ASSIGNMENT OF AGREEMENT OF SALE AND PURCHASE
This Assignment of Agreement of Sale and Purchase (this "ASSIGNMENT") is
made as of July ___, 2004, by Realty America Group (1221 xxxx road), LP, a Texas
limited partnership ("ASSIGNOR"), and Behringer Harvard 1221 xxxx XX, a Texas
limited partnership ( "ASSIGNEE").
BACKGROUND
A. Assignor, as purchaser, entered into that certain Agreement of
Sale and Purchase dated effective as of July 6, 2004 (as same may have been
amended, the "AGREEMENT") with 98 CUSA Plano, L.P., a Delaware limited
partnership, as seller, in respect of an office building commonly known as 0000
Xxxx Xxxx xx Xxxxxx Xxxxxx, Xxxxx, 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 $25,000 as xxxxxxx
money under the Agreement. Upon the execution of this Assignment, Assignee shall
be obligated to cause Behringer Harvard Short-Term Opportunity Fund I LP, a
Texas limited partnership ("XX XXXXX TERM"), to deposit the amount of $100,000
in additional xxxxxxx money as required by the Agreement. 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
each of Assignor and XX Xxxxx Term is to contribute certain funds necessary to
acquire the Property. Upon the closing of the transaction that is the subject of
the Agreement, the portion of the Xxxxxxx Money belonging to Assignor ($25,000)
shall be credited towards the contribution required to be made by Assignor under
the Partnership Agreement, and the portion of the Xxxxxxx Money belonging to XX
Xxxxx Term ($100,000) shall be credited towards the contribution required to be
made by XX Xxxxx Term under the Partnership Agreement. In the event that
additional xxxxxxx money is required to be deposited under the Agreement,
Assignee shall cause XX Xxxxx Term to deposit same.
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 (including all amendments to
the initial Agreement) is attached hereto as EXHIBIT A.
(b) Assignor is not currently in default under the
Agreement, and, to Assignor'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 neither Assignor nor any affiliate of Assignor
has or will receive any commission or other payment from the seller
named in the Agreement (or any affiliate of such seller) in connection
with the sale of the Property to Assignee, except as expressly 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:
REALTY AMERICA GROUP (1221 XXXX ROAD),
L.P., a Texas limited partnership
By: Realty America Group Investment, LLC,
a Texas limited liability company
Its General Partner
By:_____________________________________
Name: Xxxx X. Xxxxxx, III
Title: Member
ASSIGNEE:
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:__________________________________
