Exhibit 10.76


 


CLOSING AGREEMENT


(Cy-Fair Town Center)


 


THIS CLOSING AGREEMENT (this “Agreement”) made as of July 21, 2006 (the “Effective Date”), by and between A-S 46 HWY 290-SPRING CYPRESS, L.P., a Texas
limited partnership (“Seller”), and MB CYPRESS CYFAIR LIMITED PARTNERSHIP, an Illinois limited partnership (“Purchaser”).


W I  T  N E S S E T H:


WHEREAS, Seller and Purchaser are parties to
that certain letter agreement (as heretofore modified, amended and extended, the
“LOI”) dated May 18, 2005, setting forth
the basic terms and conditions pursuant to which Purchaser will purchase from
Seller and Seller will sell to Purchaser certain real property and
improvements, including, without limitation, the Property (as defined below).  Capitalized terms used but not defined herein
shall have the meanings ascribed thereto in the LOI;


WHEREAS, contemporaneously herewith, Seller
desires to sell to Purchaser, and Purchaser desires to purchase from Seller, the
Property (as defined below), upon and subject to the terms and conditions
hereinafter set forth;


NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:


1.             Purchase
and Sale.  Subject to the terms of
this Agreement and the LOI, Seller hereby agrees to sell and convey, subject to
the Permitted Encumbrances (as defined below), and Purchaser hereby agrees to
purchase and pay for, notwithstanding the Permitted Encumbrances, the following
property:


(a)           that certain tract of land and easement estates
(collectively, the “Land”) situated
in Harris County, Texas, as more particularly described on Exhibit A
hereto, together with all rights and appurtenances pertaining to such Land, and
all right, title and interest of Seller in and to (i) all streets, alleys,
easements, and rights of way in, on, across, in front of, abutting or adjoining
the Land; and (ii) all oil, gas and other minerals in, on or under the
Land;


(b)           all improvements situated on the Land and all fixtures and
other property affixed thereto (collectively, the “Improvements”);


(c)           any furniture, furnishings, equipment, systems, facilities
and machinery, and conduits to provide life safety, heat, ventilation, air
conditioning, electrical power, lighting, plumbing, security, gas, sewer and
water thereto, to the extent owned by Seller and now located on or within the
Land and the Improvements and used in connection therewith (collectively, the “Personal Property”);


 


 

















 


(d)           all of Seller’s right, title and interest as landlord in
the leases, as amended, described on Exhibit B
hereto for space situated within the Land and Improvements (collectively, the “Leases”), and to the extent paid to Seller, all prepaid
rents under the Lease applicable to the period from and after the Closing (as
defined below), and security and other deposits under the Leases;


(e)           all of Seller’s right, title and interest (but without
warranty as to assignability) in all written contracts (if any) relating solely
to the improvement, maintenance or operation of, or the provision of services
or supplies solely to, the Land or the Improvements (such as trash removal or
elevator, HVAC or landscaping maintenance contracts, and development and common
area maintenance agreements) (collectively, the “Service
Contracts”);


(f)            all of Seller’s right, title and interest (but without
warranty as to assignability) in any unexpired warranties, guaranties and bonds
(including manufacturers’ warranties on Personal Property and contractors’
warranties for tenant finish work) (if any) attributable to the Improvements or
Personal Property (the “Warranties”);


(g)           all of Seller’s right, title and interest (but without
warranty as to assignability) in all governmental permits, licenses,
certificates and authorizations, including, without limitation, water,
wastewater and other utility rights, allocation, availability and/or capacity
and certificates of occupancy, (if any) attributable to the Land, Improvements
or Personal Property (the “Permits”);


(h)           all of Seller’s right, title and interest (but without
warranty as to assignability) in and to all trade names (excluding, however,
the name “NewQuest Properties”), logos and other intangible rights with respect
to the Property (the “Intangibles”);
and,


(i)            all of Seller’s right, title and interest (but without
warranty as to assignability) in and to all escrow and impound accounts held by
the Lender (as hereinafter defined) with respect to the Property (the “Impounds”).


The matters described in items (a)
through (i) above are hereinafter collectively referred to as the “Property.”  To the
extent that any of the personal property described in clause (c) above is
owned by occupants of space at the Property or owned by any service provider
pursuant to any of the Service Contracts or owned by a utility pursuant to one
or more Permitted Encumbrances, it shall be excluded from the definition of the
term Property and from the term Personal Property as used in this Agreement.


2.             Purchase
Price.


(a)           The total purchase price (the “Purchase
Price”) to be paid by Purchaser to Seller for the Property is FOURTEEN
MILLION NINE HUNDRED FORTY-EIGHT THOUSAND SEVEN HUNDRED EIGHTY-TWO AND NO/100
DOLLARS ($14,948,782.00).  The Purchase
Price is to be paid by Purchaser as follows:


 


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(i)                                     The assumption by Purchaser and promise
to pay, according to the terms and subject to the limitations on personal
liability thereof, all principal and interest remaining unpaid as of the
Effective Date on the Existing Indebtedness (hereinafter defined); and


(ii)                                  The balance of the Purchase Price (i.e.,
an amount equal to the Purchase Price less the principal balance owing on the
Existing Indebtedness as of the Effective Date) shall be payable in cash or
other immediately available funds at Closing as set forth herein below.


“Existing Indebtedness” means the
indebtedness evidenced by that certain promissory note (as heretofore amended,
extended or modified, the “Existing Note”)
executed by Seller, originally payable to the order of JPMORGAN CHASE BANK,
N.A. (ALender”), dated November 23, 2004, and being in
the original principal amount of $6,125,000, such Existing Note having been
assigned to Wells Fargo Bank, N.A., as Trustee for the Registered Holders of
J.P. Morgan Chase Commercial Mortgage Securities Corp., Commercial Pass-Through
Certificates, Series 2004-C3, by instrument filed for record under Clerk’s File
No. Y383390 of the Official Public Records of Real Property of Harris County,
Texas.  The Existing Note is secured, in
part, by that certain Deed of Trust from Seller to Kim Sobieski, as Trustee for
Lender, of even date with the Existing Note, filed for record under Clerk’s
File No. Y082845 of the Official Public Records of Real Property of Harris
County, Texas (as heretofore amended, extended or modified the AExisting Mortgage@) and encumbering the Property.  The Existing Note, the Existing Mortgage and
all other documents, instruments and agreements evidencing or securing the Existing
Indebtedness are hereinafter sometimes collectively referred to as the “Existing
Loan Documents.”


(b)           The
Purchase Price set forth in Section 2(a) above is the total price to be paid to
Seller based upon the Existing Indebtedness being presently defeasible, and
assuming Seller has paid all costs and expenses associated with the defeasance
of the Existing Indebtedness.  Since the
Existing Indebtedness on the Property is not defeasible as of the Effective
Date, only a portion (the “Cash at Closing”)
of the balance of the Purchase Price described in Section 2(a)(ii) above (that
portion being $4,438,857.87) is being paid by Purchaser to Seller as of the
Closing.  The difference between the balance
of the Purchase Price described in Section 2(a)(ii) above and the Cash at
Closing shall be referred to herein as the “Loan Earnout.”  The date upon which the Existing Indebtedness
first becomes defeasible shall be referred to herein as the “Initial Defeasance Date.” 
Seller shall have the option to designate an actual defeasance date (the
“Designated Defeasance Date”), which
Designated Defeasance Date must be no later than six (6) months following the
Initial Defeasance Date, by providing Purchaser at least fifteen (15) business
days prior written notice of such Designated Defeasance Date (the “Defeasance Notice”).  In
the event Seller fails to designate a date within such six (6) month period,
the Designated Defeasance Date shall be deemed to be the last day of such six
(6) month period.  At least three (3)
business days prior to the Designated Defeasance Date, Seller and/or Purchaser shall
request and obtain a final defeasance closing statement (the “Defeasance Closing 


 


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Statement”), assuming a
Designated Defeasance Date settlement date, from Commercial Defeasance LLC (“Commercial Defeasance”), 11121 Carmel Commons Blvd, Suite
250, Charlotte, NC 28226, (704) 248-2608, Attn: Joseph Parry.  Purchaser has previously approved the form of
defeasance documents utilized by Commercial Defeasance and covenants and agrees
to use its best efforts to cause the defeasance of the Existing Indebtedness to be completed on
the Designated Defeasance Date.  Seller
shall be solely responsible for all fees, expenses, penalties and other costs
incurred in connection with such defeasance, including, without limitation, all
legal and accounting fees associated with such defeasance.  Upon successful defeasance of the Existing
Indebtedness, the total amount of Seller’s costs and expenses in connection
with such defeasance, as reflected on the Defeasance Closing Statement, shall
be released from the Loan Earnout Escrow to pay the costs of the defeasance,
and all remaining
Loan Earnout Escrow Funds in the Loan Earnout Escrow shall be released to
Seller.  From and after the successful
defeasance of the Existing Indebtedness and release of the Loan Earnout Escrow Funds, as
provided hereinabove, Seller’s obligations pursuant to this Section 2(b) shall
be satisfied, and Seller shall be released from any further liability for such
costs and expenses.  Notwithstanding
anything to the contrary contained herein or in the LOI, Purchaser shall be
solely responsible for the payment of all principal and interest on the
Existing Indebtedness after the Effective Date of this Agreement.


(c)           Pursuant to the provisions of the Loan Earnout Escrow
Agreement referred to in Section 5(n) hereinafter, $4,837,108.13 (the “Loan Earnout Escrow Funds”) has been placed in escrow (the “Loan Earnout Escrow”) by Purchaser to secure the payment of
the Loan Earnout.  The Loan Earnout
Escrow Funds shall be placed in an interest bearing account, and all interest
thereon shall be paid to Seler upon receipt thereof by the escrow holder.  Funds in the Loan Earnout Escrow shall be distributed
as set forth hereinabove to satisfy the obligations of Seller under this
Section 2 and Paragraph 1 of the LOI.


3.             Seller’s
Deliveries.


Prior to the Effective Date, Seller has delivered
to or made available to Purchaser, originals or true, correct, complete copies
of the following:


(a)           a current title insurance commitment issued by American Title
Company of Houston as agent on behalf of Chicago Title Insurance Company (“Title Company”), including copies of all recorded exceptions
to title referred to therein (collectively, the “Title
Commitment”), showing the status of title to the Land and
Improvements according to the Title Company. 
Purchaser and Seller agree that those exceptions shown on Exhibit F
attached hereto shall be “Permitted Exceptions”
hereunder;


(b)           Seller’s existing surveys of the Land and Improvements, together with updates of the same prepared
in accordance with Purchaser’s instructions (collectively, the “Survey”);


(c)           a rent roll of the Property, together with copies of the Leases;


 


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(d)           copies of all written Services Contracts, Warranties and
Permits;


(e)           copies of any and all third-party inspection reports,
including without limitation, soil tests, environmental studies, and engineering
reports in Seller’s possession; but with no warranty as to the accuracy or
completeness thereof; and,


(f)            copies of the Existing Loan Documents and any documents
necessary to consummate the assignment by Seller, and assumption by Purchaser,
of the Existing Indebtedness (collectively, the “Assumption
Documents”).


4.             Investigation.  Prior to the Effective Date, Purchaser has
had the opportunity to investigate the Property and all matters relevant to its
acquisition, ownership and operation.


5.             The
Closing.


The consummation of the transaction
contemplated by this Agreement (the “Closing”) shall
take place through an escrow with Chicago Title & Trust Company (the “Escrow Agent”) contemporaneously herewith.  Unless waived by the party entitled to the
benefit thereof, the obligations of either party to close under this Agreement
shall be subject to the performance by the other party of all of the material
covenants, agreements and obligations required to be performed by such party under this
Agreement on or before the Closing.  At
the Closing, the following shall occur:


(a)           Seller shall deliver to Purchaser a duly executed and
acknowledged Special Warranty Deed (collectively, the “Deed”)
in substantially the form attached hereto as Exhibit C.


(b)           Seller and Purchaser shall execute and deliver a Bill of Sale,
Assignment and Assumption of Contracts (“Bill of Sale”)
in the form of Exhibit E
hereto, conveying to Purchaser the Personal Property, Service Contracts,
Warranties and Intangibles.


(c)           Purchaser shall pay the balance of the Purchase Price as
provided in Section 2(b) hereof, and the parties shall execute settlement
statements reflecting the Purchase Price and the prorations, adjustments and
closing costs described in Section 6 hereof.


(d)           Seller and Purchaser shall enter into an Assignment and
Assumption of Leases in substantially the form attached hereto as Exhibit D, whereby Seller shall
deliver as provided in this Agreement and assign to Purchaser the landlord’s
interest in the (i) Leases and (ii) any and all deposits under the Leases
and not previously applied and whereby Purchaser shall assume all of the
obligations of the landlord under the Leases arising from and after the Closing,
including any obligation to account for the security deposits assigned to Purchaser.


(e)           Seller shall deliver to Purchaser originals (or to the
extent originals are not in Seller’s possession, copies) of the Leases, Service
Contracts, 


 


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Warranties, Permits, plans and specifications
of the Improvements, tenant files and certificates of occupancy (if applicable)
relating to the Property within Seller’s possession.


(f)            The parties shall execute a blank form written notice
addressed to tenants under the Leases notifying such tenants of the acquisition
of the Property by Purchaser, which shall be delivered to Purchaser at Closing.


(g)           Pursuant to the terms and conditions of this Agreement,
possession of the Property shall be delivered to Purchaser at Closing.


(h)           Seller shall deliver to Purchaser all keys to all locks on
the Property within Seller’s possession (or the possession of its agents).


(i)            Seller shall deliver to Purchaser a “non-foreign
affidavit” acknowledging that Seller is not a nonresident alien
within the meaning of Section 1445 of the Internal Revenue Code of 1986,
as amended.


(j)            Seller and Purchaser shall each execute and deliver to
the other party such disclosures as may be required by applicable law.


(k)           Seller shall deliver, or cause to be delivered, to
Purchaser (or shall provide evidence that the Title Company is unconditionally
prepared to issue to Purchaser) a TLTA Form B Owner’s Policy of Title Insurance
(the “Title Policy”)
with respect to the Property, together with those endorsements set forth in
Section 6(l) of this Agreement, and insuring any appurtenant easements in the
amount of the Purchase Price, insuring Purchaser’s fee simple title to the
Property to be good and indefeasible subject to the terms of such Title Policy
and the exceptions specified therein.


(l)            Each party shall deliver to the other party such
documentary and other evidence as may be reasonably required by the Title
Company including, without limitation, such documents evidencing its existence
and/or good standing and the authority of the person or persons who are
executing the various documents on its behalf in connection with this
Agreement, and a certificate confirming such party’s representations and
warranties and, in the case of Seller, Seller will execute customary affidavits
of debts, liens, and possession required by the Title Company, including,
including, without limitation, those required to limit any exception for “parties
in possession” to the rights of tenants, as tenants only, under the Leases
delivered to Purchaser in accordance with Section 3.


(m)          The Purchaser and NewQuest Properties shall execute and
deliver to the other party a Leasing Agreement in form and substance reasonably
acceptable to Purchaser and NewQuest Properties.


(n)           Each party shall execute and deliver to the other party
the escrow agreement (the “Loan Earnout Escrow
Agreement”) relating to the escrow of certain funds contemplated to
be used to pay all costs, premiums and penalties to defease the 


 


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Existing Indebtedness, as contemplated by Section
2 hereof and Paragraph 1 of the LOI.


(o)           Each party shall execute and deliver to the other party
such agreements as may be reasonably required as contemplated by Paragraph 17
of the LOI, including, to the extent applicable, any required REA or Sign
Agreement contemplated therein.


(p)           Purchaser shall execute and deliver the Assumption
Documents.


6.             Prorations.


(a)           Taxes. 
General real estate and personal property taxes and assessments relating
to the Property shall be prorated and shall be assumed at Closing by Purchaser.  The proration for such taxes and assessments shall
be based upon, at Purchaser’s option, the greater of (i) one hundred ten
percent (110%) of the most recently issued tax bill for the Property, or (ii) the
estimated assessment for calendar year 2006 utilizing the local tax assessor’s
method of assessment.  If the most recent
tax bill is not for the current tax year, then the parties shall reprorate
within thirty (30) days of the receipt of the tax bill for the current tax
year.  Purchaser shall receive a credit
at Closing equal to the prorated amount of such taxes through Closing.  Seller shall be responsible for all “roll-back”
taxes assessed against the Property for any period before or after the Closing.  After Closing, Purchaser shall have sole
authority to control the progress of, and to make all decisions with respect
to, any proceedings for the reduction of the assessed valuation of the
Property.  All net tax refunds and
credits attributable to any period prior to the Closing Date which Seller has
paid or for which Seller has given a credit to Purchaser shall belong to and be
the property of Seller, provided, however, that any such refunds and credits
that are the property of tenants under Leases shall be promptly remitted
directly to such tenants.  All net tax
refunds and credits attributable to any period subsequent to the Closing Date
shall belong to and be the property of Purchaser.


(b)           Fixed, Minimum and Base Rents.  Subject to Section 6(g) below, Seller
shall be entitled to fixed, minimum and base rents which are due or past due or
not yet due but accrued under the terms of the Leases, prorated to 11:59 p.m.
of the day prior to the Closing, regardless of when such payments are actually
made.  At Closing, rents for the month of
Closing will be prorated as provided below. 
“Delinquent Amounts”, as defined in Section 6(j) below, shall be handled
in the manner provided in Section 6(j) below). 
All scheduled payments of fixed, minimum or base rents received by
Seller or Purchaser for the month of Closing shall be prorated based upon the
number of days in that month occurring before the Closing.  If, as of the Closing, any scheduled payment
of fixed, minimum or base rents has not been paid by a tenant for the month of
Closing (such amount being referred to as the “Current
Unpaid Rent” for such tenant), than any subsequent payments made by
such tenant after Closing shall first be applied to (but only to the extent of)
the Current Unpaid Rent for such tenant. 
If after the Closing, Seller receives any payment from a tenant with
Current Unpaid Rent, Seller shall be entitled to retain from any such payment
the amount of the Current 


 


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Unpaid Rent for such tenant (with the balance
of any such payment being treated as a “Delinquent Amount” and disposed of
pursuant to the provisions of Section 6(j) below, or if Purchaser receives any
such payment from a tenant with Current Unpaid Rent, Purchaser shall promptly
remit to Seller from any such payment the amount of the Current Unpaid Rent for
such tenant (with the balance of any such payment being treated as a “Delinquent
Amount” and disposed of pursuant to the provisions of Section 6(j) below.


(c)           Percentage Rents. 
Any percentage rents due or paid under any of the Leases (“Percentage Rent”) shall be prorated between Purchaser and Seller outside of
escrow as of the Closing Date on a LeaseBbyBLease basis, as
follows;  (a) Seller shall be
entitled to receive the portion of the Percentage Rent under each Lease for the
Lease Year in which Closing occurs, which portion shall be the ratio of the
number of days of said Lease Year in which Seller was Landlord under the Lease
to the total number of days in the Lease Year, and (b) Purchaser shall
receive the balance of Percentage Rent paid under each Lease for the Lease
Year.  As used herein, the term “Lease Year” means the twelve (12) month
period as to which annual Percentage Rent is owed under each Lease.  Upon receipt by either Seller or Purchaser of
any gross sales reports (“Gross Sales Reports”)
and any full or partial payment of Percentage Rent from any tenant of the
Property, the party receiving the same shall provide to the other party a copy
of the Gross Sales Report and a check for the other party’s proBrata share of the Percentage
Rent within five (5) days of the receipt thereof.  In the event that the tenant only remits a
partial payment, then the amount to be remitted to the other party shall be its
proBrata share of
the partial payment.  Nothing contained
herein shall be deemed or construed to require either Purchaser or Seller to
pay to the other party its proBrata share of the Percentage
Rent prior to receiving the Percentage Rent from the tenant, and the acceptance
or negotiation of any check for Percentage Rent by either party shall not be
deemed a waiver of that party’s right to contest the accuracy or amount of the
Percentage Rent paid by the tenant.


(d)           Utilities Charges and Deposits.  Water and sewer service charges, telephone,
cable television and charges for all other utilities, including, without
limitation, steam, electricity and gas shall be prorated to the date of
Closing.  Seller shall cause all utility
meters to be read on the Closing Date and Seller shall pay to Purchaser (or
furnish evidence of prior payment) an amount equal to utility charges incurred
or accrued up to the reading of such utility meters.  Seller shall retain the right to any security
deposits on deposit with any utility companies, and Purchaser shall be required
to deposit with any such utility companies security deposits for its own
account.  If final readings and billings
cannot be obtained as of the Closing Date, the final bills when received shall
be prorated based upon the number of days Seller owned the Subject Properties
in such final billing period.


(e)           Rent Concessions, Tenant Improvements and Commissions.  Purchaser shall be credited at Closing with
the amount of any and all rent concessions (except for those, if any, that are
reflected in Paragraph 18 and Paragraph 19 of the LOI, as to which no credit
shall be given to Purchaser) given by Seller to any tenant of the Property for
any period beyond the Closing Date.  Seller
shall be responsible for all 


 


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leasing commissions and all tenant
improvement costs, refurbishment allowances and other tenant inducements, which
relate to the Leases which were entered into by or on behalf of Seller or any
prior owner of the Property prior to the Effective Date hereof, whether or not
payment for such item is due before or after the Closing.  With respect to any Leases entered into after
the Effective Date of this Agreement, Purchaser shall be responsible for any
such expenses.


(f)            Lender Escrow Accounts and Impounds.  At Closing, Seller shall be credited for the
full amount of any escrow accounts and impounds maintained by the Lender with
respect to the Property, Seller’s interest in such escrow accounts and impounds
having been assigned by Seller to Purchaser contemporaneously with the Closing.


(g)           Other Items of Expense or Receipt.  All other customarily prorated items of
expense or receipt (excluding those items previously addressed in this Section
6 above) shall be prorated between the Seller and Purchaser as of the Closing,
except to the extent certain expenses are payable by tenants under the Leases
on a annual basis after Closing, in which event such expenses shall be not be
prorated and shall be assumed in their entirety by Purchaser.  To the extent Purchaser will assume any
obligations which are attributable to periods of time prior to the Closing
Date, Purchaser shall receive a credit for such amount at Closing.  The Seller shall retain (and the Assignment
of Leases shall reserve to Seller) all receivables from tenants for common area
maintenance, taxes and insurance for 2006 and previous years and Seller shall
have the right to pursue and collect such receivables from all tenants after
the Closing; provided, Seller shall have no right to sue any current tenant
under the Leases.  Purchaser shall
cooperate with Seller in the collection of such receivables.  Purchaser shall have no obligation to take
any enforcement action, but if any such amounts are paid to Purchaser, they
shall be paid immediately to Seller by Purchaser.  If the apportionment of any payments relating
to common area maintenance charges for calendar year 2006 (which have, as of
the Closing, been billed, but not collected, by Seller) received by Purchaser
after the date of Closing from a tenant under any of the Leases on account of
periods prior to Closing and on account of sums which are attributable to
expenses incurred by the lessor/landlord for periods of time prior to Closing
(and which are not reimbursed or credited by Purchaser to Seller pursuant to
any other provision of this Agreement), cannot be precisely determined at the
time of Closing, such sums shall be apportioned on a cash basis at closing
pro-rata between Purchaser and Seller on a per diem basis as of the date of Closing.  A post closing adjustment shall be made, if
necessary, between Purchaser and Seller for such apportioned items (including
specifically, without limitation, the payment by Purchaser to Seller of common
area maintenance charges for calendar year 2006 to the extent collected by
Purchaser from and after the Closing Date) within thirty (30) days after the
sums can be precisely determined. The provisions hereof shall expressly survive
the Closing.  Except with respect to
items prorated at the Closing, Seller shall be responsible for payment of any
and all bills or charges incurred on or prior to the Closing for work,
services, supplies or materials relating to the Property, and Purchaser shall
be responsible for payment of any and all bills or charges incurred after the
Closing for work, services, supplies or materials relating to the Property for
which 


 


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Purchaser has engaged the party performing or
delivering such items or has expressly assumed such obligations pursuant to an
express provision herein or in a separate document executed at Closing.


(h)           Adjustments. 
Prorations shall be accomplished by an adjustment in the Purchase Price
due Seller on the Closing, except as otherwise expressly provided in this
Agreement.


(i)            Post-Closing Adjustments.  Seller and Purchaser shall, on or before the
Closing, agree upon and furnish to the Escrow Agent an agreed schedule of the foregoing
prorations. To the extent possible, the amount of any adjustment described in this
section shall be estimated and paid at the Closing based upon the best
information available to Purchaser and Seller at the time, and shall be
adjusted as soon thereafter as may be reasonably practicable when final
billings are available or when such amounts may be determined with reasonable
certainty.  In the event any adjustments
pursuant to this Section 6 are, subsequent to Closing, found to be erroneous,
then either party hereto who is entitled to additional monies shall invoice the
other party for such additional amounts as may be owing, and such amount shall
be paid within ten (10) days from receipt of the invoice.  This covenant shall expressly survive
Closing.


(j)            Collections and Application of Payments after the Closing.  After the Closing, Purchaser shall bill the
tenants for all amounts due under Leases, including amounts accruing prior to
the Closing but only with respect to the calendar year of Closing.  Any amounts or charges payable by the tenants
on or after the Closing with respect to which Seller is entitled to receive a
share under this Agreement, which are not paid within thirty (30) days after
the due date, and any amount due and owing Seller before the Closing by tenants
under the Leases which are unpaid as of the Closing, are collectively herein
called “Delinquent Amounts”.  Notwithstanding the foregoing or any
direction from tenants to the contrary, (i) Current Unpaid Rent shall not be
considered to be a Delinquent Amount for purposes of this Section 6(j), and (ii)
rental and other payments received by Purchaser or Seller from the tenants (other
than Current Unpaid Rent, which shall be handled in the manner provided in
Section 6(b) above) shall be first applied toward rent and other charges
(including, without limitation, costs of collection) due for any period after Closing,
then toward Delinquent Amounts for periods prior to the calendar month of
Closing, and any excess monies received shall be applied toward any other
amounts due to Purchaser.


(k)           Service Contract Charges.  Amounts due and payable under any Service
Contract assigned to Purchaser at Closing shall be prorated as of the Closing,
and, at the Closing, Seller or Purchaser, as the case may be, shall pay to the
other any amount required as a result of such adjustment, and this covenant
shall not merge with the deed delivered hereunder but shall survive the
Closing.


(l)            Closing Costs. 
Any escrow fee and expenses charged by the Title Company shall be paid
equally by Seller and Purchaser.  Seller
shall pay (i) all costs for the Title Commitment and the basic premium for
the Title Policy; (ii) all costs 


 


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for title curative matters to the extent
required by this Agreement or the LOI; (iii) its share of the prorations
described above, (iv) one-half (1/2) of the costs of the updated Survey, and
(v) all fees and expenses incurred in connection with the assumption by
Purchaser of the Existing Indebtedness, including, without limitation, all legal and
accounting fees associated with such assumption.  Purchaser shall pay (i) the cost of
recording the Deed for the Real Property; (ii) one-half (1/2) of the costs
of the updated Survey; (iii) all premiums for any modifications or endorsements
to the Title Policy, including any premium charged to obtain the T-19.1, T-23
and T-25 Endorsements and the “shortages in area” deletion and any inspection
fee imposed by the Title Company in order to issue the Title Policy without any
exception for rights of parties in possession (except for rights of tenants
under written leases described in the certified rent roll to be delivered by
Seller to Purchaser at Closing); and (iv) its proportionate share of the
prorations described above.  Each party
shall be responsible for the payment of its own attorneys’ fees incurred in
connection with this Agreement and all other expenses which such party
incurs.  Additionally, any expenses,
charges and fees of closing, not specifically allocated herein or incurred by a
specific party, shall be borne by the parties in accordance with general custom
in the county where the Property is located, or, if no such custom exists,
shall be borne equally between the parties.


(m)          Survival. 
Unless otherwise expressly provided herein, this Section 6 shall
survive until the first anniversary of the Closing.


7.             Remedies;
Post-Closing Defaults. 
Notwithstanding anything to the contrary contained herein, if after the
Closing a party (the “Defaulting Party”)
breaches an obligation under this Agreement which is expressly stated to
survive the termination of this Agreement or the Closing, as the case may be,
the Defaulting Party shall be liable to the other party (the “Non-Defaulting Party”) for the actual damages incurred by
the Non-Defaulting Party as a direct result of such breach, subject to the
terms and provisions contained herein.  The
Non-Defaulting Party shall also have the right to pursue any remedy available
to it in law or in equity in the event of a breach by the Defaulting Party of
any covenant or agreement contained herein. 
However, in no event shall the Non-Defaulting Party be entitled to
recover from the Defaulting Party any punitive, consequential or speculative
damages.


8.             Real
Estate Commissions.


Each party hereto represents to the other
that it has not authorized any broker or finder to act on its behalf in
connection with the sale and purchase of the Property and that such party has
not dealt with any broker or finder purporting to act on behalf of any other
party.  Each party hereto agrees to
indemnify and hold harmless the other party from and against any and all
losses, liens, claims, judgments, liabilities, costs, expenses or damages
(including reasonable attorneys’ fees and disbursements and court costs) of any
kind or character arising out of or resulting from any agreement, arrangement
or understanding alleged to have been made or dealing by such party or on its
behalf with any broker or finder in connection with this Agreement or the
transaction contemplated hereby.


 


11

















 


9.             Notice.


Any notice required hereunder must be given
in writing (by a party or by such party’s attorney), sent by (a) personal
delivery, (b) overnight delivery service with proof of delivery,
(c) United States Postal Service, postage prepaid, registered or certified
mail, return receipt requested, or (d) telecopy, except as otherwise
expressly provided in this Agreement, addressed as follows:


If to Purchaser:


 


MB CYPRESS CYFAIR LIMITED PARTNERSHIP


2901 Butterfield Road


Oak Brook, Illinois 
60523


Attn: Lori Faust


Telephone: (630) 218-8000


Telecopy: (630) 645-7242


 


With a copy to:


 


The Inland Real Estate Group, Inc.


2901 Butterfield Road


Oak Brook, Illinois 60523


Attn: Dennis K. Holland, Associate Counsel


Telephone: (630) 218-8000


Telecopy: (630) 218-4900


 


 


If to Seller:


 


8807 W. Sam Houston Pkwy. North


Suite 200


Houston, Texas 
77040


Attn:  Steven D.
Alvis


Telephone:  (281)
477-4310


Telecopy:  (281)
477-4311


 


with a copy to:


 


Nathan Sommers Jacobs


A Professional Corporation


2800 Post Oak Boulevard, 61st Floor


Houston, Texas 77056


Attention: Louis B. Sullivan III, Esq.


Telephone: (713) 892-4830


Telecopy: (713) 892-4840


 


12

















 


Any such notice shall be deemed to have been given and received either,
in the case of personal delivery, at the time of personal delivery; in the case
of delivery service, as of the date of the first attempted delivery at the
address and in the manner provided herein; in the case of mailing, the earlier
of actual receipt or three (3) business days after depositing with the U.S. Postal Service; or
in the case of telecopy, upon transmission; provided, however, that if the last
date permitted for notice shall be the business day before the Closing or the
Closing, then such notice must be given so that it is actually received on such
day.  E-mail or electronic mail is not
sufficient notice.


10.           Post Closing
Obligations.


(a)           Conveyance
of Kroger Parcel.  It is understood
and agreed by Purchaser and Seller that Seller has agreed to convey to Kroger
Texas L.P. (“Kroger”) a portion of the Property
(the “Kroger Expansion Tract”) more
particularly described on Exhibit G attached hereto.  Purchaser covenants and agrees to convey the Kroger
Expansion Tract to Kroger immediately following the successful defeasance of
the Existing Indebtedness as set forth in Section 2(b) of this Agreement.  Purchaser shall have no obligation to
purchase or provide to Kroger title insurance with respect to the Kroger
Expansion Tract.


(b)           Pylon
Signs.  Purchaser agrees to cooperate
in good faith with Seller (or any partnership which Seller or its affiliates
control) to allow Seller (or such controlled partnership) to utilize any
available (meaning that Purchaser (or the Partnership) does not need any such
unused sign panel(s) for vacant space(s) in the Property) space(s) on pylon or
monument signs within the Property for use in connection with the approximately
4 acre tract of land located adjacent to the Property.


11.           Attorney’s Fees and
Legal Expenses.


In the event that either party hereto
institutes any action or proceeding in court to enforce or interpret any
provision hereof or for damages by reason of any alleged breach of any
provision of this Agreement or for any other judicial remedy, the prevailing
party shall be entitled to receive from the losing party all reasonable
attorneys’ fees and disbursements and all court costs in connection with said
proceedings.


12.           Section Headings;
Other Terms.


The section headings contained in this
Agreement are for convenience only and shall in no way enlarge or limit the
scope or meaning of the various and several paragraphs hereof.  The words “herein,” “hereof,” “hereto,” “hereunder,”
and others of similar import refer to the Agreement as a whole and not to any
particular section, subsection or clause contained in this
Agreement.  The singular of a term shall
include the plural and the plural shall include the singular.  The terms “includes” and “including” are not
limiting.


13.           Entire
Agreement.


The LOI and this Agreement embodies the entire agreement
between the parties hereto relating to the subject matter hereof and supersedes
any prior understandings or written or 


 


13

















 


oral agreements between the parties concerning the Property.  Further, this Agreement cannot be varied,
modified, amended, altered or terminated except by the written agreement of the
parties.


14.           Applicability.


The terms and provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and
assigns, except as expressly set forth herein.


15.           Exhibits.


All
exhibits and schedules described herein and attached hereto are fully
incorporated into this Agreement by this reference for all purposes.


16.           Applicable Law.


THIS AGREEMENT SHALL BE CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF TEXAS
WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAW.


17.           Counterparts.


This Agreement may be executed in counterparts, all such executed
counterparts shall constitute the same agreement, and the signature of any
party to any counterpart shall be deemed a signature to, and may be appended
to, any other counterpart.


18.           Facsimile
Signatures.


In order to expedite the transaction
contemplated herein, telecopied signatures may be used in place of original
signatures on this Agreement.  Seller and Purchaser intend to be bound by
the signatures on the telecopied document, and are aware that the other party
will rely on the telecopied signatures, and hereby waive any defenses to the
enforcement of the terms of this Agreement based upon the form of
signature.  If telecopied signatures are
delivered, Seller and Purchaser will each forward original counterpart signatures
to the other promptly after delivery of the telecopied signatures as set forth
herein.


19.           Business Day.


As used herein, the term “business day” shall mean all days, excluding Saturdays,
Sundays and all days observed by either the State of Texas or the Federal
Government as legal holidays.  In the
event that any date for performance falls on a day other than a business day,
then performance shall be postponed until the next business day.


20.           Strict Performance.


It is specifically agreed that “time is of the
essence” as to all matters provided for in this Agreement.


 


14

















 


21.           Additional Notices.


(a)           If the Property is situated in a utility or other
statutorily created district providing water, sewer, drainage, or flood control
facilities and services, Chapter 49 of the Texas Water Code requires Seller to
deliver and Purchaser to sign the statutory notice relating to the tax rate,
bonded indebtedness, or standby fee of the district prior to final execution of
this Agreement.


(b)           If the Property is
located outside the limits of a municipality, Seller notifies Purchaser under
Section 5.011, Texas Property Code, that the Property may now or later be
included in the extraterritorial jurisdiction of a municipality and may now or
later be subject to annexation by the municipality.  Each municipality maintains a map that
depicts its boundaries and extraterritorial jurisdiction. To determine if the
Property is located within a municipality’s extraterritorial jurisdiction or is
likely to be located within a municipality’s extraterritorial jurisdiction,
contact all municipalities located in the general proximity of the Property for
further information.


22.           Conflict with LOI.


This Agreement is being entered into pursuant
to and in accordance with the terms and provisions of the LOI.  The LOI shall survive the execution of this
Agreement.  In the event of a direct
conflict between the terms of this Agreement and the terms of the LOI, the LOI
shall control.  Notwithstanding the
forgoing, the matters set forth in Section 2 of this Agreement are
meant to be construed in conjunction with the LOI and neither document shall
control over the other with respect to such Section 2.


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


 


15

















 


IN WITNESS WHEREOF, this Agreement is executed in multiple originals by
Seller and Purchaser.


	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  A-S 46
  HWY 290-SPRING CYPRESS, L.P., a Texas limited
  partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  A-S 46, L.C., a Texas
  limited liability company, its general partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  /s/
  Steven D. Alvis

  	
   

  
	
   

  	
   

  	
   

  	
  Steven
  D. Alvis

  
	
   

  	
   

  	
   

  	
  Member-Manager

  
						



 


 


16

















 


IN WITNESS WHEREOF, this Agreement is executed as of the Effective Date
by Purchaser.


	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  MB CYPRESS CYFAIR LIMITED
  PARTNERSHIP, an
  Illinois limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  MB Cypress
  CyFair GP, L.L.C., a Delaware limited liability company,
  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Minto Builders
  (Florida), Inc., a Florida corporation, its sole member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ 

  	
  Debra A. Palmer

  	
   

  
	
   

  	
   

  	
   

  	
  Name: 

  	
   

  	
  Debra A. Palmer

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  	
  Assistant Secretary

  	
   

  
									



 


 


17

















CLOSING AGREEMENT


(Cy-Fair Town Center; A-S 45)


 


THIS CLOSING AGREEMENT (this “Agreement”) made as of July 21, 2006 (the “Effective Date”), by and between A-S 45 HWY
249-BOUDREAUX, L.P., a Texas limited partnership (“Seller”), MB CYPRESS
CYFAIR OUTLOT LIMITED PARTNERSHIP, an Illinois limited partnership (“Purchaser”).


W I  T  N E S S E T H:


WHEREAS, Seller and Purchaser are parties to
that certain letter agreement (as heretofore modified, amended and extended, the
“LOI”) dated May 18, 2005, setting forth
the basic terms and conditions pursuant to
which Purchaser will purchase from Seller and Seller will sell to Purchaser
certain real property and improvements, including, without limitation, the
Property (as defined below).  Capitalized
terms used but not defined herein shall have the meanings ascribed thereto in
the LOI;


WHEREAS, contemporaneously herewith, Seller
desires to sell to Purchaser, and Purchaser desires to purchase from
Seller, the Property (as defined below), upon and subject to the terms and
conditions hereinafter set forth;


NOW, THEREFORE, in consideration of the
foregoing and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:


1.             Purchase
and Sale.  Subject to the terms of
this Agreement and the LOI, Seller hereby agrees to sell and convey, subject to
the Permitted Encumbrances (as defined below), and Purchaser hereby agrees to
purchase and pay for, notwithstanding the Permitted Encumbrances, the following
property:


(a)           that certain tract of land and easement estates
(collectively, the “Land”) situated
in Harris County, Texas, as more particularly described on Exhibit A
hereto, together with all rights and appurtenances pertaining to such Land, and
all right, title and interest of Seller in and to (i) all streets, alleys,
easements, and rights of way in, on, across, in front of, abutting or adjoining
the Land; and (ii) all oil, gas and other minerals in, on or under the
Land;


(b)           all improvements situated on the Land and all fixtures and
other property affixed thereto (collectively, the “Improvements”);


(c)           any furniture, furnishings, equipment, systems, facilities
and machinery, and conduits to provide life safety, heat, ventilation, air
conditioning, electrical power, lighting, plumbing, security, gas, sewer and
water thereto, to the extent owned by Seller and now located on or within the
Land and the Improvements and used in connection therewith (collectively, the “Personal Property”);


 


 

















 


(d)           all of Seller’s right, title and interest as landlord in
the leases, as amended, described on Exhibit B
hereto for space situated within the Land and Improvements (collectively, the “Leases”), and to the extent paid to Seller, all prepaid
rents under the Lease applicable to the period from and after the Closing (as
defined below), and security and other deposits under the Leases;


(e)           all of Seller’s right, title and interest (but without
warranty as to assignability) in all written contracts (if any) relating solely
to the improvement, maintenance or operation of, or the provision of services
or supplies solely to, the Land or the Improvements (such as trash removal or
elevator, HVAC or landscaping maintenance contracts, and development and common
area maintenance agreements) (collectively, the “Service
Contracts”);


(f)            all of Seller’s right, title and interest (but without
warranty as to assignability) in any unexpired warranties, guaranties and bonds
(including manufacturers’ warranties on Personal Property and contractors’
warranties for tenant finish work) (if any) attributable to the Improvements or
Personal Property (the “Warranties”);


(g)           all of Seller’s right, title and interest (but without
warranty as to assignability) in all governmental permits, licenses, certificates
and authorizations, including, without limitation, water, wastewater and other
utility rights, allocation, availability and/or capacity and certificates of
occupancy, (if any) attributable to the Land, Improvements or Personal Property
(the “Permits”); and


(h)           all of Seller’s right, title and interest (but without
warranty as to assignability) in and to all trade names (excluding, however,
the name “NewQuest Properties”), logos and other intangible rights with respect
to the Property (the “Intangibles”).


The matters described in items (a)
through (h) above are hereinafter collectively referred to as the “Property.”  To the
extent that any of the personal property described in clause (c) above is
owned by occupants of space at the Property or owned by any service provider
pursuant to any of the Service Contracts or owned by a utility pursuant to one
or more Permitted Encumbrances, it shall be excluded from the definition of the
term Property and from the term Personal Property as used in this Agreement.


2.             Purchase
Price.


The total purchase price (the “Purchase Price”) to be paid by Purchaser to Seller for the
Property is ONE MILLION THIRTY-SEVEN THOUSAND
SEVEN HUNDRED THIRTEEN DOLLARS ($1,037,713.00). 
The Purchase Price shall be payable in cash or other immediately
available funds at Closing as set forth herein below.


 


2

















 


3.             Seller’s
Deliveries.


Prior to the Effective Date, Seller has delivered
to or made available to Purchaser, originals or true, correct, complete copies
of the following:


(a)           a current title insurance commitment issued by American Title
Company of Houston as agent on behalf of Chicago Title Insurance Company (“Title Company”), including copies of all recorded exceptions
to title referred to therein (collectively, the “Title
Commitment”), showing the status of title to the Land and
Improvements according to the Title Company. 
Purchaser and Seller agree that those exceptions shown on Exhibit F
attached hereto shall be “Permitted Exceptions”
hereunder;


(b)           Seller’s existing surveys of the Land and Improvements, together with updates of the same prepared
in accordance with Purchaser’s instructions (collectively, the “Survey”);


(c)           a rent roll of the Property, together with copies of the Leases;


(d)           copies of all written Services Contracts, Warranties and
Permits; and


(e)           copies of any and all third-party inspection reports,
including without limitation, soil tests, environmental studies, and
engineering reports in Seller’s possession; but with no warranty as to the
accuracy or completeness thereof.


4.             Investigation.  Prior to the Effective Date, Purchaser has
had the opportunity to investigate the Property and all matters relevant to its
acquisition, ownership and operation.


5.             The
Closing.


The consummation of the transaction
contemplated by this Agreement (the “Closing”) shall
take place through an escrow with Chicago Title & Trust Company (the “Escrow Agent”) contemporaneously herewith.  Unless waived by the party entitled to the
benefit thereof, the obligations of either party to close under this Agreement
shall be subject to the performance by the other party of all of the material
covenants, agreements and obligations required to be performed by such party
under this Agreement on or before the Closing. 
At the Closing, the following shall occur:


(a)           Seller shall deliver to Purchaser a duly executed and
acknowledged Special Warranty Deed (collectively, the “Deed”)
in substantially the form attached hereto as Exhibit C.


(b)           Seller and Purchaser shall execute and deliver a Bill of Sale,
Assignment and Assumption of Contracts (“Bill of Sale”)
in the form of Exhibit E
hereto, conveying to Purchaser the Personal Property, Service Contracts,
Warranties and Intangibles.


 


3

















 


(c)           Purchaser shall pay the Purchase Price as provided in
Section 2 hereof, and the parties shall execute settlement statements
reflecting the Purchase Price and the prorations, adjustments and closing costs
described in Section 6 hereof.


(d)           Seller and Purchaser shall enter into an Assignment and
Assumption of Leases in substantially the form attached hereto as Exhibit D, whereby Seller shall
deliver as provided in this Agreement and assign to Purchaser the landlord’s
interest in the (i) Leases and (ii) any and all deposits under the Leases
and not previously applied and whereby Purchaser shall assume all of the
obligations of the landlord under the Leases arising from and after the Closing,
including any obligation to account for the security deposits assigned to
Purchaser.


(e)           Seller shall deliver to Purchaser originals (or to the
extent originals are not in Seller’s possession, copies) of the Leases, Service
Contracts, Warranties, Permits, plans and specifications of the Improvements,
tenant files and certificates of occupancy (if applicable) relating to the
Property within Seller’s possession.


(f)            The parties shall execute a blank form written notice
addressed to tenants under the Leases notifying such tenants of the acquisition
of the Property by Purchaser, which shall be delivered to Purchaser at Closing.


(g)           Pursuant to the terms and conditions of this Agreement,
possession of the Property shall be delivered to Purchaser at Closing.


(h)           Seller shall deliver to Purchaser all keys to all locks on
the Property within Seller’s possession (or the possession of its agents).


(i)            Seller shall deliver to Purchaser a “non-foreign
affidavit” acknowledging that Seller is not a nonresident alien
within the meaning of Section 1445 of the Internal Revenue Code of 1986,
as amended.


(j)            Seller and Purchaser shall each execute and deliver to
the other party such disclosures as may be required by applicable law.


(k)           Seller shall deliver, or cause to be delivered, to
Purchaser (or shall provide evidence that the Title Company is unconditionally
prepared to issue to Purchaser) a TLTA Form B Owner’s Policy of Title Insurance
(the “Title Policy”)
with respect to the Property, together with those endorsements set forth in
Section 6(l) of this Agreement, and insuring any appurtenant easements in the
amount of the Purchase Price, insuring Purchaser’s fee simple title to the
Property to be good and indefeasible subject to the terms of such Title Policy
and the exceptions specified therein.


(l)            Each party shall deliver to the other party such
documentary and other evidence as may be reasonably required by the Title
Company including, without limitation, such documents evidencing its existence
and/or good standing and the authority of the person or persons who are executing
the various documents on its behalf in connection with this Agreement, and a
certificate confirming such party’s 


 


4

















 


representations and warranties and, in the
case of Seller, Seller will execute customary affidavits of debts, liens, and
possession required by the Title Company, including, including, without
limitation, those required to limit any exception for “parties in possession”
to the rights of tenants, as tenants only, under the Leases delivered to
Purchaser in accordance with Section 3.


(m)          The Purchaser and NewQuest Properties shall execute and
deliver to the other party a Leasing Agreement in form and substance reasonably
acceptable to Purchaser and NewQuest Properties.


(n)           Each party shall execute and deliver to the other party
such agreements as may be reasonably required as contemplated by Paragraph 17
of the LOI, including, to the extent applicable, any required REA or Sign
Agreement contemplated therein.


6.             Prorations.


(a)           Taxes.  General
real estate and personal property taxes and assessments relating to the
Property shall be prorated and shall be assumed at Closing by Purchaser.  The proration for such taxes and assessments shall
be based upon, at Purchaser’s option, the greater of (i) one hundred ten
percent (110%) of the most recently issued tax bill for the Property, or (ii)
the estimated assessment for calendar year 2006 utilizing the local tax
assessor’s method of assessment.  If the
most recent tax bill is not for the current tax year, then the parties shall
reprorate within thirty (30) days of the receipt of the tax bill for the
current tax year.  Purchaser shall
receive a credit at Closing equal to the prorated amount of such taxes through
Closing.  Seller shall be responsible for
all “roll-back” taxes assessed against the Property for any period before or
after the Closing.  After Closing, Purchaser
shall have sole authority to control the progress of, and to make all decisions
with respect to, any proceedings for the reduction of the assessed valuation of
the Property.  All net tax refunds and
credits attributable to any period prior to the Closing Date which Seller has
paid or for which Seller has given a credit to Purchaser shall belong to and be
the property of Seller, provided, however, that any such refunds and credits
that are the property of tenants under Leases shall be promptly remitted
directly to such tenants.  All net tax
refunds and credits attributable to any period subsequent to the Closing Date
shall belong to and be the property of Purchaser.


(b)           Fixed, Minimum and Base Rents.  Subject to Section 6(g) below, Seller
shall be entitled to fixed, minimum and base rents which are due or past due or
not yet due but accrued under the terms of the Leases, prorated to 11:59 p.m.
of the day prior to the Closing, regardless of when such payments are actually
made.  At Closing, rents for the month of
Closing will be prorated as provided below. 
“Delinquent Amounts”, as defined in Section 6(j) below, shall be handled
in the manner provided in Section 6(j) below). 
All scheduled payments of fixed, minimum or base rents received by
Seller or Purchaser for the month of Closing shall be prorated based upon the
number of days in that month occurring before the Closing.  If, as of the Closing, any scheduled payment
of fixed, minimum or base rents has not been paid by a tenant for 


 


5

















 


the month of Closing (such amount being
referred to as the “Current Unpaid Rent”
for such tenant), than any subsequent payments made by such tenant after
Closing shall first be applied to (but only to the extent of) the Current
Unpaid Rent for such tenant.  If after
the Closing, Seller receives any payment from a tenant with Current Unpaid
Rent, Seller shall be entitled to retain from any such payment the amount of
the Current Unpaid Rent for such tenant (with the balance of any such payment
being treated as a “Delinquent Amount” and disposed of pursuant to the
provisions of Section 6(j) below, or if Purchaser receives any such payment
from a tenant with Current Unpaid Rent, Purchaser shall promptly remit to Seller
from any such payment the amount of the Current Unpaid Rent for such tenant
(with the balance of any such payment being treated as a “Delinquent Amount”
and disposed of pursuant to the provisions of Section 6(j) below.


(c)           Percentage Rents. 
Any percentage rents due or paid under any of the Leases (“Percentage Rent”) shall be prorated between Purchaser and Seller outside of
escrow as of the Closing Date on a LeaseBbyBLease basis, as
follows;  (a) Seller shall be
entitled to receive the portion of the Percentage Rent under each Lease for the
Lease Year in which Closing occurs, which portion shall be the ratio of the
number of days of said Lease Year in which Seller was Landlord under the Lease
to the total number of days in the Lease Year, and (b) Purchaser shall
receive the balance of Percentage Rent paid under each Lease for the Lease
Year.  As used herein, the term “Lease Year” means the twelve (12) month
period as to which annual Percentage Rent is owed under each Lease.  Upon receipt by either Seller or Purchaser of
any gross sales reports (“Gross Sales Reports”)
and any full or partial payment of Percentage Rent from any tenant of the
Property, the party receiving the same shall provide to the other party a copy
of the Gross Sales Report and a check for the other party’s proBrata share of the Percentage
Rent within five (5) days of the receipt thereof.  In the event that the tenant only remits a
partial payment, then the amount to be remitted to the other party shall be its
proBrata share of
the partial payment.  Nothing contained
herein shall be deemed or construed to require either Purchaser or Seller to
pay to the other party its proBrata share of the Percentage
Rent prior to receiving the Percentage Rent from the tenant, and the acceptance
or negotiation of any check for Percentage Rent by either party shall not be
deemed a waiver of that party’s right to contest the accuracy or amount of the
Percentage Rent paid by the tenant.


(d)           Utilities Charges and Deposits.  Water and sewer service charges, telephone,
cable television and charges for all other utilities, including, without
limitation, steam, electricity and gas shall be prorated to the date of Closing.  Seller shall cause all utility meters to be
read on the Closing Date and Seller shall pay to Purchaser (or furnish evidence
of prior payment) an amount equal to utility charges incurred or accrued up to
the reading of such utility meters. 
Seller shall retain the right to any security deposits on deposit with
any utility companies, and Purchaser shall be required to deposit with any such
utility companies security deposits for its own account.  If final readings and billings cannot be
obtained as of the Closing Date, the final bills when received shall be
prorated based upon the number of days Seller owned the Subject Properties in
such final billing period.


 


6

















 


(e)           Rent Concessions, Tenant Improvements and Commissions.  Purchaser shall be credited at Closing with
the amount of any and all rent concessions (except for those, if any, that are
reflected in Paragraph 18 and Paragraph 19 of the LOI, as to which no credit
shall be given to Purchaser) given by Seller to any tenant of the Property for
any period beyond the Closing Date.  Seller
shall be responsible for all leasing commissions and all tenant improvement
costs, refurbishment allowances and other tenant inducements, which relate to
the Leases which were entered into by or on behalf of Seller or any prior owner
of the Property prior to the Effective Date hereof, whether or not payment for
such item is due before or after the Closing. 
With respect to any Leases entered into after the Effective Date of this
Agreement, Purchaser shall be responsible for any such expenses.


(f)            Intentionally Deleted.


(g)           Other Items of Expense or Receipt.  All other customarily prorated items of
expense or receipt (excluding those items previously addressed in this Section
6 above) shall be prorated between the Seller and Purchaser as of the Closing,
except to the extent certain expenses are payable by tenants under the Leases
on a annual basis after Closing, in which event such expenses shall be not be
prorated and shall be assumed in their entirety by Purchaser.  To the extent Purchaser will assume any
obligations which are attributable to periods of time prior to the Closing
Date, Purchaser shall receive a credit for such amount at Closing.  The Seller shall retain (and the Assignment
of Leases shall reserve to Seller) all receivables from tenants for common area
maintenance, taxes and insurance for 2006 and previous years and Seller shall
have the right to pursue and collect such receivables from all tenants after
the Closing; provided, Seller shall have no right to sue any current tenant
under the Leases.  Purchaser shall
cooperate with Seller in the collection of such receivables.  Purchaser shall have no obligation to take
any enforcement action, but if any such amounts are paid to Purchaser, they
shall be paid immediately to Seller by Purchaser.  If the apportionment of any payments relating
to common area maintenance charges for calendar year 2006 (which have, as of
the Closing, been billed, but not collected, by Seller) received by Purchaser
after the date of Closing from a tenant under any of the Leases on account of
periods prior to Closing and on account of sums which are attributable to
expenses incurred by the lessor/landlord for periods of time prior to Closing
(and which are not reimbursed or credited by Purchaser to Seller pursuant to
any other provision of this Agreement), cannot be precisely determined at the
time of Closing, such sums shall be apportioned on a cash basis at closing
pro-rata between Purchaser and Seller on a per diem basis as of the date of
Closing.  A post closing adjustment shall
be made, if necessary, between Purchaser and Seller for such apportioned items
(including specifically, without limitation, the payment by Purchaser to Seller
of common area maintenance charges for calendar year 2006 to the extent
collected by Purchaser from and after the Closing Date) within thirty (30) days
after the sums can be precisely determined. The provisions hereof shall expressly
survive the Closing.  Except with respect
to items prorated at the Closing, Seller shall be responsible for payment of
any and all bills or charges incurred on or prior to the Closing for work,
services, supplies or materials relating to the Property, and Purchaser shall
be responsible for payment of any and all bills or charges incurred after the 


 


7

















 


Closing for work, services, supplies or
materials relating to the Property for which Purchaser has engaged the party
performing or delivering such items or has expressly assumed such obligations
pursuant to an express provision herein or in a separate document executed at
Closing.


(h)           Adjustments. 
Prorations shall be accomplished by an adjustment in the Purchase Price
due Seller on the Closing, except as otherwise expressly provided in this
Agreement.


(i)            Post-Closing Adjustments.  Seller and Purchaser shall, on or before the
Closing, agree upon and furnish to the Escrow Agent an agreed schedule of the foregoing
prorations. To the extent possible, the amount of any adjustment described in
this section shall be estimated and paid at the Closing based upon the best
information available to Purchaser and Seller at the time, and shall be
adjusted as soon thereafter as may be reasonably practicable when final
billings are available or when such amounts may be determined with reasonable
certainty.  In the event any adjustments
pursuant to this Section 6 are, subsequent to Closing, found to be erroneous,
then either party hereto who is entitled to additional monies shall invoice the
other party for such additional amounts as may be owing, and such amount shall
be paid within ten (10) days from receipt of the invoice.  This covenant shall expressly survive Closing.


(j)            Collections and Application of Payments after the Closing.  After the Closing, Purchaser shall bill the
tenants for all amounts due under Leases, including amounts accruing prior to
the Closing but only with respect to the calendar year of Closing.  Any amounts or charges payable by the tenants
on or after the Closing with respect to which Seller is entitled to receive a
share under this Agreement, which are not paid within thirty (30) days after
the due date, and any amount due and owing Seller before the Closing by tenants
under the Leases which are unpaid as of the Closing, are collectively herein
called “Delinquent Amounts”.  Notwithstanding the foregoing or any
direction from tenants to the contrary, (i) Current Unpaid Rent shall not be
considered to be a Delinquent Amount for purposes of this Section 6(j), and (ii)
rental and other payments received by Purchaser or Seller from the tenants (other
than Current Unpaid Rent, which shall be handled in the manner provided in
Section 6(b) above) shall be first applied toward rent and other charges
(including, without limitation, costs of collection) due for any period after Closing,
then toward Delinquent Amounts for periods prior to the calendar month of
Closing, and any excess monies received shall be applied toward any other
amounts due to Purchaser.


(k)           Service Contract Charges.  Amounts due and payable under any Service
Contract assigned to Purchaser at Closing shall be prorated as of the Closing,
and, at the Closing, Seller or Purchaser, as the case may be, shall pay to the
other any amount required as a result of such adjustment, and this covenant
shall not merge with the deed delivered hereunder but shall survive the
Closing.


(l)            Closing Costs. 
Any escrow fee and expenses charged by the Title Company shall be paid
equally by Seller and Purchaser.  Seller
shall pay (i) all 


 


8

















 


costs for the Title Commitment and the basic
premium for the Title Policy; (ii) all costs for title curative matters to
the extent required by this Agreement or the LOI; (iii) its share of the prorations
described above, and (iv) one-half (1/2) of the costs of the updated
Survey.  Purchaser shall pay (i) the
cost of recording the Deed for the Real Property; (ii) one-half (1/2) of
the costs of the updated Survey; (iii) all premiums for any modifications or
endorsements to the Title Policy, including any premium charged to obtain the
T-19.1, T-23 and T-25 Endorsements and the “shortages in area” deletion and any
inspection fee imposed by the Title Company in order to issue the Title Policy
without any exception for rights of parties in possession (except for rights of
tenants under written leases described in the certified rent roll to be
delivered by Seller to Purchaser at Closing); and (iv) its proportionate share
of the prorations described above.  Each
party shall be responsible for the payment of its own attorneys’ fees incurred
in connection with this Agreement and all other expenses which such party
incurs.  Additionally, any expenses,
charges and fees of closing, not specifically allocated herein or incurred by a
specific party, shall be borne by the parties in accordance with general custom
in the county where the Property is located, or, if no such custom exists,
shall be borne equally between the parties.


(m)          Survival. 
Unless otherwise expressly provided herein, this Section 6 shall
survive until the first anniversary of the Closing.


7.             Remedies;
Post-Closing Defaults. 
Notwithstanding anything to the contrary contained herein, if after the
Closing a party (the “Defaulting Party”)
breaches an obligation under this Agreement which is expressly stated to
survive the termination of this Agreement or the Closing, as the case may be,
the Defaulting Party shall be liable to the other party (the “Non-Defaulting Party”) for the actual damages incurred by
the Non-Defaulting Party as a direct result of such breach, subject to the
terms and provisions contained herein.  The
Non-Defaulting Party shall also have the right to pursue any remedy available
to it in law or in equity in the event of a breach by the Defaulting Party of
any covenant or agreement contained herein. 
However, in no event shall the Non-Defaulting Party be entitled to
recover from the Defaulting Party any punitive, consequential or speculative
damages.


8.             Real
Estate Commissions.


Each party hereto represents to the other
that it has not authorized any broker or finder to act on its behalf in
connection with the sale and purchase of the Property and that such party has
not dealt with any broker or finder purporting to act on behalf of any other
party.  Each party hereto agrees to
indemnify and hold harmless the other party from and against any and all
losses, liens, claims, judgments, liabilities, costs, expenses or damages
(including reasonable attorneys’ fees and disbursements and court costs) of any
kind or character arising out of or resulting from any agreement, arrangement
or understanding alleged to have been made or dealing by such party or on its
behalf with any broker or finder in connection with this Agreement or the
transaction contemplated hereby.


 


9

















 


9.             Notice.


Any notice required hereunder must be given
in writing (by a party or by such party’s attorney), sent by (a) personal
delivery, (b) overnight delivery service with proof of delivery,
(c) United States Postal Service, postage prepaid, registered or certified
mail, return receipt requested, or (d) telecopy, except as otherwise
expressly provided in this Agreement, addressed as follows:


If to Purchaser:


 


MB CYPRESS CYFAIR OUTLOT LIMITED PARTNERSHIP


2901 Butterfield Road


Oak Brook, Illinois 
60523


Attn: Lori Faust


Telephone: (630) 218-8000


Telecopy: (630) 645-7242


 


With a copy to:


 


The Inland Real Estate Group, Inc.


2901 Butterfield Road


Oak Brook, Illinois 60523


Attn: Dennis K. Holland, Associate Counsel


Telephone: (630) 218-8000


Telecopy: (630) 218-4900


 


 


If to Seller:


 


8807 W. Sam Houston Pkwy. North


Suite 200


Houston, Texas 
77040


Attn:  Steven D.
Alvis


Telephone:  (281)
477-4310


Telecopy:  (281)
477-4311


 


with a copy to:


 


Nathan Sommers Jacobs


A Professional Corporation


2800 Post Oak Boulevard, 61st Floor


Houston, Texas 77056


Attention: Louis B. Sullivan III, Esq.


Telephone: (713) 892-4830


Telecopy: (713) 892-4840


 


 


10

















 


Any such notice shall be deemed to have been given and received either,
in the case of personal delivery, at the time of personal delivery; in the case
of delivery service, as of the date of the first attempted delivery at the
address and in the manner provided herein; in the case of mailing, the earlier
of actual receipt or three (3) business days after depositing with the U.S.
Postal Service; or in the case of telecopy, upon transmission; provided,
however, that if the last date permitted for notice shall be the business day
before the Closing or the Closing, then such notice must be given so that it is
actually received on such day.  E-mail or
electronic mail is not sufficient notice.


10.           Attorney’s
Fees and Legal Expenses.


In the event that either party hereto
institutes any action or proceeding in court to enforce or interpret any
provision hereof or for damages by reason of any alleged breach of any
provision of this Agreement or for any other judicial remedy, the prevailing
party shall be entitled to receive from the losing party all reasonable
attorneys’ fees and disbursements and all court costs in connection with said
proceedings.


11.           Section
Headings; Other Terms.


The section headings contained in this
Agreement are for convenience only and shall in no way enlarge or limit the
scope or meaning of the various and several paragraphs hereof.  The words “herein,” “hereof,” “hereto,” “hereunder,”
and others of similar import refer to the Agreement as a whole and not to any
particular section, subsection or clause contained in this Agreement.  The singular of a term shall include the
plural and the plural shall include the singular.  The terms “includes” and “including” are not
limiting.


12.           Entire
Agreement.


The LOI and this Agreement embodies the
entire agreement between the parties hereto relating to the subject matter
hereof and supersedes any prior understandings or written or oral agreements
between the parties concerning the Property. 
Further, this Agreement cannot be varied, modified, amended, altered or
terminated except by the written agreement of the parties.


13.           Applicability.


The terms and provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective permitted successors and assigns, except as expressly set forth
herein.


14.           Exhibits.


All exhibits and schedules described herein
and attached hereto are fully incorporated into this Agreement by this
reference for all purposes.


 


11

















 


15.           Applicable
Law.


THIS
AGREEMENT SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAW.


16.           Counterparts.


This Agreement may be executed in
counterparts, all such executed counterparts shall constitute the same
agreement, and the signature of any party to any counterpart shall be deemed a
signature to, and may be appended to, any other counterpart.


17.           Facsimile
Signatures.


In order to expedite the transaction
contemplated herein, telecopied signatures may be used in place of original
signatures on this Agreement.  Seller and
Purchaser intend to be bound by the signatures on the telecopied document, and
are aware that the other party will rely on the telecopied signatures, and
hereby waive any defenses to the enforcement of the terms of this Agreement
based upon the form of signature.  If
telecopied signatures are delivered, Seller and Purchaser will each forward
original counterpart signatures to the other promptly after delivery of the
telecopied signatures as set forth herein.


18.           Business
Day.


As used herein, the term “business day” shall mean all days, excluding Saturdays,
Sundays and all days observed by either the State of Texas or the Federal
Government as legal holidays.  In the
event that any date for performance falls on a day other than a business day,
then performance shall be postponed until the next business day.


19.           Strict
Performance.


It is specifically agreed that “time is of
the essence” as to all matters provided for in this Agreement.


20.           Additional
Notices.


(a)           If the Property is situated in a utility or other
statutorily created district providing water, sewer, drainage, or flood control
facilities and services, Chapter 49 of the Texas Water Code requires Seller to
deliver and Purchaser to sign the statutory notice relating to the tax rate,
bonded indebtedness, or standby fee of the district prior to final execution of
this Agreement.


(b)           If the Property is
located outside the limits of a municipality, Seller notifies Purchaser under
Section 5.011, Texas Property Code, that the Property may now or later be
included in the extraterritorial jurisdiction of a municipality and may now or
later be subject to annexation by the municipality.  Each municipality maintains a map that
depicts its boundaries and extraterritorial jurisdiction. To determine if the
Property is located within a municipality’s extraterritorial jurisdiction 


 


12

















 


or is likely to be located within a municipality’s
extraterritorial jurisdiction, contact all municipalities located in the
general proximity of the Property for further information.


21.           Conflict
with LOI.


This Agreement is being entered into pursuant
to and in accordance with the terms and provisions of the LOI.  The LOI shall survive the execution of this
Agreement.  In the event of a direct
conflict between the terms of this Agreement and the terms of the LOI, the LOI
shall control.


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


 


13

















 


IN WITNESS WHEREOF, this Agreement is executed in multiple originals by
Seller and Purchaser.


	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  A-S 45 HWY
  249-BOUDREAUX, L.P., a Texas limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  A-S 45, L.C., a Texas
  limited liability company, its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  /s/
  Steven D. Alvis

  	
   

  
	
   

  	
   

  	
   

  	
  Steven
  D. Alvis

  
	
   

  	
   

  	
   

  	
  Member-Manager

  



 


 


14

















 


IN WITNESS WHEREOF, this Agreement is executed as of the Effective Date
by Purchaser.


	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  MB CYPRESS CYFAIR OUTLOT
  LIMITED PARTNERSHIP, an Illinois limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  MB Cypress
  CyFair Outlot GP, L.L.C., a Delaware limited liability
  company, its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Minto Builders
  (Florida), Inc., a Florida corporation, its sole member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By: 

  	
  /s/

  	
  Valerie Medina

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Valerie Medina

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Assistant Secretary

  	
   

  



 


 


15