Exhibit
10.43


 


COMMERCIAL KENTUCKY


 


Inland Real Estate Acquisitions, Inc.


2801 Butterfield Road


Oak Brook, IL 60523


Phone:  (630) 218-4948  Fax: (630) 218-4935


www.Inlandgroup.com


 


November 29, 2005


 


Seller or Beneficiary of the
Titleholding Trust (Seller)


or Holder of the Power of
Direction


c/o Commercial Kentucky, Inc.
(Broker)


Attn: Kevin Northup


1700 Meidinger Tower


Louisville, KY 40202


 


Re:  Southgate
Apartments


Louisville, Kentucky


 


Dear Kevin:


 


This letter
represents this corporation’s offer to purchase the Southgate Apartments
situated on 14.4 acres of land, consisting of 11 three-story buildings,
containing a total of 256 legal apartment units, of which 119 are one-bedroom
apartments and 137 are two-bedroom apartments, plus a swimming pool and community
building, all located at 10960 Southgate Manor Dr., Louisville, KY 40229.


 


The above
property shall include all the land and buildings and common facilities, as
well as all personalty in all apartment units and common areas, supplies,
landscaping and snow removal equipment, washers and dryers, and any other items
presently used on site and belonging to owner, and all intangible rights
relating to the property.


 


This
corporation or its nominee will consummate this transaction on the following
basis:


 


1.                                       The
total purchase price shall be $19,199,830.00
all cash, plus or minus prorations, with no mortgage
contingencies, to be paid at closing
30 business days following the acceptance of this agreement (see
Paragraph 7).


 


Purchaser shall allocate the land, building and depreciable
improvements prior to closing.


 


2.                                       Seller
warrants and represents (to the best of Seller’s
knowledge) that the property is now, and will be at closing, free of
violations and the interior and exterior structures are in good state of repair,
free of leaks and structural problems and mold. 
The property is in full compliance with city and county ordinances,
including ADA compliances, environmental laws and concerns, and no one has a
lease that exceeds the normal one-year term at current market rents, nor does
anyone have an option or right of first refusal to purchase or extend, nor is
there any contemplated condemnation of any part of the property, nor are there
any current or contemplated assessments.


 


Prior to
closing, except for the normal leasing as stated above, Seller shall not enter
into or extend any agreements without Purchaser’s approval and any contract
presently in existence not accepted by Purchaser shall be terminated by Seller.


 


3.                                       Seller,
at his expense, prior to the closing, shall put all vacant apartment units into
rentable condition; that is, ready for immediate occupancy.  Seller shall maintain, at a minimum, the
current occupancy level of 93% through the day of closing.  Furthermore, Seller, at his expense, prior to
closing, shall cure any and all code violations at the above property.


 


4.                                       Any
work presently in progress on the property shall be completed by Seller prior
to closing or, at Purchaser’s option, Seller may credit Purchaser in cash with
an amount equal to the amount required to finish said work.


 

















 


5.                                       Any
concessions given to any tenants that extend beyond the closing day that would
affect Purchaser shall be settled at closing by Seller giving a full cash
credit to Purchaser for any and all of those concessions.


 


6.                                       The
above sale of the real estate shall be consummated by conveyance of a full
warranty deed from Seller to Purchaser’s designee, with the Seller paying any
city, state, or county transfer taxes and Seller agrees to cooperate with
Purchaser’s lender, if any, and the money lender’s escrow.


 


7.                                       The
closing shall occur through Chicago
Title and Trust Company in Chicago, IL, with Nancy Castro as Escrowee, 30
business days following the acceptance
of this agreement, at which time title to the above property shall be marketable,
i.e.
free and clear of all liens, encroachments and encumbrances, and an ALTA Form B
owner’s title policy with complete extended coverage and required endorsements,
waiving off all construction, including 3.1 zoning.  Including parking and loading docks, and
insuring all improvements as legally conforming uses and not as non-conforming
or conditional uses, paid by Seller, shall be issued with all warranties and
representations being true now and at closing and surviving the closing and
each party shall be paid in cash their respective credits for rents, security
deposits, etc., with a proration of real estate taxes based (at Purchaser’s
option) on the greater of 110% of the most recent bill or latest assessment, or
the estimated assessments for 2005 and 2006 using the assessor’s formula for
this sale transaction, with a later reproration of taxes when the actual bills
are received. At closing, no credit will be given to Seller for any past due,
unpaid or delinquent rents.


 


8.                                       Seller
shall deliver to Purchaser within five (5) days of execution of this Agreement,
copies of all previous, existing environmental reports for the Property. This
offer is subject to Purchaser obtaining, prior to Closing, an updated
environmental report which must be acceptable to Purchaser, and paid for by
Seller, not to exceed $2,000.00.


 


9.                                       Seller
shall deliver to Purchaser within five (5) days of execution of this Agreement,
copies of any previous appraisals for the Property. This offer is subject to
Purchaser obtaining, prior to Closing, an updated appraisal, which must be
acceptable to Purchaser, all at Seller’s cost, not to exceed $4,000.00.


 


10.                                 The
Seller (Landlord) shall not be in default on any lease or agreement at closing,
nor is there any threatened or pending litigation.


 


11.                                 Fifteen
(15) days prior to closing Seller must provide the title as stated above and a
current Urban ALTA/ACSM spotted survey in accordance with the minimum standard
detail requirements for ALTA/ACSM Land Title Surveys jointly established and
adopted by ALTA/ACSM in 1999, and includes all Table A optional survey
responsibilities and acceptable to Purchaser and the title company.


 


12.                                 Seller
agrees to indemnify Purchaser for any claim made by the Kentucky Department of
Revenue (or any applicable Taxing Authority) for any tax owed by Seller but
claimed from the Purchaser as a result of this sale.  Seller shall notify the applicable Taxing
Authority and produce the required waiver certificate or escrow funds at
closing, if required, by the applicable Taxing Authority and Seller shall
indemnify Purchaser against any loss resulting from the filing of any
environmental reclamation lien resulting from Seller’s non-compliance with any
applicable environmental law.


 


Seller
warrants and represents that he has paid all unemployment taxes to date.


 


1

















 


13.                                 Prior
to closing, Seller shall furnish to Purchaser copies of all guarantees and
warranties which Seller received from any and all contractors and
sub-contractors pertaining to the property. 
This offer is subject to Purchaser’s satisfaction that all guarantees
and warranties survive the closing and are assignable and transferable to any
titleholder now and in the future.


 


14.                                 Seller
is responsible for payment of any leasing brokerage fees or commissions which
are due any leasing brokers for the existing leases on the apartments/townhomes
stated above or for the renewal of same.


 


15.                                 Seller
shall be responsible for payment of a real estate brokerage commission, as per
their agreement, to Commercial Kentucky, Inc. 
Said commission shall be paid through the closing escrow.


 


16.                                 Seller
agrees to immediately make available and disclose all information that
Purchaser needs to evaluate the above property, including all inducements, abatements,
concessions or cash payments given to tenants. Seller agrees to cooperate fully
with Purchaser and Purchaser’s representatives to facilitate Purchaser’s
evaluations and reports, including at least a one-year audit of the books and
records of the property.


 


This offer is,
of course, predicated upon Purchaser’s review and written approval of the
leases, surveys, titles, environmental reports and representations that have
been made by the Seller with regard to income and expenses, site inspections,
etc., and at least one year of audited operating statements are required that
qualify, comply with and can be used in a public offering.


 


If this offer
is acceptable, please have the Seller sign the original of this letter and
initial each page, keeping copies for your files and returning the original to
me by December 2, 2005.


 


	
   

  	
  Sincerely,

  
	
   

  	
   

  	
   

  
	
  Accepted
  subject to the acceptance by

  purchaser of Counteroffer/Amendment attached.

  	
  INLAND
  REAL ESTATE ACQUISITIONS, INC.

  or nominee

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  	
   

  
	
  Date:

  	
  12/16/05

  	
   

  	
  /s/ G.
  Joseph Cosenza

  	
   

  
	
   

  	
   

  	
   

  	
  G. Joseph
  Cosenza

  
	
   

  	
   

  	
  Vice
  Chairman

  
							



 


JC/sc


 


2

















 


Inland Real Estate Acquisitions Inc. 


 


Image of Front & Back of Cancelled Check


 

















 


COUNTEROFFER/AMENDMENT TO

LETTER OFFER


 


THIS Counteroffer/Amendment
to Letter Offer (this “Amendment”) is
made by and between SOUTHGATE GROUP, LLC, a Kentucky limited liability company,
Suite 200, 3220 Office Pointe Place, Louisville, Kentucky 40220 (“Seller”) and INLAND REAL ESTATE ACQUISITIONS, INC., 2901
Butterfield Road, Oak Brook, Illinois 60523 (“Purchaser”).


 


1.             Recitals.  Pursuant to a letter offer dated November 29,
2005 (the “Offer”), Purchaser offered to
acquire certain real property from Seller, commonly known as Southgate
Apartments in Jefferson County, Kentucky. Seller rejects the Offer but makes
the following counteroffer which, if accepted by Purchaser, shall be deemed an
amendment to the Offer and together with the Offer will constitute a binding
agreement of purchase and sale, subject to the conditions set forth in the
Offer and in this Amendment.


 


2.             Amendments.  The parties agree as follows:


 


(a)           Purchase Price.  The total purchase price is Nineteen Million
Five Hundred Thousand Dollars ($19,500,000.00). 
Purchaser must reasonably allocate the purchase price to land, building
and depreciable improvements or Seller is not bound by Purchaser’s allocation.


 


(b)           Property.  For clarification, the subject property is
legally described in a deed of record in Deed Book 7722, Page 833, in the
office of the Clerk of Jefferson County, Kentucky.


 


(c)           Warranties and Representations.  All of Seller’s warranties and
representations set forth in paragraph 2 of the Offer are made to the best of
Seller’s knowledge. To the extent any such representations and warranties are
inaccurate, Purchaser’s sole right and recourse is to terminate the Offer and
this Amendment and receive a refund of its deposit, and Seller shall not be
deemed in default of the Offer and this Amendment. The requirement in paragraph
2 of the Offer for Seller to terminate any “contract” not accepted by Purchaser
shall not apply to leases, and the prohibition on Seller entering into or
extending “agreements” does not apply to Seller entering into leases in the
normal course of its business.


 


(d)           Property Condition.  Purchaser shall notify Seller at least 20
days before closing of any work Purchaser is requiring Seller to do to put
vacant apartments in rentable condition and to cure code violations, to allow
Seller to complete such work.  If the
work cannot reasonably be completed within that 20 day period, then Purchaser’s
sole right and recourse is to terminate the Offer and this Amendment and
receive a refund of its deposit, and Seller shall not be deemed in default of
the Offer and this Amendment. Unless otherwise agreed by Seller and Purchaser,
there shall be no extension of the closing date or adjustment of the purchase
price.  Further, if the occupancy level
is not 93% on the date of closing, absent other agreements by Purchaser and
Seller, Purchaser’s sole right and recourse is to terminate the Offer and this
Amendment and receive a refund of its deposit, and Seller shall not be deemed
in default of the 


 


 


1

















 


Offer and this Amendment,
Purchaser acknowledging the occupancy rates are not fully within Seller’s
control.


 


(e)           Conveyance.  Paragraph 6 of the Offer is modified to
provide that the property will be conveyed by special warranty deed.  Also, at closing Seller and Purchaser will
enter into as assignment and assumption of leases and any service contracts
then in effect, pursuant to which Seller assigns all of its interests in the
leases and contracts, Purchaser assumes all obligations of Seller as landlord
under the leases and contracts, and each indemnifies the other from and against
acts occurring during the applicable period of ownership.


 


(f)            Closing.  With respect to paragraph 7 of the Offer, the
property will be conveyed subject to all easements, restrictions and
stipulations of record and subject to any existing encroachments.  Seller advises Purchaser that there are minor
encroachments of buildings onto easements and into a building limit line.  If Purchaser cannot obtain affirmative title
insurance coverage insuring over such encroachments, or if Purchaser otherwise
refuses to accept such encroachments, or if for any other reason Purchaser
cannot obtain the title insurance coverage desired by Purchaser, then
Purchaser’s sole right and recourse is to terminate the Offer and this
Amendment and receive a refund of its deposit, and Seller shall not be deemed
in default of the Offer and this Amendment. 
Also, credits and prorations set forth in paragraph 7 of the Offer shall
be reflected as credits and expenses on the closing statement and not paid in
cash.  Seller, is to pay for all title
insurance coverage desired or obtained by Purchaser.  Finally, Seller retains the right to collect
past due, unpaid or delinquent rents. 
Title Insurance Premium shall not exceed $28,000.


 


(g)           Litigation.  With respect to paragraph 10 of the Offer,
Purchaser acknowledges that apartment tenants complain, and such complaints are
not deemed threatened litigation.


 


(h)           Survey.  With respect to paragraph 11 of the Offer,
title and survey are subject to the matters set forth in section 2(f) of this
Amendment, and if Purchaser is not satisfied with the survey, then Purchaser’s
sole right and recourse is to terminate the Offer and this Amendment and
receive a refund of its deposit, and Seller shall not be deemed in default of
the Offer and this Amendment.


 


(i)            Taxing Authority.  The first literary paragraph of paragraph 12
of the Offer is deleted.


 


(j)            Audit.  The second to last literary paragraph of the
Offer is modified to provide that, while Purchaser’s obligations may be
conditioned on receipt of at least one year of audited operating statements
that qualify, comply with and can be used in a public offering, Seller has no
obligation to provide such audited statements, and Seller discloses to
Purchaser that Seller has no such audited statements.


 


(k)           Survival.  Any representations and warranties of Seller
set forth in the Offer as modified and limited by this Amendment shall expire
one year after closing.


 


2

















 


(l)            Outside Closing Date; Default.  If the transaction contemplated by the Offer
and this Amendment fails to close by February 1, 2006, for any reason other
than Seller’s or Purchaser’s willful refusal to close, then Purchaser’s sole
right and recourse is to terminate the Offer and this Amendment and receive a
refund of its deposit, and neither party shall be deemed in default.  If Seller defaults by willfully refusing to
close, Purchaser’s sole remedy shall be to seek specific performance of the
Offer and this Amendment.  If Purchaser
defaults by willfully refusing to close, then Seller’s sole remedy is to be
paid the Deposit as liquidated damages. 
Without Seller’s consent, which may be withheld for any reason, the transaction
contemplated by the Offer and this Amendment shall not close before January 1,
2006.


 


(m)          Distribution.  Purchaser acknowledges and agrees that Seller
may distribute all or a portion of the subject property to one or more of its
members before closing, and that such distribution does not affect Purchaser’s
obligation under the Offer and this Amendment, except only as to persons or
entities to whom payment shall be made at closing.


 


WITNESS the
signatures of Purchaser and Seller on the dates set forth below.


 


	
   

  	
  SELLER:

  
	
   

  	
  SOUTHGATE
  GROUP, LLC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  [ILLEGIBLE]

  	
   

  
	
   

  	
  Title:

  	
  MANAGER

  	
   

  
	
   

  	
  Date:

  	
  12/16/05

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BUYER:

  
	
   

  	
  INLAND REAL
  ESTATE ACQUISITIONS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ G.
  Joseph Cosenza

  	
   

  
	
   

  	
   

  	
  G. Joseph
  Cosenza, Vice Chairman

  	
   

  
	
   

  	
  Date:

  	
  12/16/05

  	
   

  
					



 


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