EXHIBIT 10.03
REINSTATEMENT AND SECOND AMENDMENT
TO AGREEMENT FOR PURCHASE AND SALE OF
REAL ESTATE AND ESCROW INSTRUCTIONS
THIS REINSTATEMENT AND SECOND AMENDMENT TO AGREEMENT FOR PURCHASE AND
SALE OF REAL PROPERTY AND ESCROW INSTRUCTIONS (this "Amendment") dated effective
as of May 4, 2004, is made by and between WESTERN PLACE SKYRISE, LTD., a Texas
limited partnership (hereinafter called "SELLER"), and TRIPLE NET PROPERTIES,
LLC, a Virginia limited liability company (hereinafter called "BUYER").
RECITALS:
A. Seller and Buyer entered into that certain Agreement for
Purchase and Sale of Real Property and Escrow Instructions, dated as of February
27, 2004 (as amended by First Amendment to Agreement for Purchase and Sale of
Real Property and Escrow Instructions dated March 29, 2004, the "Agreement")
pertaining to the property known as Western Place I & II, located at 6000 and
0000 Xxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxx, and more particularly described in the
Agreement. All capitalized terms not defined herein shall have the same meaning
given to them in the Agreement.
B. The Agreement terminated as of April 6, 2004 because Buyer
failed to send written notice to Seller that Buyer approved the condition of the
Real Property.
C. The parties now desire to reinstate the Agreement.
D. The Buyer and Seller also desire to amend the Agreement on the
terms and conditions set forth below.
AGREEMENT:
NOW, THEREFORE, for and in consideration of the foregoing recitals, Ten
and No/100 Dollars ($10.00) in hand paid, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller and Buyer hereby agree as follows:
1. The Agreement is reinstated as of the date hereof and Buyer
and Seller ratify and confirm the Agreement and the terms and conditions
thereof, as modified by this Amendment. Buyer acknowledges the Due Diligence
Period has expired and Buyer shall not have the right to terminate the Agreement
pursuant to Section 5.2 of the Agreement. Buyer has accepted the physical
condition of the Property and the state of title and condition of the Property
reflected by the Survey.
2. The first sentence of Section 2 of the Agreement is deleted
and the following is substituted in lieu thereof:
(a) "The Purchase Price is THIRTY THREE MILLION FIVE
HUNDRED THOUSAND AND NO/100 DOLLARS ($33,500,000.00)
(the "PURCHASE PRICE"), and payable as follows:"
3. Subsection 2.1.1 of the Agreement is deleted and the following
is substituted in lieu thereof:
(a) "2.1.1 On or before April 28, 2004, Buyer will
deposit Five Hundred Thousand and No/100
($500,000.00) (the "DEPOSIT") in the form of a wire
transfer payable to Partners Title Company, 000 Xxxx
Xxxxxx, Xxxxx 0000X, Xxxxxxx, Xxxxx 00000, Attention:
Xxxxx Xxxxxxxxx, Telephone: 000-000-0000, Facsimile
000-000-0000 ("ESCROW HOLDER"). Escrow Holder shall
place the Deposit into an interest bearing money
market account at a bank or other financial
institution reasonably satisfactory to Buyer, and
interest thereon shall be credited to Buyer's account
and shall be deemed to be part of the Deposit.
4. Subsection 6.2 of the Agreement is deleted and the following
is substituted in lieu thereof:
(a) "6.2 Close of Escrow. Escrow shall close ("CLOSE OF
ESCROW") on or before June 11, 2004, or such earlier
date as may be agreed upon in writing by the parties;
provided, however, Buyer, at its option, may extend
the Close of Escrow to July 12, 2004 by providing
written notice to Seller on or before June 8, 2004,
and within one business day thereafter depositing
with the Escrow Agent an additional Two Hundred Fifty
Thousand and No/100 Dollars ($250,000.00) (the
"ADDITIONAL DEPOSIT") to be held as part of the
Deposit.
5. Section 21 of the Agreement is deleted and the following is
substituted in lieu thereof:
(a) "21 Real Estate Commission. Seller and Buyer each
represent and warrant to the other that neither
Seller nor Buyer has contacted or entered into any
Agreement with any real estate broker, agent, finder
or any other party in connection with this
transaction, and that neither party has taken any
action which would result in any real estate
broker's, finder's or other fees or commissions being
due and payable to any party with respect to the
transaction contemplated hereby, except that Seller
has contracted with CB Xxxxxxx Xxxxx as its broker
and will pay a commission equal to one percent (1%)
times the Purchase Price to said broker. Each party
hereby indemnifies and agrees to hold the other party
harmless from any loss, liability, damage, cost, or
expense (including reasonable attorneys' fees)
resulting to the other party by reason of a breach of
the representation and warranty made by such party in
this Paragraph.
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6. The Agreement is hereby amended by adding the following
additional Section:
(a) 23. Buyer's Right to Designate Multiple Grantees.
Seller and Buyer agree that the Buyer intends to
direct the Seller to convey the Property to multiple
grantees who will take title to the Property as
tenants in common. Seller agrees to convey the
Property to such grantees as Buyer shall designate in
writing no less than four (4) business days prior to
the Close of Escrow.
7. Notwithstanding anything to the contrary contained herein and
in addition to the Conditions Precedent contained in Section 9.1 Agreement, the
obligations of Buyer to purchase the Property pursuant to the Agreement shall,
at the option of Buyer, be subject to Seller obtaining and delivering to Buyer a
"clean closure" letter from the Texas Commission on Environmental Quality
("TCEQ") Central Office in Austin, Texas, after submitting a revised "Release
Determination Report" to TCEQ regarding the underground storage tank on the
Property.
8. Except as expressly amended hereby, all other terms and
conditions of the Agreement are and shall remain in full force and effect.
9. Facsimile signatures appearing hereon shall be deemed to be
originals, and this Amendment may be executed in two or more counterparts, each
of which shall be deemed originals and all of which together shall constitute
one and the same instrument.
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IN WITNESS WHEREOF, each of the undersigned, by its duly authorized
representative, hereby executes and delivers this Amendment as of the date first
above written.
SELLER:
WESTERN PLACE SKYRISE, LTD.,
a Texas limited partnership
By: Western Place Skyrise GP, LLC,
a Texas limited liability company
By: /s/ XXXXX XXXXXXX-XXXX
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Name: Xxxxx Xxxxxxx-Xxxx
Title: V.P. Skyrise Properties
BUYER:
TRIPLE NET PROPERTIES, LLC,
a Virginia limited liability company
By: /s/ XXXXXXX X. XXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxx
Title: President
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