exv10w1



 




Exhibit
10.1




Purchase and Sale Agreement




     This Purchase and Sale Agreement (this “Agreement”) is made as of the Effective Date
(defined below) by and between MIDLAND REAL ESTATE COMPANY, L.P. (“Seller”), and AmREIT REALTY
INVESTMENT CORPORATION (“Buyer”). Buyer and Seller are each a “Party” and referred to herein
collectively as the “Parties”.



     Section 1.  Certain Defined Terms.



	 	 	 
	(a) Purchase Price:
	 	$28,000,000.00

	 	 	 

	(b) Option Fee
	 	$100,000.00

	 	 	 

	(c) Earnest Money:
	 	$750,000.00

	 	 	 

	(d) Due Diligence Deadline:
	 	5:00 p.m., San Antonio, Texas time on the 21st

	 	 	calendar day after the Effective Date







     Section 2. Purchase and Sale. Subject to the terms and conditions of this Agreement,
Seller agrees to sell, assign and transfer to Buyer, and Buyer agrees to purchase from Seller, for
the Purchase Price, all of Seller’s right, title and interest in and to the following
(collectively, the “Property”):



          (a) Land and Improvements. Lot 22, Block 12, New City Block 148, South Bank
Subdivision, an addition to the City of San Antonio, Bexar County, Texas according to the map or
plat thereof, recorded in Volume 9527, Page 109, Deed and Plat Records of Bexar County, Texas (the
“Land”), together with the building(s) and other improvements located thereon (the “Improvements”);




          (b) Other Rights. To the extent owned and transferable by Seller, all rights,
privileges, easements and appurtenances benefiting the Land and/or the Improvements, including,
without limitation, any and all mineral and water rights and any and all easements, rights-of-way
and other appurtenances used or connected with the beneficial use or enjoyment of the Land and/or
the Improvements (the Land, the Improvements and all such rights, privileges, easements and
appurtenances are referred to herein collectively as the “Real Property”);




          (c) Leases. All of Seller’s interest in the leases identified on the attached Exhibit
A (the “Leases”), which Exhibit A identifies the tenants under the Leases (the “Tenants”); and




          (d) Third Party Contracts. All of Seller’s rights and obligations in the contracts or
other agreements identified on Exhibit B (“Assumed Contracts”).




     Section 3. Option Fee, Earnest Money and Purchase Price.



          (a) Buyer shall deliver the Option Fee and the Earnest Money in the form of cash or wire
transfer to Chicago Title Insurance Company (the “Title Company”), 270 N Loop 1604 East — Suite
115, San Antonio, Texas 78232, Attention: Douglas W. Becker, Esq., no later




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than 5:00 p.m., San Antonio, Texas time on the first Business Day following the Effective
Date. Buyer acknowledges and agrees that the Option Fee is nonrefundable to Buyer in all events
except for a Seller Default, but credited to the Purchase Price. The Option Fee is earned by
Seller and will be paid to Seller in consideration for Buyer’s right to purchase the Property under
the terms of this Agreement. Buyer and Seller hereby agree and direct the Title Company to remit
to Seller the $100,000 Option Fee received under this Agreement within one (1) Business Day after
the Due Diligence Deadline.




          (b) The Purchase Price for the Property is payable in immediately available funds at Closing,
less any charges, credits or prorations provided for herein (including the Option Fee and the
Earnest Money, which will be credited against the Purchase Price).




     Section 4. PROPERTY IS “AS-IS, WHERE IS, WITH ALL FAULTS”. Except for the special
warranty of title in the Deed (defined below), and except as expressly set forth in Section 5,
Buyer acknowledges and agrees that:



          (a) THE SALE OF THE PROPERTY IS ON AN “AS-IS, WHERE-IS” BASIS AND WITH ALL FAULTS AS OF THE
CLOSING DATE, WITHOUT ANY REPRESENTATIONS OR WARRANTIES AS TO THE PHYSICAL CONDITION OR
ENVIRONMENTAL CONDITION OF THE PROPERTY, OR ANY OTHER REPRESENTATIONS OR WARRANTIES WITH RESPECT
THERETO. BUYER ACKNOWLEDGES AND AGREES THAT BUYER IS EXPERIENCED IN THE ACQUISITION, DEVELOPMENT,
OWNERSHIP AND OPERATION OF PROPERTIES SIMILAR TO THE PROPERTY AND THAT BUYER HAS, OR PRIOR TO THE
CLOSING DATE WILL HAVE, INDEPENDENTLY INVESTIGATED AND INSPECTED THE PROPERTY TO ITS SATISFACTION
AND IS QUALIFIED TO MAKE SUCH INSPECTION. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT IT IS RELYING
ON SUCH INDEPENDENT INVESTIGATION AND INSPECTION. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY
ANY VERBAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY, OR THE
OPERATION THEREOF, FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE, SERVANT OR OTHER PERSON,
AND BUYER IS NOT RELYING ON ANY SUCH INFORMATION.




          (b) EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER HAS NOT MADE, DOES NOT MAKE, AND
SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR OBLIGATIONS OF ANY
KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT, FUTURE OR
OTHERWISE, OF, AS, TO, CONCERNING, OR WITH RESPECT TO, THE PROPERTY, THE FINANCIAL CONDITION OR
ACCURACY OF ANY FINANCIAL INFORMATION OBTAINED BY BUYER IN CONNECTION WITH THE PROPERTY, OR WITH
RESPECT TO ANY OF THE LEASES OR TENANTS UNDER THE LEASES, OR THE MERCHANTABILITY OR FITNESS OF THE
PROPERTY FOR ANY PARTICULAR PURPOSE.




          (c) By consummating the transactions agreed to in this Agreement, Buyer will have made such
legal, factual, financial and other inquiries and investigations as it deems




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necessary, desirable or appropriate with respect to the Property and the value thereof and the
appurtenances, facilities and equipment thereof, and that it will be relying solely thereon.




          (d) The provisions of this Section 4 shall survive Closing.




     Section 5. Limited Warranties and Representations.



          (a) Seller hereby covenants, represents and warrants to Buyer, that:





     (i) To Seller’s Knowledge (as hereinafter defined), Seller has not received
notice of any violation of any law, municipal ordinance or other governmental
requirements affecting the Property in a material and adverse way.




     (ii) To Seller’s Knowledge, Seller has not received notice of any condemnation
or eminent domain proceeding or of negotiations for purchase of the Property in lieu
of condemnation; and to Seller’s Knowledge, no condemnation or eminent domain
proceedings are threatened against the Property.




     (iii) To Seller’s Knowledge, Seller has not received any notice of litigation
or other judicial proceeding relating to the Property, which could, in any material
way, interfere with the consummation of the Agreement.




     (iv) To Seller’s Knowledge, (a) all obligations required to be performed by
Seller as landlord of the Property have been performed, (b) except for the leasing
commissions, construction obligations and allowances previously disclosed to Buyer
with respect to the “Hear Music” lease space, there are no leasing or other
commissions due, nor will any become due, in connection with any Lease, nor any
renewal or extension of any Lease, (c) Seller is not in default under the Leases and
(d) in the event that Starbucks’ current space of 1,853 square feet is leased within
the guidelines in this Agreement, the leasing costs will be paid by Buyer.




     (v) The person who executes the Agreement on behalf of Seller is duly
authorized to do so.



     As used in this Section 5(a), the term “Seller’s Knowledge” means the current actual knowledge
of Jack J. Spector without duty of inquiry or investigation. The foregoing representations and
warranties in this Section 5(a) (“Seller’s Representations”) are true and correct in all material
respects as of the Effective Date and shall be true and correct as of Closing, except as disclosed
by Seller to Buyer in writing. Notwithstanding anything contained herein to the contrary, no action
may be brought for the alleged breach of any of Seller’s Representations more than two (2) years
after Closing.



          (b) Buyer hereby covenants, represents and warrants to Seller that:





     (i) The person who executes this Agreement on behalf of Buyer is authorized to
do so.



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     (ii) Buyer and all principals of Buyer have kept in confidence, and shall
continue to keep in confidence through the Closing, all information or documentation
provided to Buyer by or on behalf of Seller, or otherwise related to the Purchase
Price or other financial information for the Property, in accordance with the
provisions of Section 23.


The foregoing representations and warranties in this Section 5(b) (“Buyer’s Representations”) are
true and correct in all material respects as of the Effective Date and shall be true and correct as
of Closing.




     Section 6. Due Diligence Materials. Buyer acknowledges and agrees that prior to or
contemporaneously with the execution of this Agreement, Seller has delivered to Buyer the following
information relevant to the Property (the “Due Diligence Materials”):




     (i) A copy of the Title Policy Commitment No. 44-905-80, GF No. 200505271,
issued by Chicago Title Company on August 10, 2005, with an effective date of May
24, 2005 (the “Title Commitment”), together with copies of all documents listed as
title exceptions therein.




     (ii) A copy of the survey of the Property prepared by Pape-Dawson Engineers,
dated June 28, 2005, as revised and issued on August 10, 2005 (the “Survey”).




     (iii) A copy of the environmental report prepared by Clayton Group Services,
Inc., dated June 17, 2005, under Clayton Project No. 95-05067.00.




     (iv) The other items listed on Exhibit C attached hereto and incorporated
herein.



     Section 7. Due Diligence Period.



          (a) Due Diligence Deadline. Buyer shall have until the Due Diligence Deadline to:
review the Due Diligence Materials; conduct one or more physical inspections of the Property; and
review all other matters relating to all aspects of the Property, as well as Buyer’s proposed
purchase and use of the Property; provided, however, Buyer and its agents and representatives must
at all times comply with the requirements of Section 8 below concerning entry upon the Property,
and with the confidentiality requirements of Section 23 below. If Buyer determines for any reason
that the Property is not satisfactory to Buyer, then Buyer, in Buyer’s sole discretion, may
terminate this Agreement by giving written notice thereof to Seller (the “Termination Notice”)
prior to the Due Diligence Deadline. If Buyer timely delivers to Seller the Termination Notice,
this Agreement shall terminate, the Option Fee shall be retained by Seller (except in the event of
a Seller Default), the Earnest Money (but not the Option Fee unless in the event of a Seller
Default) shall be returned to Buyer, and neither Party shall have any further obligation to the
other pursuant to this Agreement, except those obligations that expressly survive the termination
of this Agreement (including Buyer’s indemnification obligations under Section 8 and Buyer’s
confidentiality obligations under Section 23). If Buyer does not deliver to Seller the Termination
Notice prior to the expiration of the Due Diligence Deadline, then Buyer shall be deemed to be
completely satisfied with the Property in all respects and all such matters




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will be deemed approved by Buyer in all respects and the Title Company shall immediately remit
the Option Fee to Seller.




          (b) Tenant Interviews. Upon expiration of the Due Diligence Deadline, Buyer shall
have the right, for a period of five (5) business days (the “Tenant Interview Period”), to
interview Tenants and their respective managers and employees. Seller covenants and agrees to
schedule an interview for each such Tenant during the Tenant Interview Period, each such scheduled
interview (i) to be at a time that is commercially reasonable for both the Tenant and Buyer and
(ii) to provide for a sufficient length of time for Buyer to reasonably obtain the information it
needs in order to evaluate the proposed purchase of the Property based on such interviews. Seller
shall have the right, but not the obligation, to accompany Buyer to each of the interviews. In the
event that Buyer receives information during such interviews that would materially and adversely
affect the operation or value of the Property, as determined by Buyer in its sole discretion, then
Buyer shall have the right to terminate this Agreement by giving written notice thereof to Seller
on or prior to the expiration of the Tenant Interview Period. If Buyer timely delivers such
termination notice, then this Agreement shall terminate, the Option Fee shall be retained by Seller
(except in the event of a Seller Default), the Earnest Money (but not the Option Fee unless in the
event of a Seller Default) shall be returned to Buyer, and neither Party shall have any further
obligation to the other pursuant to this Agreement, except those obligations that expressly survive
the termination of this Agreement (including Buyer’s indemnification obligations under Section 8
and Buyer’s confidentiality obligations under Section 23).




     Section 8. Entry Upon Property. Buyer and Buyer’s agents and representatives shall
have the right from the Effective Date until Closing, at reasonable times, upon 24 hours prior
Notice to Seller, subject to the rights of the Tenants and the rights of third parties under the
Assumed Contracts, to enter upon the Property for any purpose in connection with Buyer’s proposed
purchase and/or operation of the Property, including the right to make such inspections as Buyer
may elect to make or obtain, at Buyer’s sole cost and expense and, upon expiration of the Due
Diligence Deadline, the right to interview Tenants as provided for in Section 7 above; provided,
however: (i) no invasive testing (including, but not limited to, any so-called “Phase II”
environmental testing) on the Property is permitted, without Seller’s prior written consent, (ii)
Seller shall have the right to be present at such site visit(s), and (iii) under no circumstances
shall Buyer or its agents or representatives violate the confidentiality requirements of Section 23
below. BUYER HEREBY INDEMNIFIES SELLER FROM ANY AND ALL LIABILITIES AND LOSSES (INCLUDING
MECHANICS’ LIENS) ARISING OUT OF ANY SUCH ENTRY ONTO THE PROPERTY BY BUYER OR ITS AGENTS, OR
REPRESENTATIVES; PROVIDED, HOWEVER, THAT BUYER’S INDEMNITY SHALL NOT EXTEND TO OR COVER ANY
LIABILITIES OR LOSSES (I) ARISING OUT OF OR ATTRIBUTABLE TO A DIMINUTION IN THE VALUE OF THE
PROPERTY AS A CONSEQUENCE OF THE RESULTS REVEALED BY THE TESTS, INSPECTIONS, AND STUDIES CONDUCTED
BY BUYER OR (II) THE DISCOVERY, EXPOSURE, OR RELEASE OF HAZARDOUS SUBSTANCES OR MATERIALS EXISTING
IN, ON OR UNDER THE SURFACE OF THE PROPERTY AS OF THE DATE SUCH INSPECTIONS ARE CONDUCTED BY OR ON
BEHALF OF BUYER. THIS SECTION 8 WILL SURVIVE CLOSING OR THE TERMINATION OF THIS AGREEMENT.



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     Section 9. Survey. Seller has delivered to Buyer the Survey.



     Section 10. Title Commitment. Seller has delivered to Buyer the Title Commitment,
along with all documents listed on Schedule B thereto (“Schedule B Documents”), binding the Title
Company to issue an Owner’s Policy of Title Insurance (the “Owner’s Title Policy”).



     Section 11. Title/Survey Review and Approval.



          (a) Buyer has until seven (7) days after the Effective Date (the “Title/Survey Review Period”)
in which to give Seller Notice (as hereinafter defined) of objections (if any) to the exceptions to
title set forth in Schedule “B” of the Title Commitment (“Exceptions”) and/or objections (if any)
to matters shown on the Survey. Any Exceptions not objected to by Buyer within said time period
shall be deemed for all purposes hereunder to constitute “Permitted Exceptions”, and any matter
disclosed on the Survey, but not objected to by Buyer within said time period, shall be deemed
accepted by Buyer.




          (b) If Buyer provides Notice of any objections to Seller in the time and manner provided
herein, Seller may at its option, but shall not be obligated to, cure such objections within five
(5) days after receipt of such Notice (the “Cure Period”).




          (c) If Seller fails or is unwilling to cure Buyer’s objections within the Cure Period, Buyer
may, as its sole and exclusive remedy either:





     (i) terminate this Agreement by Notice given to Seller prior to the fifth (5th)
day following the earlier of: (A) the expiration of the Cure Period; or (B) Seller’s
Notice to Buyer of Seller’s unwillingness or inability to cure Buyer’s objections;
or




     (ii) waive any uncured objections, in which case such objections are deemed to
be approved by Buyer and included as Permitted Exceptions.



          (d) Failure by Buyer to terminate this Agreement in the manner and within the time period
specified herein shall constitute Buyer’s deemed approval of the Survey and Title Commitment,
including any uncured objections, and all matters contained on Schedule B of the Title Commitment
shall be considered Permitted Exceptions. Upon termination of this Agreement as provided in
Section 11(c), the Earnest Money (but not the Option Fee except in the event of a Seller Default)
shall be returned to Buyer, and neither Party shall have any further obligation to the other
pursuant to this Agreement, except those obligations that expressly survive the termination of this
Agreement (including Buyer’s indemnification obligations under Section 8 and Buyer’s
confidentiality obligations under Section 23).




          (e) Notwithstanding anything to the contrary contained herein, Seller shall discharge (or
otherwise cause to be deleted) all monetary liens and mechanic’s and materialmen’s liens against
the Property and satisfy all other requirements and matters set forth on Schedule C of the Title
Commitment for which Seller is responsible, at or prior to Closing and such Schedule C matters
shall not become Permitted Exceptions hereunder. All matters set forth in the Title Commitment and
Survey that are approved or deemed approved by Buyer in accordance herewith and the matters
identified therein shall be included as Permitted Exceptions;




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provided, however, if the Title Company revises the Title Commitment after the expiration of
the Title/Survey Review Period to add or modify exceptions or to delete or modify the conditions to
obtaining any endorsement requested by Buyer during the Title/Survey Review Period if such
additions, modifications or deletions are not acceptable to Buyer and are not removed by the
Closing Date, then the Title/Review Period shall be deemed to commence once again as of the date
Buyer receives Notice of such modifications, additions or deletions and the Cure Period, Due
Diligence Period and Closing Date shall each be extended accordingly.




     Section 12. Tenant Estoppel Certificates. Seller agrees to request from each of the
Tenants and agrees to use commercially reasonable efforts (without any obligation on Seller’s part
to expend any funds) to obtain from each of the Tenants a signed estoppel certificate in the form
attached hereto as Exhibit D, as such form may be modified in order to comply with the requirements
of the particular Lease from that Tenant (the “Tenant Estoppel Certificates”); provided, however,
Seller shall be required to deliver to Buyer within five (5) business days prior to Closing, an
executed Tenant Estoppel Certificate from each of the following Tenants (the “Major Tenants”): (i)
Rivicor, Inc., (ii) The County Line Riverwalk, Inc. (iii) Howl at the Moon-San Antonio, Inc. and
(iv) Hard Rock Café International (S.A.), Inc. Seller agrees to commence its efforts to obtain
Tenant Estoppel Certificates within one (1) day after the Due Diligence Deadline. Buyer will make
no attempts prior to the Closing Date (defined below) to obtain Tenant Estoppel Certificates or
otherwise violate the confidentiality requirements of Section 23 below.



     In the event Seller is unable to obtain Tenant Estoppel Certificates from any of the Tenants
(other than the Major Tenants, which Tenant Estoppel Certificates are required) by the Closing
Date, then: (i) Seller shall deliver to Buyer a Landlord’s Estoppel Certificate in the form
attached hereto as Exhibit E for each such Tenant, and (ii) Buyer shall accept such Landlord
Estoppel Certificates in substitution for the Tenant Estoppel Certificates. In the event Seller or
Buyer subsequently obtains any of the outstanding Tenant Estoppel Certificates, then such
certificate(s) shall replace and supersede the respective Landlord Estoppel Certificate(s), and
Seller shall immediately be released from any liability that might otherwise arise from such
Landlord Estoppel Certificate(s). Buyer acknowledges and agrees that Seller shall have no duty or
obligation to update Buyer after the Closing with respect to any facts that may arise with respect
to any Landlord’s Estoppel Certificate after the Closing Date. The provisions of this paragraph
shall survive Closing.



     Section 13. Conditions to Closing.



          (a) Buyer shall not be obligated to close the purchase and sale transaction contemplated by
this Agreement until all of the following conditions have been satisfied:





     (i) Seller has delivered or caused to be delivered to Title Company, at
Seller’s cost and expense, each of the following items, for release to Buyer upon
Buyer’s satisfaction of the requirements of Section 13(b):




          (A) A special warranty deed (the “Deed”) for the Real Property, duly executed
and acknowledged, conveying the Real Property to Buyer, in the form of Exhibit F
attached hereto, subject only to the Permitted Exceptions;



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          (B) An executed counterpart of the assignment and assumption of the Leases and
the Assumed Contracts in the form of Exhibit G attached hereto (the “Assignment”);




          (C) An original executed letter to each Tenant regarding Buyer’s acquisition of
the Property and assumption of Seller’s interest in the Leases, in the form of
Exhibit H attached hereto (the “Tenant Notices”);




          (D) An original executed certification of nonforeign status in the form of
Exhibit I attached hereto;




          (E) An original executed bill of sale and general assignment of intangibles, in
the form of Exhibit J attached hereto (the “Bill of Sale”);




          (F) An executed affidavit as to debts, liens and parties in possession, in the
form of Exhibit K attached hereto;




          (G) An executed Maintenance Services Agreement, in the form of Exhibit L
attached hereto (the “Maintenance Services Agreement”);




          (H) An assignment of that certain lease agreement dated                      by and
between Seller and the City of San Antonio (the “Riverwalk Lease”) with respect to
the leasing of the Riverwalk Space in the form of Exhibit M attached hereto,
executed by Seller and if required under the terms of the Riverwalk Lease, consented
to by the City of San Antonio (the “Riverwalk Lease Assignment”); and




          (I) Such evidence or documents as may be reasonably required by Title Company
evidencing the status and capacity of Seller and the authority of the person or
persons who are executing the various documents on behalf of Seller in connection
with the sale hereunder.




     (ii) Seller has delivered to Buyer such other documents as reasonably may be
required by Title Company in order to fully and legally close this transaction.




     (iii) Seller’s representations and warranties contained herein shall be true
and correct as of the date of this Agreement and the Closing Date.




     (iv) There shall exist no actions, suits, arbitrations, claims, attachments,
proceedings, assignments for the benefit of creditors, insolvency, bankruptcy,
reorganization or other proceedings, pending or threatened against Seller, any Major
Tenant, or Starbucks that would materially and adversely affect the operation or
value of the Property.




     (v) There shall exist no pending or threatened action, suit or proceeding with
respect to Seller before or by any court or administrative agency which seeks to
restrain or prohibit, or to obtain damages or a discovery order with



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respect to, this Agreement or the consummation of the transactions contemplated
hereby.



          (b) Seller shall not be obligated to close the purchase and sale transaction contemplated by
this Agreement until all of the following conditions have been satisfied:





     (i) Funds in the full amount of the Purchase Price have been delivered to Title
Company for release to Seller upon Seller’s satisfaction of the requirements of
Section 13(a);




     (ii) Buyer shall have executed and delivered to Title Company, for release to
Seller upon Seller’s satisfaction of the requirements of Section 13(a), the
Assignment, the Tenant Notices, the Maintenance Services Agreement, the Riverwalk
Lease Assignment and such other documents as reasonably may be required by Title
Company in order to fully and legally close this transaction.




     (iii) Buyer’s representations and warranties contained herein shall be true and
correct as of the date of this Agreement and the Closing Date.




     (iv) There shall exist no pending or threatened action, suit or proceeding with
respect to Buyer before or by any court or administrative agency which seeks to
restrain or prohibit, or to obtain damages or a discovery order with respect to,
this Agreement or the consummation of the transactions contemplated hereby.



          (c) If any of the foregoing conditions to Buyer’s or Seller’s obligation are not satisfied or
waived on or before the Closing Date, and the transaction does not close as a result of such
failure or lack of waiver, then all items delivered shall, upon written request therefore, be
immediately returned, and the Parties will have the respective remedies provided in Section 20
hereof, as applicable.




     Section 14. Closing. The closing of the transactions and settlement of funds
contemplated herein (“Closing”) shall take place at the offices of Title Company or at such place
as may be mutually agreed in writing by the Parties. The time and date of Closing shall be at
10:00 a.m., San Antonio, Texas time on the thirty-fifth (35th) calendar day after the
expiration of the Due Diligence Deadline, or earlier if mutually agreed in writing by the Parties
(the “Closing Date”). Notwithstanding the foregoing sentence, provided (a) Seller gives Buyer
Notice at least five (5) days prior to the Closing Date and (b) Seller has been unable to obtain
Tenant Estoppel Certificates from all the Major Tenants, then Seller shall have a one time right to
extend the Closing Date for a period of up to thirty (30) days solely for the purpose of obtaining
such Tenant Estoppel Certificates.



          (a) The Parties may either attend Closing in person or cause their obligations to be fulfilled
via federal wire transfer and delivery of documents by reliable means (as applicable) no later than
9:00 a.m., San Antonio, Texas time on the day of Closing.




          (b) At Closing, following satisfaction of all requirements and conditions specified in Section
13 hereof:




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     (i) Buyer shall instruct the Title Company to transfer the funds constituting
the remainder of the Purchase Price to such account as Seller may have designated;




     (ii) Seller shall instruct Title Company to record the Deed;




     (iii) The Parties shall instruct the Title Company to release the executed
documents that were provided by them, such that the documents may be delivered to
both Parties in their fully executed form;




     (iv) Title Company is not authorized to record the Deed or deliver the fully
executed documents held in escrow to Buyer until Title Company: (A) has in its
possession all documents to be executed and delivered by Buyer; (B) has in its
possession the funds constituting the remainder of the Purchase Price; and (C) is
prepared to deliver such funds to Seller in immediately available funds; and




     (v) Title Company is not authorized to deliver the fully executed documents
held in escrow, or the funds constituting the remainder of the Purchase Price, to
Seller until Title Company: (A) has in its possession all documents to be executed
and delivered by Seller; (B) is prepared to record and deliver such documents
necessary to consummate the transactions hereunder; and (C) is committed to deliver
the Owner’s Title Policy to Buyer.



     Section 15. Prorations and Credits.



          (a) Real property taxes, personal property taxes, and special assessments in connection with
the Property for the year of Closing shall be prorated as of the Closing Date. If the actual
amounts to be prorated are not known as of the Closing Date, the prorations shall be made on the
basis of the most recent appraisal available from the Bexar County Appraisal District and the most
recent tax rates from the Bexar County Tax Assessor. When the actual tax bill for the Property is
received by either Party, such Party shall provide Notice of its receipt and a copy of such bill to
the other Party; thereafter, the Parties shall promptly make a cash settlement based upon the
actual tax rates and appraised values.




          (b) At Closing, all security deposits held by Seller under the Leases will be assigned and
transferred to Buyer (which may be effectuated by a credit to Buyer at Closing). Additionally,
Buyer shall receive credits in the following amounts at Closing to be applied toward the Purchase
Price: (i) $120,000 for the amount owed as a tenant finishout allowance to Starbuck’s Corporation
(“Starbuck’s”) under its lease dated May 20, 2005 (the “Hear Music Lease”), and (ii) $32,901.10 for
the amount owed as a broker’s commission to Brent Clifton for services provided in connection with
the Hear Music Lease. Upon Closing, Buyer assumes responsibility for the payment of the
obligations identified in the previous sentence.




          (c) Seller shall retain any Rent received by Seller as of the Closing Date, which is
applicable to the month in which the Closing occurs or before; provided, however, that Buyer shall
receive a credit on the closing statement for an amount equal to the portion of such Rent that is
applicable to the Closing Date through the end of the month in which the Closing occurs. As used
herein, the term “Rent” includes all payments or sums chargeable to Tenants





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under the Leases, including but not limited to, basic rent, percentage rent, CAM charges,
“pass-throughs”, expenses, and other costs. Delinquent Rent shall not be prorated.





     (i) Buyer agrees that, with respect to any delinquent Rent that accrues during
periods of time prior to the Closing Date (regardless of when actually received,
reconciled, or charged, the “Pre-Closing Rent”), if Buyer collects such Pre-Closing
Rent then such Pre-Closing Rent shall be forwarded to Seller, after deducting the
costs, if any of collections, within three (3) Business Days of receipt thereof by
Buyer.




          (A) After Closing, Buyer shall bill and attempt to collect any Pre-Closing Rent
in the ordinary course of business, but shall not be obligated to engage a
collection agency or take legal action to collect any such Pre-Closing Rent. For a
period of one (1) year after Closing, Seller is permitted to pursue any Tenant for
Pre-Closing Rent, but agrees to do so in a commercially reasonable manner and
without filing any lawsuits against such Tenants.




          (B) Buyer and Seller each agree to provide the other with reports and
statements showing the amounts and collection status of Pre-Closing Rent, including
all information necessary to reconcile percentage rents, CAM charges, and all other
items not included in the base rental amounts. Upon five (5) Business Days’ Notice,
Buyer and Seller each agree to permit the other party to review their books and
records with respect to the Property in their respective place of business in order
to verify the amounts due with respect to the Pre-Closing Rent.




     (ii) Seller agrees to forward to Buyer, within three (3) Business Days of
receipt thereof, any Rent received after Closing for periods of time following
Closing.




     (iii) As of the Effective Date, Starbuck’s is leasing two different spaces at
the Property under two separate leases: (i) a space containing approximately 1,853
square feet (the “Original Starbuck’s Space”), as leased to Starbuck’s under a lease
executed in November of 1994 (the “Original Starbuck’s Lease”), and (ii) a space
containing approximately 5,969 square feet (the “Hear Music Space”), as leased under
the Hear Music Lease. It is contemplated that Starbuck’s will open for business at
the Hear Music Space in the Fall of 2005, and will cease operations in the Original
Starbuck’s Space at approximately 30 days later. In connection with Starbuck’s
transfer of operations from the Original Starbuck’s Space to the Hear Music Space,
Seller agrees that Buyer shall receive credits in the following amounts at Closing
to be applied toward the Purchase Price:




          (A) $37,993 (the “Hear Music Credit”) [NEED TO CONFIRM AMOUNT] to
provide supplemental cash flow until the estimated time that Starbuck’s makes it’s
first rent payment under the Hear Music Lease. This amount is an estimate of the
Rent that would be due under the Hear Music Lease from the Closing Date until the
[insert the date which is 120 days from the date



11









 







on which the building permit is received]. In the event Starbuck’s opens for
business under the Hear Music Lease prior to [insert the date which is 120 days from
the date on which the building permit is received], Buyer shall immediately return a
prorated portion of the Hear Music Credit to Seller.




          (B) $26,632 (the Starbuck’s Credit”) [NEED TO CONFIRM AMOUNT] to
provide supplemental cash flow while Buyer attempts to locate a replacement tenant
for the Original Starbuck’s Space. This amount is an estimate of the Rent that
would be due under the Original Starbuck’s Lease for a period of six months,
commencing on the Date of Closing, net of any Rent actually received. In the event
a replacement tenant occupies the Original Starbuck’s Space, or begins paying rent
before the 180th day after the Closing Date, Buyer shall immediately
return a prorated portion of the Starbuck’s Credit to Seller.




          (C) Buyer agrees to notify Seller of (i) the date Starbuck’s opens for business
under the Hear Music Lease, and (ii) the date a replacement tenant occupies the
Original Starbuck’s Space, or begins paying rent. Until the later of the two dates
listed in subparagraphs (i) and (ii) above, Buyer also agrees to provide Seller
promptly with reports and statements showing the amounts and collection status of
Rents received for the Original Starbuck’s Space and the Hear Music Space.



          (d) Charges under all Assumed Contracts (if applicable) shall be prorated on a per diem basis
as of the Closing Date, disregarding any discount or penalty and on the basis of the fiscal year or
billing period of the person levying or charging for the same. Charges for water, electricity,
sewer rental, gas, telephone and all other utilities shall not be prorated but, rather,
instructions shall be given to the utility companies by Seller (with a duplicate copy of such
instruction being provided concurrently to Buyer) to read the meters on the Closing Date and to
issue separate statements thereafter. In the event that any provider of utilities shall refuse to
issue separate statements in the manner aforesaid, applicable utility charges shall be prorated
such that all charges accruing for the period prior to Closing Date shall be charged to Seller and
all charges accruing after the Closing Date shall be charged to Buyer. Buyer shall be responsible
for the billing and collection of any reimbursable utility charges from the Tenants with respect to
all periods after the Closing Date and shall credit Seller at Closing for any uncollected,
reimbursable utility charges from the Tenants with respect to all periods prior to the Closing
Date, provided that such charges are otherwise not delinquent. Seller and Buyer shall cooperate to
cause the transfer of the Property’s telephone number(s) and utility accounts from Seller to Buyer.



     If estimated utility charges and/or operating expenses are used to calculate the prorated
amounts at Closing, the Parties agree that, when the actual amount of such utilities and other
operating expenses with respect to the Property for the month in which the Closing occurs are
determined, the Parties agree to adjust the proration of such utilities and other operating
expenses and, if necessary, to refund or repay such sums as shall be necessary to effect such
adjustments.



          (e) The provisions of this Section 15 shall survive Closing.



12









 





     Section 16. Real Estate Commission. Neither Buyer nor Seller has used a broker or
intermediary to negotiate this transaction except for Tom Salanty of Cushman & Wakefield
(“Broker”). Seller shall pay Broker its fee if, as and when Closing occurs pursuant to a separate
agreement between Seller and Broker. Buyer and Seller hereby indemnify, defend and hold the other
harmless from and against any and all claims, losses, costs and expenses, including reasonable
counsel fees, resulting from any claims that may be made through that Party against the other by
any other broker or intermediary claiming a commission.



     Section 17. Expenses. At Closing:



          (a) Seller shall pay: (i) all charges for Seller’s legal fees; (ii) one-half (1/2) of any
escrow fee charged by the Title Company; (iii) the cost of recording any release of liens; (iv) the
basic premium for the Owner’s Title Policy (but not the cost to insure any exceptions, obtain any
deletions, or provide any endorsements);



          (b) Buyer shall pay: (i) all charges for Buyer’s legal fees; (ii) one-half (1/2) of any
escrow fee charged by the Title Company; (iii) the premium or extra expense in connection with the
Owner’s Title Policy that the Title Company charges to insure any exceptions, obtain any deletions,
or provide any endorsements; (iv) the cost of recording the instruments of conveyance contemplated
by this Agreement; (v) the cost of updates and changes to the Survey after delivery thereof by
Seller to Buyer; and



          (c) Except as expressly provided herein, all other Closing costs not allocated to a Party
pursuant to the terms hereof shall be paid by the Party incurring same. The provisions of this
Section 17 shall survive Closing.



     Section 18. Operation of Property. Between the Effective Date and the Closing Date,
(i) Seller will continue to enforce the terms of the Leases and will not take or omit to take any
action which reasonably could be expected to have a materially adverse effect on Seller’s title to
the Property or the condition of the Property, (ii) Seller will not amend, terminate or enter into
any Lease without Buyer’s prior written consent in each instance and (iii) Seller will not enter
into any contract that will be an obligation affecting the Property subsequent to the Closing
except contracts entered into in the ordinary course of business that are terminable without cause
on 30-days notice. During the Due Diligence Period, Seller will not enter into any contracts or
agreements (whether binding or not) regarding any disposition of the Property, will place a
“Contract Pending” sign next to any listing or realtor signs located on or near the Property, and
will inform anyone inquiring about the Property that the Property is currently under a pending
contract. Upon the expiration of the Tenant Interview Period, and during the pendency of the
contract, Seller will remove the Property from any listings or brokerage arrangements, will not
further list the Property with any broker or otherwise solicit or make or accept any offers to sell
the Property, will not engage in any discussions or negotiations with any third party with respect
to the sale or other disposition of the Property, and will not enter into any contracts or
agreements (whether binding or not) regarding any disposition of the Property.



13









 





     Section 19. Condemnation and Casualty.



          (a) If after the Effective Date and prior to the Closing all or a part of the Property is
subjected to a bona fide threat of condemnation by a body having the power of eminent domain, is
taken by eminent domain or condemnation (or sale in lieu thereof), or Seller participates in
negotiations in lieu of a condemnation action (a “Condemnation Action”), then upon obtaining
knowledge of the Condemnation Action, Seller will notify Buyer of the pendency of such proceedings
in writing (the “Condemnation Notice”). Buyer may observe any such negotiations and proceedings,
and Seller shall from time to time deliver to Buyer all instruments reasonably requested by it. If
the Condemnation Action would allow one or more of the Major Tenants to terminate pursuant to the
terms of its Lease, Buyer may terminate this Agreement and cause the Earnest Money (but not the
Option Fee except in the event of a Seller Default) to be returned to Buyer, after which neither
Party shall have any further obligation to the other pursuant to this Agreement, except for
obligations that expressly survive the termination hereof (including Buyer’s indemnification
obligations under Section 8 and Buyer’s confidentiality obligations under Section 23). If no such
election is made by Buyer within five (5) Business Days following its receipt of the Condemnation
Notice, or if the Condemnation Action does not permit this Agreement to be terminated, this
Agreement shall remain in full force and effect and the transactions contemplated herein, less any
interest taken (or proposed to be taken) by eminent domain or condemnation, shall be effected with
no further adjustment, and upon the Closing, Seller shall assign, transfer, and set over to Buyer
all of the right, title, and interest of Seller in and to any awards that have been or that may
thereafter be made for such taking (subject to the rights of Tenants under the Leases in connection
with such awards).



          (b) If all or any part of the Property is damaged or destroyed by fire or other casualty (a
“Casualty”), Seller shall immediately notify Buyer of the damage and provide the estimated amount
of the damage (the “Casualty Notice”). If the Casualty permits one or more of the Major Tenants to
terminate pursuant to the terms of its Lease, Buyer may terminate this Agreement and cause the
Earnest Money (but not the Option Fee except in the event of a Seller Default) to be returned to
Buyer, after which neither Party will have any further obligation to the other pursuant to this
Agreement, except for obligations that expressly survive the termination hereof (including Buyer’s
indemnification obligations under Section 8 and Buyer’s confidentiality obligations under Section
23). If no such election is made by Buyer within five (5) Business Days following its receipt of
the Casualty Notice, or if the Casualty does not permit this Agreement to be terminated, this
Agreement shall remain in full force and effect and the transactions contemplated herein, subject
to the Casualty, shall be effected with no further adjustment, and upon the Closing, Seller shall
assign, transfer, and set over to Buyer all of the right, title, and interest of Seller in and to
any insurance awards that have been or that may thereafter be made for such casualty (subject to
the rights of Tenants under the Leases in connection with such awards).



     Section 20. Remedies / Limitation on Liability.



          (a) If Seller defaults in its obligations under this Agreement and fails to cure such default
within five (5) Business Days after receipt of Notice from Buyer of such default (a “Seller
Default”), then Buyer’s sole and exclusive remedy shall be, at Buyer’s option, either (i) to
terminate this Agreement by furnishing Notice of such termination to Seller, in which case



14









 







the Earnest Money (including the Option Fee) shall be returned to Buyer, and Seller will not
have any further liability to Buyer, or (ii) to seek specific performance of this Agreement (in
which case Seller shall reimburse Buyer for reasonable attorneys’ fees actually incurred in the
enforcement of specific performance by Buyer).



          (b) IF BUYER DEFAULTS IN ITS OBLIGATIONS UNDER THIS AGREEMENT AND FAILS TO CURE SUCH DEFAULT
WITHIN FIVE (5) BUSINESS DAYS AFTER RECEIPT OF NOTICE FROM SELLER OF SUCH DEFAULT (EXCEPT FOR
BUYER’S FAILURE TO CLOSE ON THE CLOSING DATE, FOR WHICH BUYER WILL NOT BE ENTITLED TO NOTICE AND AN
OPPORTUNITY TO CURE, SINCE THE TIMING OF THE CLOSING DATE IS MATERIAL TO SELLER), THEN SELLER’S
SOLE AND EXCLUSIVE REMEDY SHALL BE TO TERMINATE THIS AGREEMENT BY WRITTEN NOTICE TO BUYER AND
RETAIN THE EARNEST MONEY AS LIQUIDATED DAMAGES (AS WELL AS THE OPTION FEE), IT BEING ACKNOWLEDGED
BY BUYER AND SELLER THAT ACTUAL DAMAGES SUFFERED BY SELLER IN SUCH EVENT WILL BE DIFFICULT OR
IMPOSSIBLE TO MEASURE AND THAT THE EARNEST MONEY REPRESENTS A GOOD FAITH ESTIMATE THEREOF;
provided, however, that the Earnest Money shall not limit the liability of Buyer to Seller for
Buyer’s indemnity obligations under Section 8 and Buyer’s confidentiality obligations under Section
23.



          (c) NEITHER PARTY SHALL HAVE ANY LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS
AGREEMENT OR OTHERWISE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE
DAMAGES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.


The provisions of this Section 20 shall survive the Closing or a termination of this Agreement.




     Section 21. Notices. All notices, demands or other communications of any type (herein
collectively referred to as “Notices”) given by Seller to Buyer or by Buyer to Seller, whether
required by this Agreement or in any way related to the transaction contracted for herein, shall be
given in accordance with the provisions of this Section 21. Notices shall be provided to the
Parties and addresses (or facsimile numbers, as applicable) specified on the signature page.



          (a) All Notices shall be in writing and delivered to the person to whom the Notices are
directed, in person, by United States mail as a registered or certified item (return receipt
requested), by a nationally recognized overnight courier (such as United Parcel Service or FedEx)
provided that a signature evidencing receipt is requested, or by facsimile transmission.



          (b) Provided that the delivery attempt for such Notice is made between the hours of 8:00 a.m.
and 5:00 p.m. at the recipient’s location on a Business Day:




          (i) Notices given via facsimile transmission shall be effective upon receipt
thereof so long as receipt of the transmission is confirmed by a report generated by
the sender’s facsimile machine and a copy of the correspondence (together with such
report) is also sent by overnight courier as provided above;



15









 






          (ii) Notices given in person will be deemed received on the earlier of actual
receipt or when first refused;




          (iii) Notices given via overnight courier in accordance with the terms hereof
will be deemed received on the earlier of the first Business Day that the sender
schedules delivery to occur, or when first refused; and




          (iv) Notices given via United States mail in accordance with the terms hereof
will be deemed received on the earlier of the third Business Day after placing such
Notice in the custody of the United States Postal Service (evidenced by the postmark
stamped thereon whether or not actually received), or when first refused.



          (c) Any Party hereto may, at any time by giving five (5) Business Days’ Notice to the other
Party hereto, designate any other address(es) and/or person(s) in substitution of, or in addition
to, the addresses and persons to which such Notice shall be given.



     Section 22. Assignment. Except as provided below in this Section, the rights and
obligations of Buyer arising under this Agreement may not be assigned without the prior written
consent of Seller, which consent may be granted or withheld in the sole discretion of Seller. The
rights and obligations of Buyer under this Agreement may, without the prior written consent of
Seller, be assigned to an entity owned or controlled by Buyer, conditioned on the following: (a)
the assignee shall be bound by all approvals and waivers, actual and deemed, by Buyer prior to the
assignment and shall assume in writing all of Buyer’s obligations hereunder; and (b) no such
assignment shall relieve the Buyer named herein from any obligation, duty, or liability under this
Agreement, including confidentiality obligations and indemnification obligations; (c) Seller must
be provided written notice of and a copy of any such assignment and assumption at least five (5)
Business Days prior to the Closing; and (d) Seller will have no obligation to obtain reliance
letters or revisions to certifications of the Survey or other Due Diligence Materials in favor of
Buyer’s assignee, all of which will be done at Buyer’s cost without delaying Closing. Upon such
assignment, Buyer shall remain primarily liable for the performance of its obligations under this
Agreement.



     Section 23. Confidentiality. Buyer acknowledges that Buyer has obtained certain
information about the Property from the Broker prior to the execution of this Agreement, and in
connection therewith, has executed a certain Confidentiality Agreement For Signature By Prospective
Purchasers dated July 19, 2005 (the “Broker Confidentiality Agreement”). Buyer confirms and agrees
that Seller is a beneficiary of Buyer’s obligations under the Broker Confidentiality Agreement,
which are incorporated herein by reference, and that Buyer has not breached and will not breach its
obligations under the Broker Confidentiality Agreement. Without limiting the foregoing, Buyer
hereby agrees that (i) until the Closing it shall keep strictly confidential this transaction, the
Purchase Price, the economic terms and other financial information connected hereto, and any
documents received from Seller or Broker and (ii) after the Closing it shall keep strictly
confidential the Purchase Price, the economic terms and other financial information connected
hereto, and any documents received from Seller or Broker. Notwithstanding anything to the contrary
contained in this Section 23 or this Agreement, Buyer shall have the right to reveal any of the
foregoing confidential information at any time to Buyer’s



16









 







directors, officers, shareholders or employees as well as Buyer’s counsel, accounting firms
and financial institutions to the extent necessary to comply with: (a) Buyer’s obligations
hereunder; and (b) laws and regulations applicable to Buyer. Without limiting the foregoing, BUYER
UNDERSTANDS THAT, SUBJECT TO AND EXCEPT AS PROVIDED FOR IN SECTION 7(B) OF THIS AGREEMENT, WITHOUT
THE SELLER’S EXPRESS WRITTEN CONSENT, BUYER IS SPECIFICALLY PROHIBITED FROM CONTACTING: (i) THE
EXISTING TENANTS OF THE PROPERTY, OR (ii) THEIR RESPECTIVE MANAGERS AND EMPLOYEES, OR (iii)
SELLER’S ON-SITE MAINTENANCE PERSONNEL OR EMPLOYEES, OR DISCUSSING THE POTENTIAL SALE OF THE
PROPERTY WITH ANY OF THE FOREGOING. The provisions of this Section 23 survive the termination of
this agreement.



     Section 24. Miscellaneous.



          (a) This Agreement shall be construed and interpreted in accordance with the laws of the State
of Texas. VENUE FOR ANY DISPUTES ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE IN
THE FEDERAL OR STATE COURTS OF BEXAR COUNTY, TEXAS. In the event of any litigation between Seller
and Buyer with respect to the Property or this Agreement, the prevailing Party shall be entitled to
collect its reasonable attorneys’ fees and expenses from the losing Party.



          (b) Time is of the essence with respect to the Parties’ obligations hereunder. Periods of
time shall be measured in calendar days unless otherwise stated. If any performance is required on
a Saturday, a Sunday or any holiday, such performance will be due on the next succeeding day which
is not a Saturday, a Sunday or a federal holiday under the laws of the United States of America
(such succeeding day being a “Business Day”).



          (c) This Agreement may not be modified or amended except by an agreement in writing signed by
Seller and Buyer, and upon any delivery of this Agreement into escrow upon execution, Title Company
shall be deemed to have been so instructed. A Party may waive any of the conditions contained
herein or any of the obligations of the other Party hereunder, but any such waiver shall be
effective only if in writing and signed by the Party waiving such conditions or obligations, and
upon any delivery of this Agreement into escrow upon execution, Title Company shall be deemed to
have been so instructed.



          (d) This Agreement shall be binding upon and inure to the benefit of all successors and
permitted assigns of the Parties.



          (e) This Agreement shall not create any third party beneficiary rights.



          (f) The descriptive headings of the several sections contained in this Agreement are inserted
for convenience only and shall not control or affect the meaning or construction of any of the
provisions hereof.



          (g) This Agreement, including the Exhibits hereto, constitutes the entire agreement among the
Parties pertaining to the subject matter hereof and supersedes all prior and contemporaneous
agreements and understandings of the Parties in connection therewith.



17









 





          (h) This Agreement may be executed in any number of counterparts, each of which, when executed
and delivered, shall be an original, but all counterparts shall together constitute one and the
same instrument.



          (i) This Agreement shall not be recorded by either Party in any office or place of public
record, and, if Buyer shall record this Agreement or cause or permit same to be recorded, Seller
may, at its option, elect to treat such act as a default by Buyer of this Agreement.



          (j) If any one or more of the provisions contained in this Agreement are for any reason held
to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision hereof, and this Agreement shall be construed
as if such invalid, illegal, or unenforceable provision had never been contained herein.



          (k) Except as otherwise provided herein: (i) all notice to third parties and all other
publicity concerning the transactions contemplated hereby shall be jointly planned and coordinated
by and between Buyer and Seller; and (ii) none of the Parties shall act unilaterally in this regard
without the prior written approval of the other, which approval may be withheld in a Party’s sole
discretion.



     Section 25. 1031 Exchange. Seller may consummate Seller’s sale of the Property as
part of a so-called like kind exchange (the “Exchange”) pursuant to the Section 1031 of the
Internal Revenue Code, provided that: (a) the Closing shall not be delayed or affected by reason
of the Exchange nor shall the consummation or accomplishment of the Exchange be a condition or
precedent or condition subsequent to Seller’s obligation under this Agreement; (b) Seller shall
effect the Exchange through the assignment of this Agreement, or its rights under this Agreement,
to a qualified intermediary, and Buyer shall not be required to take assignment of a purchase
agreement for the exchange property or be required to acquire or hold title to any real property
for purposes of consummating the Exchange; and (c) the Exchange will neither increase the
obligations of Buyer hereunder, nor increase the cost to Buyer hereunder. Buyer agrees to
acknowledge (the “Acknowledgment”) receipt of a notice that such Exchange will take place.



     Section 26. 3-14 Audit. At no cost to itself, Seller will make reasonable efforts to
cooperate with Buyer’s auditors in relation to Rule 3-14 of the Securities and Exchange Commission
Regulation S-X audit for significant transactions. Seller understands that such cooperation will
require access to accounting records related to the Property, and that Seller will be required to
make reasonably requested representations to the auditor about the accounting records related to
the Property. The completion of the audit is not required before Closing, and it will not affect
the due diligence or Closing.



     Section 27. Effective Date. The effective date of this Agreement (the “Effective
Date”) shall be the date on which a fully executed copy of this Agreement has been delivered to and
receipted by the Title Company.



     Section 28. Exhibits. The following Exhibits are attached to and incorporated into
this Agreement:



Exhibit A – Leases – Section 2(c)

Exhibit B – Assumed Contracts – Section 2(d)




18









 





Exhibit C – Due Diligence Materials – Section 6

Exhibit D – Form of Tenant Estoppel Certificate – Section 12

Exhibit E – Form of Seller’s Estoppel Certificate – Section 12

Exhibit F –Form of Special Warranty Deed – Section 13(a)(i)(A)

Exhibit G – Form of Assignment and Assumption of Leases and Contracts – Section 13(a)(i)(B)

Exhibit H – Form of Tenant Notice Letter – Section 13(a)(i)(C)

Exhibit I – Form of Certification of Nonforeign Status – Section 13(a)(i)(D)

Exhibit J – Form of Bill of Sale – Section 13(a)(i)(E)

Exhibit K – Form of Affidavit as to Debts and Liens – Section 13(a)(i)(F)

Exhibit L – Form of Maintenance Services Agreement – Section 13(a)(i)(G)

Exhibit M – Form of Riverwalk Lease Assignment – Section 13(a)(i)(H)




Signature Page Follows




19









 






     Executed by the Parties as of the Effective Date.



	 	 	 	 	 	 	 	 	 
	SELLER:	 	 	 	BUYER:
	 
	 	 	 	 	 	 	 	 
	Midland Real Estate Company, L.P.,	 	AmREIT Realty Investment Corporation,
	a Delaware limited partnership	 	a Texas corporation
	 
	 	 	 	 	 	 	 	 
	By:	 	Boulder Creek Management, L.L.C.,	 	By:	 	/s/ H. Kerr Taylor, President
	 

	 	 	 	 	 	 	 	 
	 	 	a Delaware limited liability company	 	 	 	H. Kerr Taylor, President
	 	 	its sole general partner	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Jack J. Spector	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Jack J. Spector, President	 	 	 	 






	 	 	 
	Notice Address:

	 	Notice Address:
	Midland Real Estate Company, L.P.

	 	AmREIT Realty Investment Corporation
	Attention: Jack J. Spector

	 	Attn: Tenel H. Tayar
	315 East Commerce Street, Suite 300

	 	8 Greenway Plaza, Suite 1000
	San Antonio, Texas 78205

	 	Houston, Texas 77046
	Telephone Number: (210) 225-3053 (x 222)

	 	Telephone Number: (713) 860-4941
	Fax Number: (210) 225-5910

	 	Facsimile Number: (713) 850-0498
	 
	 	 
	With a copy to:

	 	With a copy to:
	Midland Real Estate Company, L.P.

	 	Mayer, Brown, Rowe & Maw LLP
	Attention: John Beauchamp

	 	Attn: Deann K. Lanz
	315 East Commerce Street, Suite 300

	 	700 Louisiana St., Suite 3600
	San Antonio, Texas 78205

	 	Houston, Texas 77002
	Telephone Number: (210) 225-3053 (x 234)

	 	Telephone Number: (713)546-0597
	Fax Number: (210) 225-5910

	 	Facsimile Number: (713) 632-1897
	 
	 	 
	and a copy to:
	 	 
	John B. Stewart, Esq.
	 	 
	Cox Smith Matthews Incorporated
	 	 
	112 E. Pecan St., Suite 1800
	 	 
	San Antonio, Texas 78205
	 	 
	Telephone Number: (210) 554-5513
	 	 
	Facsimile No.: (210) 226-8395
	 	 







20










 






TITLE COMPANY

(Receipt of Agreement and Effective Date)



The undersigned hereby acknowledges receipt of this Agreement on the date listed below, and agrees
to serve as Title Company hereunder and to perform in accordance with the terms hereof.




Chicago Title Insurance Company




	 	 	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	Title:
	 	 	 	 	 	 	 	 
	Name:

	 	 

	 	 Date:
	 	 	 	(“Effective Date”)
	 

	 	 
	 	 	 	 	 	 





TITLE COMPANY

(Receipt of Earnest Money)



The undersigned hereby acknowledges receipt of the sum of One Hundred Thousand Dollars ($100,000)
from Buyer as the Option Fee and the sum of Seven Hundred Fifty Thousand Dollars ($750,000) from
Buyer as the Earnest Money.




Chicago Title Insurance Company




	 	 	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 	 	 
	Title:

	 	 

	 	 	 	 	 	 
	Name:

	 	 

	 	 Date:	 	 	 	 
	 

	 	 

	 	 	 	 

	 	 







21









 




Exhibit A

Leases





	1.	 	Retail Lease with Rivicor, Inc., dated October 18, 1993






	 	•	 	Amendment to Retail Lease dated January 12, 1995
	 
	 	•	 	Rider to Retail Lease dated effective as of February 1, 2003
	 
	 	•	 	Renewal to Rider to Retail Lease dated effective as of February 1, 2004
	 
	 	•	 	Second Renewal to Rider to Retail Lease dated effective as of February 1,
2005
	 
	 	•	 	Letter exercising the option to renew the Retail Lease
	 
	 	•	 	Sublease Agreement, San Antonio Riverwalk






	2.	 	Retail Lease with The County Line Riverwalk, Inc. dated December 20, 1993






	 	•	 	Amendment to Retail Lease dated January 31, 1995
	 
	 	•	 	Consent and Subordination dated January 26, 1995
	 
	 	•	 	Letter exercising the option to renew the Retail Lease
	 
	 	•	 	Sublease Agreement, San Antonio Riverwalk






	3.	 	Retail Lease with Howl at the Moon-San Antonio, Inc. dated May 11, 1994






	 	•	 	Letter dated June 17, 1999, exercising the option to renew the Retail Lease
	 
	 	•	 	Letter dated July 19, 2004, exercising the option to renew the Retail Lease






	4.	 	Retail Lease with Swig, Inc. dated January 14, 1997






	 	•	 	Correspondence re: exercising the option to renew the Retail Lease






	5.	 	Retail Lease with Alamo City Stuff, L.L.C. dated August 30, 1999






	 	•	 	First Amendment to Retail Lease dated November 1, 2004






	6.	 	Retail Lease with Remember the Ice Cream! Ltd. dated June 4, 2004
	 
	7.	 	Retail Lease with Starbucks Corporation dated November, 1994






	 	•	 	Letter dated September 16, 2004, exercising the option to renew the Retail
Lease






	8.	 	Retail Lease with Hard Rock Cafe International (S.A.), Inc. dated November 22,
1993






	 	•	 	Amendment to Retail Lease dated January 25, 1995
	 
	 	•	 	Second Amendment to Retail Lease dated February 1, 1996
	 
	 	•	 	Third Amendment to Retail Lease dated July 1, 2001
	 
	 	•	 	Letter dated December 19, 1996 re: Lease Assignment
	 
	 	•	 	Sublease Agreement, San Antonio Riverwalk






	9.	 	Commercial Lease with Starbucks Corporation dated May 20, 2005




A- 1









 











Exhibit B

Assumed Contracts





	1.	 	Master Maintenance Agreement with Dover Elevator Company dated February 1, 1996






	 	•	 	Recent invoice for said Agreement






	2.	 	Commercial Sales Agreement with ADT dated July 23, 1998






	 	•	 	Recent invoice for said Agreement






	3.	 	Security Services Agreement with Price Protective Services, Inc. effective May
19, 2005






	 	•	 	Recent invoice for said Agreement






	4.	 	Service Agreement with Waste Management dated November 30, 2001






	 	•	 	Recent invoice for said Agreement






	5.	 	Sales and Service Agreement with Arch Wireless dated September 13, 2001






	 	•	 	Recent invoice for said Agreement






	6.	 	Fire Protection Agreement with Mutual Sprinklers, Inc. dated January 18, 1995






	 	•	 	Recent invoice for said Agreement






	7.	 	Standard Uniform Rental Service Agreement with Cintas dated November 19, 2002






	 	•	 	Recent invoice for said Agreement






	8.	 	Maintenance Agreement with Mechanical Maintenance of Texas dated October 1995






	 	•	 	Recent invoice for said Agreement






	9.	 	Proposal and Service Agreement with Custom Pest Services dated August 27, 1996






	 	•	 	Recent invoice for said Agreement






	10.	 	Customized Preventative Maintenance Plan with Roto-Rooter dated May 10, 2004




B- 1









 











Exhibit C

Due Diligence Materials





	1.	 	Prior environmental documents:






	 	•	 	Closure Letter from the TNRCC dated July 16, 1999
	 
	 	•	 	Phase I Environmental Site Assessment dated June 22, 1998
	 
	 	•	 	Remediation of Petroleum Hydrocarbon Impacted Soils – South Bank Project
dated November 1994
	 
	 	•	 	UST Removal/Closure Site Assessment dated March 4, 1994
	 
	 	•	 	Environmental Subsurface Investigation dated September 4, 1992
	 
	 	•	 	Comprehensive Site Assessment dated May 28, 1992
	 
	 	•	 	Phase II Environmental Site Assessment dated February 18, 1992
	 
	 	•	 	Phase I Environmental Site Assessment dated October 30, 1991
	 
	 	•	 	Environmental Site Assessment dated September 30, 1991






	2.	 	Certified Rent Roll dated August 10, 2005
	 
	3.	 	Operating Statements for YE 03 and 04 and YTD 05 (through June)
	 
	4.	 	Expense Reimbursement Letters for 2003 and 2004
	 
	5.	 	Property Condition Report dated July 3, 1998
	 
	6.	 	Lease Abstracts Prepared by Cushman & Wakefield






	 	•	 	Hard Rock Café International (SPT), Inc.
	 
	 	•	 	Alamo City Stuff, LLC
	 
	 	•	 	Howl at the Moon – San Antonio, Inc.
	 
	 	•	 	Rivicor, Inc.
	 
	 	•	 	Starbuck’s Corporation
	 
	 	•	 	Swig, Inc.
	 
	 	•	 	The County Line Riverwalk, Inc.
	 
	 	•	 	Remember the Ice Cream, Ltd.






	7.	 	Copy of the Construction Plans and Specifications for the Property
	 
	8.	 	Copies of Certificates of Occupancy






	 	•	 	Remember the Ice Cream, Ltd.
	 
	 	•	 	Starbuck Coffee Co.
	 
	 	•	 	San Antonio Beverage, Inc.
	 
	 	•	 	Joseph Cosniac dba Paesano Riverwalk
	 
	 	•	 	The County Line River Walk, Inc.
	 
	 	•	 	Swig, Inc.
	 
	 	•	 	Benson’s Inc. dba Howl at the Moon Saloon
	 
	 	•	 	Howl Beverages, Inc. dba Howl at the Moon Saloon
	 
	 	•	 	Harold A. Gottsacker dba Alamo City Harley-Davidson




C- 1









 












	9.	 	Tenant sales reports for EOY 2003 and 2004 and YTD 2005 (through June)
	 
	10.	 	Delinquency Reports for EOY 2004 and YTD 2005 (through June)
	 
	11.	 	Previously executed estoppel certificates for the following tenants:






	 	•	 	Rivicor, Inc.
	 
	 	•	 	The County Line Riverwalk, Inc.
	 
	 	•	 	Howl at the Moon Saloon-San Antonio, Inc.
	 
	 	•	 	Swig, Inc.
	 
	 	•	 	Starbucks Corporation
	 
	 	•	 	Hard Rock Café International (STP), Inc.






	12.	 	Copy of the lease agreement between the City of San Antonio and Seller for the
Riverwalk Space.






	13.	 	Sublease Agreements for Riverwalk Space (with City Consents to Sublease)






	 	•	 	Hard Rock Café International (S.A.), Inc.
	 
	 	•	 	The County Line Riverwalk, Inc.
	 
	 	•	 	Rivicor, Inc.






	14.	 	Copies of all Leases identified on the attached Exhibit A
	 
	15.	 	Copies of all Assumed Contracts identified on the attached Exhibit B




C- 2









 











Exhibit D

Form of Tenant Estoppel Certificate




Tenant Estoppel Certificate

“Certificate”




	 	 	 	 	 
	To:	 	Midland Real Estate Company, L.P. and AmREIT Realty Investment Corporation, and/or
their assignees (the “Parties”)
	 
	 	 	 	 
	Re:

	 	“Landlord”:
	 	[                                        ], predecessor-in-interest to Midland.
	 
	 	 	 	 
	 

	 	“Tenant”:
	 	[                                        ] [d/b/a                                        ].
	 
	 	 	 	 
	 

	 	“Premises”:
	 	Suite [                    ], 111 West Crockett Street, in San Antonio, Texas
78205, comprised of approximately [                    ] [rentable] square feet.
	 
	 	 	 	 
	 

	 	“Lease”:
	 	[Lease] dated [                    ] between Landlord and Tenant covering
the Premises with a commencement date of: [                                        ].
	 
	 	 	 	 
	Date: [                                         , 2005] (“Certificate Date”)
	 
	 	 	 	 
	Gentlemen:	 	 







The undersigned is the Tenant under the Lease. As of the Certificate Date, Tenant certifies
to the Parties as follows:




	 	1.	 	A true, correct, and complete copy of the Lease and all amendments thereto is
attached as Schedule A (as amended, the “Lease”). The Lease is in full force and
effect and is unmodified except as set forth therein.
	 
	 	2.	 	As of                                         , all sums due and payable by Tenant under the Lease have
been paid. The base monthly currently rent due from Tenant under the Lease is:
[$                    per month]. Tenant has not been given, nor is Tenant entitled to any, free
rent, partial rent, rebates, rent abatements, or rent concessions of any kind, except
as set forth in the Lease.
	 
	 	3.	 	Neither Tenant nor Landlord is in default under the Lease, and there is no
event or condition which, with the giving of notice or passage of time (or both) would
constitute an event of default under the Lease by either Tenant or Landlord.
	 
	 	4.	 	Landlord holds a security deposit in the amount of [$                    ] under the Lease.
	 
	 	5.	 	Tenant has not been granted any options or rights of expansion, contraction,
purchase, or first refusal relating to the Premises, except as specified in the Lease.
	 
	 	6.	 	All improvements to be constructed on the Premises by Landlord have been
completed and accepted by Tenant and any Tenant construction allowances, if




D- 1









 






	 	 	 	any, have been paid in full [,except as follows:                                                             (if
none insert N/A)]. To Tenant’s knowledge, there are no leasing commissions owed
with respect to the Lease[,except as follows:                                                             (if none
insert N/A)].






Pursuant to the Lease, Landlord is entitled to obtain this Certificate from Tenant and
deliver it to prospective purchasers, lenders and mortgagees, who may rely upon it as
conclusive evidence of the matters stated herein. The person signing this letter on behalf
of Tenant is a duly authorized agent of Tenant.



	 	 	 	 	 
	 	 	TENANT:
	 
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:
	 	 
	 

	 	 	 	 





Attachment: Schedule A (Lease and all amendments)




D- 2









 








Exhibit E

Form of Seller’s Estoppel Certificate




Seller’s Estoppel Certificate

“Certificate”




	 	 	 	 	 
	To:	 	[AmREIT Realty Investment Corporation] (“Buyer”)
	 
	 	 	 	 
	From:	 	Midland Real Estate Company, L.P. (“Seller”)
	 
	 	 	 	 
	Re:

	 	“Landlord”:
	 	[                                        ], predecessor-in-interest to Seller
	 
	 	 	 	 
	 

	 	“Tenant”:
	 	[                                        ] [d/b/a                                         ].
	 
	 	 	 	 
	 

	 	“Premises”:
	 	Suite [                    ], 111 West Crockett Street, in San Antonio, Texas 78205, comprised of
approximately [                    ] [rentable] square feet.
	 
	 	 	 	 
	 

	 	“Lease”:
	 	[Lease] dated [                    ] between Landlord and Tenant covering the Premises with a
commencement date of: [                                        ].
	 
	 	 	 	 
	 

	 	“Agreement”
	 	That certain Purchase and Sale Agreement between Buyer and Seller with an Effective Date
of [August                     , 2005] covering property that includes the Premises and Seller’s rights under the Lease.
	 
	 	 	 	 
	Date: [                                         , 2005] (“Certificate Date”)
	 
	 	 	 	 
	Gentlemen:	 	 







Subject to the terms of the Agreement and the provisions of this Certificate contained below,
Seller certifies to Buyer the following, as of the Certificate Date:




	 	1.	 	A true, correct, and complete copy of the Lease and all amendments thereto is
attached as Schedule A (as amended, the “Lease”). The Lease is in full force and
effect and is unmodified except as set forth therein.
	 
	 	2.	 	As of                                         , all sums due and payable by Tenant under the Lease have
been paid. The base monthly rent currently due from Tenant under the Lease is:
[$                    ]. Tenant has not been given, nor is Tenant entitled to any, free rent,
partial rent, rebates, rent abatements, or rent concessions of any kind, except as set
forth in the Lease.
	 
	 	3.	 	To Seller’s Knowledge (defined below), neither Tenant nor Landlord is in
default under the Lease, and there is no event or condition which, with the giving of
notice or passage of time (or both) would constitute an event of default under the
Lease by either Tenant or Landlord. As used herein, the term “Seller’s Knowledge”
means the current, actual knowledge of Jack J. Spector without duty of inquiry or
investigation.




E- 1









 






	 	4.	 	Landlord holds a security deposit in the amount of [$                    ] under the Lease.
	 
	 	5.	 	Tenant has not been granted any options or rights of expansion, contraction,
purchase, or first refusal relating to the Premises, except as specified in the Lease.
	 
	 	6.	 	All improvements to be constructed on the Premises by Landlord have been
completed and accepted by Tenant and any Tenant construction allowances, if any, have
been paid in full [,except as follows:                                                             (if none insert
N/A)]. To Seller’s Knowledge, there are no leasing commissions owed with respect to
the Lease [,except as follows:                                                      (if none insert N/A)].





	 	 	 	 	 	 	 
	 	 	Midland Real Estate Company, L.P.,
	 	 	a Delaware limited partnership
	 
	 	 	 	 	 	 
	 	 	By:	 	Boulder Creek Management, L.L.C.,
	 	 	 	 	a Delaware limited liability company
	 	 	 	 	its sole general partner
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Jack J. Spector
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Jack J. Spector, President






Attachment: Schedule A (Lease and all amendments)




E- 2








 






Exhibit F

Form of Special Warranty Deed




Special Warranty Deed



NOTICE OF CONFIDENTIALITY RIGHTS: If you are a natural person, you may remove or strike any of the
following information from this instrument before it is filed for record in the public records:
your social security number or your driver’s license number.




	 	 	 
	Grantor:

	 	Midland Real Estate Company, L.P., a Delaware limited partnership, successor in interest to Midland
Real Estate Company, a Delaware corporation
	 
	 	 
	Grantor’s Mailing Address:

	 	315 E. Commerce, Suite 300, San Antonio, TX 78205
	 
	 	 
	Grantee:

	 	AmREIT Realty Investment Corporation, a Texas corporation
	 
	 	 
	Grantee’s Mailing Address:

	 	8 Greenway Plaza, Suite 1000, Houston, Texas 77046
	 
	 	 
	Consideration:

	 	TEN AND NO/100 DOLLARS ($10.00) and other good and valuable cash consideration, the receipt of which
is hereby acknowledged by Grantee.
	 
	 	 
	Property:

	 	Lot 22, Block 12, New City Block 148, South Bank Subdivision, an addition to the City of San
Antonio, Bexar County, Texas according to the map or plat thereof, recorded in Volume 9527, Page
109, Deed and Plat Records of Bexar County, Texas (the “Land”), together with the building(s) and
other improvements located thereon (the “Improvements”) and the Other Rights (defined below).
	 
	 	 
	Other Rights:

	 	To the extent owned and transferable by Grantor, all rights, privileges, easements and appurtenances
benefiting the Land and/or the Improvements, including, without limitation, any and all mineral and
water rights and any and all easements, rights-of-way and other appurtenances used or connected with
the beneficial use or enjoyment of the Land and/or the Improvements.
	 
	 	 
	Permitted Exceptions:

	 	1.     Variable width drainage easements as shown on plat recorded in
Volume 9527, Page 109, Deed and Plat Records of Bexar County,
Texas;

	 
	 	 
	 

	 	2.     The written leases listed on
Exhibit “___” attached hereto (whether or not of record); and

	 
	 	 
	 

	 	3.     [other Permitted Exceptions
pursuant to the terms of the Agreement.]








F-1









 






     Grantor, for the Consideration and subject to the Permitted Exceptions, grants, sells,
and conveys to Grantee the Property, together with all and singular the rights and appurtenances
thereto in any way belonging, to have and hold it to Grantee, Grantee’s successors and assigns
forever. Grantor binds Grantor and Grantor’s successors and assigns to warrant and forever defend
all and singular the Property to Grantee and Grantee’s successors and assigns against every person
whomsoever lawfully claiming or to claim the same or any part thereof, except as to the Permitted
Exceptions, when the claim is by, through or under Grantor but not otherwise.


THE SALE OF THE PROPERTY IS ON AN “AS-IS, WHERE-IS” BASIS AND WITH ALL FAULTS AS OF THE DATE
HEREOF, WITHOUT ANY REPRESENTATIONS OR WARRANTIES AS TO THE PHYSICAL CONDITION OR ENVIRONMENTAL
CONDITION OF THE PROPERTY, OR ANY OTHER REPRESENTATIONS OR WARRANTIES WITH RESPECT THERETO.
GRANTEE ACKNOWLEDGES AND AGREES THAT GRANTEE IS EXPERIENCED IN THE ACQUISITION, DEVELOPMENT,
OWNERSHIP AND OPERATION OF PROPERTIES SIMILAR TO THE PROPERTY AND THAT GRANTEE HAS INDEPENDENTLY
INVESTIGATED AND INSPECTED THE PROPERTY TO ITS SATISFACTION AND IS QUALIFIED TO MAKE SUCH
INSPECTION. GRANTEE FURTHER ACKNOWLEDGES AND AGREES THAT IT IS RELYING ON SUCH INDEPENDENT
INVESTIGATION AND INSPECTION, AND THAT SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR
WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY, OR THE OPERATION
THEREOF, FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE, SERVANT OR OTHER PERSON, AND GRANTEE
IS NOT RELYING ON ANY SUCH INFORMATION.



EXCEPT FOR THE SPECIAL WARRANTY OF TITLE CONTAINED HEREIN, AND EXCEPT AS PROVIDED IN THAT CERTAIN
PURCHASE AND SALE AGREEMENT BY AND BETWEEN GRANTOR AND GRANTEE DATED                                         , 2005 OR AS
OTHERWISE PROVIDED IN ANY OTHER SEPARATE WRITING BETWEEN GRANTOR AND GRANTEE, SELLER HAS NOT MADE,
DOES NOT MAKE, AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR
OBLIGATIONS OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST,
PRESENT, FUTURE OR OTHERWISE, OF, AS, TO, CONCERNING, OR WITH RESPECT TO, THE PROPERTY, THE
FINANCIAL CONDITION OR ACCURACY OF ANY FINANCIAL INFORMATION OBTAINED BY GRANTEE IN CONNECTION WITH
THE PROPERTY, OR WITH RESPECT TO ANY OF LEASES AFFECTING THE PROPERTY, OR TENANTS THEREUNDER, OR
THE MERCHANTABILITY OR FITNESS OF THE PROPERTY FOR ANY PARTICULAR PURPOSE.




     Ad valorem taxes on the Property for the calendar year 2005 are prorated as of the date
hereof, and the payment thereof is assumed by Grantee.



Signature Page Follows




F-2









 








     Executed to be effective as of the                      day of                                         , 2005.



GRANTOR:




Midland Real Estate Company, L.P.,

a Delaware limited partnership




	 	 	 
	By:

	 	Boulder Creek Management, L.L.C.,
	 

	 	a Delaware limited liability company
	 

	 	its sole general partner






	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Jack J. Spector	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Jack J. Spector, President	 	 






	 	 	 	 	 
	STATE OF TEXAS

COUNTY OF BEXAR

	 	§

§
	 	 






     The
foregoing instrument was acknowledged before me on the
                     day of                                        , 2005, by Jack J.
Spector, President of Boulder Creek Management, L.L.C., the sole general partner of Midland Real
Estate Company, L.P., on behalf of such partnership in such capacity.



	 	 	 
	 

	 	 
	[NOTARY STAMP]

	 	Notary Public, State of Texas
	 
	 	 
	After recording, return to:
	 	 
	 
	 	 
	Deann K. Lanz
	 	 
	Mayer, Brown, Rowe & Maw LLP
	 	 
	700 Louisiana St., Suite 3600
	 	 
	Houston, Texas 77002
	 	 






F-3









 






Exhibit G

Form of Assignment and Assumption of Leases and Contracts




Assignment and Assumption of Leases and Contracts




     This Assignment and Assumption of Leases and Contracts (this “Assignment”) is made and entered
into as of the [                     day of                                         , 2005] (the “Effective Date”), by and between Midland Real
Estate Company, L.P. (“Assignor”), and AmREIT Realty Investment Corporation (“Assignee”).



     Under the terms described more fully therein, Assignor has conveyed to Assignee, by special
warranty deed (the “Deed”), certain real property situated in San Antonio, Bexar County, Texas,
together with all improvements thereon (the “Property”), which Property is subject to certain
leases under which Assignor is the Landlord; the leases are described on Schedule A attached hereto
(the “Leases”);



     The Property is also subject to certain contracts and agreements with third parties that
benefit or affect the Property; these agreements are described on Schedule B attached hereto (the
“Contracts”);



     In conjunction with the conveyance of the Property, Assignor has agreed to assign all of its
right, title and interest in and to the Leases and the Contracts to Assignee, and Assignee has
agreed to assume and perform Assignor’s liabilities and obligations arising under the Leases and
the Contracts on and after the Effective Date, all in accordance with this Assignment.



     For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, the Parties agree as follows:



     1. Assignment. Assignor hereby assigns, transfers, and conveys to Assignee all of
Assignor’s right, title and interest as in and to the Leases and the Contracts, and all of the
rights, benefits, privileges, and obligations of landlord and owner of the Property thereunder,
including without limitation all of Assignor’s right, title and interest in and to all rentals
thereunder arising or accruing on or after the Effective Date; provided, however, that Assignor
retains all of its rights to its pro rata share of delinquent rents, percentage rents and other
tenant obligations under the Leases that are paid after the Effective Date for periods prior to the
Effective Date, all as set forth in the Purchase and Sale Agreement between Assignor and Assignee.



     2. Assumption. Assignee hereby accepts the Leases and the Contracts and assumes all
duties, obligations and liabilities of Assignor under the Leases and the Contracts, which first
arise or accrue on or after the Effective Date, including the obligation, if any, of the Assignor
to pay any brokerage commissions (if specified in the Leases), and to refund any security deposits
in accordance with the Leases, and agrees to be bound by and to perform all of the obligations,
duties, covenants and conditions of Assignor under the Leases and the Contracts which are to be
first performed or which first become due on or after the Effective Date (collectively, the
“Assumed Obligations”).



     3. Indemnity by Assignor. Assignor shall indemnify and hold Assignee harmless from
any and all claims, costs, liabilities, damages, or expenses, including, without limitation,



G-1









 




reasonable attorneys’ fees and disbursements, accruing or arising out of any obligations of
Assignor under the Leases and the Contracts, other than the Assumed Obligations.




     4. Indemnity by Assignee. Assignee shall indemnify and hold Assignor harmless from
any claims, costs, liabilities, damages, or expenses, including, without limitation, reasonable
attorneys’ fees and disbursements, accruing or arising out of Assignee’s failure to perform any of
the Assumed Obligations.



     5. Binding Effect. This Assignment shall be binding upon and inure to the benefit of
Assignor, Assignee and their respective successors and assigns.



     6. Agreements Surviving Closing. Assignee acknowledges that this Assignment is subject
to certain provisions contained in that certain Purchase and Sale Agreement dated effective
[                    , 2005] by and between Assignor and Assignee (as may have been amended and/or
assigned, the “Agreement”), which provisions survive the Closing (defined therein) of the
transactions contemplated in the Agreement. In particular, this Assignment is subject to the
disclaimer of warranties and other provisions contained in Section 4 of the Agreement, as well as
Assignor’s rights contained in Section 15 of the Agreement. The conveyance of this Assignment is
also made and accepted subject to the same exceptions to warranty as set forth in the Deed of even
date.



     7. Applicable Law. This Assignment shall be construed, interpreted and enforced in
accordance with the laws of the State of Texas.



     8. Counterparts. This Assignment may be executed in any number of counterparts, each
of which shall be deemed an original and all of which shall constitute one and the same Assignment
with the same effect as if all parties had signed the same original. Any counterpart of this
Assignment may be detached from any counterpart of this Assignment and reattached to any other
counterpart of this Assignment identical in form hereto but having attached to it one or more
additional signature pages. Furthermore, the undersigned agree that any facsimile signature shall
be deemed an original signature for all purposes.



     Executed by the Parties as of the date set forth above.




	 	 	 
	ASSIGNOR:

	 	ASSIGNEE:
	 
	Midland Real Estate Company, L.P.,

	 	AmREIT Realty Investment Corporation,
	a Delaware limited partnership

	 	a Texas corporation






	 	 	 	 	 	 	 
	By:

	 	Boulder Creek Management, L.L.C.,
	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	a Delaware limited liability company
	 	Name:	 	 
	 

	 	 	 	 	 	 
	 

	 	its sole general partner
	 	Title:	 	 
	 

	 	 	 	 	 	 





	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Jack J. Spector	 	 
	 

	 	 	 	 

	 	 
	 

	 	 	 	Jack J. Spector, President	 	 






G-2









 






Attachments:




Schedule A (Leases)

Schedule B (Contracts)




G-3









 





Exhibit H

Form of Tenant Notice Letter




Midland Real Estate Company, L.P.

315 East Commerce Street, Suite 300

San Antonio, TX 78205




                            
            , 2005




VIA [pursuant to notice requirement of Lease]




	 	 	 
	[
	 	 
	 


	 	 
	 


	 	 
	]
	 	 
	 


	 	 






	 	 	 
	Re:



	 	[Lease Agreement] by and between [                                          ], as [Landlord], and [                                                                                
], as Tenant, dated [                                         ] (the “Lease”) for the Property located at [                                                             
 ], San Antonio, Texas (the “Property”).





Dear [                                         ]:




     Please be advised that Midland Real Estate Company, L.P. (as successor in interest to
Landlord) has conveyed the Property, subject to the Lease, to AmREIT Realty Investment Corporation
(“New Owner”).



     Effective immediately, all rental payments to the [Landlord] under the Lease are to be
directed to the New Owner at the following address: [                                                                                 ]. All notices and correspondence to the
[Landlord] under the Lease are to be directed to the New Owner at the above address, to the
attention of [                                         ]. Please note that this letter serves solely as notification to [Tenant] in
accordance with the Lease and does not serve to modify any obligations of [Tenant] under the Lease.



Sincerely yours,




Midland Real Estate Company, L.P.,

a Delaware limited partnership




	 	 	 
	By:

	 	Boulder Creek Management, L.L.C.,
	 

	 	a Delaware limited liability company
	 

	 	its sole general partner






	 	 	 	 	 	 	 
	 

	 	 	 	/s/
Jack J. Spector 

	 	 
	 

	 	By:	 	Jack J. Spector, President	 	 






H-1









 






Receipt of Security Deposit by New Owner




     The undersigned acknowledges and agrees with the foregoing and has received and is responsible
for Tenant’s security deposit in the amount of [$                                        .]



	 	 	 
	 

	 	New Owner
	 
	 	 
	 

	 	AmREIT Realty Investment Corporation,

a Texas corporation






	 	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 





H-2









 





Exhibit I

Form of Certification of Nonforeign Status




Certification of Nonforeign Status




     Section 1445 of the Internal Revenue Code provides that a transferee (Buyer) of a
U.S. real property interest must withhold tax if the transferor (seller) is a foreign person. For
U.S. tax purposes (including Section 1445), the owner of a disregarded entity (which has legal
title to a U.S. real property interest under local law) will be the transferor of the property and
not the disregarded entity. To inform the transferee that withholding of tax is not required upon
the disposition of a U.S. real property interest by Midland Real Estate Company, L.P.
(“Transferor”), the undersigned hereby certifies the following on behalf of Transferor:



     Transferor is not a foreign corporation, foreign partnership, foreign trust, or foreign estate
(as those terms are defined in the Internal Revenue Code and Income Tax Regulations);



     Transferor is not a disregarded entity as defined in Treasury Regulation Sec.
1.1445-2(b)(2)(iii);



     Transferor’s U.S. employer identification number is [                                        ] Reminder: only complete
this on the Closing draft; and



     Transferor’s office address is 315 E. Commerce, Suite 300, San Antonio, TX 78205.



     Transferor understands that this certification may be disclosed to the Internal Revenue
Service by transferee and that any false statement contained herein could be punished by fine,
imprisonment, or both.



     Under penalties of perjury I declare that I have examined this certification and to the best
of my knowledge and belief it is true, correct, and complete, and I further declare that I have
authority to sign this document on behalf of Transferor.



A disregarded entity is defined in Sec. 1.1445-2(b)(2)(iii) as “an entity that is disregarded as an
entity separate from its owner under Sec. 301.7701-3 of this chapter, a qualified REIT subsidiary
as defined in Sec. 856(i), or a qualified subchapter S subsidiary under Sec. 1361(b)(3)(B).”



     EXECUTED
effective as of the                     day of                                         , 2005.



Midland Real Estate Company, L.P.,

a Delaware limited partnership



	 	 	 
	By:

	 	Boulder Creek Management, L.L.C.,
	 

	 	a Delaware limited liability company
	 

	 	its sole general partner






	 	 	 	 	 	 	 
	 

	 	 	 	 	 
	 

	 	By:	 	/s/
Jack J. Spector 

	 	 
	 

	 	 	 	Jack J. Spector, President	 	 






G-1









 






	 	 	 
	STATE OF TEXAS

	 	§
	COUNTY OF BEXAR

	 	§






     The foregoing instrument was acknowledged before me on the ___ day of                     , 2005, by Jack J.
Spector, President of Boulder Creek Management, L.L.C., the sole general partner of Midland Real
Estate Company, L.P., on behalf of such partnership in such capacity.



	 	 	 
	 

	 	 
	[NOTARY STAMP]

	 	Notary Public, State of Texas






G-2





 









 









Exhibit J



Form of Bill of Sale




BILL OF SALE




     This Bill of Sale is executed and delivered as of the ___ day of                     , 2005, pursuant
to that certain Purchase and Sale Agreement (“Agreement”) dated                     , 2005 by and between
Midland Real Estate Company, L.P. (“Seller”), and AmREIT Realty Investment Corporation (“Buyer”),
covering the real property situated in San Antonio, Bexar County, Texas, such real property being
more particular described therein (the “Property”).



     1. Sale of Personalty. For good and valuable consideration, Seller hereby sells,
assigns, transfers, sets over and conveys to Buyer the following:



          (a) Tangible Personalty. All of the furniture, fixtures, equipment, machines,
apparatus, supplies and personal property of every nature and description and all replacements
thereof now owned by Seller and located in or on the Property, including, without limitation, all
of the personal property described on Exhibit A attached hereto; and




     2. Intangible Personalty. All the right, title and interest of Seller in and to any
and all of the intangible personal property related to the Property and used in connection
therewith, including, without limitation, all trademarks, service marks, trade dress, trade names,
logos, slogans, corporate names and Internet domain names and registrations and applications for
registration thereof associated with the Property, together with all of the goodwill associated
therewith, the plans and specifications and other architectural and engineering drawings for the
Property and improvements located on the Property, all copyrights, copyrightable works and
registrations and applications for registration thereof related to the Property; warranties;
governmental permits, approvals and licenses to the extent assignable; and telephone exchange
numbers (if assignable).



     3. Warranty. Seller hereby represents and warrants to Buyer that it is the owner of
the property described above, that such property is free and clear of all liens, charges and
encumbrances other than the Permitted Exceptions (as defined in the Agreement), and Seller warrants
and defends title to the above-described property unto Buyer, its successors and assigns, against
any person or entity claiming, or to claim, the same or any part thereof by, through or under
Seller, subject only to the Permitted Exceptions as defined in the Agreement.



     4. Applicable Law. This Bill of Sale shall be construed, interpreted and enforced in
accordance with the laws of the State of Texas.



     5. Further Assurances. On or after the Closing Date, Seller will take all appropriate
and commercially reasonable actions and execute (or cause to be executed) all documents,
instruments or conveyances of any kind which are reasonably necessary to carry out any of the
provisions hereof.



     Executed by the Seller as of the date set forth above.



	 
	SELLER:







G-1




 









 








	 	 	 	 	 	 	 
	Midland Real Estate Company, L.P.,	 	 
	a Delaware limited partnership	 	 
	 
	 	 	 	 	 	 
	By:	 	Boulder Creek Management, L.L.C.,	 	 
	 	 	a Delaware limited liability company	 	 
	 	 	its sole general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/
Jack J. Spector 	 	 
	 

	 	 	 	 

Jack J. Spector, President
	 	 






Attachments:




Schedule A (Personal Property)




G-2





 









 








Exhibit K



Form of Affidavit as to Debts and Liens




G-1





 









 








Exhibit L



Form of Maintenance Services Agreement




G-1





 









 








Exhibit M



Form of Riverwalk Lease Assignment




Assignment and Assumption of Riverwalk Lease




     This Assignment and Assumption of Riverwalk Lease (this “Assignment”) is made and entered into
as of the [___ day of                     , 2005] (the “Effective Date”), by and between Midland Real Estate
Company, L.P. (“Assignor”), and AmREIT Realty Investment Corporation (“Assignee”).



     Under the terms described more fully therein, Assignor has conveyed to Assignee, by special
warranty deed (the “Deed”), certain real property situated in San Antonio, Bexar County, Texas,
together with all improvements thereon (the “Property”), which Property is subject to certain
[lease agreement] dated                      by and between The City of San Antonio (the “City”), as
landlord, and Assignor, as tenant (the “Riverwalk Lease”);



     Pursuant to the terms of the Riverwalk Lease, Assignor has given the City any required notices
for the assignment of its rights under the Riverwalk Lease to Assignee and has obtained all
consents required of the City, if any, for such assignment;



     In conjunction with the conveyance of the Property, Assignor has agreed to assign all of its
right, title and interest in and to the Riverwalk Lease to Assignee, and Assignee has agreed to
assume and perform Assignor’s liabilities and obligations arising under the Riverwalk Lease on and
after the Effective Date, all in accordance with this Assignment.



     For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, the Parties agree as follows:



     1. Assignment. Assignor hereby assigns, transfers, and conveys to Assignee all of
Assignor’s right, title and interest as in and to the Riverwalk Lease, and all of the rights,
benefits, privileges, and obligations of tenant thereunder.



     2. Assumption. Assignee hereby accepts the assignment of the Riverwalk Lease and
assumes all duties, obligations and liabilities of Assignor under the Riverwalk Lease, which first
arise or accrue on or after the Effective Date and agrees to be bound by and to perform all of the
obligations, duties, covenants and conditions of Assignor under the Riverwalk Lease which are to be
first performed or which first become due on or after the Effective Date (collectively, the
“Assumed Obligations”).



     3. Indemnity by Assignor. Assignor shall indemnify and hold Assignee harmless from
any and all claims, costs, liabilities, damages, or expenses, including, without limitation,
reasonable attorneys’ fees and disbursements, accruing or arising out of any obligations of
Assignor under the Riverwalk Lease, other than the Assumed Obligations.



     4. Indemnity by Assignee. Assignee shall indemnify and hold Assignor harmless from
any claims, costs, liabilities, damages, or expenses, including, without limitation, reasonable
attorneys’ fees and disbursements, accruing or arising out of Assignee’s failure to perform any of
the Assumed Obligations.



J-1




 









 





     5. Binding Effect. This Assignment shall be binding upon and inure to the benefit of
Assignor, Assignee and their respective successors and assigns.



     6. Agreements Surviving Closing. Assignee acknowledges that this Assignment is subject
to certain provisions contained in that certain Purchase and Sale Agreement dated effective
[___, 2005] by and between Assignor and Assignee (as may have been amended and/or
assigned, the “Agreement”), which provisions survive the Closing (defined therein) of the
transactions contemplated in the Agreement. In particular, this Assignment is subject to the
disclaimer of warranties and other provisions contained in Section 4 of the Agreement. The
conveyance of this Assignment is also made and accepted subject to the same exceptions to warranty
as set forth in the Deed of even date.



     7. Applicable Law. This Assignment shall be construed, interpreted and enforced in
accordance with the laws of the State of Texas.



     8. Counterparts. This Assignment may be executed in any number of counterparts, each
of which shall be deemed an original and all of which shall constitute one and the same Assignment
with the same effect as if all parties had signed the same original. Any counterpart of this
Assignment may be detached from any counterpart of this Assignment and reattached to any other
counterpart of this Assignment identical in form hereto but having attached to it one or more
additional signature pages. Furthermore, the undersigned agree that any facsimile signature shall
be deemed an original signature for all purposes.



     Executed by the Parties as of the date set forth above.



	 	 	 	 	 	 	 	 	 	 	 
	ASSIGNOR:	 	 	 	 	 	ASSIGNEE:

	 
	 	 	 	 	 	 	 	 	 	 
	Midland Real Estate Company, L.P.,	 	 	 	AmREIT Realty Investment Corporation,
	a Delaware limited partnership	 	 	 	a Texas corporation
	 
	 	 	 	 	 	 	 	 	 	 
	By:	 	Boulder Creek Management, L.L.C.,	 	 	 	By:	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 	 	a Delaware limited liability company	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 	 	its sole general partner	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/
Jack J. Spector 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	Jack J. Spector, President	 	 	 	 	 	 






J-2





 










 






FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT




     THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT (“First Amendment”) is entered
into as of September 13, 2005, by and between MIDLAND REAL ESTATE COMPANY, L.P., a Delaware limited
partnership, (“Seller”) and AMREIT REALTY INVESTMENT CORPORATION, a Texas corporation
(“Buyer”).



RECITALS





	A.	 	Buyer and Seller have entered into a Purchase and Sale Agreement dated August 24, 2005, (the
“Agreement”), with respect to the purchase and sale of certain real property located
in San Antonio, Bexar County, Texas, as more fully described in the Agreement.
	 
	B.	 	Buyer and Seller desire to amend the Agreement as set forth herein.





     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Buyer and Seller agree as follows (capitalized terms used herein have the same
meaning as defined in the Agreement, unless otherwise specified herein):



AGREEMENT




     1. Due Diligence Deadline. The Agreement is hereby amended to extend the “Due
Diligence Deadline” as defined in Section 1(d) of the Agreement, to 5:00 p.m., San Antonio, Texas
time on Monday, September 19, 2005.



     2. No Other Amendments. Except as expressly modified hereby, the Agreement shall
remain unmodified and in full force and effect.



     3. Counterparts. This First Amendment may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which when taken together shall constitute
one and the same instrument. Each counterpart may be delivered by facsimile transmission. The
signature page of any counterpart may be detached therefrom without impairing the legal effect of
the signature(s) thereon provided such signature page is attached to any other counterpart
identical thereto.



[Signature Pages Follow]




 









 








     In witness whereof, Buyer and Seller have executed this First Amendment to Purchase and Sale
Agreement on the date and year first above written.



	 	 	 	 	 	 	 	 	 
	 	 	SELLER:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	MIDLAND REAL ESTATE COMPANY, L.P.,	 	 
	 	 	a Delaware limited partnership	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	Boulder Creek Management, L.L.C.,
	 	 
	 	 	 	 	a Delaware limited liability company	 	 
	 	 	 	 	its sole general partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/
Jack J. Spector 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Jack J. Spector, President	 	 






[Signatures Continue on Next Page]




 









 








	 	 	 	 	 	 	 
	 	 	BUYER:	 	 
	 
	 	 	 	 	 	 
	 	 	AMREIT REALTY INVESTMENT	 	 
	 	 	CORPORATION, a Texas corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/
H. Kerr Taylor 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	H. Kerr Taylor, President	 	 






[End of Signatures]





 










 






SECOND AMENDMENT




TO

PURCHASE AND SALE AGREEMENT




     This
SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT (the “Second
Amendment”) is made effective as of September 19, 2005, by and between MIDLAND REAL ESTATE COMPANY, L.P. (“Seller”) and
AmREIT REALTY INVESTMENT CORPORATION (“Buyer”).



RECITALS



A. Agreement. Buyer and Seller entered into a Purchase and Sale Agreement dated
August 24, 2005 (“Agreement”), for the purchase and sale of the Land and Improvements in the
City of San Antonio, Bexar County, Texas, which, together with the other rights and
appurtenances, are described and defined in the Agreement as the “Property.” The Property is
commonly known as The South Bank.



B. First Amendment. The Agreement was amended by Seller and Buyer on September 13,
2005 to extend the Due Diligence Deadline.



C. Second Amendment. Buyer and Seller desire and agree to further amend the Agreement
as provided below, and this Second Amendment is made to evidence such amendment.




AGREEMENTS




     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Buyer and Seller hereby agree and amend the Agreement as follows:



     1. Terms. Any capitalized terms used in this Second Amendment will have the same
meaning given them in the Agreement, unless specifically defined differently herein.



     2. Hard Rock Cafe Parking. Attached to this Second Amendment as Exhibit “A” is
that certain form of indemnity letter agreement (the “Indemnity
Letter”) concerning certain
rights
in favor of Hard Rock Café International (STP), Inc., a tenant
of the Property (“Hard Rock
Café”), with respect to the parking lot being operated on the land to the south of the
Property
known as 303 E. Commerce St., San Antonio, Bexar County, Texas,
which Indemnity Letter has
been approved by Seller and Buyer. Seller has agreed to deliver to Buyer at Closing a fully
executed original of the Indemnity Letter. The following shall be added as a new Section
13(a)(i)(J) to the Agreement:




“(J)
An original Indemnity Letter executed by Seller and Boulder Creek Company, L.P., in the capacity stated therein.”



1









 





     3. Tenant Financial Statements.



          (a) Seller agrees that the form of Tenant Estoppel Certificates that Seller is
required to request from the Tenants under Section 12 of the Agreement will be modified to
include a request (consistent with the applicable paragraph 10.3 of each Lease) for year-end
2004 and year-to-date 2005 financial statements (the “Requested Tenant Financials”)
from the
tenants with respect to the following Tenant Leases only: (i) Harley Davidson, (ii) Ben &
Jerry’s, (iii) Howl at the Moon, (iv) Paesano’s, (v) Swig, and (vi) County Line (collectively,
the “ Six Tenants”).




          (b) Seller and Buyer agree that (i) obtaining the Requested Tenant Financials
from the Six Tenants will not be a condition to Closing for Buyer or Seller, and (ii) Seller
will
not be in default under the Agreement if Seller is unable to obtain all or any of the
Requested
Tenant Financials from the Six Tenants as of the Closing Date (unless Seller fails to request
such information, as required in Paragraph 3(a)) above), and (iii) Seller will have no obligation
after
the Closing Date to obtain any of the Requested Tenant Financials from the Six Tenants, and
(iv) Landlord’s Estoppel Certificates (as defined in the Agreement) will not be required to address
any of the Requested Tenant Financials or lack thereof.




          (c) Buyer hereby waives any right it may otherwise have to terminate the
Agreement (i) if any of the Six Tenants (including any Major Tenants as defined in the
Agreement) do not provide the Requested Tenant Financials, or (ii) if Buyer’s review of the
Requested Tenant Financials reveals something unsatisfactory to Buyer (whether material or
not), or (iii) if the failure of any of the Six Tenants to provide the Requested Tenant
Financials
constitutes a default under that Tenant’s Lease.




     4. Patio Space Sublease Amendments.



          (a) Seller has delivered to Buyer copies of those three certain Sublease
Agreements dated January 31, 1995, January 12, 1995, and January 25, 1995, respectively
(collectively, the “Sublease Agreements”), between Seller, as successor in interest to Boulder
Creek Company d.b.a. Hixon Development Company, as the landlord and The County Line
Riverwalk, Inc. (“County Line”). Rivercor, Inc.
(“Paesano’s”). and Hard Rock Café
International
(STP), Inc. as the subtenants, respectively (collectively, the
“Patio Tenants”), concerning the
sublease of certain patio space leased by Seller, as successor in interest to Boulder Creek
Company d.b.a. Hixon Development Company, from the City of San
Antonio (the “City”).




          (b) Seller has previously informed Buyer, and pursuant to Section 5(a) of the
Agreement, Seller hereby discloses to Buyer in writing, the following information about the
Sublease Agreements (the “Sublease Disclaimers”): (i) each Riverwalk Lease (as defined in the
Agreement) requires that the City consent to subleases of the space leased thereunder, and the
City originally consented to the three Sublease Agreements; (ii) the three Riverwalk Leases
were
amended to grant to Seller the right to extend the term of each Riverwalk Lease for three (3)
renewal option periods of five (5) years each, and Seller has exercised the first two renewal
options for each Riverwalk Lease; (iii) according to their written terms, the Sublease
Agreements
expired after the original five (5) year terms, and to Seller’s Knowledge (as defined in the
Agreement), there are not presently existing any written extensions of the Sublease
Agreements;






2









 







(iv) Seller has provided to Buyer a copy of City Ordinance No. 82328, passed and approved on June
8, 1995, which authorized the City’s execution of a Consent of Amendment of Sublease, but Seller is
unable to produce a written Amendment to Sublease Agreements (if any) that were executed at that
time; (v) since no written amendments of or to the Sublease Agreements were ever provided to the
City, the City Ordinance may not be effective to approve of any amendments to the Sublease
Agreements; and (vi) although the Patio Tenants have continued to enjoy the benefits under the
Sublease Agreements and have continued to meet their respective obligations under the Sublease
Agreements as of the date of this Second Amendment, Seller has no evidence that it entered into
amendments to the Sublease Agreements with the Patio Tenants, as may be required of Seller under
the terms of its Leases with the Patio Tenants.




          (c) Seller agrees that upon receipt, and only after receipt, of the executed
Tenant Estoppel Certificate (sent pursuant to the terms of Section 12 of the Agreement) from
all
three of the Patio Tenants, Seller will submit to each of the Patio Tenants an Amendment to
Sublease Agreement in the forms attached hereto as Exhibit “B” (collectively, the
“SubleaseAmendments”), and will use good faith efforts to obtain the execution of the Sublease
Amendments by the Patio Tenants prior to the Closing Date; provided, however, that (i)
obtaining the execution of the Sublease Amendments by the Patio Tenants will not be a
condition to Closing for Buyer or Seller, and (ii) Seller will not be in default under the
Agreement if any Patio Tenant fails to execute the Sublease Amendment prior to the Closing
Date, and (iii) Seller will have no obligation after the Closing Date to obtain the execution
of the
Sublease Amendments.




          (d) Seller and Buyer hereby agree that (i) Seller’s covenants, representations
and warranties as of Closing under Section 5 of the Agreement are hereby qualified and
modified
to the extent they are inconsistent with the Sublease Disclaimers, and (ii) such changes in
Seller’s covenants, representations and warranties as of Closing under Section 5 of the
Agreement will not be a failure of the Conditions to Closing under Section 13 of the
Agreement,
and (iii) Buyer hereby waives any and all claims against Seller and any and all remedies under
the Agreement, to the extent they arise from or are caused by the lack of an adequate
ordinance
from the City that consents to the Sublease Amendments, and the lack of an adequate ordinance
shall not be a default by Seller under the Agreement.




     5. Roof Warranty.



          (a) In Buyer’s letter to Seller dated September 9, 2005, signed by Tenel Tayar and addressed
to John S. Beauchamp (the “Due Diligence Letter”), Buyer described certain potential problems with
the roof on the center building of the Property (the “Roof) and the warranty for that Roof (the
“Roof Warranty”), including Buyer’s opinion that the Roof Warranty was never issued properly and
that the Roof Warranty may be void due to poor maintenance
(collectively, the “Roof Disclaimers”).
Seller agrees that after the expiration of the Due Diligence Deadline, Seller will use good faith
efforts to request a transfer of the Roof Warranty to Buyer from the roof warrantor, but Seller
will not be required to incur any expense or pay any fees (other than the transfer fee as stated
in the Roof Warranty) to have the Roof Warranty transferred to Buyer, all of which shall be the
Buyer’s expense.




3









 








          (b) At
the Closing, Section 1(b) of the Bill of Sale will expressly include all
rights, title and interest of Seller under the Roof Warranty, to the extent assignable.
Seller and
Buyer agree that (i) obtaining the transfer of the Roof Warranty from the roof warrantor will
not
be a condition to Closing for Buyer or Seller, and (ii) Seller will not be in default under
the
Agreement if Seller does not obtain the transfer of the Roof Warranty from the roof warrantor
as of the Closing Date, and (iii) after the Closing Date, Seller will have the right, but no
obligation,
to obtain the transfer of the Roof Warranty from the roof warrantor.




          (c) In the event that Seller has not obtained a transfer of the Roof Warranty on
or before Closing, then Seller agrees to cause the Title Company to hold in escrow from the
Purchase Price proceeds due Seller at Closing in an amount equal to $50,000.00 (the
“Escrowed
Funds”). Seller and Buyer agree to enter into an Escrow Agreement with Title Company at
Closing substantially in the form attached hereto as Exhibit “C”, which Escrow
Agreement shall
govern the terms and conditions concerning any disbursements of the Escrowed Funds, but
which Escrow Agreement at a minimum shall provide (i) in the event that Seller delivers a
transfer of the Roof Warranty to Buyer within 180 days after the
Closing Date (the “Roof Warranty Deadline”), the Escrowed Funds shall be immediately released to Seller, and (ii) in
the
event that Seller is unable to obtain the transfer of the Roof Warranty to Buyer on or before
the
Roof Warranty Deadline, Title Company shall immediately release to Buyer the lesser of (A) the
Escrowed Funds, or (B) the amount bid by a roofing contractor selected by Seller, to apply a
GAF Topcoat Elastomeric liquid membrane coating on the Roof, and Title Company shall
immediately release to Seller the balance (if any) of the Escrowed Funds.




          (d) Subject to Seller’s obligations contained in this Paragraph 5, Buyer
acknowledges and agrees that Seller has made no representations or warranties to Buyer about
the condition of the Roof or the Roof Warranty. Seller and Buyer hereby agree that (i)
Seller’s
covenants, representations and warranties as of Closing under Section 5 of the Agreement are
hereby qualified and modified to the extent they are inconsistent with the Roof Disclaimers,
and
(ii) such changes in Seller’s covenants, representations and warranties as of Closing under
Section 5 of the Agreement will not be a failure of the Conditions to Closing under Section 13
of
the Agreement, and (iii) Buyer hereby waives any and all claims against Seller and any and all
remedies under the Agreement, to the extent they arise from or are caused by the inadequacies
in
the Roof or the Roof Warranty.




     6. Drainage Encroachments.



          (a) As indicated on the Survey delivered to Buyer and in Buyer’s Due
Diligence Letter, and as Seller has previously informed Buyer, an elevator and certain other
Improvements on the Land encroach into that certain Variable Width Drainage Easement located
on the Land, as shown on the Survey (the “Encroachments”). Pursuant to Section 5(a) of the
Agreement, Seller hereby discloses to Buyer in writing the foregoing Encroachments and any
possible lack of City approval thereof (the “Encroachment Disclaimers”). Buyer acknowledges
and agrees that Seller has made no representations or warranties to Buyer about the
Encroachments or the effect of any lack of City approval of the Encroachments.




          (b) Seller and Buyer hereby agree that (i) Seller’s covenants, representations
and warranties as of Closing under Section 5 of the Agreement are hereby qualified and
modified




4









 







to the extent they are inconsistent with the Encroachment Disclaimers, and (ii) such changes in
Seller’s covenants, representations and warranties as of Closing under Section 5 of the Agreement
will not be a failure of the Conditions to Closing under Section 13 of the Agreement, and (iii)
Buyer hereby waives any and all claims against Seller and any and all remedies under the Agreement,
to the extent they arise from or are caused by the Encroachments or any lack of City approval of
the Encroachments, and any lack of City approval shall not be a default by Seller under the
Agreement.




     7. Elevator Repairs.



          (a) As indicated in Buyer’s Due Diligence Letter, Buyer described certain
potential repairs needed for certain elevators located on the Property (“Elevator
Conditions”),
which Seller has elected not to perform (the “Elevator
Disclaimers”).




          (b) Seller and Buyer hereby agree that (i) Seller’s covenants, representations
and warranties as of Closing under Section 5 of the Agreement are hereby qualified and
modified
to the extent they are inconsistent with the Elevator Disclaimers, and (ii) such changes in
Seller’s
covenants, representations and warranties as of Closing under Section 5 of the Agreement will
not be a failure of the Conditions to Closing under Section 13 of the Agreement, and (iii)
Buyer
hereby waives any and all claims against Seller and any and all remedies under the Agreement,
to the extent they arise from or are caused by the Elevator
Conditions or the lack of repair
thereof.




     8. Due Diligence Deadline. The Due Diligence Deadline under the Agreement
expires at 5:00 PM San Antonio Time, on September 19, 2005. In consideration for the
execution of this Second Amendment by Seller, Buyer has agreed that (a) Buyer will not send a
Termination Notice under Section 7(a) of the Agreement, (b) Buyer shall be deemed to be
completely satisfied with the Property in all respects, as provided in Section 7(a), subject
only to
performance of Seller’s additional obligations under this Second Amendment, and (c) the Title
Company is hereby directed to immediately remit the $100,000.00 Option Fee to Seller. In
consideration for Buyer’s execution of this Second Amendment and Buyer’s waivers and
agreements hereunder, Seller acknowledges and agrees that Buyer shall receive a credit to the
Purchase Price in the amount of $47,000.00 at Closing.



     9. Ratification. In all other respects, the Agreement shall continue in full force and
effect, unmodified except to the extent provided herein, and Seller and Buyer hereby RATIFY
and AFFIRM the same. In the event of a conflict between the terms of this Second Amendment
and the terms of the Agreement, the terms of this Second Amendment shall control.



     10. Counterparts and Signatures. This Second Amendment may be executed and
delivered in one or more counterparts. The parties further agree that facsimile or electronic
signatures shall be treated as original signatures for all purposes, and that neither shall
raise the
use of a fax, email or other electronically transmitted copy as a defense to this Second
Amendment.



(Signature Page to Follow)




5









 








	 	 	 	 	 	 	 	 	 
	 	 	SELLER:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Midland Real Estate Company, L.P.,	 	 
	 	 	a Delaware limited partnership	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Boulder Creek Management, L.L.C.,	 	 
	 	 	 	 	a Delaware limited liability company	 	 
	 	 	 	 	its sole general partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/
Jack J. Spector 	 	 
	 

	 	 	 	 	 	 

Jack J. Spector, President
	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	BUYER:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	AmREIT Realty Investment Corporation,	 	 
	 	 	a Texas corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ H. Kerr Taylor	 	 
	 	 	 	 	 	 	 
	 	 	 	 	H. Kerr Taylor, President	 	 






 









 






EXHIBIT A




BOULDER CREEK COMPANY; L.P.

315 E. Commerce, Suite 300

San Antonio, Texas 78205




                    ,2005




AmREIT Realty Investment Corporation

Attn: Mr. Tenel H. Tayar, Vice President — Acquisitions

8 Greenway Plaza, Suite 1000

Houston, Texas 77046




	 	 	 	 	 
	 

	 	Re:
	 	Letter Agreements by and between
Hard Rock Café International (S.A.), Inc. and Hixon
Development Company regarding parking and signage






Dear Mr. Tayar:



As you know, pursuant to the terms of a certain Purchase and Sale Agreement dated August 24,2005
(the “Agreement”), Midland Real Estate Company, L.P. (“MRE”) is selling to [AmREIT to provide the
name of the entity that will take title to the property] (“AmREIT”) that certain retail property known as The South Bank in San Antonio, Texas (the “Retail
Project”), and in connection with the sale, MRE will assign to AmREIT its rights under the retail
leases of the Retail Project, including the lease with Hard Rock
Café International (S.A.), Inc.
(“Hard Rock”), as such lease has been amended and assigned through the date hereof (the “Hard Rock
Lease”).



Boulder Creek Company, L.P. (“Boulder”), an affiliate of MRE, owns the property to the south of
the Retail Project known as 303 E. Commerce St., San Antonio, Bexar County, Texas (“Property”),
which is currently being operated as a parking lot. Hard Rock and Hixon Development Company (the
assumed name of Boulder Creek Company, the predecessor of Boulder) entered into certain letter
agreements dated November 22,1993, and January 25, 1995, copies of which are attached hereto (the
“Parking Agreements”), concerning certain rights in favor of Hard Rock with respect to the
Property.



Boulder
acknowledges and agrees that Boulder is a party to the Parking Agreements as the owner of the Property. Boulder and MRE both acknowledge and agree that (i) the Parking Agreements are
specifically excluded from the assignment to and assumption by AmREIT of the Hard Rock Lease and
(ii) the obligations of Hixon Development Company set forth in the Letter Agreements shall remain
the obligations of Boulder, notwithstanding the purchase of the Retail Project by AmREIT and the
consummation of the transaction provided for in the Agreement.



As an inducement for AmREIT to purchase the Retail Project from MRE, Boulder hereby agrees to
indemnify AmREIT from any losses suffered by AmREIT as a result of Boulder’s default in performing
its obligations under the Parking Agreements, as such




 









 







Parking Agreements may be amended from time to time. AmREIT agrees to notify Boulder promptly if
the Hard Rock Lease is terminated for any reason.



The
provisions of this letter shall survive Closing (as defined in the
Agreement). 

If
you have any questions, please call me at (210) 225-3053.




	 	 	 	 	 	 	 	 	 
	 	 	Sincerely,	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	BOULDER CREEK COMPANY, L.P.,	 	 
	 	 	a Delaware limited partnership	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Boulder Creek Management, L.L.C.,	 	 
	 	 	 	 	a Delaware limited liability company	 	 
	 	 	Its:	 	General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By: /s/
Jack J. Spector	 	 	 	 
	 

	 	 	 	 
	 	 
 
	 	 
	 	 	 	 	Name: Jack J. Spector	 	 
	 	 	 	 	Title: President	 	 





MRE signs
this letter in the space provided below solely for the purpose of
confirming its
agreement to the terms of clauses (i) and (ii) of the last sentence of the third paragraph of
this letter.




	 	 	 	 	 	 	 	 	 
	 	 	MIDLAND REAL ESTATE COMPANY, L.P., 	 	 
	 	 	a Delaware limited partnership	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Boulder Creek Management, L.L.C.,	 	 
	 	 	 	 	a Delaware limited liability company	 	 
	 	 	Its:	 	General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/
Jack J. Spector 	 	 
	 

	 	 	 	 	 	 

	 	 
	 

	 	 	 	Name:
	 	Jack J. Spector	 	 
	 

	 	 	 	Title:
	 	 President	 	 






 









 






EXHIBIT B




AMENDMENT TO SUBLEASE AGREEMENT




     This Amendment to Sublease Agreement is made and entered into by and between MIDLAND REAL
ESTATE COMPANY, L.P., a Delaware limited partnership, successor in interest to Boulder Creek
Company d.b.a. Hixon Development Company (“Owner”) and RIVICOR, INC. a Texas corporation
(“Restaurant”), acting by and through its duly authorized officers, WITNESSETH:



RECITALS




     WHEREAS, Owner is the “Lessee” under the Lease Agreement with the City of San Antonio
(“City”) dated January 5, 1995 (“River Walk Lease”) covering approximately 112 square feet of the
San Antonio River Walk (“River Walk Space”) adjacent to Lot 22, Block 12, New City Block 148 in
the City of San Antonio, Bexar County, Texas owned by Owner (“The South Bank”);



     WHEREAS, Owner and Restaurant entered into a five (5) year Sublease Agreement dated January
12,1995 (“Restaurant Sublease”) for the Restaurant’s use of the River Walk Space in conjunction
with its restaurant operated at The South Bank pursuant to the Restaurant Sublease;



     WHEREAS, Owner and City entered into an Amendment to the River Walk Lease dated July 24, 1995
(“River Walk Lease Amendment”), to grant to Owner the right to extend the term of the River Walk
Lease for three (3) renewal option periods of five (5) years each; and



     WHEREAS, Owner and Restaurant desire and agree to also amend the Restaurant Sublease to grant
to Restaurant the right to extend the Term of the Restaurant Sublease for three (3) renewal option
periods of five (5) years each, according to the terms hereof.



     NOW, THEREFORE, Owner and Restaurant, for and in consideration of the mutual covenants and
promises expressed herein, do hereby amend the Restaurant Sublease as follows:



     An additional Section 22 is hereby added to the Restaurant Sublease to read as follows:




22. Renewal Options. Subject to the Owner exercising its right to extend the
River Walk Lease, Owner hereby grants to Restaurant three (3) renewal options
(“Options”) to extend the Term of the Restaurant Sublease for additional consecutive
terms of five (5) years each (“Extended Terms”), on the same terms, conditions and
covenants as set forth in the Restaurant Sublease. Unless the Restaurant notifies
the Owner of its desire not to extend at least one hundred twenty (120) days prior
to the expiration of the Term of the Restaurant Sublease then in effect, then the
next successive Option shall be deemed to be exercised by Restaurant on the express
condition that at the time of the renewal, Restaurant shall not be in default beyond
the lapse of any applicable cure period under any of the provisions of the
Restaurant Sublease.



1









 





     All other terms, conditions and provisions of the original Restaurant Sublease entered into
are hereby retained in their entirety and remain unchanged and shall remain in full force and
effect.



     IN WITNESS WHEREOF, we have affirmed our signatures effective as of the 24th day
of July, 1995.



	 	 	 	 	 	 	 
	 	 	OWNER	 	 
	 
	 	 	 	 	 	 
	 	 	Midland Real Estate Company, L.P.,
	 	 	a Delaware limited partnership
	 
	 	 	 	 	 	 
	 	 	By:	 	Boulder Creek Management, L.L.C.,
	 	 	 	 	a Delaware limited liability company
	 	 	 	 	its sole general partner
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/
Jack J. Spector 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Jack J. Spector, President
	 
	 	 	 	 	 	 
	 	 	RESTAURANT
	 
	 	 	 	 	 	 
	 	 	Rivicor, Inc.,
	 	 	a Texas corporation
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	Printed Name:	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





2









 






EXHIBIT B




AMENDMENT TO SUBLEASE AGREEMENT




     This Amendment to Sublease Agreement is made and entered into by and between MIDLAND REAL
ESTATE COMPANY, L.P., a Delaware limited partnership, successor in interest to Boulder Creek
Company d.b.a. Hixon Development Company (“Owner”) and THE COUNTY LINE RIVERWALK, INC. a Texas
corporation (“Restaurant”), acting by and
through its duly authorized officers, WITNESSETH:



RECITALS




     WHEREAS, Owner is the “Lessee” under the Lease Agreement with the City of San Antonio
(“City”) dated January 5, 1995 (“River walk Lease”) covering approximately 329 square feet of the
San Antonio River Walk (“River Walk Space”) adjacent to Lot 22, Block 12, New City
Block 148 in the City of San Antonio, Bexar County, Texas owned by Owner (“The South Bank”):



     WHEREAS, Owner and Restaurant entered into a five (5) year Sublease Agreement dated January
31, 1995 (“Restaurant Sublease”) for the Restaurant’s use of the River Walk Space in conjunction
with its restaurant operated at The South Bank pursuant to the Restaurant Sublease;



     WHEREAS, Owner and City entered into an Amendment to the River Walk Lease dated July 24, 1995
(“River Walk Lease Amendment”), to grant to Owner the right to extend the term of the
River Walk Lease for three (3) renewal option periods of five (5) years each; and



     WHEREAS, Owner and Restaurant desire and agree to also amend the Restaurant Sublease to grant
to Restaurant the right to extend the Term of the Restaurant Sublease for three (3) renewal option
periods of five (5) years each, according to the terms hereof.



     NOW, THEREFORE, Owner and Restaurant, for and in consideration of the mutual covenants and
promises expressed herein, do hereby amend the Restaurant Sublease as follows:



     An additional Section 22 is hereby added to the Restaurant Sublease to read as follows:




22. Renewal Options. Subject to the Owner exercising its right to extend
the River Walk Lease, Owner hereby grants to Restaurant three (3) renewal options
(“Options”) to extend the Term of the Restaurant Sublease for additional
consecutive terms of five (5) years each (“Extended Terms”), on the same terms,
conditions and covenants as set forth in the Restaurant Sublease. Unless the
Restaurant notifies the Owner of its desire not to extend at least one hundred
twenty (120) days prior to the expiration of the Term of the Restaurant Sublease
then in effect, then the next successive Option shall be deemed to be exercised by
Restaurant on the express condition that at the time of the renewal, Restaurant
shall not be in default beyond the lapse of any applicable cure period under any of
the provisions of the Restaurant Sublease.



1









 





     All other terms, conditions and provisions of the original Restaurant Sublease entered into
are hereby retained in their entirety and remain unchanged and shall remain in full force and
effect.



     IN WITNESS WHEREOF, we have affirmed our signatures effective as of the 24th day of
July, 1995.



	 	 	 	 	 	 	 	 	 
	 	 	OWNER	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Midland Real Estate Company, L.P.,	 	 
	 	 	a Delaware limited partnership	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Boulder Creek Management, L.L.C.,	 	 
	 	 	 	 	a Delaware limited liability company	 	 
	 	 	 	 	its sole general partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/
Jack J. Spector 	 	 
	 

	 	 	 	 	 

Jack J. Spector, President
	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	RESTAURANT	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	The County Line Riverwalk, Inc.,	 	 
	 	 	a Texas corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 

	 	 	 
	 
	 
	 

	 	 
	 	 	Printed
Name:  	 	 	 
	 

	 	 	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 	 
	 

	 	 	 	 
	 
	 

	 	 






2









 






EXHIBIT B




AMENDMENT TO SUBLEASE AGREEMENT




     This Amendment to Sublease Agreement is made and entered into by and between MIDLAND REAL
ESTATE COMPANY, L.P., a Delaware limited partnership, successor in interest to Boulder Creek
Company d.b.a. Hixon Development Company (“Owner”) and HARD ROCK CAFÉ INTERNATIONAL (STP), INC., a
New York corporation, successor in interest to Hard Rock Café International (S.A..) (“Restaurant”),
acting by and through its duly authorized officers, WITNESSETH:



RECITALS




     WHEREAS, Owner is the “Lessee” under the Lease Agreement with the City of San Antonio
(“City”) dated January 5, 1995 (“River Walk Lease”) covering approximately 323 square feet of the
San Antonio River Walk (“River Walk Space”) adjacent to Lot 22, Block 12, New City Block 148 in
the City of San Antonio, Bexar County, Texas owned by Owner (“The South Bank”);



     WHEREAS, Owner and Restaurant entered into a five (5) year Sublease Agreement dated January
25,1995 (“Restaurant Sublease”) for the Restaurant’s use of the River Walk Space in conjunction
with its restaurant operated at The South Bank pursuant to the Restaurant Sublease;



     WHEREAS, Owner and City entered into an Amendment to the River Walk Lease dated July 24,
1995, to grant to Owner the right to extend the term of the River Walk Lease for three (3) renewal
option periods of five (5) years each; and



     WHEREAS, Owner and Restaurant desire and agree to also amend the Restaurant Sublease to grant
to Restaurant the right to extend the Term of the Restaurant Sublease for three (3) renewal option
periods of five (5) years each, according to the terms hereof.



     NOW, THEREFORE, Owner and Restaurant, for and in consideration of the mutual covenants and
promises expressed herein, do hereby amend the Restaurant Sublease as follows:



     An additional Section 22 is hereby added to the Restaurant Sublease to read as follows:




22. Renewal Options. Subject to the Owner exercising its right to extend the
River Walk Lease, Owner hereby grants to Restaurant three (3) renewal options
(“Options”) to extend the Term of the Restaurant Sublease for additional consecutive
terms of five (5) years each (“Extended Terms”), on the same terms, conditions and
covenants as set forth in the Restaurant Sublease. Unless the Restaurant notifies
the Owner of its desire not to extend at least one hundred twenty (120) days prior
to the expiration of the Term of the Restaurant Sublease then in effect, then the
next successive Option shall be deemed to be exercised by Restaurant on the express
condition that at the time of the renewal, Restaurant shall not be in default beyond
the lapse of any applicable cure period under any of the provisions of the
Restaurant Sublease.



1









 





     All other terms, conditions and provisions of the original Restaurant Sublease entered into
are hereby retained in their entirety and remain unchanged and shall remain in full force and
effect.



     IN WITNESS WHEREOF, we have affirmed our signatures effective as of the 24th day
of July, 1995.



	 	 	 	 	 	 	 	 	 
	 	 	OWNER	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Midland Real Estate Company, L.P.,	 	 
	 	 	a Delaware limited partnership	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:  	Boulder Creek Management, L.L.C.,	 	 
	 	 	 	a Delaware limited liability company	 	 
	 	 	 	its sole general partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	By:  	/s/
Jack J. Spector 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Jack J. Spector, President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	RESTAURANT	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Hard Rock Café International (STP), Inc.,	 	 
	 	 	a New York corporation	 	 
	 
	 

	 	By:	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	Printed Name:	 	 	 	 
	 

	 	 	 	 	 	 

	 	 
	 	 	
 	 	 
	 

	 	Title:	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 






2









 






EXHIBIT “C”




ESCROW
AGREEMENT




     This
ESCROW AGREEMENT (this “Agreement”) is made effective the ___day of
        , 2005 (the
“Closing Date”), by and among AmREIT REALTY
INVESTMENT CORPORATION (the “Buyer”). MIDLAND REAL ESTATE COMPANY,
L.P. (the “Seller”) and CHICAGO TITLE
INSURANCE COMPANY (the “Escrow Agent”).



RECITALS




A. Pursuant to that certain Purchase and Sale Agreement between Buyer and Seller dated
August 24, 2005, as amended by (i) the First Amendment to Purchase and Sale Agreement dated
September 13, 2005, and (ii) Second Amendment to Purchase and Sale Agreement dated
September 19, 2005 (the “Second Amendment”) (as
amended, the “Contract”), Seller and Buyer
are closing the sale of the “Property” (as defined in the Contract), commonly known as The
South Bank, located in San Antonio, Bexar County, Texas. Escrow Agent has acted as the named
escrow agent in the Contract.



B. Pursuant to the terms of the Contract and as an inducement for Buyer to close the
purchase of the Property, the parties have executed this Agreement concerning the Roof
Warranty (as hereinafter defined).



AGREEMENTS




     NOW, THEREFORE, in consideration of the foregoing Recitals, the covenants contained herein
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Seller, Buyer, and Escrow Agent agree as follows:



     1. Defined Terms. The foregoing Recitals and any defined terms therein are hereby
incorporated by reference.



     2. Escrowed Funds. As of the Closing Date and pursuant to the Second Amendment,
Seller and Buyer have delivered to Escrow Agent out of the sales proceeds of the Property the
sum of Fifty Thousand and No/100 Dollars ($50,000.00) (the
“Escrowed Funds”), receipt of
which Escrowed Funds by Escrow Agent is hereby acknowledged. Escrow Agent hereby agrees
to act as escrow agent under this Agreement and to hold and disburse the Escrowed Funds in
accordance with the terms of this Agreement. Escrow Agent shall invest the Escrowed Funds
with a federally insured institution selected by Seller and approved by Buyer, such approval
not
to be unreasonably withheld. All interest earned on such funds shall become part of the
Escrowed Funds and shall be reported as interest earned by the party to whom the majority of
the
Escrowed Funds are disbursed.



     3. Roof Warranty. In Buyer’s letter to Seller dated September 9, 2005, signed by
Tenel Tayar and addressed to John S. Beauchamp (the “Due
Diligence Letter”), Buyer described
certain potential problems with the roof on the center building of
the Property (the “Roof”)
and
the warranty for that Roof (the “Roof Warranty”), including Buyer’s opinion that Roof Warranty



1









 





was never issued properly and that the Roof Warranty may be void due to poor maintenance
(collectively, the “Roof Disclaimers”). As of the date of this Agreement, Seller has not obtained
a transfer of the Roof Warranty to Buyer (the “Roof Warranty Transfer”) from the company
presently obligated under the terms of the Roof Warranty (the
“Roof Warrantor”). Seller
and Buyer agree that Seller will have the right, but no obligation, to continue its efforts to
obtain the Roof Warranty Transfer from the Roof Warrantor after the Closing Date.



     4. Disbursement of Escrowed Funds.



          (a) In the event that Seller obtains the Roof Warranty Transfer for Buyer on or
before
                , 2006 (the “Roof Warranty Deadline)” (which will be the first business
day that is 180 days after the Closing Date), then Seller will provide the original thereof to
Buyer and a copy to Escrow Agent, along with a disbursal request for the Escrowed Funds (a
“Disbursal Request”), and Escrow Agent shall provide a copy of the Disbursal Request to
Buyer within two (2) business days following Escrow Agent’s receipt of same. Ten (10) days after
the date that the Disbursal Request is delivered by the Escrow Agent to Buyer, the Escrow Agent
shall release all of the Escrowed Funds to Seller, subject to Section 8 below.




          (b) In the event that Seller has not obtained the Roof Warranty Transfer for
Buyer on or before the Roof Warranty Deadline, then at any time or times thereafter, Buyer may
submit a disbursal request (another “Disbursal Request”) for disbursement out of the Escrowed
Funds of an amount equal to the lesser of (A) the Escrowed
Funds, or (B)         
(which will be the amount bid by a roofing contractor selected by Seller, to apply a GAP Topcoat
Elastomeric liquid membrane coating on the Roof), in which event Escrow Agent shall provide a copy
of that Disbursal Request to Seller within two (2) business days following Escrow Agent’s receipt
of same. Ten (10) days after the date that the Disbursal Request is delivered by the Escrow Agent
to Seller, the Escrow Agent shall, subject to Section 8 below, (i) disburse to Buyer the
amount of the Escrowed Funds owed pursuant to the preceding sentence and requested in the Disbursal
Request and (ii) disburse to Seller the balance (if any) of the Escrowed Funds.




          (c) In
the event that Seller did not obtain the Roof Warranty Transfer for
Buyer on or before the Roof Warranty Deadline, but Seller obtains the Roof Warranty Transfer
before Buyer has submitted a Disbursal Request under Section 4(b) above, then Seller
will
provide a copy of the Roof Warranty Transfer to Buyer and Escrow Agent, along with a disbursal
request for the Escrowed Funds (another “Disbursal Request”), and Escrow Agent shall provide a
copy of the Disbursal Request to Buyer within two (2) business days following Escrow Agent’s
receipt of same. Ten (10) days after the date that the Disbursal Request is delivered by the
Escrow Agent to Buyer, the Escrow Agent shall release the Escrowed Funds to Seller, subject to
Section 8 below.




     5. No Fee to Escrow Agent. No fee shall be charged by Escrow Agent for its
services under this Agreement. Escrow Agent, or any successor escrow agent, may at any time
resign by giving written notice to Buyer and Seller and shall be discharged from its duties
under
this Agreement on the first to occur of (a) the appointment of a successor escrow agent or (b)
the
expiration of thirty (30) business days after written notice is given. In the event of any
resignation, a successor escrow agent shall be appointed by Seller and approved by Buyer, such



2









 




approval not to be unreasonably withheld, and if Seller fails or refuses to appoint a successor
escrow agent within fifteen (15) business days after written notice is given by the Escrow Agent,
Buyer may appoint a successor escrow agent to be approved by Seller, such approval not to be
unreasonably withheld. The successor escrow agent shall execute and deliver an instrument accepting
such appointment and it shall, without further acts, be vested with all the estates, properties,
rights, powers, and duties of the Escrow Agent under this Agreement as if originally named as
escrow agent in this Agreement. Upon delivery of such instrument, the Escrow Agent shall be
discharged from any further duties and liability under this Agreement. Seller and Buyer shall have
the right at any time upon mutual agreement to substitute a new Escrow Agent by giving written
notice thereof to the Escrow Agent then acting.




     6. Escrow Agent.



          (a) Under this Agreement Escrow Agent is a depository only and shall have
no liability for the holding, investment, disbursement, application or other disposition of
any
monies and/or documents received by Escrow Agent other than to comply with the specific
instructions, terms and provisions expressly set forth in this Agreement. Escrow Agent shall
not
be responsible or liable in any manner for the sufficiency, correctness, genuineness or
validity of
any instrument deposited with it hereunder, or for the form or
execution thereof, or for the
identity, authority or rights of any person executing or depositing
the same, in accepting
any
monies or documents delivered to Escrow Agent hereunder, it is agreed and understood that the
Escrow Agent will not be called upon to construe any contract, instrument or document
deposited
herewith or submitted hereunder, but only to follow the specific instructions expressly set
forth
and/or provided for in this Agreement.




          (b) Escrow Agent, as a part of the consideration for its acceptance of this
escrow, shall not, in the performance of its duties under this Agreement, be liable for any
error of
judgment, or for any acts or omissions done by it in good faith, or for any mistake of fact or
law,
or for any claims, demands, causes of action, losses, liabilities, damages, costs or expenses
claimed or suffered by any party to this Agreement, except such as may arise solely and
directly
as a result of the Escrow Agent’s own negligence or willful misconduct. Escrow Agent is hereby
authorized to rely upon, and shall be protected in acting upon, any notice, request, waiver,
consent, receipt, certificate, affidavit, authorization, power of attorney, trust agreement or
other
paper or document believed by Escrow Agent in good faith to be genuine and what it purports to
be.




     7. Notices. Any notice, request, demand, or other communication required to be
given or to be served upon any party hereunder shall be in writing and delivered to the person
to
whom the notice is directed, either: (i) in person; (ii) by United States Mail, as a
registered or
certified item with return receipt requested; (iii) delivered by delivery service (including
any
express mail or overnight delivery service), or (iv) sent by facsimile, telecopy or e-mail,
with the
original or a copy sent by regular first class mail. Notices, requests, demands, or other
communications delivered by mail shall be deemed given and received when deposited in a post
office or other depository under the care or custody of the United States Postal Service,
enclosed
in a wrapper, addressed properly, with proper postage affixed. Any notice, demand, or other
communication given other than by certified or registered mail, return receipt requested,
shall be



3









 





deemed to
have been given and received when delivered to the address of the
party to whom it is
addressed as stated
below:



	 	 	 
	Buyer:

	 	AmREIT Realty Investment Corporation,
	 

	 	Attn: Tenel H. Tayar
	 

	 	8 Greenway Plaza, Suite 1000
	 

	 	Houston, Texas 77046
	 

	 	Telephone Number: (713) 860-4941
	 

	 	Fax Number: (713) 850-0498
	 
	 	 
	With a copy to:

	 	Mayer, Brown, Rowe & Maw LLP
	 

	 	Attn: Deann K. Lanz
	 

	 	700 Louisiana St., Suite 3600
	 

	 	Houston, Texas 77002
	 

	 	Telephone Number: (713) 546-0597
	 

	 	Fax Number: (713) 632-1897
	 
	 	 
	Seller:

	 	Midland Real Estate Company, L.P.
	 

	 	Attention: Jack J. Spector
	 

	 	315 East Commerce Street, Suite 300
	 

	 	San Antonio, Texas 78205
	 

	 	Telephone Number: (210) 225-3053 (x 222)
	 

	 	Fax Number: (210) 225-5910
	 
	 	 
	With a copy to:

	 	Midland Real Estate Company, L.P.
	 

	 	Attention: John Beauchamp
	 

	 	315 East Commerce Street, Suite 300
	 

	 	San Antonio, Texas 78205
	 

	 	Telephone Number: (210) 225-3053 (x 234)
	 

	 	Fax Number: (210) 225-5910
	 
	 	 
	and a copy to:

	 	Cox Smith Matthews Incorporated
	 

	 	Attn: John B.Stewart
	 

	 	112 E. Pecan St., Suite 1800
	 

	 	San Antonio, Texas 78205
	 

	 	Telephone Number: (210) 554-5513
	 

	 	Fax Number: (210) 226-8395
	 
	 	 
	Escrow Agent:

	 	Doug Becker
	 

	 	Chicago Title Insurance Company
	 

	 	270 N. Loop 1604 E., Suite 115
	 

	 	San Antonio, Texas 78232
	 

	 	Telephone Number: (210) 482-3500 ext 1100
	 

	 	Fax Number: (210) 482-3564









4









 








Any party hereto may change its address for notice by giving the other party ten days’
advance written notice of such change of address.



     8. Dispute
Notice. If a party other than Escrow Agent (the
“Objecting Party”), acting
in good faith, reasonably believes that the requested disbursement of the Escrowed Funds under
Section 4 is not proper, the Objecting Party may, within five (5) days following
notice of such
Disbursal Request from Escrow Agent, give to the Escrow Agent and to the requesting party a
written notice disputing such requested disbursement and a statement of the portion of such
requested disbursement that is disputed (a “Dispute
Notice”). If a Dispute Notice is given,
Escrow Agent shall withhold the portion of the requested disbursement of Escrowed Funds
specified in such Dispute Notice until the dispute has been resolved. Escrow Agent shall be
entitled to interplead into a court of competent jurisdiction in Bexar County, Texas, the
amount
of any requested disbursement of Escrowed Funds with respect to which any dispute exists.
Seller and Buyer shall pay the reasonable attorneys’ fees and court costs incurred, by Escrow
Agent in connection with such interpleader proceeding, subject to the rights of the prevailing
party under Section 9 below.



     9. Attorneys Fees. The prevailing party in any litigation concerning this Agreement
shall be entitled to recover from the other party all court costs and reasonable attorneys’
fees
incurred by such prevailing party in connection with such litigation, including any fees and
costs
reimbursed to the Escrow Agent.



     10. Counterparts
and Signatures. This Amendment may be executed and delivered in
one or more counterparts. The parties further agree that facsimile or electronic signatures
shall be
treated as original signatures for all purposes, and that neither shall raise the use of a
fax, email
or other electronically transmitted copy as a defense to this Amendment.



     11. Entire Agreement. This Agreement contains the entire agreement between the
parties relating to the subject matter hereof, SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF TEXAS, and can be amended only by written document signed by all parties hereto
and their respective successors and assigns. This Agreement may be signed in separate
counterparts.



     12. Business Day. If any date specified in this Agreement for commencement or
expiration of time periods occurs on a day other than a Business Day, then any such date shall
be
postponed to the following Business Day. As used herein, “Business Day” shall mean any day
other than a Saturday, Sunday or a holiday observed by national banks.



     13. Headings. The headings used in this Agreement are for convenience only and
shall not constitute a part of this Agreement.



     14. Termination of Agreement. This Agreement shall automatically terminate if and
when all Escrowed Funds shall have been distributed by the Escrow Agent in accordance with
the terms of this Agreement; provided, however, the rights and obligations of the parties
hereto shall survive the termination hereof.



5









 





     15. Construction. The parties have participated jointly in the negotiation and
drafting of this Agreement. ln the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption
or burden of proof shall arise favoring or disfavoring either party by virtue of the authorship of
any of the provisions of this Agreement.



     EXECUTED to be effective as of the day first written above.



	 	 	 	 	 	 	 	 	 
	 	 	BUYER:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	AmREIT Realty Investment Corporation,
	 	 	a Texas corporation	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	/s/
H. Kerr Taylor 	 	 
	 

	 	 	 	 

	 
	 

	 	 
	 	 	 	 	 	H. Kerr Taylor, President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	SELLER:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	MIDLAND REAL ESTATE COMPANY, L.P.,	 	 
	 	 	a Delaware limited partnership	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Boulder Creek Management, L.L.C.,	 	 
	 	 	 	 	a Delaware limited liability company	 	 
	 	 	 	 	its sole general partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/
Jack J. Spector 	 	 
	 

	 	 	 	 	 	 

	 	 
	 

	 	 	 	 	 	      Jack J. Spector, President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	ESCROW AGENT:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	CHICAGO TITLE INSURANCE COMPANY	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 

	 	Name:
	 	
	 	 

	 	 
	 

	 	Title:
	 	
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 







6









 






THIRD AMENDMENT TO

PURCHASE AND SALE AGREEMENT




     This THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT (the “Third Amendment”) is made effective
as of September 28, 2005 by and between MIDLAND REAL ESTATE COMPANY, L.P. (“Seller”) and AmREIT
REALTY INVESTMENT CORPORATION (“Buyer”).



RECITALS




     A. Agreement. Buyer and Seller entered into a Purchase and Sale Agreement dated
August 24, 2005 (“Original Agreement”), for the purchase and sale of the Land and Improvements in
the City of San Antonio, Bexar County, Texas, which, together with the other rights and
appurtenances, are described and defined in the Agreement as the “Property.” The Property is
commonly known as The South Bank.



     B. First Amendment. The Original Agreement was amended by Seller and Buyer on
September 13, 2005 to extend the Due Diligence Deadline (“First Amendment”).



     C. Second Amendment. The Original Agreement was further amended on September 19, 2005
to add and modify certain terms and provisions to the Original Agreement (“Second Amendment”).



     D. Third Amendment. Buyer has requested that Seller accommodate Buyer’s request for
an early Closing, Buyer and Seller desire and agree to further amend the Original Agreement as
provided below, and this Third Amendment is made to evidence such amendment. As used in this Third
Amendment, the term “Agreement” shall mean the Original Agreement as modified by the First
Amendment and the Second Amendment.



AGREEMENTS




     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Buyer and Seller hereby agree and amend the Agreement as follows:



     1. Terms. Any capitalized terms used in this Third Amendment will have the same
meaning given them in the Agreement, unless specifically defined differently herein.



     2. Closing Date. The “Closing Date”, as defined in Section 14 of the
Agreement, shall be revised to mean September 30, 2005.



     3. Tenant Estoppel Certificates. Buyer acknowledges that Seller has delivered to
Buyer and Buyer has received, accepted and approved an executed Tenant Estoppel Certificate from
each of the Major Tenants, as required by Section 12 of the Agreement. Seller agrees to continue
to use commercially reasonably efforts (without any obligation on Seller’s part to expend any
funds) to obtain a Tenant Estoppel Certificate from the remaining Tenants prior to the Closing Date
(as such date is revised herein); provided, however, in the event that Seller is unable to obtain a
Tenant Estoppel Certificate from any of the remaining Tenants prior to the



 









 




Closing Date, then notwithstanding anything to the contrary contained in Section 12 of the
Agreement or otherwise, Seller and Buyer agree that Seller shall have no obligation to provide a
Landlord Estoppel Certificate with respect to any Leases for which a Tenant Estoppel Certificate
has not been obtained, and Seller will not provide any Landlord Estoppel Certificates to Buyer at
the Closing. Buyer hereby waives any and all claims against Seller and any and all remedies under
the Agreement, to the extent they arise from or are caused by (i) the failure of Landlord to
deliver any of the outstanding Tenant Estoppel Certificates to Buyer or (ii) the failure of
Landlord to deliver a Landlord Estoppel Certificate for any of the Leases.




     4. Assignment of Riverwalk Lease. Seller and Buyer acknowledge and agree that
pursuant to Section 10.2 of the Riverwalk Lease, Seller, as the lessee under the Riverwalk Lease,
must notify the City of San Antonio (the “City”) in writing at least 30 days prior to the
date of the intended assignment of the Riverwalk Lease to a purchaser of the Property (the “30
Day Notice”). Seller delivered the 30 Day Notice to the City on September 20, 2005, a copy of
which was delivered to and approved by Buyer. Notwithstanding the required 30 Day Notice, Buyer
has requested that Seller agree to consummate the sale and purchase of the Property by the revised
Closing Date described above. As consideration for Seller’s agreement to close early, Buyer hereby
waives any and all claims against Seller and any and all remedies under the Agreement, to the
extent they arise from or are caused by the Closing occurring prior to the passage of the required
30 days under the Riverwalk Lease and Buyer hereby agrees to indemnify and hold Seller harmless
from any and all claims, costs, liabilities, damages or expenses, including without limitation,
reasonable attorneys’ fees, accruing or arising out of or under the Riverwalk Lease from Seller’s
transfer of the Property or assignment of the Riverwalk Lease prior to October 20, 2005, or from
the fact that the 30 Day Notice to the City did not name AmREIT Riverwalk, L.P., as the purchaser
of the Property.



     5. Hear Music Credit. Section 15(c)(iii)(A), is hereby deleted in its entirety and
replaced with the following:




“(A) $53,710.21 (the “Hear Music Credit”) to provide
supplemental cash flow until the estimated time that Starbuck’s
makes it’s first rent payment under the Hear Music Lease. In the
event Starbuck’s opens for business under the Hear Music Lease on or
after January 5, 2006, Buyer shall keep the entire Hear Music
Credit. In the event Starbuck’s opens for business under the Hear
Music Lease before January 5, 2006, Buyer shall immediately return a
prorated portion of the Hear Music Credit to Seller equal to $625.00
for each day that Hear Music is open prior to January 5, 2006. In
no event will the Hear Music Credit exceed the amount stated above,
regardless of when Starbuck’s makes it’s first rent payment.”



     6. Starbucks Credit. Section 15(c)(iii)(B), is hereby deleted in its entirety and
replaced with the following:




“(B) $18,679.05 (the “Starbuck’s Credit”) to provide
supplemental cash flow while Buyer attempts to locate a replacement
tenant for



 









 






the Original Starbuck’s Space. This amount is an estimate of the
Rent that would be due under the Original Starbuck’s Lease for a
period of six months, commencing on the Closing Date, net of any
Rent actually received. In the event Starbuck’s vacates the
Original Starbuck’s Space on or before February 4, 2006, Buyer shall
keep the entire Starbuck’s Credit. In the event Starbuck’s vacates
the Original Starbuck’s Space after February 4, 2006, Buyer shall
immediately return a prorated portion of the Starbuck’s Credit to
Seller equal to $292.00 for each day that Starbuck’s continues to
occupy the Original Starbuck’s Space after February 4, 2006. The
parties agree that the Starbuck’s Credit is capped at the amount
stated above, regardless of when Starbuck’s actually vacates the
Original Starbuck’s Space.”



     7. Sublease Amendments. So long as prior to Closing Seller sends a letter requesting
that each of the Patio Tenants execute a Sublease Amendment, in the form attached to the Second
Amendment, Seller shall be deemed to have complied in full with its obligations pursuant to Section
4(c) of the Second Amendment.



     8. Assignment of Purchase and Sale Agreement. Buyer has notified Seller of its intent
to assign the Agreement to AmREIT Riverwalk, L.P. at Closing pursuant to an Assignment of Purchase
and Sale Agreement, a draft of which has been delivered to and approved by Seller. Seller
acknowledges that the required five day notice period in Section 22 of the Agreement is hereby
waived by Seller and Seller waives any and all rights of Seller to object to such assignment based
on Buyer’s failure to give a five day notice of such assignment prior to Closing.



     9. Ratification. In all other respects, the Agreement shall continue in full force
and effect, unmodified except to the extent provided herein, and Seller and Buyer hereby RATIFY and
AFFIRM the same. In the event of a conflict between the terms of this Third Amendment and the
terms of the Agreement, the terms of this Third Amendment shall control.



     10. Counterparts and Signatures. This Third Amendment may be executed and delivered in
one or more counterparts. The parties further agree that facsimile or electronic signatures shall
be treated as original signatures for all purposes, and that neither shall raise the use of a fax,
email or other electronically transmitted copy as a defense to this Second Amendment.



(Signature Page to Follow)




 









 








	 	 	 	 	 	 	 
	 	 	SELLER:
	 
	 	 	 	 	 	 
	 	 	Midland Real Estate Company, L.P.,
	 	 	a Delaware limited partnership
	 
	 	 	 	 	 	 
	 	 	By:	 	Boulder Creek Management, L.L.C.,
	 	 	 	 	a Delaware limited liability company
	 	 	 	 	its sole general partner
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ John S. Beauchamp 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	John S. Beauchamp, Vice President
	 
	 	 	 	 	 	 
	 	 	BUYER:
	 
	 	 	 	 	 	 
	 	 	AmREIT Realty Investment Corporation,
	 	 	a Texas corporation
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	/s/ H. Kerr Taylor 
	 	 	 	 	 
	 	 	 	 	H. Kerr Taylor, President