SECOND AMENDMENT TO AGREEMENT OF SALE AND PURCHASE
THIS SECOND AMENDMENT TO AGREEMENT OF SALE AND PURCHASE (this "Second
Amendment") is entered into to be effective as of the ____ day of August, 2004,
by and between 98 CUSA PLANO, L.P., a Delaware limited partnership ("Seller"),
and BEHRINGER HARVARD 1221 XXXX XX, a Texas limited partnership ("Buyer"). All
capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to them in the Sale Agreement (defined below).
RECITALS:
A. Seller and Realty America (1221 Xxxx Road),
L.P., a Texas limited partnership ("Original
Buyer"), entered into (a) that certain Agreement
of Sale and Purchase dated as of July 6, 2004
(the "Original Agreement"), pursuant to which
Seller agreed to sell to Original Buyer and
Original Buyer agreed to purchase the Property
described therein; and (b) that certain
Reinstatement and First Amendment to Agreement
of Sale and Purchase dated as of July 19, 2004
(the "First Amendment" together with the
Original Agreement the "Sale Agreement").
B. Original Buyer has assigned its rights
under the Sale Agreement to Buyer
pursuant to that certain Assignment of
Agreement of Sale and Purchase, dated as
of July 22, 2004.
C. Seller and Buyer now desire to amend the
Sale Agreement in certain respects, as
hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. EXTENSION OF CLOSING DATE. Seller and Buyer agree that the
Closing Date shall be October 4, 2004.
2. CHANGE IN ESCROW AGENT. Seller and Buyer acknowledge and agree
that each of the Escrow Agent and the Title Company has been changed to
Chicago Title Insurance Company, having an address of 0000 Xxxxx Xxxxx,
00xx Xxxxx, Xxxxxx, Xxxxx 00000.
3. ADDITIONAL DEPOSIT. No later than two (2) business days after
the date of this Second Amendment, Buyer shall deliver to (i) Escrow
Agent an additional deposit of Six Hundred Fifty Thousand and No/100
Dollars ($650,000.00) (the "Agent Deposit") and (ii) Seller, via wire
transfer to the account described in Exhibit A attached hereto, an
additional deposit of Two Hundred Twenty Five Thousand and No/100
Dollars ($225,000.00) (the "Additional Seller Deposit" together with the
Agent Deposit, the "Third Deposit"). Upon the making of the Third
Deposit, Seller will hold at total of $250,000.00 in escrow and Escrow
Agent will hold a total of $750,000.00 in escrow (plus
accrued interest). The Third Deposit shall constitute part of the
Deposit. Escrow Agent shall hold the Agent Deposit in accordance with
the terms of the Sale Agreement. Seller shall hold the Additional Seller
Deposit in accordance with the terms of the Sale Agreement, provided
Seller shall have no obligation to invest or otherwise segregate the
Additional Seller Deposit from other funds. The Deposit shall be
non-refundable to Buyer unless the sale of the Property is not
consummated due to Seller's default under the Sale Agreement. Unless
Seller fails to deliver in escrow to Escrow Agent Seller's closing
documents as more particularly described in Section 9.3 of the Sale
Agreement ("Seller's Closing Documents"), Escrow Agent is authorized,
and Buyer hereby directs Escrow Agent, to deliver the Agent Deposit and
any other amounts on deposit with Escrow Agent, to Seller at 12:00 p.m.
Central Time on the Closing Date. Buyer acknowledges that Buyer has no
further rights to terminate the Sale Agreement for any reason, including
without limitation pursuant to Section 10.2.2 of the Sale Agreement for
any casualty or condemnation of the Property, the risk of all losses
having passed to Buyer.
4. EFFECT OF AMENDMENT. This Second Amendment modifies and amends
the Sale Agreement and the terms and provisions hereof shall supersede
and control over any contrary or conflicting terms and provisions set
forth in the Sale Agreement. The Sale Agreement, as amended by this
Second Amendment, remains in full force and effect.
5. COUNTERPARTS. To facilitate execution of this Second Amendment,
this Second Amendment may be executed in multiple counterparts, each of
which, when assembled to include an original signature for each party
contemplated to sign this Second Amendment, will constitute a complete
and fully executed original. All such fully executed original
counterparts will collectively constitute a single agreement.
6. FACSIMILE SIGNATURES. In order to expedite the transaction
contemplated herein, telecopied or facsimile signatures may be used in
place of original signatures on this Second Amendment. Seller and Buyer
intend to be bound by the signatures on the telecopied document, are
aware that the other party will rely on the telecopied signatures, and
hereby waive any defenses to the enforcement of the terms of this Second
Amendment based on the form of signature.
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment to be effective the date and year first above written.
[SIGNATURE PAGE FOLLOWS]
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:_________________________________
Name:_______________________________
Title:______________________________
BUYER:
BEHRINGER HARVARD 1221 XXXX XX,
a Texas limited partnership
By: Behringer Harvard 1221 Xxxx XX, LLC,
a Texas limited liability company,
its general partner
By:_____________________________________
Name:___________________________________
Title:__________________________________
Exhibit A
Wiring Instructions
NLP Net Lease Properties, L.P.
Bank Name: Bank of America
ABA #: 000000000
Credit to: NLP Net Lease Properties, L.P.
Account #: 004771132984
