Exhibit 10.55
CONTRACT OF SALE
THIS CONTRACT OF SALE (this "Contract") is made by and between RPI
INTERESTS II, LTD., a Texas limited partnership, acting by and through its sole
general partner, RPI INTERESTS GP, LLC, a Texas limited liability company
("Seller"), and COLE CAPITAL PARTNERS, L.L.C., an Arizona limited liability
company (and its assigns as permitted by this Contract):
1. Purchase and Sale. Subject to the terms and provisions of this Contract,
Seller agrees to sell to Buyer, and Buyer agrees to purchase from Seller, all of
the following described property (sometimes referred to herein in the aggregate
as the "Property"):
(a) Land. That certain tract of land (the "Land") located in Spring,
Montgomery County, Texas, being more particularly shown on EXHIBIT "A"
attached hereto and made a part hereof.
(b) Easements. All of Seller's right, title and interest in and to any
easements, if any, benefiting the Land or the Improvements (as hereafter
defined), but without recourse, representation or warranty on Seller's
part.
(c) Rights and Appurtenances. All of Seller's right, title and
interest in and to any rights and appurtenances pertaining to the Land,
including any right, title and interest of Seller in and to adjacent
streets, alleys or rights-of-way, but without recourse, representation or
warranty on Seller's part.
(d) Improvements. All buildings, structures, fixtures and other
improvements, consisting of the so-called "RAYFORD SQUARE SHOPPING CENTER"
(the "Improvements") in and on the Land, excluding property owned by
tenants.
(e) Leases. All of Seller's right, title and interest in and to all
leases with tenants (the "Tenants") applicable to the Property or any part
thereof (collectively, the "Leases").
(f) Security Deposits. All of Seller's right, title and interest in
and to all tenant security deposits held by Seller (the "Deposits").
(g) Tangible Personal Property. All of Seller's right, title and
interest, if any, in and to all appliances, equipment, machinery and other
personal property, if any, located on or about the Land and the
Improvements, owned by Seller and used in the operation and maintenance
thereof, excluding any property of the tenants or third parties (the
"Tangible Personal Property").
(h) Contracts. Seller's right, title and interest in and to any
assignable warranties or maintenance or service contracts related to the
maintenance and operation of the Land and/or Improvements which can be
assigned to Buyer upon Closing (the "Contracts"). Seller is not aware of
any such assignable Contracts. For example, the current management
agreement for the Property with RPI MANAGEMENT COMPANY, LLC (an affiliate
of Seller) shall be terminated upon Closing and accordingly, is not
referred to as a Contract hereunder.
(i) Permits. Seller's right, title and interest in and to any licenses
and permits with respect to the operation, repair, maintenance or
improvement of the Property (the "Permits").
(j) Name. Seller's right, title and interest, if any, in and to the
name "RAYFORD SQUARE SHOPPING CENTER".
2.Purchase Price. The purchase price for the Property (the "Purchase
Price") shall be the exact amount of NINE MILLION NINE HUNDRED THOUSAND AND
00/100 ($9,900,000.00) DOLLARS, payable in CASH at the Closing (as hereafter
defined).
3. Earnest Money. Not later than five (5) business days after the Effective
Date, Buyer shall deliver the "Earnest Money" (herein so called) to LAWYERS
TITLE INSURANCE CORPORATION, Attn: Mr. Allen S.
Brown, 1850 North Central Avenue, Suite 300, Phoenix, Arizona 85004 (the "Title
Company") in the amount of $500,000.00, and the same shall thereafter be held by
the Title Company in escrow to be applied or disposed of by it as is provided in
this Contract. All interest earned on the Earnest Money shall become part of the
Earnest Money to be applied or disposed of in the same manner as the Earnest
Money is applied or disposed of pursuant to this Contract.
If, for any reason, Buyer fails to deliver the Earnest Money to the Title
Company within five (5) business days after the Effective Date, the Contract
shall, at Seller's option, be deemed to be terminated, whereupon neither party
shall have any further rights or obligations under this Contract other than
those obligations which expressly survive any such termination. The Title
Company shall deposit the Earnest Money in its possession in an insured interest
bearing account(s) in an FDIC insured institution.
In order to facilitate the return of the Earnest Money to Buyer in the
event Buyer timely exercises its right to terminate pursuant to Section 5.1,
Seller and Buyer agree that in the event Buyer timely delivers written notice of
its election to terminate, the Title Company shall return the Earnest Money, to
Buyer without the need for any approval by Seller, provided Buyer has complied
with the requirements of this Contract. The parties covenant and agree to
promptly execute the necessary documentation to facilitate the release of the
Earnest Money hereunder. This obligation shall survive the termination of this
Contract.
4. Title Commitment and Survey.
4.1 Title Commitment. Within ten (10) business days after the Effective
Date, Title Company shall deliver a current preliminary title report (the
"Commitment") for a TLTA extended coverage title insurance policy (the "Owner's
Policy") on the Property to Buyer and Seller, together with legible copies of
all title exceptions (the "Title Exceptions") referred to in the Commitment.
Buyer shall have a period (the "Title Review Period") ending upon the expiration
of the Inspection Period in which to notify Seller of any objections (the
"Objections") Buyer has as to any matters set forth on or referred to in the
Commitment or on the New Survey (as provided pursuant to Section 4.2). Buyer
may, at its option and at its cost and expense, provide to Seller and the Title
Company the New Survey pursuant to Section 4.2. Buyer shall have until the end
of the Title Review Period to also make objections to the New Survey (such
timely objections being referred to as the "Survey Objections"). Any title
encumbrances, matters or exceptions which are set forth in the Commitment or on
the New Survey and to which Buyer does not object within the Title Review
Period, shall be deemed to be Permitted Exceptions to the status of Seller's
title (the "Permitted Exceptions"). Likewise, any Survey Objections that Buyer
does not timely make with respect to the Survey, if any, shall also be deemed to
be Permitted Exceptions. Notwithstanding the foregoing, if notice of Objections
and/or Survey Objections (collectively, the "Buyer's Objections") is not timely
given by Buyer, then Buyer shall be deemed to have objected to all matters set
forth in the Commitment and the New Survey and shall have elected to terminate
this Contract.
4.2 Survey. Within two (2) business days after the Effective Date, Seller
will deliver to Buyer a copy of its existing surveys (the "Seller's Survey"), to
the extent Seller has not previously provided the same to Buyer. Seller's Survey
was prepared before the Academy building was constructed and therefore related
modifications made to the Shopping Center at that time are not shown on Seller's
Survey. Delivery by Seller of Seller's Survey will be without representation or
warranty whatsoever. Buyer shall have the right to obtain a current, certified
ALTA survey of the Land and Improvements, completed by a surveyor licensed in
the state of Texas (the "New Survey"), whereupon the legal description in the
New Survey shall control over the description in Exhibit A attached hereto to
the extent they may be inconsistent. The New Survey shall set forth the legal
description and boundaries of the Property and all easements, encroachments and
improvements thereon.
4.3 Objections. In the event that Buyer shall timely make any Buyer's
Objections during the Title Review Period, Seller shall have the right (but not
the obligation) within five (5) business days after receipt thereof to notify
Buyer in writing of Seller's intent to cure (by removal from the Commitment or
endorsing over) any such Buyer's Objections. In the event that Seller shall be
unwilling and/or unable to cure Buyer's Objections, Buyer shall have the option,
as its sole and exclusive remedy in such event, to either: (1) waive those
Buyer's Objections which Seller is unable and/or unwilling to cure and purchase
the Property as otherwise contemplated in this Contract without any reduction in
the Purchase Price, notwithstanding such Buyer's Objections, in which event such
Buyer's
Objections shall become Permitted Exceptions; or (2) terminate this Contract, in
which event the Earnest Money shall, subject to Section 9.3, be delivered to
Buyer. In the event Seller fails to take any action or otherwise fails to timely
respond to Buyer's Objections, it shall be deemed that Seller has chosen not to
cure any of the Buyer's Objections. Buyer shall make its election (i.e. -- (1)
or (2) above) within five (5) business days following the earlier of: notice
from Seller describing which of the Buyer's Objections Seller will or will not
cure, or the expiration of Seller's five business day reply period. If Buyer
fails to timely give such notice, Buyer shall be deemed to have elected option
(2) above. Seller assumes no duty to expend any money, file a lawsuit or
otherwise timely delay Closing to cure any of the Buyer's Objections.
5. Inspection Period.
5.1 Inspection Period. Buyer shall have until thirty-five (35) days after
the Effective Date (such period being herein called the "Inspection Period") in
which to order, review and approve all inspections or studies which Buyer may
elect to make and address SEC matters pursuant to Section 7.2 (in each case at
Buyer's sole risk, cost and expense), including, without limitation,
feasibility, marketing, soils, asbestos, environmental, architectural and
engineering studies with respect to the Property and otherwise satisfy itself
with the Property pursuant to this Article 5. This Contract shall terminate upon
the end of the Inspection Period unless Buyer delivers written notice (the
"Notice of Acceptance") to Seller on or before 4:00 p.m. MST on the last day of
the Inspection Period stating that Buyer waives its right of termination
pursuant to this Article 5. Buyer may also terminate this Contract by the end of
the Inspection Period by delivering written notice to Seller on or before 4:00
p.m. MST on the last day of the Inspection Period stating that Buyer terminates
this Contract pursuant to this Article 5. Unless Buyer timely provides the
Notice of Acceptance to Seller, in writing, on or before the end of the
Inspection Period, this Contract shall be terminated. In the event Buyer timely
delivers its Notice of Termination or is deemed to have terminated this
Contract, the Contract shall be terminated. Upon such termination pursuant to
this Section 5.1, the Earnest Money shall be returned to Buyer, subject to
Buyer's compliance with Section 9.3, and, except as otherwise provided in this
Contract, neither of the parties shall have any further liability or obligation
under this Contract. Any attempt by Buyer to exercise such right of termination
after such date and time as provided in this Section 5.1 shall be of no force or
effect and it will be deemed that Buyer is satisfied with the condition of the
Property (including the physical condition of the Improvements and the
environmental condition of the Land and the Improvements), as well as the other
matters specified in this Section 5.1.
5.2 Indemnity. Buyer shall be liable to the Seller for the repair of any
damage to the Property occurring as a result of any of Buyer's tests,
inspections or other activities on or about the Property. Buyer shall defend,
indemnify and hold harmless Seller, its officers, directors, shareholders,
partners, venturers, employees and affiliates, and the officers, directors,
shareholders and employees, partners, venturers, and those of the affiliates of
Seller (all such parties being referred to as the "Seller Related Parties"), of
and from any claims, damages, expenses and causes of action of any and every
type proximately caused by or directly resulting from any such entry or
activities upon the Property. Buyer does hereby release and forever discharge
Seller and the other Seller Related Parties, from any and all claims, demands,
and causes of action of any kind or nature proximately caused by or directly
resulting from Buyer's activities related to such entry, inspections or testing.
Buyer shall not suffer or permit the filing of any mechanic's liens as a result
of Buyer's tests, inspections or other activities on or about the Property (and,
to the extent such mechanic's liens are or may be filed as a result of Buyer's
activities, such mechanic's liens, or the right to file such liens, shall be
deemed to be a Permitted Exception, or if Closing does not occur, will be paid
out of the Earnest Money and the Title Company is authorized to pay such liens
or claim, and Seller may pursue all of its rights and remedies). Buyer shall
provide Seller at least two (2) days advance notice of any invasive physical
inspections or environmental testing at the Property. The provisions of this
Section 5.2 will survive Closing or termination of this Contract.
5.3 Right of Inspection. During the Inspection Period, and thereafter until
the Closing hereof, so long as this Contract has not been terminated, Buyer, its
officers, employees, agents, contractors, engineers and consultants, may enter
upon the Property upon reasonable notice to Seller (and Seller's agent(s) have
the right to accompany such party while at the Property) for the purpose of
making an examination and investigation of the Property. Buyer shall be solely
responsible for the payment of any and all expenses incurred with respect to any
such investigations or examinations, including any examinations or
investigations for hazardous wastes or toxic substances in the soil or ground
water of the Land which Buyer may elect to conduct or have conducted, and Seller
shall have no responsibility for the initiation of or payment for any such
investigations or examinations. All such examinations and investigations shall
be undertaken at Buyer's sole cost, risk and expense.
5.4 Confidentiality. The Buyer agrees, for itself and its partners,
officers, employees, attorneys, lenders, accountants, engineers, environmental
auditors and other consultants (collectively, "Buyer Related Parties") to
maintain strict confidentiality of all aspects of this Contract and the subject
matter thereof, any associated negotiations, and all inspections undertaken by
Buyer with respect to this Contract and the Property, including, without
limitation, the Project Documentation. Except as may be required by law, the
Buyer Related Parties will not divulge any such information to other persons or
entities including, without limitation, appraisers, real estate brokers, or
competitors of the Seller. Notwithstanding the foregoing, the Buyer shall have
the right to disclose information with respect to the Property to the Buyer
Related Parties to the extent necessary for the Buyer Related Parties to
evaluate the acquisition of the Property, provided that the Buyer Related
Parties are told that such information is confidential and agree to keep such
information confidential. If Buyer terminates this Contract for any reason, then
all such materials received by the Buyer Related Parties from Seller, including
leases, operating statements and all the Project Documentation, shall be
returned to Seller within five (5) days from the date of said termination and
the Buyer Related Parties shall not retain copies.
6. Delivery of Documentation. Within five (5) business days after the
Effective Date, Seller shall deliver to Buyer (or make available for inspection
in Seller's office) the following (the "Initial Seller Documentation"), to the
extent in Seller's possession or control to its actual knowledge without
independent investigation of any kind, to the extent not heretofore delivered to
Buyer:
(a) a current rent roll of all Leases affecting the Property
confirmed by Seller or its property manager to be materially true
and correct to such party's actual knowledge;
(b) copies of all Leases, including any modifications, supplements,
or amendments thereto;
(c) contact information for the tenants on the basis of Landlord's
records;
(d) a current inventory of all Tangible Personal Property, if any,
owned by Seller and located on, attached to, or used in
connection with the Property;
(e) a copy of Seller's income and expense statements for the Property
from January 1, 2003 to December 31, 2004; and the current year
to date statement through September 30, 2005;
(f) copies of any environmental assessments, studies, or analyses
affecting the Property, if any, in Seller's possession or control
to Seller's actual knowledge;
(g) copies of 2004 Ad Valorem Tax Statements; and
(h) Building plans (to be inspected at Seller's office and copied at
Buyer's option and expense). Buyer may have Seller's copies of
those plans upon Closing without representation or warranty on
Seller's part.
Notwithstanding the foregoing provisions of this Article 6, or any other
provision in this Contract, Buyer acknowledges that it shall not be entitled to
receive any confidential information or documentation relating to the formation
or operation of the entity that comprises the Seller or its partners, or the
identity of its limited partners, or copies of its formation documentation
(other than as required by the Title Company to evidence due formation and
authorization to enter into this transaction), correspondence or other
communications between the partners, tax returns or related correspondence, or
any similar documentation (Buyer acknowledging and agreeing that same is
confidential). All such documentation provided by Seller to and received by
Buyer regarding the Property, including the Initial Seller Documentation, is
referred to as the "Project Documentation".
7. Interim Responsibilities of Seller.
7.1 Seller's Operations Generally. Seller agrees that during the period
between the Effective Date and the Scheduled Closing Date:
(a) Seller will fully comply with the terms of, and will not, without
the prior written consent of Buyer, amend or permit to be
amended, any indebtedness secured by a lien or security interest
against all or any part of the Property to such an extent that
the same could not be released at Closing with the Purchase Price
proceeds;
(b) Seller will not voluntarily further encumber or permit the
encumbrance of the Property in any manner to such an extent that
the same could not be released at Closing with the Purchase Price
proceeds;
(c) Seller will not, without the prior written consent of Buyer, take
any action before any governmental authority having jurisdiction
thereover, the object of which would be to change the present
zoning of or other land-use limitations, upon the Property, or
any portion thereof, or its potential use, and, to Seller's
actual knowledge after due inquiry, there are no pending
proceedings, the object of which would be to change the present
zoning or other land-use limitations; and
(d) Subject to force majeure conditions, Seller agrees to use
commercially reasonable efforts, to the extent customary at the
Property, to:
(1) Generally perform, or cause to be performed, all material
obligations of the landlord arising under the tenant leases and
service contracts and other agreements which are applicable to the
Property and will survive Closing or have a material effect on Buyer
following the Closing;
(2) Maintain the Property in its current condition, reasonable
wear and tear, casualty and condemnation excepted; and
(3) Continue to operate and manage said Property generally as
presently operated, to the extent deemed reasonable by Seller.
7.2 SEC S-X 3-14 Audit. Seller acknowledges that Buyer may, subject to
Section 16.4, elect to assign all of its right, title and interest in and to
this Contract to a company that is subject to the reporting requirements of the
Securities Exchange Act of 1934 ("SEC"), as amended ("Registered Company"),
promoted by the Buyer or to an affiliate of a Registered Company (a "Registered
Company Affiliate") which is promoted by Buyer. Buyer advises Seller that in the
event Buyer's assignee under this Contract is a Registered Company or a
Registered Company Affiliate, the Registered Company will be required to make
certain filings with the U.S. Securities and Exchange Commission required under
SEC Rule 3-14 of Regulation S-X (the "SEC Filings") that relate to the most
recent pre-acquisition fiscal year (the "Subject Year") for the Property. To
assist the Registered Company with the preparation of the SEC Filings, Seller
agrees to provide Buyer and the Registered Company during the Inspection Period
with certain unaudited, financial information regarding the Property for the
Subject Year as provided in this Contract (See Article 6). Such information
shall be provided by Seller on the basis of Seller's actual existing business
records applicable to the Property and shall consist of (to the extent
comprising a part of Seller's existing business records): (i) a trial balance
for year ended 12/31/04 and for year-to-date 2005 through 9/30/05, (ii) October,
November and December, 2005 bank statements to the extent of deposits made which
are applicable to the Property, (iii) accounts receivable aging for year ended
12/31/04 and for year-to-date 2005 through 9/30/05, (iv) accounts receivable
detail for year ended 12/31/04 and for year-to-date 2005 through 9/30/05 that
ties to the general ledger, (v) accounts payable accrued expense detail for year
ended 12/31/04 and for year-to-date 2005 through 9/30/05, (vi) copies of
selected specific invoices and checks as reasonably requested by Buyer, the
Registered Company or Buyer's or Registered Company's auditors, (vii)
rollforward of partners' capital as of 12/31/04 and as of 9/30/05, (viii)
detailed schedule showing activity of distributions of partners' capital for
2004 and for 2005 through 9/30/05, (ix) calculation of management fees with
respect to the Property, (x) a copy of any
management agreement(s) with respect to the Property, (xi) proof of payment of
real estate tax bills related to 2004 and 2005, (xii) copies of insurance bills
with respect to the Property for 2004 and 2005, (xiii) proof of payment of 2004
and 2005 insurance bills, (xiv) schedule of rental revenue for year ended
12/31/04 and for year-to-date 2005 through 9/30/05, and (xv) CAM reimbursement
estimates (including reasonable support for the calculation and tie-outs to the
general ledger) (collectively, the "SEC Filing Information"); provided, however,
to the extent Seller is requested to prepare and/or provide such existing
information in a format different than it exists in Seller's existing records,
Seller shall cooperate with Buyer in the preparation and/or provision of such
reformatted records with such qualifications as Seller reasonably determines to
be appropriate and, provided further, that Buyer shall pay Seller's reasonable
costs in connection therewith. Any other documentation requested by Buyer is
subject to Seller's approval and shall expressly exclude tax returns, bank
statements and insurance policies, as well as other documentation which may
relate also to other properties owned or controlled by Seller (i.e. not only
covering the Property), or other information Seller considers confidential.
Seller shall provide such documentation prior to the expiration of the
Inspection Period, and Seller agrees to cooperate with Buyer, the Registered
Company and Buyer's or the Registered Company's auditors regarding any inquiries
by Buyer, the Registered Company and Buyer's or the Registered Company's
auditors following receipt of such information (consistent with this Section 7.2
and this Contract generally), including delivery by Seller of an executed
representation letter prior to the end of the Inspection Period in form and
substance requested by Buyer's or the Registered Company's auditors ("SEC
Filings Letter") and approved by Seller. A sample SEC Filings Letter is attached
to this Contract as Exhibit G; however, Buyer's and/or the Registered Company's
auditors may request additions and/or revisions to such letter following review
of the SEC Filing Information provided by Seller, but such revisions are subject
to Seller's approval in its sole discretion. Seller consents to the disclosure
of the SEC Filing Information in any SEC Filings by the Registered Company
excluding confidential information. Buyer shall reimburse Seller for Seller's
reasonable costs associated with providing the SEC Filing Information. The
provisions of this Section 7.2 shall survive the Closing for a period of one (1)
year. Either party may terminate this Contract in the event of an unresolved
dispute concerning this Section 7.2 or the SEC Filing Letter as such party's
sole remedy in such event.
7.3 Leases. Between the date hereof and the Closing Date, Seller shall have
the right to continue to operate and maintain the Property in the ordinary
course of business including, without limitation, the right to deal with
existing tenants in a customary fashion and by way of example, sign customary
non-disturbance and landlord waiver agreements as are typical for landlords of
similar Shopping Centers in Montgomery County, Texas. However:
(a) After the Effective Date, and until the Scheduled Closing Date,
such period being referred to as the "Lease Restriction Period",
Seller shall not modify or cancel a Lease or enter into any proposed
Lease of all or any portion of the Property, other than renewals
authorized in this Section 7.3(a), without Buyer's prior written
consent in each instance, which consent shall not be required if Buyer
is in default under this Contract. To the extent such consent is
requested by Seller, Buyer agrees not to unreasonably withhold, delay,
or condition such consent. However, Seller may permit an existing
tenant to exercise an existing renewal or extension right without
Buyer's consent.
(b) The provisions of this Section 7.3 shall survive the Closing.
(c) With respect to any proposed action by Seller to be submitted to
Buyer for its consent pursuant to this Section 7.3, Buyer shall
consent or deny its consent with the reasons for any such denial,
within two (2) business days after receipt by Buyer of Seller's notice
requesting Buyer's consent to the proposed action relating to such
existing or proposed New Lease. If Buyer fails to timely reply to
Seller's request for consent pursuant to the provisions of this
Section 7.3 in a notice given within the above-described applicable
time period, such consent shall be deemed to have been given.
7.4 Actual Knowledge. Reference in this Contract to "Seller's actual
knowledge" or similar terms relating to Seller shall mean, refer and be limited
to the current actual knowledge of the officers of the general partner of
Seller, which does not include constructive knowledge or inquiry knowledge, with
no examination or investigation of its files or any duty of inquiry on the part
of any of them.
8. Closing.
8.1 Closing Date. The Closing (the "Closing") shall be held not later than
2:00 p.m. MST on or before thirty (30) days following the expiration of the
Inspection Period, or as Buyer and Seller may otherwise mutually agree upon in
writing (the "Scheduled Closing Date"). Neither Seller nor Buyer need be
physically present at the Closing and either or both may handle the closing
through the Title Company. The actual date of the Closing is referred to as the
"Closing Date".
8.2 Closing Documents from Seller. At Closing, Seller shall deliver or
cause to be delivered to Buyer the following (collectively, the "Seller Closing
Deliveries"):
(1) Original, executed Special Warranty Deed ("Deed") conveying to
Buyer fee simple title to the Property, free and clear from any and all
liens, restrictions, easements and other encumbrances and title exceptions,
except for Permitted Exceptions and matters that a correct Survey of the
Property shall reflect, in the form attached hereto as EXHIBIT "B".
(2) Original, executed Bill of Sale and Assignment ("Bill of Sale"),
in form suitable for recording in the real property records of Montgomery
County, Texas, conveying to Buyer, with a special warranty of title,
Seller's right, title and interest in and to the Leases, Contracts, Permits
and Tangible Personal Property, subject to the Permitted Exceptions, in the
form attached hereto as EXHIBIT "C". Buyer shall assume the Contracts upon
the Closing unless the parties otherwise agree in writing.
(3) With respect to each tenant under the Leases, an original estoppel
certificate naming Buyer (or its designee) and Wachovia Bank, National
Association as addressees, in form provided by Buyer to Seller not later
than fifteen (15) days after the Effective Date and reasonably acceptable
to each tenant consistent with the terms of its respective lease (in
connection herewith, Buyer and its lender shall approve or disapprove of
any tenant modification to Buyer's form of estoppel within seven (7) days
of their receipt of such modification), executed by each such tenant.
(4) With respect to each tenant under the Leases, an original
subordination, non-disturbance and attornment agreement (and "SNDA"), in
form provided by Buyer to Seller not later than fifteen (15) days after the
Effective Date and reasonably acceptable to each tenant consistent with the
terms of its respective lease (in connection herewith, Buyer and its lender
shall approve or disapprove of any tenant modification to Buyer's form of
SNDA within seven (7) days of their receipt of such modification), for the
benefit of Wachovia Bank, National Association, executed by each such
tenant.
(5) A Non-Foreign Person Affidavit.
(6) Such organizational and authorizing documents of Seller as shall
be reasonably required by the Title Company to evidence Seller's authority
to consummate the transactions contemplated by this Contract.
(7) A complete and accurate inventory of any Tangible Personal
Property, if any, as of the Closing Date.
(8) An updated list of the tenants occupying the Property certified by
Seller or its property manager to be materially accurate to its actual
knowledge as of the Closing Date ("Rent Roll").
(9) An amount in cash or as a credit against the Purchase Price equal
to the total sum of all prepaid rents and Deposits, as reflected on the
Rent Roll.
(10) To the extent in Seller's possession: (i) the Leases; (ii) the
Contracts, if any; and (iii) without representation on Seller's part, any
plans and specifications covering the Improvements (including tenant
build-out plans and specifications), constituting part of the Property, and
all other documents or
contracts pertaining to the ownership, operation and maintenance of the
Property as herein required.
(11) Reimburse Buyer upon Closing for the cost of the Survey, but not
to exceed $2,500.00 in any event.
(12) All other customary documentation reasonably required by the
Title Company not inconsistent with the terms of this Contract.
8.3 Closing Documents from Buyer. At the Closing, Buyer shall:
(1) Pay or cause to be paid to Seller the Purchase Price, in
immediately available U.S. funds by wire transfer, it being agreed that
Buyer shall receive a credit against the Purchase Price for the Earnest
Money.
(2) Deliver to Seller such organizational and authorizing documents of
Buyer as shall be reasonably requested by Seller or Title Company to
evidence Buyer's authority to consummate the transactions contemplated by
this Contract.
(3) Execute and deliver to Seller the Bill of Sale and Assignments
which are to be provided by Seller pursuant to this Contract.
(4) Execute and deliver the "Closing Certificate" pursuant to Section
13.2(b) which is to be provided by Seller pursuant to this Contract.
(5) Pay for the Survey, if any (except to the extent Seller is
obligated to pay for same pursuant to Section 8.2(9).
(6) Execute and deliver to Seller and the Title Company such other
documents reasonably required by the Title Company.
8.4 Buyer's Conditions Precedent. In addition to all other conditions
precedent set forth in this Contract, Buyer's obligations to perform under this
Contract and to close escrow are expressly subject to the following:
(1) The delivery by Seller to Title Company, for delivery to Buyer at
Closing, of the Seller's Closing Deliveries").
(2) The issuance of the Owner's Policy (or a written commitment
therefor) subject only to those matters approved or deemed approved by
Buyer pursuant to this Contract.
(3) The deposit with Title Company and Buyer prior to the expiration
of the Inspection Period of an executed waiver by each tenant under the
Leases of any right of first refusal under said Leases.
(4) Intentionally Omitted.
(5) The deposit with Title Company of an executed standard owner's
affidavit in form and substance reasonably acceptable to Buyer and Seller.
(6) The deposit with Title Company of a letter from Seller to each
tenant under the Leases requesting that future rent under such Leases be
paid to Buyer.
8.5 Tenant Contact. Buyer is not Seller's agent and shall not hold itself
out as same or enter into any agreements which are binding on Seller or
otherwise create any obligation on Seller's part without Seller's written
consent, and Buyer shall indemnify, defend and hold Seller harmless from any
claim by or through a tenant or a prospective tenant to the contrary. The
provisions of this Section 8.5 will survive termination of this Contract.
8.6 Tenant Rent Prorations and Other Prorations. Current rents for the
month of Closing and
estimated, prorated year-end additional rent adjustments (so-called Operating
Expense adjustments as per the applicable Leases) shall be prorated as of the
Closing Date and reflected upon the Closing Statement. Seller will retain the
exclusive right to collect any unpaid amounts owing to Seller pursuant to any
Leases with prior tenants who do not occupy the Property either at the time of
Closing or when those collection proceedings are commenced, and such unpaid
amounts will remain the sole and exclusive property of Seller. Buyer will have
the exclusive right to collect any unpaid amounts due at or before the time of
Closing pursuant to any Lease with a tenant who occupies the Property at
Closing, and such unpaid amount, if collected, will be promptly paid by Buyer to
Seller. Additional rent adjustment paid by the tenants for the calendar year
preceding the year of Closing shall be paid directly to Seller upon receipt
thereof by Buyer (to the extent received by Buyer), and Buyer shall otherwise
cooperate with Seller and regularly keep Seller informed with respect to the
collection thereof. Additional rent charges for the year of Closing to be
received after the Closing with respect to each tenant shall be estimated by
Buyer and Seller and equitably prorated between Seller and Buyer based on the
number of days Seller owned and the Buyer or its successors will own the
Property for the year of Closing. Buyer shall otherwise cooperate with Seller
with respect to the collection thereof. Buyer shall have no responsibility to
Seller to collect any amounts due Seller under any Lease of the Property. The
provisions of this Section will survive Closing. Additional Rent which includes
Common Area Maintenance Charges, Insurance and Tax Charges ("Tenant
Reimbursements"), operating expenses, real estate and personal property ad
valorem taxes and any other taxes and assessments for the year of Closing which
are assessed or are assessable as of the date of Closing, shall be prorated
between Seller and Buyer as of the Closing Date with Buyer assuming liability to
pay the same (to the extent applicable) after Closing. Such items will be
prorated at Closing on the basis of (in the event of taxes) the preceding year's
tax rate applied against the latest assessed valuation, or (in the case of other
items), on the best available evidence. After Closing, Seller and Buyer will
make any cash adjustment between themselves regarding ad valorem taxes; provided
such adjustment shall not be made more than twelve (12) months after Closing.
The foregoing provision will survive Closing.
8.7 Closing Prorations. Except as otherwise provided for in this Contract,
Seller and Buyer will each be solely responsible for and bear all of their own
respective expenses, including, without limitation, expenses of legal counsel,
accountants, and other advisors incurred at any time in connection with pursuing
or consummating the transaction contemplated herein. Real estate taxes shall be
prorated based upon the current valuation and latest available tax rates. All
prorations shall be calculated through escrow as of Closing based upon the
latest available information. Seller agrees that all closing costs payable by
Seller shall be deducted from Seller's proceeds otherwise payable to Seller at
Closing. Buyer and Seller shall each pay one-half of Title Company's escrow or
processing fees provided Buyer does not agree to pay more than $300.00 in this
regard. Buyer shall deposit with Title Company sufficient cash to pay all of
Buyer's closing costs. Buyer shall pay all costs arising from or relating to
Buyer's financing, if any, and any costs to update existing or to obtain new
environmental studies, reports or surveys, all recording fees, all transfer,
sales excise applicable to the Buyer, and all other costs applicable to the
Buyer arising from the transfer of the Property to Buyer. Each party otherwise
agrees to pay their respective normal closing costs as so determined to be
customary in Montgomery County to the extent not expressly allocated to the
parties under this Contract.
8.8 Title Policy and Survey. Buyer shall pay the premium for the Owner's
Policy to be delivered at Closing (including any additional cost of extended
coverage of any kind or amending the survey exception to read "shortages in
area", or deleting the boundary exception, and the Mortgagee Title Policy if
Buyer elects to obtain same, and timely furnished a satisfactory survey for this
purpose, which shall be at the sole cost and expense of Buyer). Buyer shall pay
for the New Survey, if any, but Seller shall reimburse Buyer at the Closing (and
conditioned upon the Closing) for the documented cost of the New Survey up to
$2,500.00. Buyer shall pay all costs arising from or relating to Buyer's
financing, if any, and any costs to update existing or to obtain new
environmental studies, reports or surveys.
8.9 Possession. Possession of the Property, subject to all Permitted
Exceptions, shall be delivered to Buyer upon Closing.
9. Default.
9.1 Buyer Default. In the event Buyer, in an attempt to terminate this
Contract, does not timely and in the manner required under this Contract
exercise the right of termination pursuant to Article 5; fails to timely deposit
the Earnest Money; fails to consummate the purchase of the Property in
accordance with this Contract, other than by reason of a default by Seller; or
breaches any of Buyer's agreements and covenants contained in this Contract,
Seller
shall be entitled to terminate this Contract and receive and retain all Earnest
Money theretofore paid (including all interest accrued thereon) as liquidated
damages. Other than those rights and remedies intended to survive the
termination of this Contract (expressly including Buyer's indemnification
obligations hereunder), the foregoing stated remedy is Seller's sole remedy, it
being stipulated and agreed that such amount is a reasonable estimate of the
damages if this provision is applicable upon a breach by Buyer of Buyer's
obligations under this Contract.
9.2 Seller Default. In the event this Contract is not terminated under any
provision granting a right of termination at or prior to Closing, and Seller
fails to consummate the sale of the Property in accordance with this Contract
(after all conditions and matters to which this Contract and/or the rights
and/or obligations of the parties hereto are subject have been satisfied), Buyer
shall either (i) terminate this Contract and receive back the Earnest Money from
the Title Company, or (ii) seek specific performance of the obligation to convey
the Property, including all reasonable and necessary costs and expenses in
enforcing specific performance, as its sole and exclusive remedy in such event,
Buyer expressly recognizing that Seller has no obligation to cure title or
survey defects or make any representations or warranties (other than the limited
warranty of title to be contained in the closing documents executed at the
Closing). Buyer waives any claim for damages as a result of Seller's failure to
perform hereunder, Buyer's sole remedies being described in the preceding
sentence. Buyer covenants and agrees not to assert a claim against Seller or any
other Seller Related Party in contravention of this Section 9.2. Notwithstanding
the foregoing, from and after the date hereof until Closing, Seller covenants
not to convey the Property or take any other act such that the consequence
thereof would be to prevent Buyer from exercising its right to enforce specific
performance of this Contract where Buyer would otherwise have the right to do
so. If Seller does breach this covenant, and in lieu of the right by Buyer to
exercise its right of specific performance (which remedy would not be available
to Buyer), Seller shall be liable for all actual damages proximately resulting
from Seller's said breach of this covenant, including, without limitation,
reasonable attorney fees and costs of court incurred by Buyer in enforcing this
Contract. This covenant shall become null and void upon Buyer's termination of
this Contract for any reason, conveyance of the Property to Buyer (or its
designee or assignee) as contemplated by this Contract or Buyer's breach
hereunder. Accordingly, this covenant shall not survive either party's
termination of this Contract where such party has exercised that right pursuant
to this Contract or Closing.
9.3 Release of Documents upon Failure to Close. If Buyer elects to
terminate this Contract pursuant to a right granted to Buyer hereunder or
otherwise fails to close, upon payment by Seller to Buyer of Buyer's reasonable
cost thereof, Buyer shall furnish to Seller a copy of the New Survey. Upon
payment by Seller to Buyer of Buyer's reasonable cost thereof, Buyer shall also
furnish to Seller any inspection reports Buyer has conducted with respect to the
Property, environmental or otherwise (and Seller shall have the right to use
same thereafter without further obligation to Buyer), save and except "work
product" materials of the Buyer or its representative. If Buyer does not close,
upon payment by Seller to Buyer of Buyer's reasonable cost thereof, it shall
provide Seller with copies of its studies or other similar data it develops or
obtains during its property review, and it will return to Seller all information
pertaining to the Property which Seller provided, and confirm in writing to
Seller that it has complied with this Section 9.3, and Article 5. The provisions
of this Section 9.3 will survive Closing or termination of this Contract.
9.4 Authority of Title Company. In the event either party hereto becomes
entitled to all or any part of the Earnest Money in accordance with the terms
and conditions of this Contract, Buyer and Seller covenant and agree that the
Title Company shall make any such disbursements of the Earnest Money.
10. Risk of Loss; Condemnation. In the event of any material damage or
destruction to, or any threatened or actual condemnation or conveyance in lieu
of condemnation of a material part of, the Property, then Seller shall notify
Buyer and Buyer shall have the option to terminate this Contract on written
notice to the other on or before the first to occur of: fifteen (15) days after
Seller notifies Buyer of such damage, destruction, condemnation or conveyance in
lieu thereof, or the date and time herein specified for the Closing. If Buyer
does not exercise such termination right and/or in the event such damage or
destruction is not material, or less than a material part of the Property has
been condemned or conveyed in lieu thereof, Seller shall assign to Buyer at the
Closing, Seller's right, title and interest, if any, to receive any insurance
proceeds for damage to the Improvements and/or the condemnation proceeds or
proceeds for sale in lieu of condemnation payable in connection with such
damage, destruction, taking or sale and the sale will proceed without reduction
in Purchase Price. In such event, Seller shall also deliver to Buyer, in the
form of a credit to Buyer at Closing, any insurance proceeds for damage to the
Improvements, or condemnation proceeds or proceeds from a sale in lieu of
condemnation, which may have been received by Seller prior to the Closing and
attributable to the damage, destruction, condemnation or conveyance in
lieu thereof which was the subject of Seller's notice described above, to the
extent not used for repairs or restoration, and shall credit the Purchase Price
in an amount equal to the cost of such repairs not theretofore completed. For
purposes of this Section 10, "material" means a taking, condemnation, conveyance
in lieu of condemnation, damage or destruction which, as applicable, either (i)
is reasonably estimated to cost more than $350,000.00 to repair, rebuild or
restore, (ii) is reasonably expected to take more than 210 days to repair,
rebuild or restore, (iii) that prevents the full and complete use of 10.0% or
more of the parking spaces present immediately prior to such taking,
condemnation, conveyance in lieu of condemnation, damage or destruction, or (iv)
that prevents the full and complete use of any means of ingress, egress or
access to or from the Property.
11. Brokerage Commissions. Seller shall pay a real estate commission (the
"Commission") pursuant to a separate written agreement in cash at the Closing to
BETZ COMMERCIAL BROKERAGE, INC., said Commission being payable at and
conditioned upon the Closing and funding of this transaction. Buyer and Seller
each represent and warrant to the other that it has not used or dealt with any
other broker or finder in connection with the sale of the Property. Buyer agrees
to defend, indemnify and hold Seller harmless of and from any such brokerage
commissions and/or fees which may be payable with respect to the transaction
provided for hereunder claimed through or under Buyer. Seller agrees to defend,
indemnify and hold Buyer harmless of and from any brokerage commissions and/or
fees which may be payable with respect to the transaction provided for hereunder
claimed through or under Seller. The provisions of this Section 11 shall survive
termination of the Contract and shall remain binding upon the parties regardless
of whether Closing occurs.
IN ACCORDANCE WITH THE REQUIREMENTS OF THE TEXAS REAL ESTATE LICENSE ACT,
BUYER IS HEREBY ADVISED BY BROKER THAT IT SHOULD BE FURNISHED WITH OR OBTAIN A
POLICY OF TITLE INSURANCE OR HAVE THE ABSTRACT COVERING THE PROPERTY EXAMINED BY
ANY ATTORNEY OF ITS OWN SELECTION.
12. Entire Agreement. This Contract embodies the entire agreement of the
parties and supersedes all prior agreements and understandings, written or oral,
relating to the Property, and can be modified or varied only by written
agreement executed by all the parties. No representation, warranty, covenant,
agreement, or condition not expressed in this Contract shall be binding upon the
parties hereto or shall affect or be effective to interpret, change, or restrict
the provisions of this Contract.
BUYER COVENANTS AND AGREES NOT TO CLAIM THAT THERE ARE ANY VERBAL
AGREEMENTS, REPRESENTATIONS OR WARRANTIES ON THE PART OF SELLER OR ANY OTHER
SELLER RELATED PARTY.
13. Representations.
13.1 Seller's Representations and Warranties. Seller represents (and where
indicated, warrants) to Buyer as follows:
(a) Seller represents and warrants that it owns the Property, subject
to all matters of record and has full right, title, financial ability,
authority and capacity to execute and perform this Contract and to
consummate all of the transactions contemplated herein;
(b) Seller represents and warrants that the person(s) signing this
Contract on behalf of Seller is(are) duly authorized to sign for and bind
Seller;
(c) Seller represents to Seller's actual knowledge, that there are no
prohibitions against Seller consummating the transactions contemplated in
this Contract by any law, regulation, agreement, instrument, restriction,
order or judgment applicable to Seller;
(d) Seller represents to Seller's actual knowledge, that there are no
unrecorded leases (other than the Leases), liens or encumbrances which are
applicable to the Property which are not set forth in the Title Commitment;
(e) Seller represents to Seller's actual knowledge, that Seller has
not received written notice of a material uncured notice of violation which
has been issued by any governmental authority during the
last twenty-four (24) months with regard to any applicable regulation or
law, ordinance, requirement, covenant, condition or restriction relating to
the present use or occupancy of the Property;
(f) Seller represents to Seller's actual knowledge, that there are no
specific intended public improvements which will or could result in any
charges being assessed against the Property which will result in a lien
upon the Property;
(g) Seller represents to Seller's actual knowledge, that Seller has
not received written notice in the last twenty-four (24) months of any
impending or contemplated condemnation or taking by inverse condemnation of
the Property, or any portion thereof, by any governmental authorities (and
to Seller's actual knowledge, none is pending); (however, Seller advises
Buyer that Rayford Road is presently being widened which may affect or
reduce available parking not located on the Property and no representation
or warranty is made in connection therewith);
(h) Seller represents to Seller's actual knowledge, there are no suits
or claims pending or threatened in writing with respect to the Property,
nor does Seller have actual knowledge of any circumstances on the basis of
any written notice it may have received which should reasonably form the
basis for any such suits or claims which have not been disclosed in writing
to Buyer by Seller;
(i) Seller represents and warrants that there is not existing any
written agreement, under which Seller is or could become obligated to sell
the Property, or any portion thereof, to a third party and Seller will not
enter into nor execute any such agreement prior to the Scheduled Closing
Date, but only so long as Buyer is not in default hereunder (but Seller
reserves the right to continue to evaluate back-up offers);
(j) Seller represents that, to Seller's actual knowledge, the
jurisdiction in which the Property is located did not issue Certificates of
Occupancy at the time the Improvements were constructed and does not, as of
the date hereof, have any zoning ordinances applicable to the Property;
(k) To Seller's actual knowledge, no default of Seller exists under
any of the Leases and no default of any tenant exists under any of the
Leases;
(l) To Seller's actual knowledge, no Contracts applicable to the
Property exist which would be assigned to Buyer upon Closing (Seller shall
terminate the existing management contract with its affiliate upon
Closing);
(m) Seller represents to Seller's actual knowledge, that no consent of
any third party is required in order for Seller to enter into this Contract
and perform Seller's obligations hereunder;
(n) Seller represents to Seller's actual knowledge, except for any
item to be prorated at Closing in accordance with this Contract or other
disclosed matters pursuant to the Leases or Tenant Estoppel Letters (or
otherwise disclosed in writing during the Inspection Period), all bills or
other charges, costs or expenses arising out of or in connection with or
resulting from Seller's use, ownership, or operation of the Property up to
Closing shall be paid in full by Seller;
(o) All general real estate taxes, assessments that have become due
with respect to the Property through December 31, 2005 (and those for 2006
will be prorated at Closing) have been paid or will be so paid by Seller
prior to Closing;
(p) Subject to matters disclosed on environmental reports provided by
Seller to Buyer, Seller represents that it has neither received actual
written notice, nor has it any actual knowledge, that there exists or that
Seller caused any generation, production, location, transportation,
storage, treatment, discharge, disposal, release or threatened release
upon, under or about the Property of any Hazardous Materials in violation
of applicable laws. "Hazardous Materials" shall mean any flammables,
explosives, radioactive materials, hazardous wastes, hazardous and toxic
substances or related materials, asbestos or any material containing
asbestos (including, without limitation, vinyl asbestos tile) which is not
permitted to exist under applicable law, or any other substance or
material, defined as a "hazardous substance" by any
federal, state, or local environmental law, ordinance, rule or regulation
including, without limitation, the Federal Comprehensive Environmental
Response Compensation and Liability Act of 1980, as amended, the Federal
Hazardous Materials Transportation Act, as amended, the Federal Resource
Conservation and Recovery Act, as amended, and the rules and regulations
adopted and promulgated pursuant to each of the foregoing;
(q) Seller represents that to Seller's actual knowledge, that there is
not now, nor has there ever been, on or in the Property underground storage
tanks, any polychlorinated biphenyls, including those used in hydraulic
oils, electric transformers, or other equipment, in violation of applicable
laws, Seller hereby assigns to Buyer, on a non-exclusive basis, effective
as of Closing, all claims, counterclaims, defenses, or actions, whether at
common law, or pursuant to any other applicable federal or state or other
laws which Seller may have against any third parties relating to the
existence of any Hazardous Materials in, at, on, under or about the
Property (including Hazardous Materials released on the Property prior to
Closing and continuing in existence on the Property at Closing);
(r) To Seller's actual knowledge, that there are no proceedings
pending for the increase of the assessed valuation of the Property for
2005;
(s) Should Seller receive written notice or discover in its files any
information not theretofore provided to Buyer by Seller regarding any of
the matters set forth in this Section 13.1 after the Effective Date and
prior to Closing, Seller will immediately notify Buyer of the same in
writing;
(t) All representations made in this Contract by Seller shall survive
the execution and delivery of this Contract and Closing for eighteen (18)
months. Provided this transaction closes, Seller shall and does hereby
indemnify against and hold Buyer harmless from any actual loss, damage, or
expense, together with all court costs and reasonable attorneys' fees which
Buyer may incur, by reason of any material misrepresentation by Seller or
any material breach of any of Seller's warranties, provided such claim is
asserted in writing and made within eighteen (18) months following the
Closing; and Seller is afforded a reasonable opportunity to cure, remediate
or mitigate the damages resulting therefrom same. Seller's indemnity and
hold harmless obligations shall survive Closing for a period of eighteen
(18) months from Closing only.
Except as provided above in this Section 13.1, and the limited warranty of title
to be contained in the Deed, Seller makes no representations or warranty
whatsoever regarding the Property and/or this Contract and this sentence shall
prevail over any conflicting provision to the contrary.
13.2 Limitations of Seller's Representations and Warranties.
(a) BUYER ACKNOWLEDGES AND AGREES THAT BUYER IS EXPERIENCED IN THE
OWNERSHIP AND OPERATION OF PROPERTIES SIMILAR TO THE PROPERTY AND THAT
BUYER PRIOR TO THE CLOSING DATE WILL HAVE INSPECTED THE PROPERTY TO ITS
SATISFACTION AND IS QUALIFIED TO MAKE SUCH INSPECTION. BUYER ACKNOWLEDGES
THAT EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF SELLER SET FORTH
HEREIN AND EXCEPT AS OTHERWISE PROVIDED IN THIS CONTRACT, IT IS FULLY
RELYING ON BUYER'S (OR BUYER'S REPRESENTATIVES') INSPECTIONS OF THE
PROPERTY AND NOT UPON ANY STATEMENTS (ORAL OR WRITTEN) WHICH MAY HAVE BEEN
MADE OR MAY BE MADE (OR PURPORTEDLY MADE) BY SELLER OR ANY OF ITS OFFICERS,
REPRESENTATIVES, AGENTS, ATTORNEYS OR PARTNERS. BUYER ACKNOWLEDGES THAT
BUYER HAS (OR BUYER'S REPRESENTATIVES HAVE), OR PRIOR TO THE CLOSING DATE
WILL HAVE, THOROUGHLY INSPECTED AND EXAMINED THE PROPERTY TO THE EXTENT
DEEMED NECESSARY BY BUYER IN ORDER TO ENABLE BUYER TO EVALUATE THE
CONDITION OF THE PROPERTY AND ALL OTHER ASPECTS OF THE PROPERTY (INCLUDING,
BUT NOT LIMITED TO, THE ENVIRONMENTAL CONDITION OF THE PROPERTY), AND BUYER
ACKNOWLEDGES THAT, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF SELLER
SET FORTH HEREIN AND AS OTHERWISE PROVIDED HEREIN, BUYER IS RELYING SOLELY
UPON ITS OWN (OR ITS REPRESENTATIVES') INSPECTION, EXAMINATION AND
EVALUATION OF THE PROPERTY. AS A MATERIAL PART OF THE CONSIDERATION FOR
THIS CONTRACT, BUYER HEREBY AGREES TO ACCEPT THE PROPERTY ON THE CLOSING
DATE IN ITS "AS IS, WHERE IS" CONDITION AND WITH ALL FAULTS, AND, EXCEPT
FOR THE REPRESENTATIONS AND WARRANTIES OF SELLER SET FORTH HEREIN AND AS
OTHERWISE PROVIDED HEREIN, WITHOUT REPRESENTATIONS AND WARRANTIES OF ANY
KIND, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW. WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, IN CONNECTION WITH THE SALE OF THE
PROPERTY TO BUYER, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF SELLER
SET FORTH HEREIN AND AS OTHERWISE PROVIDED HEREIN, SELLER AND SELLER'S
PARTNERS, OFFICERS, AGENTS, DIRECTORS, EMPLOYEES, ATTORNEYS, CONTRACTORS
AND AFFILIATES ("SELLER'S RELATED PARTIES") HAVE MADE NO, AND SPECIFICALLY
DISCLAIM, AND BUYER ACCEPTS THAT SELLER AND SELLER'S RELATED PARTIES HAVE
DISCLAIMED, ANY AND ALL REPRESENTATIONS, GUARANTIES OR WARRANTIES, EXPRESS
OR IMPLIED, OR ARISING BY OPERATION OF LAW, OF OR RELATING TO THE PROPERTY,
INCLUDING, WITHOUT LIMITATION, OF OR RELATING TO (I) THE USE, INCOME
POTENTIAL, EXPENSES, OPERATION, CHARACTERISTICS OR CONDITION OF THE
PROPERTY OR ANY PORTION THEREOF, INCLUDING WITHOUT LIMITATION, WARRANTIES
OF SUITABILITY, HABITABILITY, MERCHANTABILITY, DESIGN OR FITNESS FOR ANY
SPECIFIC OR A PARTICULAR PURPOSE, OR GOOD AND WORKMANLIKE CONSTRUCTION,
(II) THE NATURE, MANNER, CONSTRUCTION, CONDITION, STATE OF REPAIR OR LACK
OF REPAIR OF ANY IMPROVEMENTS LOCATED ON THE PROPERTY, ON THE SURFACE OR
SUBSURFACE THEREOF, WHETHER OR NOT OBVIOUS, VISIBLE OR APPARENT, (III) THE
NATURE OR QUALITY OF CONSTRUCTION, STRUCTURAL DESIGN OR ENGINEERING OF THE
PROPERTY, (IV) THE ENVIRONMENTAL CONDITION OF THE PROPERTY AND THE PRESENCE
OR ABSENCE OF OR CONTAMINATION BY HAZARDOUS MATERIALS, OR THE COMPLIANCE OF
THE PROPERTY WITH REGULATIONS OR LAWS PERTAINING TO HEALTH OR THE
ENVIRONMENT, INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL
RESPONSE, COMPENSATION AND LIABILITY ACT, THE CLEAR WATER ACT, THE CLEAN
AIR ACT AND THE TEXAS HEALTH AND SAFETY CODE (THE "ENVIRONMENTAL LAWS"),
AND (V) THE SOIL CONDITIONS, DRAINAGE, FLOODING CHARACTERISTICS, UTILITIES
OR OTHER CONDITIONS EXISTING IN, ON OR UNDER THE PROPERTY. EXCEPT FOR THE
REPRESENTATIONS AND WARRANTIES OF SELLER SET FORTH HEREIN AND AS OTHERWISE
PROVIDED HEREIN, THE BUYER HEREBY EXPRESSLY ASSUMES ALL RISKS, LIABILITIES,
CLAIMS, DAMAGES, AND COSTS (AND AGREES THAT SELLER SHALL NOT BE LIABLE FOR
ANY SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL, OR OTHER DAMAGES) RESULTING
OR ARISING FROM OR RELATED TO THE OWNERSHIP, USE, CONDITION, LOCATION,
MAINTENANCE, REPAIR OR OPERATION OF THE PROPERTY. BUYER ACKNOWLEDGES THAT,
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF SELLER SET FORTH HEREIN
AND AS OTHERWISE PROVIDED HEREIN, ANY CONDITION OF THE PROPERTY WHICH BUYER
DISCOVERS OR DESIRES TO CORRECT OR IMPROVE PRIOR TO OR AFTER THE CLOSING
DATE SHALL BE AT BUYER'S SOLE EXPENSE. BUYER EXPRESSLY WAIVES (TO THE
EXTENT ALLOWED BY APPLICABLE LAW) ANY CLAIMS UNDER FEDERAL LAW, STATE OR
OTHER LAW, INCLUDING ENVIRONMENTAL LAWS, THAT BUYER MIGHT OTHERWISE HAVE
AGAINST SELLER RELATING TO THE USE, CHARACTERISTICS OR CONDITION OF THE
PROPERTY, WHETHER SOUNDING IN TORT, CONTRACT, COMMON LAW OR PURSUANT TO
STATUTE EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF SELLER SET FORTH
HEREIN AND AS OTHERWISE PROVIDED HEREIN. ANY REPAIRS PAID FOR BY SELLER
PURSUANT TO THIS CONTRACT, IF ANY, SHALL, EXCEPT FOR THE REPRESENTATIONS
AND WARRANTIES OF SELLER SET FORTH HEREIN AND AS OTHERWISE PROVIDED HEREIN,
BE DONE WITHOUT ANY WARRANTY OR REPRESENTATION BY SELLER, AND SELLER HEREBY
EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION OF ANY KIND WHATSOEVER
IN CONNECTION WITH SUCH REPAIRS. THE PROVISIONS OF THIS PARAGRAPH SHALL
SURVIVE THE CLOSING. NOTWITHSTANDING THE FOREGOING OR ANYTHING TO THE
CONTRARY, SELLER'S LIABILITY IS LIMITED AS PROVIDED IN SECTION 13.1 (P) OF
THIS CONTRACT.
(b) Subject to the express provisions of this Contract, Buyer or
anyone claiming by, through or under Buyer, except for the representations
and warranties of Seller set forth herein and except as otherwise provided
herein, hereby fully waives and releases Seller, its affiliated companies,
and their respective partners, employees, officers, directors,
representatives, attorneys and agents ("Released Parties") from any and all
claims, liabilities, damages, losses, penalties, fines, costs (including,
without limitation, reasonable attorneys' and paralegals' fees, court costs
and costs of experts), causes of action, and remedies arising from or
related to any defects or other conditions affecting the Property. Buyer
further acknowledges and agrees that this waiver and release shall be given
full force and effect according to each of its expressed terms and
provisions, including, but not limited to, those relating to unknown and
suspected claims, damages and causes of action. This waiver and release of
claims shall not apply to those representations and warranties of Seller
set forth herein, but shall survive Closing and delivery of the Deed. Buyer
shall execute a document at Closing reaffirming the representations,
warranties and agreements set forth in this Section 13.2 and their survival
as provided in this Section (the "Closing Certificate"). Notwithstanding
the foregoing or anything to the contrary, Seller's liability is limited as
provided in Section 13.1 (p) of this Contract.
(c) BUYER COVENANTS AND AGREES NOT TO ASSERT A CLAIM AGAINST SELLER OR
ANY OTHER SELLER RELATED PARTY CONTRARY TO THE TERMS HEREOF.
13.3 Representations and Warranties of Buyer.
In addition to other representations and warranties made herein, Buyer
represents, warrants, and covenants with Seller that:
(a) Buyer has the full right, power and authority to purchase the Property
from Seller as provided in this Agreement to carry out Buyer's
obligations hereunder. All requisite actions necessary to authorize
Buyer to enter into this Agreement and perform its obligations
hereunder have been taken. The joinder of no person or entity other
than Buyer will be necessary to close this transaction.
(b) Buyer acknowledges and agrees that in the event that Seller furnishes
Buyer with any environmental report in the possession of Seller
pursuant to the terms and provisions of this Agreement, Buyer will not
rely on such report in performing its due diligence and inspection of
the Property. Further, in the event that such report is incorrect or
incomplete in any respect, Buyer acknowledges and agrees that Seller
shall have no responsibility or liability to Buyer by reason of such
fact. Buyer shall promptly furnish to Seller any environmental report
Buyer obtains with respect to the Property.
(c) All representations made in this Contract by Buyer shall survive the
execution and delivery of this Contract and Closing. Buyer shall and
does hereby indemnify against and hold Seller harmless from any loss,
damage, liability and expense, together with all court costs and
attorneys' fees, if awarded by a court of law, which Seller may incur,
by reason of any material misrepresentation by Buyer or any material
breach of any of Buyer's warranties. Buyer's indemnity and hold
harmless obligations shall survive Closing for a period of one (1)
year.
14. Notices. All notices, demands and requests which may be given or which
are required to be given by either party to the other, and any exercise of a
right of termination provided by this Contract, shall be in writing and shall be
deemed effective only when: (i) personally delivered to the intended recipient;
(ii) two (2) days after being sent, by certified or registered mail, return
receipt requested, addressed to the intended recipient at the address specified
below; (iii) delivered in person to the address set forth below for the party to
whom the notice was given; (iv) deposited in to the custody of a nationally
recognized overnight delivery service such as Federal Express Corporation,
Emery, or Purolator, addressed to such party at the address specified below, as
evidenced by a deposit receipt issued by such company; or (v) telecopied to the
intended recipient at the telephone number specified below, as evidenced by a
confirmation from the sender's telecopy machine. For purposes of this Section,
the addresses of the parties for all notices are as follows (unless changed by
similar notice in writing given by the particular person whose address is to be
changed):
If to Seller: RPI INTERESTS II, LTD.
c/o Tommy J. Friedlander
(If by mail): P.O. Box 159
Bellaire, Texas 77402
(If by delivery): 5333 Gulfton
Houston, Texas 77081
Telephone: (713) 662-7745
Facsimile: (713) 662-7769
With a copy to
Seller's Attorney: Stephen L. Brochstein
DeLange, Hudspeth, McConnell & Tibbets
8 Greenway Plaza, Suite 1300
Houston, Texas 77046
Telephone: (713) 871-2000
Facsimile: (713) 871-2020
E-mail: sbrochstein@dhmtlaw.com
If to Buyer: COLE CAPITAL PARTNERS, L.L.C.
2555 East Camelback Road, Suite 400
Phoenix, Arizona 85016
Telephone: (602) 778-8700
Facsimile: (602) 778-8780
With a copy to: Bennett Wheeler Lytle & Cartwright, PLC
3838 North Central Avenue, Suite 1120
Phoenix, Arizona 85012
Telephone: (602) 445-3434
Facsimile: (602) 266-9119
[E-MAIL ADDRESSES, AND TELEPHONE NUMBERS ARE PROVIDED FOR CONVENIENCE
ONLY AND NOTICE SHALL NOT BE DEEMED TO HAVE BEEN GIVEN PURSUANT TO
THIS CONTRACT BY E-MAIL OR TELEPHONE, BUT ONLY IN THE MANNER SET FORTH
ABOVE.]
15. Waiver of Claims
(a) Buyer releases any and all rights or claims against the partners,
agents, attorneys and representatives of Seller, other than its general
partner, RPI INTERESTS GP, LLC, a Texas limited liability company, to the
extent of its interest in Seller, and agrees to look solely to Seller, a
Texas limited partnership and its general partner, RPI INTERESTS GP, LLC,
to the extent of its interest in Seller as aforesaid, for all claims
relating to or arising from this Contract or matters relating to or arising
from the Property or any matters relating thereto, and covenants and agrees
not to assert any such claim in contravention of this paragraph, whether
against Seller's limited partners or their successors or assigns, or their
respective agents, representatives, partners, owners or affiliates, or
their successors or assigns, or otherwise.
(b) Buyer acknowledges and agrees that Seller's attorneys, including
STEPHEN L. BROCHSTEIN and the law firm with whom he is associated, do not
represent Buyer and any communications with those attorneys are for
purposes of negotiation only, and those attorneys shall not be deemed in
any event to make any verbal representations, warranties or agreements on
behalf of Seller, and Buyer agrees not to assert any such claim in
contravention of this paragraph, whether against Seller's attorneys or
otherwise.
(c) In furtherance of the foregoing, Buyer absolutely agrees that it
shall never contend or
assert a claim that Seller or its partners or agents (or attorneys) have
made any verbal agreements, representations or assurances. Any negotiations
or verbal communications do not constitute binding agreements,
representations or assurances. Seller would not enter into this Contract
without these agreements or assurances on the part of Buyer who represents
that: (i) it has knowledge and experience in financial and business matters
that enable it to evaluate the merits and risks of the transaction that is
the subject of this Contract; and (ii) Buyer is not in a significantly
disparate bargaining position in relation to Seller.
(d) The foregoing waivers and agreements are knowingly, intentionally,
and voluntarily made by Buyer, and Buyer acknowledges that it has the right
to be represented by independent legal counsel selected of its own free
will in connection with the negotiations and execution of this Contract.
(e) Seller releases any and all rights or claims against the partners,
agents, attorneys and representatives of Buyer and agrees to look solely to
Buyer for all claims relating to or arising from this Contract or matters
relating to or arising from the Property or any matters relating thereto,
and covenants and agrees not to assert any such claim in contravention of
this paragraph, whether against Buyer's limited partners or their
successors or assigns, or their respective agents, representatives,
partners, owners or affiliates, or their successors or assigns, or
otherwise.
(f) Buyer acknowledges and agrees that Seller's attorneys, including
Kevin T. Lytle, Esq., and the law firm with whom he is associated, do not
represent Seller and any communications with those attorneys are for
purposes of negotiation only, and those attorneys shall not be deemed in
any event to make any verbal representations, warranties or agreements on
behalf of Buyer, and Seller agrees not to assert any such claim in
contravention of this paragraph, whether against Buyer's attorneys or
otherwise.
(g) In furtherance of the foregoing, Seller absolutely agrees that it
shall never contend or assert a claim that Buyer or its partners or agents
(or attorneys) have made any verbal agreements, representations or
assurances. Any negotiations or verbal communications do not constitute
binding agreements, representations or assurances. Buyer would not enter
into this Contract without these agreements or assurances on the part of
Seller who represents that: (i) it has knowledge and experience in
financial and business matters that enable it to evaluate the merits and
risks of the transaction that is the subject of this Contract; and (ii)
Seller is not in a significantly disparate bargaining position in relation
to Buyer.
(h) The foregoing waivers and agreements are knowingly, intentionally,
and voluntarily made by Seller, and Seller acknowledges that it has the
right to be represented by independent legal counsel selected of its own
free will in connection with the negotiations and execution of this
Contract.
(i) The provisions hereof shall survive Closing.
16. Miscellaneous.
16.1 Governing Law; Venue. This Contract shall be construed and interpreted
under and in accordance with the laws of the State of Texas. The parties
expressly waive trial by jury.
16.2 Time. Time is of the essence of this Contract. Notwithstanding the
foregoing, if the last day of any time period stated herein shall fall on a
Saturday, Sunday or legal holiday, then the duration of such time period shall
be extended so that it shall end on the next succeeding day which is not a
Saturday, Sunday or legal holiday.
16.3 Headings and Construction. The captions used in connection with the
paragraphs of this Contract are for convenience only and shall not be deemed to
construe or limit the meaning of the language contained in this Contract, or be
used as interpreting the meaning of the agreement. Words of any gender used in
this Contract shall be held and construed to include any other gender, and words
in the singular shall be held to include the plural and vice versa, unless the
context requires otherwise.
16.4 Assignment and Binding Effect. Except as limited below, this Contract
shall be binding upon and inure to the benefit of Seller and Buyer, and their
respective heirs, personal representatives, successors and assigns.
Provided, however, that Buyer may assign all of Buyer's right, title and
interest in, to or under this Contract to, or designate as an assignee of Buyer,
only an Affiliate (as defined below) of Buyer, provided that no assignment shall
increase any of Seller's obligations or expenses hereunder. Buyer shall promptly
notify Seller and Title Company of any such assignment, and Buyer's assignee
shall thereafter assume all obligations and duties of Buyer hereunder; however
Buyer shall remain liable under this Contract and shall not be relieved of
Buyer's duties, obligations and liabilities hereunder. As used herein,
"Affiliate" means a United States legal entity owned or controlled by Buyer or
under common control with Buyer. "Control" (including with correlative meanings,
the term controlled) means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of the other
entity, whether through the ownership of voting securities, by contract or
otherwise. Except as expressly provided herein, nothing in this Contract is
intended to confer on any person, other than the parties hereto and their
respective heirs, personal representatives, successors and assigns, any rights
or remedies under or by reason of this Contract.
16.5 Non-Merger. Any covenant or agreement herein which contemplates
performance after the time of Closing of this Contract shall not be deemed to be
merged into or waived by the instruments of Closing, but shall survive and be
binding upon the parties obligated thereby.
16.6 Effective Date. The Effective Date of this Contract shall be December
27, 2005.
16.7 Recording. Except as provided herein to the contrary, neither this
Contract nor any memorandum or other document, affidavit or other writing shall
be recorded.
17. Exhibits. The following Exhibits are attached to and incorporated into
this Contract by reference:
A: Legal Description
B: Form of Special Warranty Deed
C: Form of Bill of Sale and Assignment of Leases
D: Form of Closing Certificate
E: Form of Tenant Notice
F: Seller's FIRPTA Certificate
G: SEC Filings Letter
18. Offer. This Contract shall be null and void unless Buyer executes this
Contract and delivers the same to Seller for signature not later than Friday,
December 23, 2005 at 4:00 p.m. CST, and Seller executes counter-originals of the
Contract. In addition, Buyer must deliver the Earnest Money to the Title Company
within five (5) business day following the Effective Date of this Contract.
Buyer shall not begin its due diligence investigations at the Property until
Seller and Buyer have executed this Contract and delivered the same to the Title
Company, and Buyer has paid the Earnest Money pursuant to this Contract.
SELLER: BUYER:
RPI INTERESTS II, LTD. COLE CAPITAL PARTNERS, L.L.C.
By: RPI Interests GP, LLC By: /s/ John M. Pons
Its General Partner ------------------------------------
Name: John M. Pons
Title: Senior Vice President
By: /s/ Tommy J. Friedlander, Manager
---------------------------------
Tommy J. Friedlander, Manager
BROKER AGREEMENT
Broker acknowledges and agrees that the parties have the right to modify or
amend the Contract of Sale (other than Section 11) without the consent or
joinder of Broker. Broker further agrees that Broker has no right or authority
to make any representation, warranty or agreement on behalf of Seller without
Seller's written authorization and agrees to comply with Section 13.2. Broker
agrees to use its diligent efforts to keep the terms of this transaction
confidential except to the extent such information is already public information
or is otherwise required to be disclosed by law.
BROKER:
BETZ COMMERCIAL BROKERAGE, INC.
By: /s/ Larry Marks
------------------------------------
Name: Larry Marks
Title: SVP
Address: 4900 Woodway, Suite 815
Facsimile (713) 892-5300
E-mail: LAMARKS@ATT.NET
Date: 12/22/05
TITLE COMPANY ACKNOWLEDGMENT
The Title Company hereby acknowledges receipt of a fully executed
counterpart of this Earnest Money Contract and receipt of the Earnest Money of
$500,000.00, referred to therein and agrees to accept, hold and disburse the
Earnest Money in accordance with the provisions of the Contract of Sale.
LAWYERS TITLE INSURANCE CORPORATION:
By: /s/ Allen S. Brown
------------------------------------
Name: Allen S. Brown
Title: Accounts Administrator
Date: January 4, 2006
AMENDMENT TO CONTRACT OF SALE
This Amendment to Contract of Sale (this "Amendment") is made and entered
into effective as of the 15th day of February, 2006, by and between RPI
INTERESTS II, LTD. ("Seller"), and COLE CAPITAL PARTNERS, LLC ("Buyer"), and
provides as follows:
WITNESSETH:
WHEREAS, Seller and Buyer entered into that certain Contract of Sale dated
as of December 27, 2005 (the "Purchase Agreement"); and
WHEREAS, Seller and Buyer desire to amend the Purchase Agreement as
hereinafter set forth.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound,
the parties hereto hereby agree as follows:
1. Buyer has approved all title matters pertaining to the Property pursuant
to Section 4 of the Purchase Agreement. Specifically, Buyer has approved the
marked Commitment from LandAmerica Commercial Services which is dated February
6, 2006 (Escrow Number 05-47524). It is noted, however, that a Memorandum of
Lease for Academy Corp. was inadvertently filed in Harris County, not Montgomery
County where the Property is located. Accordingly, the Title Company has ordered
a certified copy of that Memorandum of Lease now recorded at File No. T547594 of
the Real Property Records of Harris County, Texas and shall record the same in
Montgomery County, Texas and shall reference the Academy Lease (as described in
the Memorandum) and the Memorandum itself as a Schedule B exception in form
similar to Exceptions 10 m, n and o pertaining to other leases of part of the
Property.
2. Buyer has also approved survey matters pertaining to the Property
pursuant to Section 4 of the Purchase Agreement. Specifically, Buyer has also
approved the revised Survey prepared by the Matthews Company dated January 18,
2006, and updated February 3, 2006 (Job No. 28630). Accordingly, Buyer approves
the "New Survey" as defined in Section 4.2 of the Purchase Agreement and
acknowledges and agrees that Buyer's objections (as defined in Section 4.3 of
the Purchase Agreement) have been satisfied.
3. Article 5 of the Purchase Agreement gives Buyer right to terminate the
Agreement in the manner and within the time period set forth in Article 5.
Except as provided in and limited by Paragraph 4 of this Amendment, Buyer waives
all rights of termination pursuant to Article 5. Buyer further acknowledges
receipt of the Initial Seller Documentation as provided in Section 6 of the
Purchase Agreement and has approved same.
4. Section 7.2 of the Purchase Agreement gives Buyer the right to terminate
the Purchase Agreement with respect to the SEC-S-X-3-14 Audit. Buyer
acknowledges that it has received from the Seller all SEC Filing Information (as
defined in Section 7.2), but Buyer has not conducted its audit (for reasons
unrelated to the Seller). Seller agrees that Buyer, Registered Company, Buyer's
auditors and Registered Company's auditors (collectively, the "Auditors") may
conduct its audit (pursuant to Section 7.2) and Buyer shall have the right to
terminate the Purchase Agreement pursuant to Section 7.2 if and only if (i)
Seller fails or refuses to cooperate with the auditors as required by Section
7.2, or (ii) Auditors discover that a material, adverse variance exists between
the SEC Filing Information and Seller's books and records examined and tested by
the Auditors in accordance with Section 7.2 and such material discrepancy is not
resolved by Seller to the reasonable satisfaction of such Auditors. Any right of
termination on the part of Buyer pursuant to Section 7.2 shall be deemed waived
if notice of termination is not given in writing to Seller (in the manner
required by the Agreement), pursuant to Section 7.2 of the Purchase Agreement,
as hereby amended, prior to 3pm MST on February 28, 2006. Buyer's sole remedy
under Section 7.2, as hereby amended shall be its timely election to terminate.
Seller will continue to cooperate with Buyer and the Auditors as reasonably
requested pursuant to Section 7.2. Buyer shall reimburse Seller for Seller's
reasonable costs associated with such audit.
5. Section 8.1 is amended as follows:
8.1 Closing Date. The Closing ("Closing") shall be held no later than 2
p.m. MST on or before March 2, 2006 or as Buyer and Seller may otherwise
mutually agree upon in writing (the "Scheduled Closing Date"). Neither Seller
nor Buyer need be physically present at the Closing and either or both may
handle the closing through the Title Company. The actual date of the Closing is
referred to as the "Closing Date". Seller may extend the Closing up to fifteen
(15) days as reasonably necessary in order to obtain Tenant estoppel letters and
SNDA's. Seller shall immediately forward those documents to the respective
Tenants.
6. Except as specifically amended herein, all of the terms and provisions
of the Purchase Agreement are hereby ratified and affirmed to be in full force
and effect as of the date hereof. To the extent of any conflict between the
Purchase Agreement and this Amendment, the terms and provisions of this
Amendment shall govern and control.
7. This Amendment may be executed in one or more counterparts, each of
which shall be an original, but all of which when taken together shall
constitute one and the same instrument binding on all parties. Delivery of a
signed counterpart by facsimile transmission shall be effective as delivery of a
manually signed counterpart of this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date set forth above.
BUYER: SELLER:
COLE CAPITAL PARTNERS, LLC, an RPI INTERESTS II, LTD.,
Arizona limited liability company a Texas limited partnership
By: /s/ John M. Pons By: RPI Interests GP, LLC
--------------------------------- Its General Partner
John M. Pons
Its Senior Vice President
By: /s/ Tommy J. Friedlander
------------------------------------
Tommy J. Friedlander
Its Manager
ASSIGNMENT OF CONTRACT OF SALE
COLE CAPITAL PARTNERS, LLC, AS ASSIGNOR
AND
COLE MT SPRING TX, LP, AS ASSIGNEE
Assignor, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, does hereby assign all of its right, title and
interest in, to and under that certain Contract of Sale (the "Purchase
Agreement") described herein, including, without limitation, Assignor's right,
title and interest in and to the Earnest Money, to Assignee and its successors
and assigns. The Purchase Agreement is described as follows:
DATE OF AGREEMENT: December 27, 2005, as amended February 15, 2006
ORIGINAL BUYER: Cole Capital Partners, LLC
ASSIGNED TO: Cole MT Spring TX, LP
PROPERTY ADDRESS: 25044 I-45 N., Spring, TX 77386
Assignor acknowledges that it is not released from any obligations or
liabilities under said Purchase Agreement, with the exception of the obligation
to deliver the Earnest Money which has been delivered into escrow by Assignor.
Assignee hereby agrees to assume and be responsible for all obligations and
liabilities under said Purchase Agreement, with the exception of the obligation
to deliver the Earnest Money which has been delivered into escrow by Assignor.
This Assignment shall be in full force and effect upon its full execution.
Executed this 1st day of March, 2006.
ASSIGNOR: ASSIGNEE:
COLE CAPITAL PARTNERS, LLC, COLE MT SPRING TX, LP,
an Arizona limited liability company a Delaware limited partnership
By: Cole GP CCPT II, LLC, a Delaware
By: /s/ John M. Pons Limited liability company, its
--------------------------------- General Partner
John M. Pons
Senior Vice President By: Cole REIT Advisors II, LLC, a
Delaware limited liability company,
its Manager
By: /s/ John M. Pons
--------------------------------
John M. Pons
Senior Vice President