Exhibit 10.435


 


AGREEMENT OF PURCHASE AND SALE


 


This Agreement of
Purchase and Sale (“Agreement”) is made and entered into by and between
Purchaser and Seller.


 


RECITALS


 


A.                                    Defined
terms are indicated by initial capital letters. 
Defined terms shall have the meaning set forth herein, whether or not
such terms are used before or after the definitions are set forth.


 


B.                                    Purchaser
desires to purchase the Property and Seller desires to sell the Property, all
upon the terms and conditions set forth in this Agreement.


 


NOW,
THEREFORE, in consideration of the mutual terms, provisions,
covenants and agreements set forth herein, as well as the sums to be paid by
Purchaser to Seller, and for other good and valuable consideration, the receipt
and sufficiency of which are acknowledged, Purchaser and Seller agree as
follows:


 


ARTICLE 1


BASIC INFORMATION


 


1.1                               Certain Basic Terms.  The following defined terms shall have the meanings set forth below:


 


1.1.1                     Seller:    Sun Life Assurance Company
of Canada, a Canadian corporation


 


1.1.2                     Purchaser:     Inland Real Estate
Acquisitions,  Inc.,  an Illinois corporation


 


1.1.3                     Purchase Price:  
Eight Million One Hundred Fifty Thousand and No/100 Dollars
($8,150,000.00).


 


1.1.4                     Earnest
Money:    One Hundred Thousand and
No/100 Dollars ($100,000.00) (the  “Earnest
Money”), to be deposited in accordance with Section 3.1 below.


 


	
  1.1.5

  	
  Title Company:

  	
  Chicago Title Insurance Company

  171 N. Clark Street

  Chicago, IL 60601

  Attn: David Kozicki

  Telephone: 312-223-3117

  Fax: 312-223-5800

  	
   

  



 


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  1.1.6

  	
  Escrow Agent:

  	
  Chicago Title Insurance
  Company

  171 N. Clark Street

  Chicago, IL 60601

  Attn: Ms. Nancy Castro

  Telephone: 312-223-2709

  Fax: 312-223-2709

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.1.7

  	
  Broker:

  	
  Robert S. Carter

  Berkeley Capital Advisors,
  LLC

  831 East Morehead, Suite 650

  Charlotte, North Carolina 28202

  Telephone: 704.379.1983

  Fax: 704.379.1988

  



 


1.1.8                     Effective Date:  The
date on which this Agreement is executed by the latter to sign of Purchaser or
Seller, as indicated on the signature page of this Agreement.


 


1.1.9                     Property Information Delivery Date:  The
date which is three (3) business days after the Effective Date.


 


1.1.10              Title and Survey Review Period:  The
period beginning on the Effective Date and ending thirty (30) days thereafter.


 


1.1.11     Inspection Period:  The
period beginning on the Effective Date and ending on thirty (30) days
thereafter.


 


1.1.12              Closing Date:  Immediately
upon expiration of the Title and Survey Review Period and Inspection Period.


 


1.1.13              Seller’s Knowledge:  The
actual knowledge, without independent investigation, of William M. Barres,
Seller’s Investment Officer.


 


1.2                               Closing Costs.  Closing
costs shall be allocated and paid as follows:


 


	
  Cost

  	
   

  	
  Responsible

  Party

  
	
   

  	
   

  	
   

  
	
  Title
  Commitment required to be delivered pursuant to Section 5.1

  	
   

  	
  Purchaser

  
	
   

  	
   

  	
   

  
	
  Premium
  for standard coverage form Title Policy required to be delivered pursuant to Section
  5.4

  	
   

  	
  Purchaser

  
	
   

  	
   

  	
   

  
	
  Premium
  for any upgrade of Title Policy to extended coverage and any endorsements
  desired by Purchaser.

  	
   

  	
  Purchaser

  
	
   

  	
   

  	
   

  
	
  Costs
  of Survey Update or any revisions, modifications or recertifications  thereto

  	
   

  	
  Purchaser

  
	
   

  	
   

  	
   

  
	
  Costs
  of environmental studies and tests

  	
   

  	
  Purchaser

  



 


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  Escrow
  Fees

  	
   

  	
  Purchaser l/2 Seller
  l/2

  
	
   

  	
   

  	
   

  
	
  South
  Carolina State/Greenville County real estate transfer tax

  	
   

  	
  Seller

  
	
   

  	
   

  	
   

  
	
  Real
  Estate Sales Commission to Broker

  	
   

  	
  Seller

  
	
   

  	
   

  	
   

  
	
  All
  other closing costs, expenses, charges and fees

  	
   

  	
  Purchaser or Seller, as
  Applicable

  



 


1.3                               Notice Addresses:


 


Seller: Sun Life Assurance Company of Canada, One Sun Life Executive
Park, SC-1307, Wellesley Hills, MA, 02481; Attn: William M. Barres, Telephone:
781.446.1159; Facsimile: 781.304.5525 with a copy to Joanne M. Schreiner, Esq.,
1900 Chemed Center, 255 East Fifth Street, Cincinnati, OH 45202.


 


Purchaser: Inland Real Estate Acquisitions, Inc., 2901 Butterfield
Road, Oak Brook, Illinois, 60523; Attn: Joseph G. Cosenza, Telephone:
630.218.4948; Facsimile; 630.218.4035, with copy to Robin Rash, Esq. The Inland
Real Estate Group, Inc., 2901 Butterfield Road, Oak Brook, Illinois 60523,
Telephone: 630.218.8000, ext. 2854; Facsimile 630.218.4900.


 


1.4                               Index of Certain Additional
Defined Terms:


 


Assignment: Subsection 7.3.2


 


Casualty
Notice: Section 6.2


 


Closing: Section 7.1


 


Closing Agent:
Section 7.1


 


Deed:  Subsection 7.3.1


 


Due Diligence Termination
Notice: Section 4.4


 


Estoppel
Certificates:
Subsection 7.3.5


 


Improvements: Subsection 2.1.1


 


Intangible
Personal Property:
Subsection 2.1.4


 


Land: Subsection 2.1.1


 


Leases: Subsection 2.1.2


 


Leasing
Commission Agreements:
Subsection 4.1.7


 


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Material
Damage: Subsection
6.2.1


 


Operating
Statements:
Subsection 4.1.1


 


Permitted
Exceptions: Section 5.3


 


Permitted
Outside Parties:
Section 4.7


 


Property: Section 2.1


 


Property
Documents: Section
4.4


 


Property
Information: Section
4.1


 


Real
Property: Subsection
2.1.1


 


Reports: Section 4.5


 


Service
Contracts: Subsection
4.1.5


 


Survey: Section 5.2


 


Survival
Period: Section 9.3


 


Tangible
Personal Property:
Subsection 2.1.3


 


Taxes: Section 8.1


 


Tenant
Receivables:
Subsection 8.1.3


 


Title
Commitment: Section
5.1


 


Unbilled
Tenant Receivables:
Subsection 8.1.3(a)


 


Uncollected
Delinquent Tenant Receivables: Subsection 8.1.3(a)


 


ARTICLE 2


PROPERTY


 


2.1                               Subject to the terms and conditions of this
Agreement, Seller agrees to sell to Purchaser, and Purchaser agrees to purchase
from Seller, the property commonly known as the Five Forks Shopping Center,
Greenville County, South Carolina, a retail shopping center containing
approximately 64,173 net rentable square feet, situated on approximately 8.1
acres of land, including the following (collectively, the “Property”):


 


2.1.1                     Real Property.  The
land described in “Exhibit A” attached hereto (the “Land”),
together with (i) all improvements located thereon (“Improvements”),
(ii) all and singular the rights, benefits, privileges, easements,


 


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tenements,
hereditaments, and appurtenances thereon or in anyway appertaining thereto, and
(iii) without warranty, all right, title, and interest of Seller, if any, in
and to all strips and gores and any land lying in the bed of any street, road
or alley, open or proposed, adjoining such Land (collectively, the “Real
Property”).


 


2.1.2                     Leases.  All
of Seller’s right, title and interest, in all leases of the Real Property,
including leases which may be made by Seller after the Effective Date and prior
to Closing as permitted by this Agreement (the “Leases”).


 


2.1.3                     Tangible Personal Property.  All
of Seller’s right, title and interest, without warranty, except as specifically
provided herein, in  the equipment,
machinery, furniture, furnishings, supplies and other tangible personal
property, if any, owned by Seller and now or hereafter located in and used in
connection with the operation, ownership or management of the Real Property,
but specifically excluding any items of personal property owned by tenants at
or on the Real Property and further excluding any items of personal property
owned by third parties and leased to Seller (collectively, the “Tangible
Personal Property”).


 


2.1.4                     Intangible Personal Property.  All
of Seller’s right, title and interest, if any, without warranty, except as
specifically provided herein, in all intangible personal property related to
the Real Property and the Improvements, including, without limitation: all
trade names and trade marks associated with the Real Property and the
Improvements, including Seller’s rights and interests, if any, in the name of
the Real Property; the plans and specifications and other architectural and
engineering drawings for the Improvements, if any (to the extent assignable
without cost to Seller); warranties (to the extent assignable without cost to
Seller); contract rights related to the construction, operation, ownership or
management of the Real Property, if any (but only to the extent assignable
without cost to Seller and Seller’s obligations thereunder are expressly
assumed by Purchaser pursuant to this Agreement); governmental permits,
approvals and licenses, if any (to the extent assignable without cost to
Seller); and telephone exchange numbers (to the extent assignable without cost
to Seller) (collectively the “Intangible Personal Property”).


 


ARTICLE 3


EARNEST MONEY


 


3.1                               Deposit and Investment of Earnest
Money.  Within three (3) business days after the
Effective Date, Purchaser shall deposit the Earnest Money with Escrow Agent.
Escrow Agent shall invest the Earnest Money in government insured interest-bearing
accounts if and as directed by Purchaser, shall not commingle the Earnest Money
with any funds of Escrow Agent or others. Such account shall have no penalty
for early withdrawal, and Purchaser accepts all risks with regard to such
account. Interest on the Earnest Money shall be deemed to accrue for the
benefit of Purchaser for tax purposes, and Purchaser shall provide a U.S.
federal taxpayer identification number to Escrow


 


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Agent promptly following the
deposit of the Earnest Money. Interest earned on the Earnest Money, if any,
shall otherwise be deemed to be part of the Earnest Money. The parties shall,
upon the Effective Date, execute the Disclosure and Escrow Agreement attached
as Exhibit C.


 


3.2                               Form; Failure to Deposit.  The
Earnest Money shall be in the form of (a) check or (b) wire transfer to Escrow
Agent of immediately available U.S. federal funds. If Purchaser fails to timely
deposit the Earnest Money within the time periods required, Seller may
terminate this Agreement by written notice to Purchaser, and thereafter the
parties hereto shall have no further rights or obligations hereunder, except
for rights and obligations which, by their terms, survive the termination
hereof.


 


3.3                               Disposition of Earnest Money.  The
Earnest Money shall be applied as a credit to the Purchase Price at Closing or,
if elected by Purchaser, shall be returned to Purchaser.    However, if Purchaser elects to terminate
this Agreement prior to the expiration of the Inspection Period pursuant to Section
4.4, Escrow Agent shall pay the entire Earnest Money to Purchaser within
two (2) business days following receipt of the Due Diligence Termination Notice
from Purchaser (as long as the current investment can be liquidated and
disbursed in two (2) business days), 
provided Escrow Agent notifies Seller of Purchaser’s election to
terminate this Agreement prior to paying the Earnest Money to Purchaser. In the
event of a termination of this Agreement by either Seller or Purchaser for any
reason other than pursuant to Section 4.4, Escrow Agent is directed to deliver the
Earnest Money to the party hereto entitled to same pursuant to the terms hereof
on or before the third (3rd) business day following receipt by
Escrow Agent and the non-terminating party of written notice of such
termination from the terminating party, unless the other party hereto notifies
Escrow Agent that it disputes the right of the other party to receive the
Earnest Money,   In such event, Escrow
Agent may interplead the Earnest Money into a court of competent jurisdiction
in the county in which the Earnest Money has been deposited.   All attorneys’ fees and costs and Escrow
Agent’s costs and expenses incurred in connection with such interpleader shall
be assessed against the party that is not awarded the Earnest Money, or if the
Earnest Money is distributed in part to both parties, then in the inverse
proportion of such distribution.


 


ARTICLE 4


DUE DILIGENCE


 


4.1                               Due Diligence Materials To Be
Delivered.  To the extent such items are in Seller’s
possession or control, Seller shall deliver to Purchaser the following (the “Property
Information”) on or before the Property Information Delivery Date:


 


4.1.1                        Financial Information.  Copy of operating statements and a summary of
capital expenditures pertaining to the Property for the twelve (12) months
preceding the Effective Date of this Agreement or such lesser period as Seller
has owned the Property (“Operating Statements”);


 


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4.1.2                        Environmental Reports.  Copy of any environmental reports or site
assessments related to the Property prepared for the benefit of Seller;


 


4.1.3                        Tax Statements.  Copy of ad valorem tax statements relating to
the Property for the current tax period;


 


4.1.4                        Title and Survey.  Copy of Seller’s most current title insurance
information and survey of the Property;


 


4.1.5                        Service Contracts.  Copies of the service, supply, equipment
rental, and other service contracts and license agreements related to the
operation of the Property (“Service Contracts”);


 


4.1.6                        Personal Property.  A list of Tangible Personal Property;


 


4.1.7                        Leasing Commissions.  A list of contingent leasing commission
agreements with respect to the Leases of the Property (“Leasing Commission
Agreements”); and


 


4.1.8.       Additional Materials.
 To the extent not included in the
foregoing, additional documentation listed on   Exhibit G (the
“Due Diligence Items”).


 


4.2                               Physical Due Diligence.  Commencing on the Effective Date and
continuing until the Closing, Purchaser shall have reasonable access to the
Property at all reasonable times during normal business hours, upon appropriate
notice to tenants as permitted or required under the Leases, for the purpose of
conducting reasonably necessary tests, including surveys and architectural,
engineering, geotechnical and environmental inspections and tests, provided
that Purchaser must give Seller forty eight (48) hours prior telephone or
written notice of any such inspection or test. At Seller’s election, a
representative of Seller shall be present at any entry by Purchaser or its
agents, contractors or employees (collectively, “Purchaser
Parties”) upon the Property.  All
persons or entities conducting tests or inspections on the Property shall be
duly qualified, experienced, and, if required by the State of South Carolina,
registered and licensed with the State of South Carolina for the
investigations, inspections and tests which they will perform on the Property.
Purchaser shall not perform any invasive or intrusive inspection, test or
investigation of the Property (including, without limitation, any drillings,
test borings, core samplings, or other disturbance of the Property for review
of soils, compaction, environmental, structure or other conditions of the
Property) without Seller’s prior written consent, which consent may be given,
withheld or conditioned in Seller’s sole discretion. Subject to the provisions
of Section 4.7 hereof, Purchaser or Purchaser’s representatives may meet
with any tenant; provided, however, Purchaser must contact Seller at least
forty-eight (48) hours in advance by telephone or fax to inform Seller of
Purchaser’s intended meeting and to allow Seller the opportunity to attend such
meeting if Seller desires. Subject to the provisions of Section 4.7
hereof, Purchaser or Purchaser’s representatives may meet with any governmental
authority for any good faith, reasonable purpose in connection with the
transaction contemplated by this Agreement; provided, however, Purchaser must contact
Seller at least forty-eight


 


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(48)
hours in advance by telephone or fax to inform Seller of Purchaser’s intended
meeting and to allow Seller the opportunity to attend such meeting if Seller
desires.


 


Following
any such entry or work, unless otherwise directed in writing by Seller,
Purchaser shall restore the Property to the condition it was in prior to such
entry or work, including without limitation repairs to and the re-compaction or
removal of any disrupted soil or material as Seller may reasonably direct. All
activities, including without limitation, restoration or repair work, shall be
in accordance with applicable laws, including without limitation, laws relating
to worker safety and the proper disposal of discarded materials.


 


Purchaser
and all Purchaser Parties shall, prior to commencing and at all times while
performing any investigations, inspections and tests on the Property, maintain
all risk commercial general liability insurance in an amount not less than
$1,000,000.00 per occurrence and $2,000,000.00 annual aggregate covering any
accident arising in connection with the presence of Purchaser or Purchaser
Parties on the Property, naming Seller as additional insured thereunder. All
such insurance policies shall be provided by insurance companies reasonably
acceptable to Seller. Prior to performing any investigations, inspections and
tests on the Property, Purchaser and the Purchaser Parties performing the work
shall deliver one or more certificates of insurance to Seller evidencing the
insurance required hereunder. Purchaser shall indemnify, defend, protect and
hold harmless Seller, its property manager, and their directors, officers,
agents, employees, members, representatives and managers from any and all
claims, liabilities, demands, losses, costs, expenses (including reasonable
legal fees, expenses and costs of investigation), damages or recoveries,
including those for injury to person or property, arising out of or relating to
any such Due Diligence activities or the acts or omissions of Purchaser or
Purchaser Parties on the Property.


 


Buyer
acknowledges that extensive local, state and federal legislation and regulation
establish broad liability upon owners and/or users of real property for the
investigation and remediation of Hazardous Substances (as that term is defined
below). Buyer acknowledges that Seller has advised Buyer to consult its own
technical and legal experts with respect to the possible existence of Hazardous
Substances at, on, under and near the Property and Buyer hereby assumes all
risks with respect to the effect of the existence or possible existence of all
Hazardous Substances. Such investigations may include searches of records of
governmental offices to determine whether Hazardous Substances or any equipment
or facility generating, manufacturing, producing, handling, storing, using,
transporting, disposing or otherwise dealing with Hazardous Substances may have
been or is located in, on, under or in the vicinity of the Property and, if so,
whether any clean up, containment, removal or other remedial action must or
should be taken in connection therewith. The term “Hazardous Substances”
means any material, waste, chemical, compound, substance, mixture, or byproduct
that is identified, defined, designated, listed, restricted or otherwise
regulated under federal, state or local environmental laws as a “hazardous
constituent,” “hazardous substance,” “hazardous material,” “extremely hazardous
material,” “hazardous waste,” “acutely hazardous waste,” “hazardous waste
constituent,” “infectious waste,” “medical waste,”


 


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“biohazardous
waste,” “extremely hazardous waste,” “pollutant,” “toxic pollutant,” or “contaminant,”
or any other formulation intended to classify substances by reason of
properties that are deleterious to the environment, natural resources or public
health or safety including, without limitation, ignitability, corrosiveness,
reactivity, carcinogenicity, toxicity, and reproductive toxicity. The term “Hazardous Substances” includes without limitation any
material or substance which is (i) petroleum, (ii) asbestos, (iii) designated
as a “hazardous substance” pursuant to Section 311 of the Federal Water
Pollution Control Act, 33 U.S.C. § 1251 et  seq. (33 U.S.C. §
1321), (iv) defined as a “hazardous waste” pursuant to Section 1004 of the
Federal Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et  seq.
(42 U.S.C. § 6903), (v) defined as a “hazardous substance” pursuant to Section
101 of the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended, 42 U.S.C. § 9601 et  seq. (42 U.S.C. § 9601),
or (vi) designated as a hazardous substance, material or waste pursuant to the
Washington Model Toxics Control Act, RCW 70.105D.010 et  seq.


 


The
terms of this Section 4.2 shall survive Closing or termination of the
Agreement.


 


4.3                               Estoppel Certificates.  Following
the Effective Date, Seller will make good faith efforts to obtain from each of
the tenants under the Leases, signed estoppel certificates in the form attached
hereto as Exhibit F-l (the “Estoppel Certificates”). The parties
acknowledge that “good faith efforts” will not be deemed to require the payment
of fees or other consideration that may be required by a tenant as a condition
to issuing an Estoppel Certificate; provided that Purchaser shall be under no
obligation to close unless, not later than five (5) business days prior to the
Closing Date, original or faxed copies of estoppel certificates have been
received for the following tenants (a) Bi-Lo Supermarket and Blockbuster Video;
plus (b) tenants of at least seventy-five percent (75%) of the remaining square
footage of the Property currently leased to tenants, not including Blockbuster
Video and Bi-Lo Supermarket (the “Required Estoppels”). Following receipt from
a tenant, Seller shall fax or deliver the signed Estoppel Certificates to
Purchaser for Purchaser’s approval or disapproval. Purchaser’s failure to
disapprove of any Estoppel Certificate by written notice to Seller within five
(5) business days after delivery of a copy thereof shall be deemed Purchaser’s
approval thereof. Notwithstanding the foregoing, Purchaser shall not have the
right to disapprove of any Estoppel Certificate which is in form and substance
materially the same as the form attached hereto as Exhibit F-l (except
as to information provided by the tenant) or in the form of estoppel
certificate permitted under such tenant’s Lease and which is not materially
inconsistent with the Lease of such Tenant. Furthermore, Purchaser shall not
reject Estoppel Certificates with commercially reasonable markups or changes
initiated by the Tenant. If any Estoppel Certificate is disapproved by
Purchaser, Seller shall have the right, but not the obligation to cure such
deficiencies and obtain and deliver to Purchaser, a revised Estoppel
Certificate, on or before three (3) business days prior to Closing.
Additionally, if Seller provides the Required Estoppels but is unable to
provide an acceptable Estoppel Certificate from any remaining tenant (up to
100% of the total square footage of the Property), then Seller, not later than
three (3) business days prior to Closing, shall deliver to Purchaser an
Estoppel Certificate certified by Seller, to Seller’s


 


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knowledge, in the form
attached hereto as Exhibit F-2 (the “Seller’s Estoppel”), which
certification shall survive the Closing for a maximum period of one (1) year
(provided, however, if Seller subsequently delivers a Estoppel Certificate from
such tenant(s), Seller shall thereafter be released from such certification).


 


If,
by three (3) business days prior to the Closing Date, Seller has not delivered
all of the Estoppel Certificates or Seller’s Estoppel required hereunder,
Purchaser shall have the right to terminate this Agreement upon written notice
to Seller; provided, however, that Seller shall have the right to avoid
termination of this Agreement by extending the Closing Date for one (1) period
of up to fifteen (15) days for the purposes of obtaining the necessary Estoppel
Certificates to satisfy the requirements of this Section 4.3 by
providing written notice to Purchaser not later than two (2) days prior to the
scheduled Closing Date. If Purchaser timely terminates this Agreement, the
Earnest Money shall be delivered by Escrow Holder to Purchaser, and Purchaser
and Seller shall not have any further liability to the other under this
Agreement except those obligations expressly surviving termination of this
Agreement.  Failure to obtain the
Estoppel Certificates shall not be a breach of this Agreement, unless Seller
has failed to make a good faith effort to obtain such Estoppel Certificates.


 


4.4                               Due Diligence/Termination Right.  Purchaser
shall have through the last day of the Inspection Period in which to (i)
examine, inspect, and investigate the Property Information (collectively, the “Property
Documents”) and the Property and, in Purchaser’s sole and absolute judgment
and discretion, determine whether the Property is acceptable to Purchaser, (ii)
obtain all necessary internal approvals, and (iii) satisfy all other
contingencies of Purchaser. Notwithstanding anything to the contrary in this
Agreement, Purchaser may terminate this Agreement for any reason or no reason
by giving written notice of termination to Seller and Escrow Agent (the “Due
Diligence Termination Notice”) on or before the last day of the Inspection
Period. If Purchaser does not give a Due Diligence Termination Notice, this Agreement
shall continue in full force and effect, Purchaser shall be deemed to have
waived its right to terminate this Agreement pursuant to this Section 4.4,
and Purchaser shall be deemed to have acknowledged that it has received or had
access to all Property Documents and conducted all inspections and tests of the
Property that it considers important.


 


4.5                               Return of Documents and Reports.  If
this Agreement terminates for any reason, Purchaser shall promptly return
and/or deliver to Seller all Property Documents and copies thereof.   Additionally, if this Agreement terminates
for any reason, then Purchaser must deliver to Seller copies of all third party
reports, investigations and studies, other than economic analyses
(collectively, the “Reports” and, individually, a “Report”)
prepared for Purchaser in connection with its due diligence review of the
Property provided Seller first delivers to Purchaser the total, actual cost of
all such Reports. The Reports shall be delivered to Seller without any
representation or warranty as to the completeness or accuracy of the Reports or
any other matter relating thereto, and Seller shall have no right to rely on
any Report without the written consent of the party preparing same.    Purchaser’s obligation to deliver the Property
Documents and the Reports to Seller shall survive the termination of this
Agreement.


 


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4.6                               Service Contracts.  Seller shall deliver at Closing notices of termination of all Service
Contracts.


 


4.7                               Proprietary Information;
Confidentiality.  Purchaser acknowledges that the Property
Documents are proprietary and confidential (except to the extent available from
third parties) and will be delivered to Purchaser solely to assist Purchaser in
determining the feasibility of purchasing the Property.    Purchaser shall not use the Property
Documents for any purpose other than as set forth in the preceding sentence.
Purchaser shall not disclose the contents to any person other than to those
persons who are responsible for determining the feasibility of Purchaser’s
acquisition of the Property and who have agreed to preserve the confidentiality
of such information as required hereby, or to any governmental or
quasi-governmental agency to which Purchaser is legally obligated to disclose
such matters, (collectively, “Permitted Outside Parties”). At any time
and from time to time, within two (2) business days after Seller’s request,
Purchaser shall deliver to Seller a list of all parties to whom Purchaser has
provided any Property Documents or any information taken from the Property
Documents,  Purchaser shall not divulge
the contents of the Property Documents and other information except in strict
accordance with the confidentiality standards set forth in this Section 4.7.    In permitting Purchaser to review the
Property Documents or any other information, Seller has not waived any
privilege or claim of confidentiality with respect thereto, and no third party
benefits or relationships of any kind, either express or implied, have been
offered, intended or created.


 


4.8                               No Representation or Warranty by Seller. 
Purchaser acknowledges that, except as expressly set forth in this
Agreement, Seller has not made any warranty or representation regarding the
truth, accuracy or completeness of the Property Documents or the source(s)
thereof.   Purchaser further acknowledges
that some if not all of the Property Documents were prepared by third parties
other than Seller.  Except as otherwise
set forth in this Agreement, Seller expressly disclaims any and all liability
for representations or warranties, express or implied, statements of fact and
other matters contained in such information, or for omissions from the Property
Documents, or in any other written or oral communications transmitted or made
available to Purchaser. Except as otherwise set forth in this Agreement,
Purchaser shall rely solely upon its own investigation with respect to the
Property, including, without limitation, the Property’s physical, environmental
or economic condition, compliance or lack of compliance with any ordinance,
order, permit or regulation or any other attribute or matter relating thereto.
Seller has not undertaken any independent investigation as to the truth,
accuracy or completeness of the Property Documents and is providing the
Property Documents solely as an accommodation to Purchaser.


 


4.9                               Purchaser’s Responsibilities.
 In conducting any inspections, investigations or tests of the Property
and/or Property Documents, Purchaser and its agents and representatives shall:
(i) not unreasonably disturb the tenants or interfere with their use of the
Property pursuant to their respective Leases; (ii) not interfere with the
operation and maintenance of the Property; (iii) not damage any part of the Property
or any personal property owned or held by any tenant or any third party unless
any such


 


11





















 


damage is repaired promptly
to Seller’s satisfaction; (iv) not injure or otherwise cause bodily harm to
Seller, or its respective agents, guests, invitees, contractors and employees
or any tenants or their guests or invitees; (v) comply with all applicable
laws; (vi) promptly pay when due the costs of all its tests, investigations,
and examinations done with regard to the Property; (vii) not permit any liens
to attach to the Real Property by reason of the exercise of its rights
hereunder; (viii) repair any damage to the Real Property resulting directly or
indirectly from any such inspection or tests; and (ix) not reveal or disclose
prior to Closing any information obtained during the Inspection Period
concerning the Property and the Property Documents to anyone other than the
Permitted Outside Parties, in accordance with the confidentiality standards set
forth in Section 4.7 above, or except as may be otherwise required by
law.


 


4.10                        Purchaser’s Agreement to
Indemnify.  Purchaser indemnifies and holds Seller
harmless from and against any and all liens, claims, causes of action, damages,
liabilities and expenses (including reasonable attorneys’ fees) arising out of
Purchaser’s inspections or tests permitted under this Agreement or any
violation of the provisions of Sections 4.2, 4.7 and 4.9; provided,
however, the indemnity shall not extend to protect Seller from any pre-existing
liabilities for matters merely discovered by Purchaser (i.e., latent
environmental contamination) so long as Purchaser’s actions do not aggravate
any pre-existing liability of Seller. Purchaser also indemnifies and holds
Seller and any tenant harmless from and against any and all claims, causes of
action, damages, liabilities and expenses which such tenant may suffer or incur
due to Purchaser’s breach of its obligation under Section 4.8 above to
maintain the confidential nature of any Property Documents or other information
relative to such tenant. Purchaser’s obligations under this Section 4.10
shall survive the termination of this Agreement and shall survive the Closing.


 


ARTICLE 5


TITLE AND SURVEY


 


5.1                               Title Commitment.  Purchaser
shall obtain: (i) a   current  ALTA commitment for title insurance with
extended coverage (the “Title Commitment”) issued by the Title Company,
in the amount of the Purchase Price, with Purchaser as the proposed insured,
and (ii) copies of all documents of record referred to in the Title Commitment
as exceptions to title to the Property.


 


5.2                               New or Updated Survey.  Purchaser,
at its expense, may elect to obtain a new survey or revise, modify, or
re-certify Seller’s existing survey (“Survey”)  as necessary in order for the Title Company
to delete the survey exception from the Title Policy or to otherwise satisfy
Purchaser’s objectives.


 


5.3                               Title Review.  During
the Title and Survey Review Period, Purchaser shall review title to the
Property as disclosed by the Title Commitment and the Survey. Seller shall have
no obligation to cure title objections except financing liens of an
ascertainable amount created by, under or through Seller, which liens Seller
shall cause to be released at or prior to Closing, and Seller shall deliver the
Property free and clear of


 


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any
such financing liens. Seller further agrees to remove any exceptions or
encumbrances to title which are voluntarily created by, under or through Seller
after the Effective Date without Purchaser’s consent.


 


Prior
to the expiration of the Title and Survey Review Period, Purchaser shall notify
Seller of any objections to the state of title to the Property, which
objections shall be made in writing and delivered to Seller (a “Title/Survey
Objection Notice”). If Purchaser shall fail to deliver a Title/Survey
Objection Notice on or before the expiration of the Title and Survey Review
Period, Purchaser shall be deemed to have accepted all exceptions to the Title
Commitment and the form and substance of the Survey and all matters shown
thereon, except those exceptions that Seller is obligated to remove as provided
herein. If Purchaser delivers a Title/Survey Objection Notice, Seller may, but
shall have no obligation to, within five (5) days after receipt of the
Title/Survey Objection Notice (“Seller’s Election Period”), elect to
eliminate or ameliorate to Purchaser’s reasonable satisfaction the disapproved
title or survey matters by giving Purchaser written notice (“Seller’s
Title/Survey Notice”) of those disapproved title or survey matters, if any,
which Seller agrees to so eliminate or ameliorate by the Closing Date. Any
title exception disapproved by Purchaser shall be deemed ameliorated to
Purchaser’s reasonable satisfaction to the extent that Seller either causes
such exception to be removed from the Title Commitment or to be affirmatively
insured over, if Seller does not elect to, or is unable to, eliminate or
ameliorate any disapproved title or survey matters, or if Seller fails to
timely deliver Seller’s Title/Survey Notice, Purchaser shall have the right, on
or before five (5) days following the expiration of Seller’s Election Period,
to either: (a) waive its prior disapproval, in which event said disapproved
matters shall be deemed approved; or (b) terminate this Agreement. Failure to
take either one of the actions described in subsections (a) and (b), above,
shall be deemed to be Purchaser’s election to take the action described in
subsection (a), above. If Purchaser elects to terminate this Agreement as
provided in subsection (b), above, this Agreement shall automatically
terminate, the Earnest Money shall be delivered by Escrow Agent to Purchaser,
and Purchaser and Seller shall not have any further liability to the other
under this Agreement except those obligations expressly surviving termination
of this Agreement.


 


For
the purpose of this Agreement, the term “Permitted Exceptions” shall
mean: the specific exceptions in the Title Commitment or Survey which were not
disapproved by Purchaser as provided in this Section 5.3; matters created by,
through or under Purchaser; real estate taxes not yet due and payable; tenants
under the Leases; and any licensees under any Service Contracts not terminated
as of Closing.


 


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ARTICLE
6


OPERATIONS
AND RISK OF LOSS


 


6.1                               Ongoing Operations.


 


6.1.1                     Leases and Service Contracts.  From
the Effective Date through Closing, Seller will perform its material
obligations under the Leases and Service Contracts.


 


6.1.2                    New Contracts.  From
the Effective Date through Closing, Seller will not enter into any contract
that will be an obligation affecting the Property subsequent to the Closing,
except contracts entered into in the ordinary course of business that are
terminable without cause and without the payment of any termination penalty on
not more than thirty (30) days’ prior notice.


 


6.1.3                     Maintenance of Improvements;
Removal of Personal Property.
 From the Effective Date through Closing,
subject to Sections 6.2 and 6.3, Seller shall maintain all Improvements
substantially in their present condition (ordinary wear and tear and casualty
excepted) and in a manner consistent with Seller’s maintenance of the
Improvements during Seller’s period of ownership. Seller will not remove any
Tangible Personal Property except as may be required for necessary repair or
replacement, and replacement shall be of approximately equal quality and
quantity as the removed item of Tangible Personal Property. Seller will
maintain all policies of insurance with respect to the Property which were in
effect on the Effective Date.


 


6.1.4                     Leasing.  From
and after the date which is five (5) days prior to the expiration of the
Inspection Period, Seller will not amend or terminate any existing Lease or
enter into any new Lease without the consent of Purchaser.  If Purchaser’s consent is requested by Seller
as to any amendment or termination of a Lease or new Lease, Purchaser agrees to
give Seller written notice of approval or disapproval of a proposed amendment
or termination of a Lease or new Lease within five (5) business days after
Purchaser’s receipt of the proposed amendment, termination, or new Lease. If
Purchaser does not respond to Seller’s request within such time period, then
Purchaser will be deemed to  have  approved such amendment, termination or
new  Lease. Purchaser shall not
unreasonably withhold its consent to any proposed amendment, termination or new
Lease. Purchaser’s  disapproval  will 
be  deemed  to 
be  reasonable  if a 
proposed amendment or new Lease is on terms and conditions which are not
consistent with those other Leases in the Real Property, including, but not
limited to, term, rentals and expense recoveries.


 


6.2                               Damage.  If
prior to Closing the Property is damaged by fire or other casualty, Seller
shall estimate the cost to repair and the time required to complete repairs and
will provide Purchaser written notice of Seller’s estimation (the “Casualty
Notice”) as soon as reasonably possible after the occurrence of the
casualty.


 


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6.2.1                     Material.  In
the event of any Material Damage to or destruction of the Property or any
portion thereof prior to Closing, Purchaser may, at its option, terminate this
Agreement by delivering written notice to Seller on or before the expiration of
thirty (30) days after the date Seller delivers the Casualty Notice to
Purchaser (and if necessary, the Closing Date shall be extended to give the
parties the full thirty-day period to make such election and to obtain
insurance settlement agreements with Seller’s insurers).   Upon any such termination, the Earnest Money
shall be returned to Purchaser and the parties hereto shall have no further
rights or obligations hereunder, other than those that by their terms survive
the termination of this  Agreement.     If Purchaser does not terminate  this Agreement within said thirty (30) day
period, then the parties shall proceed under this Agreement and close on
schedule (subject to extension of Closing as provided above), and as of Closing
Seller shall assign to Purchaser, without representation or warranty by or
recourse against Seller, all of Seller’s rights in and to any resulting
insurance proceeds (including any rent loss insurance applicable to any period
on and after the Closing Date) due Seller as a result of such damage or
destruction and credit Purchaser at Closing for the amount of the deductible,
if any, and Purchaser shall assume full responsibility for all needed repairs. For
the purposes of this Agreement, “Material Damage” and “Materially
Damaged” means damage which, in Seller’s reasonable estimation, exceeds
$250,000.00 to repair or which, in Seller’s reasonable estimation, will take
longer than one hundred eighty (180) days to repair.


 


6.2.2                     Not Material.  If
the Property is not Materially Damaged, then neither Purchaser nor Seller shall
have the right to terminate this Agreement, and Seller shall, at Closing,
assign the insurance proceeds to Purchaser and credit Purchaser at Closing for
the amount of the deductible, if any.


 


6.3                               Condemnation.  If
proceedings in eminent domain are instituted with respect to the entire
Property or any portion thereof which affects (a) the Improvements; (b) any
parking areas in the Property; or (c) access to a public street, Purchaser may,
at its option, by written notice to Seller given within ten (10) days after
Seller notifies Purchaser of such proceedings (and if necessary the Closing
Date shall be automatically extended to give Purchaser the full ten-day period
to make such election), either: (i) terminate this Agreement, in which case the
Earnest Money shall he immediately returned to Purchaser and the parties hereto
shall have no further rights or obligations, other than those that by their
terms survive the termination of this Agreement, or (ii) proceed under this
Agreement, in which event Seller shall, at the Closing, assign to Purchaser its
entire right, title and interest in and to any condemnation award, and
Purchaser shall have the sole right after the Closing to negotiate and
otherwise deal with the condemning authority in respect of such matter. If
Purchaser does not give Seller written notice of its election within the time
required above, then Purchaser shall be deemed to have elected option (ii)
above.


 


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ARTICLE 7


CLOSING


 


7.1                               Closing.  The consummation of the transaction contemplated herein (“Closing”)
shall occur on the Closing Date at the offices of the Title Company (the “Closing
Agent”) (or such other location as may be mutually agreed upon by Seller
and Purchaser). Funds shall be deposited into and held by Closing Agent in a
closing escrow account.   Upon
satisfaction or completion of all closing conditions and deliveries, the
parties  shall direct Closing Agent to
immediately record  and deliver the
closing documents to the appropriate parties and make disbursements according
to the closing statements executed by Seller and Purchaser.


 


7.2                               Conditions to Parties’
Obligation to Close.  In
addition to all other conditions set forth herein, the obligation of Seller, on
the one hand, and Purchaser, on the other hand, to consummate the transactions
contemplated hereunder are conditioned upon the following:


 


7.2.1                     Representations and Warranties.  The other party’s representations and warranties contained herein shall
be true and correct in all material respects as of the date of this Agreement
and the Closing Date;


 


7.2.2                     Deliveries.  As of the Closing Date, the parties shall have tendered all deliveries
to be made at Closing; and


 


7.2.3                     Actions, Suits, etc. 
There shall exist no pending or threatened actions, suits, arbitrations,
claims, attachments, proceedings, assignments for the benefit of creditors,
insolvency, bankruptcy, reorganization or other proceedings, against the other
party that would materially and adversely affect the operation or value of the
Property or the other party’s ability to perform its obligations under this
Agreement.


 


In
addition, the obligation of Purchaser to consummate the transactions
contemplated hereunder is conditioned upon the following:


 


7.2.4                     Title Policy.  The
Title Company shall have issued and delivered to Purchaser, or shall have
committed to issue and deliver to Purchaser, with respect to the Real Property,
an Extended Coverage ALTA Owner’s Policy of Title Insurance (1992 Form) (the “Title
Policy”) issued by the Title Company as of the date and time of the recording
of the Deed (as defined in section 7.3.1, below), in the amount of the Purchase
Price, insuring Purchaser as owner of good and marketable fee simple title to
the Real Property, subject only to the Permitted Exceptions; and,


 


7.2.5                     Audit Representation Letter.  Seller shall have delivered to Purchaser the audit representation
letter described in Section 13.17, in the form attached as Exhibit I, at least
three (3) business days prior to the Closing Date.


 


7.2.6                     Leasing.  One Hundred Percent (100%) of the existing leases for the leasable
space in the Real Property shall remain in effect as of the Closing Date, on
the terms shown on Exhibit J.


 


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7.2.7       Postal Annex.  Either
(i) the lease with Postal Annex shall have been renewed for a minimum period of
one year on the terms set forth on Exhibit J, or (ii) the Master Lease Escrow
Agreement shall have been revised to provide for an additional escrow deposit
equal to twelve (12) months’ rent and twelve (12) months’ CAM (as defined in
the Master Lease Escrow Agreement) for Postal Annex, as shown on Exhibit J.


 


So
long as a party is not in default hereunder, if any condition to such party’s
obligation to proceed with the Closing hereunder has not been satisfied as of
the Closing Date (or such earlier date as is provided herein), such party may,
in its sole discretion terminate this Agreement by delivering written notice to
the other party on or before the Closing Date (or such earlier date as is
provided herein), or elect to close (or to permit any such earlier termination
deadline to pass) notwithstanding the non-satisfaction of such condition, in
which event such party shall be deemed to have waived any such condition. In
the event such party elects to close (or to permit any such earlier termination
deadline to pass), notwithstanding the non-satisfaction of such condition, said
party shall be deemed to have waived said condition, and there shall be no
liability on the part of any other party hereto for breaches of representations
and warranties of which the party electing to close had knowledge at the
Closing.


 


7.3                               Seller’s Deliveries in Escrow.  As of
or prior to the Closing Date, Seller shall deliver in escrow to Closing Agent
the following:


 


7.3.1                     Deed.  A
limited warranty deed in a form prepared by Seller and approved by Purchaser,
subject only to the Permitted Exceptions to which the conveyance shall be
subject, executed and acknowledged by Seller, conveying to Purchaser Seller’s
interest in the Real Property (the “Deed”);


 


7.3.2                     Bill of Sale, Assignment and
Assumption.  A Bill of Sale, Assignment and Assumption of
Leases and Contracts in the form of Exhibit B attached  hereto 
(the  “Assignment”),  executed and acknowledged by Seller, vesting
in Purchaser, with limited warranty, Seller’s right, title and interest in and
to the property described therein free of any claims, except for the Permitted
Exceptions to the extent applicable;


 


7.3.3                     Conveyance   or 
Transfer  Tax   Forms  
or   Returns.  Such
conveyance or transfer tax forms or returns, if any, as are required to be
delivered or signed by Seller by applicable state and local law in connection
with the conveyance of the Real Property;


 


7.3.4                     FIRPTA.  A
Foreign Investment in Real  Property Tax
Act affidavit executed by Seller;


 


7.3.5                     Estoppel Certificates.  Original
Estoppel Certificates as provided in Section 4.3 above to the extent not
provided previously;


 


17





















 


7.3.6                     Master Lease.  Three
(3) counterparts of the Master Lease Escrow Agreement, executed by Seller.


 


7.3.7                     Additional Documents.  Any
additional documents that Closing Agent or the Title Company may reasonably
require for the proper consummation of the transaction contemplated by this
Agreement (provided, however, no such additional document shall expand any
obligation, covenant, representation or warranty of Seller or result in any new
or additional obligation, covenant, representation or warranty of Seller under
this Agreement beyond those expressly set forth in this Agreement).


 


7.4                               Purchaser’s Deliveries in Escrow.  As
of or prior to the Closing Date, Purchaser shall deliver in escrow to Closing
Agent the following:


 


7.4.1                     Bill of Sale, Assignment and
Assumption.  The Assignment, executed and acknowledged by
Purchaser;


 


7.4.2                     Conveyance or Transfer Tax Forms
or Returns.  Such conveyance or transfer tax forms or
returns, if any, as are required to be delivered or signed by Purchaser by
applicable state and local law in connection with the conveyance of Real
Property; and


 


7.4.3                     Master Lease.  Three (3) counterparts of the Master Lease
Escrow Agreement, executed by Purchaser.


 


7.4.4                     Additional Documents.  Any
additional documents that Seller, Closing Agent or the Title Company may
reasonably require for the proper consummation of the transaction contemplated
by this Agreement (provided, however, no such additional document shall expand
any obligation, covenant, representation or warranty of Purchaser or result in
any new or additional obligation, covenant, representation or warranty of
Purchaser under this Agreement beyond those expressly set forth in this
Agreement).


 


7.5                               Closing Statements.  As
of or prior to the Closing Date, Seller and Purchaser shall deposit with
Closing Agent executed closing statements consistent with this Agreement in the
form required by Closing Agent.


 


7.6                               Purchase Price.  At
or before 11:00 a.m. local time on the Closing Date, Purchaser shall deliver to
Closing Agent the Purchase Price less any portion of the Earnest Money that is
applied to the Purchase Price, plus or minus applicable prorations, in
immediate, same-day U.S. federal funds wired for credit into Closing Agent’s
escrow account, which funds must be delivered in a manner to permit Closing
Agent to deliver good funds to Seller or its designee on the Closing Date (and,
if requested by Seller, by wire transfer).


 


7.7                               Possession.  Seller
shall deliver possession of the Property to Purchaser at the Closing subject
only to the Permitted Exceptions.


 


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7.8                               Notice
to Tenants.  Seller and Purchaser shall each execute,
and Purchaser shall deliver to each tenant immediately after the Closing, a
notice regarding the sale in substantially the form of Exhibit D
attached hereto. This obligation on the part of Purchaser and Seller shall
survive the Closing.


 


ARTICLE
8


PRORATIONS,
DEPOSITS, COMMISSIONS


 


8.1                               Prorations.  At
Closing, the following items shall be prorated as of the date of Closing with
all items of income and expense for the Property being borne by Purchaser from
and after (but including) the date of Closing: Tenant Receivables (defined
below) and other income and rents that were due and payable prior to Closing;
fees and assessments; prepaid expenses and obligations under Service Contracts;
accrued operating expenses; real and personal ad valorem taxes (“Taxes”);
and any assessments by private covenant for the then-current calendar year of
Closing. Specifically, the following shall apply to such prorations and to
post-Closing collections of Tenant Receivables:


 


8.1.1                     Taxes.  If Taxes for the year of Closing are not
known or cannot be reasonably estimated, Taxes shall be prorated based on Taxes
for the year prior to Closing, subject to adjustment by the parties if the
actual Taxes vary from the prior year’s Taxes, pursuant to Section 8.1(b). Any
additional Taxes relating to the year of Closing or prior years arising solely
out of a change in the use of the Real Property or a change in ownership from
Seller to Purchaser shall be assumed by Purchaser effective as of Closing and
paid by Purchaser when due and payable, and Purchaser shall indemnify Seller
from and against any and all such Taxes, which indemnification obligation shall
survive the Closing. At Closing, Purchaser and Seller shall determine the
estimated amount of Taxes to be reimbursed by Bi-Lo Supermarkets for the period
of time up to the Closing (the “Bi-Lo Tax Payment”). The amount of the Bi-Lo
Tax Payment shall be calculated based on the most recently-available tax bill.
The Bi-Lo Tax Payment shall be deposited by Purchaser with Escrow Agent, to be
released to Seller if and when Bi-Lo Supermarkets makes the Bi-Lo Tax Payment
to Purchaser (and subject to adjustment pursuant to Section 8.1.3(b)). If Bi-Lo
Supermarkets fails or refuses to make the Bi-Lo Tax Payment when it is due
after demand is made by Purchaser, then the Bi-Lo Tax Payment shall be released
to Purchaser and Seller shall reserve all rights to pursue payment of the Bi-Lo
Tax Payment from Bi-Lo Supermarkets.


 


8.1.2                     Utilities.  Purchaser shall take all steps necessary to
effectuate the transfer of all utilities to its name as of the Closing Date,
and where necessary, post deposits with the utility companies. Seller shall be
entitled to recover any and all deposits held by any utility company as of the
Closing Date or, alternatively, to take a credit for same on the settlement
statement at Closing if said deposit remains in place for Buyer’s benefit.


 


19





















 


8.1.3                     Tenant Receivables.  Rents
due from tenants under Leases
and operating expenses and/or taxes payable by tenants under Leases
(collectively, “Tenant Receivables”) and not collected by Seller as of
Closing shall not be prorated between Seller and Purchaser at Closing but shall
be apportioned on the basis of the period for which the same is payable and if,
as and when collected, as follows:


 


(a)                                  Rent and other income received from tenants
under Leases after Closing shall be applied in the following order of priority:
(i) first, to Tenant Receivables first coming due after Closing and
applicable to the period of time after Closing, which amount shall be
retained by Purchaser; and (ii) second, to payment of Tenant Receivables
first coming due after Closing but applicable to the period of time before
Closing, including, without limitation, the Tenant Receivables described in Subsection
8.1.3(b) below (collectively, “Unbilled Tenant Receivables”), which
amount shall be delivered to Seller; and (iii) thereafter, to delinquent Tenant
Receivables which were due and payable as of Closing but not collected by
Seller as of Closing (collectively, “Uncollected Delinquent Tenant
Receivables”), which amount shall be delivered to Seller. Any sums received
by Purchaser to which Seller is entitled shall be held in trust for Seller on
account of such past due rents payable to Seller, and Purchaser shall remit to
Seller any such sums received by Purchaser to which Seller is entitled within
ten (10) business days after receipt thereof less reasonable, actual costs and
expenses of collection, including reasonable attorneys’ fees, court costs and
disbursements, if any. Seller expressly agrees that if Seller receives any
amounts after the Closing Date which are attributable, in whole or in part, to
any period after the Closing Date, Seller shall remit to Purchaser that portion
of the monies so received by Seller to which Purchaser is entitled within ten
(10) business days after receipt thereof. With respect to Unbilled Tenant
Receivables, Purchaser covenants and agrees to (A) bill the same when billable
and (B) cooperate with Seller to determine the correct amount of operating
expenses and/or taxes due. The provisions of this Subsection 8.1.3(a)
shall survive the Closing.


 


(b)                                  Not later than thirty (30) days after the
date on which reconciliation for 2004 with tenants are complete (the “Final
Reconciliation Date”), Seller and Purchaser shall agree upon a final
reconciliation of operating expenses and/or taxes due under the Leases, and
adjustments may be made to the Closing prorations (i) to the extent expenses
were not prorated at Closing, or (ii) to the extent expenses were prorated at
Closing based on estimates which can now be updated or verified with actual
figures. Without limiting the generality of the requirements of Subsection
8.1.3(a) above, if the final reconciliation (after consideration of any
escrow accounts held by Lender) shows that a net amount is owed by Seller to
Purchaser, said amount shall be paid by Seller


 


20





















 


to
Purchaser within ten (10) business days of the Final Reconciliation Date. If
the final reconciliation shows that a net amount is owed by Purchaser to
Seller, Purchaser shall, within ten (10) business days of the Final
Reconciliation Date, remit said amount to Seller. There shall be no
reconciliations or re-prorations from and after the Final Reconciliation Date.


 


8.2                               Leasing Costs.  Seller
agrees to pay or discharge all leasing commissions under the Leasing Commission
Agreements, costs for tenant improvements, legal fees and other costs and
expenses (collectively, “Leasing Costs”) with respect to Leases executed
or in force as of or prior to the Closing Date. Purchaser agrees to pay or
discharge all Leasing Costs with respect to Leases executed after the Closing
Date.


 


8.3                               Closing Costs. 
Closing costs shall be allocated between Seller and Purchaser in
accordance with Section 1.2.


 


8.4                               Tenant Deposits.  All
tenant security deposits collected and not applied by Seller pursuant to the
Leases (and interest thereon if required by law or contract) shall be transferred
or credited to Purchaser at Closing.   As
of the Closing, Purchaser shall assume Seller’s obligations related to tenant
security deposits, but only to the extent they are credited or transferred to
Purchaser.


 


8.5                               Commissions.  Seller
shall be responsible to Broker for a real estate sales commission at Closing
(but only in the event of a Closing in strict accordance with this Agreement)
pursuant to a separate written agreement. 
Broker may share its commission with any other licensed broker involved
in this transaction, but the payment of the commission by Seller to Broker
shall fully satisfy any obligations of Seller to pay a commission
hereunder.  Under no circumstances shall
Seller owe a commission or other compensation directly to any other broker,
agent or person. Other than as stated above in this Section 8.5, Seller
and Purchaser each represent and warrant to the other that no real estate
brokerage commission is payable to any person or entity in connection with the
transaction contemplated hereby, and each agrees to and does hereby indemnify
and hold the other harmless against the payment of any commission to any other
person or entity claiming by, through or under Seller or Purchaser, as
applicable.   This indemnification shall
extend to any and all claims, liabilities, costs and expenses (including
reasonable attorneys’ fees and litigation costs) arising as a result of such
claims and shall survive the Closing.


 


ARTICLE 9


REPRESENTATIONS AND WARRANTIES


 


9.1                               Seller’s Representations and
Warranties.  Seller represents and warrants to Purchaser as
of the Effective Date and as of the Closing Date that:


 


9.1.1                     Organization and Authority.  Seller has been duly organized and is validly
existing as a corporation in good standing in Canada. Seller has the full right
and authority and has obtained any and all consents required to enter into 


 


21





















 


this
Agreement and to consummate or cause to be consummated the transactions
contemplated hereby. This Agreement has been, and all of the documents to be
delivered by Seller at the Closing will be, authorized and properly executed
and constitute, or will constitute, as appropriate, the valid and binding
obligation of Seller, enforceable in accordance with their terms.


 


9.1.2                    Conflicts and Pending Actions.  There
is no agreement to which Seller is a party or, to Seller’s knowledge, that is
binding on Seller which is in conflict with this Agreement.   There is no action or proceeding pending or
to Seller’s knowledge, threatened against Seller or relating to the Property,
which challenges or impairs Seller’s ability to execute or perform its
obligations under this Agreement.


 


9.1.3                    Tenant/Leases.  As
of the Effective Date, Exhibit E lists all effective leases and amendments
with respect to the Property.


 


9.1.4                    Service Contracts.  As
of the Effective Date, the list of Service Contracts includes all Service
Contracts with respect to the Property.


 


9.1.5                    Notices from Governmental
Authorities.  Seller has not received from any governmental
authority written notice of any material violation of any laws applicable (or
alleged to be applicable) to the Real Property, or any part thereof, that has
not been corrected, except as may be reflected by the Property Documents or
otherwise disclosed in writing to Purchaser.


 


9.1.6                    Purchase Rights.  To
Seller’s knowledge, no person or entity, except Purchaser, has been granted any
options, rights of first refusal or other purchase rights with respect to the
Property.


 


9.1.7                    Condemnation.  No
portion of the Property has been condemned or otherwise taken by any public
authority, and Seller has no knowledge that any such condemnation or taking is
threatened or contemplated.


 


9.1.8                    Assessments.  To
Seller’s knowledge, Seller has received no notice concerning any existing or
proposed special assessments or similar taxes, charges or assessments against
the Property or any utility service moratoriums or other moratoriums affecting
the Property.


 


9.1.9                    Environmental Reports.  To
Seller’s knowledge, other than as may be disclosed in the Due Diligence Items,
(i) no Hazardous Substances in violation of any state, federal or local law,
regulation or ordinance arc contained within or located at or under the
Property; (ii) there are no underground storage tanks located under the
Property; and (iii) no portion of the Property is located in an area that has
been designated a wetlands or other environmental protection area.


 


22





















 


9.2                               Purchaser’s Representations and Warranties.  Purchaser
represents and warrants to Seller as of the Effective Date and as of the
Closing Date that:


 


9.2.1                    Organization and Authority.  Purchaser
has been duly organized, is validly existing as a corporation in good standing
in Illinois. Purchaser has the full right and authority and has obtained any
and all consents required to enter into this Agreement and to consummate or
cause to be consummated the transactions contemplated hereby. This Agreement
has been, and all of the documents to be delivered by Purchaser at the Closing
will be, authorized and properly executed and constitute, or will constitute,
as appropriate, the valid and binding obligation of Purchaser, enforceable in
accordance with their terms.


 


9.2.2                    Conflicts and Pending Action. 
There is no agreement to which Purchaser is a party or to Purchaser’s
knowledge binding on Purchaser which is in conflict with this Agreement. There
is no action or proceeding pending or, to Purchaser’s knowledge, threatened
against Purchaser which challenges or impairs Purchaser’s ability to execute or
perform its obligations under this Agreement.


 


9.3                               Survival of Representations and
Warranties.  The representations and warranties set forth
in this Article 9 are made as of the date of this Agreement and are
remade as of the Closing Date and shall not be deemed to be merged into or
waived by the instruments of Closing, but shall survive the Closing for a
period of twelve (12) months (the “Survival Period”). No broker, agent,
or party other than Seller is authorized to make any representation or warranty
for or on behalf of Seller.  Each party
shall have the right to bring an action against the other on the breach of a
representation or warranty hereunder, but only if the party bringing the action
for breach first learns of the breach after Closing and files such action
within the Survival Period. The provisions of this Section 9.3 shall
survive the Closing.   Any breach of a
representation or warranty that occurs prior to Closing shall be governed by Article
10.


 


ARTICLE 10


DEFAULT AND REMEDIES


 


10.1                        Seller’s Remedies.  If
Purchaser fails, without legal excuse, to complete the purchase of the Property
or otherwise fails to perform its obligations pursuant to this Agreement at or
prior to Closing for any reason except failure by Seller to perform hereunder,
or if prior to Closing any one or more of Purchaser’s representations or
warranties are breached in any material respect, Seller shall be entitled, as
its sole remedy (except as provided in Sections 4.10, 8.5, 10.3 and 10.4
hereof), to terminate this Agreement and recover the Earnest Money as
liquidated damages and not as penalty, in full satisfaction of claims against
Purchaser hereunder for Purchaser’s failure or breach. Seller and Purchaser
agree that Seller’s damages resulting from Purchaser’s default are difficult,
if not impossible, to determine and the Earnest Money is a fair estimate of
those damages which has been agreed to in an effort to cause the amount of such
damages to be certain. Notwithstanding anything in this Section 10.1 to
the contrary, in the event of Purchaser’s default or a termination of this
Agreement, Seller shall have all remedies


 


23





















 


available at law or in
equity in the event Purchaser or any party related to or affiliated with
Purchaser is asserting any claims or right to the Property (other than a claim
for money damages) that would otherwise delay or prevent Seller from having
clear, indefeasible and marketable title to the Property. In all other events
Seller’s remedies shall be limited to those described in this Section 10.1
and Sections 4.10, 8.5, 10.3 and 10.4 hereof. If Closing is consummated,
Seller shall have all remedies available at law or in equity in the event
Purchaser fails to perform any obligation of Purchaser under this Agreement.


 


10.2                        Purchaser’s Remedies.  If Seller fails to perform its obligations pursuant to this Agreement
for any reason except failure by Purchaser to perform hereunder, or if prior to
Closing any one or more of Seller’s representations or warranties are breached
in any material respect, Purchaser shall elect, as its sole remedy, either to
(i) terminate this Agreement by giving Seller timely written notice of such
election prior to or at Closing and recover the Earnest Money, (ii) enforce
specific performance or (iii) waive said failure or breach and proceed to
Closing. Notwithstanding anything herein to the contrary, Purchaser shall be
deemed to have elected to terminate this Agreement if Purchaser fails to
deliver to Seller written notice of its intent to file a claim or assert a
cause of action for specific performance against Seller on or before thirty
(30) business days following the scheduled Closing Date or, having given such
notice, fails to file a lawsuit asserting such claim or cause of action in the
county in which the Property is located within six (6) months following the
scheduled Closing Date. Purchaser’s remedies shall be limited to those
described in this Section 10.2 and Sections 10.3 and 10.4 hereof.


 


IN
NO EVENT SHALL EITHER SELLER’S OR PURCHASER’S DIRECT OR INDIRECT PARTNERS,
SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF
THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY
FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE,
EQUITY OR OTHERWISE.


 


10.3                        Attorneys’ Fees.  In
the event either party hereto employs an attorney in connection with claims by
one party against the other arising from the operation of this Agreement, then
upon the entry of a final, non-appealable judgment, the non-prevailing party
shall pay the prevailing party all reasonable fees and expenses, including
attorneys’ fees, and court costs, incurred in connection with such transaction.


 


10.4                      Other Expenses.  If
this Agreement is terminated due to the default of a party, then the defaulting
party shall pay any fees or charges due to Escrow Agent for holding the Earnest
Money as well as any escrow cancellation fees or charges and any fees or
charges due to the Title Company for preparation and/or cancellation of the
Title Commitment.


 


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10.5                        Damages.  Notwithstanding
anything to the contrary contained in this Agreement, in no event whatsoever
shall Purchaser or Seller have the right to seek or recover money damages from
the other except for actual pecuniary loss not to exceed Two Hundred Fifty
Thousand and No/100 Dollars ($250,000) in the aggregate, as a result of any
breach or default by Seller or Purchaser under any of the terms of this
Agreement. Each party specifically and without limitation hereby waives and
relinquishes any right to seek or recover from Seller, and specifically
acknowledges and agrees that in no event shall such other party be liable, any
damages in excess of Two Hundred Fifty Thousand and No/100 Dollars ($250,000)
nor for any punitive, speculative or consequential damages.


 


ARTICLE
11


DISCLAIMERS,
RELEASE AND INDEMNITY


 


11.1                        Disclaimers By Seller.  EXCEPT
AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN A DOCUMENT EXECUTED IN
CONNECTION WITH THE CLOSING, IT IS UNDERSTOOD AND AGREED THAT SELLER HAS NOT AT
ANY TIME MADE AND IS NOT NOW MAKING, AND IT SPECIFICALLY DISCLAIMS, ANY
WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED,
WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR
REPRESENTATIONS AS TO (I) MATTERS OF TITLE, (II) ENVIRONMENTAL MATTERS RELATING
TO THE PROPERTY OR ANY PORTION THEREOF, INCLUDING, WITHOUT LIMITATION, THE
PRESENCE OF HAZARDOUS MATERIALS IN, ON, UNDER OR IN THE VICINITY OF THE
PROPERTY, (III) GEOLOGICAL CONDITIONS, INCLUDING, WITHOUT LIMITATION,
SUBSIDENCE, SUBSURFACE CONDITIONS, WATER TABLE, UNDERGROUND WATER RESERVOIRS,
LIMITATIONS REGARDING THE WITHDRAWAL OF WATER, AND GEOLOGIC FAULTS AND THE
RESULTING DAMAGE OF PAST AND/OR FUTURE FAULTING, (IV) WHETHER, AND TO THE
EXTENT TO WHICH THE PROPERTY OR ANY PORTION THEREOF IS AFFECTED BY ANY STREAM
(SURFACE OR UNDERGROUND), BODY OF WATER, WETLANDS, FLOOD PRONE AREA, FLOOD
PLAIN, FLOODWAY OR SPECIAL FLOOD HAZARD, (V) DRAINAGE, (VI) SOIL CONDITIONS,
INCLUDING THE EXISTENCE OF INSTABILITY, PAST SOIL REPAIRS, SOIL ADDITIONS OR CONDITIONS
OF SOIL FILL, OR SUSCEPTIBILITY TO LANDSLIDES, OR THE SUFFICIENCY OF ANY
UNDERSHORING, (VII) THE PRESENCE OF ENDANGERED SPECIES OR ANY ENVIRONMENTALLY
SENSITIVE OR PROTECTED AREAS, (VIII) ZONING OR BUILDING ENTITLEMENTS TO WHICH
THE PROPERTY OR ANY PORTION THEREOF MAY BE SUBJECT, (IX) THE AVAILABILITY OF
ANY UTILITIES TO THE PROPERTY OR ANY PORTION THEREOF INCLUDING, WITHOUT
LIMITATION, WATER, SEWAGE, GAS AND ELECTRIC, (X) USAGES OF ADJOINING PROPERTY,
(XI) ACCESS TO THE PROPERTY OR ANY PORTION THEREOF, (XII) THE VALUE, COMPLIANCE
WITH THE PLANS AND


 


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SPECIFICATIONS, SIZE,
LOCATION, AGE, USE, DESIGN, QUALITY, DESCRIPTION, SUITABILITY, STRUCTURAL
INTEGRITY, OPERATION, TITLE TO, OR PHYSICAL OR FINANCIAL CONDITION OF THE
PROPERTY OR ANY PORTION THEREOF, OR ANY INCOME, EXPENSES, CHARGES, LIENS,
ENCUMBRANCES, RIGHTS OR CLAIMS ON OR AFFECTING OR PERTAINING TO THE PROPERTY OR
ANY PART THEREOF, (XIII) THE CONDITION OR USE OF THE PROPERTY OR COMPLIANCE OF THE
PROPERTY WITH ANY OR ALL PAST, PRESENT OR FUTURE FEDERAL, STATE OR LOCAL
ORDINANCES, RULES, REGULATIONS OR LAWS, BUILDING, FIRE OR ZONING ORDINANCES,
CODES OR OTHER SIMILAR LAWS, (XIV) THE EXISTENCE OR NON-EXISTENCE OF
UNDERGROUND STORAGE TANKS, SURFACE IMPOUNDMENTS, OR LANDFILLS, (XV) THE
MERCHANTABILITY OF THE PROPERTY OR FITNESS OF THE PROPERTY FOR ANY PARTICULAR
PURPOSE, (XVI) THE TRUTH, ACCURACY OR COMPLETENESS OF THE PROPERTY DOCUMENTS,
(XVII) TAX CONSEQUENCES, OR (XVIII) ANY OTHER MATTER OR THING WITH RESPECT TO
THE PROPERTY.


 


11.2                        Sale “As Is, Where Is.”  PURCHASER
ACKNOWLEDGES AND AGREES THAT UPON CLOSING, SELLER SHALL SELL AND CONVEY TO
PURCHASER AND PURCHASER SHALL ACCEPT THE PROPERTY “AS IS, WHERE IS, WITH ALL
FAULTS,” EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT
AND ANY DOCUMENT EXECUTED BY SELLER AND DELIVERED TO PURCHASER AT CLOSING.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PURCHASER HAS NOT RELIED AND
WILL NOT RELY ON, AND SELLER HAS NOT MADE AND IS NOT LIABLE FOR OR BOUND BY,
ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTEES, STATEMENTS, REPRESENTATIONS OR
INFORMATION PERTAINING TO THE PROPERTY OR RELATING THERETO (INCLUDING
SPECIFICALLY, WITHOUT LIMITATION, PROPERTY INFORMATION PACKAGES DISTRIBUTED
WITH RESPECT TO THE PROPERTY) MADE OR FURNISHED BY SELLER OR ANY REAL ESTATE
BROKER, AGENT OR THIRD PARTY REPRESENTING OR PURPORTING TO REPRESENT SELLER, TO
WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING. PURCHASER
REPRESENTS THAT IT IS A KNOWLEDGEABLE, EXPERIENCED AND SOPHISTICATED PURCHASER
OF REAL ESTATE AND THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, IT IS
RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS IN
PURCHASING THE PROPERTY AND SHALL MAKE AN INDEPENDENT VERIFICATION OF THE
ACCURACY OF ANY DOCUMENTS AND INFORMATION PROVIDED BY SELLER. PURCHASER WILL
CONDUCT SUCH INSPECTIONS AND INVESTIGATIONS OF THE PROPERTY AS PURCHASER DEEMS
NECESSARY, INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL
CONDITIONS THEREOF, AND SHALL RELY UPON SAME. BY FAILING TO TERMINATE THIS
AGREEMENT PRIOR TO THE EXPIRATION OF THE INSPECTION PERIOD, PURCHASER
ACKNOWLEDGES THAT SELLER HAS AFFORDED PURCHASER A FULL


 


26





















 


OPPORTUNITY
TO CONDUCT SUCH INVESTIGATIONS OF THE PROPERTY AS PURCHASER DEEMED NECESSARY TO
SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY AND THE EXISTENCE OR
NON-EXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO ANY HAZARDOUS
MATERIALS ON OR DISCHARGED FROM THE PROPERTY, AND WILL RELY SOLELY UPON SAME
AND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER OR ITS AGENTS
OR EMPLOYEES WITH RESPECT THERETO, OTHER THAN SUCH REPRESENTATIONS, WARRANTIES
AND COVENANTS OF SELLER AS ARE EXPRESSLY SET FORTH IN THIS AGREEMENT. UPON
CLOSING, PURCHASER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING, BUT
NOT LIMITED TO, ADVERSE PHYSICAL OR CONSTRUCTION DEFECTS OR ADVERSE
ENVIRONMENTAL, HEALTH OR SAFETY CONDITIONS, MAY NOT HAVE BEEN REVEALED BY
PURCHASER’S INSPECTIONS AND INVESTIGATIONS.


 


11.3                        Indemnity.  Each
of Purchaser and Seller agrees to indemnify and hold the other party harmless
of and from any and all liabilities, claims, demands, and expenses of any kind
or nature which arise or accrue before or after Closing, based upon facts which
occur before Closing (as to Seller), or after Closing (as to Purchaser), and
which are in any way related to the ownership, maintenance, or operation of the
Property by Seller or Purchaser and its successors and assigns.


 


11.4                        Survival.  THE
TERMS AND CONDITIONS OF THIS ARTICLE 11 SHALL EXPRESSLY SURVIVE THE
CLOSING, AND SHALL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS OR
THE DEED.


 


PURCHASER
ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH
HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENT AND THAT SELLER WOULD NOT HAVE
AGREED TO SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THE
DISCLAIMERS AND OTHER AGREEMENTS SET FORTH ABOVE.


 


ARTICLE 12


MASTER LEASE ESCROW AGREEMENT


 


The
parties recognize that the lease of the tenant Blockbuster Video expires in
October, 2005, and that Blockbuster Video may not renew its lease. Seller and
Purchaser agree that on the Closing Date, they will enter into a Master Lease
Escrow Agreement substantially according to the form attached as Exhibit H.
The amount to be deposited in the escrow account under the Master Lease Escrow
Agreement shall be deposited into such account on the Closing Date by Seller.
The amount of the escrow account and the conditions for disbursement thereof
will be as set forth in the Master Lease Escrow Agreement.


 


27





















 


ARTICLE 13


MISCELLANEOUS


 


13.1                        Parties Bound; Assignment.  This
Agreement, and the terms, covenants, and conditions herein contained, shall
inure to the benefit of and be binding upon the heirs, personal
representatives, successors, and assigns of each of the parties hereto.
Purchaser may assign its rights under this Agreement upon the following
conditions: (i) the assignee of Purchaser must be an affiliate of Purchaser or
an entity controlling, controlled by, or under common control with Purchaser,
or to a real estate investment trust of which Purchaser or Purchaser’s
affiliates are a sponsor (ii) all of the Earnest Money must have been delivered
in accordance herewith, (iii)  assignee
of Purchaser shall assume all obligations of Purchaser hereunder, but Purchaser
shall remain primarily liable for the performance of Purchaser’s obligations,
and (iv) a copy of the fully executed written assignment and assumption
agreement shall be delivered to Seller at least five (5) days prior to Closing.


 


13.2                        Headings. 
The  article,  section, 
subsection,  paragraph  and/or other headings of this Agreement are
for convenience only and in no way limit or enlarge the scope or meaning of the
language hereof.


 


13.3                        Invalidity and Waiver.  If
any portion of this Agreement is held invalid or inoperative, then so far as is
reasonable and possible the remainder of this Agreement shall be deemed valid
and operative, and, to the greatest extent legally possible, effect shall be
given to the intent manifested by the portion held invalid or inoperative.   The failure by either party to enforce
against the other any term or provision of this Agreement shall not be deemed
to be a waiver of such party’s right to enforce against the other party the
same or any other such term or provision in the future.


 


13.4                        Governing Law.  This
Agreement shall, in all respects, be governed, construed, applied, and enforced
in accordance with the law of the state in which the Real Property is located.


 


13.5                        Survival.  The
provisions of this Agreement that contemplate performance after the Closing and
the obligations of the parties not fully performed at the Closing shall survive
the Closing and shall not be deemed to be merged into or waived by the
instruments of Closing.


 


13.6                        Entirety  and 
Amendments.  This Agreement  embodies 
the  entire agreement between the
parties and supersedes all prior agreements and understandings relating to the
Property.  This Agreement may be amended
or supplemented only by an instrument in writing executed by the party against
whom enforcement is sought.


 


13.7                        Time.  Time is of the essence in the performance of
this Agreement.


 


13.8                        Confidentiality. 
Purchaser shall  make no
public  announcement or disclosure of any
information related to this Agreement to outside brokers or third parties,
before the Closing, without the prior written specific consent of Seller;
provided,


 


28





















 


however, that Purchaser may,
subject to the provisions of Section 4.7, make disclosure of this
Agreement to its Permitted Outside Parties as necessary to perform its
obligations hereunder and as may be required under laws or regulations
applicable to Purchaser.


 


13.9                        Notices.  All
notices required or permitted hereunder shall be in writing and shall be served
on the parties at the addresses set forth in Section 1.3.   Any such notices shall, unless otherwise
provided herein, be given or served (i) by depositing the same in the United
States mail, postage paid, certified and addressed to the party to be notified,
with return receipt requested, (ii) by overnight delivery using a nationally
recognized overnight courier, (iii) by personal delivery, or (iv) by facsimile,
evidenced by confirmed receipt.   Notice
deposited in the mail in the manner hereinabove described shall be effective on
the third (3rd) business day after such deposit.   Notice given by facsimile shall be effective
upon transmission if evidenced by a confirmed receipt. Notice given in any
other manner shall be effective only if and when received by the party to be
notified between the hours of 8:00 a.m. and 5:00 p.m. of any business day with
delivery made after such hours to be deemed received the following business
day. A party’s address may be changed by written notice to the other party;
provided, however, that no notice of a change of address shall be effective
until actual receipt of such notice. Copies of notices are for informational
purposes only, and a failure to give or receive copies of any notice shall not
be deemed a failure to give notice. Notices given by counsel to the Purchaser
shall be deemed given by Purchaser and notices given by counsel to the Seller
shall be deemed given by Seller.


 


13.10                 Construction.  The
parties acknowledge that the parties and their counsel have reviewed and
revised this Agreement and agree that the normal rule of construction – to the
effect that any ambiguities are to be resolved against the drafting party –
shall not be employed in the interpretation of this Agreement or any exhibits
or amendments hereto.


 


13.11                 Calculation of Time Periods. 
Unless otherwise specified, in computing any period of time described
herein, the day of the act or event after which the designated period of time
begins to run is not to be included and the last day of the period so computed
is to be included, unless such last day is a Saturday, Sunday or legal holiday
for national banks in the location where the Property is located, in which
event the period shall run until the end of the next day which is neither a
Saturday, Sunday, or legal holiday.   The
last day of any period of time described herein shall be deemed to end at 5:00
p.m. local time in the state in which the Real Property is located.


 


13.12                 Execution in Counterparts.  This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, and all of such counterparts shall constitute one Agreement.   To facilitate execution of this Agreement,
the parties may execute and exchange by telephone facsimile counterparts of the
signature pages, provided that executed originals thereof are forwarded to the
other party on the same day by any of the delivery methods set forth in Section
13.9 other than facsimile.


 


29





















 


13.13                 No Recordation. 
Without the prior written consent of Seller, there shall be no
recordation of either this Agreement or any memorandum hereof, or any affidavit
pertaining hereto, and any such recordation of this Agreement or memorandum or
affidavit by Purchaser without the prior written consent of Seller shall
constitute a default hereunder by Purchaser, whereupon Seller shall have the remedies  set 
forth in Section 10.1 hereof.


 


13.14                 Further Assurances.  In
addition to the acts and deeds recited herein and contemplated to be performed,
executed and/or delivered by either party at Closing, each party agrees to
perform, execute and deliver, but without any obligation to incur any
additional liability or expense, on or after the Closing any further deliveries
and assurances as may be reasonably necessary to consummate the transactions
contemplated hereby or to further perfect the conveyance, transfer and
assignment of the Property to Purchaser.


 


13.15                 Discharge of Obligations.  The
acceptance of the Deed by Purchaser shall be deemed to be a full performance
and discharge of every representation and warranty made by Seller herein and
every agreement and obligation on the part of Seller to be performed pursuant
to the provisions of this Agreement, except those which are herein specifically
stated to survive Closing.


 


13.16                 No Third Party Beneficiary.  The
provisions of this Agreement 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 of this Agreement or of the documents
to be executed and delivered at Closing, except that a tenant of the Property
may enforce Purchaser’s indemnity obligation under Section 4.10 hereof.


 


13.17                 Cooperation with Purchaser’s
Audit.  Seller agrees, at Purchaser’s expense, to
cooperate fully with Purchaser and Purchaser’s representatives to facilitate
Purchaser’s evaluations and reports, including at least a one (1) year audit of
the books and records of the Property that qualify, comply with and can be used
in a public offering. Seller shall execute and deliver to Purchaser an audit
representation letter in the form attached as Exhibit I.


 


IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and
year written below.


 


SELLER:


 


Sun  Life 
Assurance  Company  of 


Canada,
a Canadian corporation


 


30





















 


	
  Date executed by Purchaser:

  	
  By:

  	
  /s/ Thomas V. Pedulla

  	
   

  
	
   

  	
  Name:

  	
  THOMAS V. PEDULLA

  	
   

  
	
  9.10.04

  	
   

  	
  Title:

  	
    VICE
  PRESIDENT

  	
   

  
	
   

  
	
   

  
	
   

  	
  By: 

  	
  /s/ William M. Barres

  	
   

  
	
   

  	
  Name:

  	
  WILLIAM M. BARRES

  	
   

  
	
   

  	
  Title:

  	
    SENIOR INVESTMENT OFFICER

  	
   

  
	
   

  
	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  Inland Real Estate Acquisitions, Inc.,

  an Illinois Corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
  Date executed by Seller:

  	
  By:

  	
  /s/ Lou Quilici

  	
   

  
	
   

  	
  Name:

  	
  Lou Quilici

  	
   

  
	
  September 10,
  2004

  	
   

  	
  Title:

  	
  SR VP

  	
   

  
													



 


31