EXHIBIT 10.32
FIFTH AMENDMENT TO CONTRACT OF SALE
This FIFTH AMENDMENT TO CONTRACT OF SALE (this "Amendment") is made and
entered into effective as of the ____ day of June, 2004 (the "Effective Date"),
by and among VORTISCH HOLDINGS, L.P., a Texas limited partnership ("Seller"),
CANTEX REALTIES, INC., a Texas corporation ("Cantex"), and REALTY AMERICA GROUP
(4245 CENTRAL), LP, a Texas limited partnership ("Purchaser").
PRELIMINARY STATEMENTS:
The following preliminary statements are a material part of this
Amendment:
A. Seller, Cantex and Realty America Group I, LP, as predecessor in
interest to Purchaser made and entered into that certain Contract of Sale, dated
effective April 16, 2004 (the "Original Contract"), with respect to certain real
property located on that certain tract or parcel of land situated in the City of
Dallas, Dallas County, Texas, which is more particularly described in the
Contract (the "Property"); as amended by that certain First Amendment to
Contract of Sale (the "First Amendment"); as amended by that certain Second
Amendment to Contract of Sale (the "Second Amendment"); as amended by that
certain Third Amendment to Contract of Sale (the "Third Amendment"); as further
amended by that certain Fourth Amendment to Contract of Sale (the "Fourth
Amendment")(the Contract, the First Amendment, the Second Amendment, the Third
Amendment, and the Fourth Amendment are hereinafter collectively referred to as
the "Contract").
B. Cantex is only a party to this Amendment and the Contract as is
necessary for Purchaser to enforce certain representations and warranties
provided by Cantex to Purchaser under the Contract.
C. Seller, Cantex, and Purchaser desire to amend the Contract as
set forth below.
AGREEMENTS:
NOW THEREFORE, in consideration of the agreements to sell and purchase
the Property and the mutual covenants and agreements contained in this Amendment
and in the Contract, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Seller, and Purchaser hereby agree as
follows:
1. PURCHASE PRICE. Pursuant to the terms of the Contract, the Purchase
Price for the Property is Eight Million Two Hundred Thousand and No/100s
Dollars ($8,200,000.00). Seller and Purchaser hereby agree that the
Purchase Price shall be amended to reflect a Purchase Price under the
Contract of Seven Million Seven Hundred Seventy Five Thousand and
No/100s Dollars ($7,775,000.00). Any reference in the Contract to the
Purchase Price shall mean $7,775,000.00.
2. INSPECTION PERIOD. Upon the full execution of this Amendment by
Purchaser, Seller and Cantex, the Inspection Period shall be deemed to
have expired.
3. XXXXXXX MONEY. The Xxxxxxx Money and Extension Deposit deposited by
Purchaser under the Contract shall be nonrefundable following the
execution of this Amendment by Purchaser, Seller and Cantex.
4. CLOSING DATE. Purchaser and Seller hereby agree that, notwithstanding
anything in the Contract to the contrary, the Closing Date under the
Contract shall be Friday, July 30, 2004.
5. TERMINATION OF CONTRACT. In the event Seller, Cantex and Purchaser have
not executed, and delivered to the other parties, this Amendment prior
to the expiration of the Inspection Period set forth in the Contract,
the Contract shall terminate, and be of no further force or effect, and
the Xxxxxxx Money and Extension Deposit heretofore deposited by
Purchaser shall be immediately returned to Purchaser. Such termination
shall take effect without any further documentation on the part of
Seller, Cantex or Purchaser.
6. CAPITALIZED TERMS. Capitalized terms used but not defined in this
Amendment shall have the same meaning as those in the Contract, unless
otherwise noted herein.
7. RATIFICATION OF CONTRACT. Except as specifically modified by this
Amendment, all of the other terms and provisions of the Contract shall
remain in full force and effect, and are hereby ratified and confirmed
by Seller, Cantex and Purchaser. Notwithstanding the foregoing, in the
event there is any conflict between the terms and provisions of the
Contract and this Amendment, the terms and provisions of this Amendment
shall control.
8. REPRESENTATIONS AND WARRANTIES. Seller, Cantex, and Purchaser represent
and warrant to each other respectively that they have the requisite
power and authority to enter into this Amendment; that all necessary and
appropriate approvals, authorizations and other steps have been taken to
effect the legality of this Amendment; that the signatories executing
this Amendment are authorized to do so on behalf of Seller, Original
Purchaser and Purchaser; and that this Amendment is valid and binding
upon and enforceable against Seller, Cantex, and Purchaser.
9. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original. Facsimile
copies of the signature pages to this Amendment shall be deemed to be
originals for all purposes of this Amendment.
10. FINAL AGREEMENT. This Amendment and the Contract cover in full, each and
every final agreement of every kind or nature whatsoever between Seller,
Cantex, and Purchaser concerning the Property, and all preliminary
negotiations and agreements whatsoever of every kind or nature are
merged into this Amendment and the Contract. This Amendment and the
Contract cannot be changed or modified in any manner other than by
written amendment or modification executed by Seller, Cantex and
Purchaser.
11. SUCCESSORS AND ASSIGNS. This Amendment is binding upon and inures to the
benefit of Seller, Cantex and Purchaser and their respective successors
and assigns.
IN WITNESS WHEREOF, Seller, Cantex, and Purchaser have caused this
Amendment to be duly executed as of the Effective Date.
SELLER:
VORTISCH HOLDINGS, L.P.,
a Texas limited partnership
By: VORTISCH INVESTMENTS, INC.,
a Delaware corporation
its general partner
By:
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Xxxxxxx Xxxxxxxx
President
Date of Signature: June ____, 2004
PURCHASER:
REALTY AMERICA GROUP (4245 CENTRAL), LP,
a Texas limited partnership
By: REALTY AMERICA GROUP INVESTMENTS, LLC,
a Texas limited liability company
its general partner
By:
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Xxxx X. Xxxxxx, III
Member
Date of Signature: June ____, 2004
CANTEX:
CANTEX REALTIES, INC.,
a Texas corporation
By:
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Name:
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Its:
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Date of Signature: June ____, 2004
