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Exhibit 10.176
[INLAND LOGO]
Inland Real Estate Acquisitions, Inc.
2967 Butterfield Road
Oak Brook, IL 60523
Phone: (630) 218-4948 Fax: 4935
www.inlandgroup.com
[ILLEGIBLE] National Development Ltd. REVISED: NOVEMBER 21, 2003
c/o Peter Dellaportas, Seller REVISED: DECEMBER 4, 2003
415 N. LaSalle St., Ste. 200
Chicago, IL 60610
Re: Plaza Santa Fe II - Santa Fe, NM
Dear Peter:
This letter represents this corporation's offer to purchase the Plaza Santa
Fe II Shopping Center with approximately 222,411 net rentable square feet,
situated on approximately 20.41 acres of land, located at the South east corner
of Cerillos Road and Zafarano Blvd. See Exhibit A attached.
The above properties shall include all the land and buildings and common
facilities, as well as all personalty within the buildings and common areas,
supplies, landscaping equipment, and any other items presently used on the site
and belonging to owner, and all intangible rights relating to the properties.
See Rider #1.
This corporation or its nominee will consummate this transaction on the
following basis:
1. The total purchase price shall be $31,250,000.00 plus or minus
prorations, to be paid at closing within 30 business days after
execution of the Agreement (see Paragraph 10).
Purchaser shall purchase the property subject to no other mortgages
except a non-recourse first mortgage (the "Loan") having a 9/30/03
balance of $17,781.103.63 with an interest rate of 6.2% fixed
amortized over a 25 year period with a 10 year balloon. The monthly
principal and interest payment of the Loan shall be $118,185.78 which
equates to an annual principal and interest payment of $1,418,229.36.
The balance of the purchase price after the Loan (i,e.$13,468,896.37),
plus or minus prorations, shall be paid in cash to seller at closing
with it being understood that except as specifically provided in this
Agreement purchaser's equity shall not exceed $13,468,896.37, plus or
minus prorations.
The obligations of the Seller and the Purchaser under this Agreement
are conditioned upon: The first mortgagee under the Loan (the
"Lender") shall approve this transaction and shall approve Inland and
Inland Retail Real Estate Trust, Inc., Inland's nominee and Inland's
affiliate's subsequent ownership without recourse to any (it being
understood that the Loan currently has a limited guaranty (the type
sometimes referred to as "carve-outs") from the Seller's principals
and under no circumstances shall the Seller be obligated to proceed
with this transaction if any guaranties and indemnities from the
Seller and its principals are not fully released). Any fees or
expenses incurred in obtaining said Lender approvals shall be paid by
Seller. The Purchaser and Its parent company will execute any
reasonable documentation ("loan assumption") required by the lender
for the loan to be assumed by the Purchaser. The Loan shall be current
and without default at closing and any and all existing real property
tax, common area maintenance, and insurance reserves and impounds
(collectively "Pass-through Impounds"), for the Loan shall be assigned
to Purchaser without credit to Seller at closing; the Seller and the
Purchaser shall reasonably cooperate with the lender for all other
(i.e. other than the Pass-through Impounds) reserves and impounds
(collectively, "Non-pass-through Impounds") (eg: TI, leasing,
holdbacks, etc...) to be returned to the Seller. See Rider #2.
The Plaza Santa Fe II property purchase is subject to a ground lease,
requiring the owner to make payments totaling $375,000.00 annually,
with increases of 15% every 10 years, with a
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Plaza Santa Fe II, Santa Fe, NM Page 2
REVISED: NOVEMBER 21, 2003
REVISED: DECEMBER 4, 2003
termination in 2080. Purchaser shall have the first right of refusal
to purchase the ground lease throughout the lease term, as set forth
in the ground lease.
Purchaser shall allocate the land, building and depreciable
improvements prior to closing; Seller will not accept any allocation
that creates adverse tax consequences to Seller.
2. There are no real estate brokerage commissions involved in this
transaction.
3. Seller represents and warrants (to the best of the Seller's
knowledge), that the above referenced property is subleased to the
subtenants described on Exhibit B on net leases covering the
buildings and all of the land, parking areas, reciprocal easements
and REA/OEA agreements (if any), for the entire terms and option
periods. Any concessions (ie: so-called "free rent" or "tenant
improvement" allowances) given to any subtenants that extend beyond
the closing day shall be settled at closing by Seller giving a full
cash credit to Purchaser for any and all of those concessions.
4. Seller warrants and represents (to the best of the Seller's
knowledge), that the properties are free of violations, and the
interior and exterior structures are in a good state of repair, free
of leaks, structural problems, and mold, and the properties are in
full compliance with Federal, State, City and County ordinances,
environmental laws and concerns, and no one has a lease that exceeds
the lease term stated in said subleases, nor does anyone have an
option or right of first refusal to purchase, nor is there any
contemplated condemnation of any part of the properties, nor are
there any current or contemplated assessments, except as may be
shown in the title commitment to be obtained as set forth in this
Agreement.
5. Seller warrants and represents (to the best of the Seller's
knowledge), that during the term of the leases the subtenants and
guarantors (if any) are responsible for and pay all operating
expenses relating to the properties on a prorata basis, including
but not limited to, real estate taxes, REA/OEA agreements,
utilities, insurance, all common area maintenance, parking lots and
the buildings, etc, all as set forth in the subleases.
Prior to closing, 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
(if such contract may be terminated by its terms), but Seller may
enter into subleases for any vacancies of the property and into new
operating agreements (the latter may be cancelled at closing). Ten
(10) days prior to closing Seller shall use commercially reasonable
efforts to obtain and furnish Purchaser with estoppel letters
acceptable to Purchaser from all subtenants, guarantors, and parties
to reciprocal and/or operating easement agreements, and the ground
lessor, if applicable; if all the estoppels are not obtained prior
to the closing, the Purchaser may, as its sole remedy, terminate
this Agreement.
6. Seller is responsible for payment of any leasing brokerage fees or
commissions which are due any leasing brokers for the existing
leases stated above or for the renewal of same.
7. This offer is subject to Seller supplying to Purchaser prior to
closing a certificate of insurance from the subtenants and
guarantors (if any) in the form and coverage acceptable to Purchaser
for the closing. Seller's only obligation is to use commercially
reasonable efforts to obtain same.
8. It is understood that Seller has in its possession Level 1
Environmental Reports (Level 2 if required), for the subject
property, which Seller will supply to Purchaser 10 days prior to
closing. Seller shall have said reports, which must be acceptable to
Purchaser, updated and re-certified to Purchaser at closing, all at
Seller's cost, if any such report is not satisfactory to Purchaser,
Seller will have no obligations to take any corrective measure;
Purchaser's sole remedy will be to terminate this Agreement.
9. See Rider #3.
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Plaza Santa Fe II, Santa Fe, NM Page 3
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10. The closing shall occur through Chicago Title & Trust Company, in
Chicago, Illinois with Nancy Castro as Escrowee, within 30 business
days after execution of this Agreement, at which time title to the
above properties shall be marketable; i.e., free and clear of all
liens, encroachments and encumbrances, and an ALTA form B leasehold
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, including, but not limited to, security deposits, rent and
expenses, with a proration of real estate taxes based (at
Purchaser's option) on the greater of 110% of the most recent bill.
At closing, no credit will be given to Sellers for any past due,
unpaid or delinquent rents, and no credit will be given (ie: no
prorations will be made) for any taxes or other expenses that are
reimbursable by tenants under their leases or by Seller under the
holdback provisions of section 15, below. The immediately preceding
sentence notwithstanding, the Seller shall transfer to the Purchaser
all escrows (for real property taxes, common area maintenance,
insurance, etc) that have been collected by subtenants who do
escrow, such transfer to be either by credit (for any such escrows
that the Seller holds directly in its accounts) or by assignment
(via the assumption agreement or otherwise for any such escrows held
by the Lender); provided, however, if any escrows are held both by
the Seller and by the Lender (because, for example, of the manner
the loan documents are structured), appropriate adjustments will be
made in order to avoid "double-counting" (i.e. the Purchaser
receiving the benefit of the escrow for a subtenant twice, once
through the assignment of the lender escrows and the second time
either through a direct credit from the Seller, or by reimbursement
from the subtenant).
11. It is understood that the Seller has in its possession an appraisal
of the property, prepared by an MAI or other qualified appraiser,
acceptable to Purchaser or Purchaser's lender, if any, and shall
deliver copies of such appraisal to Purchaser within 10 days of the
acceptance of this offer and shall cause the appraiser to re-certify
an appraised amount not less than the Purchase Price and re-issue
said appraisal to, and in the name of, Purchaser or Purchaser's
lender, all at Seller's cost. Seller's only obligation is to order
such Appraisal and pay for it. If the Appraisal is not satisfactory
to Purchaser for any reason, Purchaser's sole remedy will be to
terminate this Agreement or waive its objection.
12. Neither Seller (Landlord) or any subtenant and guarantor shall be in
default on any sublease or agreement at closing, nor is there any
threatened or pending litigation, otherwise as its sole remedy,
Purchase may terminate this Agreement or waive its objection.
13. Seller agrees to comply with all requirements of any Responsible
Property Transfer Act only in states requiring such notice or having
taxes that attach to the property post closing. Seller agrees to
indemnify Purchaser for any claim made by the New Mexico 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 Authorities and produce
the required waiver certificates 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 Seller has no employees.
14. 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. Except for furnishing
copies of such documents and assigning them at closing, Seller has
no other obligation under this provision.
15. This offer is subject to the properties being 100% occupied at the
time of closing (except for the spaces for which holdbacks are
provided, as described below), with all tenants occupying their
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Plaza Santa Fe II, Santa Fe, NM Page 4
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REVISED: DECEMBER 4, 2003
space, open for business, and paying full rent, including CAM, tax
and insurance current, as shown on Exhibit B attached. In the event
any of the properties are less than 100% occupied, then the
Purchaser as its sole remedy, shall have the right to terminate this
Agreement. The foregoing part of this section 15 notwithstanding, at
closing there will be up to two holdbacks from the $31,250,000 price
as set forth in the attached Rider #4.
Not withstanding anything to the contrary, the purchase price of
$31,250,000.00 is the Maximum Purchase price for Plaza Santa Fe II,
and the Purchaser shall not be required to pay more for the center
than the amount shown for the centers in Section 1 of this offer,
plus or minus prorations and credits set forth in this Agreement.
16. Fifteen (15) days prior to closing, Seller must provide a title
commitment for the property as stated above and, to the extent same
may be obtained, a separate current Urban ALTA/ACSM spotted survey
for each property in accordance with the minimum standard detail
requirements for ALTA/ACSM Land Title surveys jointly established
and adopted by ALTA and ACSM in 1999 and includes all Table A
optional survey responsibilities and acceptable to Purchaser and the
title company. If the Survey is not acceptable for any reason,
Purchaser may terminate this Agreement or waive the requirement.
17. See Rider #5.
18. Seller agrees to immediately make available and disclose all
information that Purchaser reasonably needs to evaluate the above
properties, including all inducements, abatements, concessions or
cash payments given to tenants only, however, to the extent such
information is in Seller's control. Seller agrees to cooperate
reasonably 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 properties.
This offer is, of course, predicated upon the Purchaser's review and
written approval of the existing leases, new leases, lease modifications (if
any), all tenant correspondence, REA/OEA agreements, tenants' and guarantors'
financial statements, sales figures, representations of income and expenses made
by Seller, site inspection, environmental, appraisal, etc., and at least one
year of audited operating statements on said property is required that qualify,
comply with and can be used in a public offering.
If this offer is acceptable, please sign the original of this letter and
initial each page, keeping copies for your files and returning the original to
me by January 23, 2004
The attached Rider is incorporated herein by reference, and made part hereof and
will control over any conflicts or inconsistencies with the part of this
Agreement that is not in the Rider.
ACCEPTED: Sincerely,
By Seller: /s/ Peter Dellaportas
------------------------------------------
Peter Dellaportas, President of PSF II INLAND REAL ESTATE
Manager Inc, the managing member of ACQUISITIONS, INC.
Plaza Santa Fe II LLC or nominee
Date: January 19, 2004
----------------------------------------------- /s/ Mark Youngman
Mark Youngman
Vice President
/s/ G. Joseph Cosenza
G. Joseph Cosenza
Vice Chairman
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"EXHIBIT A"
[GRAPHIC]
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EXHIBIT B
PLAZA SANTA FE - PHASE II
SANTA FE, NEW MEXICO
<Table>
<Caption>
LEASE LEASE
ANNUAL RENT COMMENCEMENT EXPIRATION SALES
TENANTS S.F. BASE RENT PER SQ. FOOT DATE DATE PSF
- -----------------------------------------------------------------------------------------------------------------------
BEST BUY 31,226 421,551.00 $ 13.50 September-01 January-17
LINENS & THINGS 31,500 425,250.00 $ 13.50 November-00 January-16
T.J. MAXX 30,900 324,450.00 $ 10.50 November-00 November-10
MICHAEL'S 20,280 253,500.00 $ 12.50 March-01 March-11
OLD NAVY 20,115 251,438.00 $ 12.50 March-01 March-06
PETSMART 20,010 284,742.00 $ 14.23 June-01 January-17
BORDERS 15,501 232,515.00 $ 15.00 October-02 January-18
FAMOUS FOOYWEAR 8,000 136,000.00 $ 17.00 December-01 January-12
CORRAL WEST 7,450 75,543.00 $ 10.14 November-02 November-07
D&A MATRESS 4,710 89,490.00 $ 19.00 August-01 March-11
MENS WEARHOUSE 4,539 83,972.00 $ 18.50 April-04 May-08
ALLTEL 3,932 112,612.00 $ 28.64 December-01 December-08
CLOTHESTIME 3,800 76,000.00 $ 20.00 April-01 April-11
OSAKA GRILL 6,000 150,000.00 $ 25.00 June-02 September-12
FRENCH & FRENCH 3,038 69,874.00 $ 23.00 November-01 November-08
PAYLESS SHOE SOURCE 2,850 57,000.00 $ 20.00 April-03 March-08
H&R BLOCK 1,900 37,050.00 $ 19.50 November-02 October-07
QUIZNO'S 1,900 37,715.00 $ 19.85 April-02 April-12
LADY D BAKERY 1,260 28,889.00 $ 22.93 April-02 April-05
STATE FARM 1,250 27,500.00 $ 22.00 February-02 February-05
SUPER NAILS 1,000 30,000.00 $ 30.00 January-02 March-12
CACTUS SALON 1,250 30,000.00 $ 24.00 February-03 January-08
Totals 222,411 3,235,091.00
</Table>
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RIDER TO LETTER AGREEMENT DATED (REVISED) 12/4/03 (WITH THIS RIDER,
THE "AGREEMENT") FROM INLAND REAL ESTATE ACQUISITIONS (THE "PURCHASER") TO
THE OWNER (THE "SELLER") OF THE SHOPPING CENTER C/K/A PLAZA SANTA FE PHASE II
RIDER #1
Anything to the contrary notwithstanding in this Agreement, the seller has
informed the purchaser and the purchaser acknowledges that the seller is not the
fee owner of the underlying land on which the subject shopping center is located
(the "Land"). The seller is the owner of a leasehold estate on the Land created
by an unsubordinated ground lease dated October 31, 1995 (as amended and
assigned, the "Land Lease") with Roadrunner Trailer Lodge Partnership (the
purported fee owner of the Land) as landlord (such landlord, as succeeded to be
referred to as "Fee Owner"). The seller has constructed on the Land buildings
with parking and related improvements (the "Shopping Center") which have been
subleased for the operation of commercial businesses. Accordingly, the property
subject to this Agreement is the seller's leasehold estate and the Shopping
Center improvements that are owned by seller as well as any limited personal
property, if any, that may be owned by seller and used for the operation of the
Shopping Center; without limiting the generality of the foregoing, the sale
specifically excludes any property, whether it may be considered "real" or
"personal" that belongs to subtenants of the Shopping Center or other parties
and not owned by the seller.
RIDER #2
The Lender's approval of the transaction contemplated by this Agreement shall
also be a condition for the seller's obligations under this Agreement; if the
Lender, for any reason, refuses to approve this transaction, this Agreement will
be deemed automatically void. Further, the obligations of the seller and the
purchaser under this Agreement are conditioned upon the following: The Fee Owner
approving the purchaser as an assignee of the seller's right, title and interest
under the Land Lease as provided for in the Land Lease; if the Fee Owner, for
any reason, refuses to approve this transaction, this Agreement will be deemed
automatically void.
It is acknowledged that the seller does not desire to abandon its right to any
Non-pass-through Impounds held by the Lender, therefore, regarding the
Non-Pass-through Impounds, the seller and the purchaser agree as follows: at
Closing, the seller shall deposit in an escrow ("Impounds Escrow") with the
title company an amount equal to the amount of the monthly Non-Pass-through
Impounds required by the Loan times twenty-four (i.e. the Non-Pass-through
Impound requirement for a two-year period). The amount deposited in the Impounds
Escrow will be deposited in an interest bearing FDIC insured bank account (the
"Impounds Escrow Account"). The Impounds Escrow shall provide that the purchaser
may draw out of the Impounds Escrow Account every month one twenty-fourth
(1/24th) of the total amount originally deposited as reimbursement for the
Non-Pass-through Impound deposits that the purchaser will be making each month
to the Lender under the Loan. Also at Closing, the purchaser shall execute a
promissory note (the "Impounds Note") in an amount equal to the sum of (a) the
amount deposited in the Impounds Escrow plus (b) the amount of all
Non-Pass-through Impounds that are on deposit with the Lender at that time. The
Impounds Note will mature on the 24th month following the date of Closing and
will be payable to the seller or order. The Impounds Note will bear interest at
the same rate of the Impounds Escrow Account. The Impounds Note will be
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guaranteed by the seller's parent company; the form and substance of the
Impounds Note and the guaranty (as well as the credit-worthiness of the
guarantor) will be acceptable to seller at its reasonable discretion.
RIDER #3
Regarding sections 9 and 10 of the Agreement (the provisions that mainly deal
with conveyance of the Shopping Center), the seller and the purchase agree as
follows, anything to the contrary in this Agreement notwithstanding; at closing,
if closing occurs, to convey the subject property to the purchaser the seller
will only be obligated to (a) assign its right as tenant under the Land Lease,
pursuant to the provisions of the Land Lease and will sign a memorandum of
assignment to be recorded with the appropriate land records of the location of
the Shopping Center; and (b) assign its right as landlord (or lessor, as the
case may be) in the subleases for the Shopping Center. The purchaser shall
accept the assignment under the land lease as required by the Land Lease to make
such assignment effective. The seller shall pay for the basic premium for the
purchaser's title insurance and will reasonably cooperate, at no cost to the
seller (other than an obligation to pay the premium at the Closing for the
endorsements listed in section 10 of the letter portion of this Agreement), for
the purchaser to obtain, at its cost, any endorsements that the purchaser may
require. Under no circumstances will the seller be obligated to cure any title
or survey objections that the purchaser may have. Although no credit will be
given to the seller at closing for delinquent rent receivables, if such
receivables are paid to the purchaser within 12 months following closing, the
purchaser will promptly pay same to the seller.
RIDER #4
With respect to section 15 of the Agreement (the "holdback" provision), the
seller and the purchaser agree as follows, anything to the contrary in this
Agreement notwithstanding:
HOLDBACK DESCRIPTION.
The maximum possible holdback from the purchase price at the Closing will be (a)
$250,800 for the "Clothstime" space (ie. the space formerly occupied by
Clothstime and currently vacant) which amount is derived by multiplying the
square footage of such space (3,800 square feet) by $22 per square foot (i.e.
$20 psf for rent and $2 psf for "pass-throughs") and the result multiplied by 3
(i.e. a three-year period) and (b) $93,049.50 for the Men's Warehouse sublease,
which amount is derived by multiplying the square footage of such space (4,539
square feet) by $20.50 per square foot (i.e. $18.50 psf for rent and $2 psf for
"pass-throughs") and the result multiplied by 1 (i.e. a one-year period). Both
holdbacks will be deposited in escrow with the title company at Closing, under a
joint escrow agreement.
MEN'S WAREHOUSE HOLDBACK RELEASE.
It is acknowledged that the Men's Warehouse sublease is signed or about to be
signed and the purchaser shall review such sublease together with the other
subleases prior to Closing. If Men's Warehouse commences paying rent prior to
the Closing, there will be no holdback for such space. If Men's Warehouse
commences paying rent ("Men's Warehouse Commencement") after Closing, the Men's
Warehouse holdback shall be released as follows: (a) in arrears, on the last day
of every month (or, if applicable, part of a month) between the date of Closing
and the date of the Men's Warehouse Commencement, a release(s) will be made to
the purchaser at a per-diem rate of $254.93; and (b) the balance to the seller
upon the Men's Warehouse
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Commencement and the verification (by an estoppel certificate from such
subtenant or by another manner reasonably satisfactory to the purchaser) that no
amounts for tenant improvement or similar allowances are owed to such subtenant
from the landlord under such sublease.
CLOTHSTIME SPACE HOLDBACK RELEASE.
With respect to the Clothstime space, for a period of three years after Closing,
the seller shall have the exclusive right to lease such space; the purchaser
(for purposes of this paragraph "purchaser" includes a successor owner of the
Shopping Center) agrees to sign as landlord any such new sublease presented by
the seller provided that it is a "triple-net" lease, at $20 psf or higher, and
for a minimum 5 year term with a subtenant that is reasonably acceptable to the
purchaser (a subtenant whose use violates then existing exclusives or prohibited
uses in the Shopping Center will not be acceptable to the purchaser). The seller
(and its agents and contractors) shall have the right and license to enter the
Clothstime space to perform any tenant improvement work required under such new
sublease; and the parties agree to sign any reasonable additional documents
required to further and implement the agreements and understandings of this
provision. All construction shall comply with all governmental agencies and
shall be approved by the purchaser before commencement, but the purchaser will
not withhold its approval if the approval of the governmental agencies having
jurisdiction has been obtained. The Clothstime holdback shall be released as
follows: (a) in arrears, on the last day of every month (or, if applicable, part
of a month) between the date of Closing and the date that the Clothstime space
is leased and the subtenant commences to pay rent ("New Sublease Commencement"),
a release(s) will be made to the purchaser at a per-diem rate of $229.04; and
(b) the balance to the seller upon the New Sublease Commencement and the
verification (by an estoppel certificate from such subtenant or by another
manner reasonably satisfactory to the purchaser) that no amounts for tenant
improvement or similar allowances are owed to such subtenant from the landlord
under such sublease. If the New Sublease Commencement has not occurred within 3
years following the Closing date, the seller will immediately forfeit all
portion of the $250,800 holdback that the seller may have been entitled to.
RIDER #5
Regarding section 17 of the Agreement (the provision that mainly deals with the
"Retained Outlots" i.e. the part of the Shopping Center so identified on Exhibit
A (the site plan) of this Agreement), the seller and the purchaser agree as
follows, anything to the contrary in this Agreement notwithstanding: Within 15
business days following final execution and delivery of this Agreement, the
seller and the purchaser will agree on a form sublease (the "Outlots Sublease")
whereby the seller (or its designee) will sublease from the purchaser the
Retained Outlots. The main terms for the Outlots Sublease shall be as follows:
(a) The Outlots Sublease shall be for a term and extension options identical to
the remaining term and extension options of the Land Lease; (b) The tenant under
the Outlots Sublease shall have the right to develop (or cause the development
of) the Retained Outlots and further sublease them to third parties; any
improvements to be placed on the Retained Outlots shall be constructed in
accordance with applicable law, rules and regulations; (c) The rental (base
rental as well as prorata share of real property taxes, common area maintenance
and insurance) payable under the Outlots Sublease shall commence at the time
that the development on the Retained Outlots is completed and the occupants
start paying rent (except, if the county assessor provides an amount for the
portion of each annual tax bill for the Land only (not the improvements of the
Shopping Center), then the prorate share (based on land acreage) of the Retained
Outlots for such land portion for the annual tax bill will be payable to the
seller (upon request, upon presentation of the bill with appropriate back-up
information) up to the time that the rent commences, as aforesaid); (d) for a
period of 10
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years after the time that the Retained Outlets (as developed) are 100% occupied
with all occupants thereof paying rent (the "Option Period"), the landlord under
the Outlets Sublease shall have the option to purchase the tenant's right in the
Retained Outlots for a price equal to the base rent received from the occupants
thereof divided by 10.00% ("Price"). During the Option Period, the tenant under
the Outlots Sublease will have a "put" right to the landlord (i.e. the right to
obligate the landlord to purchase the tenant's right in the Retained Outlots for
the Price); provided, however, in order for such "put" right to be effective,
the tenant under the Outlots Sublease must have obtained at an earlier date the
reasonable approval of the landlord under the Outlots Sublease for the identity
of the occupants on the developed Retained Outlots (it being understood however
that (a) chain-store national or regional retailers or (b) occupants who
land-leased a Retained Outlot and have spent their own funds to build a building
thereon, will be deemed approved; provided that the uses of such occupants do
not violate prohibited uses or exclusives for other occupants of the Shopping
Center that are set forth in the Outlots Sublease). If the seller and the
purchaser cannot agree on the form Outlots Sublease in such 15-day period, this
Agreement will be terminated.
MISCELLANEOUS PROVISIONS
Anything to the contrary in this Agreement notwithstanding, (A) in no event and
under no circumstances will the seller be obligated to correct any objections
that the purchaser may make to the condition of the Shopping Center, including
without limitation; (a) title and survey objections; (b) physical inspection of
buildings and other improvements; (c) the form or substance of the Land Lease,
any of the subleases, operating agreements, etc; (d) vacancies in excess of the
spaces for which holdbacks were provided as set forth above; (e) the approval of
the Fee Owner or of the Lender; (f) any alleged code or regulation violations
for the Shopping center; and (B) if purchaser is not satisfied with any aspect
of the condition of the Shopping Center, the purchaser's sole and exclusive
remedy shall be to either terminate this Agreement or waive the objection and
proceed with closing.
If the purchaser, its agents or consultants enter the Shopping Center for
inspections and other so-called "due diligence" inquiries, they will do so in a
professional manner, during business hours, without disturbing the business
operations of the occupants of the Shopping Center. The purchaser agrees to and
will indemnify, defend and hold the seller harmless from and against any and all
liability, cost and expense (including, without limitation, reasonable
attorneys' fees and costs of suit) that result from the entry on the Shopping
Center of the purchaser, its agents, its contractors, or its consultants. Any
and all information that the purchaser obtains on the Shopping Center
(excluding, however, information that was already public knowledge without an
act by the purchaser or its representatives) shall be kept confidential and will
be disclosed only to such necessary representatives of the purchaser (attorneys,
accountants, property managers, etc) that need to have same to assist the
purchaser with the "due diligence" investigations on the Shopping Center; and
the purchaser shall inform such representatives and obtain their agreement that
they will also keep such information confidential. If the closing does not
occur, the purchaser shall promptly return to the seller such information. The
purchaser agrees that they have and will rely on their independent studies and
investigations to determine whether they desire to proceed with the closing of
this transaction and have not and will not rely on any representation or
warranty by the seller.
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If, for any reason whatsoever, the closing contemplated by this Agreement (the
"Closing") has not occurred prior to April 1, 2004, this Agreement will be
automatically terminated and neither party shall have any rights or obligations
against the other.
SELLER:
PLAZA SANTA FE II LLC,
a New Mexico limited liability company
By: PSF II Manager, Inc.,
a New Mexico corporation,
its managing member
By: /s/ Peter Dellaportas
----------------------------
Name: Peter Dellaportas
--------------------------
Title: President
-------------------------
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS, INC.
By: /s/ Mark Youngman
----------------------
Name: MARK YOUNGMAN
-----------------------
Title: VICE PRESIDENT
-----------------------
By: /s/ G. Joseph Cosenza
----------------------
NAME: G. Joseph Cosenza
-------------------
TITLE: President
-------------------
5
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BILL OF SALE
Know All Men By These Presents, that in consideration of the sum of Ten Dollars
and other valuable consideration, the receipt of which is hereby acknowledged,
PLAZA SANTA FE II LLC, a New Mexico limited liability company does Grant, Sell,
Transfer, and Deliver unto INLAND WESTERN SANTA FE, L.L.C., a Delaware limited
liability company, the following goods and chattels, viz.;
All personal property owned by the said grantor, if any, located in and used in
connection with the operation of that certain shopping center located on the
real property legally described as
Tracts A-l and A-2, all as shown on plat of survey entitled "Dedication Plat &
Land Split Tracts A-l and A-2, Plaza Santa Fe Phase 2, Santa Fe New Mexico,
March 2000" filed for record as Document Number 1123,597, appearing in Plat Book
449 at page 27, records of Santa Fe County, New Mexico
Grantor states that it believes that there is no personal property owned by
grantor on the above-described real property and used in connection with the
operation of such real property, however, this conveyance is made to indicate
grantor's intent that if such personal property exists, it is transferred to
grantee.
To Have And To Hold, all and singular, the said goods and chattels, forever; and
the said grantor hereby covenant with the said grantee that it is the lawful
owner of the said goods and chattels; that they are free from all encumbrances;
that it has good right to sell the same as aforesaid. Except as herein stated,
the personal property hereby transferred is transferred in an As-Is, Where-Is
condition, With All Faults and the said grantor makes no representation or
warranty for such property's condition including, without limitation,
merchantability or fitness of purpose.
In Witness Whereof, the said grantor has hereunto set its hands this 31st day of
May, 2004.
PLAZA SANTA FE II LLC,
a New Mexico limited liability company
By: PSF II Manager, Inc., a New Mexico corporation,
Its: Manager
By: /s/ Peter Dellaportas
-------------------------------------
Its: President
------------------------------------