Exhibit 10.387
Xxxxxx Xxxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX
Fifth Amendment to Option
FIFTH AMENDMENT TO OPTION TO PURCHASE
REAL PROPERTY
THIS FIFTH AMENDMENT TO OPTION TO PURCHASE REAL PROPERTY (the "Fifth
Amendment") is made and entered into as of the 29th day of September 2004, by
and between Silver Oaks Associates, Limited Partnership, a Tennessee limited
partnership ("Seller") and Inland Real Estate Acquisitions, Inc. ("Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer entered into that certain Option To Purchase Real
Property dated June 15, 2004, as amended (the "Option Agreement"), for the sale
and purchase of the property commonly known as Azalea Square Shopping Center
located in Summerville, South Carolina, as legally described by the Option
Agreement (the "Property").
WHEREAS, Buyer and Seller have mutually agreed to amend certain provisions
of the Option Agreement.
NOW THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Buyer and Seller agree as follows:
1. The Option Period as defined in the second paragraph of the Option
Agreement as previously amended by Amendment to Option to Purchase
Real Property and by the Third Amendment to Option to Purchase Real
Property is hereby further amended by changing the date of September
20, 2004 to October 8, 2004 at 5:00 p.m. Chicago, Illinois time.
2. The last sentence of the second paragraph of the Option Agreement is
amended by deleting the words "...or before thirty (30) days from the
Option Date" and insert "October 18, 2004" in its place.
3. This Fifth Amendment may be executed in one or more counterparts, each
of which shall constitute an original and all of which taken together
shall constitute one agreement. Each person executing this Fifth
Amendment represents that such person has full authority and legal
power to do so and bind the party on whose behalf he or she has
executed this Fifth Amendment. Any counterpart to this Fifth Amendment
may be executed by facsimile copy and shall be binding on the parties.
Xxxxxx Xxxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX
Fifth Amendment to Option
Except as modified herein and by the Amendment and the Second Amendment and
the Third Amendment and the Fourth Amendment to the Option Agreement, the Option
Agreement shall remain unmodified and in full force and effect.
Seller:
SILVER OAK ASSOCIATES, LIMITED PARTNERSHIP, a
Tennessee limited partnership
By: Hickory Ridge Development Corporation, a
Tennessee corporation
Its: General Partner
By: /s/ Xxxxxx Xxxxxx [ILLEGIBLE], authorized agent
-----------------------------------------------
Name: Xxxxxx Xxxxxx
---------------------------------------------
Title: Pres.
--------------------------------------------
Purchaser:
INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation
By: /s/ Xxxxx X. Xxxxxxx, Authorized Agent
-----------------------------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------------------------
Title: Acquisitions Officer
--------------------------------------------
0
Xxxxxx Xxxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX
Fourth Amendment to Option
FOURTH AMENDMENT TO OPTION TO PURCHASE
REAL PROPERTY
THIS FOURTH AMENDMENT TO OPTION TO PURCHASE REAL PROPERTY (the "Fourth
Amendment") is made and entered into as of the 10th day of September 2004, by
and between Silver Oaks Associates, Limited Partnership, a Tennessee limited
partnership ("Seller") and Inland Real Estate Acquisitions, Inc. ("Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer entered into that certain Option To Purchase Real
Property dated June 15, 2004, as amended (the "Option Agreement"), for the sale
and purchase of the property commonly known as Azalea Square Shopping Center
located in Summerville, South Carolina, as legally described by the Option
Agreement (the "Property").
WHEREAS, Buyer and Seller have mutually agreed to amend certain provisions
of the Option Agreement.
NOW THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Buyer and Seller agree as follows:
1. The Option Period as defined in the second paragraph of the option
Agreement as previously amended by Amendment to Option to Purchase
Real Property and by the Third Amendment to Option to Purchase Real
Property is hereby further amended by changing the date of September
10, 2004 to September 20, 2004 at 5:00 p.m. Chicago, Illinois time
provided, however, that the Closing Date shall remain September 29,
2004.
2. This Fourth Amendment may be executed in one or more counterparts,
each of which shall constitute an original and all of which taken
together shall constitute one agreement. Each person executing this
Fourth Amendment represents that such person has full authority and
legal power to do so and bind the party on whose behalf he or she has
executed this Fourth Amendment. Any counterpart to this Fourth
Amendment may be executed by facsimile copy and shall be binding on
the parties.
Except as modified herein and by the Amendment and the Second Amendment and
Third Amendment to the Option Agreement, the Option Agreement shall remain
unmodified and in full force and effect.
Xxxxxx Xxxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX
Fourth Amendment to Option
Seller:
SILVER OAK ASSOCIATES, LIMITED PARTNERSHIP, a
Tennessee limited partnership
By: Hickory Ridge Development Corporation, a
Tennessee corporation
Its: General Partner
By: /s/ Xxxxxx Xxxxxx [ILLEGIBLE], authorized Agent
-----------------------------------------------
Name: Xxxxxx Xxxxxx
---------------------------------------------
Title: President
--------------------------------------------
Purchaser:
INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation
By: /s/ [ILLEGIBLE]
-----------------------------------------------
Name: [ILLEGIBLE]
---------------------------------------------
Title: [ILLEGIBLE]
--------------------------------------------
0
Xxxxxx Xxxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX
Third Amendment to Option
THIRD AMENDMENT TO OPTION TO PURCHASE
REAL PROPERTY
THIS THIRD AMENDMENT TO OPTION TO PURCHASE REAL PROPERTY (the "Third
Amendment") is made and entered into as of the 30th day of August 2004, by and
between Silver Oaks Associates, Limited Partnership, a Tennessee limited
partnership ("Seller") and Inland Real Estate Acquisitions, Inc. ("Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer entered into that certain Option To Purchase Real
Property dated June 15, 2004, as amended (the "Option Agreement"), for the sale
and purchase of the property commonly known as Azalea Square Shopping Center
located in Summerville, South Carolina, as legally described by the Option
Agreement (the "Property").
WHEREAS, Buyer and Seller have mutually agreed to amend certain provisions
of the Option Agreement.
NOW THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Buyer and Seller agree as follows:
1. The Option Period as defined in the second paragraph of the Option
Agreement as previously amended by Amendment to Option to Purchase
Real Property is hereby further amended by changing the date of August
30, 2004 to September 10, 2004 at 5:00 p.m. Chicago, Illinois time
provided, however, that the Closing Date shall remain September 29,
2004.
2. This Third Amendment may be executed in one or more counterparts, each
of which shall constitute an original and all of which taken together
shall constitute one agreement. Each person executing this Third
Amendment represents that such person has full authority and legal
power to do so and bind the party on whose behalf he or she has
executed this Third Amendment. Any counterpart to this Third Amendment
may be executed by facsimile copy and shall be binding on the parties.
Except as modified herein and by the Amendment and the Second Amendment to
the Option Agreement, the Option Agreement shall remain unmodified and in full
force and effect.
(SIGNATURE PAGE FOLLOWS)
Xxxxxx Xxxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX
Third Amendment to Option
Seller:
SILVER OAK ASSOCIATES, LIMITED PARTNERSHIP, a
Tennessee limited partnership
By: Hickory Ridge Development Corporation, a
Tennessee corporation
Its: General Partner
By: /s/ Xxxxxx Xxxxxx [ILLEGIBLE], authorized agent
-----------------------------------------------
Name: Xxxxxx Xxxxxx
---------------------------------------------
Title: President
--------------------------------------------
Purchaser:
INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation
By: /s/ Xxxxx X. Xxxxxxx, Authorized Agent
-----------------------------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------------------------
Title: Acquisitions Officer
--------------------------------------------
0
Xxxxxx Xxxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX
Amendment to Option
SECOND AMENDMENT TO OPTION TO
PURCHASE REAL PROPERTY
THIS SECOND AMENDMENT TO OPTION TO PURCHASE REAL PROPERTY ("Second
Amendment") is made and entered into as of this _______ day of July, 2004 by and
between SILVER OAK ASSOCIATES, LIMITED PARTNERSHIP, A TENNESSEE LIMITED
PARTNERSHIP ("Seller") and INLAND REAL ESTATE ACQUISITIONS, INC., AN ILLINOIS
CORPORATION ("Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer entered into that certain Option to Purchase Real
Property dated June 15, 2004 as amended by that certain Amendment to Option to
Purchase Real Property dated July 12, 2004 (collectively, the "Agreement").
WHEREAS, Buyer and Seller desire to amend the Agreement for the purpose of
correcting the legal description to include two additional tracts which are
presently leased by CMAC Incorporated (d/b/a Xxxxx'x Roadhouse) under lease
dated June 18, 2003 and which tracts were intended to be included in the
Agreement.
NOW, THEREFORE, in consideration of the premises, the covenants and
agreements hereinafter set forth, the sum of Ten Dollars and No/100 ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which are
hereby expressly acknowledged, Buyer and Seller hereby modify and amend the
Agreement as follows:
1. EFFECTIVE DATE. This Second Amendment shall be effective as of the
date first set forth above.
2. DEFINITIONS. Any capitalized words or phrases used and not defined in
this Second Amendment shall have the meanings ascribed to them in the Agreement.
3. RECITALS. The recitals set forth above are hereby incorporated by this
reference herein and are set forth again in full as a part of this Second
Amendment.
4. LEGAL DESCRIPTION. The Legal Description attached to the Agreement is
hereby deleted in its entirety and inserted, in lieu thereof, shall be Exhibit
"A" attached to this Second Amendment. After the date of this Second Amendment,
each and every reference in the Agreement and this Second Amendment to the legal
description as set forth on Exhibit "A" shall be deemed to refer to the Exhibit
"A" attached to this Second Amendment.
5. CONFLICT. In the event of any conflict, inconsistency, or incongruity
between any provision of this Second Amendment and any provision of the
Agreement, the provisions of this Second Amendment shall govern and control.
6. EXECUTION IN COUNTERPART. This Second Amendment may be executed in two
(2) or more counterparts, each of which shall be deemed an original and all of
which, when taken together, shall constitute one (1) instrument.
-1-
7. SEVERABILITY. Invalidation of any of the provisions contained in this
Second Amendment, or of the application thereof to any person by judgment or
court older shall in no way affect any of the other provisions hereof or the
application thereof to any other person and the same shall remain in full force
and effect.
8. ENTIRE AGREEMENT. This Second Amendment, together with the Agreement,
constitutes the entire agreement between the parties pertaining to the subject
matter of this Second Amendment, and any and all other written or oral
agreements existing between the parties before the date of this Second Amendment
with respect to the subject matter of this Second Amendment are expressly
canceled.
(SIGNATURE PAGE FOLLOWS)
-2-
IN WITNESS WHEREOF, the parties have caused this Second Amendment to be
executed under seal effective as of the day and year first above written.
Seller:
SILVER OAK ASSOCIATES, LIMITED PARTNERSHIP, A
TENNESSEE LIMITED PARTNERSHIP
By: Hickory Ridge Development Corporation, a
Tennessee corporation
Its: General Partner
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxx
---------------------------------------
Its: Pres.
----------------------------------------
Purchaser:
INLAND REAL ESTATE ACQUISITIONS, INC., AN ILLINOIS
CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------------------------
Its: Authorized Agent
----------------------------------------------
-3-
EXHIBIT "A"
LEGAL DESCRIPTION
Tracts 2, 2A, 4, 7, 9, and 14 as shown and depicted on that certain plat of
survey entitled "Subdivision Map TMS 000-00-00-000 Tract 'A' owned by SILVER OAK
ASSOCIATES, LIMITED PARTNERSHIP" prepared by Xxxxx X. Xxxx, XXX-00000, dated
March 25, 2002, last revised April 15, 2002 and filed for record in Plat Cabinet
P, Pages 193A through 195A, inclusive, Berkeley County, South Carolina and Tract
13-A as shown and depicted on that certain plat of survey entitled "Record Map
Showing the Subdivision of Tract 13 into Tracts 13-A and 13-B" prepared by Xxxxx
X. Xxxx, XXX-00000, dated May 23, 2003, last revised July 3, 2003, and filed for
record July 7, 2003 in Plat Cabinet Q, 44-H, Berkeley County, South Carolina
Records.
-0-
Xxxxxx Xxxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX
Amendment to Option
AMENDMENT TO OPTION TO PURCHASE
REAL PROPERTY
THIS AMENDMENT TO OPTION TO PURCHASE REAL PROPERTY (the "Amendment") is
made and entered into as of the 12th day of July 2004, by and between Silver
Oaks Associates, Limited Partnership, a Tennessee limited partnership ("Seller")
and Inland Real Estate Acquisitions, Inc. ("Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer entered into that certain Option To Purchase Real
Property dated June 15, 2004 (the "Option Agreement"), for the sale and purchase
of the property commonly known as Azalea Square Shopping Center located in
Summerville, South Carolina, as legally described by the Option Agreement (the
"Property").
WHEREAS, Buyer and Seller have mutually agreed to amend certain provisions
of the Option Agreement.
NOW THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Buyer and Seller agree as follows:
1. The Option Period as defined in the second paragraph of the Option
Agreement is hereby amended by deleting the words in line 7 "...or
before thirty (30) days from the Effective Date ..." and inserting:
"...August 30, 2004 at 5:00 p.m. (Chicago, Illinois time)..." therein.
2. This Amendment may be executed in one or more counterparts, each of
which shall constitute an original and all of which taken together
shall constitute one agreement. Each person executing this Amendment
represents that such person has full authority and legal power to do
so and bind the party on whose behalf he or she has executed this
Amendment. Any counterpart to this Amendment may be executed by
facsimile copy and shall be binding on the parties.
Except as modified herein, the Option Agreement shall remain unmodified and
in full force and effect.
(SIGNATURE PAGE FOLLOWS)
Xxxxxx Xxxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX
Amendment to Option
Seller:
SILVER OAK ASSOCIATES, LIMITED PARTNERSHIP, a
Tennessee limited partnership
By: Hickory Ridge Development Corporation, a
Tennessee corporation
Its: General Partner
By: /s/ Xxxxxx Xxxxxx by [ILLEGIBLE], authorized agent
--------------------------------------------------
Name: Xxxxxx Xxxxxx
------------------------------------------------
Title: President
-----------------------------------------------
Purchaser:
INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation
By: /s/ Xxxxx X. Xxxxxxx, Authorized Agent
------------------------------------------------
Name: Xxxxx X. Xxxxxxx
----------------------------------------------
Title: Acquisition Associate
---------------------------------------------
2
OPTION TO PURCHASE REAL PROPERTY
THIS OPTION TO PURCHASE REAL PROPERTY ("Option Agreement") is entered as of
the 15th day of June, 2004 (the "Effective Date"), by and between SILVER OAK
ASSOCIATES, LIMITED PARTNERSHIP, A TENNESSEE LIMITED PARTNERSHIP, with offices
at c/o Xxxxxxxx Xxxxxx Company, 000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxx,
Xxxxxxxxx 00000 ("Seller") and INLAND REAL ESTATE ACQUISITIONS, INC., AN
ILLINOIS CORPORATION, with offices at 0000 Xxxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx
00000 ("Buyer").
In consideration of the payment from Buyer to Seller of ONE HUNDRED AND
00/100 DOLLARS ($100.00) (the "Option Fee"), the receipt and sufficiency of
which are herby acknowledged, Seller hereby grants unto Buyer an option (the
"Option") to purchase the Azalea Square Shopping Center (the "Shopping Center"),
consisting of approximately 32.85 acres of land, located in the City of
Summerville, Berkeley County, South Carolina (the "Property"), as more
particularly described on EXHIBIT "A" attached hereto and incorporated herein by
this reference. Such Option shall be exercised on or before thirty (30) days
from the Effective Date (the "Option Date") (the period during which the Option
may be exercised is hereafter referred to as the "Option Period"), by written
notice to Seller (received by Seller on or before the expiration of the Option
Period), accompanied by a deposit in the amount of Five Hundred Thousand and
00/100 Dollars ($500,000.00) (the "Deposit"), which shall be refundable only
upon the default by Seller. The sale of the Property shall close on or before
thirty (30) days from the Option Date (the "Closing Date").
1. PURCHASE PRICE: The Purchase Price for the Property shall be THIRTY
MILLION TWELVE THOUSAND FIVE HUNDRED TWENTY-FIVE AND NO/100 DOLLARS
($30,012,525.00) to be paid in cash plus or minus prorations.
2. WARRANTY OF TITLE: Seller warrants that it owns insurable fee simple
title to the Property, subject to liens and encumbrances of record. Conveyance
of the Property, with all improvements thereon, is to be made by special
warranty deed, subject only to any recorded restrictions, covenants and
easements applicable to the Property and other recorded encumbrances. In the
event title to said Property be defective and cannot be remedied on or before
the Option Date, Buyer may terminate the Option Agreement and upon such
termination, Seller shall retain the Option Fee as earned consideration. Seller
covenants that from and after the date hereof and through the Closing Date (if
the Option is exercised), Seller shall neither (i) convey title to the Property
to any party other than Buyer or its designee, nor (ii) grant an option or other
contract or property right to acquire the Property other than Buyer. In the
event Seller conveys the Property to Buyer by said special warranty deed, Seller
shall pay all transfer taxes relating thereto.
Notwithstanding anything to the contrary contained herein, Seller shall
have the right to continue to negotiate and enter into leases for retail space
on the Property without the consent of Buyer until the exercise of the Option by
Buyer. After the Option Date (if the Option is exercised) and until the Closing
Date, any lease shall conform to the proforma lease rates (the "Proforma Lease
Rates") set forth in EXHIBIT "B" attached hereto and by this reference
incorporated herein. Seller shall provide Buyer with copies of all leases
executed by Seller during the term of the Option Agreement.
-1-
3. PROPERTY INSPECTION: During the period of the Option Agreement, Buyer
shall have access, at all reasonable time, upon twenty-four (24) hours prior
notice to Seller, and subject to the rights of tenants in possession, to inspect
the Property and to review all records of Seller relative to the Property, which
records shall be made available, on two (2) business days notice. Buyer shall
indemnify Seller for and against all claims, costs and expenses (including
reasonable attorney fees) arising out of or relating to Buyer's inspection of
the Property, which obligation shall survive the termination of this Agreement.
Seller will cooperate with Buyer to obtain reasonable estoppel certificates from
the tenants of the Property.
4. CONVEYANCE AT CLOSING: Transfer of the Property, with all improvements
thereon, is to be made by quitclaim xxxx of sale (as to all personal property,
if any) and special warranty deed, subject only to existing zoning ordinances
and to any recorded restrictions, covenants and easements applicable to the
Property, other recorded encumbrances and subject to any taxes not then due and
payable. All leases on the Property shall also be assigned by an assignment and
assumption of lease agreement, executed by both Seller and Buyer.
5. PRORATIONS AND EXPENSES: Real estate ad valorem taxes applicable to
the Property ("Taxes") shall be prorated as of the Closing Date on the basis of
the calendar year in which the Closing Date occurs, regardless of when such
Taxes become a lien or are payable. If the rate of any such Taxes shall not be
fixed prior to the Closing Date, the adjustment and proration thereof on the
Closing Date shall be upon the basis of the rate for the preceding calendar year
applied to the latest assessed valuation, and the same shall be appropriately
and promptly adjusted after Closing Date, if necessary, between Seller and Buyer
when the rate is fixed for the calendar year during which the Closing occurs.
All prior unpaid taxes, mortgages and liens including assessments, pending or
confirmed, water and sewer fees and other sums due any governmental authority,
if any shall be paid by the Seller at or prior to the Closing Date. All revenues
and expenses of the Property shall be pro-rated as of the Closing Date. The
costs of any survey, title commitment, title policies, recording and/or transfer
fees or taxes shall be shared equally by Buyer and Seller. Any inspection costs,
shall be paid by Buyer.
6. RISK OF LOSS: Until the Closing Date, Seller assumes risk of loss or
damage to the Property by fire, windstorm, other casualty, or condemnation, but
shall be entitled to recover from the Buyer any damage or loss caused by Buyer's
negligence during its inspection of the Property.
7. MASTER LEASE: Concurrently with the Closing Date, the Seller shall
lease back from Buyer all the unleased space in the Shopping Center (based on
ninety-five percent [95%] occupancy of the inline shop space totaling 26,103
square feet) for a period of three (3) years from the Closing Date ("Master
Lease Escrow Agreement"). The parties agree that the five percent (5%) vacancy
factor for the inline shop space equals one thousand three hundred five (1,305)
square feet. The rent for any such unleased space (the "Master Lease Rent")
shall be those shown in EXHIBIT "B" hereof. The Master Lease Escrow Agreement is
to be negotiated in good faith and finalized by the parties on or prior to the
Option Date. In the event that the parties are not able to agree to the terms
and conditions of the Master Lease Escrow Agreement prior to the Option Date,
then either party shall have the right to terminate this Option Agreement upon
written notice to the other party. It is the understanding of the parties that
the total base rent for the Shopping Center as of the Closing Date shall be not
less than Two Million Two Hundred
-2-
Sixty Three Thousand Nine Hundred Seventy One Dollars and No/100 ($2,263,971.00)
(the "Total Base Rent') which Total Base Rent shall consist of actual tenant
base rent payable under signed leases pertaining to the Shopping Center ("Actual
Base Rent") plus, to the extent such Actual Base Rent is less than the Total
Base Rent, such shortfall (the "Shortfall"), shall be covered by the deposit of
good funds pursuant to the Master Lease Escrow Agreement (the "Master Lease
Shortfall Amount") so that as of the Closing Date the Actual Base Rent plus the
Master Lease Shortfall Amount total not less than the Total Base Rent.
Notwithstanding the foregoing, a condition of Closing for both parties, unless
otherwise waived in writing, is that as of the Closing Date, Actual Base Rent
must be not less than One Million Nine Hundred Fifty Two Thousand One Hundred
Seventy Nine Dollars and No/100 ($1,952,179.00) (the "Threshold Amount") which
represents eighty five percent (85%) of the proforma base rent without regard to
a vacancy factor (I.E., 85% of $2,296,681.00 [the proforma base rent without
regard to a vacancy factor] = $1,952,179.00).
8. DEFAULT: Should the Buyer fail or refuse to exercise the Option
granted herein, within the time set forth above, the Seller shall have the right
to declare the Option Agreement canceled, and shall retain the Option Fee as
earned consideration. In the event Buyer exercises the Option as provided
herein, should the Buyer fail or refuse to carry out its obligations under the
Option Agreement, Seller shall have as its sole and exclusive remedy, the right
to retain, in addition to the Option Fee, the Deposit as liquidated damages and
not as a forfeiture or penalty, both Buyer and Seller hereby acknowledging that
Seller's actual damages at such time will be difficult to ascertain and measure,
and that such liquidated damages will represent a fair and reasonable estimate
of such damages that will be sustained by Seller.
Should the Seller fail or refuse to carry out its obligations under the
Option Agreement, the Buyer shall have the right to: (1) declare the Option
Agreement canceled, in which event the Option Fee and the Deposit shall be
refunded to the Buyer; or (2) to affirm the Option Agreement and enforce its
specific performance; or (3) recover damages for its breach. The Seller shall be
liable for and hereby agrees to pay for all costs and expenses incurred by the
Buyer resulting from the Seller's breach of the Option Agreement, including
reasonable attorneys' fees, court costs and other damages.
9. BROKER: Seller agrees to pay any brokerage commission except Buyer
will pay a brokerage commission to Buyer and/or its affiliate, if any. Seller
and Buyer agree to indemnity and hold the other harmless from any claims for
commissions claimed by, through or under such party.
10. ASSIGNMENT: Buyer may assign or transfer the Option Agreement without
the prior written consent of Seller to an affiliate of Buyer. Any other
assignment shall require the prior written consent of Seller, which consent may
be withheld or granted in Seller's sole discretion.
11. INDEMNITY. From and after the date of Closing (a) the Seller agrees to
indemnify, protect, defend, and hold Buyer, its directors, officers, and owners
harmless from and against all claims, actions, liabilities, losses, damages,
costs, and expenses, including, but not limited to, reasonable attorney's fees
and court costs, incurred by Buyer, its directors, officers and owners and
arising from or related to Seller's acts or omissions occurring before Closing
or the breach of any agreement that Seller may have with a third party, which
breach occurs before
-3-
Closing; and (b) Buyer agrees to indemnify, protect, defend, and hold the
Seller, its general partner and limited partners, harmless from and against all
claims, actions, liabilities, losses, damages, costs, and expenses, including,
but not limited to, reasonable attorney's fees and court costs, incurred by the
Seller, its general partner and limited partners, and arising from or related to
Buyer's acts or omissions occurring on or after Closing or the breach of any
agreement that Buyer may have with a third party, which breach occurs after
Closing. The provisions of this Paragraph 11 shall survive for a period of one
(1) year from the date of Closing.
12. MEMORANDUM OF OPTION. At the option of Buyer exercised by giving
written notice to Seller, Seller and Buyer shall promptly execute and Seller
shall promptly deliver to Buyer a Memorandum of Option for the purpose of
recording Buyer's interest in the Property. No such Memorandum of Option shall
modify or change the terms of this Agreement. Buyer to prepare the Memorandum of
Option for Seller's reasonable approval and the responsibility for recording and
the cost thereof shall be borne by Buyer.
13. TIME IS OF THE ESSENCE: Time is of the essence in respect to all
provisions of the Option Agreement that specify a time for performance.
14. COUNTERPARTS. The Option Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
15. APPLICABLE LAW. The Option Agreement shall, in all respects, be
governed by the laws of the State of South Carolina.
16. ENTIRE AGREEMENT: THE OPTION AGREEMENT CONSTITUTES THE ENTIRE
AGREEMENT BETWEEN THE PARTIES AND THERE ARE NO OTHER REPRESENTATIONS OR
WARRANTIES OTHER THAN THOSE EXPRESSED IN WRITING AND SIGNED BY ALL PARTIES.
EXECUTED as of the day and year first above written.
[SIGNATURE ACKNOWLEDGMENTS ON FOLLOWING PAGES]
-4-
IN THE PRESENCE OF: BUYER:
INLAND REAL ESTATE ACQUISITION,
INC., AN ILLINOIS CORPORATION
/s/ Xxxxx Xxxxxxx By: /s/ Xxxxx X. Xxxxxxx
-------------------------------- ----------------------------
Witness 1 Name: Xxxxx X. Xxxxxxx
--------------------------
Its: Authorized Agent
---------------------------
/s/ Xxxxx [ILLEGIBLE]
--------------------------------
Witness 0
********************************************************************************
XXXXX XX Xxxxxxx )
) ACKNOWLEDGMENT
COUNTY OF Xxxx )
The foregoing instrument was acknowledged before me this 28th day of June,
2004 by INLAND REAL ESTATE ACQUISITION, INC., an Illinois corporation, by Xxxxx
X. Xxxxxxx, its Authorized Agent.
/s/ Nacrisha X. Xxxx
----------------------------------------
Notary Public for Xxxx County
----------------------
My Commission Expires: 4-15-2008
------------------
[notarial seal/stamp]
[SEAL]
-5-
IN THE PRESENCE OF: SELLER:
SILVER OAK ASSOCIATES, LIMITED
PARTNERSHIP, a Tennessee limited
partnership
By: Hickory Ridge Development Corporation, a
Tennessee corporation
Its: General Partner
/s/ Xxxxxx X. Xxxxxxxx By: /s/ Fox Xxxxxxxx
-------------------------------- ----------------------------
Witness 1 Fox Xxxxxxxx, X.X.
/s/ Xxxxxxx X. [ILLEGIBLE]
--------------------------------
Witness 0
********************************************************************************
XXXXX XX Xxxxxxxxx )
) ACKNOWLEDGMENT
COUNTY OF Xxxxxxxx )
The foregoing instrument was acknowledged before me this 29th day of June,
2004 by Hickory Ridge Development Corporation, a Tennessee corporation, the
General Partner of SILVER OAK ASSOCIATES, LIMITED PARTNERSHIP, a Tennessee
limited partnership, by Fox Xxxxxxxx, it V.P.
/s/ Xxxxxxxx Xxxxxxx
-----------------------------------------
Notary Public for Xxxxxxxx Co., Tennessee
-----------------------
My Commission Expires: 3/28/05
------------------
[notarial seal/stamp]
[SEAL]
-6-
EXHIBIT "A"
LEGAL DESCRIPTION
Tracts 2, 2A, 9, and 14 as shown and depicted on that certain plat of survey
entitled "Subdivision Map TMS 000-00-00-000 Tract 'A' owned by SILVER OAK
ASSOCIATES, LIMITED PARTNERSHIP" prepared by Xxxxx X. Xxxx, XXX-00000, dated
March 25, 2002, last revised April 15, 2002 and filed for record in Plat Cabinet
P, Pages 193A through 195A, inclusive, Berkeley County, South Carolina and Tract
13-A as shown and depicted on that certain plat of survey entitled "Record Map
Showing the Subdivision of Tract 13 into Tracts 13-A and 13-B" prepared by Xxxxx
X. Xxxx, XXX-00000, dated May 23, 2003, last revised July 3, 2003, and filed for
record July 7, 2003 in Plat Cabinet Q, 44-H, Berkeley County, South Carolina
Records.
Exhibit "A"
EXHIBIT "B"
PROFORMA LEASE RATES AND MASTER LEASE RENT
A. Proforma Lease Rates (for leases entered into from and after the Option
Date to and including the Closing Date): Minimum average rent for shop
tenants shall be $18.52 per square foot (provided that the actual square
foot rate shall not be less than $17.00 nor more than $23.00) with
provisions for CAM, and reimbursement for taxes and insurance and an
administrative fee consistent with such provisions in existing shop leases
on the Property. Leases shall have a minimum term of three (3) years.
B. Master Lease Rent (to be reflected in Master Lease Escrow Agreement):
Minimum average rent for shop tenants shall be $18.52 per square foot
(provided that the actual square foot rate shall not be less than $17.00
nor more than $23.00) with provisions for CAM, and reimbursement for taxes
and insurance and an administrative fee consistent with such provisions in
existing shop leases on the Property. Leases shall have a minimum term of
three (3) years.
Exhibit "B"
