PURCHASE AND SALE AGREEMENT

 

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                                                                   Exhibit 10.21

 

                           PURCHASE AND SALE AGREEMENT

 

Date:           November 20, 2003

 

Seller:         DESCO ASSOCIATES, a Connecticut limited partnership

                c/o John D. Scarritt

               P.O. Box 215

               225 Grove Street

               Bristol, Connecticut 06011-0215

               Telephone: 860-582-0244

               Telecopier: 702-543-5422

               Email:desco@snet.net

 

Buyer:          INLAND REAL ESTATE ACQUISITIONS, INC.

               2901 Butterfield Road

               Oak Brook, Illinois 60523

               Telephone: 630-218-4948

               Telecopier: 630-218-4935

               Email: jcosenza@inlandgroup.com

 

ESCROW AGENT

AND TITLE

INSURER:        CHICAGO TITLE INSURANCE COMPANY

               171 North Clark Street

               Chicago, Illinois 60601

               Attention: Nancy Castro

               Telephone:   312-223-3909

               Telecopier: 312-223-2108

               Escrow No.:___________________(the "ESCROW")

 

REAL

PROPERTY:       The Real Property is composed of two parcels (each, a "Parcel",

               and together, the "Parcels"), as follows:

 

               FIRST PARCEL: That certain real property located at 1045 West

               Main Street, New Britain, Connecticut, consisting of

               approximately 7.60 acres, together with (a) a building containing

               approximately 65,658 square feet and all other improvements

                located thereon (including all replacements or additions thereto

               between the date hereof and the Closing Date), (b) all systems,

               facilities, fixtures, machinery, equipment and conduits that

               provide fire protection, security, heat, exhaust, ventilation,

               air conditioning, electrical power, light, plumbing,

               refrigeration, gas, sewer and water thereto (including all

               replacements or additions thereto between the date hereof and the

               Closing Date), and (c) all easements, rights, tenements,

               hereditaments, privileges, and appurtenances, if any, held by

               Seller, which real property is more particularly described on

                Exhibit "A-1" attached hereto and by this reference included

               herein (the "NEW BRITAIN REAL PROPERTY"), and subject to that

               certain Lease Agreement, dated February 23, 1995, as amended (the

               "NEW BRITAIN LEASE"), between Seller as Landlord and SHAW'S

               SUPERMARKETS, INC. as tenant, a true, correct and complete copy

               of which (including any and all amendments

 

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               thereto and guaranties thereof) is attached hereto as Exhibit B

               and made a part hereof.

 

               SECOND PARCEL: That certain real property located at 325 Oakland

               Street, Bristol, Connecticut, consisting of approximately 5.35

               acres, together with (a) a building containing approximately

               54,661 square feet and all other improvements thereon (including

               all replacements or additions thereto between the date hereof and

               the Closing Date), (b) all systems, facilities, fixtures,

               machinery, equipment and conduits that provide fire protection,

               security, heat, exhaust, ventilation, air conditioning,

               electrical power, light, plumbing, refrigeration, gas, sewer and

               water thereto (including all replacements or additions thereto

               between the date hereof and the Closing Date), and (c) all

               easements, rights, tenements, hereditaments, privileges, and

               appurtenances, if any, held by Seller, which real property is

               more particularly described on Exhibit "A-2" attached hereto and

               by this reference included herein (the "BRISTOL REAL PROPERTY"),

               and subject to that certain Lease Agreement, dated August 1,

               1994, as amended (the "BRISTOL LEASE"), between Seller as

               Landlord and SHAW'S SUPERMARKETS, INC. as tenant ("TENANT"), a

               true, correct and complete copy of which (including all

               amendments thereto and guaranties thereof) is attached hereto as

               Exhibit C and made a part hereof. Said property shall be conveyed

               together with Seller's rights and obligations (but only those

               obligations required to be first performed after the Closing Date

               (as defined in Section 2.1 below)), as tenant, under a Lease and

               Agreement dated August 15, 1994 between Seller and Stephen Hutt

               (the "Hutt Lease") a true, correct and complete copy of which

               (including all amendments thereto and guaranties thereof) is

               attached hereto as Exhibit D and made a part hereof. The New

               Britain Lease and, the Bristol Lease hereinafter shall sometimes

                hereinafter be collectively referred to as the "Leases".

 

     FOR A VALUABLE CONSIDERATION, the receipt and sufficiency of which is

hereby acknowledged, the parties hereto agree as follows:

 

1.    AGREEMENT.

 

     Subject to the terms and conditions of this Purchase and Sale Agreement

(together with all Exhibits and Schedules attached hereto, the "AGREEMENT"),

Seller agrees to sell and Buyer agrees to purchase the Property (as defined in

Schedule 1 attached hereto and made a part hereof).

 

2.    OPENING AND CLOSING; CONDITIONS TO CLOSING.

 

     2.1     As used herein, the term "OPENING OF ESCROW" shall mean the day on

which Escrow Agent receives a copy of this Agreement executed by both Buyer and

Seller together with the funds described in Subparagraph 3.1(a) below. Subject

to satisfaction of the terms, provisions and conditions contained in this

Agreement, consummation of the sale of the Property provided for herein (the

"CLOSING") shall take place five (5) days after the earlier of (i) Buyer's

waiver and/or satisfaction of the Inspections (hereinbelow defined), or (ii)

expiration of the Inspection Period (as defined below) without cancellation of

this Agreement by Buyer (the "CLOSING DATE") through the Escrow (as defined in

Section 4 below) at the offices of Escrow Agent identified above.

 

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     2.2     CONDITIONS TO CLOSING.

 

            (a)    The obligation of Buyer to close the transaction contemplated

by this Agreement is subject to and conditioned upon, at Buyer's sole option,

the satisfaction of all of the following:

 

                  (i)     Seller's delivery to Buyer, not less than three (3)

days prior to the expiration of the Inspection Period, an original estoppel

certificate, in form and substance acceptable to Buyer, executed by each and all

tenants under the Leases (and, as applicable, all guarantors of the Leases) and

raising no matters that, in Buyer's sole and absolute discretion, could

adversely affect the ownership, operation, management, repair, use or

maintenance of the Property or any portion thereof, and otherwise confirming the

terms and provisions of the Leases. Seller shall use its best efforts to cause

the tenants to execute the form of estoppel certificate attached hereto as

Exhibit E. Such tenant estoppel certificates cannot be dated more than thirty

(30) days prior to the Closing Date;

 

                  (ii)    Seller's delivery to Buyer, not less than three(3) days

prior to the expiration of the Inspection Period, original estoppel certificates

executed by all parties whose property is currently subject to any and all

operating agreements, reciprocal easement agreements and/or similar agreements

(collectively, the "REAs") encumbering title to the Property, pursuant to which

estoppel certificates such parties shall confirm (a) the terms of the REAs, (b)

that there exist no defaults under the REAs and no event or circumstance has

occurred that, with the giving of notice or passage of time, could result in a

default under the REAs, (c) any and all assessments and other payments required

to be made on or before the Closing Date have been so paid, and (d) such other

matters as may be required by Buyer prior to the expiration of the Inspection

Period. The form and substance of such estoppel certificates shall be agreed to

by Seller and Buyer prior to the expiration of the Inspection Period. Such

estoppel certificates shall be certified to Buyer and its nominee, assignee

and/or the entities designated by Buyer as taking title to the Property and

Buyer's lender (and their respective successors and assigns), if any. Such REA

estoppel certificates cannot be dated more than thirty (30) days prior to the

Closing Date;

 

                  (iii)   Delivery, at Closing, of sole and exclusive possession

of the Property (including, with respect to the Second Parcel, the ground

lessee's interest in, to and under the Hutt Lease)) to Buyer, subject only to

the Leases and Permitted Title Exceptions (as defined in Schedule 1 attached

hereto) applicable to each Parcel of Real Property;

 

                  (iv)    All representations and warranties of Seller contained

in this Agreement being true and correct at and as of the Closing Date;

 

                  (v)     The issuance by the Title Insurer (as defined in

Schedule 1 hereto) of the Title Policies (as defined in Section 6 below)

applicable to each Parcel (including the removal of, or issuance of a title

endorsement over, any Title Survey Objection provided in Section 6 below);

 

                  (vi)    The due and timely performance, in all material

respects, by the Seller of all obligations and covenants of Seller to have been

performed on or prior to the Closing Date (including, without limitation,

delivery by Seller of all documents required under Section 5 below to be

delivered at Closing);

 

                  (vii)   That all rent and other amounts due and payable under

the Leases and the Hutt Lease as of the Closing Date have been paid, and the

tenants under of the Leases, and all guarantors under any guaranties of the

Leases, and the landlord/ground lessor under the

 

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Hutt Lease, shall not be in default thereof and shall not have filed for

protection under any state or federal bankruptcy or similar code, law or

statute;

 

                  (viii) Seller's delivery to Buyer, not less than three (3)

days prior to the expiration of the Inspection Period, an original estoppel

certificate, in the form attached hereto as Exhibit "O", executed by the

landlord/ground lessor under the Hutt Lease and raising no matters that, in

Buyer's sole and absolute discretion, could adversely affect the ownership,

operation, repair, use or maintenance of the Property or any portion thereof,

and otherwise confirming the terms and provisions of the Hutt Lease;

 

                  (ix)    All of the leasable area of all buildings located upon

the Real Property shall be subject to the Leases, with the tenants thereunder

being in occupancy of their respective spaces and paying full rent thereunder

(including any and all common area maintenance, tax and insurance charges); and

 

                  (x)     All Licenses identified and disclosed by Buyer to

Seller prior to the expiration of the Inspection Period for the continued use

and occupancy of the Real Property by the tenants under the Leases shall be in

full force and effect.

 

            If any one or more of the conditions precedent set forth in this

Section 2.2(a) shall not be satisfied by the Closing Date, then Buyer, at its

option and by notice to Seller, may elect at any time thereafter to either

terminate this Agreement, without waiver or release of any of its remedies for

default by Seller under this Agreement, or to seek specific performance of this

Agreement. If this Agreement is terminated pursuant to this Section 2.2(a), then

the Deposit and any interest thereon shall forthwith be returned to Buyer, and

all other funds and documents theretofore delivered hereunder or deposited in

escrow by either party shall be forthwith returned to such party.

 

            (b)    The obligation of Seller to close the transaction contemplated

hereby is subject, at Seller's option, to all obligations of Buyer which were to

have been performed on or before the Closing Date having been timely and duly

performed in all material respects. If any condition precedent to closing of

Seller as set forth in this Section 2.2(b) has not been fulfilled and satisfied

on or before the Closing Date, then Seller may elect, by notice to Buyer, at any

time thereafter to terminate this Agreement, and if such termination is due to

Buyer's default under this Agreement, then Seller shall have the rights granted

to it pursuant to Section 14.1 below, and all other funds and documents

theretofore delivered hereunder or deposited in escrow by either party shall be

forthwith returned to such party.

 

3.    PURCHASE PRICE AND PAYMENT TERMS.

 

     3.1     PRICE. The total purchase price ("PRICE") to be paid for the

Property shall be TWENTY FIVE MILLION THREE HUNDRED SIXTY EIGHT THOUSAND AND

NO/100 ($25,368,000.00), and shall be payable as follows:

 

            (a)    Within one (1) business day after the day that Buyer receives

an original of this Agreement fully executed by Buyer and Seller, THREE HUNDRED

THOUSAND AND NO/100 ($300,000.00), as an earnest money deposit (the "DEPOSIT"),

shall be deposited by Buyer in cash or corporate check or by cashier's check or

wire transfer of cash credit with Escrow Agent. Upon the earlier of waiver of

all Inspections by Buyer or expiration of the Inspection Period and provided

this Agreement has not been cancelled or terminated, the Deposit plus all

 

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interest earned thereon shall be non-refundable, except as otherwise provided in

Section 3.3 below. The Deposit shall be applicable to the Price at Closing, and

shall be paid to Seller at Closing subject to the terms of this Agreement.

 

            (b)    The remainder of the Price, subject to adjustment as may be

expressly contemplated herein, shall be paid by Buyer to Seller in cash or by

wire transfer of cash credit through Escrow at Closing.

 

     3.2     INVESTMENT OF DEPOSITED FUNDS. All funds deposited by Buyer with

Escrow Agent pursuant hereto shall be invested by Escrow Agent in such interest

bearing investments in federally insured institutions as may be directed from

time to time by Buyer and subject to immediate withdrawal. All earnings on such

invested funds shall belong to the party receiving said funds pursuant to the

terms of this Agreement (provided that if the sale of the Property is

consummated, Buyer shall receive payment of any accrued interest) and shall be

paid at such time as said party receives said funds. If Closing shall not occur,

then interest, if any, earned on the Deposit shall be paid to the party entitled

to receive the Deposit pursuant to the terms of this Agreement.

 

     3.3     DISPOSITION OF DEPOSIT. The Deposit shall be refundable to Buyer (i)

in the event Buyer terminates this Agreement in accordance with Section 8

hereinbelow on or prior to expiration of the Inspection Period, or (ii) after

expiration of the Inspection Period, to the extent provided in Sections 2.2(a),

6, 14.2 and 15 of this Agreement.

 

4.    ESCROW INSTRUCTIONS.

 

     Upon full execution of this Agreement, the parties, through their

respective attorneys, shall establish a modified joint order escrow with the

Escrow Agent through which the Deposit will be made, held and disbursed. Buyer

shall cause the Deposit to be deposited in said escrow. The escrow instructions

shall be in the form attached hereto as Exhibit N; provided, however, that such

escrow shall provide that Buyer shall have the unilateral right to direct and

require disbursement of the Deposit at any time prior to the expiration of the

Inspection Period, subject, however, to the condition that Buyer shall have

properly terminated this Agreement and provided notice thereof to the Escrow

Agent. Said escrow shall be auxiliary to this Agreement, and this Agreement

shall not be merged into or in any manner superseded by said escrow.

Additionally, the Closing of the transaction contemplated by this Agreement

shall occur pursuant to a customary deed and money escrow (the "ESCROW")

agreement to be agreed upon by Seller, Buyer and Title Insurer. All escrow costs

and fees shall be equally divided between Buyer and Seller.

 

5.    CLOSING DOCUMENTS.

 

     On or before the Closing Date, Seller and Buyer shall execute where

indicated (or obtain the execution of), have acknowledged as appropriate, and

deliver to Escrow Agent the following documents:

 

            (a)    Seller shall execute and deliver Special Warranty Deeds in the

form attached as Exhibit "F", pursuant to which each Parcel of the Real Property

shall be conveyed to Buyer or Buyer's assignee(s) or nominee(s) (the "DEED");

 

            (b)    Seller shall execute and deliver a Non-Foreign Affidavit in

the form attached as Exhibit "G";

 

            (c)    Seller and Buyer or Buyer's assignee(s) or nominee(s) shall

execute and deliver Assignments and Assumptions of Leases in form and content

attached hereto as Exhibit

 

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"H" and by this reference included herein, a fully executed original of the

Leases and all amendments thereto and guaranties thereof;

 

             (d)    Seller and Buyer or Buyer's assignee(s) or nominee(s) shall

execute and deliver Assignments and Assumptions of Licenses, Permits,

Warranties, and Intangible Personal Property in the form attached hereto as

Exhibit I;

 

            (e)    Seller and Buyer or Buyer's assignee(s) or nominee(s) shall

execute and deliver an Assignment and Assumption of the Hutt Lease in a form to

be negotiated by Seller and Buyer (which form shall be (a) similar to the

Assignment and Assumption of Leases delivered pursuant to subsection (c) above,

and (b) in recordable form);

 

            (f)    Seller shall deliver originals (or, if originals are not

available, copies certified by Seller as being true and complete copies of the

originals) of the Hutt Lease;

 

            (g)    Seller shall deliver executed, original letters to all tenants

of the Property (pursuant to the notice provisions of the applicable Lease)

advising that the Property (and the landlord's interest under the applicable

Lease) has been sold and transferred to Buyer or Buyer's nominee or assignee, as

the case may be, and directing payment of rental in accordance with the

directions of Buyer and changing the landlord's address for notice purposes

under the Leases and related guaranties;

 

            (h)    Seller shall deliver an executed, original letter to the

landlord/ground lessor (pursuant to the notice provisions of the Hutt Lease)

under the Hutt Lease advising that the Second Parcel (and the tenant's/ground

lessee's interest under the Hutt Lease) has been sold and transferred to Buyer

or Buyer's nominee or assignee, as the case may be, and changing the

tenant's/ground lessee's address for notice purposes under the Hutt Lease;

 

            (i)    Seller shall execute and deliver two (2) original Seller's

certificates dated as of the Closing Date confirming that all of the

representations and warranties of Seller contained in this Agreement are true

and correct as of the Closing Date;

 

            (j)    Seller shall and execute and deliver an updated Rent Roll for

each Parcel certified by Seller as being true, correct and complete as of the

Closing Date;

 

            (k)    Seller shall execute and deliver an ALTA Statement/Owner's

Affidavit, GAP Indemnity and other affidavits in form and substance required by

the Title Insurer;

 

            (l)    Seller shall deliver an original, unconditional and

irrevocable Waiver of Lien executed by the Broker;

 

            (m)    Seller shall deliver all books, operating manuals, tenant

files and correspondence and other materials relating to the Property requested

by Buyer. Buyer acknowledges that Seller shall not be obligated to deliver any

information relating to any properties of Seller other than the Property. Also,

if Buyer shall terminate this Agreement prior to the expiration of the

Inspection Period, then Buyer shall return to Seller all such information

delivered to Buyer;

 

            (n)    Seller shall deliver certificates or declarations complying

with the provisions of state, county and local law applicable to the

determination of documentary and/or transfer taxes/stamps;

 

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            (o)    Seller and Buyer shall execute and deliver the Preliminary

Closing Statement (as defined in Section 13.4 below);

 

            (p)    To the extent not delivered to Buyer prior to the Closing

Date, Seller shall deliver originals of all as-built plans and specifications

(to the extent in Seller's possession or control), surveys, site plans,

engineering plans and studies, utility plans and development plans related to

the Property;

 

            (q)    Fully executed original First Amendment to Lease and Agreement

(and Memorandum of First Amendment to Lease and Agreement) in substantially the

form attached hereto as Exhibit R, including subordination by all lenders, if

any, of their respective rights to such amendment;

 

            (r)    Seller and Buyer shall execute (as necessary) and deliver such

other documents as Buyer, Seller or Escrow Agent may reasonably request in

connection with this transaction, and in form and content reasonably acceptable

to Buyer and Seller.

 

6.    TITLE INSURANCE.

 

     No later than ten (10) days following the date of this Agreement, Seller

shall deliver, or cause to be delivered, to Buyer the Title Commitments (as

defined in Schedule 1 hereto), together with legible copies of any and all title

exception documents referenced therein, and the Surveys (as defined in Schedule

1 hereto). The Title Commitment shall be ordered through the Chicago office of

the Title Insurer, provided that the law firm of Murphy, Laudati & Kiel, 270

Farmington Avenue, Suite 360, Farmington, CT, shall be used as the local title

agent with respect to the preparation and issuance of the Title Commitment and

final Title Policy. Buyer shall be responsible for the costs and expenses of the

Title Commitment, title exam fees and Surveys. Within ten (10) days after

Buyer's receipt of the last of the Title Commitments, legible copies of all

title exception documents and the Surveys, Buyer may deliver to Seller a notice

(the "TITLE AND SURVEY NOTICE") identifying any matters contained in or

disclosed by the Title Commitments and/or the Surveys that are not acceptable to

Buyer in its sole and absolute discretion (each, a "TITLE/SURVEY OBJECTION", and

collectively, the "TITLE/SURVEY OBJECTIONS"). Buyer's failure to deliver the

Title and Survey Notice as aforesaid shall be deemed Buyer's approval and

acceptance of the Title Commitments and the Surveys, and all matters shown and

referenced thereon and therein shall be deemed Permitted Title Exceptions.

Additionally, Buyer's failure to object to any matters disclosed by the Title

Commitments and/or the Surveys in a Title and Survey Notice shall be deemed

Buyer's acceptance of such matters, and such matters shall be deemed Permitted

Title Exceptions. If Buyer shall deliver the Title and Survey Notice to Seller

as aforesaid, Seller shall, within five (5) days after receipt of the same,

notify Buyer in writing whether Seller intends to either (a) cause any

Title/Survey Objection to be removed, (b) have the Title Insurer issue a title

endorsement insuring against damage and loss caused by any Title/Survey

Objection (which endorsement shall be subject to the review and reasonable

approval of Buyer), or (c) take no further action regarding such Title/Survey

Objection in which event, subject to the immediately following sentence, such

Title/Survey Objection shall become a Permitted Title Exception. Notwithstanding

the foregoing, Seller shall, at its expense, remove (or cause to be removed) or

cause the Title Company to insure over any Title/Survey Objection appearing on

the Title Commitments that is any of the following: (1) judgments against

Seller, and/or (2) mortgages or monetary liens, defects, obligations or

exceptions of a definite and ascertainable amount that can be satisfied solely

by the payment of money (items (1) and (2) above to be hereinafter referred to

collectively as "MONETARY EXCEPTIONS"). If Seller elects, or is deemed to have

elected, item (c) above with respect to any or all of the Title/Survey

Objections, then Buyer shall have the right, by delivering notice to Seller

 

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within three (3) business days after the expiration of the aforementioned five

(5) day period to either (i) terminate this Agreement in which event the Deposit

shall be immediately returned to Buyer and thereupon neither Seller nor Buyer

shall have any further rights, duties or obligations under this Agreement, or

(ii) waive its objection and accept title to the applicable Parcel subject to

such Title/Survey Objection, in which event this Agreement shall remain in full

force and effect. Seller's failure to notify Buyer within the aforementioned

five (5) day period of which foregoing course of action Seller elects to take

with respect to a Title/Survey Objection shall be deemed Seller's election of

item (c) above. With respect to any Title/Survey Objection that Seller has

elected or is deemed to have elected not to take any further action, Buyer's

failure to terminate this Agreement on or before the expiration of the

aforementioned three (3) business day period as aforesaid shall be deemed

Buyer's waiver of its objection as provided in (ii) above. If the Title

Commitments disclose judgments, bankruptcies or other matters against other

persons having names the same as or similar to that of Seller, Seller, on the

Title Insurer's request, shall deliver to the Title Insurer affidavits or other

evidence reasonably acceptable to the Title Insurer showing and/or confirming

that such judgments, bankruptcies or other matters are not against Seller, or

any affiliates.

 

     If Seller has elected or, with respect to Monetary Defects, is required, to

cure any Title/Survey Objection as provided above (whether by removal of, or

obtaining title insurance over, the same), but failed to cure any such matters

prior to the Closing Date, then Buyer may elect to either (i) terminate this

Agreement in which event the Deposit shall be immediately returned to Buyer and

thereupon neither Seller nor Buyer shall have any further rights, duties or

obligations under this Agreement, (ii) waive its objection and accept the

Property subject to such Title/Survey Objection, in which event this Agreement

shall remain in full force and effect; provided, however, that if the

Title/Survey Objection is a Monetary Exception, then Buyer shall have the right

to deduct from the Purchase Price the amount of such Monetary Exception, and any

amount so deducted from the Purchase Price shall be paid to the appropriate

party in exchange for the removal of such Monetary Exception; or (iii) sue

Seller for specific performance.

 

     At Closing, Escrow Agent shall deliver to Buyer an ALTA 1992 owner's (and

with respect to the Second Parcel, an owner's fee and leasehold) title insurance

policies for each of the Parcels (the "TITLE POLICIES") issued by the Title

Insurer, or the unconditional commitment of Title Insurer to issue such policies

(which commitment shall be deemed made upon the recordation of the Deeds by

Escrow Agent as agent for Title Insurer), in the amount of the Price allocated

to each Parcel as set forth on Exhibit L attached hereto, insuring fee simple

(and, with respect to the Second Parcel, fee and leasehold) title to the

applicable Parcel of the Real Property (including any easements and rights

appurtenant to such Parcel) in Buyer (or Buyer's nominee or assignee, as the

case may be), subject only to the Permitted Title Exceptions applicable to the

particular Parcel, and containing the Special Endorsements (as defined in

Schedule 1 hereto) and any other title endorsements providing insurance coverage

over any Title/Survey Objection. Buyer shall be responsible for payment of the

premium of the Title Policies and any Special Endorsements. Seller shall be

responsible for payment of the premium/cost of removing any Title/Survey

Objection and/or any endorsement providing title insurance over any Title/Survey

Objection.

 

7.    INSPECTION OF REAL PROPERTY.

 

     Buyer's obligation to close the transaction contemplated by this Agreement

hereby is subject, at Buyer's sole option, to Buyer's review and approval of (i)

any and all financial data and information relating to the Property, (ii) the

physical, structural and environmental condition of the Property, (iii) the

Leases and the Hutt Lease, (iv) any other documents and materials delivered or

made available to Buyer, and (v) any and all other aspects and elements of the

 

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Property (collectively, "INSPECTIONS"). Buyer, its counsel, accountants, agents,

lenders and prospective lenders, appraisers, employees, managers, advisers,

directors, officers, consultants and other representatives shall be entitled to

enter the Real Property at reasonable times after the Opening of Escrow until

the earlier to occur of (a) the Closing Date and (b) the termination of this

Agreement pursuant to the terms hereof, and upon reasonable prior verbal or

written notice to Seller to conduct such inspections, tests, analyses,

examinations, studies and appraisals of the Real Property, all at Buyer's sole

expense, that Buyer shall require to determine if the Real Property is suitable

for Buyer's contemplated purposes. Seller shall make all books, records and

files relating to the Property (including, without limitation, all tenant files

and correspondence) available to Buyer for its review. Buyer shall have the

right to interview any and all tenants of the Property. Buyer shall maintain a

casualty and liability insurance policy with a combined single limit of

$1,000,000 naming Seller as an additional insured and issued by a reputable

national insurance company. In connection with the Inspections, Buyer shall,

prior to any entry onto the Real Property, provide Seller with reasonable

evidence of the existence of such insurance coverage such as a certificate as to

such insurance coverage. Buyer shall promptly restore the Real Property after

any such entry to substantially the condition that existed immediately prior to

such entry. In connection with such entry by Buyer upon the Real Property, Buyer

shall use commercially reasonable efforts to minimize any disturbance of

business operations conducted upon the Real Property by Tenant, and Buyer shall

indemnify, defend, and hold Seller harmless from and against any and all claims,

costs, liability, and/or expense arising from Buyer's entry onto the Real

Property. Such indemnity shall survive the cancellation, termination, or Closing

of this Agreement.

 

8.    INSPECTION PERIOD.

 

             If, by no later than thirty (30) days after the date of this

Agreement (the "INSPECTION PERIOD"), Buyer determines, in its sole and absolute

discretion and for any or no reason whatsoever, that the Property is not

suitable for Buyer's contemplated purposes, then the Buyer shall be entitled to

terminate this Agreement by written notice delivered to Seller and Escrow Agent

on or before the expiration of the Inspection Period. If Buyer fails to notify

Seller or Escrow Agent in writing on or prior to the expiration of the

Inspection Period that Buyer has approved or disapproved the Real Property then

Buyer shall be deemed to have elected to waive its right to terminate this

Agreement pursuant to this Section 8, and be deemed to have elected to continue

this Agreement to Closing pursuant and subject to the terms hereof. If Buyer

elects to terminate this Agreement as provided in this Section 8, then the

Deposit shall be immediately returned to Buyer, and neither Seller nor Buyer

shall have any further rights or obligations under this Agreement.

 

9.    PROPERTY CONDITION, LIMITED REPRESENTATIONS, SELLER'S LIMITED RIGHT TO

CANCEL.

 

     9.1     PROPERTY CONDITION. Buyer agrees that the Real Property shall be

purchased in an "as-is", "where is", "as shown" and "with all faults" condition,

with no representation or warranty whatsoever whether express or implied, and/or

of any type or nature being made by Seller other than as expressly and

specifically set forth in writing in this Agreement. Buyer acknowledges and

agrees that it is purchasing the Real Property solely upon the basis of its

investigation described above and not on the basis of any representation,

express or implied, written or oral, made by Seller and/or as applicable, by any

of Seller's agents, partners, coventurers, or employees, except as expressly and

specifically set forth in writing in this Agreement. Without limiting the

generality of the foregoing, except as otherwise expressly provided herein in

writing, Seller makes no warranty or representation whatsoever as to the

 

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sufficiency of the Real Property and/or any improvements thereon for Buyer's

purposes, the square footage and/or acreage contained within the Real Property,

the condition, size or usefulness of any improvements on the Real Property, the

status of title to the Real Property and/or any environmental matters with

respect to the Real Property.

 

     9.2     REPRESENTATIONS OF SELLER.   Seller hereby represents and warrants to

Buyer that:

 

            (a)    Seller is, as applicable, duly organized, validly existing and

in good standing under the laws of the state of its organization and has the

legal right, power and authority to enter into this Agreement and to perform all

of its obligations hereunder, and this Agreement constitutes the legal, valid

and binding obligation of Seller, enforceable in accordance with its terms. The

individuals signing this Agreement and all other documents executed or to be

executed pursuant hereto on behalf of Seller are and shall be duly authorized to

sign the same on Seller's behalf and to bind Seller thereto.

 

            (b)    The execution by Seller and delivery of this Agreement, and

the performance by Seller of its obligations hereunder have been duly authorized

by all necessary action by and on behalf of Seller and will not, as applicable,

conflict with or result in a breach of, any of the terms, covenants and

provisions of the organizational documents of Seller as any of the same may have

been amended. The transaction contemplated by this Agreement will not result in

a breach of or constitute a default or permit acceleration of maturity under any

indenture, mortgage, deed of trust, loan agreement or other agreement to which

Seller or the Property is subject or by which Seller or the Property is bound.

Neither the entering into of this Agreement nor the conveyance of the Property

by Seller will constitute or result in a violation or breach by Seller of any

judgment, order, writ, injunction or decree issued against or imposed upon it,

or will result in a violation by Seller of any applicable law, order, rule or

regulation of any governmental authority.

 

            (c)    Seller is not a party to any pending or, to the best of

Seller's knowledge, threatened legal or administrative action arising from or

relating to the Property or to the past or present operations and activities

upon or relating to the Property, including, without limitation, any which (a)

would prevent the conveyance of the Property by Seller, or (b) would become a

cloud on the title to the Property or any portion thereof or which questions the

validity or enforceability of this Agreement or any action taken by Seller

pursuant to this Agreement. No approval, consent, order or authorization of, or

designation, registration or filing (other than for recording purposes) with any

governmental authority is required in connection with the due and valid

execution and delivery of this Agreement by Seller or Seller's performance under

this Agreement. No bankruptcy, insolvency, rearrangement or similar actions or

proceedings, whether voluntary or involuntary, are pending or threatened against

Seller, nor has Seller any intention of filing or commencing any such action or

proceeding, and Seller has not made a general assignment for the benefit of

creditors.

 

            (d)    To the best of Seller's knowledge, and except for the New

Britain Lease, the Bristol Lease and the Hutt Lease, there are no leases,

options, contracts or rights of first refusal, recorded or unrecorded, affecting

the Real Property and to which Seller is a party, except as may be shown in the

Title Commitment. Except for Seller and the tenants under the Leases, there are

no persons in possession or occupancy of the Real Property or any part thereof,

nor are there any persons who have any possessory rights in respect to the Real

Property or any part thereof. No person or party has or has been granted any

right or option to purchase or acquire the Property or any portion thereof.

 

             (e)    Seller has delivered to Buyer a true, correct and complete

copy of the Hutt Lease. The Hutt Lease has not been amended or modified in any

manner, and there exist no

 

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agreements (other than the Hutt Lease) between (i) the lessor under the Hutt

Lease (the "Ground Lessor") and Seller, and/or (ii) any lender/mortgagee under a

loan secured by the fee interest in the property encumbered by the Hutt Lease

(the "Ground Lender") and Seller, in either case relating to the leasing of the

premises demised by the Hutt Lease; (b) the Hutt Lease is in good standing and

in full force and effect, and no rights or interests of the tenant/lessee

thereunder have been diminished, waived or released; (c) neither the Ground

Lessor nor Seller, as ground lessee, is in default under the Hutt Lease, and

Seller does not know of any event or occurrence that, with the giving of notice

or passage of time, or both, that could constitute a default under the Hutt

Lease; (d) there is no commission, leasing fee or other compensation now or

hereafter due or payable, or that could become due and payable, to any person,

firm, corporation or other part with respect to the Hutt Lease; (f) Seller owns

and controls all of the tenant's/ground lessee's interest in the Hutt Lease, and

Seller has not sold, transferred, conveyed, assigned, mortgaged, pledged,

hypothecated or otherwise encumbered the Hutt Lease or tenant's/ground lessee's

interest thereunder; (g) except as set forth on the Title Commitment relating to

the Second Parcel, the interest of the tenant/ground lessee under the Hutt Lease

is free and clear of all encumbrances and other matters; (h) except for Seller

and the owner of the ground lease parcel, there are no persons in possession or

occupancy of the premises demised under the Hutt Lease or any part thereof, nor

are there any persons who have any possessory rights in respect to the premises

demised under the Hutt Lease or any part thereof; (i) no person or party has or

has been granted any right or option to purchase or acquire the tenant's/ground

lessee's interest or any portion thereof; and (j) Seller has paid rent payable

under the Hutt Lease through February 29, 2004.

 

            (f)    Attached hereto as Exhibit J is a current Rent Roll for the

Property. The Leases have not been amended or modified in any manner, and there

exist no other agreements between the landlord under the Leases and the tenants

under the Leases. During the terms of the Leases, the tenants thereunder and

guarantors thereof are responsible for paying any and all operating expenses

(including, but not limited to, all common area maintenance expenses, real

estate taxes, insurance premiums, utilities and reciprocal easement agreement

charges) relating to the Property either on a pro rata basis or as a direct

obligation of such tenant under its Lease. The tenants under the Leases have

accepted and are occupying their respective leased premises. The Leases are in

good standing and in full force and effect, and no rights or interests of the

landlord thereunder have been diminished, waived or released. All of landlord's

obligations under the Leases, including, without limitation, the obligation to

finish or refinish space to the specifications provided in the Leases and/or to

provide or fund any tenant improvement allowance or other concession, have been

satisfied. Neither the landlord nor the tenant under the Leases is in default

under the Leases. The tenants under the Leases are not entitled to any rent

abatement, free rent period or other future tenant improvement allowance or

other concession. Seller has no actual knowledge (without investigation) of any

circumstances affecting the financial condition of the tenants of the Property,

which would prevent such tenants from fulfilling and complying with the

obligations under the Leases. There are no commissions, leasing fees or other

compensation now or hereafter due or payable, or that could become due and

payable, to any person, firm, corporation or other part with respect to any of

the Leases, including, without limitation, the exercise by any tenant under any

Lease of any right of first offer or refusal, expansion right or renewal right.

If and as applicable, the reconciliation of percentage rent, common area

maintenance expenses, taxes, insurance and other charges passed through to

tenants under the Leases (collectively, "PASS-THROUGH ITEMS") for calendar year

2002 and all prior calendar years have been completed and agreed to by the

landlord and the tenants under the Leases, and all amounts due and owing to

either the landlord or the tenants thereunder have been paid. There exist no

disputes between the landlord or the tenants under the Leases with respect to

Pass-Through Items for calendar year 2002 and/or any prior calendar year. No

security deposits have been paid or posted by the tenants under the Leases. No

rent or other

 

                                       11

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amounts payable under the Leases have been paid to landlord more than one (1)

month in advance.

 

            (g)    Except as set forth on Exhibit "P" attached hereto, there

exist no Licenses (as such term is defined in Schedule 1 hereto) relating to the

Property and/or binding upon the Property owner. To Seller's knowledge: (i) that

certain Reciprocal Easement Agreement dated as of August 14, 1994 and recorded

with the Bristol Land Records in Volume 1136, Page 794 (the "REA") has not been

modified or amended, and is in good standing and full force and effect; and (ii)

no parties to the REA (or properties benefited and/or burdened by the REA) are

in default under the REA beyond any applicable cure period, and no event has

occurred which, with the giving of notice or passage of time, or both, could

result in such default. There is no dispute or litigation between or among any

of the parties to the REA or properties benefited and/or burdened by the REA.

 

            (h)    There exist no verbal or written Contracts (as such term is

defined in Schedule 1 attached hereto) relating to or binding upon the Property

or Seller, except (a) as may be disclosed in the Title Commitments, and/or (b)

verbal property service contracts, all of which service contracts shall be

terminated as of the Closing Date. Seller shall provide Buyer with the names and

contract information of all parties providing services to and for the benefit of

the Property, and shall reasonably cooperate with Buyer in respect of the

continuation of such services from and after Closing.

 

            (i)    Seller owns no Tangible Personal Property (as defined in

Schedule 1 hereto).

 

            (j)    Any and all warranties and guaranties issued by any

contractors, subcontracrors, manufacturers and/or installers of furniture,

fixtures and equipment in, at and upon the Property (i.e., roof warranties,

structural warranties, HVAC warranties, plumbing warranties, electrical

warranties, etc.) are held by the tenants, in the tenant's names, under the

Leases, and no such warranties and/or guaranties have been issued in Seller's

name.

 

            (k)    Seller owns fee simple title to the Real Property free and

clear of liens, encumbrances, options and restrictions of every kind and

description, except as may be shown on the Title Commitment.

 

            (l)    Seller owns all of the landlord's interest in the Leases and

Intangible Personal Property. The interest of Seller in the Leases and

Intangible Personal Property is free and clear of all encumbrances and has not

been assigned to any other person, except as reflected in the Title Commitments.

 

            (m)    To the best of Seller's knowledge, the improvements on the

Real Property have been constructed and are presently used and operated in

compliance with all Legal Requirements (as defined in Schedule 1 hereto) and all

covenants, easements and restrictions affecting the Property, and all

obligations of Seller or the Property with regard to the Legal Requirements,

covenants, easements and restrictions have been and are being performed in a

proper and timely manner. To the best of Seller's knowledge, the interior and

exterior structures of the Property are in a good state of repair, free of

leaks, structural defects and mold.

 

            (n)    Seller has not received any notice of any violations of Legal

Requirements in respect to the Property which have not been entirely corrected.

 

            (o)    There is no existing, pending or, to the best of Seller's

knowledge, contemplated, threatened or anticipated (i) condemnation of any part

of the Real Property, (ii) widening, change of grade or limitation on use of

streets abutting the Real Property,

 

                                       12

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(iii) special tax or assessment to be levied against the Real Property, (iv)

change in the zoning classification of the Real Property, or (v) change in the

tax assessment of the Real Property.

 

            (p)    To the best of Seller's knowledge, prior to and during

Seller's ownership of the Property, (i) no Hazardous Materials, as defined

below, have been located on the Property or have been released into the

environment, or discharged, placed or disposed of at, on or under the Property;

(ii) no underground storage tanks have been located on the Property; (iii) the

Property has never been used as a dump for waste material; and (iv) the Property

and its prior uses comply with and at all times have complied with, any

applicable governmental law, regulation or requirement relating to environmental

and occupational health and safety matters and Hazardous Materials.

 

            The term "Hazardous Materials" shall mean any substance, material,

waste, gas or particulate matter which is regulated by any governmental

authority, including, but not limited to, any material or substance which is (i)

defined as a "hazardous waste," "hazardous material," "hazardous substance,"

"extremely hazardous waste," or "restricted hazardous waste" under any Legal

Requirements, (ii) petroleum, (iii) asbestos, (iv) polychlorinated biphenyl, (v)

radioactive material, (vi) designated as a "hazardous substance" pursuant to

Section 311 of the Clean Water Act, 33 U.S.C. Section 1251 ET SEQ. (33 U.S.C.

Section 1317), (vii) defined as a "hazardous waste" pursuant to Section 1004 of

the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 ET SEQ. (42

U.S.C. Section 6903), or (viii) defined as a "hazardous substance" pursuant to

Section 101 of the Comprehensive Environmental Response, Compensation, and

Liability Act, 42 U.S.C. Section 9601 ET SEQ. (42 U.S.C. Section 9601).

 

            (q)    Seller is not a "foreign person" within the meaning of the

Internal Revenue Code of 1986, as amended (the "CODE"), the transaction

contemplated hereby does not constitute a disposition of a U.S. real property

interest by a foreign person, and at closing no person, including without

limitation, Buyer and its counsel and the Title Company, will be subject to the

withholding requirements of Section 1445 of the Code.

 

            (r)    There exist no employment, employee benefit or collective

bargaining contracts affecting the Property, including, without limitation,

pension or profit sharing plans, agreements or trusts and medical, dental,

hospital, life or other insurance plans (except as provided in Section 15.02 of

the Hutt Lease).

 

            (s)    Neither Seller nor the Property has any employees. There are

no property management, leasing, brokerage or similar agreements or contracts

relating to the Property, and no persons or parties are entitled to receive any

commissions, fees or other compensation in any way relating to the management

and/or leasing of the Property or any portion thereof.

 

            (t)    Seller does not possess, hold or own any keys, keycard

passes, security cards, security codes, entrance cards and/or other devices or

mechanisms used for entry to any entrances, doors or other portions of, in or at

any of the Property.

 

     9.3     COVENANTS OF SELLER.

 

            (a)    Seller represents and warrants that the tenants under the

Leases are required, pursuant to the terms of the Leases, to maintain their

store located upon the Property. Seller covenants that it shall not interfere

with, frustrate or otherwise affect the ability of the tenants to continue

maintaining their stores in the same manner as heretofore maintained and

otherwise in compliance with the terms and provisions of the Leases. Seller, at

Seller's sole cost and expense, shall maintain or cause to be maintained the

Property (other than the tenant's store thereon) free from waste and neglect and

in as good order and repair as of the date hereof and

 

                                        13

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shall keep and perform or cause to be performed all obligations of the lessor

under the Leases and all obligations of the Property owner or its agents

required under any Legal Requirements, to and including the Closing Date or

termination of this Agreement, whichever shall occur. Subject to closing and

Section 15 below, on the Closing Date, Seller shall tender possession of the

Property to Buyer in the same condition the Property was in when last inspected

by Buyer, except for ordinary wear and tear, casualty loss and condemnation.

 

            (b)    From the date of this Agreement to the Closing Date, Seller

shall maintain or cause to be maintained in full force and effect liability,

casualty and other insurance upon and in respect to the Property against such

hazards and in such amounts as are currently maintained.

 

            (c)    From the date of this Agreement to the Closing Date or earlier

termination of this Agreement, Seller shall operate and manage the Property in

the same manner as it has been operated and managed heretofore, provided that

during said period, without the prior written consent of Buyer, Seller shall not

do, suffer or permit, or agree to do, any of the following:

 

                  (i)     enter into any transaction in respect to or affecting

the Property out of the ordinary course of business;

 

                  (ii)    sell, encumber, create or grant any interest in the

Property or any part thereof in any form or manner whatsoever, or otherwise

perform or permit any act which will diminish or otherwise affect Buyer's

interest under this Agreement or in or to the Property or which will prevent

Seller's full performance of its obligations hereunder; or

 

                  (iii)   enter into, amend, waive or diminish any rights under,

or terminate or extend the Hutt Lease, any Contract or any Lease relating to the

Property, or take any action that could affect the title to the Property.

 

            (d)    Seller shall deliver to Buyer not later than three (3) days

following the date of this Agreement true, correct and complete copies of the

materials and information set forth on the Due Diligence Checklist attached

hereto as Exhibit K and made a part hereof.

 

            (e)    From the date of this Agreement to the Closing Date, Buyer

may, but shall have no obligation to, order environmental reports (i.e., a Phase

I, and, if appropriate a Phase II) to be conducted by an environmental

engineering firm selected by Buyer (the "ENVIRONMENTAL STUDY") and MAI

appraisals of the Property prepared by a firm selected by Buyer (the

"APPRAISAL"). Buyer shall pay all costs and expenses relating to such new

Environmental Study and Appraisal. Seller shall cooperate with Buyer and its

agents in arranging or conducting the Environmental Study and the Appraisal.

Additionally, Seller shall, within ten (10) days after the date of this

Agreement and at its sole cost and expense, deliver or cause to be delivered, to

the extent in Seller's possession or readily available to Seller, to Buyer true,

correct and complete copies of any and all environmental reports, studies, tests

and assessments (Phase I, Phase II or otherwise), and any and all appraisals of

the Property prepared by an MAI appraiser (collectively, the "EXISTING PROPERTY

REPORTS").

 

             (f)    Seller shall notify Buyer promptly if Seller becomes aware of

any transaction or occurrence prior to the Closing Date which would make any of

the representations or warranties of Seller contained in this Agreement not true

in any material respect.

 

            (g)    Seller shall promptly deliver to Buyer any and all notices

and/or other written communications delivered to or received from (for the past

eight (8) years and for any

 

                                       14

<Page>

 

period from and after the date of this Agreement) (i) any tenant of the

Property, (ii) the landlord/ground lessor under the Hutt Lease, and/or (iii) any

governmental authority. Seller shall deliver to Buyer prompt notice of the

conduct or occurrence of any inspections of the Property by any governmental

authority.

 

10.   REPRESENTATIONS OF BUYER.

 

     Buyer hereby represents and warrants to Seller that:

 

            (a)    Buyer is duly organized, validly existing and in good standing

under the laws of the state of its organization and has the legal right, power

and authority to enter into this Agreement and to perform all of its obligations

hereunder, and this Agreement constitutes the legal, valid and binding

obligation of Buyer, enforceable in accordance with its terms.

 

            (b)    The execution by Buyer and delivery of this Agreement, and the

performance by Buyer of its obligations hereunder have been duly authorized by

all necessary action by and on behalf of Buyer and will not conflict with or

result in a breach of, any of the terms, covenants and provisions of the

organizational documents of Buyer as any of the same may have been amended.

 

            (c)    The representations and warranties set forth in Sections 10.2

(a) and (b) hereinabove shall be true and correct on and as of the Closing Date

with the same force and effect as if made at that time.

 

11.   COMMISSIONS.

 

     If and only if this Agreement actually closes in accordance with the terms

hereof, then Seller shall be solely responsible to pay all real estate brokerage

commissions to Holliday Fenoglio Fowler, L.P. ("HFF"), as Seller's broker

("SELLER'S BROKER"). Buyer represents that no person or entity has served as

Buyer's broker. Each party hereto represents and warrants to the other that it

has not employed any other broker or finder in connection with the transaction

contemplated by this Agreement. Each party shall indemnify, defend and hold the

other harmless from all liability and expense including, without limitation,

reasonable attorneys' fees and costs and expert witness fees and costs arising

from any claim by any broker, agent or finder (other than Broker) for

commissions, finder's fees or similar charges, because of any act of such party.

Seller shall indemnify, defend and hold Buyer harmless from all liability and

expense including, without limitation, reasonable attorney's fees and costs and

expert witness fees and costs arising from any claim by Seller's Broker.

Notwithstanding any provision herein to the contrary, the obligations of the

parties pursuant to this Section shall survive the Closing and any termination

hereof. Such commissions due from Seller to Seller's broker shall be paid to

Seller's broker pursuant to a separate agreement between Seller and such broker.

 

12.   RISK OF LOSS.

 

     Subject to the terms hereof regarding Buyer's entry upon the Real Property,

and subject to Section 15 hereinbelow, risk of loss of the Real Property until

the Closing shall be borne by Seller.

 

13.   PRORATIONS; CLOSING COSTS.

 

     13.1    PRORATIONS.

 

                                       15

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            (a)    The items set forth below in this subsection (a) shall be

prorated and apportioned, without duplication, as of 11:59 p.m. of the day

immediately preceding the Closing Date, with Seller bearing all expenses with

respect to the Property and receiving the benefit of all income with respect to

the Property through and including the day immediately preceding the Closing

Date, and Buyer receiving the benefit of all income from the Property and being

charged with all expenses with respect to the Property on and after the Closing

Date. If, at Closing, Buyer is entitled to a net credit as a consequence of

prorations or adjustments pursuant to this subsection (a), then the net credit

shall be offset against the Purchase Price. The items to be prorated and, in

certain instances, the method for determining such prorations are as follows:

 

                  (i)     All rent and other amounts payable under the Leases

(whether or not paid as of the Closing Date) for the calendar month in which the

Closing occurs shall be prorated, on a per diem basis, as of 11:59 p.m. of the

day immediately preceding the Closing Date, with Buyer receiving a credit in an

amount equal to the product of (1) the per diem amount of such rent and other

charges, and (2) the number of days from and including the Closing Date until

the last day of the month in which Closing occurs. Rents and other sums in

arrears as of the Closing Date will be paid to Seller by Buyer if, as and when

collected by Buyer; provided, however, that Buyer shall have no affirmative

obligation to collect such delinquent rent or other sums in arrears for the

benefit of Seller but shall reasonably cooperate with Seller (at Seller's cost

and expense) in its efforts to collect such sums, provided, further, however,

that Buyer shall have no obligation to sue or file suit against (or participate

in any suit against) any tenant for delinquent rent. The first monies received

after Closing by Buyer from each tenant of the Property who is in arrears at

Closing as to rent or other charges shall be applied (1) first to current rent

and other charges and obligations of such tenant arising from and after the

Closing Date, and (2) then to rent or other charges which were in arrears on the

Closing Date. Buyer shall promptly remit to Seller, and Seller shall promptly

remit to Buyer, all sums received after Closing from tenants to which the other

party is entitled pursuant to the provisions hereof. Seller shall have no right

to seek eviction of any tenant or the termination of any tenant's Lease on

account of such delinquency.

 

                  (ii)    Percentage rent, if any, payable under each Lease for

the percentage rent year, or other applicable time period, in which the Closing

occurs, shall be prorated as of 11:59 p.m. of the day immediately preceding the

Closing Date on a per diem basis as and when such percentage rent is collected.

 

                  (iii)   Certain of the Leases may contain tenant obligations to

pay for taxes, common area expenses, operating expenses and/or additional

charges of any other nature relating to the Property and/or certain portions

thereof (collectively, the "CAM CHARGES"). Tenants that are obligated to

reimburse for CAM Charges pay one-twelfth (1/12) of an annually budgeted amount

per month (each a "MONTHLY CAM REIMBURSEMENT PAYMENT") during each calendar

year. In the month in which the Closing occurs, any of the Monthly CAM

Reimbursement Payments payable to Seller from such tenants for CAM Charges

(whether or not paid as of the Closing Date) shall be pro-rated between Seller

and Buyer, on a per diem basis, with Seller providing a credit to Buyer at

Closing for its share of those Monthly CAM Reimbursement Payments based on the

number of days from and including the Closing Date to the end of the month.

 

                  (iv)    With respect to the period from January 1, 2003 to the

Closing Date, Seller and Buyer shall work together in good faith after Closing

to compare on a tenant-by-tenant basis the actual CAM Charges incurred by Seller

from such tenant and the actual Monthly CAM Reimbursement Payments received by

Seller up to the Closing Date. By no later than sixty (60) days after the

Closing Date, Seller and Buyer shall mutually agree upon and sign a schedule

that sets forth on a tenant-by-tenant basis a reconciliation based upon those

actual

 

                                       16

<Page>

 

expenses incurred by Seller and reimbursements received by Seller (each a

"RECONCILIATION"). If a Reconciliation with respect to a tenant shows that

Seller has received more Monthly CAM Reimbursement Payments than CAM Charges

have been incurred over such time period, then Seller shall pay to Buyer any

such overage within ten (10) days after Seller and Buyer have signed the

Reconciliation schedule, at which time Buyer shall then be responsible for

reimbursing any tenant for any overages for their Monthly CAM Reimbursement

Payments incurred for the entire 2003 calendar year, if any. In the event that

the Reconciliation schedule shows any cases where Seller has incurred a greater

amount in CAM Charges than Monthly CAM Reimbursement Payments received for any

tenant, then Buyer agrees to promptly pay to Seller such overpayment within ten

(10) days after Buyer shall receive such amount from the applicable tenants.

Seller and Buyer agree to cooperate with each other in connection with the

reconciliation of percentage rent, CAM Charges and other charges passed through

to tenants under the Leases for calendar year 2003.

 

                  (v)     Real estate taxes (including personal property taxes on

personal property included in this sale), stormwater charges, water charges and

sewer rents (including, without limitation, any and all real estate taxes

(including personal property taxes on personal property included in this sale),

stormwater charges, water charges and sewer rents attributable to the premises

demised by the Hutt Lease and payable by the tenant/ground lessee), if any,

shall be apportioned on a per diem basis, with Buyer receiving a credit at

Closing for any such amounts levied or assessed during, or attributable to, any

period of time prior to the Closing Date that have not been paid as of the

Closing Date, and Seller receiving a credit for any such amounts attributable to

any period of time from and after the Closing Date that have been paid as of the

Closing Date. Any apportionment of real estate taxes and/or stormwater charges

to be made with respect to a tax or other applicable year for which either the

tax rate or assessed valuation or both or stormwater rate have not yet been

fixed, shall be estimated based upon one hundred ten percent (110%) of the most

recent tax bill or stormwater rate relating to the Property. Any unfixed gas,

electrical, water meter charges, if any, sewer rent and other utility charges in

connection therewith, shall be estimated on the basis of the last meter reading

to occur on or as close in time as possible to the Closing Date. Seller agrees

to use its best efforts to have all such utilities meters read as of the Closing

Date and the utilities transferred to Buyer.

 

                  (vi)    Notwithstanding anything contained in subsections

(iii), (iv) and/or (v) above, any and all charges, costs, expenses, taxes or

other amounts that are either (1) payable by a tenant directly (and not to the

landlord under its Lease as a so-called "pass-through" item or as so-called

"additional rent"), or (2) related to any repair, maintenance, replacement or

service obligations that are the sole responsibility of a tenant under its Lease

(and the landlord under such Lease has no obligation to perform any such

obligations), shall not be apportioned or prorated hereunder, and Buyer shall

accept title to the Property subject to any of such charges unpaid and Buyer

shall look solely to the tenant responsible therefor for the payment of the

same.

 

                  (vii)   All special assessments applicable to the Real Property

for any period of time prior to the Closing Date shall be prorated at Closing

such that Buyer receives a credit against the Purchase Price in the amount of

such special assessment applicable to the period of time prior to the Closing

Date.

 

                  (viii) All alterations, installations, decorations and other

tenant improvement work required to be performed prior to the Closing Date by

the landlord under the Leases and all tenant improvement allowances and other

concessions which the landlord under the Leases is obligated to pay to tenants

of the Property prior to the Closing Date, including, without limitation, the

allowances, matters and costs described on Exhibit M attached hereto, have been,

or by the Closing Date will be, completed and are, or by the Closing Date will

be,

 

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paid in full by Seller. At Closing, Seller shall give Buyer a credit against the

Purchase Price for the aggregate amount of all alterations, installations,

decorations and other tenant improvement work required to be performed by the

landlord under the Leases after the Closing Date and all tenant improvement

allowances and other concessions which the landlord under the Leases is

obligated to pay to tenants after the Closing Date, including, without

limitation, those costs described on Exhibit M attached hereto.

 

                  (ix)    Other items customarily prorated.

 

     (b)     The Deposit shall be paid to Seller and Buyer shall receive a credit

against the Price in the amount of the Deposit.

 

     13.2    CLOSING COSTS. Seller shall pay for all of the following costs and

expenses relating to the transaction contemplated by this Agreement: (i)

one-half of the closing escrow fee of the Escrow Agent (provided that Seller's

total liability for such closing escrow fee shall not exceed $3,000); (ii) costs

to remove any and all Title/Survey Objections and all premiums for any title

endorsements providing insurance over any Title/Survey Objection, (iii) all

state, county and local transfer taxes/transfer stamps; and (iv) any other

charges customarily attributable to sellers of property in the Bristol and New

Britain, Connecticut area. Buyer shall pay (a) all lender's title insurance and

money lender's escrow charges incurred in connection with any mortgage loans

obtained by Buyer, (b) one-half of the closing escrow fee of the Escrow Agent

(and any amounts in excess of Seller's $3,000 escrow fee cap), (c) the costs of

the Title Commitments, title examination and Surveys, (d) the premiums for the

Title Policies and Special Endorsements, (e) the costs to record the Deeds, and

(f) all other charges customarily attributable to Buyers of property in the

Bristol and New Britain, Connecticut area. Each party shall bear its own legal

expenses subject, however, to the terms of Section 14.3 hereinbelow.

 

     13.3    POSSESSION. Subject to the rights of the tenants under the Leases,

the Permitted Title Exceptions and the CCRs, Seller shall deliver exclusive

possession of the Real Property (including the ground lessee's right, title and

interest in, to and under the Hutt Lease) to Buyer (or Buyer's assignee or

nominee, as the case may be) upon the Closing Date.

 

     13.4    CLOSING STATEMENT. Seller and Buyer shall jointly prepare a

preliminary closing statement (the "PRELIMINARY CLOSING STATEMENT") on the basis

of the Leases, real estate taxes and other sources of income and expense for the

month in which the Closing occurs (including CAM Charges), and shall deliver

such Preliminary Closing Statement to the Escrow Agent on or prior to the

Closing Date. The Preliminary Closing Statement and the apportionments and/or

prorations reflected therein shall be based upon actual figures to the extent

available. If any of the apportionments and/or prorations cannot be calculated

accurately based on actual figures on the Closing Date, then (other than with

respect to determination of real estate taxes that shall be computed as set

forth in subsection (a) (v) above) the same shall be calculated based on

Seller's and Buyer's good faith estimates thereof, subject to reconciliation as

hereinafter provided. If there is an error on the Preliminary Closing Statement

discovered within one (1) year after the Closing Date, or, if after the actual

figures are available as to any items that were estimated on the Preliminary

Closing Statement (including, without limitation, real estate taxes that were

computed in accordance with subsection (a)(v) above), it is determined that any

actual proration or apportionment varies from the amount thereof reflected on

the Preliminary Closing Statement, then the proration or apportionment shall be

adjusted based on the actual figures within sixty (60) days after discovery of

such error or determination of such actual figures, as the case may be. Either

party owing the other party a sum of money based on such subsequent proration(s)

shall promptly pay said sum to the other party. The provisions of Section 13.1

above shall survive Closing and delivery of the Deed.

 

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     14.     REMEDIES.

 

            14.1   DEFAULT BY BUYER. If Buyer fails to perform when due any

obligation required by this Agreement and/or defaults under this Agreement,

Seller's sole and exclusive remedy under this Agreement, at law and in equity

shall be to cancel this Agreement and the Escrow, such cancellation to be

effective immediately upon Seller giving written notice of cancellation to Buyer

and Escrow Agent. Upon such cancellation, Escrow Agent shall deliver to Seller

the Deposit as liquidated damages, as consideration for acceptance of this

Agreement and for taking the Real Property off the market, and not as a penalty,

the parties agreeing and hereby stipulating that the exact amount of damages

would be extremely difficult to ascertain and that the Deposit constitutes a

reasonable and fair approximation of such damages. Nothing herein shall limit,

in any way, Seller's rights and remedies under Section 7 hereinabove regarding

Buyer's inspection of the Real Property, or the indemnity provisions relating to

Brokers set forth under Section 11 above.

 

             14.2   DEFAULT BY SELLER. If Seller fails to perform when due any

obligation required by this Agreement and/or defaults under this Agreement, or

if Seller shall violate any covenant or breach any representation or warranty

contained in this Agreement, then Buyer shall have the right to either (i)

terminate this Agreement and the Escrow, such termination to be effective

immediately upon Buyer giving written notice thereof to Escrow Agent, and upon

such termination and without further instructions from Seller, Escrow Agent

shall return the Deposit immediately to Buyer, or (ii) sue Seller for specific

performance of the Agreement. Notwithstanding the foregoing, in the event that

Seller's default, failure to comply or breach shall be due to or on account of

any intentional act of Seller or any of its employees, agents, representatives,

shareholders, members or partners, or if Seller makes any intentional

misrepresentation under this Agreement, then, in addition to the other rights

and remedies available to Buyer (including the right to pursue specific

performance which shall not be limited or restricted by this grammatical

sentence), Seller shall, immediately upon demand, reimburse Buyer for any and

all out-of-pocket costs and expenses (not to exceed Twenty-Five Thousand and

No/100 Dollars ($25,000.00)) suffered or incurred by Buyer in connection with

the transaction contemplated under this Agreement, including without limitation,

all costs and expenses incurred by Buyer in connection with its due diligence

review of the Property. Nothing herein shall limit Buyer's rights with respect

to the indemnity provisions relating to brokers set forth under Section 11

above.

 

            14.3   ATTORNEYS FEES AND COSTS. If either party hereto institutes an

action to enforce this Agreement the prevailing party shall be entitled to

receive its reasonable attorneys' fees and costs and expert witness fees and

costs from the non-prevailing party, the amount to be set by a court and not a

jury.

 

            14.4   WAIVER. Excuse or waiver of the performance by the other party

of any obligation under this Agreement shall only be effective if evidenced by a

written statement signed by the party so excusing. No delay in exercising any

right or remedy shall constitute a waiver thereof, and no waiver by Seller or

Buyer of the breach of any covenant of this Agreement shall be construed as a

waiver of any preceding or succeeding breach of the same or any other covenant

or condition of this Agreement.

 

            14.5   NOTICE. No event or action shall be deemed a default hereunder

until ten (10) days after receipt by the other party of written notice of such

alleged default from the party alleging such default and failure to cure such

alleged default within such time period.

 

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15.   CONDEMNATION AND/OR CASUALTY.

 

            15.1   NOTICE. Seller shall notify Buyer and Escrow Agent in the

event Seller becomes aware of condemnation, taking or other similar proceeding,

or notice of condemnation taking or other similar proceeding, of any portion of

the Real Property (individually, a "TAKING" and collectively, "Takings") or any

damage, destruction or casualty (including without limitation, vandalism or

fire) of or to any portion of the Real Property (individually, a "CASUALTY" and

collectively, "Casualties") prior to Closing.

 

            15.2   ELECTION. In the event that either (a) any Takings affecting

any portion of the Real Property (or any right of access to the Real Property),

or (b) any Casualties to the Real Property or any portion thereof prior to

Closing and such Takings and/or Casualties (in the aggregate) affect a

"substantial portion" (as hereinafter described) of the Property, then Buyer

shall have the right to terminate this Agreement by written notice delivered to

Seller and Escrow Agent not later than ten (10) business days after the date

Seller notifies Buyer of such Takings and/or Casualties (except that if the

Closing Date is less than ten (10) business days following Buyer's receipt of

such notice, Closing shall be delayed until Buyer makes such election). Takings

and/or Casualties shall be deemed to affect a "substantial portion" of the

Property if any of the following are true: (A) In the event of Casualties, (i)

the estimated cost (as determined by Buyer's contractor, architect or engineer

in good faith) to repair or restore any damage resulting from such Casualties

exceeds $250,000 (in the aggregate), (ii) any tenant of the Property shall have

the right to abate, offset or reduce any portion of the amount of rent payable

under its lease, or (iii) any tenant of the Property shall have the right to

terminate its lease in whole or in part, and (B) In the event of Takings, (i)

such Takings relate to the taking or closing of any right of access to any

portion of the Real Property, (ii) such Takings involve more than the equivalent

of Two Hundred Fifty Thousand Dollars ($250,000) in value (in the aggregate),

(iii) such Takings give any tenant of the Property the right to cause the

termination of its Lease in whole or in part, (iv) such Takings involve the

relocation of utility facilities serving any portion of the Real Property, or

(v) such Takings give any tenant of the Property the right to abate, offset or

reduce any portion of the amount of rent payable under its Lease.

 

            15.3   TERMINATION. If Buyer elects to terminate this Agreement

pursuant to Section 15.2, then the Deposit shall be refunded to Buyer and all

documents shall be returned to the party that has delivered the same and the

parties shall have no further obligations to each other under this Agreement,

except as specifically set forth in this Agreement.

 

            15.4   CONTINUATION. If Buyer elects not to terminate this Agreement

pursuant to Section 15.2, then (a) Buyer shall have the right to participate,

subject to the right of the tenants under the Leases, in the adjustment and

settlement of any insurance claim relating to said Casualties and any award

relating to said Takings (and Seller shall not settle any such claim or award

without Buyer's prior written consent), and (b) the parties shall proceed to

Closing with no reduction in the Price and at Closing, and Seller shall (i) pay

to Buyer through escrow (1) any award or other compensation relating to such

Takings and/or casualty insurance proceeds received by Seller with respect to

the Real Property, less reasonable and actual out-of-pocket fees, costs and

expenses incurred by Seller in connection with the collection thereof, plus (2)

the amount of any deductible or self-insured amount, and (ii) assign to Buyer

all of Seller's right, title and interest in and to any award or other

compensation relating to such Takings and/or casualty insurance proceeds with

respect to the Real Property, less reasonable and actual out-of-pocket fees,

costs and expenses incurred by Seller in connection with the collection thereof

prior to Closing, any pay to Buyer the amount of any deductible or self-insured

amount.

 

            15.5   MINOR CASUALTY OR CONDEMNATION. If a Taking and/or Casualty to

the Real Property does not affect a "substantial portion" of the Real Property,

then Buyer shall not have

 

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<Page>

 

the right to cancel this Agreement and this Agreement shall proceed to Closing

with no reduction in the Price and otherwise the parties shall proceed in

accordance with paragraph 15.4 above as if Buyer elected not to terminate this

Agreement on account of a "substantial" Taking or Casualty.

 

16.   MISCELLANEOUS.

 

     16.1    NOTICES. No notice, consent, approval or other communication

provided for herein or given in connection herewith shall be validly given,

made, delivered or served unless it is in writing and delivered personally, sent

by nationally-recognized overnight courier, or sent by registered or certified

United States mail, postage prepaid, with return receipt requested, to the

addresses set forth for each party on page one hereinabove. Any notice required

hereunder may also be given by telecopier to the telecopier number set forth on

page one hereinabove provided that a "hard copy" of such notice also be sent

within one (1) business day after such telecopier transmission in any other

manner of delivery above set forth; and in the case of notice by telecopier

(with confirmation sent as aforesaid), notice shall be deemed given upon

electronic confirmation of receipt. Any party hereto may from time to time

change its address by notice to the other parties given in the manner provided

herein. Notices, consents, approvals, and communications given by

nationally-recognized overnight courier shall be deemed delivered on the next

business day after being deposited with such courier. Notices, consents,

approvals and communications (a) given personally shall be deemed delivered upon

receipt or rejection of attempted personal delivery, and (b) given by registered

or certified United States mail, postage prepaid, with return receipt requested,

shall be deemed delivered on the second (2nd) business day after deposit in the

mail. Copies of all notices, consents, approvals and other communications sent

to Buyer shall also be simultaneously sent (by the same means of transmittal as

the original notice, consent, approval or other communication is sent) to The

Inland Real Estate Group, Inc., 2901 Butterfield Road, Oak Brook, Illinois

60523, Attn: Michael J. Moran (facsimile: 630/218-4900). Copies of all notices,

consents, approvals and other communications sent to Seller shall also be

simultaneously sent (by the same means of transmittal as the original notice,

consent, approval or other communication) to Lawrence J. Kiel, Murphy, Laudati &

Kiel, P.C., 270 Farmington Avenue, Suite 360, Farmington, CT 06032 (facsimile:

(860) 674-0850).

 

     16.2    INTERPRETATION, TIME. The captions of the Sections of this Agreement

are for convenience only and shall not govern or influence the interpretation

hereof. This Agreement is the result of negotiations between the parties and,

accordingly, shall not be construed for or against either party regardless of

which party drafted this Agreement or any portion thereof. Time is of the

essence of this Agreement. As used herein, the term "BUSINESS DAY" means any

calendar day which is not a Saturday, Sunday or federal or local holiday. If the

time for the performance of any action or expiration of any period of time falls

on a day other than a business day, then the time for such performance and/or

the expiration of any such period shall be automatically extended to occur on

the next business day.

 

     16.3    SUCCESSORS AND ASSIGNS.

 

                  (i)     BINDING EFFECT; SURVIVAL. All of the provisions hereof

shall inure to the benefit of and be binding upon the personal representatives,

heirs, successors and assigns of Seller and Buyer. All representations,

warranties, agreements, obligations and indemnities of the parties,

notwithstanding any investigation made by any party hereto, shall survive

closing and shall not be merged into the Deed.

 

                  (ii)    SELLER ASSIGNMENT. Anything herein to the contrary

notwithstanding, Seller shall have the right to assign its entire right, title

and interest in and to this Agreement, including its rights to the Deposit to a

qualified exchange or accommodation

 

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<Page>

 

titleholder or qualified intermediary identified by Seller. Buyer agrees to

reasonably cooperate with Seller to permit the conveyance of the Real Property

to be consummated as part of a transaction intended by Seller to qualify as a

taxfree exchange under Section 1031 of the United States Internal Revenue Code

and in conjunction therewith to execute such documents as Seller may reasonably

request. In no event, however, shall (i) Buyer bear any expense associated with

the exchange transaction, (ii) Buyer be obligated to take title to Seller's

exchange property or any other property, (iii) the consummation of such taxfree

exchange be a condition of the conveyance of the Real Property by Seller in

accordance with the terms of this Agreement, and (iv) Buyer have any liability

to Seller or to any other party for the qualification of the exchange

transaction for taxfree exchange treatment under Section 1031 of the United

States Internal Revenue Code or under any other provision. Furthermore, it is

Seller's bonafide intent that the Real Property be held by the qualified

exchange accommodation titleholder or qualified intermediary referenced above as

relinquished property and the exchange is intended to qualify for nonrecognition

of gain (in whole or in part) or loss under said Section 1031. Seller shall

indemnify and hold Buyer (and its successors and assigns) harmless from and

against any and all damages, claims, losses, liabilities, suits, costs and

expenses (including, without limitation, court costs and reasonable attorney's

fees) suffered or incurred by Buyer with respect to or in connection with any of

the foregoing.

 

                  (iii)   BUYER'S ASSIGNMENT. This Agreement may not be assigned

by Buyer, in whole and/or in part, either directly and/or indirectly, to any

person, partnership, corporation, limited liability company and/or other person

or entity without the prior written approval from Seller, which approval may be

given or withheld in Seller's sole discretion; provided, however, that Buyer

shall have the right, without obtaining Seller's approval or consent, to assign

this Agreement to Inland Retail Real Estate Trust, Inc., (the "TRUST"), Inland

Retail Real Estate Limited Partnership (the "PARTNERSHIP") or any affiliate of

Buyer, the Trust or the Partnership (a "PERMITTED ASSIGNEE"). Seller

acknowledges and agrees that Buyer shall have the right to assign its rights and

obligations under this Agreement with respect to each Parcel to two (2)

different Permitted Assignees. In such event, Seller agrees that (a) all of

Seller's representations, warranties, covenants and agreements contained in this

Agreement shall run to and for the benefit of the applicable Permitted Assignee,

(b) Seller shall perform its obligations under this Agreement with respect to

the particular Parcel to and for the benefit of the applicable Permitted

Assignee as if such Permitted Assignee was a party to this Agreement in respect

of the particular Parcel, (c) Seller shall accept, with respect to the

particular Parcel, performance of Buyer's obligations under this Agreement by

the applicable Permitted Assignee, (d) the closing documents to be executed and

delivered by Buyer pursuant to Section 5 above with respect to the particular

Parcel shall be executed and delivered by the applicable Permitted Assignee, and

(e) the closing documents to be executed and delivered by Seller pursuant to

Section 5 above with respect to the particular Parcel shall be executed and

delivered in the name of and to the applicable Permitted Assignee. Except to the

extent expressly provided in subsection (ii) above, Seller may not assign this

Agreement or any of its rights hereunder, in whole or in part, to any party. Any

assignment consented to by Seller shall not relieve Inland Real Estate

Acquisitions, Inc. of any liability and/or obligations hereunder.

 

            16.4   NO PARTNERSHIP, THIRD PERSONS. It is not intended by this

Agreement to, and nothing contained in this Agreement shall, create any

partnership, joint venture or other similar arrangement between Seller and

Buyer. No term or provision of this Agreement is intended to, or shall, be for

the benefit of any person, firm, corporation or other entity not a party hereto

(including, without limitation, any broker), and no such party shall have any

right or cause of action hereunder.

 

            16.5   ENTIRE AGREEMENT. This Agreement and all Exhibits and

Schedules attached hereto constitute the entire agreement between and reflect

the reasonable expectations of the

 

                                       22

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parties pertaining to the subject matter hereof. All prior and contemporaneous

agreements, representations and understandings of the parties, oral or written

regarding the transaction contemplated in this Agreement are hereby superseded

and merged herein. No change or addition is to be made to this Agreement except

by a written agreement executed by all of the parties.

 

            16.6   FURTHER DOCUMENTS. Buyer and Seller shall execute and deliver

all such documents and perform all such acts as reasonably requested by the

other party from time to time, prior to and following the Closing, to carry out

the matters contemplated by this Agreement.

 

            16.7   INCORPORATION OF EXHIBITS; INTERPRETATION. All exhibits

attached to this Agreement are by this reference incorporated herein. The terms

"include," "including" and similar terms shall be construed as if followed by

the phrase "without being limited to." The terms "hereby", "hereof", "hereto",

"herein", "hereunder", "hereinabove" and any similar terms shall refer to this

Agreement as a whole.

 

            16.8   CONNECTICUT LAW. This Agreement shall be governed by the laws

of the State of Connecticut.

 

            16.9   NONPUBLICITY. Unless such disclosure is required by court

order of a court of competent authority or otherwise as may be required by law

(including, without limitation securities law), neither Seller, Buyer nor Escrow

Agent shall make, authorize, consent to or confirm any public announcement of

the transaction evidenced hereby at and/or prior to the Closing and/or following

any termination of this Agreement without the prior written consent of Buyer and

Seller, which consent shall not be unreasonably withheld or delayed.

Notwithstanding the foregoing, Buyer shall have the right to disclose the

transaction contemplated by this Agreement, and the terms hereof, to its, the

Partnership's and the Trust's directors, officers, members, partners, agents,

employees, accountants, attorneys, consultants, advisers, lenders and potential

lenders and analysts. The terms of this Section 16.9 shall not apply from and

after the Closing.

 

            16.10 COUNTERPARTS. This Agreement may be executed in any number of

counterparts. Each such counterpart hereof shall be deemed an original, but all

counterparts shall constitute but one agreement.

 

            16.11 ACCEPTANCE PERIOD. This offer from Buyer to purchase the Real

Property on the terms set forth herein shall be deemed irrevocable until 5:00

p.m., Eastern Standard Time, on November 21, 2003, and can be accepted by Seller

by delivering to Escrow Agent's address above a fully executed counterpart

original of this Agreement. If Buyer has not received a fully executed original

of this Agreement by 5:00 p.m., Eastern Standard Time, on November 21, 2003,

then Buyer shall be deemed to have revoked its offer to acquire the Property

pursuant to this Agreement and this Agreement (other than this Section 16.11)

shall be of no force or effect.

 

            16.12 RETENTION BY SELLER OF THE CONTINENTAL PARCEL. The Buyer

acknowledges that with regard to the Bristol Real Property, the Seller is

retaining the fee title to the real property currently leased to the Continental

Corporation (the "CONTINENTAL PROPERTY") pursuant to a Ground Lease to Mutual

Development Corporation dated May 18, 1962 and recorded with the Bristol Land

Records in Volume 447, Page 449 and assigned to Continental Corporation by

assignment dated March 19, 1972 and recorded with the Bristol Land Records in

Volume 596, Page 723. The parcel being retained is located adjacent to the

Bristol Real Property and is more particularly described on a certain map or

plan entitled "TO BE PROVIDED a copy of which is attached hereto and made a part

hereof. Seller and Buyer agree that, to the extent that any

 

                                        23

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portion of the Continental Property and any portion of the Bristol Real Property

comprise the same or parts of the same legal and/or real estate tax parcel,

Seller shall, prior to Closing, cause such properties to be subdivided such that

all portions of the Bristol Real Property and the Continental Property shall be

separate and distinct legal parcels and separate and distinct real estate tax

parcels (with their own parcel identification numbers). Seller shall be

obligated to pay for any and all costs associated with such subdivision,

including, without limitation, the costs to prepare, file and record any

subdivision plat. The configuration of the subdivided parcels are generally

depicted on Exhibit "Q" hereto. Such subdivision shall be pursued and completed

in accordance and compliance with all applicable laws, statutes, codes,

ordinances, rules and regulations, including, without limitation, all zoning and

parking requirements. Not less than five (5) business days prior to the filing

thereof, Seller shall deliver to Buyer, for Buyer's review, comment and

approval, copies of all plans, plats, applications and other submissions (and

any amendments thereto and supplements thereof) required for the subdivision.

Promptly after the filing thereof, Seller shall deliver to Buyer copies of all

submitted plans, plats, applications and other materials (and any amendments

thereto and supplements thereof) required for the subdivision. Additionally,

Seller shall notify Buyer of any meetings of or hearings with any applicable

governmental entities, agencies or boards regarding the subdivision not less

than three (3) business days prior thereto. Buyer shall have the right to attend

any such meetings and/or hearings. Any and all mortgagees, trustees, lenders

and/or holders of interests in any loans encumbering the Continental Parcel

shall, as a condition to Closing, subject and subordinate, by appropriate

documentation approved by Seller and Buyer and recorded against the Continental

Property, all of their right, title and interest (including, without limitation,

any lien rights) in and to the Continental Property to any subdivision plat

recorded pursuant to this Section 16.12 and all matters set forth therein.

 

            16.13 RESERVATION OF RECIPROCAL EASEMENT RIGHTS. Prior to Closing,

Buyer and Seller shall negotiate a form of Declaration of Covenants, Conditions,

Restrictions and Easements (the "CCRs") to be executed, entered into and

recorded at the closing of the transaction contemplated by this Agreement, which

CCRs (a) shall contain rights similar to those granted by Seller to the

Continental Corporation as contained in that certain Reciprocal Easement

Agreement dated August 14, 1994 and recorded in Volume 1136 at Page 794 of the

Bristol Land Records, (b) shall run with the land and not be subject to

termination upon the termination of the Lease relating to the Bristol Real

Property, and (c) shall impose upon the Bristol Real Property and the

Continental Property certain other reciprocal easements, covenants, use

restrictions and other matters to be negotiated. It shall be a condition to

Seller's and Buyer's obligation to close the transaction contemplated by this

Agreement that, at Seller's cost, (i) the CCRs agreed to by Seller and Buyer be

executed by Seller and Buyer and recorded against the Bristol Real Property and

the Continental Property, (ii) any and all mortgagees, trustees and/or other

lenders with any interest in either the Bristol Real Property and/or the

Continental Property subject and subordinate, by appropriate documentation

approved by Seller and Buyer and recorded against the applicable property, all

of their right, title and interest (including, without limitation, any lien

rights) in and to the Bristol Real Property and the Continental Property, as the

case may be, to the CCRs and all matters set forth therein, and (iii) the tenant

under the Lease relating to the Bristol Real Property shall consent to and

approve the CCRs. If the aforementioned conditions shall not have been satisfied

as of the Closing Date, then Buyer and Seller each shall have the right,

provided that the party exercising such right shall not be the sole reason for

such failure, by delivering notice thereof to the other at any time after the

initially scheduled Closing Date, to terminate this Agreement in which event the

Deposit shall be returned to Buyer and neither Buyer nor Seller shall have any

further rights, duties or obligations under this Agreement. Seller and Buyer

shall negotiate the CCRs in good faith.

 

            16.14 HUTT LEASE. The Buyer acknowledges that it is taking the

Bristol Property subject to the rights and obligations (but only those

obligations required to be first performed after the Closing Date) contained in

that certain Lease and A