EXHIBIT 10.24
ASSIGNMENT OF PURCHASE AND SALE AGREEMENT
This Assignment of Purchase and Sale Agreement (this "ASSIGNMENT") is
made as of July ___, 2004, by XXXXXXX PLAZA, LTD., a Texas limited partnership
("ASSIGNOR"), and Behringer Harvard plaza xxxxxxxx XX, a Texas limited
partnership ( "ASSIGNEE").
BACKGROUND
A. Assignor, as Purchaser, entered into that certain Purchase and Sale
Agreement dated effective as of February 27, 2004 (as same may have been
amended, the "AGREEMENT"), with Aristocrat Fund IV, L.P., a Texas limited
partnership, as Seller, in respect of a shopping center commonly known as Plaza
Bank Shopping Center in Dallas County, Texas, as more particularly described in
the Agreement (the "PROPERTY").
B. Assignor desires to assign all of its interest in the Agreement to
Assignee and Assignee desires to accept the assignment.
AGREEMENT
1. ASSIGNMENT. For good and valuable consideration paid to Assignor, the
receipt and sufficiency of which are hereby acknowledged, Assignor does hereby
ASSIGN AND TRANSFER to Assignee all of the right, title and interest of Assignor
in and to the Agreement. Assignor hereby accepts such assignment and assumes and
agrees to perform all obligations of Assignor as "Purchaser" under the
Agreement.
2. DEPOSIT. Assignor has deposited the amount of $50,000 as Xxxxxxx
Money under the Agreement, and an additional deposit of Xxxxxxx Money in the
amount of $100,000 is now due under the Agreement. Concurrently with the
execution of this Agreement, Assignee shall cause Behringer Harvard Short-Term
Opportunity Fund I LP, a Texas limited partnership ("XX XXXXX TERM") to deposit
with the Title Company (as defined in the Agreement) the amount of $200,000. Of
this amount, the sum of $100,000 shall be deposited as Xxxxxxx Money under the
Agreement. The remaining $100,000 (the "SEPARATE DEPOSIT") shall be held in a
separate escrow account by the Title Company pursuant to the following terms and
conditions: (a) if the transaction that is the subject of the Agreement fails to
close because of a default caused by XX Xxxxx Term, then the Title Company shall
deliver the Separate Deposit to Assignor (and receipt of such sum shall be the
sole and exclusive remedy of Assignor for such default); and (b) if the
transaction that is the subject of the Agreement closes, or fails to close for
any reason other than a default caused by XX Xxxxx Term, then the Title Company
shall deliver the Separate Deposit to XX Xxxxx Term.
3. APPLICATION OF XXXXXXX MONEY. Assignor and XX Xxxxx Term, among
others, have executed (or will execute) that certain Agreement of Limited
Partnership of Assignee (the "PARTNERSHIP AGREEMENT"), pursuant to which
Assignor is to contribute 14.29% of the amount necessary to acquire the Property
and XX Xxxxx Term is to contribute 85.61% of the amount necessary to acquire the
Property. Upon the closing of the transaction that is the subject of the
Agreement, the portion of the Xxxxxxx Money deposited by Assignor ($50,000)
shall be credited towards the contribution required to be made by Assignor under
the Partnership Agreement, and the portion of the Xxxxxxx Money deposited by XX
Xxxxx Term ($100,000) shall be credited towards the contribution required to be
made by XX Xxxxx Term under the Partnership Agreement.
4. REPRESENTATIONS. Assignor hereby unconditionally represents and
warrants to, and covenants with, Assignee as follows:
(a) The Agreement is in full force and effect. A true, correct
and complete copy of the Agreement and all amendments is attached hereto
as EXHIBIT A.
(b) Purchaser is not currently in default under the Agreement,
and, to Purchaser's knowledge, no default by Seller exists under the
Agreement.
(c) After the execution of this Assignment, Assignee shall have
the sole right to exercise any right to terminate the Agreement.
(d) Neither Assignor nor any affiliate of Assignor is receiving
any compensation in connection with the acquisition of the Property,
other than such compensation as is reflected in documents executed by
Assignee or affiliates of Assignee. Without limiting the generality of
the foregoing, Assignor represents and warrants to Assignee that
Assignor has not and will not receive any commission or other payment
from Seller in connection with the sale of the Property, except as
provided in the Agreement.
5. FURTHER ASSURANCES. Each party agrees that it will without further
consideration execute and deliver such other documents and take such other
action, whether prior or subsequent to Closing, as may be reasonably requested
by the other party to consummate more effectively the purposes or subject matter
of this Agreement.
6. ATTORNEYS' FEES. In the event of any controversy, claim or dispute
between the parties affecting or relating to the subject matter or performance
of this Agreement, the prevailing party shall be entitled to recover from the
non-prevailing party all of its reasonable expenses, including reasonable
attorneys' fees.
7. COUNTERPARTS. This Agreement may be executed in several counterparts,
and all such executed counterparts shall constitute the same agreement. It shall
be necessary to account for only one such counterpart in proving this Agreement.
8. SEVERABILITY. If any provision of this Agreement is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Agreement shall nonetheless remain in full force and effect.
9. APPLICABLE LAW. THIS AGREEMENT IS PERFORMABLE IN DALLAS COUNTY,
TEXAS, AND SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE SUBSTANTIVE FEDERAL LAWS OF THE UNITED STATES AND THE LAWS OF THE
STATE OF TEXAS.
10. CAPTIONS. The section headings appearing in this Agreement are for
convenience of reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
11. CONSTRUCTION. The parties acknowledge that the parties and their
counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any exhibits or amendments hereto.
EXECUTED to be effective as of the date first written above.
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ASSIGNOR:
XXXXXXX PLAZA, LTD.,
a Texas limited partnership
By: GP Xxxxxxx Plaza, Inc.,
a Texas limited partnership
By:_______________________
Name:_____________________
Title:____________________
ASSIGNEE:
BEHRINGER HARVARD PLAZA XXXXXXXX XX,
a Texas limited partnership
By: Behringer Harvard Plaza Xxxxxxxx XX, LLC,
a Texas limited liability company,
Its general partner
By:______________________________________
Name:____________________________________
Title:___________________________________
