EXHIBIT 10.28
FIRST AMENDMENT TO CONTRACT OF SALE
This FIRST AMENDMENT TO CONTRACT OF SALE (this "Amendment") is made and
entered into effective as of the ____ day of June, 2003 (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
I, LP, a Texas limited partnership ("Original Purchaser"), 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 Original Purchaser, as predecessor in
interest to Purchaser made and entered into that certain Contract of Sale, dated
effective April 16, 2004 (the "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").
B. Seller, Cantex, Original Purchaser, 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, Original Purchaser and
Purchaser hereby agree as follows:
1. EFFECTIVE DATE OF CONTRACT. Article 16 of the Contract is hereby amended
to reflect an effective date of April 19, 2004, and the deadline for
submitting a fully executed Contract to the Title Company shall also be
amended to April 19, 2004. Any and all dates in the Contract shall be
determined based upon the fact that the Contract's effective date is
April 19, 2004.
2. ASSIGNMENT AND ASSUMPTION OF CONTRACT. Pursuant to the provisions of
Article 15.7, Seller and Cantex hereby acknowledge and consent to the
assignment of the Contract from Original Purchaser to Purchaser. Any
reference in the Contract to Purchaser shall hereinafter refer to Realty
America Group (4245 Central), LP. Purchaser hereby assumes the rights,
titles and obligations of Original Purchaser, and Original Purchaser is
hereby forever released from any and all liability and/or obligations
pursuant to the Contract.
3. 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.
4. 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.
5. REPRESENTATIONS AND WARRANTIES. Seller, Cantex, Original Purchaser 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, Original
Purchaser and Purchaser.
6. 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.
8. FINAL AGREEMENT. This Amendment and the Contract cover in full, each and
every final agreement of every kind or nature whatsoever between Seller,
Cantex, Original Purchaser 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.
9. 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, Original Purchaser, 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: April ____, 2004
ORIGINAL PURCHASER:
REALTY AMERICA GROUP I, LP,
a Texas limited partnership
By: REALTY AMERICA GROUP, LLC,
a Texas limited liability company
its general partner
By:
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Xxxx X. Xxxxxx, III
Member
Date of Signature: April ____, 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: April ____, 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: April ____, 2004
