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SECOND AMENDMENT TO AGREEMENT OF
SALE
THIS
SECOND AMENDMENT TO AGREEMENT OF SALE (the “ Second
Amendment ”) is made and entered into as of
February 1, 2008 (the “ Effective Date
”), by and among TST OVERLAND PARK , L .
P ., a Kansas limited partnership, TST EL PASO
PROPERTIES , LTD ., a Texas limited partnership, TST
JACKSONVILLE II , LLC , a Delaware limited liability
company, TST TAMPA BAY , LTD ., a Florida limited
partnership, TST LARGO ASC , LTD ., a Florida limited
partnership, TST BRANDON , LTD ., a Florida limited
partnership, TST LAKELAND , LTD ., a Florida limited
partnership (each a “ Seller ,” and
collectively “ Sellers ”), TRIPLE NET
PROPERTIES , LLC , a Virginia limited liability company
(“ Buyer ”), and LANDAMERICA FINANCIAL
GROUP , INC ., a corporation of the Commonwealth of
Virginia (“ Escrow Agent ”), with
reference to the following Recitals:
R E C I T A L
S
A. Sellers and Buyer previously entered into that certain
Agreement of Sale dated December 19, 2007, as amended by that
certain First Amendment to Agreement of Sale dated January 16,
2008 (collectively, the “ Purchase Agreement
”), wherein each Seller agreed to sell, and Buyer agreed to
buy, each Seller’s Respective Property (as defined in the
Purchase Agreement).
B. Sellers and Buyer by this Second Amendment desire to
further amend the Purchase Agreement as set forth herein.
NOW
, THEREFORE , in consideration of the foregoing Recitals
(which are incorporated herein by this reference) and for other
good and valuable consideration, the receipt and sufficiency of
which are herby acknowledged, the parties hereto agree as
follows:
A G R E E M E N
T
1. Definitions . All initially
capitalized terms not otherwise defined herein shall have the
meanings given to such terms in the Purchase Agreement. As of the
Effective Date, all references to “ the Agreement
” or “ this Agreement ” in the Purchase
Agreement and in this Second Amendment shall mean and refer to the
Purchase Agreement as amended by this Second Amendment unless the
context clearly indicates otherwise.
2. Fourth Floor Credit . Notwithstanding
anything to the contrary contained in the Purchase Agreement or in
any closing or settlement statement made with respect thereto, at
the closing of the transfer contemplated in the Purchase Agreement
with respect to the REIT Properties (the “ REIT
Closing ”), Escrow Agent shall credit Buyer an amount
equal to the sum of all Completion Obligations pursuant to and in
accordance with Section 2(d) of the Purchase Agreement,
including, without limitation a credit of $451,000.00 (the “
Fourth Floor Credit ”), which is necessary to
fund the Completion Obligations applicable to the Fourth Floor
Amendment (as defined on the attached Exhibit D-1
).
3. Amendment to Exhibit D .
Exhibit D (Completion Obligations) is hereby amended by
deleting such exhibit in its entirety and inserting in lieu thereof
Exhibit D-1 attached hereto.
4. Miscellaneous .
(a) Successors and Assigns . This Second
Amendment shall be binding upon, and inure to the benefit of, the
parties hereto and their respective successors, heirs,
administrators and assigns. Neither Buyer nor Sellers shall assign
its right, title or interest in and to this Second Amendment.
(b) Amendments . Except as otherwise
provided herein, this Second Amendment may be amended or modified
only by a written instrument executed by all parties hereto.
(c) Applicable Law . This Second
Amendment shall be governed by and construed in accordance with the
internal laws of the State of Ka
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