2 shall constitute
a termination of all of Purchaser’s rights to acquire the Property.


 


7.3                                 The parties shall have the rights and duties
set forth in this Article VII rather than as prescribed by the Uniform
Vendor and Purchaser Risk Act.


 


ARTICLE VIII

COMMISSIONS


 


8.1                                 Each party represents to the other that there
has been no broker, finder, real estate agent or similar agent engaged in
connection with the sale of the Property from Seller to Purchaser as
contemplated hereby, except for CB Richard Ellis Real Estate Services, Inc.,
which


 


14





















 


has
served exclusively as Seller’s broker (“Seller’s Broker”). Seller shall pay any
commission due to Seller’s Broker pursuant to a separate agreement; provided
that Seller’s obligation to pay, and the right of Seller’s Broker to receive,
any such commission is expressly conditioned upon consummation of the Closing
and Seller’s receipt of the Purchase Price hereunder. Each party agrees that
should any claim be made for brokerage commissions or finder’s fees by any
broker, finder or agent by, through or on account of any acts of the
indemnifying party or its agents, employees or representatives, the
indemnifying party will hold the other party free and harmless from and against
any and all loss, liability, cost, damage and expense (including, without
limitation, attorneys’ fees, accountants’ fees, court costs and interest) in
connection therewith. The provisions of this Section 8.1 shall survive the
Closing.


 


ARTICLE IX

MISCELLANEOUS


 


9.1                                 Disclaimers.  PURCHASER AKNOWLEDGES AND
AGREES THAT, EXCEPT AS EXPRESSLY SPECIFIED IN SECTION 5.1 OF THIS
AGREEMENT OR ANY INSTRUMENT TO BE DELIVERED AT CLOSING, SELLER HAS NOT MADE,
AND SELLER HEREBY SPECIFICALLY DISCLAIMS, ANY WARRANTY OR REPRESENTATION, ORAL
OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, OR CONCERNING (a) THE NATURE
AND CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL
AND GEOLOGY, AND THE SUITABILITY THEREOF AND OF THE PROPERTY FOR ANY AND ALL
ACTIVITIES AND USES WHICH PURCHASER MAY ELECT TO CONDUCT THEREON; (b) THE
EXISTENCE, NATURE AND EXTENT OF ANY RIGHT-OF-WAY, LEASE, RIGHT TO POSSESSION OR
USE, LIEN, ENCUMBRANCE, LICENSE, RESERVATION, CONDITION OR OTHER MATTER
AFFECTING TITLE TO THE PROPERTY; OR (c) WHETHER THE USE OR OPERATION OF THE
PROPERTY COMPLIES WITH ANY AND ALL LAWS, ORDINANCES OR REGULATIONS OF ANY
GOVERNMENT OR OTHER REGULATORY BODY. PURCHASER AGREES TO ACCEPT THE PROPERTY,
AND ACKNOWLEDGES THAT THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE
BY SELLER, ON AN “AS IS, WHERE IS, AND WITH ALL FAULTS” BASIS. PURCHASER
EXPRESSLY ACKNOWLEDGES THAT EXCEPT AS OTHERWISE EXPRESSLY SPECIFIED IN SECTION 5.1
OF THIS AGREEMENT, IF ANY, AND EXCEPT FOR ANY WARRANTY OF TITLE CONTAINED IN
THE DEED TO BE DELIVERED BY SELLER TO PURCHASER AT CLOSING, SELLER MAKES NO
REPRESENTATION OR WARRANTY OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED, OR
ARISING BY OPERATION OF LAW, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT
LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE (OTHER THAN SELLER’S
WARRANTY OF TITLE TO BE SET FORTH IN THE DEED), ZONING, TAX CONSEQUENCES,
PHYSICAL OR ENVIRONMENTAL CONDITION, UTILITIES, OPERATING HISTORY OR
PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE PROPERTY
WITH GOVERNMENTAL LAWS, THE TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION
(INCLUDING, WITHOUT LIMITATION, THE SUBMISSION ITEMS) PROVIDED BY OR ON BEHALF


 


15





















 


OF
SELLER TO PURCHASER, OR ANY OTHER MATTER OR THING REGARDING THE PROPERTY.  PURCHASER ACKNOWLEDGES THAT EXCEPT AS
EXPRESSLY SPECIFIED IN ANY WRITTEN INSTRUMENT DELIVERED BY SELLER TO PURCHASER,
SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, ORAL OR WRITTEN,
EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW REGARDING OR WITH RESPECT TO
ANY SUCH INFORMATION (INCLUDING, WITHOUT LIMITATION, THE SUBMISSION ITEMS)
PROVIDED OR TO BE PROVIDED BY SELLER REGARDING THE PROPERTY.


 


FURTHER, AND WITHOUT IN ANY WAY LIMITING ANY OTHER PROVISION OF THIS
AGREEMENT, SELLER HAS NOT MADE AND MAKES NO REPRESENTATION OR WARRANTY, AND
HEREBY SPECIFICALLY DISCLAIMS ANY WARRANTY OR REPRESENTATION, ORAL OR WRITTEN,
PAST, PRESENT OR FUTURE, WITH RESPECT TO THE PRESENCE OR DISPOSAL ON OR BENEATH
THE PROPERTY (OR ANY PARCEL IN PROXIMITY THERETO) OF HAZARDOUS SUBSTANCES OR
MATERIALS WHICH ARE CATEGORIZED AS HAZARDOUS OR TOXIC UNDER ANY LOCAL, STATE OR
FEDERAL LAW, STATUTE, ORDINANCE, RULE OR REGULATION PERTAINING TO ENVIRONMENTAL
OR SUBSTANCE REGULATION, CONTAMINATION, CLEANUP OR DISCLOSURE (INCLUDING,
WITHOUT LIMITATION, ASBESTOS) AND SHALL HAVE NO LIABILITY TO PURCHASER
THEREFOR. WITHOUT LIMITATION OF THE PRECEDING SENTENCE, SELLER SPECIFICALLY
DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING THE ACCURACY OF ANY
ENVIRONMENTAL REPORTS WHICH MAY BE INCLUDED WITHIN THE SUBMISSION ITEMS. BY
ACCEPTANCE OF THIS AGREEMENT AND THE DEED TO BE DELIVERED BY SELLER AT CLOSING,
PURCHASER ACKNOWLEDGES THAT PURCHASER’S OPPORTUNITY FOR INSPECTION AND
INVESTIGATION OF THE PROPERTY (AND OTHER PARCELS IN PROXIMITY THERETO) WILL BE
ADEQUATE TO ENABLE PURCHASER TO MAKE PURCHASER’S OWN DETERMINATION WITH RESPECT
TO THE PRESENCE OR DISPOSAL ON OR BENEATH THE PROPERTY (AND OTHER PARCELS IN
PROXIMITY THERETO) OF SUCH HAZARDOUS SUBSTANCES OR MATERIALS, AND PURCHASER
ACCEPTS THE RISK OF THE PRESENCE OR DISPOSAL OF ANY SUCH SUBSTANCES OR
MATERIALS.


 


PURCHASER, AND ANYONE CLAIMING, BY, THROUGH OR UNDER PURCHASER, HEREBY
FULLY RELEASES, DISCHARGES, AND HOLDS HARMLESS SELLER, ITS EMPLOYEES, OFFICERS,
DIRECTORS, PARTNERS, REPRESENTATIVES AND AGENTS, AND THEIR RESPECTIVE PERSONAL
REPRESENTATIVES, HEIRS, SUCCESSORS AND ASSIGNS FROM ANY COST, LOSS, LIABILITY,
DAMAGE, EXPENSE, DEMAND, ACTION OR CAUSE OF ACTION ARISING FROM OR RELATED TO
ANY CONSTRUCTION DEFECTS, ERRORS, OMISSIONS, OR OTHER CONDITIONS AFFECTING THE
PROPERTY; PROVIDED THAT THIS SHALL NOT RELEASE SELLER FROM CLAIMS ARISING, IF
ANY, AS A RESULT OF ANY WRITTEN REPRESENTATION OR WARRANTY OF SELLER BEING
FALSE WHEN MADE.  PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT THIS RELEASE


 


16





















 


SHALL
BE GIVEN FULL FORCE AND EFFECT ACCORDING TO EACH OF ITS EXPRESSED TERMS AND
PROVISIONS, INCLUDING, BUT NOT LIMITED TO, THOSE RELATING TO UNKNOWN AND
SUSPECTED CLAIMS, DAMAGES AND CAUSES OF ACTION.  THIS COVENANT RELEASING SELLER SHALL BE
BINDING UPON PURCHASER, ITS PERSONAL REPRESENTATIVES, HEIRS, SUCCESORS AND ASSIGNS.


 


THE PROVISIONS OF THIS SECTION 10.1
(INCLUDING, WITHOUT LIMITATION, THE WAIVER AND RELEASE OF CLAIMS CONTAINED
HEREIN) SHALL SURVIVE THE CLOSING.


 


9.2                                 Assignment. This Agreement may not be assigned by Purchaser without the prior written
consent of Seller, which approval may be granted or withheld in Seller’s sole
discretion, provided that Purchaser’s assignee assumes all of the obligations
of Purchaser under this Agreement. 
Notwithstanding the foregoing, Purchaser may, without Seller’s consent,
assign its rights under this Agreement to any entity that is wholly owned or
controlled by Purchaser, any of its principals or Inland Western Retail Real
Estate Trust, Inc. In the event of an assignment, the assignee shall assume all
obligations of this Agreement, but Purchaser shall not be released from primary
liability for payment and performance under the Agreement.


 


9.3                                 Notices.  Any notice pursuant hereto
shall be given in writing by (a) personal delivery, or (b) overnight courier
(such as Federal Express), or (c) prepaid telegram, telex or facsimile
transmission (provided that such telegram, telex or facsimile transmission is
confirmed by overnight courier in the manner previously described), sent to the
intended addressee at the address set forth below, or to such other address or
to the attention of such other person as the addressee shall have designated by
written notice sent in accordance herewith, and shall be deemed to have been
given either at the time of personal delivery, or in the case of expedited delivery
service or mail, as of the date of first attempted delivery at the address and
in the manner provided herein, or, in the case of telegram, telex or facsimile
transmission, upon delivery. Unless changed in accordance with the preceding
sentence, the addresses for notices given pursuant hereto shall be as follows:


 


17





















 


(a)                                  If to Seller:


 


VV Arizona, L.P.


c/o INVESCO Real Estate Germany, L.P.


1166 Avenue of the Americas


26th Floor


New York, MY 10036-2727


Phone No.: (212) 278-9000


Facsimile No.: (212) 278-9418


Attention: Christian Goebel, Director


 


With a copy to:


 


J. Greer Cummings, Jr.


Boult Cummings Conners & Berry PLC


414 Union Street, Suite 1600


Post Office Box 198062


Nashville, Tennessee 37219


Telephone:    (615) 252-2316


Facsimile:     (615) 252-6316


 


(b)                                 If
to Purchaser:


 


Inland Real Estate Acquisitions, Inc.


2901 Butterfield Road


Oak Brook, Illinois 60523


Attn: G. Joseph Cosenza


Phone No.: (630) 218-8000


Facsimile No.: (630) 218-4935


 


With a copy to:


 


Dennis K. Holland, Esq.


The Inland Real Estate Group, Inc.


2900 Butterfield Road


Oak Brook, Illinois 60523


Telephone:     (630) 218-8000


Facsimile:      (630) 218-4900


 


9.4                                 Modification.  This
Agreement cannot under any circumstance be modified orally, and no agreement
shall be effective to waive, change, modify or discharge this Agreement in
whole or in part unless such agreement is in writing and is signed by both
Seller and Purchaser


 


18





















 


9.5                                 Confidentiality and Publicity.  (a)
Purchaser recognizes, understands and agrees that Purchaser will become aware
of certain information regarding the ownership and operation of the Property,
including, specifically, without limitation, the information to be provided to Purchaser
pursuant to Section 3.1 hereof and the information to be obtained by
Purchaser pursuant to Section 3.2 hereof. 
Purchaser agrees that, unless required pursuant to a subpoena properly
issued by a court of competent jurisdiction, or as may be required in Purchaser’s
reasonable opinion to be disclosed in any SEC or other regulatory filings, it
shall not disclose any such information to any third party or parties, except
to agents, employees or independent contractors advising or assisting Purchaser
with the transaction contemplated hereby, potential or actual investors,
potential and actual lenders of all or a portion of the Purchase Price;
provided that such parties likewise agree or are otherwise bound to keep such
information confidential.


 


(b)                                 Purchaser and Seller each hereby covenants
that (i) prior to the Closing neither Purchaser nor Seller shall issue any
press release or public statement (a “Release”) with respect to the transaction
without the prior written consent of the other party hereto, except to the
extent required by applicable law, and (ii) after the Closing, any Release
issued by Purchaser or Seller shall be subject to the prior review and approval
of the other party hereto (which approval shall not be unreasonably withheld or
delayed), except to the extent required by applicable law.  If Purchaser or Seller is required by
applicable law to issue a Release, such party shall, at least two (2) Business
Days prior to the issuance of the same, deliver a copy of the proposed Release
(other than any SEC filing) to the other party (as appropriate) for its review.


 


9.6                                 Reporting Requirements.  The
Title Company shall serve as the “real estate reporting person” as that term is
defined in Section 6045(e) of the Internal Revenue Code of 1986, as
amended.  This Agreement shall constitute
a designation agreement, the name and address of the transferor and transferee
of the transaction contemplated hereby appear in Section 9.3 hereof and
Seller, Purchaser and the Title Company agree to retain a copy of this
Agreement for a period of four (4) years following the end of the calendar year
in which Closing occurs. The provisions of this Section 9.6 shall survive
the Closing.


 


9.7                                 Time of Essence. 
Seller and Purchaser agree that time is of the essence with regard to
this Agreement.


 


9.8                                 Business Days.  If
any date provided for in this Agreement shall fall on a day which is not a
Business Day, the date provided for shall be deemed to refer to the next
Business Day.  As used herein, the term “Business
Day” shall mean Monday through Friday, excluding bank holidays on which
national banking associations are authorized to be closed.


 


9.9                                 Successors and Assigns. The terms and provisions hereof shall apply
to and bind the permitted successors and assigns of the parties hereto.


 


9.10                           Exhibits and Schedules.  The
following schedules or exhibits attached hereto (collectively, the “Exhibits”)
shall be deemed to be an integral part hereof:


 


(a)           Exhibit
A – legal description of the Realty;


 


19





















 


	
   

  	
  (b)

  	
  Exhibit B – Earnest Money Escrow Agreement;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (c)

  	
  Exhibit C – Deed;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (d)

  	
  Exhibit D – Bill of Sale;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (e)

  	
  Exhibit E – Lease Assignment;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (f)

  	
  Exhibit F – FIRPTA Affidavit;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (g)

  	
  Exhibit G – Tenant Letter;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (h)

  	
  Exhibit H – Tenant Estoppel Certificate; and

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (i)

  	
  Exhibit I – List of Leases.

  



 


9.11                           Entire Agreement.  This
Agreement, including the Exhibits and Schedules, contains the entire agreement
between Seller and Purchaser pertaining to the transaction contemplated hereby
and fully supersedes all prior agreements and understandings between Seller and
Purchaser pertaining to such transaction.


 


9.12                           Further Assurances.  Both
Seller and Purchaser agree that it will without further consideration execute
and deliver such other documents and take such other actions, whether prior or
subsequent to Closing, as may be reasonably requested by the other party to
consummate more effectively the transaction contemplated hereby. The provisions
of this Section 9.12 shall survive Closing.


 


9.13                           Fees and Expenses.  In
the event of any controversy, claim or dispute between Seller and Purchaser
affecting or relating to the subject matter or performance of the rights, duties
and obligations under this Agreement, the prevailing party shall be entitled to
recover from the non-prevailing party all of the prevailing party’s reasonable
expenses, including, without limitation, attorneys’ fees, accountants’ fees,
court costs and interest.


 


9.14                           Counterparts. This Agreement may be executed in multiple
counterparts, and all such executed counterparts shall constitute the same
agreement. It shall be necessary to account for only one (1) such counterpart
in proving the existence, validity or content of this Agreement.


 


9.15                           Severability.  If
any provision hereof is determined by a court of competent jurisdiction to be
invalid or unenforceable, the remainder of this Agreement shall nonetheless remain
in full force and effect.


 


9.16                           Section and Exhibit Headings. Section and exhibit headings contained
herein are for convenience only and shall not be considered in interpreting or
construing this Agreement.


 


9.17                           Waiver of Jury Trial.  EACH
PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF
ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING UNDER THIS AGREEMENT
OR ANY


 


20





















 


OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH,
OR (ii) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF
THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH,
OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A
JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT
OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.


 


9.18                           Binding Effect.  This
Agreement shall not be binding upon either Seller or Purchaser unless and until
both Seller and Purchaser have executed this Agreement.


 


9.19                           Choice of Law.  This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of Arizona, without regard to the conflicts of laws principles
thereof.


 


9.20                           No Third Party Beneficiary.  The
provisions hereof and of the documents to be executed and delivered at Closing
are and will be for the benefit of Seller and Purchaser only and are not for
the benefit of any third party, and accordingly, no third party shall have the
right to enforce the provisions hereof or of the documents to be executed and
delivered at Closing.


 


9.21                           No Recordation. In no event shall this Agreement or any
memorandum hereof be recorded by Purchaser or any agent or representative of
Purchaser in the public records.  Any such
recordation or attempted recordation shall constitute a breach of this
Agreement by Purchaser, in which event Seller shall be entitled to terminate
this Agreement and receive the Earnest Money from the Title Company and the
parties shall have no further liability hereunder, except for any liability
that expressly survives termination.


 


9.22                           Section 1031 Exchange. 
Notwithstanding anything to the contrary contained in this Agreement,
Seller’s rights under this Agreement may, at any time and without the consent
of Purchaser, be assigned to a “qualified intermediary” which Seller selects
for the purpose of effecting a tax deferred exchange of the Property for other
real property of like kind pursuant to Section 1031 of the Internal
Revenue Code of 1986, as amended.  No
such assignment shall release Seller from liability under this Agreement, and
Seller shall remain fully and primarily liable for performance of all Seller obligations
under this Agreement, notwithstanding such assignment.  Purchaser shall cooperate in all reasonable
respects with Seller and such qualified intermediary in order to effectuate the
exchange desired by Seller, but at no expense to and without imposition of any
liability or obligation on Purchaser.


 


9.23                           Effective Date. As used herein, the term “Effective Date”
shall mean the date of execution hereof by the last of Seller or Purchaser.


 


21





















 


IN WITNESS WHEREOF, the
parties hereto have duly executed this Agreement effective as of the Effective
Date.


 


	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  [PURCHASER NAME]

  
	
   

  	
   

  
	
   

  	
  By:

  	
  INLAND REAL ESTATE ACQUISITIONS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Edward
  A. Rowe

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Edward A.
  Rowe

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Date Executed by Purchaser: 

  	
  Dec. 7, 2004

  	
   

  
	
   

  	
   

  
	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  VV ARIZONA, L.P.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  VV USA, LLC,

  
	
   

  	
   

  	
  its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Dated Executed by Seller:

  	
   

  	
   

  
									



 


22





















 


[SIGNATURE PAGE FOR AGREEMENT
OF PURCHASE AND SALE]


 


IN WITNESS WHEREOF, the Purchaser and Seller have executed counterparts
of this Agreement on the dates set forth below, to be effective as of the
Effective Date.


 


	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  INLAND REAL ESTATE ACQUISITIONS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Date Executed by Purchaser:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  VV ARIZONA, L.P.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  VV USA, LLC,

  
	
   

  	
   

  	
  its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
  Name:

  	
  [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
  Title:

  	
  [ILLEGIBLE] Director

  	
   

  
	
   

  	
   

  
	
   

  	
  Dated Executed by Seller:

  	
  December 1, 2004