Exhibit
10.105


 


AGREEMENT
OF CONTRIBUTION


 


 


BY
AND BETWEEN


 


 


CE CUMBERLAND 2001 LLC


 


MALDEN CE 2001 LLC


 


SWAMPSCOTT CE 2001 LLC


 


CE SOUTHINGTON 2001 LLC


 


FRAMINGHAM CE 2001 LLC


 


CE BRISTOL 2001 LLC


 


CE SICKLERVILLE 2001 LLC


 


CE GREENVILLE 2001 LLC


 


and


 


 


INLAND
REAL ESTATE ACQUISITIONS, INC.


 


 


DATED
AS OF February 24, 2006


 

















 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
  Page
  No.

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1 -
  Contribution

  	
   

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  Covenant to Contribute

  	
  1

  
	
  1.2

  	
  Contribution; Escrow
  Agent

  	
  2

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2 - Title and
  Condition of Property; Financing

  	
   

  
	
   

  	
   

  
	
  2.1

  	
  State of Title

  	
  6

  
	
  2.2

  	
  Investigations; No
  Reliance on Documents; As-Is Sale

  	
  7

  
	
  2.3

  	
  Due Diligence Period

  	
  11

  
	
  2.4

  	
  Inland’s Right to
  Terminate

  	
  11

  
	
  2.5

  	
  Prepayment of Existing
  Loans; Assumption of Existing F Property Loan

  	
  12

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3 - The Closing

  	
   

  
	
   

  	
   

  
	
  3.1

  	
  Time and Place

  	
  12

  
	
  3.2

  	
  Closing

  	
  12

  
	
  3.3

  	
  Delivery of Possession

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4 -
  Apportionments and Allocation of Expenses

  	
   

  
	
   

  	
   

  
	
  4.1

  	
  Credits and Prorations

  	
  15

  
	
  4.2

  	
  Other Adjustments

  	
  15

  
	
  4.3

  	
  Transaction and Closing
  Costs

  	
  16

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5 - Representations
  and Warranties

  	
   

  
	
   

  	
   

  
	
  5.1

  	
  Ceruzzi’s
  Representations and Warranties

  	
  17

  
	
  5.2

  	
  Inland’s
  Representations and Warranties

  	
  19

  
	
  5.3

  	
  Changed Circumstances

  	
  19

  
	
  5.4

  	
  Survival of
  Representations and Warranties

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6 - Additional
  Agreements

  	
   

  
	
   

  	
   

  
	
  6.1

  	
  Operations Pending
  Closing

  	
  20

  
	
  6.2

  	
  Mutual Cooperation

  	
  21

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7 - Risk of
  Loss

  	
   

  
	
  7.1

  	
  Casualty

  	
  21

  
	
  7.2

  	
  Condemnation

  	
  22

  



 


i

















 


	
  ARTICLE 8 - Remedies
  Upon Default

  	
   

  
	
   

  	
   

  
	
  8.1

  	
  Time of Essence

  	
  23

  
	
  8.2

  	
  Default by Inland

  	
  23

  
	
  8.3

  	
  Default by Ceruzzi

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9 - Agents and
  Commission

  	
   

  
	
   

  	
   

  
	
  9.1

  	
  Brokers

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10 -
  Miscellaneous

  	
   

  
	
   

  	
   

  
	
  10.1

  	
  Notices

  	
  24

  
	
  10.2

  	
  No Recording

  	
  25

  
	
  10.3

  	
  No Agency

  	
  25

  
	
  10.4

  	
  Severability

  	
  25

  
	
  10.5

  	
  Assignment and
  Succession

  	
  25

  
	
  10.6

  	
  Amendments and Waivers

  	
  25

  
	
  10.7

  	
  Further Assurances

  	
  26

  
	
  10.8

  	
  Absence of Third-Party
  Beneficiaries

  	
  26

  
	
  10.9

  	
  Governing Law;
  Jurisdiction

  	
  26

  
	
  10.10

  	
  Interpretation

  	
  26

  
	
  10.11

  	
  Entire Agreement

  	
  27

  
	
  10.12

  	
  Counterparts

  	
  27

  
	
  10.13

  	
  Expenses

  	
  27

  
	
  10.14

  	
  Consents

  	
  27

  
	
  10.15

  	
  Headings

  	
  27

  
	
  10.16

  	
  Waiver of Trial by Jury

  	
  27

  
	
  10.17

  	
  Confidentiality

  	
  27

  
	
  10.18

  	
  Drafts not an Offer to
  Enter into a Legally Binding Contract

  	
  28

  
	
  10.19

  	
  Exculpation

  	
  28

  
	
  10.20

  	
  Joint and Several

  	
  29

  



 


ii

















 


AGREEMENT
OF CONTRIBUTION


 


THIS
AGREEMENT OF CONTRIBUTION (hereinafter referred to as the “Agreement”),
dated as of this 24th day of February, 2006, between CE Cumberland 2001 LLC, and Malden
CE 2001 LLC, and Swampscott CE
2001 LLC, and CE Southington 2001
LLC, and Framingham CE 2001 LLC, and
CE Bristol 2001 LLC, and CE Sicklerville 2001 LLC, and CE Greenville 2001 LLC, each a Delaware
limited liability company, having an address at c/o Ceruzzi Holdings, LLC, 1720
Post Road, Fairfield, CT 06824 (hereinafter collectively referred to as “Ceruzzi”), and Inland Real Estate Acquisitions, Inc., an
Illinois corporation having an address at 2901 Butterfield Road, Oak Brook,
Illinois 60523 (hereinafter referred to as “Inland”).


 


W
I T N E S S E T H:


 


WHEREAS,
Ceruzzi is the owner of those certain parcels of real
property legally described upon group Exhibit
“A” attached hereto and made a part hereof (hereinafter collectively
referred to as the “Real Property”).


 


WHEREAS,
Ceruzzi desires to sell to Inland and Inland desires to purchase from Ceruzzi
the Property subject to the terms and conditions hereinafter provided; and


 


NOW,
THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties intending to be
legally bound, hereby agree as follows:


 


ARTICLE
1



Contribution


 


1.1          Covenant to Contribute. Prior to
Closing, Inland shall form and organize the Grantees (as hereinafter defined),
the JV’s (as hereinafter defined) and the Member II Entities (as hereinafter
defined). Ceruzzi, through the collective formation of the limited liability
companies described upon Exhibit “L” attached
hereto and made a part hereof, (collectively, the “JV’s”), by Ceruzzi and the entities to be formed by Inland as
described upon Exhibit “N,” attached
hereto and made a part hereof (the “Member II
Entities”), shall
contribute to the respective JV’s and convey to Inland, and Inland shall accept
from Ceruzzi, the following (collectively, the “Property” and respectively the “Property” as the context requires):


 


(a)           the
Real Property owned by Ceruzzi, together with all of the tenements,
hereditaments and appurtenances appertaining thereto, including any estate,
right, title, interest, property, claim and demand of Ceruzzi in and to all
streets, alleys, rights-of-way, sidewalks, easements, and utility lines or
agreements (hereinafter collectively referred to the “Land”);


 


1

















 


(b)           all
improvements, buildings and structures owned by Ceruzzi situate on the Land,
including the shopping center and other facilities located thereon, and any
apparatus, equipment, appliances and fixtures incorporated therein and used in
connection with the operation and occupancy thereof, to the extent owned by
Ceruzzi (hereinafter collectively referred to as the “Improvements”);


 


(c)           all
right, title and interest of Ceruzzi in and to the leases and other occupancy
agreements with the tenants set forth on Exhibit
“B” attached hereto covering all or any portion of the Real Property
or the Improvements to the extent they are in effect on the Closing Date (as
such term is defined in Section 3.1 hereof) (hereinafter collectively referred
to as the “Leases”), together with
all current rents and other sums due thereunder (hereinafter referred to as the
“Rents”);


 


(d)           the
non-exclusive right to use all of Ceruzzi’s architectural and engineering
plans, specifications and drawings, soil studies, land surveys, environmental
studies and reports, hazardous waste studies and reports, market reports and
surveys which are in the possession of the Ceruzzi (if any) which relate to the
Property (hereinafter collectively referred to as the “Plans”);


 


(e)           all
utility, service, equipment, maintenance and other contracts relating to the
ownership, maintenance or use of the Property, as approved during the Due
Diligence Period (as hereinafter defined) by Inland (hereinafter collectively
referred to as the “Property Contracts”);


 


(f)            to
the extent assignable, all permits, approvals and licenses issued by any federal,
state or local governmental authority or agency pertaining to the ownership,
operation, maintenance or use of the Land, including, without limitation,
zoning, site plan and subdivision approvals and developers’ agreements
(hereinafter collectively referred to as the “Permits”);


 


(g)           all
books, records and operating reports in Ceruzzi’s possession, which are
necessary to ensure continuity of operation of the Property (hereinafter
collectively referred to as the “Records”);


 


(h)           all
right, title and interest, if any, of Ceruzzi in and to the operating names of
each Property (which shall expressly exclude the names: Stop & Shop, Giant
and BI-LO in all cases); and


 


(i)            all
warranties and/or guaranties for materials and workmanship benefiting the
Purchaser, to the extent assignable by their terms (hereinafter collectively
referred to as the “Warranties”).


 


1.2          Contribution Value; Escrow Agent.


 


(a)           Ceruzzi
is to contribute and Inland is to accept all of the Property for the aggregate
Contribution Value of ONE HUNDRED THIRTY MILLION FOUR HUNDRED THIRTY THOUSAND
and NO/100 DOLLARS ($130,430,000.00)  for
the “Property Values” described
upon “Exhibit O,” attached hereto
and made a part 


 


2

















 


hereof (hereinafter collectively
referred to as the “Contribution Value”).
The Contribution Value shall be paid and is subject to adjustment as provided
in subsections 1.2 (g) and 1.2 (h), below.


 


(b)           Upon
the execution and delivery of this Agreement by Ceruzzi and Inland, Inland
shall deposit with Chicago Title Insurance Company, 171 N. Clark Street,
Chicago, IL 60601, the sum of ONE MILLION and NO/100  ($1,000,000.00) DOLLARS (hereinafter referred
to as the “Good Faith Deposit”).
This Agreement shall not be deemed to be effective and binding upon the parties
hereto unless and until the Good Faith Deposit is so delivered. If the Good
Faith Deposit is not paid within two business days following complete execution
of this Agreement by all parties, this Agreement shall be null and void and no
party shall be bound by the terms hereof. The Escrow Agent shall hold the Good
Faith Deposit in an interest-bearing trust account maintained by the Escrow
Agent at Chicago Title Insurance Company, Chicago Office (hereinafter referred
to as the “Deposit Escrow Account”),
in accordance with the terms and conditions of this Agreement. The term
“Deposit” shall mean and refer to the Good Faith Deposit excluding all accrued
interest in the Deposit Escrow Account, which shall be the property of Inland in
all events. The Deposit shall be distributed in accordance with the terms of
this Agreement.


 


(c)           Intentionally
deleted.


 


(d)           (i)            The
duties of the Escrow Agent are limited to those specifically provided for
herein and are purely ministerial in nature. Escrow Agent shall incur no
liability hereunder or otherwise except for its own gross negligence or willful
misconduct, and Ceruzzi and Inland hereby release Escrow Agent from any
liability (other than as excepted herein) for any action taken by it hereunder
or for any failure or refusal to act hereunder or for any other matter. Unless
Escrow Agent shall have been guilty of gross negligence or willful misconduct,
Ceruzzi and Inland, jointly and severally, agree to indemnify and hold harmless
Escrow Agent from and against any liability incurred by it as a result of its
acting as escrow Agent hereunder. Notwithstanding the immediately preceding
sentence, however, Inland shall be solely responsible for the payment of all
fees and other compensation charged by the Escrow Agent for acting as such
hereunder, including the reimbursement of any costs and expenses incurred by
the Escrow Agent in connection with its acting as Escrow Agent hereunder.


 


(ii)           Escrow
Agent shall not be bound in any way or by any agreement or contract between
Ceruzzi or Inland, whether or not it has knowledge thereof, and Escrow Agent’s
only duties and responsibilities shall be to hold the Deposit as escrow agent
and to dispose of the Deposit in accordance with the terms of this Agreement. Without
limiting the generality of the foregoing, Escrow Agent shall, in the absence of
its gross negligence or willful misconduct, have no responsibility to protect
the Deposit and shall not be responsible for any failure to demand, collect or
enforce any obligation with respect to the Deposit or for any diminution in
value of the Deposit for any cause. Escrow Agent may, at the expense of Ceruzzi
and Inland, consult with counsel and accountants in connection with its duties
under this Agreement and Escrow 


 


3

















 


Agent shall be fully
protected in any act taken, suffered or permitted by it in good faith in
accordance with the advice of such counsel and accountants. Escrow Agent shall
not be obligated to take any action hereunder which may, in its reasonable
judgment, involve it in any liability unless Escrow Agent shall have been
furnished with reasonable indemnity satisfactory in amount, form and substance
to Escrow Agent.


 


(iii)          Escrow
Agent is acting as a stakeholder only with respect to the Deposit. If there is
any dispute as to whether Escrow Agent is obligated to disburse the Deposit or
as to whom the Deposit is to be delivered, Escrow Agent shall not make any
delivery, but in such event Escrow Agent shall hold the Deposit until receipt
by Escrow Agent of any authorization in writing, signed by all parties having
an interest in such dispute, directing the disposition of the Deposit. In the
absence of such authorization Escrow Agent shall hold the Deposit until the
final determination of the rights of the parties in any appropriate proceeding.
Escrow Agent shall have no responsibility to determine the authenticity or
validity of any notice, in accordance with any written notice, direction or
instruction given to it under this Agreement and believed by it to be
authentic. If such written authorization is not given, or proceedings for such
determination are not begun, within thirty (30) days after the dispute arises,
Escrow Agent may, but is not required to, bring an appropriate action or
proceeding for leave to deposit the Deposit with a court of the State of
Connecticut. Pending such determination Escrow Agent shall be reimbursed for
all costs and expenses of such action or proceeding, including, without
limitation, attorneys’ fees and disbursements by the party determined not to be
entitled to the Deposit. Upon making delivery of the Deposit in the manner
provided in this Agreement, Escrow Agent shall have no further liability
hereunder. In no event shall Escrow Agent be under any duty to institute,
defend or participate in any proceeding which may arise between Ceruzzi and
Inland in connection with the Deposit.


 


(iv)          Escrow
Agent or any successor Escrow Agent may resign at any time by giving fifteen
(15) days’ prior notice of resignation to the other parties hereto, such
resignation to be effective on the date specified in such notice. In case the
office of Escrow Agent shall become vacant for any reason, Ceruzzi may appoint
a title company, bank or trust company that is reasonably acceptable to Inland
as successor Escrow Agent to the retiring Escrow Agent, whereupon such
successor Escrow Agent shall succeed to all rights and obligations of the
retiring Escrow Agent as if originally named hereunder, and the retiring Escrow
Agent shall duly transfer and deliver to such successor Escrow Agent the funds
and records, including without limitation the Deposit, held by the retiring
Escrow Agent hereunder.


 


(e)           Escrow
Agent shall execute this Agreement solely for the purpose of being bound by the
provisions of Sections 1.2(b) and (d) hereof and to acknowledge its receipt of
the Good Faith Deposit.


 


(f)


 


(i)  At Closing, Ceruzzi shall receive the
Contribution Value in operating units equal to or greater than Forty-three
Million Four Hundred Thirty Thousand and no/100 Dollars ($43,430,000.00) (the “Operating Units”) in the JV’s described
upon 


 


4

















 


Exhibit
“L” as so-called “down REIT” Delaware limited liability
companies (collectively, the “DR LLC”),
which operating units shall be valued at $10.00 per unit; and (ii) the balance
of the Contribution Value in cash. Attached hereto as Exhibit “K” and made a part hereof is the
base form of DR LLC operating agreement (collectively, the “DR LLC OA”). The parties hereto agree to
execute and/or cause the execution of the DR LLC OA at or prior to the date of
Closing.


 


(ii)  The base form of DR LLC OA shall be modified
to apply to the terms of this transaction, including but not limited to the
following (in the event of any conflict between the terms of the attached form
of DR LLC OA and this Agreement, the terms of this Agreement shall control):


 


A.     The
“Investor Preferred Return” (as
described by the DR LLC OA) shall be a per annum rate equal to five and
one-half (5 1⁄2%) percent on “Investor’s
Invested Capital” (as described by the DR LLC OA).


 


B.     Ceruzzi
shall have the right to redeem (put) all of its units (i.e., partial redemption
is not permitted) at any time from and after December 15, 2008; and


 


C.     Inland
shall have the right to call (redeem) the Ceruzzi units at any time from and
after the fifth (5th) anniversary of the date of Closing (“Inland’s Call Notice”), provided however
that Ceruzzi shall have the right to toll the call (redemption) of the Ceruzzi
units pursuant to the terms of Inland’s Call Notice by electing, within
5-business days of the date of receipt of Inland’s Call Notice, to freeze the
Investor Preferred Return at 5.5% per annum for a maximum period expiring on
the date which is 10-years from the date of Closing (the “10-Year Date”).


 


D.     In
any event, Inland shall have the right to call (redeem) the Ceruzzi units at
any time from and after the 10-Year Date.


 


(iii)          The
Member II Entities and Ceruzzi shall (through the JV’s, as sole member) form
single purpose limited liability companies to take title to each Property (the “Grantees”). The names of the Grantees are
shown upon Exhibit “M” attached
hereto and made a part hereof.


 


(iv)          No
later than the Closing Date, Ceruzzi shall obtain the agreement of Stop &
Shop, Giant and BI-LO, as applicable, to make per diem payments to Inland (at a
minimum, on a prorated monthly basis) together with the rental payments
required to be made pursuant to the terms of the Leases, equal to the “Make Whole Payments” described upon Exhibit “O” for each day from the date of
Closing through the respective date each tenant is required to increase its
payment of base rent in accordance with the terms of the Leases.


 


5

















 


ARTICLE
2


 


Title and Condition of
Property; Financing


 


2.1          State of Title.


 


(a)           Title
shall be conveyed to the Grantees at Closing in fee simple by local
jurisdiction form bargain and sale deed with covenants against grantor’s acts
and shall be insurable at regular rates free and clear of any and all liens,
claims, encumbrances, mortgages, deeds of trust and security interests (except
for the lien of real estate taxes not yet due and payable), but subject to all
Permitted Exceptions (as such term is defined in Section 2.1(c) hereof).


 


(b)           Inland,
the cost and expense thereof to be paid by Inland, shall obtain a preliminary
title search of each Property (hereinafter collectively referred to as the “Title Commitment”) from Chicago Title
Insurance Company (in such capacity, hereinafter referred to as the “Title Company”), pursuant to which the
Title Company shall commit to insure (upon the payment of a requisite premium
at regular rates) that the Grantees shall own good and indefeasible fee simple
title to the Property as described in Section 2.1(a) of this Agreement. Inland
shall forward a complete copy of the Title Commitment to Ceruzzi within five
(5) business days after Inland’s receipt of same. Inland shall have until 5
p.m. on April 24, 2006 (hereinafter referred to as the “Due Diligence Period”) within which to
object, by written notice to Ceruzzi, to any exceptions to title set forth in
the Title Commitment. Ceruzzi, at the sole cost and expense of Inland, shall
cause a reputable surveyor licensed in the state of situs of each Property, to
prepare and deliver an ALTA as-built survey of each Property (to specifications
approved by Inland) (collectively, the “Survey”)
to the Grantees and Ceruzzi and the Title Company no later than 30-days prior
to the expiration of the Due Diligence Period. Inland shall have until 5:00
p.m. on the last day of the Due Diligence Period within which to notify Ceruzzi
in writing that Inland objects to any state of facts as shown on any Survey,
which written notice must be given contemporaneously with any written notice
given as to exceptions to title referred to above. If Inland notifies Ceruzzi
in writing that Inland objects to any exceptions to title and/or to any state
of facts in the Survey (hereinafter referred to as a “Title Objection Notice”), Ceruzzi shall have ten (10)
business days after receipt of such notification to notify Inland (i) that
Ceruzzi will remove the Title Objection Notice exceptions from title or, if
applicable, remove the matters as shown on the Survey on or before the Closing
or (ii) that Ceruzzi elects not to cause such exceptions or matters to be
removed. If Ceruzzi fails to notify Inland within such ten (10) business days,
Ceruzzi shall be deemed to have given notice under clause (ii) above. If
Ceruzzi gives (or is deemed to have given) Inland notice under clause (ii)
above, Inland shall have five (5) business days from the date of receipt of
such notice (or in a case where Ceruzzi gives no such notice, from the last
date on which such notice could have been given) in which to notify Ceruzzi and
the Escrow Agent (x) that Inland will nevertheless proceed with the
transactions contemplated by this Agreement and the Grantees shall then take
title to the Property subject to such exceptions and such matters without
reduction of the Contribution Value or (y) that Inland will terminate this 


 


6

















 


Agreement. If Inland does
not provide any notice contemplated by the immediately preceding sentence,
Inland shall be deemed to have elected that the Grantees shall take title to
the Property pursuant to clause (x) above. If this Agreement is terminated
pursuant to the provisions of Section 2.1(b)(y), (i) this Agreement shall
terminate and be of no further force and effect, (ii) no party hereto shall
have any further rights or obligations hereunder (except for representations,
warranties and/or any indemnity obligations of any party pursuant to the
provisions of this Agreement which expressly survive termination of this
Agreement), and (iii) the Escrow Agent shall immediately return the Deposit to
Inland.


 


(c)           The
term “Permitted Exceptions” as
used herein shall mean (i) the lien of real estate taxes, assessments and water
and sewer charges not yet due and payable, (ii) all matters set forth in the
Title Commitment and approved by Inland or deemed approved by Inland as
provided hereinabove, provided, however, matters set forth in the Title
Commitment for which the Standards of Title (or equivalent) of the Bar
Association of each state in which a Property is located recommend no curative
action be taken shall be deemed approved (iii) intentionally deleted, (iv) all
existing building, zoning and other city, state, county or federal laws, codes
and regulations affecting the Property, (v) any existing general utility
easements serving the Property (provided that such easements do not subject any
owner of such Property to obligations other than are usual and customary in
similar easements and provided further that no Improvements (other than parking
areas and access aisles) are constructed on such easements), (vi) such state of
facts as would be shown by accurate survey of the Property, (vii) the Leases,
and (viii) any title exception created directly by any act or omission of Inland
or its representatives, agents, employees or invitees.


 


(d)           Ceruzzi’s
obligation to convey title to the Property is solely as set forth in Section
2.1(a) hereof. To the extent that Inland may elect, at its option, to request
the Title Company to issue endorsements to the most current form of ALTA
owner’s title insurance policy as currently and customarily used in the state
of situs of each Property, the issuance of such endorsements shall be paid by
Inland, and (to the extent that Inland has not terminated this Agreement during
the Due Diligence Period in accordance with the terms of Section 2.4 hereof)
the issuance of any such endorsements shall not be a pre-condition to Inland’s
obligation to consummate the transactions contemplated by this Agreement.


 


2.2          Investigations; No Reliance on Documents;
As-Is Sale.


 


(a)           Except
as expressly set forth in this Agreement, neither Ceruzzi nor Inland makes any
representations or warranties as to the truth, accuracy or completeness of any
materials, data or information delivered by such party or its brokers or agents
to the other party in connection with the transaction contemplated hereby
Ceruzzi and Inland acknowledge and agree that all materials, data and
information delivered by the other party in connection with the transactions
contemplated hereby are provided to the other party as a convenience only and
that any reliance on or use of such materials, data or information shall be at
the sole risk of the party receiving such materials, data or information from the
other party, except as otherwise expressly stated 


 


7

















 


herein. Neither Ceruzzi,
nor any affiliate of Ceruzzi, nor the persons or entities which prepared any
report or reports (unless Inland has obtained reliance letters from any such
persons or entities or has established legal privity with such persons or
entities by some other means) delivered by Ceruzzi to Inland, shall have any
liability to Inland for any inaccuracy in or omission from any such reports.


 


(b)           Except
as expressly set forth in this Agreement and in any documents delivered by
Ceruzzi at the Closing, it is understood and agreed that Ceruzzi is not making
and has not at any time made any warranties or representations of any kind or
character, express or implied, with respect to the Property, including, but not
limited to, any warranties or representations as to habitability,
merchantability or fitness for a particular purpose, or as to the state of
title, physical condition, environmental condition and/or zoning of the
Property.


 


INLAND ACKNOWLEDGES AND
AGREES THAT UPON CLOSING CERUZZI SHALL CONTRIBUTE AND CONVEY OR ASSIGN TO THE
JV’S AND GRANTEES AND INLAND SHALL ACCEPT THE Property “AS IS, WHERE IS, WITH ALL FAULTS” AND WITH
ALL LATENT OR PATENT DEFECTS, EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE
IN THIS AGREEMENT OR THE DOCUMENTS EXECUTED AND DELIVERED BY CERUZZI AT THE
CLOSING. INLAND HAS NOT RELIED AND WILL NOT RELY ON, AND CERUZZI IS NOT LIABLE
FOR OR BOUND BY ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTIES, STATEMENTS,
REPRESENTATIONS OR INFORMATION PERTAINING TO ANY PROPERTY OR RELATING THERETO
MADE OR FURNISHED BY CERUZZI, OR ANY REAL ESTATE BROKER OR AGENT PURPORTING TO
REPRESENT CERUZZI, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR
IN WRITING, UNLESS SPECIFICALLY SET FORTH IN THIS AGREEMENT OR DOCUMENTS
EXECUTED AND DELIVERED BY CERUZZI AT THE CLOSING. INLAND ALSO ACKNOWLEDGES THAT
THE CONTRIBUTION VALUE REFLECTS AND TAKES INTO ACCOUNT THAT THE PROPERTY IS
BEING SOLD “AS IS, WHERE IS, WITH ALL FAULTS.”  IN ADDITION, CERUZZI WILL HAVE NO OBLIGATION TO PROVIDE ANY REPAIRS, ALTERATIONS OR
IMPROVEMENTS TO THE PROPERTY AS A CONDITION PRECEDENT TO INLAND’S OBLIGATION TO
CLOSE TITLE. IN FURTHERANCE OF THE FOREGOING AND NOT IN LIMITATION THEREOF,
INLAND SPECIFICALLY ACKNOWLEDGES AND AGREES THAT EXCEPT AS SPECIFICALLY SET
FORTH HEREIN TO THE CONTRARY, INLAND IS NOT RELYING ON ANY REPRESENTATIONS OR
WARRANTIES OF ANY KIND WHATSOEVER, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED,
STATUTORY OR OTHERWISE, FROM CERUZZI OR ANY PARTNER, MEMBER, MANAGER,
SHAREHOLDER, OFFICER OR DIRECTOR OF CERUZZI OR FROM ANY EMPLOYEE, ATTORNEY,
AGENT OR REPRESENTATIVE OF CERUZZI AS TO ANY MATTER CONCERNING ANY PROPERTY OR
ANY MATERIALS PROVIDED BY THE CERUZZI PURSUANT TO SECTION 2.3 HEREOF, INCLUDING
WITHOUT LIMITATION:  (i) THE QUALITY,
NATURE, HABITABILITY, MERCHANTABILITY, USE, OPERATION, VALUE, MARKETABILITY,
ADEQUACY OR PHYSICAL CONDITION OF THE PROPERTY 


 


8

















 


OR ANY ASPECT OR PORTION
THEREOF, INCLUDING, WITHOUT LIMITATION, STRUCTURAL ELEMENTS, FOUNDATIONS,
ROOFS, APPURTENANCES, ACCESS, LANDSCAPING, PARKING FACILITIES, ELECTRICAL,
MECHANICAL, HVAC, PLUMBING, SEWAGE, UTILITY SYSTEMS, FACILITIES, APPLIANCES,
SOILS, GEOLOGY OR GROUNDWATER, (ii) THE DIMENSIONS OR LOT SIZE OF ANY PROPERTY
OR THE SQUARE FOOTAGE OF THE IMPROVEMENTS THEREON OR OF ANY TENANT SPACE
THEREIN, (iii) THE DEVELOPMENT OR INCOME POTENTIAL, OR DEVELOPMENT OR OTHER
RIGHTS OF OR RELATING TO PROPERTY, (iv) PROPERTY’S INSURABILITY,
MERCHANTABILITY, FITNESS, SUITABILITY, OR ADEQUACY FOR ANY PARTICULAR PURPOSE,
(v) THE ZONING OR OTHER LEGAL STATUS OF PROPERTY OR ANY OTHER PUBLIC OR PRIVATE
RESTRICTIONS ON THE USE OF PROPERTY, (vi) THE COMPLIANCE OF THE PROPERTY OR ITS
OPERATION WITH ANY APPLICABLE CODES, LAWS, REGULATIONS, STATUTES, ORDINANCES,
COVENANTS, CONDITIONS OR RESTRICTIONS OF ANY GOVERNMENTAL AUTHORITY OR OF ANY
OTHER PERSON OR ENTITY (INCLUDING, WITHOUT LIMITATION, THE AMERICANS WITH DISABILITIES
ACT), (viii) THE ABILITY OF INLAND TO OBTAIN ANY GOVERNMENTAL APPROVALS,
LICENSES OR PERMITS NECESSARY FOR INLAND’S INTENDED USE OR DEVELOPMENT OF THE
PROPERTY, (viii) THE PRESENCE OR ABSENCE OF HAZARDOUS MATERIALS ON, IN, UNDER,
ABOVE OR ABOUT THE PROPERTY OR ANY ADJOINING OR NEIGHBORING PROPERTY, (ix) THE
DESIGN, CONSTRUCTION OR THE QUALITY OF ANY LABOR AND MATERIALS USED IN THE
CONSTRUCTION OF ANY IMPROVEMENTS, (x) THE CONDITION OF TITLE TO THE PROPERTY,
(xi) THE LEASES, CONTRACTS OR ANY OTHER AGREEMENTS AFFECTING THE PROPERTY OR
THE INTENTIONS OF ANY PARTY WITH RESPECT TO THE NEGOTIATION AND/OR EXECUTION OF
ANY LEASE OR CONTRACT WITH RESPECT TO THE PROPERTY, OR THE APPLICABLE CERUZZI’S
OWNERSHIP, DEVELOPMENT OR OPERATION OF THE PROPERTY OR (xii) THE ECONOMICS OF,
OR THE INCOME AND EXPENSES, REVENUE OR EXPENSE PROJECTIONS OR OTHER FINANCIAL
MATTERS, RELATING TO THE PROPERTY, OR THE OPERATION THEREOF. WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, INLAND AGREES THAT INLAND IS NOT RELYING ON ANY
REPRESENTATION OR WARRANTY OF CERUZZI, WHETHER SUCH REPRESENTATION OR WARRANTY
IS IMPLIED, PRESUMED OR EXPRESSLY PROVIDED, ARISING BY VIRTUE OF ANY STATUTE OR
COMMON LAW. INLAND AGREES THAT CERUZZI IS UNDER NO DUTY TO MAKE ANY INQUIRY
REGARDING ANY MATTER THAT MAY OR MAY NOT BE KNOWN TO ANY CERUZZI OR TO CONFIRM,
INVESTIGATE OR QUESTION THE ADEQUACY OF ANY APPRAISAL, REPORT, ANALYSES OR
STUDY OF ANY ASPECT OF THE PROPERTY PREPARED OR OBTAINED BY CERUZZI.


 


(c)           Inland’s
acceptance of Ceruzzi’s deed for the Property in favor of the Grantees shall be
deemed to be full performance by Ceruzzi of, and will discharge Ceruzzi from,
all liabilities and obligations under this Agreement, and thereafter Ceruzzi
shall have no liability or obligation to Inland or to any subsequent owner of
the Property 


 


9

















 


with respect to the
Property, nor any liability or obligation to any other person, firm,
corporation or public body with respect to actions or claims which arise on or
after the Closing Date with respect to the Property. Upon transfer of the
Property, Inland shall be deemed to have accepted and shall be subject to the
terms, conditions and other obligations applicable to the owner of, and
relating to, the Property which are set forth in any governmental approvals
relating to the construction, use or occupancy of the Property, including
without limitation, site plan approvals and developer’s agreements, whether or
not same shall have been recorded.


 


(d)           Inland,
in consideration for the promises and covenants contained in this Agreement,
and for other good and valuable consideration, the receipt of which is hereby
acknowledged, as of Closing does hereby release and forever discharge Ceruzzi
from any and all actions, causes of action, suits, controversies, claims and
demands whatsoever, in law and in equity, for or on account of injuries claimed
to have been received by Inland in connection with the condition of the
Property as of the date of Closing, including without limitation the
geophysical and environmental condition on, or originating from, the Property.
It is expressly understood and agreed by Inland and Ceruzzi that this release
specifically applies to any claims made in connection with any possible
environmental contamination on, or originating from, the Property, and/or any
violation of the Environmental Laws (as such term is hereinafter defined) by
the Ceruzzi in connection with the Property. For the purposes of this release,
the term “environmental contamination” shall include any type of environmental
orders, statutes or regulations applicable to the Property, including without
limitation to the Comprehensive Environmental Response, Compensation and
Liability Act, the Superfund Amendments and Reauthorization Act, the Federal
Clean Water Act, the Spill Compensation and Control Act, the Federal Water
Pollution Control Act, the Underground Storage of Hazardous Substances Act, the
Resource Conservation and Recovery Act and all other applicable federal, state
and/or local environmental acts (hereinafter collectively referred to as the
“Environmental Laws”) as the same are currently in force or may be later
amended, as well as any other claims, suits or actions arising from or related
to the environmental condition of the Property. By accepting title to the
Property through the Grantees at Closing, Inland shall be deemed to have agreed
that Inland:  (i) is satisfied with the
environmental conditions of the Property (regardless of whether the Property
complies with all Environmental Laws or other laws, orders, statutes or
regulations affecting the Property) and that Inland shall have been given the
opportunity to determine, to its own satisfaction, that the Property complies
with all Environmental Laws or other laws, orders, statutes or regulations
affecting the Property; (ii) accepts that Property in an “AS IS” condition
without relying on any verbal or written statement or representation relating
to the Property that may have been made by the Ceruzzi (except as expressly set
forth in this Agreement); and (iii) shall be solely responsible for any
environmental contamination on, or originating from, the Property which is not
disclosed in the Environmental Assessments to be obtained by Inland pursuant to
Section 2.3 hereof or which otherwise occurs after the Closing Date due to the
actions or inactions of the Inland, its successors and/or assigns or any third
party, and Inland agrees that it will be solely responsible for any such
environmental contamination. It is understood and agreed that Ceruzzi does not
admit any liability for any environmental contamination, and liability on the
part of Ceruzzi is expressly denied.


 


10

















 


(e)           The
provisions of this Section 2.2 shall survive Closing or termination of this
Agreement.


 


2.3          Due Diligence Period. Inland shall have
until 5 p.m. (prevailing New York City, New York time) on the last day of the
Due Diligence Period to inspect the Property, to conduct and prepare studies,
tests and surveys and to investigate and review any and all matters relating to
the Property which Inland shall reasonably deem appropriate, including, without
limitation, zoning matters, environmental matters, the Plans, the Property
Contracts, the Permits, the Leases, the Records, the Title Commitment and the
condition of the Property. In connection with Inland’s review of the Property,
Ceruzzi, shall deliver to Inland within five (5) business days after the
signing of this Agreement copies of the documents described on the Due
Diligence Checklist attached hereto as Exhibit
“C” and made a part hereof, including copies (if any) of (i) the
most recent tax bills, (ii) the most recent title report and survey of the
Property as are available, (iii) each of the Leases and any amendments thereto,
(iv) all Property Contracts, (v) all Plans, (vi) all Permits, (vii) all
Records, (viii) all Warranties, (ix) all environmental reports and studies
relating to the Property and (x) all unrecorded developer’s agreements. All of
the foregoing tests, investigations and studies shall be conducted by Inland or
its agents at Inland’s sole risk, cost and expense. Prior to any such entry
unto the Property, Inland shall afford Ceruzzi not less that one (1) business
day’s advance written notice of such inspection. Inland covenants and agrees
that none of its tests, investigations or studies shall materially interfere
with or disrupt in any manner whatsoever (hereinafter referred to collectively
as “Interference”) (x) the operation of any Property or any part thereof by any
Ceruzzi or any tenant under any Lease or (y) the conduct of business by any
Ceruzzi or any tenant under any Lease. Prior to entry on any Property by
Inland, Inland shall deliver to Ceruzzi certificates of insurance (prepared on
an insurance certificate form known as an “Accord 27”) from an insurance
company or companies reasonably satisfactory to Ceruzzi, naming Ceruzzi and any
other party requested by Ceruzzi as additional insureds which certificates
shall evidence policies of insurance insuring against claims for bodily injury,
death and property damage with confirmed single limit amounts of $1,000,000.00
and aggregate amounts of $2,000,000.00. So long as no Interference results
therefrom, Ceruzzi will provide Inland and its agents with access to all
structures located on the respective Property to permit Inland to fully conduct
its due diligence activities. Inland shall repair and restore any damage caused
to the Property as a result of entry by Inland or its agents or
representatives. Inland shall defend, indemnify and hold Ceruzzi harmless from
and against any and all damages, losses, liabilities, costs and expenses
(including, without limitation, reasonable attorneys’ fees and court costs)
suffered or incurred by Ceruzzi or any tenant under any Leases with respect to
all claims for personal injury, death or for loss or damage to property in
connection with Inland’s or its agents’, representatives’, contractors’ or
subcontractors’ entry onto the Property and/or performance of such studies,
tests and surveys. Inland’s indemnification obligations under this Section 2.3
shall survive the Closing or termination of this Agreement.


 


2.4          Inland’s Right to Terminate. Inland shall
have until 5:00 p.m. (prevailing New York City, New York time) on the last day
of the Due Diligence Period within which to notify Ceruzzi and Escrow Agent in
writing (hereinafter referred to as a 


 


11

















 


“Termination
Notice”), of its election to terminate this Agreement in its entirety
(but not otherwise), for any reason or for no reason whatsoever. If this
Agreement is terminated pursuant to the provisions of this Section 2.4, (i)
this Agreement shall terminate and be of no further force and effect, (ii) no
party hereto shall have any further rights or obligations hereunder (except for
representations, warranties and/or any indemnity obligations of any party
pursuant to the provisions of this Agreement which expressly survive
termination of this Agreement), and (iii) the Escrow Agent shall immediately
return the Deposit to Inland. If Inland shall not deliver an appropriate
Termination Notice within the time period set forth herein, Inland shall be
deemed to have accepted the results of its due diligence examination of the
Property, this Agreement shall remain in full force and effect and Inland shall
have no further right to cancel or terminate this Agreement, except as
otherwise expressly provided herein. If Inland terminates this Agreement,
Inland shall promptly return all due diligence material provided by Ceruzzi.


 


2.5          Prepayment of Existing Loans.


 


Inland hereby
acknowledges that the Property is currently subject to those certain mortgage
loans generally described on Exhibit “D”
attached hereto and made a part hereof (hereinafter collectively referred to as
the “Existing Loan”) made
by the Lender (hereinafter referred as the “Existing
Lender”) identified on Exhibit
“D” hereto. Inland and Ceruzzi hereby acknowledge and agree that
Inland is not assuming the obligations of the Ceruzzi under the Existing Loan,
and that all principal and accrued and unpaid interest under the Existing Loan
shall be prepaid out of the proceeds of the Closing of the transactions
contemplated hereby (including any defeasance costs and expenses).


 


ARTICLE
3


 


The Closing


 


3.1          Time and Place. Consummation of the
transactions contemplated hereby (hereinafter referred to as the “Closing”) shall take place using the
services of Chicago Title Insurance Company (“Chicago
Title”), as escrow agent. Ceruzzi and Inland shall deliver all of
their respective closing documents in escrow to Chicago with instructions on
the distribution of the documents at such time as Chicago Title has wired to
Ceruzzi the net funds due Ceruzzi in accordance with the closing statement agreed
upon between the parties. The Closing shall take place no later than 5-business
days after the expiration of the Due Diligence Period (hereinafter referred to
as the “Closing Date”). Ceruzzi
agrees to reasonably cooperate with Inland in its attempt to take an assignment
of the existing loan documents encumbering the Property.


 


3.2          Closing. At the Closing (or such earlier
date as set forth herein), Ceruzzi and Inland shall take such actions and
deliver such agreements and other instruments and documents necessary or
appropriate to effect the transactions contemplated by this Agreement in
accordance with the terms hereof, including, without limitation, the following:


 


12

















 


(a)   Inland
shall deliver to Ceruzzi the portion of the Contribution Value payable pursuant
to Section 1.2(c) hereof and the Escrow Agent shall deliver the Deposit to the
Ceruzzi.


 


(b)   Ceruzzi
and Inland shall execute and deliver closing statements each in a form
reasonably acceptable to Ceruzzi, Inland and their respective counsel.


 


(c)   Ceruzzi
shall convey and transfer to the Grantees good and insurable title to the
Property, subject to the Permitted Exceptions, by executing, acknowledging and
delivering the deeds to the Grantees (collectively, the “Deed”).


 


(d)   Ceruzzi
and Inland shall execute and deliver assignment and assumption agreements in
substantially the form attached hereto as Exhibit
“E” and made a part hereof, duly executed and acknowledged by
Ceruzzi and the Grantees and in proper form for recording (if necessary),
pursuant to which Ceruzzi will assign to the Grantees all of Ceruzzi’s rights,
title and interest as lessor in and to the respective Leases, and pursuant to
which the Grantees will assume all obligations as lessor under the Leases.
Ceruzzi will simultaneously deliver to Inland an original executed copy of each
of the Leases and all guarantees of the Leases and a letter, duly executed by
the respective Ceruzzi, in form satisfactory to Inland, addressed to each of
the tenants under the Leases advising the tenants of the assignment of the
Leases to the Grantees.


 


(e)   Ceruzzi
shall use its commercially reasonable efforts (which for purposes of this Section
3.2(e) shall not require Ceruzzi to incur unreasonable costs) to cause the
tenants under Leases (Stop & Shop, Giant and BI-LO) to deliver to Inland a
written tenant estoppel certificate in the form required under the respective
Leases, or if no form is specified and if no form is generally used by a tenant
in similar transactions, in substantially the form attached hereto as Exhibit “F” and made a part hereof.


 


(f)    Ceruzzi
shall deliver to Inland a rent roll for the Property owned by it containing a
schedule of the Rents and other charges and payments due from the tenants under
the Leases dated as of the Closing Date and certified by Ceruzzi as true and
correct.


 


(g)   Ceruzzi
shall deliver to Inland an affidavit of title in customary form, duly executed
and acknowledged by Ceruzzi.


 


(h)   Ceruzzi
and Inland shall deliver to the Title Company all documents, affidavits and
instruments reasonably required by the Title Company and in a form reasonably
acceptable to Ceruzzi, Inland, their respective counsel and the Title Company.


 


13

















 


(i)    Ceruzzi
shall deliver to Inland a limited liability company certificate, satisfactory
to the Title Company and Inland, with respect to the authority of Ceruzzi to
approve this Agreement and the transactions contemplated hereby.


 


(j)    Inland
shall deliver to Ceruzzi a corporate resolution, satisfactory to the Title
Company and Ceruzzi, with respect to the authority of Inland to approve this
Agreement and the transactions contemplated hereby.


 


(k)   Ceruzzi
shall deliver to Inland all Plans, Property Contracts, Permits, Records and all
other records pertinent to the ownership, operation, maintenance or use of the
Property which are in such Ceruzzi’s possession. Ceruzzi and Inland shall
execute and deliver an assignment and assumption agreement, pursuant to which Ceruzzi
will assign to Inland all of such Ceruzzi’s right, title and interest in the
Plans, Property Contracts, Permits and Records, and pursuant to which Inland
will assume all obligations with respect thereto.


 


(l)    Ceruzzi
shall deliver to Inland an affidavit stating that such Ceruzzi is not a
“foreign person” as that term is defined pursuant to the Foreign Investment in
Real Property Tax Act of 1980 (hereinafter referred to as “FIRPTA”).


 


(m)  Ceruzzi
shall execute a notice to Stop & Shop, Giant and BI-LO, as the case may be
in substantially the form attached hereto as Exhibit
“G”, which notices shall be delivered to Inland at Closing for
Inland to forward to the respective Tenants.


 


(n)   The
parties shall execute and deliver to each other any other instrument or
instruments (i) required to be delivered under any provision of this Agreement
and (ii) reasonably requested by the attorney for either party in connection
with this transaction.


 


(o)   To
the extent obtained by Inland (with Ceruzzi’s cooperation in accordance with
Section 6.2(c) hereof), and to the extent paid for on before Closing by Inland,
Ceruzzi shall cause all Warranties to be transferred to the name of the
Grantees.


 


(p)   To
the extent obtained by Ceruzzi in accordance with Section 6.2(c) hereof,
estoppel certificates from Stop & Shop, Giant and BI-LO, as the case may be
(as a tenant) and from any other party to any reciprocal easement or similar
agreement affecting the Property (hereinafter referred to as the “REA Estoppels”) in either the form prescribed
by any such document or in substantially the same form attached hereto as Exhibit “H.”


 


(q)   Ceruzzi
shall execute and deliver to Inland’s auditors, KPMG, an audit letter in the
form attached as Exhibit “J,”
attached hereto and made a part 


 


14

















 


hereof. In the event the
audit of Property operations has not been performed by KPMG at or prior to the
date of Closing, Ceruzzi agrees to execute and deliver the audit letter at such
time as the audit is performed. The terms of this provision shall survive
Closing.


 


(r)    Ceruzzi
and Inland shall execute and deliver the DR LLC OA’s and the Guaranty of Inland
Western Retail Real Estate Trust Inc. in connection therewith.


 


(s)   Ceruzzi
shall deliver to Inland a waiver by Stop & Shop, Giant and BI-LO of its
right of first offer, in each case.


 


(t)    Ceruzzi
shall comply with the tax withholding statutes in regard to sale of the
Property (e.g., Rhode Island requirements) and Ceruzzi agrees to withhold from
the net proceeds of sale a sum sufficient to comply therewith; Ceruzzi and
Inland agree to execute and deliver such real estate and /or tax documents as
may be required to comply with the foregoing.


 


(u)   Inland
shall deliver to Ceruzzi a copy of each assignment of this Agreement by Inland
to the Member II Entities.


 


3.3                          Delivery of Possession.
Possession of the Property shall be delivered to Inland at the Closing upon
execution and delivery of the Deed (in favor of the Grantees) free of all
tenancies and occupants, except with respect to tenants under the Leases.


 


ARTICLE
4

Apportionments and Allocation of Expenses


 


4.1          Credits
and Prorations. Subject to any provision of this Agreement to the contrary, the
following items shall be apportioned for the calendar year in which the Closing
occurs as of midnight on the calendar day immediately preceding the
Closing:  (a) all Rents, revenues and
other income, if any, from the Property, and (b) any other income, expense or
other items relating to the Property under a NNN lease which is customarily
prorated between a purchaser and a seller of real property subject to a NNN
lease in the counties in which the Property is located. Ceruzzi hereby
represents and warrants to Inland (i) that each of the Leases are NNN and the
respective tenants thereunder are responsible for the full payment of all real
estate taxes and insurance and water and sewer charges and other utility
charges, and all other costs and expenses incurred in connection with the use
of the respective demised premises under Leases; and (ii) no security deposits
under Leases are being held by Ceruzzi.


 


4.2          Other
Adjustments.


 


(a) Intentionally
deleted.


 


(b) Except as otherwise
provided herein, any expense amount which cannot be ascertained with certainty
as of Closing (and for which Inland and Ceruzzi are 


 


15

















 


unable to adjust and/or
allocate at or prior to Closing) shall be prorated on the basis of the parties’
reasonable estimates of such amount, and shall be the subject of a final
proration ninety (90) days after Closing, or as soon thereafter as the precise
amounts can be ascertained. Inland shall promptly notify Ceruzzi when it
becomes aware that any such estimated amount has been ascertained. Once all
revenue and expense amounts have been ascertained, Inland shall prepare, and
certify as correct, a final proration statement which shall be subject to
Ceruzzi approval. Upon the acceptance and approval by Ceruzzi of any final
proration statement submitted by Inland, such statement shall be conclusively
deemed to be accurate and final.


 


(c) All rents, including
without limitation all basic rent, additional rent, and all amounts due and
payable to the landlord under the Leases (hereinafter collectively referred to
as “Rents”), shall be prorated and adjusted as of the Closing Date based upon
the number of days in the month in which the Closing occurs. Ceruzzi shall
prepare all reconciliations for calendar year 2005 prior to the end of the Due
Diligence Period, and shall deliver copies thereof to Inland. Based upon (i)
the delinquency, if any, at such time in the payment of Rent by any Tenants and
(ii) the existence, if any, of any unpaid tenant improvements or leasing
commissions or any unexpired free rent periods (hereinafter collectively
referred to as “Tenant Concessions”) Inland and Ceruzzi shall negotiate in good
faith with each other appropriate credits to one another to be allocated at
Closing in connection with the Leases. Such good faith negotiations shall
include negotiations with respect to Rents which remain unpaid on and as of the
anticipated Closing Date, as well as allocation of responsibility for the
economic effect of the payment or realization of Tenant Concessions, it being
the intent of the Inland and Ceruzzi to negotiate fair and equitable credits
such that (i) Ceruzzi will have no claims against Tenants following Closing for
past due Rent, other additional rent and Tenant Concessions, (ii) Ceruzzi will
owe no additional payments to Inland in respect of Rent, other additional rent
and Tenant Concessions, and (iii) Inland will owe no additional payments to
Ceruzzi in respect thereof.


 


(d) Intentionally
deleted.


 


(e)           Inland
shall be entitled to a credit in the amount of the tenant security deposits set
forth on Schedule 4.2(e) attached hereto.


 


(f)            Subject
to the final sentence of Section 4.2(b) hereof, the provisions of this Section
4.2 shall survive Closing.


 


4.3          Transaction and Closing Costs.


 


(a) Ceruzzi and Inland
shall execute such returns, questionnaires and other documents as shall be
required with regard to all applicable real property transaction taxes imposed
by applicable federal, state or local law or ordinance.


 


(b) Ceruzzi shall pay the
fees of counsel representing Ceruzzi in connection with this transaction. In
addition, Ceruzzi shall also pay the following costs and expenses:


 


16

















 


(i) any realty transfer
tax, sales tax, documentary stamp tax or similar tax which becomes payable by
reason of the transfer of the Property; 
and


 


(ii) the fees for any
consultants which have been hired or retained by Ceruzzi in connection with the
transactions contemplated by this Agreement.


 


(c) Inland shall pay the
fees of counsel representing Inland in connection with this transaction, if
any. In addition, Inland shall also pay the following costs and expenses:


 


(i) 100% of all survey
and title charges;


 


(ii) the cost of
appraisals, Environmental Assessments of the Property prepared on Inland’s
behalf or at Inland’s direction;


 


(iii) the fees for
recording the Deed;


 


(iv) except as set forth
in Section 9.1 hereof, the fees for any other brokers or consultants which have
been hired or retained by Inland in connection with the transaction
contemplated by this Agreement;


 


(v) the fees and expenses
of the Escrow Agent, as set forth in Section 1.2(d)(i) hereof; and


 


(vi)  all costs of obtaining Inland financing, if
any, and mortgage recording fees and taxes in connection therewith.


 


(d)           All
costs and expenses incident to the transaction contemplated hereby and the
closing thereof, and not specifically described above, shall be paid by the
party incurring same.


 


(e)           The
provisions of this Section 4.3 shall survive the Closing or termination of this
Agreement.


 


ARTICLE
5



Representations and Warranties


 


5.1          Ceruzzi Representations and Warranties.
Ceruzzi, hereby makes the following representations and warranties to Inland as
of the date of this Agreement, which representations and warranties shall be
true and correct as of the Closing Date as a condition to Inland’s obligation
to close hereunder:


 


(a)           Each Ceruzzi seller entity is a limited
liability company duly organized, validly existing and in good standing under
the laws of its state of formation. Ceruzzi has all requisite power and
authority to own and operate its respective Property and carry on its business
with respect to such Property as now being 


 


17

















 


conducted. Ceruzzi has the requisite power and
authority to enter into this Agreement and to perform its obligations hereunder
and to consummate the transactions contemplated hereby. Neither the execution,
delivery and performance by Ceruzzi of this Agreement, nor the consummation of
the transactions contemplated hereby or thereby will violate or conflict with
any provision of the articles of organization or operating agreement of
Ceruzzi.


 


(b)           Ceruzzi is not a “foreign person” as such
term is defined pursuant to FIRPTA.


 


(c)           The execution, delivery and performance
by Ceruzzi of this Agreement, and the consummation of the transactions
contemplated hereby and thereby, will not violate any provision of Ceruzzi’s
organization documents.


 


(d)           Those certain leases described upon Exhibit “B” are the only leases and
tenancies in effect with respect to the Property and no individuals or entities
occupy the Property or any portion thereof except pursuant to the Leases. The
copies of the Leases previously delivered or to be delivered to Inland are or
will be true, correct and complete copies of all the Leases and any amendments
thereto. Except as disclosed herein or in the Leases, copies of which shall be
reviewed by Inland during the Due Diligence Period, no Lease provides the
tenant thereunder with a right of first refusal to purchase its demised
premises or any of the Property.


 


(e)           Ceruzzi has not received any written
notice from a tenant under any Lease of such tenant’s intention to vacate or
abandon its demised premises prior to the end of the term of its Lease. Ceruzzi
shall promptly provide Inland with a copy of any written notice of default
under any Lease given or received between the date hereof and the date of the
Closing.


 


(f)            Ceruzzi has not received any written
notice from any tenant under any Lease which claim any default by Landlord
thereunder. Ceruzzi shall promptly provide Inland with a copy of any written
notice of default under any Lease given or received between the date hereof and
the date of the Closing.


 


(g)           Except as otherwise disclosed to Inland,
Ceruzzi has not received any written notice of any violations of any federal,
state or municipal zoning, fire, environmental, building or other laws, codes,
statutes, ordinances, orders, regulations or requirements affecting the
Property owned by it, the terms of which have not been complied with, and
Ceruzzi will promptly notify Inland of the receipt of any written notice of any
such violations received by such Ceruzzi between the date hereof and the date
of the Closing.


 


(h)           There are no attachments, executions,
assignments for the benefit of creditors, receiverships, conservatorships or
voluntary or involuntary proceedings in bankruptcy or actions pursuant to any
other debtor relief laws contemplated by any Ceruzzi or pending against such
Ceruzzi and regarding the Property owned by it.


 


18

















 


(i)            No tenant is entitled to any rent
concessions or “free rent” under the terms of any of the Leases, all tenant
improvement allowances due under any of the Leases have either been paid, or if
not yet due and payable, will be escrowed by Ceruzzi from the net funds due
Ceruzzi at the Closing, with Chicago Title.


 


(j)            Schedule
5.1(j) sets forth any unpaid leasing commissions and the amount hereof. All
leasing commissions for which a lien could be filed shall be paid on or before
the Closing Date


 


5.2          Inland’s Representations and Warranties.
Inland hereby makes the following representations and warranties to Ceruzzi as
of the date of this Agreement, which representations and warranties shall be
true and correct as of the Closing Date as a condition to Ceruzzi’s obligation
to close hereunder.


 


(a) Inland is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Illinois. Inland has the requisite power and authority to
enter into this Agreement and to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation by Inland of the transactions contemplated
hereby and thereby have been duly authorized by Inland and no consents of any
third parties are necessary for Inland’s execution, delivery and performance of
this Agreement and the transactions contemplated hereby and thereby. Neither
the execution, delivery and performance by Inland of this Agreement, nor the
consummation of the transactions contemplated hereby or thereby will violate or
conflict with any provision of the documents and instruments under which Inland
is constituted.


 


(b)           No
action or other proceeding whatsoever is now pending or, to the best knowledge
of Inland, threatened against Inland or any shareholders, partners, members or
owners, as the case may be, of the foregoing which calls into question or seeks
to set aside or enjoin any of the approvals or authorizations of the
transactions contemplated by this Agreement, or the performance of Inland’s
obligations hereunder, or which will or may otherwise impede the Closing.


 


(c)           Inland
has all funds available to it which are sufficient to consummate the transaction
contemplated by this Agreement.


 


(d)           Inland
fully understands the nature and significance of the transactions provided for
in this Agreement and the limitations provided in Section 2.2 hereof and
elsewhere herein. Inland is satisfied with the amount being paid by it for the
Property, as set forth herein, based and in sole reliance upon its own
valuation of the Property and its review and analysis of the rent roll for each
Property, reports of physical inspections (including without limitation, environmental
inspections), business, operations, condition and prospects for the Property.


 


5.3          Changed Circumstances. Ceruzzi and Inland
shall promptly notify the other in writing, if, after the execution of this
Agreement and prior to the Closing, any event occurs or condition exists which
renders any of the foregoing representations and 


 


19

















 


warranties made by it
materially untrue or misleading. All of the foregoing representations and
warranties, respectively, shall be deemed made by Ceruzzi, respectively, and
Inland on the date of this Agreement and at the time of the Closing.


 


5.4          Survival
of Representations and Warranties; Limitation on Ceruzzi’s Liability. Unless
otherwise set forth in this Agreement, the representations and warranties of
Ceruzzi and Inland, respectively, as set forth in this Article 5 and elsewhere
in this Agreement and in any other agreements, affidavits, estoppels,
instruments or other documents executed by any of the Ceruzzi in connection with
the transactions contemplated hereby (hereinafter collectively referred to as
the “Closing Documents”) shall survive Closing for six (6) months. In the event
that the Closing of the transactions contemplated herein occurs, and to the
extent that, thereafter, Inland incurs any actual costs or losses during the
six (6) month period referred to above as a result of any incorrect
representations or warranties made by Ceruzzi hereunder or under the Closing
Documents which exceed $1,000.00, Ceruzzi shall reimburse Inland for such
claims, costs and expenses within fifteen (15) days after delivery by Inland to
Ceruzzi of reasonable evidence of the payment of such claims, costs and
expenses. No claims based upon any incorrect representation or warranties may be
brought by Inland to the extent that the costs or losses actually incurred by
Inland do not individually or collectively exceed the Minimum Threshold, and no
such claims may be brought at any time following the six-month anniversary of
the Closing. In addition, to the extent that Inland actually knows at or prior
to Closing that any of Ceruzzi’s representations or warranties are inaccurate,
untrue or incorrect in any way, such representations and warranties shall be
deemed modified to reflect Inland’s knowledge. Without limitation, Ceruzzi
shall not have any liability in connection with this Agreement by reason of any
inaccuracy of a representation or warranty if and to the extent that such
inaccuracy has been identified by Ceruzzi by notice to Inland or otherwise is
actually known by Inland at the time of Closing (whether matters contradicting
any representation or warranty is contained in any Exhibit or Schedule to this
Agreement, whether such matters are contained in any materials delivered to
Inland by or on behalf of Ceruzzi, or whether such matters are contained in any
study, test, analysis or report prepared by or for the benefit of Inland in
connection with the transactions contemplated hereunder), and Inland
consummates the Closing.


 


ARTICLE
6



Additional Agreements


 


6.1          Operations Pending Closing. Between the
date of execution of this Agreement and the Closing, Ceruzzi shall comply with
all covenants, conditions, restrictions, laws, statutes, rules and regulations
and ordinances applicable to the Property, and shall own, manage and operate
the Property in a manner consistent with past practices and shall use
reasonable and prudent efforts to preserve for Inland the favorable
relationships which Ceruzzi has with tenants, suppliers, vendors and others having
ongoing relationships with the Property. Ceruzzi (a) may, at Ceruzzi’s option, 


 


20

















 


after prior notice to
Inland, in the ordinary course and consistent with Ceruzzi’s current practices,
negotiate with prospective tenants, and (b) enter into Leases (on terms that
Ceruzzi believes, in its good faith business judgment, to be market terms),
enforce Leases and perform landlord’s obligations under the Leases (other than
with respect to Leases that have been or that are in the process of being
terminated). Ceruzzi shall not, without first obtaining written consent of
Inland, which consent shall not be unreasonably withheld, conditions or
delayed, enter into new Leases or modify the terms of or terminate any Leases.
In addition, Ceruzzi shall promptly notify Inland, in writing, of (i) any
default beyond applicable grace periods committed by any tenants (other than
defaults in the payment of rent, adjustments for which will be made at
Closing); and (ii) any written notices received from any tenants regarding
Ceruzzi’s defaults or any tenant’s intention to terminate its lease.


 


6.2          Mutual Cooperation. Ceruzzi and Inland
agree to cooperate fully with one another in connection with the transactions
contemplated herein during the Due Diligence Period. In furtherance of the
foregoing, Ceruzzi agrees to (a) to provide contact information to Inland with
respect to persons who prepared previous surveys, environmental assessments and
appraisals, if any, with respect to the Property, (b) to execute all documents
(at no cost to Ceruzzi) to effectuate the transfer to Inland of any Warranties
and (c) to use its commercially reasonable efforts (which for purposes of this
Section 6.2 shall not require Ceruzzi to incur unreasonable costs) to obtain
the REA Estoppels.


 


Article
7


 


Risk
of Loss


 


7.1          Casualty.


 


(a)           If,
at or prior to Closing, any damage, destruction or casualty shall have occurred
as to which a tenant (i) has the responsibility to repair and restore the
Property under its respective Lease and (ii) has no right of rent abatement or
offset, in full or in part as a result of such casualty, the parties shall
proceed to Closing in accordance with the terms of this Agreement without any
reduction in the Contribution Value.


 


(b)           (i)
If, at or prior to Closing, any other damage, destruction or casualty, of any
Property, occurs, which damage, destruction or casualty creates loss valued at
ten (10%) percent or less of the Contribution Value, then this Agreement shall
continue in full force and effect and Ceruzzi shall give written notice of such
event to Inland (which notice will include a description of the nature, extent
and estimated amount of damage or loss suffered by the Property in connection
with such casualty), in which event the parties shall proceed to Closing in
accordance with the terms of this Agreement without any reduction in the
Contribution Value, and Ceruzzi shall (A) assign to Inland at Closing all of
its rights to and interest in all proceeds of casualty insurance and business
interruption and rent loss insurance relating to the period from and after the
date of Closing payable on account of such casualty, (B) pay to Inland at
Closing an amount 


 


21

















 


equal to the full amount
of the deductible applicable under such insurance policies, by way of a credit
against the Contribution Value equal to the deductible unless tenants are
responsible for the deductible in CAM. Ceruzzi shall cooperate reasonably with
Inland before and after Closing to file and process an insurance claim for all
insured loss arising out of such casualty. Ceruzzi shall not settle or adjust
any such insurance claim without Inland’s prior written consent. Ceruzzi shall
have no obligation to repair or restore any Property other than necessary
measures as may be necessary to secure any such Property from natural elements,
vandalism or further deterioration.


 


(ii)           If,
at or prior to Closing, any other damage, destruction or casualty, of the
Property, occurs which damage, destruction or casualty creates a loss valued in
excess of ten (10%) percent of the Contribution Value allocated to such
Property, then Ceruzzi shall notify Inland in writing (hereinafter referred to
as a “Ceruzzi Casualty Notice”), which Ceruzzi Casualty Notice will include a
description of the nature, extent and estimated amount of damage or loss
suffered by the affected Property in connection with such casualty. Within ten
(10) days after receipt of the Ceruzzi Casualty Notice, Inland shall notify
Ceruzzi, in writing, as to whether (A) Inland will elect to proceed to Closing
or (B) Inland will elect to terminate this Agreement. If Inland does not make
such written election within the time period specified above, Inland will be
deemed to have made the election set forth in clause (A).


 


(iii)          If
Inland makes (or is deemed to have made) the election set forth clause (A) of
Section 7.1(b)(ii) above, then this Agreement shall continue in full force and
effect and the parties shall proceed to Closing in accordance with the terms of
this Agreement without any reduction in the Contribution Value, and the Ceruzzi
shall (A) assign to Inland at Closing all of its rights to and interest in all
proceeds of casualty insurance and business interruption and rent loss
insurance relating to the period from and after the date of Closing payable on
account of such casualty and (B) pay to Inland at Closing an amount equal to
the full amount of the deductible applicable under such insurance policies, by
way of a credit against the Contribution Value equal to the deductible. Ceruzzi
shall cooperate reasonably with Inland before and after Closing to file and
process an insurance claim for all insured loss arising out of such casualty.
Ceruzzi shall not settle or adjust any such insurance claim without Inland’s
prior written consent. The Ceruzzi shall have no obligation to repair or
restore any Property other than necessary measures as may be necessary to
secure any such Property from natural elements, vandalism or further
deterioration.


 


7.2          Condemnation. If, at or prior to the time
of Closing, all or any portion of any Property shall be condemned or taken
pursuant to any governmental or other power of eminent domain, any written
notice of taking or condemnation with respect to all or any portion of a
Property is issued, or any proceedings are instituted by any governmental
authority having the power of eminent domain to take all or any portion of such
Property, then (a) Ceruzzi shall notify Inland in writing of such action, (b)
Inland shall proceed to closing with a reduction in the Contribution Value
equal to any condemnation award previously paid to Ceruzzi, (c) Ceruzzi shall
assign to Inland at the time of Closing all of such Ceruzzi’s right to any
unpaid condemnation awards and (d) Ceruzzi shall convey the entire Property (or
remainder thereof) to Inland.


 


22

















 


ARTICLE
8



Remedies Upon Default


 


8.1          Time of Essence. If full performance of
this Agreement is not completed by the Closing Date, either party shall have
the right after such date to declare time to be of the essence of this
Agreement by giving notice of such election to the other party. Such notice
shall contain a declaration that time is of the essence and shall fix the time,
date and place of final settlement, which date may not be sooner than twenty
(20) days nor later than thirty (30) days following the effective date of
giving such notice.


 


8.2          Default by Inland. In the event the sale
of the Property as contemplated hereunder is not consummated due to Inland’s
default hereunder, Ceruzzi shall be entitled, as its sole remedy, to terminate
this Agreement and receive the Deposit as liquidated damages, and not as a
penalty, for the breach of this Agreement (which shall operate to terminate
this Agreement and release Inland and Ceruzzi from any and all liability
hereunder other than with respect to those representations, warranties and/or
indemnities which survive termination of this Agreement), it being agreed
between the parties hereto that the actual damages to Ceruzzi in the event of
such breach are difficult, if not impossible, to determine and the Deposit and
any accrued interest thereon, is a reasonable estimate thereof. Ceruzzi
expressly waives its right to seek compensatory or consequential damages in the
event of Inland’s default hereunder.


 


8.3          Default by Ceruzzi. In the event the sale
of the Property as contemplated hereunder is not consummated due to a default
by all Ceruzzi hereunder, Inland shall be entitled, at its election, as its
sole remedy, (a) to waive such default and close title in accordance with the
terms of this Agreement without any reduction of the Contribution Value, (b) to
receive the return of the Deposit which shall operate to terminate this
Agreement and release Inland and Ceruzzi from any and all liability hereunder
(other than with respect to those representations, warranties and/or
indemnities which survive termination of this Agreement), or (c) to enforce
specific performance of the Ceruzzi’s obligations to convey the Property to
Inland in accordance with the terms of this Agreement, including a claim for
reasonable attorney’s fees and costs of suit.


 


ARTICLE
9


 


Agents
and Commission


 


9.1          Brokers. With respect to the transaction
contemplated by this Agreement, Ceruzzi and Inland represent to the other party
that neither party has engaged a broker in regard to this transaction. In the
event that any claim for commission or finder’s fee is brought by any person or
entity as a consequence of the transaction contemplated hereby and as a result
of any action or omission of Ceruzzi or Inland, then Ceruzzi or Inland, as the
case may be, shall hold harmless the other party against any loss, cost or
expense of any nature, including, but not limited to, court costs and
reasonable attorney’s fees arising as a consequence of the claim for the
commission or fee. The terms of this Section 9.1 


 


23

















 


shall survive the Closing
or termination of this Agreement.


 


ARTICLE
10




Miscellaneous


 


10.1        Notices.
Every notice or other communication required or contemplated by this Agreement
by any party shall be in writing and shall be delivered by (i) personal
delivery, (ii) internationally recognized express courier, such as Federal
Express, UPS or DHL or (iii) facsimile with a confirmation copy sent
simultaneously in the manner contemplated by clauses (i) or (ii) of this
Section 10.1, in each case addressed to the party for whom intended at the
following address:


 


	
  (i)

  	
   

  	
  If to Inland:

  	
   

  	
  Inland Real Estate
  Acquisitions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
  2901 Butterfield Road

  
	
   

  	
   

  	
   

  	
   

  	
  Oak Brook, Illinois
  60523

  
	
   

  	
   

  	
   

  	
   

  	
  Attn:

  	
  G. Joseph Cosenza,

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  President

  
	
   

  	
   

  	
   

  	
   

  	
  Fax No.: 630-218-4935

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (ii)

  	
   

  	
  With a copy to:

  	
   

  	
  Inland Real Estate
  Group, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
  2901 Butterfield Road

  
	
   

  	
   

  	
   

  	
   

  	
  Oak Brook, Illinois
  60523

  
	
   

  	
   

  	
   

  	
   

  	
  Attn: Robert Baum,
  General Counsel

  
	
   

  	
   

  	
   

  	
   

  	
  Fax No.: 630-218-4900
  and 630-571-2360

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (iii)

  	
   

  	
  If to Ceruzzi:

  	
   

  	
  c/o Ceruzzi Holdings,
  LLC

  
	
   

  	
   

  	
   

  	
   

  	
  1720 Post Road

  
	
   

  	
   

  	
   

  	
   

  	
  Fairfield, Connecticut
  06824

  
	
   

  	
   

  	
   

  	
   

  	
  Attn: Arthur W. Hooper,
  Jr.

  
	
   

  	
   

  	
   

  	
   

  	
  Fax No.: 203-256-4019

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  If to the

  	
   

  	
   

  
	
   

  	
   

  	
  Escrow Agent:

  	
   

  	
  Chicago Title Insurance
  Company

  
	
   

  	
   

  	
   

  	
   

  	
  171 N. Clark Street

  
	
   

  	
   

  	
   

  	
   

  	
  Chicago, IL 60601

  
	
   

  	
   

  	
   

  	
   

  	
  Attn: Nancy Castro

  
	
   

  	
   

  	
   

  	
   

  	
  Fax No.: 312-223-2108

  



 


or at such other address
as the intended recipient previously shall have designated by written notice to
the other parties. Notice by registered or certified mail shall be effective on
the date it is officially recorded as delivered to the intended recipient by
return receipt or equivalent, and in the absence of such record of delivery,
the effective date shall be 


 


24

















 


presumed to have been the
third (3rd) business day after it was deposited in the mail. All notices and
other communications required or contemplated by this Agreement to be delivered
in person or sent by courier shall be deemed to have been delivered to and
received by the addressee and shall be effective on the date of personal
delivery; notices delivered by facsimile with simultaneous confirmation copy by
registered or certified or equivalent mail or courier shall be deemed delivered
to and received by the addressee and effective on the date sent. Notice not
given in writing shall be effective only if acknowledged in writing by a duly
authorized representative of the party to whom it was given.


 


10.2        No Recording. Neither Ceruzzi nor Inland
shall cause or permit this Agreement nor any memorandum hereof to be filed of
record in any office or place of public record and if Inland or Ceruzzi shall
fail to comply with the terms hereof by recording or attempting to record the
same, such act shall not operate to bind or cloud title to the Property. If
either party or counsel acting for either party shall cause or permit this
Agreement, a copy hereof, or a memorandum hereof to be filed in an office of
place of public record, the other party, at its option, may treat such act as a
default under this Agreement.


 


10.3        No Agency. This Agreement shall not
constitute an appointment of any of the parties hereto as the legal
representative or agent of any other party hereto nor shall any party hereto
have any right or authority to assume, create or incur in any manner any
obligation or other liability of any kind, express or implied, against, or in
the name or on behalf of, the other party hereto.


 


10.4        Severability. In the event any provision of
this Agreement shall be determined to be invalid or unenforceable under
applicable law, all other provisions of this Agreement shall continue in full
force and effect unless such invalidity or unenforceability causes substantial
deviation from the underlying intent of the parties expressed in this Agreement
or unless the invalid or unenforceable provisions comprise an integral part of,
or in inseparable from, the remainder of this Agreement. If this Agreement
continues in full force and effect as provided above, the parties shall replace
the invalid provision with a valid provision which corresponds as far as
possible to the spirit and purpose of the invalid provision.


 


10.5        Assignment and Succession. Except as
expressly permitted herein, no party may assign or otherwise transfer any
rights, interests or obligations under this Agreement (excluding an assignment
resulting by operation of law as a result of the merger or consolidation of any
such party) without the prior written consent of the other party, which consent
may be withheld in the sole and absolute discretion of such party for any
reason whatsoever or for no reason. This Agreement shall inure to the benefit
of the parties hereto and to their respective permitted successors and assigns.
Notwithstanding the foregoing, within ten (10) days prior to Closing, Inland
shall have the right to notify Ceruzzi of the names of its nominee entity
taking title to the Property.


 


10.6        Amendments and Waivers. No amendment,
modification, termination or waiver of any provision of this Agreement or
consent to any departure by any party 


 


25

















 


therefrom, shall in any
event be effective without the written concurrence of the other party hereto.
Any waiver or consent shall be effective only in the specific instance and for
the specific purpose for which it is given. No notice to or demand on any party
in any case shall entitle any other party to any other or further notice or
demand in similar or other circumstances.


 


10.7        Further Assurances. Each of the parties
hereto agrees that, from and after the Closing, upon the reasonable request of
the other party hereto and without further consideration, such party will
execute and deliver to such other party such documents and further assurances
and will take such other actions (without cost to such party) as such other
party may reasonably request in order to carry out the purpose and intention of
this Agreement including but not limited to the effective consummation of the
transactions contemplated under the provisions of this Agreement. The
provisions of this Section 10.7 shall survive Closing.


 


10.8        Absence of Third-Party Beneficiaries. No provisions
of this Agreement, express or implied, are intended or shall be construed to
confer upon or give to any person or entity other than the parties hereto, any
rights, remedies or other benefits under or by reason of this Agreement unless
specifically provided otherwise herein, and except as so provided, all
provisions hereof shall be personal solely between the parties to this
Agreement.


 


10.9        Governing Law; Jurisdiction. The validity,
construction, performance and enforceability of this Agreement shall be
governed in all respects by the laws of the State of Connecticut, without
reference to the choice-of-law principles thereof. Inland and Ceruzzi agree to
submit to personal jurisdiction in the state of Connecticut in any action or
proceeding arising out of this Agreement. In furtherance of such agreement, the
parties hereto agree and consent that without limiting other methods of
obtaining jurisdiction, personal jurisdiction over the each party in any such
action or proceeding may be obtained within or without the jurisdiction of any
court located in Connecticut and that any process or notice of motion or other
application to any such court in connection with any such action or proceeding
may be served upon the party by registered or certified mail to, or by personal
service at, the respective addresses listed in Section 10.1 herein (or as
otherwise established by notice to the other party), whether such address may
be within or without the jurisdiction of any such court. The parties hereto
further agree that the venue of any litigation arising in connection with this
Agreement or in respect of any of the obligations of the parties hereto under
this Agreement, shall, to the extent permitted by law, be in Fairfield County,
Connecticut.


 


10.10      Interpretation. This Agreement, including any
exhibits, schedules and amendments, has been negotiated at arm’s length and
between persons sophisticated and knowledgeable in the matters dealt with in
this Agreement. Each party has been represented by experienced and knowledgeable
legal counsel. Accordingly, any rule of law or legal decision that would
require interpretation of any ambiguities in this Agreement against the party
that has drafted it is not applicable and is waived. The provisions of this
Agreement shall be interpreted in a reasonable manner to effect the purposes of
the parties and this Agreement.


 


26

















 


10.11      Entire Agreement. The terms of this Agreement
and the other writings referred to herein (including but not limited to all
schedules, exhibits, addenda, and related agreements) and delivered by the
parties hereto are intended by the parties to be the final expression of their
agreement with respect to the subject matter hereof and may not be contradicted
by evidence of any prior or contemporaneous agreement. The parties further
intend that this Agreement, together with the exhibits and schedules hereto
shall constitute the complete and exclusive statement of its terms and shall
supersede any prior agreement with respect to the subject matter hereof.


 


10.12      Counterparts. This Agreement may be executed
simultaneously in multiple counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument. Execution and delivery of this Agreement by exchange of facsimile
copies bearing the facsimile signature of a party hereto shall constitute a
valid and binding execution and delivery of this Agreement by such party. Such
facsimile copies shall constitute enforceable original documents.


 


10.13      Expenses. Each of the parties agrees to pay
its own expenses in connection with the transactions contemplated by this
Agreement, including without limitation legal, consulting, accounting and
investment banking fees, whether or not such transactions are consummated.


 


10.14      Consents. Whenever this Agreement requires or
permits consent by or on behalf of any party hereto, such consent shall be
given in writing.


 


10.15      Headings. The article and section headings
contained in this Agreement are for reference purposes only and will not affect
in any way the meaning or interpretation of this Agreement.


 


10.16      Waiver of Trial by Jury. EACH PARTY HEREBY
WAIVES, IRREVOCABLY AND UNCONDITIONALLY, TRIAL BY JURY IN ANY ACTION BROUGHT ON,
UNDER OR BY VIRTUE OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR ANY OF THE
DOCUMENTS EXECUTED IN CONNECTION HEREWITH, THE PROPERTY, OR ANY CLAIMS,
DEFENSES, RIGHTS OR SET-OFF OR OTHER ACTIONS PERTAINING HERETO OR TO ANY OF THE
FOREGOING.


 


10.17      Confidentiality.


 


(a)           Inland
shall use is best efforts, and cause its attorneys, representatives and
consultants (hereinafter collectively referred to as the “Inland Parties”)
to use their best efforts, to use all information, documents, surveys, leases
and other materials provided to them by the Ceruzzi hereunder (hereinafter
collectively referred to as the “Due Diligence Materials”) exclusively
for the purpose of evaluating the merits of a possible purchase of the Property
as contemplated by this Agreement and not for any other purpose whatsoever.
Inland further agrees, except as may be required by applicable law, that it
will not disclose any Due Diligence Materials or use them to the detriment of
any Ceruzzi.


 


27

















 


(b)           In
the event this Agreement is terminated prior to the consummation of the
purchase and sale contemplated hereunder, all Due Diligence Materials and all
copies thereof will be returned to Ceruzzi promptly. All analyses, compilation,
studies or other documents prepared by or for Inland and reflecting any Due
Diligence Material or otherwise based thereon will be (at Inland’s option)
either (i) destroyed or (ii) retained by Inland in accordance with the
confidentiality restrictions set forth in this Section 10.17.


 


(c)           Inland
acknowledges that the Due Diligence Materials are proprietary in nature and
that Ceruzzi would suffer significant and irreparable harm in the event of the
misuse or disclosure of the Due Diligence Materials. Without affecting any other
rights or remedies that either party may have, Inland acknowledges and agrees
that Ceruzzi shall be entitled to seek the remedies of injunction, specific
performance and other equitable relief for any breach or threatened breach of
the provisions of this Agreement relating to confidentiality by any Inland
Party.


 


(d)           Inland
hereby indemnifies and holds harmless Ceruzzi from and against all loss,
liability, claim, damage and expense arising out of any breach of this Section
10.17 by Inland or by any Inland Party.


 


(e)           Neither
party shall issue any press release or public statement with respect to the
transactions contemplated by this Agreement without the prior consent of the
other party, except to the extent such release or statement is required by law
or the regulations of the Securities and Exchange Commission or the New York
Stock Exchange, and (ii) after Closing, any such release or statement issued by
Ceruzzi or Inland shall be subject to the review and approval of the other
respective party (which approval shall not be unreasonably withheld). If
Ceruzzi or Inland is required by law to issue a release or statement, such
party shall, at least two (2) Business Days prior to the issuance of same,
deliver a copy of the proposed release to the other party for its review.


 


(f)            This
Section 10.17 shall survive Closing and any termination of this
Agreement.


 


10.18      Drafts not an Offer to Enter into a Legally
Binding Contract. The submission of a draft, or a marked up draft, of this
Agreement by one party to another is not intended by either party to be an
offer to enter into a legally binding contract with respect to the purchase and
sale of the Property. The parties shall be legally bound with respect to the
purchase and sale of the Property pursuant to the terms of this Agreement only
if and when the parties have been able to negotiate all of the terms and
provisions of this Agreement in a matter acceptable to each of the parties in
their respective sole discretion, including, without limitation, all of the Exhibits
hereto, and Ceruzzi and Inland have fully executed and delivered to each other
a counterpart of this Agreement, including, without limitation, all Exhibits
hereto.


 


10.19      Exculpation. This Agreement and all
documents, agreement, understandings, and arrangements relating to this
transaction have been executed by the undersigned in his capacity as Manager of
each seller limited liability company, and neither the Manager executing this
Agreement nor the members, managers or officers of the Ceruzzi shall be bound
or have any personal liability hereunder. Neither Ceruzzi, on 


 


28

















 


the one hand, nor Inland,
on the other hand, will seek recourse or commence any action against the
officer of the other executing this Agreement or any of the members, managers
or officers of the other, or any of their personal assets, for the performance
or payment of any obligation hereunder or thereunder. The foregoing shall also
apply to any future documents, agreement, understandings, arrangements and
transactions between or among the parties.


 


10.20      Intentionally Deleted.


 


10.21      Business Day. As used herein, the term
Business day means any day other than a Saturday, Sunday and any other day
which is a legal holiday in the State of Connecticut on which offices of the
State of Connecticut are routinely scheduled to be closed.


 


IN
WITNESS WHEREOF, the parties hereto have set executed or
caused their duly authorized representatives to execute this Agreement of
Contribution as of the day and year first written above.


 


3-SIGNATURE
PAGES FOLLOW


 


 


29

















 


	
   

  	
  CERUZZI:

  
	
   

  	
  CE
  CUMBERLAND 2001 LLC

  
	
   

  	
  By: CE
  Investment Associates 2001, LLC,

  
	
   

  	
  Its:
  Managing Member

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  As
  Its:

  	
   

  	
   

  
					



 


	
   

  	
  MALDEN
  CE 2001 LLC

  
	
   

  	
  By: CE
  Investment Associates 2001, LLC,

  
	
   

  	
  Its:  Managing Member

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  As
  Its:

  	
   

  	
   

  
					



 


	
   

  	
  SWAMPSCOTT
  CE 2001 LLC

  
	
   

  	
  By: CE
  Investment Associates 2001, LLC,

  
	
   

  	
  Its:  Managing Member

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  As
  Its:

  	
   

  	
   

  
					



 


	
   

  	
  CE
  SOUTHINGTON 2001 LLC

  
	
   

  	
  By: CE
  Investment Associates 2001, LLC,

  
	
   

  	
  Its:  Managing Member

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  As
  Its:

  	
   

  	
   

  
						



 


30

















 


	
   

  	
  FRAMINGHAM
  CE 2001 LLC

  
	
   

  	
  By: CE
  Investment Associates 2001, LLC,

  
	
   

  	
  Its:  Managing Member

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  As
  Its:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CE
  BRISTOL 2001 LLC

  
	
   

  	
  By: CE
  Investment Associates 2001, LLC,

  
	
   

  	
  Its:  Managing Member

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  As
  Its:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CE
  SICKLERVILLE 2001 LLC

  
	
   

  	
  By: CE
  Investment Associates 2001, LLC,

  
	
   

  	
  Its:  Managing Member

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  As
  Its:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CE
  GREENVILLE 2001 LLC

  
	
   

  	
  By: CE
  Investment Associates 2001, LLC,

  
	
   

  	
  Its:  Managing Member

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  As
  Its:

  	
   

  	
   

  
						



 


31

















 


	
   

  	
  INLAND:

  
	
   

  	
   

  
	
   

  	
  INLAND
  REAL ESTATE ACQUISITIONS, INC.,

  
	
   

  	
  an
  Illinois corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  G.
  Joseph Cosenza,

  
	
   

  	
  President

  



 


 


The undersigned hereby
joins in this Agreement solely in its capacity as Escrow Agent and solely to
evidence its agreement to be bound by the terms of Sections 1.2(b) and (d)
hereof and acknowledge receipt of the $1,000,000.00 Good Faith Deposit.


 


	
   

  	
  Chicago Title Insurance
  Company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  



 


32

















 


FIRST
AMENDMENT


 


CONTRACT


 


	
  Gene Filice

  	
   

  	
   

  



 


	
  From:

  	
  “Benvenuto, Charles
  <cbenvenuto@inlandgroup.com>

  
	
  To:

  	
  <gfilice@benvenutolaw.com>;
  “Cosenza, Joseph” <joe@inlandgroup.com>; “Anderson-Cox, Sharon”
  <cox@inlandgroup.com>

  
	
  Sent:

  	
  Friday, April 21, 2006
  5:10 PM

  
	
  Subject:

  	
  Fw: Ahold Portfolio
  Sale

  



 


	
  Sent from my BlackBerry
  Wireless Handheld

  
	
   

  
	
  Charles J. Benvenuto,
  Esq.

  
	
  2901 Butterfield Road

  
	
  Oak Brook, Illinois
  60523

  



 


Orignial Message


From: Art Hooper


To: Benvenuto, Charles


Sent: Fri Apr 21 15:49:48
2006


Subject: Ahold Portfolio
Sale


 


This to confirm the
conversation between Joe Cosenza and Lou Ceruzzi that the due diligence period
is extended through April 26, 2006.  It
is our understanding that Inland American will be using the same lenders, i.e.
Nomura and Principal, and that the form of SNDA will remain the same.  It is also our understanding that the
acquiring entities will be named Inland American Ceruzzi
       L.L.C.


 


Arthur W. Hooper, Jr.


 


Ceruzzi Holdings LLC


 


Executive Vice
President/General Counsel


 


1720 Post Road


 


Fairfield, CT 06824


 


203-256-4027


 


(F) 203-256-4001


 


hoopera@starwoodceruzzi.com


 


33

















 


Filice, Gene


 


	
  From:

  	
  Benvenuto, Charles

  
	
  Sent:

  	
  Friday, April 21, 2006
  3:53 PM

  
	
  To:

  	
  Filice, Gene;
  ‘cbenvenuto@benvenutolaw.com’

  
	
  Subject:

  	
  Fw: Ahold Portfolio
  Sale

  



 


FYI


 


Original Message


From: Art
Hooper [mailto:hoopera@starwoodceruzzi.com]


Sent: Friday,
April 21, 2006 3:50 PM


To: Benvenuto,
Charles


Subject: Ahold
Portfolio Sale


 


This to confirm the
conversation between Joe Cosenza and Lou Ceruzzi that the due diligence period
is extended through April 26, 2006.  It
is our understanding that Inland American will be using the same lenders, i.e.
Nomura and Principal, and that the form of SNDA will remain the same.  It is also our understanding that the
acquiring entities will be named Inland American Ceruzzi
     L.L.C.


 


Arthur W. Hooper, Jr.


Ceruzzi Holdings LLC


Executive Vice
President/General Counsel


1720 Post Road


Fairfield, CT 06824


203-256-4027


(F) 203-256-4001


hoopera@starwoodceruzzi.com


 


34

















 


SECOND AMENDMENT TO
AGREEMENT OF CONTRIBUTION


 


THIS SECOND
AMENDMENT TO AGREEMENT OF CONTRIBUTION (the “Second Amendment”) is made and
entered into as of the 26 day of April, 2006, by between CE Cumberland 2001 LLC, and Malden CE 2001 LLC, and Swampscott CE 2001 LLC, and CE Southington 2001 LLC, and Framingham CE 2001 LLC, and CE Bristol 2001 LLC, and CE Sicklerville 2001 LLC, and CE Greenville 2001 LLC, each a Delaware
limited liability company, having an address at c/o Ceruzzi Holdings, LLC, 1720
Post Road, Fairfield, CT 06824 (hereinafter collectively referred to as “Ceruzzi”), and Inland Real Estate Acquisitions, Inc., an
Illinois corporation having an address at 2901 Butterfield Road, Oak Brook,
Illinois 60523 (hereinafter referred to as “Inland”).


 


WITNESSETH:


 


WHEREAS, Seller
and Buyer entered into that certain Agreement of Contribution dated as of
February 24, 2006, as amended on April 21, 2006 (collectively, the
“Agreement”), for the sale and purchase of the Property described by the
Agreement.


 


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


 


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


 


1. Exhibit K of
the Agreement is amended by substituting “Inland American Real Estate Trust,
Inc.,” in the place of “Inland Western Retail Real Estate Trust, Inc.,” (
“IWEST”) in each instance IWEST appears.


 


2. Exhibit L,
Exhibit M, and Exhibit N of the Agreement are hereby amended by substituting
attached Exhibit L-1, Exhibit M-1, and Exhibit N-1, therefor.


 


3. Section
1.2(f)(ii)B of the Agreement is hereby amended by substituting the year “2010”
for the year “2008,” in line 3-thereof.


 


4. Section 2.1(b)
of the Agreement is hereby amended by substituting the date “May 10, 2006,” for
the date “April 26, 2006,” in line 9 thereof.


 

















 


5. References in
the Agreement to “Giant Eagle, Sicklerville, New Jersey,” shall be amended to
refer to “Stop & Shop, Sicklerville, New Jersey,” in each instance a
reference to Giant Eagle appears in the Agreement.


 


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


 


7. Except as
herein amended and as previously amended, the terms and conditions of the
Agreement remain unmodified and in full force and effect.


 


*     *     *     *     *


 


(Signatures on following 2-pages)


 


2

















 


	
   

  	
   

  	
   

  	
  CERUZZI:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  CE
  CUMBERLAND 2001 LLC

  
	
   

  	
   

  	
   

  	
  By:
  CE Investment Associates 2001, LLC,

  
	
   

  	
   

  	
   

  	
  Its:
  Managing Member

  
	
   

  	
   

  	
  



  	
   

  	
  By:

  	
  

  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  As
  Its:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  MALDEN CE 2001 LLC

  
	
   

  	
   

  	
   

  	
  By:
  CE Investment Associates 2001, LLC,

  
	
   

  	
   

  	
   

  	
  Its:
  Managing Member

  
	
   

  	
   

  	
  



  	
   

  	
  By:

  	
  

  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  As
  Its:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  SWAMPSCOTT
  CE 2001 LLC

  
	
   

  	
   

  	
   

  	
  By:
  CE Investment Associates 2001, LLC,

  
	
   

  	
   

  	
   

  	
  Its:
  Managing Member

  
	
   

  	
   

  	
  



  	
   

  	
  By:

  	
  

  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  As
  Its:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  CE SOUTHINGTON 2001 LLC

  
	
   

  	
   

  	
   

  	
    By:
  CE Investment Associates 2001, LLC,

  
	
   

  	
   

  	
   

  	
    Its:
  Managing Member

  
	
   

  	
   

  	
  



  	
   

  	
    By:

  	
  

  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
    Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
    As
  Its:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  FRAMINGHAM CE 2001 LLC

  
	
   

  	
   

  	
   

  	
    By:
  CE Investment Associates 2001, LLC,

  
	
   

  	
   

  	
   

  	
    Its:
  Managing Member

  
	
   

  	
   

  	
  



  	
   

  	
    By:

  	
  

  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
    Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
    As
  Its:

  	
   

  	
   

  
												



 


3

















 


	
   

  	
   

  	
   

  	
  CE BRISTOL 2001 LLC

  
	
   

  	
   

  	
   

  	
  By:
  CE Investment Associates 2001, LLC,

  
	
   

  	
   

  	
   

  	
  Its:
  Managing Member

  
	
   

  	
   

  	
  



  	
   

  	
  By:

  	
  

  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  As
  Its:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  CE SICKLERVILLE 2001 LLC

  
	
   

  	
   

  	
   

  	
  By:
  CE Investment Associates 2001, LLC,

  
	
   

  	
   

  	
   

  	
  Its:
  Managing Member

  
	
   

  	
   

  	
  



  	
   

  	
  By:

  	
  

  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  As
  Its:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  CE GREENVILLE 2001 LLC

  
	
   

  	
   

  	
   

  	
  By:
  CE Investment Associates 2001, LLC,

  
	
   

  	
   

  	
   

  	
  Its:
  Managing Member

  
	
   

  	
   

  	
  



  	
   

  	
  By:

  	
  

  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  As
  Its:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  INLAND:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  INLAND REAL ESTATE ACQUISITIONS, INC.,

  
	
   

  	
   

  	
   

  	
  an Illinois corporation

  
	
   

  	
   

  	
  



  	
   

  	
  By:

  	
  

  /s/ G. Joseph Cosenza

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  G. Joseph Cosenza,

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  President

  
													



 


The undersigned
hereby joins in this Second Amendment solely in its capacity as Escrow Agent
and solely to evidence its agreement to be bound by the terms of Sections
1.2(b) and (d) and 2.4 hereof and acknowledge receipt of the $1,000,000.00
Good Faith Deposit.


 


	
   

  	
   

  	
   

  	
  Chicago Title Insurance Company

  
	
   

  	
   

  	
  



  	
   

  	
  By:

  	
  

  /s/ Nancy R. Castro

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Nancy R. Castro

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  As
  Its:

  	
  Assistant
  Vice President

  	
   

  
								



 


4

















 


THIRD AMENDMENT TO


AGREEMENT
OF CONTRIBUTION


 


THIS
THIRD AMENDMENT TO AGREEMENT OF CONTRIBUTION (hereinafter
referred to as the “Amendment”),
dated as of the           
day of May, 2006, is entered into by and between CE
Cumberland 2001 LLC, and Malden CE 2001 LLC, and
Swampscott CE 2001 LLC, and CE Southington 2001 LLC, and Framingham
CE 2001 LLC, and CE Bristol 2001 LLC, and
CE Sicklerville 2001 LLC, and CE Greenville 2001 LLC, each a Delaware limited liability
company (hereinafter collectively referred to as “Ceruzzi”),
and Inland Real Estate Acquisitions, Inc., an
Illinois corporation (hereinafter referred to as “Inland”).


 


W I T N E
S S E T H:


 


WHEREAS, Ceruzzi
and Inland entered into that certain Agreement of Contribution dated as of the
24th day of February, 2006, as amended by letter agreement dated April 21,
2006, and by the Second Amendment to Agreement of Contribution dated April 26,
2006 (the “Agreement”), with regard to those
certain parcels of real property legally described in the Agreement; and


 


WHEREAS,
Ceruzzi and Inland have mutually agreed to amend certain provisions of the
Agreement.


 


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


 


1.             Section
3.1 of the Agreement is modified by replacing the third sentence thereof with
the following:  “The Closing shall take
place on June 1, 2006 (hereinafter referred to as the “Closing Date”).”


 


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


 


3.             The
remaining terms and conditions of the Agreement remain unmodified and in full
force and effect.


 


*              *              *              *              *


 


(Signatures
on following page)


 


1

















 


	
   

  	
  INLAND:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  INLAND
  REAL ESTATE ACQUISITIONS,

  INC., an Illinois corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
							



 


	
   

  	
  CERUZZI:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CE CUMBERLAND 2001 LLC

  
	
   

  	
  By: CE Investment
  Associates 2001, LLC,

  
	
   

  	
  Its:  Managing Member

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  As Its:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  MALDEN CE 2001 LLC

  
	
   

  	
  By: CE Investment
  Associates 2001, LLC,

  
	
   

  	
  Its:  Managing Member

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  As Its:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SWAMPSCOTT CE 2001 LLC

  
	
   

  	
  By: CE Investment
  Associates 2001, LLC,

  
	
   

  	
  Its:  Managing Member

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  As Its:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CE SOUTHINGTON 2001 LLC

  
	
   

  	
  By: CE Investment
  Associates 2001, LLC,

  
	
   

  	
  Its:  Managing Member

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  As Its:

  	
   

  	
   

  
							



 


2

















 


	
   

  	
  FRAMINGHAM CE 2001 LLC

  
	
   

  	
  By: CE Investment
  Associates 2001, LLC,

  
	
   

  	
  Its:  Managing Member

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  As Its:

  	
   

  	
   

  
						



 


	
   

  	
  CE BRISTOL 2001 LLC

  
	
   

  	
  By: CE Investment
  Associates 2001, LLC,

  
	
   

  	
  Its:  Managing Member

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  As Its:

  	
   

  	
   

  
						



 


	
   

  	
  CE SICKLERVILLE 2001
  LLC

  
	
   

  	
  By: CE Investment
  Associates 2001, LLC,

  
	
   

  	
  Its:  Managing Member

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  As Its:

  	
   

  	
   

  
						



 


	
   

  	
  CE GREENVILLE 2001 LLC

  
	
   

  	
  By: CE Investment
  Associates 2001, LLC,

  
	
   

  	
  Its:  Managing Member

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  As Its:

  	
   

  	
   

  
						



 


3

















 


FOURTH AMENDMENT TO AGREEMENT OF
CONTRIBUTION


 


THIS FOURTH
AMENDMENT TO AGREEMENT OF CONTRIBUTION (the “Fourth Amendment”) is made and
entered into as of the 1st day of June, 2006, by between CE  Cumberland
2001 LLC, and Malden CE 2001 LLC, and
Swampscott CE 2001 LLC, and CE Southington 2001 LLC, and Framingham CE 2001 LLC, and CE Bristol 2001 LLC, and CE Sicklerville 2001 LLC, and CE Greenville 2001 LLC, each a Delaware
limited liability company, having an address at c/o Ceruzzi Holdings, LLC, 1720
Post Road, Fairfield, CT 06824 (hereinafter collectively referred to as “Ceruzzi”), and Inland Real Estate Acquisitions, Inc., an
Illinois corporation having an address at 2901 Butterfield Road, Oak Brook,
Illinois 60523 (hereinafter referred to as “Inland”).


 


WITNESSETH:


 


WHEREAS, Seller
and Buyer entered into that certain Agreement of Contribution dated as of
February 24, 2006, as amended (collectively, the “Agreement”), for the sale and
purchase of the Property described by the Agreement.


 


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


 


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


 


1. Section
1.2(f)(ii)C of the Agreement is hereby amended by substituting the term
“seventh (7th)” for the term “fifth (5th),” in line
2-thereof.


 


2. Section 3.1 of
the Agreement is hereby amended by substituting the date “June 8th,
2006” for the date “June 1, 2006.”


 


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


 

















 


4. Except as
herein amended and as previously amended, the terms and conditions of the
Agreement remain unmodified and in full force and effect.


 


*              *              *              *              *


 


(Signatures on following 2-pages)


 


2

















 


	
   

  	
  CERUZZI:

  
	
   

  	
   

  
	
   

  	
  CE CUMBERLAND 2001 LLC

  
	
   

  	
  By: 

  	
  CE Investment Associates 2001, LLC,

  
	
   

  	
  Its:  Managing Member

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
  Name:

  	
  [ILLEGIBLE]

  	
   

  
	
   

  	
  As Its:

  	
  Exec. Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
  MALDEN CE 2001 LLC

  
	
   

  	
  By: CE Investments Associates 2001, LLC, 

  
	
   

  	
  Its: Managing Member

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  As
  Its:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SWAMPSCOTT CE 2001 LLC

  
	
   

  	
  By: CE Investment Associates 2001, LLC,

  
	
   

  	
  Its: Managing Member

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  As
  Its:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CE SOUTHINGTON 2001 LLC

  
	
   

  	
    By: CE Investment Associates 2001, LLC,

  
	
   

  	
    Its: Managing Member

  
	
   

  	
   

  
	
   

  	
    By: 

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
    Name:

  	
   

  	
   

  
	
   

  	
    As
  Its:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FRAMINGHAM CE 2001 LLC

  
	
   

  	
    By: CE Investment Associates 2001, LLC,

  
	
   

  	
     Its: Managing Member

  
	
   

  	
   

  
	
   

  	
    By: 

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
    Name:

  	
   

  	
   

  
	
   

  	
    As
  Its:

  	
   

  	
   

  
							



 


3

















 


	
   

  	
  CE BRISTOL 2001 LLC

  
	
   

  	
  By: CE Investment Associates 2001, LLC,

  
	
   

  	
  Its: Managing Member

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  As
  Its:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CE SICKLERVILLE 2001 LLC

  
	
   

  	
  By: CE Investment Associates 2001, LLC,

  
	
   

  	
  Its: Managing Member

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  As
  Its:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   CE GREENVILLE 2001 LLC

  
	
   

  	
  By: CE Investment Associates 2001, LLC,

  
	
   

  	
   Its: Managing Member

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  As
  Its:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  INLAND:

  
	
   

  	
   

  
	
   

  	
  INLAND REAL ESTATE ACQUISITIONS, INC.,

  
	
   

  	
  an Illinois corporation

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ G. Joseph Cosenza

  	
   

  
	
   

  	
   

  	
  G. Joseph Cosenza,

  
	
   

  	
   

  	
  President

  
							



 


The undersigned
hereby joins in this Fourth Amendment solely in its capacity as Escrow Agent
and solely to evidence its agreement to be bound by the terms of Sections 1.2(b) and
(d) and 2.4 hereof and acknowledge receipt of the $1,000,000.00 Good Faith
Deposit.


 


	
   

  	
  Chicago
  Title Insurance Company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Nancy R. Castro

  	
   

  
	
   

  	
  Name:

  	
  Nancy R. Castro

  	
   

  
	
   

  	
  As Its:

  	
  Assistant Vice
  President

  	
   

  
					



 


4