ASSIGNMENT OF CONTRACT OF SALE
This Assignment of Contract of Sale (this "ASSIGNMENT") is made as of
March ___, 2005, by MHC HOMEAMERICA, INC., a Texas corporation ("ASSIGNOR"), and
Behringer Harvard NORTHWEST HIGHWAY LP, a Texas limited partnership
("ASSIGNEE").
BACKGROUND
A. Assignor, as buyer, entered into that certain Contract of Sale
dated effective as of January 21, 2005 (the "CONTRACT") with Xxxxx X. Xxxxx and
X.X. Xxxxxxxxx, as seller, in respect of certain property located on the south
side of Northwest Highway (Loop 12), east of Midway Road, in the City of Dallas,
Dallas County, Texas, as more particularly described in the Contract (the
"PROPERTY").
B. Assignor desires to assign all of its interest in the Contract
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 Contract, specifically including, without limitation,
all xxxxxxx money deposited thereunder. Assignor hereby accepts such assignment
and assumes and agrees to perform all obligations of Assignor as "Buyer" under
the Contract.
2. REPRESENTATIONS. Assignor hereby unconditionally represents and
warrants to, and covenants with, Assignee as follows:
(a) The Contract is in full force and effect. A true,
correct and complete copy of the Contract is attached hereto as EXHIBIT
A. The Contract has not been modified or amended.
(b) Assignor is not currently in default under the Contract,
and, to Assignor's knowledge, no default by Seller exists under the
Contract.
(c) 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 Behringer Harvard Short-Term
Opportunity Fund I LP, a Texas limited partnership.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
[This space intentionally left blank]
ASSIGNOR:
MHC HOMEAMERICA, INC.,
a Texas corporation
By: _____________________________
Name:
Title:
ASSIGNEE:
BEHRINGER HARVARD NORTHWEST
HIGHWAY LP, a Texas limited partnership
By: Behringer Harvard Northwest Highway
GP, LLC, a Texas limited liability
company Its General Partner
By: _______________________________
Name: Xxxxxx X. Xxxxxxx, III
Title: Secretary
EXHIBIT A
CONTRACT
(See the attached)
EXHIBIT A
