REINSTATEMENT AND FIRST AMENDMENT
TO AGREEMENT OF SALE AND PURCHASE
THIS REINSTATEMENT AND FIRST AMENDMENT TO AGREEMENT OF SALE AND PURCHASE
(this "AMENDMENT"), is made and entered into as of July 21, 2004 by and between
98 Cusa Plano, L.P., a Delaware limited partnership ("SELLER"), and realty
america Group (1221 Xxxx Road), LP, a Texas limited partnership ("BUYER").
RECITALS:
A. Seller and Buyer have entered into that certain Agreement of
Sale and Purchase with an Effective Date of July 6, 2004,
relating to certain real property located at 0000 Xxxx Xxxx,
Xxxxxx, Xxxxx more particularly described therein (the
"AGREEMENT").
B. Buyer terminated the Agreement by letter dated July 16, 2004
(the "TERMINATION LETTER").
C. Notwithstanding delivery of the Termination Letter, Seller and
Buyer desire to reinstate the Agreement and to amend certain
provisions of the Agreement.
NOW, THEREFORE, in consideration of the recitals and the mutual
covenants and agreements of the parties as herein set forth, and for other good
and valuable consideration which the parties acknowledge receiving, Seller and
Buyer hereby agree as follows:
AGREEMENT:
1. Capitalized terms not defined herein shall have the same meaning
ascribed to them in the Agreement.
2. Except as modified by this Amendment, the Agreement is
reinstated, ratified and confirmed and is in full force and effect. In the event
of a conflict between the terms of this Amendment and the Agreement, this
Amendment shall control.
3. Section 1.1 is hereby amended to include the following defined
terms:
""MATERIAL DEFECT" means a Material Environmental Defect,
Material Estoppel Revision and/or Material Survey Defect.
"MATERIAL ENVIRONMENTAL DEFECT" means the current continued
presence of a hazardous environmental condition with respect to the Real
Property which has a cost of remediation in excess of $10,000.00. "Material
Environmental Defect" shall not include any matters disclosed by the Due
Diligence Items, including without limitation any environmental reports
delivered to Buyer.
"MATERIAL ESTOPPEL REVISION" means revisions made to the Tenant
Estoppel or SNDA by the Tenant that when aggregated with all other revisions to
the Tenant Estoppel or SNDA made by the Tenant have a cost in excess of $10,000.
"Material Estoppel Revision" shall
not include such changes or modifications to a Tenant Estoppel or SNDA that are
generally considered commercially reasonable in the market in which the Property
is located or any changes or modifications to the Tenant Estoppel or SNDA made
by the Tenant in order to align the Tenant Estoppel or SNDA with the terms of
such Tenant's Lease.
"MATERIAL SURVEY DEFECT" means matters relating to the Real
Property or Improvements that are disclosed in any revisions or updates to the
Title Commitment or reflected in the Updated Survey that, individually or in the
aggregate, have a cost of removal or correction in excess of $10,000.00.
"Material Survey Defects" shall not include (i) any matters revealed on the
Survey, (ii) any matters noted in the Title Commitment delivered July 8, 2004,
(iii) any Permitted Exceptions and (iv) zoning compliance matters."
4. Section 2.2 of the Agreement is hereby amended to state in its
entirety as follows:
"Buyer shall pay Seller the purchase price of Ten Million Seven
Hundred Thousand and No/100 Dollars ($10,700,000.00) ("PURCHASE PRICE") at
Closing. The Purchase Price and such other funds as may be necessary to pay
Buyer's expenses hereunder, subject to closing adjustments, shall be deposited
with the Escrow Agent on or before the Closing Date in accordance with this
Agreement and paid to Seller upon satisfaction of all conditions precedent to
the Closing as described herein."
5. Section 2.3 of the Agreement is hereby amended to state in its
entirety as follows:
"SECTION 2.3 DEPOSIT. On July 8, 2004, Buyer deposited
Twenty-five Thousand and No/100 Dollars ($25,000.00) in immediately available
funds as a deposit (the "INITIAL DEPOSIT") with Escrow Agent whose address is as
indicated in SECTION 10.3. The Initial Deposit shall be nonrefundable to Buyer
except as provided in SECTIONS 5.1 and 10.2. On the date hereof, Buyer shall,
and by signing below hereby does, instruct Escrow Agent to release the Initial
Deposit to Seller. In addition, on or before July 23, 2004, Buyer shall deposit
with Escrow Agent via wire transfer an additional One Hundred Thousand and
No/100 Dollars ($100,000.00) (the "ADDITIONAL DEPOSIT"; the Initial Deposit and
the Additional Deposit, collectively, the "DEPOSIT") in immediately available
funds. The Additional Deposit shall be non-refundable except as provided in
SECTIONS 3.6, 3.7, 4.2, 5.1 and 10.2. Interest earned on the Additional Deposit
shall be considered part of the Deposit and shall be deemed to have been earned
by, and constitute income of, Buyer. Except as otherwise expressly set forth
herein, the Deposit shall be applied against the Purchase Price on the Closing
Date."
6. Section 3.6 of the Agreement is hereby amended to state in its
entirety as follows:
"Buyer shall have no right to terminate this Agreement for any
reason or no reason unless Buyer discovers a Material Defect that Seller does
not agree to cure as more particularly provided in SECTIONS 3.7 AND 4.2, and
Buyer gives notice to Seller on or before the expiration of the Due Diligence
Period. If Buyer discovers a Material Defect that Seller does not agree to cure,
then Buyer may terminate this Agreement by giving written notice to Seller on or
before 5:00 p.m. Central Time on the last day of the Due Diligence Period. If
Buyer terminates this Agreement pursuant to the preceding sentence, the
Additional Deposit (and interest earned thereon) will be returned to Buyer, and
Buyer shall have no further liability except as described
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in this SECTION 3.6 and SECTIONS 3.4, 3.5, 9.6 and 10.11. If Buyer fails to
timely notify Seller in writing before 5:00 p.m. Central Time on the last day of
the Due Diligence Period that Buyer has elected to terminate this Agreement,
then Buyer will be deemed to have elected not to terminate this Agreement
pursuant to this SECTION 3.6 and to have approved all matters described in
SECTIONS 3.1, 3.2 and 4.2. If Buyer timely elects to terminate its obligations
hereunder as described above and in SECTIONS 3.7 and 4.2, Buyer shall provide to
Seller, promptly after receipt of a request from Seller, originals of all third
party reports, studies and appraisals relating to the Property in its
possession, without representation or warranty and at no cost to Seller. The
foregoing obligation shall survive any termination of this Agreement. If Buyer
does not elect to terminate this Agreement and is not deemed to have terminated
this Agreement, Buyer may, subject to the terms of this Agreement, continue to
conduct further physical Due Diligence or other examinations, inspections,
tests, studies and investigations regarding the Property; provided, however,
that except as otherwise expressly provided in SECTIONS 5.1 and 10.2.2, in no
event shall Buyer have any right to terminate or otherwise modify its
obligations hereunder after the end of the Due Diligence Period as a result of
any such further physical Due Diligence or other examinations, inspections,
tests, studies or investigations regarding the Property, and the provisions of
this ARTICLE 3, including, without limitation, the indemnification provisions,
shall continue to apply."
7. Section 3.7 of the Agreement is hereby amended to state in its
entirety as follows:
"Seller shall use good faith efforts to, obtain and deliver to
Buyer estoppel certificates from the Tenants of the Property in the form of
Exhibit I attached hereto (a "Tenant Estoppel"). Seller shall use good faith
efforts to obtain and deliver to Buyer a Subordination, Non-Disturbance and
Attornment Agreement (a "SNDA") in the form attached to this Amendment as
Exhibit "A". Seller shall circulate to each Tenant a Tenant Estoppel and SNDA
within 5 days from the date hereof. Obtaining a Tenant Estoppel and SNDA shall
not, however, be a condition to the Closing, nor shall Seller incur any
liability in connection with failing to obtain a Tenant Estoppel and SNDA. Buyer
shall have the right to object in writing to any Material Estoppel Revisions
prior to the expiration of the Due Diligence Period and shall so object in
writing to any Material Estoppel Revisions within two (2) days following receipt
of an executed Tenant Estoppel and SNDA. Seller may elect (but shall not be
obligated) to cure any Material Estoppel Revision, and shall be entitled to a
reasonable adjournment of the Closing (not to exceed ninety (90) days) for the
purpose of such cure. Seller shall notify Buyer in writing within ten (10) days
after receipt of Buyer's notice of a Material Estoppel Revision whether Seller
intends to cure same. If Seller is unable to cure any Material Estoppel Revision
prior to the Closing (or the adjournment of same), or if Seller elects not to
cure a Material Estoppel Revision, Buyer may elect, as its sole and exclusive
remedy therefore, to either (a) terminate this Agreement by giving written
notice to Seller and Escrow Agent, in which event the Additional Deposit shall
be paid to Buyer and, thereafter, the parties shall have no further rights or
obligations hereunder except for those obligations which expressly survive the
termination of this Agreement as set forth in SECTIONS 3.4, 3.5, 3.6, 9.6 and
10.11, or (b) waive its objection to such Material Estoppel Revision and proceed
to the Closing as herein provided without any reduction of or credit against the
Purchase Price. If before the end of the Due Diligence Period, Buyer fails to
give Seller such written notice of a Material Estoppel Revision, then Buyer
shall be deemed to have elected to waive such Material Estoppel Revision and its
right to terminate this Agreement pursuant to this SECTION 3.7."
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8. Section 4.2 of the Agreement is hereby amended to state in its
entirety as follows:
"Buyer shall have no right to object to any matters revealed in
the Title Commitment received on July 8, 2004 or in the Survey and hereby
approves all matters set forth therein. Buyer shall have the right to object in
writing to Material Survey Defects prior to the expiration of the Due Diligence
Period and shall so object in writing to any Material Survey Defects within ten
(10) days following receipt of the Updated Survey. Unless Buyer shall timely
object to Material Survey Defects, all such Material Survey Defects shall be
deemed to constitute additional Permitted Exceptions. Seller may elect (but
shall not be obligated) to cure any Material Survey Defects, and shall be
entitled to a reasonable adjournment of the Closing (not to exceed ninety (90)
days) for the purpose of such removal. Seller shall notify Buyer in writing
within ten (10) days after receipt of Buyer's notice of Material Survey Defects
whether Seller elects to cure or remedy the same. If Seller is unable to cure or
remedy any Material Survey Defects prior to the Closing, or if Seller elects not
to cure or remedy one or more Material Survey Defects, Buyer may elect, as its
sole and exclusive remedy therefore, to either (a) terminate this Agreement by
giving written notice to Seller on or before the end of the Due Diligence
Period, in which event the Additional Deposit shall be paid to Buyer and,
thereafter, the parties shall have no further rights or obligations hereunder
except for those obligations which expressly survive the termination of this
Agreement as set forth in SECTIONS 3.4, 3.5, 3.6, 9.6 and 10.11, or (b) waive
such Material Survey Defects, in which event such Material Survey Defects shall
be deemed additional "Permitted Exceptions" and the Closing shall occur as
herein provided without any reduction of or credit against the Purchase Price.
If before the end of the Due Diligence Period, Buyer fails to give Seller and
Escrow Agent such written notice, then Buyer shall be deemed to have elected to
waive all Material Survey Defects and its right to terminate this Agreement
pursuant to this SECTION 4.2. Notwithstanding the foregoing, Seller shall be
obligated at Closing to cause the release of the liens of any financing obtained
by Seller which is secured by the Property."
9. The first sentence of Section 9.2 is hereby amended to state in
its entirety as follows:
"The closing hereunder ("CLOSING") shall be held and delivery of
all items to be made at the Closing under the terms of this Agreement shall be
made through escrow at Escrow Agent's office on the date which is forty-five
(45) days from the date of this Amendment (if such day is a business day, or if
not a business day, on the first day following the 45th day which is a business
day), or such other date and time as Buyer and Seller may mutually agree upon in
writing (the "CLOSING DATE")."
10. Section 9.4.1 of the Agreement is hereby amended to state in its
entirety as follows:
"The balance of the Purchase Price and such additional funds as
are necessary to close this transaction;"
11. Seller and Buyer agree that Seller will not provide any form of
seller-financing as part of the transaction contemplated hereby, and thus the
provisions contained in the below-listed sections, article and exhibit of the
Agreement are hereby deleted, and each of the deleted
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provisions is replaced with the language "intentionally deleted". The deleted
provisions are as follows: Section 1.1.8, Section 1.1.38, Section 1.1.39,
Section 1.1.40, Section 1.1.41, Section 1.1.47, Section 1.1.48, Section 1.1.58,
Section 1.1.65, Section 9.3.12, Section 9.4.9, Article 11, and Exhibit H.
12. The terms of the Agreement, as heretofore amended, are hereby
ratified and confirmed by Seller and Buyer.
13. This Amendment may be executed in any number of counterparts,
each of which shall be deemed an original, and all of which shall constitute one
and the same Amendment. The delivery of counterpart signatures by facsimile
transmission shall have the same force and effect as the delivery of a signed
original hard copy.
SELLER:
98 CUSA PLANO, L.P., a Delaware limited
partnership
By: 98 CUSA Plano GP, L.L.C., a Delaware
limited liability company
By: Wolverine Net Lease GP Company, a
Texas corporation, its Administrator
By:_________________________________
G. Xxxx Xxxxxxxx, Secretary
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BUYER:
REALTY AMERICA GROUP (1221 XXXX ROAD), LP, a
Texas limited partnership
By: Realty America Group Investments, LLC,
its general partner
By:_____________________________________
Name: Xxxx X. Xxxxxx, III
Title: Member
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