Exhibit
10.1(a)


 


Execution
Copy


 


STOCK PURCHASE AND SALE AGREEMENT


 


BETWEEN


 


BCSP IV U.S. INVESTMENTS, L.P.



AS SELLER


 


AND


 


BEHRINGER HARVARD OPERATING  PARTNERSHIP I LP



AS PURCHASER


 


Dated as of August 15, 2007


 

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  1.

  	
  PURCHASE AND
  SALE

  	
  2

  
	
   

  	
  1.1

  	
  Agreement of
  Purchase and Sale

  	
  2

  
	
   

  	
  1.2

  	
  Purchase
  Price

  	
  4

  
	
   

  	
  1.3

  	
  Payment of
  Purchase Price

  	
  4

  
	
   

  	
  1.4

  	
  Deposit

  	
  4

  
	
   

  	
  1.5

  	
  Existing
  Indebtedness

  	
  4

  
	
  2.

  	
  TITLE AND
  SURVEY

  	
  5

  
	
   

  	
  2.1

  	
  Title
  Examination; Commitment for Title Insurance

  	
  5

  
	
   

  	
  2.2

  	
  Surveys

  	
  5

  
	
   

  	
  2.3

  	
  Pre-Closing
  “Gap” Title Defects

  	
  6

  
	
  3.

  	
  DUE
  DILIGENCE

  	
  7

  
	
   

  	
  3.1

  	
  Study Period

  	
  7

  
	
   

  	
  3.2

  	
  Right to
  Terminate

  	
  8

  
	
  4.

  	
  CLOSING

  	
  8

  
	
   

  	
  4.1

  	
  Time and
  Place

  	
  8

  
	
   

  	
  4.2

  	
  Seller’s
  Obligations at Closing

  	
  9

  
	
   

  	
  4.3

  	
  Purchaser’s
  Obligations at Closing

  	
  11

  
	
   

  	
  4.4

  	
  Credits and Prorations

  	
  12

  
	
   

  	
  4.5

  	
  Closing Costs
  and Post Closing Adjustments

  	
  16

  
	
   

  	
  4.6

  	
  Conditions
  Precedent to Obligation of Purchaser

  	
  17

  
	
   

  	
  4.7

  	
  Conditions
  Precedent to Obligation of Seller

  	
  19

  
	
   

  	
  4.8

  	
  Efforts to
  Satisfy Conditions

  	
  20

  
	
  5.

  	
  REPRESENTATIONS,
  WARRANTIES AND COVENANTS OF SELLER

  	
  20

  
	
   

  	
  5.1

  	
  Representations
  and Warranties of Seller concerning Seller

  	
  20

  
	
   

  	
  5.2

  	
  Representations
  and Warranties of Seller concerning the Transferred Companies, the Property
  Managers and Illinois Manager

  	
  21

  
	
   

  	
  5.3

  	
  Representations
  and Warranties Concerning the Property

  	
  29

  
	
   

  	
  5.4

  	
  Knowledge
  Defined

  	
  32

  
	
   

  	
  5.5

  	
  Seller’s
  Indemnity, Survival of Seller’s Representations and Warranties; Maximum
  Liability

  	
  32

  
	
   

  	
  5.6

  	
  Covenants of
  Seller

  	
  35

  
	
   

  	
  5.7

  	
  Tax Matters

  	
  39

  
	
  6.

  	
  REPRESENTATIONS,
  WARRANTIES AND COVENANTS OF PURCHASER

  	
  43

  
	
   

  	
  6.1

  	
  Representations
  and Warranties of Purchaser

  	
  43

  
	
   

  	
  6.2

  	
  Survival of
  Purchaser’s Representations and Warranties

  	
  44

  
	
   

  	
  6.3

  	
  Purchaser’s
  Indemnity; Maximum Liability

  	
  44

  
	
   

  	
  6.4

  	
  Covenants of
  Purchaser

  	
  47

  
	
  7.

  	
  DEFAULT

  	
  48

  
	
   

  	
  7.1

  	
  Default by
  Purchaser

  	
  48

  
	
   

  	
  7.2

  	
  Default by
  Seller

  	
  49

  



 

















 


	
  8.

  	
  RISK OF LOSS

  	
  49

  
	
   

  	
  8.1

  	
  Minor Damage

  	
  49

  
	
   

  	
  8.2

  	
  Major Damage

  	
  49

  
	
   

  	
  8.3

  	
  Definition
  of “Major” Loss or Damage

  	
  50

  
	
   

  	
  8.4

  	
  Uninsured
  Losses

  	
  50

  
	
  9.

  	
  COMMISSIONS

  	
  51

  
	
   

  	
  9.1

  	
  Brokerage
  Commissions

  	
  51

  
	
  10.

  	
  DISCLAIMERS
  AND WAIVERS

  	
  51

  
	
   

  	
  10.1

  	
  No Reliance
  on Documents

  	
  51

  
	
   

  	
  10.2

  	
  DISCLAIMERS
  AND WAIVERS

  	
  51

  
	
   

  	
  10.3

  	
  Effect and
  Survival of Disclaimers

  	
  52

  
	
  11.

  	
  MISCELLANEOUS

  	
  53

  
	
   

  	
  11.1

  	
  Confidentiality

  	
  53

  
	
   

  	
  11.2

  	
  Public
  Disclosure

  	
  54

  
	
   

  	
  11.3

  	
  Discharge of
  Obligations

  	
  54

  
	
   

  	
  11.4

  	
  Assignment

  	
  54

  
	
   

  	
  11.5

  	
  Notices

  	
  54

  
	
   

  	
  11.6

  	
  Modifications

  	
  55

  
	
   

  	
  11.7

  	
  Calculation
  of Time Periods

  	
  56

  
	
   

  	
  11.8

  	
  Successors
  and Assigns

  	
  56

  
	
   

  	
  11.9

  	
  Entire
  Agreement

  	
  56

  
	
   

  	
  11.10

  	
  Further
  Assurances

  	
  56

  
	
   

  	
  11.11

  	
  Counterparts

  	
  56

  
	
   

  	
  11.12

  	
  Severability

  	
  56

  
	
   

  	
  11.13

  	
  Applicable
  Law

  	
  57

  
	
   

  	
  11.14

  	
  No Third
  Party Beneficiary

  	
  57

  
	
   

  	
  11.15

  	
  Captions

  	
  57

  
	
   

  	
  11.16

  	
  Construction

  	
  57

  
	
   

  	
  11.17

  	
  Termination
  of Agreement

  	
  57

  
	
   

  	
  11.18

  	
  Time of the
  Essence

  	
  57

  
	
   

  	
  11.19

  	
  Recordation

  	
  58

  



 


SCHEDULES


 


Schedule I — List of Defined Terms


Schedule 1.1.5 — List of Trade Names


Schedule 1.1.6 — Personal Property


Schedule 1.2 – Purchase Price Allocation


Schedule 4.4.2(ix) — Tenant Improvements and Leasing Commissions


Schedule 4.4.2(x) — Rent Abatement Schedule


Schedule 4.4.2(xiii) – Renovations and Improvements


Schedule 5.1.3 – Consents and Approvals


Schedule 5.2.3(i)(A) – Preferred Shareholders of 10/120 Trust


Schedule 5.2.3(ii)(A) – Preferred Shareholders of BCSP IV Illinois
Trust


Schedule 5.2.3(iii)(A) – Preferred Shareholders of OFP Trust


 

















 


Schedule 5.2.3(iii) – Third-Party Owners of Membership Interests of OFP
Holding


Schedule 5.2.5 — Pending Litigation


Schedule 5.2.6(ii) — Tax Audits


Schedule 5.2.6(xiii) – Classification of Transferred Companies and
Property Managers


Schedule 5.2.7 — Organizational Documents


Schedule 5.2.8 — Existing Indebtedness


Schedule 5.3.1 — List of Operating Agreements


Schedule 5.3.2 — Lease Schedule


Schedule 5.3.3 — Violations


Schedule 5.3.6 — List of Environmental Reports


Schedule 5.3.11 — Tax Appeals


Schedule 5.3.13 - Insurance


Schedule 5.6.10 – Terms of New Lease With Morgan Stanley at One Financial
Place


 


EXHIBITS


 


EXHIBIT A-1 – Legal Description of 200 South Wacker


EXHIBIT A-2 — Legal Description of 10/120 South Riverside


EXHIBIT A-3 — Legal Description of One Financial Place


EXHIBIT 1.4 – Form of Deposit Escrow Agreement


EXHIBIT 4.2.1 –Form of Assignment of Shares


EXHIBIT 4.6.1 – Form of Opinion of Goodwin Procter LLP


EXHIBIT 4.6.5 — Form of Tenant Estoppel


 

















 


STOCK PURCHASE AND SALE AGREEMENT


 


THIS STOCK PURCHASE AND SALE
AGREEMENT (the “Agreement”) is made as of the 15th day of August, 2007
(the “Effective Date”), by and between BCSP IV U.S. Investments, L.P., a
Delaware limited partnership (“Seller”), having an address at c/o Beacon
Capital Partners LLC, 200 State Street, 5th Floor, Boston,
Massachusetts 02109 and Behringer Harvard Operating Partnership I LP, a Texas
limited partnership (“Purchaser”), having an address at 15601 Dallas Parkway,
Suite 600, Addison, Texas 75001. A list of defined terms as well as the
capitalized terms used in Agreement and Section in the Agreement where each such
term is defined is attached to this Agreement as Schedule I.


 


RECITALS:


 


A.            Seller owns one hundred
percent (100%) of the common shares of each of (i) BCSP IV Illinois Properties
Business Trust, a Maryland business trust (“BCSP IV Illinois Trust”), (ii)
10/120 South Riverside Illinois Business Trust, a Maryland business trust (“10/120
Trust”), and (iii) OFP Illinois Business Trust, a Maryland business trust (“OFP
Trust”; and together with BCSP IV Illinois Trust and 10/120 Trust,
collectively, the “Trusts” and each individually, a “Trust”);


 


B.            Seller is the sole member of
BCSP IV Illinois Manager LLC, a Delaware limited liability company (“Illinois
Manager”);


 


C.            BCSP IV Illinois Trust is
(i) the sole member of 200 South Wacker Property LLC, a Delaware limited
liability company (“200 South Wacker LLC”), which owns the real property set
forth on Exhibit A-1 hereto and commonly known as 200 South Wacker,
Chicago, Illinois (“200 South Wacker Property”), and (ii) the sole shareholder
of 200 South Wacker Services, Inc., a Delaware corporation (“200 South Wacker
Services”);


 


D.            10/120 Trust is the sole
member of each of (i) 10/120 South Riverside Fee LLC, a Delaware limited
liability company (“10/120 Ground Lessor”) and the owner and ground lessor of
the real property set forth on Exhibit A-2 hereto and commonly known as
10/120 South Riverside, Chicago, Illinois (“10/120 South Riverside Property”)
and (ii) Illinois South Riverside Property LLC, a Delaware limited liability
company and the ground lessee of the 10/120 South Riverside Property (“10/120
Ground Lessee”);


 


E.             OFP Trust is the sole member
of OFP Equity LLC, a Delaware limited liability company (“OFP Equity”), which
owns 80.877% of the outstanding membership interests of One Financial Place
Holding LLC, a Delaware limited liability company (“OFP Holding”), which owns
100% of (i) OFP Illinois Services LLC, a Delaware limited liability company (“OFP
Services”), and (ii) One Financial Place Property LLC, a Delaware limited
liability company (“OFP LLC”, and together with 200 South Wacker LLC, 10/120
Ground Lessor and 10/120 Ground Lessee are collectively referred to as the “Property
LLCs” and each individually as a “Property LLC”), which owns the real property
set forth on Exhibit A-3 hereto and commonly known as One Financial
Place, 


 


1

















 


Chicago, Illinois (“One
Financial Place “ and together with 200 South Wacker Property and 10/120 South
Riverside Property, collectively the “Transferred Properties” and each individually,
a “Transferred Property”);


 


F.             10/120 Trust is the sole
member of 10/120 South Riverside Illinois Property Manager LLC, a Delaware
limited liability company and the property manager of the 10/120 South
Riverside Property (“10/120 Property Manager”); BCSP IV Illinois Trust is the
sole member of BCSP IV Illinois Property Manager LLC, a Delaware limited
liability company and the property manager of the 200 South Wacker Property (“200
South Wacker Property Manager”); and OFP Trust is the sole member of OFP
Illinois Property Manager LLC, a Delaware limited liability company and the
property manager of One Financial Place (“OFP Property Manager”, and together
with 10/120 Property Manager and 200 South Wacker Property Manager,
collectively the “Property Managers” and each individually, a “Property Manager”);


 


G.            Seller desires to sell to
Purchaser and Purchaser desires to acquire from Seller all of the issued and
outstanding capital stock of the Trusts (collectively, the “Shares”) on the
terms and conditions set forth herein;.


 


H.            One Financial Investors LLC
(“Kimco OFP LLC”) owns the remaining 19.123% of OFP Holding (the “Kimco OFP
Interest”); and


 


I.              Prior to Closing (as herein
defined), Kimco OFP LLC and OFP Equity are entering into a Purchase and Sale Agreement
(the “Kimco Purchase Agreement”), pursuant to which OFP Equity would purchase
the Kimco OFP Interest from Kimco OFP LLC (the “Kimco OFP Purchase Transaction”).
As a means of financing the Kimco OFP Purchase Transaction, Seller will make a
loan to OFP Trust (the “OFP Trust Loan”), which will contribute the proceeds of
such loan to OFP Equity, which will use such contribution to purchase the Kimco
OFP Interest from Kimco OFP LLC, the result of which being that OFP Equity
would own 100% of the outstanding membership interests of OFP Holding. At
Closing, Seller shall apply a portion of the Purchase Price (as hereinafter
defined) in full satisfaction of the OFP Trust Loan.


 


1.             PURCHASE AND SALE


 


1.1           Agreement
of Purchase and Sale. Subject to the terms and conditions hereinafter set
forth, including Section 5.6.8 regarding redemption of the preferred shares of
each of the Trusts, Seller agrees to sell, assign, transfer, convey and deliver
and Purchaser agrees to purchase, acquire and accept from Seller all of the
Shares. By conveying the Shares, Seller intends to convey indirectly all of its
right, title and interest in each of the Property LLCs in and to:


 


1.1.1     Those
certain parcels of land more fully described in Exhibit A-1, Exhibit
A-2 and Exhibit A-3 attached hereto (collectively, the “Land”) and
all tenements, hereditaments and privileges appurtenant thereto, including, but
not limited to, any estate, right, title, interest, property, claim and demand
in and to all streets, alleys, rights-of-way, sidewalks, strips, gores,
easements and utility lines or agreements 


 


2

















 


and air rights, development rights, water or
mineral rights in connection with the Land (collectively, the “Appurtenances”);


 


1.1.2     All
buildings, structures, improvements and fixtures erected or located on the Land
(the “Improvements”) and all plans, specifications and architectural and other
drawings, including but not limited to CAD drawings (the “Plans”) related to
the Improvements to the extent in the possession or control of Seller as of the
date of this Agreement;


 


1.1.3     The
Leases to which any one of the Property LLCs are a party;


 


1.1.4     All
licenses, permits, certificates and approvals issued by any public or private
authority for the construction, use, occupancy and operation of the Land,
Appurtenances, and Improvements in each case, only to the extent the same may
be transferred (collectively, the “Permits”);


 


1.1.5     All
intangible assets related to the Land, Appurtenances, Improvements and Personal
Property, if any, including, without limitation, any and all contract rights,
(including any surviving rights under the purchase agreement and any related
agreement through which each of the Property LLCs acquired the property)
warranties and guaranties, marketing materials, logos, and the non-exclusive
right to all trade names relating to the Land, Improvements and Personal
Property, including, without limitation, the trade names, if any, set forth on Schedule
1.1.5, in each case, only to the extent the same may be transferred;
provided, however, that any service marks, trademarks or other intellectual
property rights relating to the foregoing and containing references to “Beacon
Capital,” “BCSP” or any derivation thereof are specifically excluded
(collectively the “Intangible Property”);


 


1.1.6     All
personal property listed in Schedule 1.1.6 attached hereto and all
additional personal property owned by each of the Property LLCs and used or to
be used in connection with Land and the Improvements (collectively, the “Personal
Property”);


 


1.1.7     To
the extent necessary to own, operate and/or conduct the Trusts, the Property
LLCs, OFP Equity, OFP Holdings, 200 South Wacker Services and OFP Services
(collectively, the “Transferred Companies”) and their respective businesses,
all non-privileged documentation of Seller, not considered proprietary (e.g.
appraisals, internal valuations, and leasing and other operational strategies),
related to the Transferred Companies and the Property, including but not
limited to minute books, Organizational Documents, books of account, financial
and accounting records, files and other data and documentation, except to the
extent required by applicable law to be retained by Seller (and in such case
copies are to be made available to Purchaser) and exclusive of any
documentation relating to the evaluation of the disposition of the Shares or
Property (the “Transferred Documentation”); and


 


1.1.8     All
Operating Agreements not terminated in accordance with the provisions of Section
4.2.4 (the “Transferred Contracts”).


 


3

















 


The items set forth in Section 1.1.1 through
Section 1.1.8 above are, collectively, the “Property” and as each of the items
set forth in Section 1.1.1 through Section 1.1.8 above shall be found on, or
relate to, an individual Transferred Property, the “Individual Property”.


 


1.2           Purchase
Price. Purchaser agrees to pay Seller for the Shares the aggregate sum of EIGHT
HUNDRED THIRTY-TWO MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS
($832,500,000.00), subject to the adjustments and prorations set forth herein
(the “Purchase Price”), a portion of which will be paid by virtue of the
continuation of the Existing Indebtedness (hereinafter defined) after Closing.
The Purchase Price shall be allocated as set forth on Schedule 1.2. In
the event that the net effect of the adjustments and prorations requires Seller
to make a payment to Purchaser, such payment shall be treated as a reduction in
the Purchase Price paid for the Shares. In the event that the net effect of the
adjustments and prorations requires Purchaser to make a payment to Seller, such
payment shall be treated as an increase in the Purchase Price paid for the
Shares.


 


1.3           Payment
of Purchase Price. The Purchase Price, as increased or decreased by prorations
and adjustments as herein provided and net of the Existing Indebtedness
outstanding at Closing, shall be payable in full at Closing (hereinafter
defined) in cash by wire transfer of immediately available federal funds to a
bank account designated by Seller in writing to Purchaser prior to the Closing.


 


1.4           Deposit.
Concurrently with Purchaser’s execution and delivery of this Agreement,
Purchaser has deposited with LandAmerica National Commercial Services (the “Escrow
Agent”), having its office at 10 S. LaSalle Street, Suite 2500, Chicago, IL
60603, Attention: Larry Vaughan, telephone: (312) 553-6914, email:
LVaughan@landam.com:  (i) a letter of
credit, in form and substance, and issued by a financial institution reasonably
acceptable to Seller and payable to the Escrow Agent (an “Acceptable Letter of
Credit”) or (ii) immediately available funds, in each case, in the amount of
Thirty-Five Million Dollars ($35,000,000.00) (the “Earnest Money”). The Escrow
Agent shall hold an Acceptable Letter of Credit or the Earnest Money and all
interest earned thereon (collectively, the “Deposit”) in accordance with the
terms and conditions of this Agreement and an escrow agreement substantially in
the form of Exhibit 1.4 attached hereto (the “Escrow Agreement”) entered
into simultaneously with the execution of this Agreement. Any interest earned
on the Earnest Money shall be reported as income of the Purchaser.


 


1.5           Existing
Indebtedness. As more fully set forth on Schedule 5.2.8, each Individual
Property is subject to certain existing indebtedness, which is secured by,
inter alia, first mortgages or deeds of trust on such Individual Property (the “Existing
Indebtedness”). Beginning promptly after the Effective Date, Seller and Purchaser
shall take all actions reasonably necessary to obtain the consent of the
holders of all of the Existing Indebtedness (collectively, the “Lenders”) to
the transactions contemplated by this Agreement without causing an acceleration
of the Existing Indebtedness and on substantially the same economic terms and
conditions of the documents evidencing or securing the Existing Indebtedness
(collectively, the “Consent”) and to obtain a release 


 


4

















 


from the Lenders for all matters arising or accruing from and after the
Closing under all existing guaranties and indemnities from Seller and its
Affiliates related to the Existing Indebtedness (collectively, the “Seller
Guaranties”), such release to be in a form reasonably acceptable to Seller
(collectively, the “Seller Release”). As used herein, an “Affiliate” of a
person is an entity controlling, controlled by, under common control with such
person. Purchaser acknowledges and agrees that (a) in order to obtain the
Seller Release, Purchaser may be required to provide guaranties and indemnities
substantially similar in form and content to the Seller Guaranties from
entities with creditworthiness acceptable to the Lenders (collectively, the “Replacement
Guaranties”) and Purchaser agrees, at its sole cost and expense, to provide
such Replacement Guaranties, and (b) in order to obtain the Consent, Purchaser
may be required to provide the Lenders with opinions, assignments, and other
documents and agreements similar to those provided by Seller, its Affiliates
and the Transferred Companies in connection with the origination and servicing
of the Existing Indebtedness or otherwise appropriate for the transactions
contemplated by the Consent (collectively, the “Substitute Loan Documents”) and
Purchaser agrees, at its sole cost and expense, to provide the Substitute Loan
Documents. The Consent, the Seller Release, the Replacement Guaranties, the
Substitute Loan Documents and any other documents reasonably required by the
Lenders in connection with the Consent which are customary in transactions
similar to the Consent are sometimes collectively referred to herein as, the “Consent
Documentation.”  The Consent
Documentation shall be reasonably acceptable to Seller and Purchaser. Seller
and Purchaser shall cooperate in good faith and shall use reasonable efforts to
assist in obtaining each Consent; provided, however, that each party shall bear
its own out-of-pocket expenses in connection therewith and any fees, deposits,
penalties, premiums, costs or expenses charged by the Lenders or for which the
Lenders seek reimbursement including those of servicers and rating agencies
(collectively, the “Consent Fees”) in connection with the Consent and/or the
Consent Documentation shall be allocated as follows:  (i) Purchaser shall pay the first Two Million
Dollars ($2,000,000.00) of the Consent Fees and (ii) any Consent Fees remaining
after such payment by Purchaser shall be divided equally by Seller and Purchaser
and paid by the parties accordingly.


 


2.             TITLE AND SURVEY


 


2.1           Title
Examination; Commitment for Title Insurance.


 


Prior to the date of this Agreement, Purchaser has
obtained from the Escrow Agent or an affiliate thereof (in such capacity, the “Title
Company”), an ALTA title insurance commitment dated July 13, 2007
(collectively, the “Title Commitment”) covering each Individual Property and a
copy of each document referenced in the Title Commitment as an exception to
title to each Individual Property. Prior to the date of this Agreement, the
Seller has provided Purchaser a copy of the existing title insurance policies
for each Individual Property.


 


2.2           Surveys.
Prior to the date of this Agreement,  Seller has
delivered to Purchaser copies of the existing surveys for each Individual
Property (collectively, the “Existing Surveys”). Prior to the date of this
Agreement, Purchaser has ordered from a surveyor or surveying firm, licensed by
the State of Illinois, an ALTA survey of each Individual Property
(collectively, the “Surveys”) reflecting the total area of each 


 


5

















 


Individual Property, the location of all improvements, recorded
easements and encroachments, if any, located thereon and other matters of
record with respect thereto. Purchaser shall cause the surveyor to deliver a
copy of each of the Surveys, and any revisions thereto, to Seller and the Title
Company simultaneously with the delivery to Purchaser, which Surveys shall be
certified to Seller, Purchaser and the Title Company.


 


2.3           Pre-Closing
“Gap” Title Defects. Purchaser may, at or prior to Closing, notify Seller in
writing of any (a) objections to title first arising between the effective date
of Purchaser’s Title Commitment referred to above and the date on which the
transaction contemplated herein is scheduled to close or (b) objections to
survey matters first arising between the date of Existing Surveys and the date
on which the transaction contemplated herein is scheduled to close. With
respect to any objections to title or survey matters set forth in such notice,
Seller and the Applicable Trust shall have the right, but not the obligation,
to cure such objections, provided that Seller or the Applicable Trust, shall be
obligated to satisfy or discharge any Seller Encumbrance with respect to the
applicable Individual Property, other than Existing Indebtedness. Within ten
(10) days after receipt of Purchaser’s notice of objections, Seller shall
notify Purchaser in writing whether Seller or the Applicable Trust elects to
attempt to cure such objections. If Seller or the Applicable Trust elects to
attempt to cure an item contained in a notice of objection from Purchaser or is
obligated to cure a Seller Encumbrance, Seller or the Applicable Trust shall
have until the date of Closing to attempt to remove, satisfy or cure the same,
and for this purpose Seller shall be entitled to a reasonable adjournment of
the Closing if additional time is required, but in no event shall the
adjournment exceed fifteen (15) Business Days after the date for Closing set
forth in Section 4.1 hereof; provided, however, that Seller shall give not less
than five (5) Business Days prior written notice to Purchaser that Seller
elects to extend the date of Closing in accordance with the terms of this
sentence. If Seller or the Applicable Trust elects to attempt to cure an item
contained in a notice of objection from Purchaser, then Seller or the
Applicable Trust, as the case may be, shall use reasonable efforts to cure such
item. If Seller and the Applicable Trust elect not to cure any objections
specified in Purchaser’s notice (other than with respect to a Seller
Encumbrance), or if Seller and the Applicable Trust are unable to effect a cure
prior to the Closing (or any date to which the Closing has been adjourned)
(other than with respect to a Seller Encumbrance), Purchaser shall have the
following options:  (i) to acquire the
Shares, in which case Purchaser agrees that the Property shall be subject to
any matter objected to by Purchaser which Seller is unwilling or unable to
cure, without reduction of the Purchase Price; or (ii) to terminate this
Agreement by sending written notice thereof to Seller, and upon delivery of
such notice of termination, this Agreement shall terminate and the Deposit
shall be returned to Purchaser, and thereafter neither party hereto shall have
any further rights, obligations or liabilities hereunder except to the extent
that any right, obligation or liability set forth herein expressly survives
termination of this Agreement.


 


For the purposes of this Agreement, a “Seller
Encumbrance” shall mean:  (i) a mortgage or deed of trust granted or
voluntarily assumed by one of the Property LLCs (other than the Existing
Indebtedness), (ii) real estate taxes for the Property which are due and
payable and delinquent as of Closing or (iii) a judgment lien or a
mechanics or suppliers lien on the Property as a result of a judgment against
or for work performed for or 


 


6

















 


material supplied to Seller, the Transferred
Companies, Illinois Manager, or the Property Managers prior to Closing, and not
through any action or inaction of Purchaser or any tenant of the Property
(references to tenant of the Property shall include a reference to subtenants
of 10/120 Ground Lessee, in its capacity as a sublandlord) or any other person
or entity. For the purposes of this Agreement, Seller and the Applicable Trust
shall be deemed to have cured a Seller Encumbrance by causing the Title Company
to insure over the underlying lien or by bonding over the lien in accordance
with legal requirements in effect in the jurisdiction where the Individual
Property is located in a manner to be approved by Purchaser, such approval not
to be unreasonably withheld, sufficient to allow the Title Company to issue the
Title Policy required under Section 4.5 below.


 


3.             DUE DILIGENCE


 


3.1           Study
Period.


 


Purchaser shall have until 5:00 p.m. Dallas, Texas
time on August 14, 2007 (the “Study Period”) to perform a feasibility study of
the Transferred Companies, the Shares and the Property, at Purchaser’s sole
cost and expense, including, but not limited to, review and approval of the
physical and environmental characteristics and condition of the Property and
performance of marketing and feasibility studies, structural and engineering
investigations, tax returns, auditing of books and records of the Property,
financial analyses and verification of existing zoning. Seller agrees to
provide Purchaser and its agents and representatives, upon at least twenty-four
(24) hours advance written notice, reasonable access to the Property during
normal business hours, subject to the rights of tenants, and to all books,
records, files, financial data, leases and contracts relating to the Property
(except financial projections, budgets, appraisals, and similar proprietary,
confidential or privileged documents, reports and records and internally
prepared memoranda and reports) and to reasonably cooperate in such
examinations and to cause the property manager to reasonably cooperate in such
examinations following the Effective Date for the purpose of performing, at
Purchaser’s sole cost and expense, the above-referenced studies, physical
inspections, investigations and tests on the Property (collectively, the “Tests”),
provided that no such tests shall be conducted without (i) at least one (1)
business day prior written notice to Seller and (ii) if any such Tests are
invasive, Seller’s prior written approval of such Tests in its sole discretion.
Notwithstanding anything herein to the contrary, Purchaser shall not need
Seller’s consent to conduct non-invasive and Phase I environmental studies.
Purchaser shall be required to conduct such Tests in a manner as to not
unreasonably disturb or interfere with the current use of the Property. Upon
completion of such Tests, Purchaser agrees at its sole cost to promptly restore
the Property to the condition it was in immediately prior to such Tests,
including, but not limited to, the prompt removal of anything placed on the
Property in connection with such Tests. Purchaser shall have the right to
interview tenants; provided, however, Seller shall have the right to have a
representative of Seller present at all times while Purchaser is meeting with
any tenant. Prior to Purchaser’s entering the Property to conduct the
inspections and tests described above, Purchaser shall obtain and maintain (and
shall deliver to Seller evidence thereof), at Purchaser’s sole cost and
expense, general liability insurance, from an insurer reasonably acceptable 


 


7

















 


to Seller, in the amount of at least Two Million and
No/100 Dollars ($2,000,000.00) combined single limit for personal injury and
property damage per representation, occurrence, such policies to name Seller as
an additional insured party, which insurance shall provide coverage against any
claim for personal liability or property damage caused by Purchaser or its
agents, representatives, employees or contractors in connection with such
inspections and tests. Purchaser shall indemnify, defend (with counsel
reasonably satisfactory to Seller), protect, and hold Seller and the
Transferred Companies and their respective agents, servants, attorneys,
officers, partners, shareholders, consultants, contractors, directors, tenants,
members, representatives and employees (collectively, the “Owner Parties”)
harmless from and against any and all liability, loss, cost, expense, claim,
damage, or expense (including, without limitation, mechanic’s and materialmen’s
liens and reasonable attorney’s fees and costs) of any kind or nature
whatsoever which any of the Owner Parties may sustain or incur by reason of or
in connection with any Tests made by Purchaser, or any of its employees,
consultants, engineers, agents, representatives or contractors (collectively,
the “Purchaser’s Designees”) relating to or in connection with the Property, or
entries by any of Purchaser’s Designees onto the Property or during the conduct
of any of the feasibility studies whether such Tests, entries or studies were
made before or after the date of this Agreement. Notwithstanding any provision
to the contrary in this Agreement, the indemnity obligations of Purchaser under
this Agreement shall survive any termination of this Agreement or the Closing.


 


3.2           Right
to Terminate.


 


If for any or no reason whatsoever Purchaser
determines in its sole and absolute discretion that the Shares, the Transferred
Companies or the Property or any aspect thereof is unsuitable, Purchaser shall
have the right to terminate this Agreement by giving written notice thereof to
Seller prior to the expiration of the Study Period, and if Purchaser gives such
notice of termination within the Study Period, this Agreement shall terminate.
If this Agreement is terminated pursuant to the foregoing provisions of this
section, then neither party shall have any further rights or obligations
hereunder (except for any obligations of either party pursuant to the other
provisions of this Agreement which survive a termination), the Deposit shall be
returned to Purchaser, and each party shall bear its own costs incurred
hereunder. If Purchaser fails to give Seller a notice of termination prior to
the expiration of the Study Period, Purchaser shall be deemed to have approved
all aspects of the Property and the Transferred Companies and to have elected
to proceed with the transactions contemplated hereby pursuant to the terms
hereof.


 


4.             CLOSING


 


4.1           Time
and Place. The consummation of the transaction contemplated hereby (“Closing”)
shall be held at the offices of the Escrow Agent or such other location as the
parties shall mutually agree, on or before 2:00 p.m. Dallas, Texas time, on
October 4, 2007, as such date may be extended pursuant to the terms of this
Agreement (the “Closing Date”). Any wires of the Purchase Price shall be
initiated by Purchaser no later than 10:00 a.m. Dallas, Texas time on the
Closing Date. At Closing, (a) Seller and Purchaser shall perform the
obligations set forth in Section 4.2 and Section 4.3 hereof, respectively, the
performance of which obligations shall be concurrent conditions, and 


 


8

















 


(b) the Purchase Price, as adjusted in accordance with the terms of
this Agreement, shall be paid to Seller through the Escrow Agent. Nothing in
this Section 4.1 shall preclude a closing through the customary closing escrow
procedures approved by Seller and Purchaser. Purchaser shall have the right to
extend the Closing Date once for up to an additional thirty (30) days upon
delivery of a written notice to Seller on or before three (3) Business Days
prior to the Closing Date (the “Extension Notice”). Except as provided below,
an additional deposit in the amount of Ten Million Dollars ($10,000,000.00)
(the “Second Additional Deposit”) shall be delivered to the Escrow Agent within
one (1) Business Day of the date of Purchaser’s Extension Notice if Purchaser
elects to extend Closing as provided herein, by federal wire transfer of
immediately available funds, to be held in escrow by Escrow Agent pursuant to
the terms of the Escrow Agreement. Once deposited with the Escrow Agent, the
Second Additional Deposit shall be deemed part of the Earnest Money, for an
aggregate Deposit of Forty-Five Million Dollars ($45,000,000.00).
Notwithstanding anything to the contrary herein, Purchaser or Seller shall have
the right to extend the Closing Date once for up to an additional one hundred
twenty (120) days, without requiring Purchaser’s payment of the Second
Additional Deposit, upon delivery of a written notice to the non-requesting
party on or before three (3) Business Days prior to the Closing Date for the
sole purpose of obtaining the Consent (the “Consent Extension”). Seller and
Purchaser hereby acknowledge that Seller shall have no obligation to obtain
updated Estoppels resulting from the extension of the Closing Date pursuant to
the Consent Extension. Closing shall take place not more than ten (10) business
days after receipt of the Consent if the Consent is obtained during the Consent
Extension.


 


4.2           Seller’s
Obligations at Closing. At Closing, Seller shall:


 


4.2.1     Transfer
of Shares. Transfer all, but not less than all Shares to Purchaser by
delivering to Purchaser evidence reasonably satisfactory to Purchaser of the
transfer to Purchaser of ownership of such Shares on the books and records of
the Trusts, together with an assignment of shares (the “Transfer Document”)
substantially in the form of Exhibit 4.2.1 attached hereto.


 


4.2.2     Redemption
of Preferred Shares. Cause the redemption of all shares in each of the
Trusts held by the preferred shareholders of each of the Trusts in accordance
with Section 5.6.8.


 


4.2.3     Resignations
of Trustees and Officers. Deliver to Purchaser written resignations of all
of the trustees and officers of each of the Transferred Companies, such
resignations to be in form and substance acceptable to Purchaser in its sole
discretion.


 


4.2.4     Termination
of Operating Agreements and Management Agreements. Deliver, or cause to be
delivered, to Purchaser evidence satisfactory to Purchaser of the termination
of the Operating Agreements for which Purchaser has delivered notice to Seller,
not less than five (5) days prior to Closing and in any event not prior to the
date of this Agreement electing to terminate such specified Operating Agreements;
provided, such Operating Agreements can be terminated prior to Closing 


 


9

















 


without penalty or premium. If any such
Operating Agreement cannot be terminated without penalty or premium prior to
Closing, then such Operating Agreement shall continue in full force and effect
following Closing as obligations of the Property LLCs. In addition, Seller
shall cause the Applicable Trust to terminate, at Closing, any property
management and leasing agreements affecting the Property. Notwithstanding the
foregoing, any Operating Agreement with an affiliate of Seller shall be
terminated effective as of Closing unless otherwise elected by Purchaser.


 


4.2.5     Bringdown
Certificate. Deliver to Purchaser a certificate, dated as of the date of
Closing and executed on behalf of Seller by a duly authorized officer or agent
thereof, stating that the representations and warranties of Seller contained in
this Agreement are true and correct in all material respects as of the date of Closing
or identifying any representation or warranty which is not, or no longer is,
true and correct and explaining the state of facts giving rise to the change.
In no event shall Seller be liable to Purchaser for, or be deemed to be in
default hereunder by reason of, or shall Purchaser have the right to terminate
this Agreement on account of, any representation or warranty no longer being
true as a result of any change that occurs between the Effective Date and the
date of Closing that is beyond the reasonable control of Seller to prevent and
does not result from a breach by Seller of its covenants under this Agreement,
excepting therefrom the representations set forth in Sections 5.1 (excepting
therefrom Section 5.1.4), 5.2.1, 5.2.2, 5.2.3, 5.2.6 (excepting therefrom
Section 5.2.6(iii) and 5.2.6(iv)), 5.2.7, 5.2.8, 5.2.9, and 5.2.10. If despite
changes or other matters described in such certificate, the Closing occurs,
Seller’s representations and warranties set forth in this Agreement shall be
deemed to have been modified by all statements made in such certificate and the
conditions set forth in Section 4.6.2 hereof shall be deemed satisfied.


 


4.2.6     Evidence
of Authority. Deliver to Purchaser copies of the authorizing resolutions of
Seller with respect to the transactions contemplated by this Agreement, which
resolutions shall be acceptable to Purchaser.


 


4.2.7     FIRPTA.
Deliver to Purchaser an affidavit duly executed by Seller stating that Seller
is not a foreign person for purposes of Sections 897 or 1445 of the Code;


 


4.2.8     Delivery
of Records. Deliver to Purchaser the Leases, Operating Agreements which
will not be terminated as provided in this Agreement, Plans and Permits, if
any, in the possession of Seller, together with such leasing and property files
and records which are material in connection with the continued operation,
leasing and maintenance of the Property, provided that the leasing and property
files shall remain at the Individual Property and be deemed delivered at
Closing. In addition, Seller shall deliver copies of the Organizational
Documents to Purchaser, either at the Closing, or at such other location as is
reasonably acceptable to Purchaser and Seller.


 


4.2.9     Closing
Statement. Execute and deliver a counterpart original of the Closing Statement;


 


10

















 


4.2.10   Consent
Documentation. Execute and deliver or cause to be executed and delivered
the Consent Documentation to be executed by Seller or its Affiliates;


 


4.2.11   Dissolution
of Illinois Manager and Property Managers. Seller shall execute, deliver
and file, as necessary, any and all documents necessary to evidence the
dissolution of Illinois Manager and the Property Managers, such dissolutions,
in each case, occurring at or before the Closing;


 


4.2.12   Resignation
of Property Managers and Illinois Manager. Execute, deliver and file, as
necessary, any and all documents necessary to evidence the resignation of
Illinois Manager as manager of each of OFP LLC, 200 South Wacker LLC, 10/120
Ground Lessor and 10/120 Ground Lessee and the resignation of each of the
Property Managers as property manager of the Individual Property;


 


4.2.13   Title
Matters. Deliver to the Title Company, to the extent Illinois law provides
for statutory liens by property managers for services in connection with
off-record contracts, lien waivers from any property manager acting on behalf
of the Property LLCs;


 


4.2.14   Insurance.
Cause to be terminated all insurance coverage under the Liability Policies
(defined herein) applicable to the Transferred Companies, the Property Managers
and the Property; and


 


4.2.15   Other.
Deliver such additional documents as shall be reasonably required to consummate
the transaction as expressly contemplated by this Agreement; including, without
limitation and to the extent assignable, all indemnities, if any, for the
benefit of the Property LLCs, including, but not limited to, those contained in
any document related to the purchase of the Property by each of the Property
LLCs and such reasonable evidence that any indirect or direct right, title or
interest of the Property LLCs in any security deposits and other items for
which Seller has received a credit are the indirect property of Purchaser from
and after Closing pursuant to its purchase of the Shares. In addition, Seller
shall cause each of the Property LLCs to deliver a customary owner’s affidavit
as to parties in possession and mechanics’ and suppliers’ liens reasonably
requested by the Title Company.


 


4.3           Purchaser’s
Obligations at Closing. At Closing (or as otherwise noted in this Section 4.3),
Purchaser shall:


 


4.3.1     Acceptance
of Shares. Accept Seller’s transfer of all, but not less than all, Shares
pursuant to Section 4.2.1;


 


4.3.2     Delivery
of Purchase Price. Pay to Seller the full amount of the Purchase Price, as
increased or decreased by prorations and adjustments as herein provided, less
any cash portion of the Deposit that will be applied towards the Purchase Price
at Closing and net of the Existing Indebtedness outstanding as of the Closing,
in immediately available wire transferred funds pursuant to Section 1.3 hereof;


 


11

















 


4.3.3     Countersigned
Documents. Join Seller or cause Purchaser’s Affiliates to join in execution
and delivery of the instruments described in Sections 4.2, 4.2.10 and 4.2.11,
as applicable;


 


4.3.4     Evidence
of Authority. Deliver to Seller copies of the authorizing resolutions of
Purchaser with respect to the transactions contemplated by this Agreement,
which resolutions shall be reasonably acceptable to Seller;


 


4.3.5     Tenant
Notification Letters. Deliver signed statements to each tenant at the
Property, notifying tenant of revised instructions for payment of its rent and,
if required by applicable law, acknowledging receipt and responsibility for
each tenant’s security deposit at Closing. The provisions of this paragraph
shall survive Closing;


 


4.3.6     Other.
Deliver such additional documents as shall be reasonably required to consummate
the transactions contemplated by this Agreement.


 


4.4           Credits
and Prorations.


 


4.4.1     The
following shall be apportioned with respect to the Property as of 12:01 a.m.,
on the day of Closing, as if Purchaser were vested with title to the Property
during the entire day upon which Closing occurs:


 


(i)            rents and
other income from the Property, if any, as and when collected (the term “rents”
as used in this Agreement includes all payments due and payable to the Property
LLCs by tenants under the Leases whether or not designated as rent); provided,
however that there shall be no double counting of rents with respect to rents
paid to and by 10/120 Ground Lessee;


 


(ii)           real property
taxes (including personal property taxes on the Personal Property) and
assessments levied against the Property or the Transferred Companies, provided,
however, that if any assessments are paid in installments, then only the
installments for the period that includes the Closing Date shall be prorated,
and installments for any period after the Closing shall be the obligation of
Purchaser pursuant to its indirect ownership of the Property LLCs;


 


(iii)         payments under
the Operating Agreements and the interest payments under the Existing
Indebtedness;


 


(iv)          gas, electricity
and other utility charges for which Seller is liable, if any, such charges to
be apportioned at Closing on the basis of the most recent meter reading
occurring prior to Closing and the most recent bills for such utility charges;
and


 


(v)           any other
operating expenses or other items pertaining to the Property which are customarily
prorated between a purchaser and a seller of office buildings in the area in
which the Property is located.


 


12

















 


4.4.2     Notwithstanding
anything contained in the foregoing Section 4.4.1 hereof:


 


(i)            (A) security
deposits under any Leases held by the Property LLCs (not applied against
delinquent rents or otherwise as provided in the Leases subject to Purchaser’s
right to consent to such application in accordance with Section 5.6.1 hereof)
shall not be prorated at Closing and shall remain in the possession and control
of the Property LLCs after Closing or shall be delivered to Purchaser, and (B)
Purchaser shall credit to the account of Seller at Closing all refundable cash
or other deposits posted with utility companies serving the Property.


 


(ii)           Any property
taxes and assessments paid at or prior to Closing shall be prorated as follows:
(i) property taxes and assessments on the Property assessed for the 2006
calendar year, all of which are payable in the 2007 calendar year, shall be
prorated as of Closing based upon the amounts actually paid or payable by the
Property LLCs in 2007; and (ii) property taxes and assessments on the Property
assessed for the 2007 calendar year, all of which are payable in the 2008
calendar year, will be the responsibility of Purchaser and such taxes and
assessments shall not be prorated at Closing. Seller shall not be responsible
for any increase in the assessed value of the Property after Closing, such
increased valuation and resulting increase in the taxes actually due being the
sole responsibility of Purchaser. Any income tax refunds that are received by
the Trusts or the Property LLCs, and any amounts credited against income tax to
which the Trusts or the Property LLCs become entitled, that relate to income
tax periods or portions thereof ending on or before the date of the Closing
shall be for the account of Seller, and Purchaser shall pay over to Seller any
such refund or the amount of any such credit within 15 days after receipt or
entitlement thereto.


 


(iii)         Charges referred
to in this Section 4.4 which are payable by any tenant to a third party, if
any, shall not be apportioned hereunder, and Purchaser shall accept the Shares
notwithstanding that the Trusts or their subsidiaries have liability for any
such unpaid charges and Purchaser and its subsidiaries shall look solely to the
tenant responsible therefore for the payment of the same. If Seller or the
Trusts or their subsidiaries  shall have
paid any of such charges on behalf of any tenant, and shall not have been
reimbursed therefore by the time of Closing, Purchaser shall credit to Seller
an amount equal to all such charges so paid by Seller. Seller shall retain all
amounts received prior to Closing from any tenant with respect to property
taxes and assessments, but Seller shall credit to Purchaser at Closing an
amount equal to any such payments which are attributable to the period from and
after Closing consistent with the method set forth in Section 4.4.2(ii).


 


(iv)          Seller shall
receive the entire advantage of any discounts for the prepayment of any taxes,
water rates or sewer rents.


 


13

















 


(v)           As to gas,
electricity and other utility charges referred to in Section 4.4.1(iv) above,
Seller may on notice to Purchaser elect to pay one or more of all of said items
accrued to the date hereinabove fixed for apportionment directly to the person
or entity entitled thereto, and to the extent Seller so elects, such item shall
not be apportioned hereunder, and Seller’s obligation to pay such item directly
in such case shall survive the Closing.


 


(vi)          The Personal
Property is included in this sale, without further charge. Seller shall pay any
and all sales or similar taxes payable in connection with the Personal Property
and Seller shall execute and deliver any tax returns required of it in
connection therewith, said obligations of Seller to survive Closing.


 


(vii)         Unpaid and
delinquent rent as of the Closing shall not be prorated, but if and when
collected by Seller or Purchaser (or the Property LLCs) after Closing shall be
delivered as follows:  (a) if Seller
collects any unpaid or delinquent rent for the Property, Seller shall, within
fifteen (15) days after the receipt thereof, deliver to Purchaser any such rent
which Purchaser is entitled to hereunder relating to the date of Closing and
any period thereafter, and (b) if Purchaser or the Trusts, or their
subsidiaries collect any unpaid or delinquent rent from the Property, Purchaser
shall, within fifteen (15) days after the receipt thereof, deliver to Seller
any such rent which Seller or the Trusts or their subsidiaries are entitled to
hereunder relating to the period prior to the date of Closing. Seller and
Purchaser agree that (y) all rent received by any party within the first thirty
(30) day period after the date of Closing shall be applied first to delinquent
rents owed with respect to pre-Closing periods, then to rents due in the month
of Closing, and then to delinquent rents owed with respect to post-Closing
periods, and (z) all rent received by any party after the first thirty (30) day
period after the date of Closing shall be applied first to current rentals,
then to delinquent rents owed with respect to post-Closing periods and then to
delinquent rents owed with respect to pre-Closing periods, in inverse order of
maturity. Purchaser will use commercially reasonable efforts after Closing to
collect (or cause to be collected) all rents as promptly as practicable in the
usual course of the operation of the Property, provided that Purchaser shall
have no obligation to file suit or expend any material sums to collect any
delinquent rents owed with respect pre-Closing Periods. Purchaser (or the
Property LLCs) shall hold all landlord’s liens, if any, in their entirety to
enforce the payment of any delinquent rentals and Seller shall be deemed to
have transferred all of its right title and interest in such landlord’s liens,
if any.


 


(viii)       At Seller’s
option:  (x) all cash in bank accounts or
on hand owned by any of the Transferred Companies or Property Managers; (y) all
insurance refunds relating to insurance concerning the Property (which
insurance shall not be continued by Seller beyond Closing, except as provided
in Article 8 hereof) and (z) all other prepaid items which are capable of being
refunded (whether prior to, upon or after Closing) on cancellation of an
Operating Agreement shall be either:  (a)
distributed to Seller immediately prior to the 


 


14

















 


Closing and
shall be excluded from the sale contemplated by this Agreement or (b) credited
to Seller at Closing, except as provided above with respect to any tenant
security made by a tenant under the Leases.


 


(ix)          An amount equal
to (i) certain obligations of the Property LLCs to pay for tenant improvements
in connection with the Leases executed prior to the Effective Date (but
excluding amendments or extension and renewal options and other tenant rights
under those Lease entered into or exercised after the Effective Date), (ii)
certain leasing commissions in connection with the Leases (but excluding
amendments or extension and renewal options and other tenant rights under those
Lease entered into or exercised after the Effective Date), and (iii) unpaid
leasing commissions, tenant improvement allowances and other tenant concessions
set forth in the Morgan Stanley Lease (as hereinafter defined) as more
particularly set forth on Schedule 4.4.2(ix) attached hereto, shall be
credited to Purchaser at Closing. Purchaser may escrow such funds for the
purposes of paying for the obligations under the Leases, including using such
funds to apply against rent as specified in the Leases. Seller and Purchaser
agree to update Schedule 4.4.2(ix) at Closing.


 


(x)           An amount equal
to the free rent under the Leases, as more particularly set forth on Schedule
4.4.2(x), shall be credited to Purchaser at Closing. Such amount shall be
adjusted depending upon the Closing Date in the manner set forth on Schedule
4.4.2(x).


 


(xi)          An amount equal
to all of the funds (excluding any letters of credit held by the Lenders that
will be released to Seller in connection with the Closing) of any of the
Transferred Companies currently held by the Lenders in connection with the
Existing Indebtedness, including, without limitation, impound, reserve and
escrow funds, shall be credited to Seller at Closing.


 


(xii)        An amount equal to
$114,980.00 shall be credited to Purchaser at Closing, which represents fifty
percent (50%) of the lease termination payment payable to Seller that has
already been received by Seller from Rolfe & Nolan in connection with the
termination of its lease.


 


(xiii)       An amount equal to
$11,503,625.30 shall be credited to Purchaser at Closing, which represents the
unpaid amounts and expenses for certain renovations and improvements to the
Property, as more particularly set forth on Schedule 4.4.2(xiii). Such
amount shall be adjusted upon the Closing Date based on the unpaid amounts and
expenses for such renovations and improvements as of the Closing Date.


 


4.4.3     Seller
shall use reasonable efforts to provide Purchaser an initial draft of the
Closing Statement at least five (5) Business Days prior to Closing, which, once
agreed to, shall be the “Closing Statement.”


 


4.4.4     The
provisions of this Section 4.4 shall survive Closing.


 


15

















 


4.5           Closing Costs and Post
Closing Adjustments.


 


4.5.1     Closing Costs. Seller
shall pay for the cost of preparing the Transfer Document, for all matters
relating to the clearing of title which Seller elects or is required to cure,
the fees and costs associated with the assignment of all transferable
warranties, one-half of any Escrow Agent’s fee which may be charged by the
Escrow Agent or Title Company and the fees of any counsel representing it in
connection with this transaction. Seller shall pay all title examination fees
of Title Company and for the cost of the premium for the standard coverage
portion of the coverage owner’s policies of title insurance to be issued to
Purchaser by the Title Company at Closing (collectively, the “Title Policy”),
without endorsements and the costs of the Surveys. Purchaser shall pay (u) the
fees of any counsel representing Purchaser in connection with this transaction;
(v) the premium for any endorsements requested by Purchaser to the Title
Policy; (w) one-half of any Escrow Agent’s fee; and (x) the costs of the
Surveys. In connection with the transfer of the Shares, Purchaser shall be
responsible for paying City of Chicago transfer taxes, if any, and Seller shall
be responsible for paying county and state transfer taxes, if any. All other
costs and expenses incident to this transaction and the closing thereof shall
be paid by the party incurring the same. The provisions of this Section 4.5
shall survive Closing.


 


4.5.2     Post
Closing Adjustments. Seller has completed its reconciliation for charges
paid in calendar year 2006 for percentage rents, escalation charges for real
estate taxes, insurance, parking charges, marketing fund charges, operating
expenses, maintenance escalation rents or charges, cost-of-living increases or
other charges of a similar nature (“Additional Rents”) charged to tenants under
the Leases. Seller agrees to directly reimburse the applicable tenant  (as opposed to credit future rent) for the
amounts of Additional Rent calculated by Seller as being due to such tenant for
the calendar year 2006. With respect to any Additional Rent (including
Additional Rent collected by landlord (references to a landlord of a Property
shall include a reference to 10/120 Ground Lessee in its capacity as a
sublandlord) for the period from January 1, 2007 through Closing) which is not
finally adjusted between the landlord and any tenant under any Lease until
after the Closing Date, then Purchaser shall submit to Seller, within thirty
(30) days after the Additional Rents have been finally adjusted between
landlord and the tenants, a supplemental statement covering any such Additional
Rents or any other items which have been finally adjusted between the landlord
and such tenants, containing a calculation of the adjustments of such
Additional Rents. In the event Seller or the landlord is obligated to reimburse
a tenant for Additional Rent for calendar year 2006 in an amount in excess of
the amount paid by Seller as described above or with respect to Additional Rent
paid during the period from January 1, 2007 through Closing, then Seller shall
reimburse Purchaser for such amount within thirty (30) days after receipt of
the supplemental statement. If Purchaser or the landlord recovers any
Additional Rent from any tenant attributable to calendar year 2006 or the
period from January 1, 2007 through Closing, then Purchaser shall pay such
amount to Seller within thirty (30) days of collecting such payments. With
respect to each item of Additional Rent, each party shall make available to the
other party during regular business hours the records relating to such items
for inspection or audit by such party or its representatives.


 


16

















 


4.6           Conditions
Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate
the transaction hereunder shall be subject to the fulfillment on or before the
date of Closing of all of the following conditions. If the following conditions
are not satisfied on or before the date of Closing, subject to any extension
right contained herein, then Purchaser may either:  (i) elect to terminate this Agreement by written
notice to Seller, in which event the Deposit shall be returned to Purchaser and
parties hereto shall have no further obligations hereunder, except for those
which by their terms survive the termination of this Agreement, (ii) pursue its
remedies provided for in Article 7 hereof or (iii) waive any of the following
conditions without adjustment to the Purchase Price:


 


4.6.1     Purchaser
shall have received the opinion of Goodwin Procter LLP dated as of the Closing
Date, together with copies of any supporting representation letters delivered
in connection with such opinion in a form reasonably satisfactory to Purchaser
and Seller, regarding each of the Trusts’ organization and operation in
conformity with the requirements for qualification and taxation as a real
estate investment trust pursuant to Section 856-857 of the Code (“REIT”) at all
times beginning on the date of each Trust’s formation through December 31, 2006
and for the period from January 1, 2007 until the Closing. Such opinion shall
be substantially in the form attached hereto as Exhibit 4.6.1, which
such opinion shall be based on customary assumptions and representations
(including an assumption that for purposes of the opinion each Trust’s taxable
year ended with the Closing, and an assumption that each Trust satisfied the
distribution requirement described in Code Section 857(a)(1) for the
hypothetical short taxable year beginning January 1, 2007 and ending with the
Closing), and shall be subject to such changes or modifications from the
language in such form opinion as deemed necessary or appropriate by Goodwin
Procter LLP and reasonably satisfactory to Purchaser;


 


4.6.2     Seller
shall have delivered to Purchaser all of the items required to be delivered to
Purchaser pursuant to the terms of this Agreement, including but not limited to,
those provided for in Section 4.2 hereof;


 


4.6.3     Subject
to Section 4.2.5, all of the representations and warranties of Seller contained
in this Agreement shall be true and correct in all material respects as of the
date of Closing, provided that in the event Seller is unable to state that the
representations and warranties of Seller are true and correct in all material
respects as of the date of Closing, with such materiality to be judged across
the Property as a whole, Seller shall have the right to cure the condition
preventing Seller from making such statement, and the Closing Date shall be
extended for a period of up to fifteen (15) days to allow Seller to cure such
condition;


 


4.6.4     Seller
shall have performed and observed, in all material respects, with such
materiality to be judged across the Property as a whole, all covenants and
agreements of this Agreement to be performed and observed by Seller as of the
date of Closing; and


 


17

















 


4.6.5     Purchaser’s
receipt at least five (5) business days prior to the Closing (the “Estoppel
Return Date”) of estoppel certificates substantially in the form of Exhibit
4.6.5, with such additional information or modifications reasonably
approved by Purchaser, or in such form as required to conform to any specific
requirements in the applicable Lease (i) from (a) each tenant leasing
40,000 or more rentable square feet of floor area in the Improvements (a “Major
Tenant”) and (b) tenants under Leases representing seventy-five percent (75%)
of the rentable square feet of floor area of each Individual Property),
including Major Tenants but excluding rentable square feet of floor area not
currently subject to any Lease, (ii) which confirm the documents
constituting the Lease of each such tenant, and (iii) which do not
(x) allege the existence of any default by Seller or any unperformed
obligation by Seller, (y) recite any material fact which contradicts the
Lease Schedule, or (z) disclose the existence of any delinquent fixed
rent, additional rent or other material charges payable by the relevant tenant,
in each case which is not disclosed in the Lease Schedule.


 


(i)            Promptly
following the date of this Agreement, Seller shall request estoppel
certificates from all tenants under the Leases in the form attached hereto as Exhibit 4.6.5 or in the form
specified in the applicable Lease and Seller shall use commercially reasonable
efforts to obtain estoppel certificates from all such tenants.


 


(ii)           If
Purchaser receives any tenant estoppel certificate, it shall promptly provide a
copy thereof to Seller, and if Seller obtains any tenant estoppel certificate,
it shall promptly provide a copy thereof to Purchaser. Any tenant estoppel
certificates which do not comply with the provisions set forth in the first
sentence of this Section 4.6.5 shall be subject to Purchaser’s approval in its
reasonable discretion. Unless Purchaser objects to any such estoppel
certificate and terminates this Agreement as a result thereof within five (5)
Business Days of receipt of such estoppel certificate, Purchaser shall be
deemed to have approved such estoppel certificate and shall purchase the
Property subject to all matters set forth in such estoppel certificate. If
Purchaser has not received acceptable tenant estoppel certificates from tenants
representing 75% of the rentable square footage of each Individual Property,
excluding rentable square footage not then subject to any Lease, by the
Estoppel Return Date, then Seller may provide estoppel certificates executed by
Seller meeting the requirements of the first sentence of this Section 4.6 for
tenants leasing up to 10% of the rentable square footage other than Major
Tenants, and such Seller estoppel certificates shall be deemed to be
acceptable, with liability under any such Seller estoppel certificate to
terminate upon subsequent receipt of a tenant estoppel certificate confirming
the same subject matter; provided, however, that such tenant estoppel shall be
deemed to confirm the same subject matter notwithstanding that certifications
regarding no default, no offset and the like are limited to the knowledge of
the tenant. If Purchaser has not received acceptable (or deemed acceptable)
tenant estoppel certificates as provided herein on or before the Closing Date,
then Purchaser at its sole option may (i) waive the tenant estoppel condition 


 


18

















 


and proceed to
closing, (ii) extend the Closing Date for a period of up to fourteen (14) days
to allow the Seller more time to obtain additional estoppel certificates, or
(iii) terminate this Agreement by giving written notice thereof to Seller, with
a copy to Escrow Agent, by 5:00 P.M. on the Closing Date, whereupon this
Agreement shall automatically terminate and the Deposit shall be returned to
Purchaser, and Seller and Purchaser shall have no further obligations or
liabilities to each other under this Agreement except as otherwise provided
herein. If Purchaser elects to extend the Closing Date pursuant to clause (ii)
of the preceding sentence and Purchaser still has not received acceptable (or
deemed acceptable) tenant estoppel certificates as provided herein on or before
the expiration of the fourteen (14) day extension period, then Purchaser may
elect one of the options set forth in clauses (i) and (iii) of the preceding
sentence.


 


4.6.6     The
Lenders shall have issued the Consent, subject to Purchaser having executed and
delivered the Consent Documentation as required by Section 4.3.3.


 


4.6.7     The
Kimco OFP Purchase Transaction shall close prior to or concurrently with the
Closing.


 


4.6.8     The
redemption of the preferred shares in each Trust as required by Section 5.6.8
shall have occurred prior to or concurrently with Closing.


 


4.7           Conditions
Precedent to Obligation of Seller.


 


The obligation of Seller to
consummate the transaction hereunder shall be subject to the fulfillment on or
before the date of Closing of all of the following conditions. If the following
conditions are not satisfied on or before the date of Closing, subject to any extension
right contained herein, then Seller may either: 
(i) elect to terminate this Agreement by written notice to Purchaser, in
which event the Deposit shall be returned to Purchaser and parties hereto shall
have no further obligations hereunder, except for those which by their terms
survive the termination of this Agreement, (ii) pursue its remedies provided
for in Article 7 hereof or (iii) waive any of the following conditions without
adjustment to the Purchase Price:


 


4.7.1     The
Kimco OFP Purchase Transaction shall close prior to or concurrently with the
Closing.


 


4.7.2     Seller
shall have received the Purchase Price as adjusted, pursuant to, and payable in
the manner provided for, in this Agreement.


 


4.7.3     Purchaser
shall have delivered to Seller all of the items required to be delivered to
Seller pursuant to the terms of this Agreement, including, but not limited to,
those provided for in Section 4.3 hereof.


 


4.7.4     All
of the representations and warranties of Purchaser contained in this Agreement
shall be true and correct in all material respects as of the date of Closing.


 


19

















 


4.7.5     Purchaser
shall have performed and observed, in all material respects, all covenants and
agreements of this Agreement to be performed and observed by Purchaser as of
the date of Closing.


 


4.7.6     The
Lenders shall have issued the Consent and executed and delivered the Seller
Release, subject to Seller having complied with Section 4.2.9.


 


4.8           Efforts to Satisfy Conditions. Each of Seller and
Purchaser shall use all reasonable efforts to satisfy any conditions precedent
to Closing set forth in this Agreement and within their reasonable control.


 


5.             REPRESENTATIONS,
WARRANTIES AND COVENANTS OF SELLER


 


5.1           Representations
and Warranties of Seller concerning Seller. 
Seller represents and warrants to Purchaser as to itself that the
statements contained in this Section 5.1 are correct and complete as of the
Effective Date and will be correct and complete as of the date of Closing:


 


5.1.1     Organization.
Seller is duly organized, validly existing and in good standing under the laws
of the State of Delaware.


 


5.1.2     Authority.
Seller has all requisite authority and power to execute and deliver this
Agreement, to sell the Shares in accordance with and subject to the terms and
conditions of this Agreement, and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized or
will be prior to Closing duly and validly authorized by all requisite action by
Seller, subject to the provisions of Section 11.6 hereof. This Agreement has
been duly and validly executed and delivered by Seller, and, assuming this
Agreement has been duly authorized, executed and delivered by Purchaser,
constitutes the valid and binding agreement of Seller.


 


5.1.3     Consents
and Approvals. Except for the requirement of the Consent and as set forth
on Schedule 5.1.3, neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated hereby, will violate any
statute, regulation, rule, injunction, judgment, order, decree, ruling, charge
or other restriction of any government, governmental agency or court to which
Seller is subject, nor will it conflict with any of the organizational
documents of Seller or breach any agreement to which Seller is bound or result
in the creation or imposition of any Lien upon or the with respect to any of
the assets of the Transferred Companies. Except for the requirement of the
Consent and as set forth on Schedule 5.1.3, consents, authorizations or
notices from or to any third party that are required for Seller to execute and
deliver this Agreement and to consummate the transactions contemplated under
this Agreement have been received.


 


5.1.4     No
Litigation. There is no action, suit, arbitration, unsatisfied order or
judgment, governmental investigation or proceeding pending against Seller, 


 


20

















 


which, if adversely determined, could
individually or in the aggregate in any material way interfere with the
consummation by Seller of the transaction contemplated by this Agreement.


 


5.1.5     Ownership
of Shares. Seller holds the legal and beneficial ownership of the Shares,
free and clear of any restrictions on transfer (other than restrictions under
federal and state securities laws), taxes, security interests, options,
warrants, purchase rights, liens, claims, encumbrances or contracts. Seller is
not a party to any voting trust, proxy or other agreement or understanding with
respect to voting of any capital stock of the Trusts that will survive Closing.


 


5.1.6     FIRPTA.
Seller is not a foreign person for purposes of Sections 897 or 1445 of the
Code. Purchaser will have no federal income tax withholding obligation, and
hereby agrees that it shall not make any federal income tax withholdings, with
respect to the payment of the Purchase Price to Seller.


 


5.1.7     Terrorist Organizations Lists.
Seller is not acting, directly or indirectly, for or on behalf of any person or
entity named by the United States Treasury Department as a Specifically
Designated National and Blocked Person, or for or on behalf of any person
designated in Executive Order 13224 as a person who commits, threatens to
commit, or supports terrorism. Seller is not engaged in the transaction
contemplated by this Agreement directly or indirectly on behalf of, or
facilitating such transaction directly or indirectly on behalf of, any such
person or entity.


 


5.1.8     No
Bankruptcy. No petition in bankruptcy (voluntary or otherwise), assignment
for the benefit of creditors, or petition seeking reorganization or arrangement
or other action under federal or state bankruptcy laws has been filed or
commenced or is pending or contemplated against Seller.


 


5.2           Representations
and Warranties of Seller concerning the Transferred Companies, the Property
Managers and Illinois Manager.


 


Seller represents and warrants to Purchaser that the
statements contained in this Section 5.2 are correct and complete as of the
Effective Date and will be correct and complete as of the date of Closing:


 


5.2.1     Organization
and Authority.


 


(i)            Each of the
Trusts is a business trust duly organized, validly existing and in good
standing under the laws of the State of Maryland with full corporate power and
authority to carry on its business as now being and heretofore conducted.


 


(ii)           Each of the
Property LLCs is a limited liability company duly organized, validly existing
and in good standing under the laws of the State of Delaware with full power
and authority to carry on its business as now being and heretofore conducted.
Each of the Property LLCs is qualified to do business in the State of Illinois.


 


21

















 


(iii)         Each of the
Property Managers is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware with full
power and authority to carry on its business as now being and heretofore
conducted. Each of the Property Manager is qualified to do business in the
State of Illinois.


 


(iv)          Illinois Manager
is a limited liability company duly organized, validly existing and in good
standing under the laws of the State of Delaware with full power and authority
to carry on its business as now being and heretofore conducted. Illinois
Manager is qualified to do business in the State of Illinois.


 


(v)           Each of OFP
Equity, OFP Holdings and OFP Services is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Delaware with full power and authority to carry on its business as now being
and heretofore conducted.


 


(vi)          200 South Wacker
Services is corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware with full corporate power and authority
to carry on its business as now being and heretofore conducted.


 


5.2.2     Consents
and Approvals. Except for the requirement of the Consent and as set forth
on Schedule 5.1.3, neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated hereby, will violate any
statute, regulation, rule, injunction, judgment, order, decree, ruling, charge
or other restriction of any government, governmental agency or court to which
the Transferred Companies, the Property Managers or Illinois Manager are
subject, nor will it conflict with any of the organizational documents of the
Transferred Companies, the Property Managers or Illinois Manager or breach any
agreement to which any of the Transferred Companies, the Property Managers or
Illinois Manager is bound or result in the creation or imposition of any Lien
upon or with respect to any of the assets of the Transferred Companies, the
Property Managers or Illinois Manager. Except as set forth on Schedule 5.1.3,
all consents, authorizations or notices from or to any third party that are
required in order to consummate the transactions contemplated under this
Agreement have been received.


 


5.2.3     Capitalization
and Ownership.


 


(i)            10/120
Trust.


 


(A)          The authorized
capital stock of 10/120 Trust consists of 1200 shares, $.01 par value of which
1000 are classified as common shares and 200 are classified as preferred
shares. Of the 200 preferred shares of 10/120 Trust, 140 are classified as
Series A Preferred Shares. As of the Closing Date, and following the
redemption of the preferred shares, the Shares issued by 10/120 Trust will
represent all of the 


 


22

















 


issued and
outstanding capital stock of 10/120 Trust. The Shares issued by 10/120 Trust
have been duly authorized and validly issued and are fully paid. Since the
organization of 10/120 Trust, Seller and the holders of the outstanding preferred
shares identified on Schedule 5.2.3(i)(A) have been and currently are
the only shareholders of 10/120 Trust.


 


(B)          10/120 Trust is
the sole member of each of 10/120 Ground Lessor, 10/120 Ground Lessee and
10/120 Property Manager.


 


(C)          There are no
outstanding or authorized options, warrants, purchase rights, subscription
rights or other commitments that could require 10/120 Trust, 10/120 Ground
Lessor, 10/120 Ground Lessee, Illinois Manager or 10/120 Property Manager to
issue, sell or otherwise cause to become outstanding any additional capital
stock of 10/120 Trust or membership interests in 10/120 Ground Lessor, 10/120
Ground Lessee or 10/120 Property Manager that will be effective at Closing.


 


(D)          Except as
provided in clause (B) of this Section 5.2.3(i), none of 10/120 Trust, 10/120
Ground Lessor, 10/120 Ground Lessee and 10/120 Property Manager own or have any
contract to acquire any equity interests or other securities of any entity or
any direct or indirect equity or ownership interest in any other business.


 


(ii)           BCSP IV
Illinois Trust.


 


(A)          The authorized
capital stock of the BCSP IV Illinois Trust consists of 1200 shares, $.01 par
value of which 1000 are classified as common shares and 200 are classified as
preferred shares. Of the 200 preferred shares of BCSP IV Illinois Trust, 125
are classified as Series A Preferred Shares. As of the Closing Date, and
following the redemption of the preferred shares, the Shares issued by BCSP IV
Illinois Trust will represent all of the issued and outstanding capital stock
of BCSP IV Illinois Trust. The Shares have been duly authorized and validly
issued and are fully paid. Since the organization of BCSP IV Illinois Trust,
Seller and the holders of the outstanding preferred shares identified on Schedule
5.2.3(ii)(A) have been and currently are the only shareholders of BCSP IV
Illinois Trust.


 


(B)          BCSP IV Illinois
Trust is the sole member of each of 200 South Wacker LLC and 200 South Wacker
Property Manager.


 


(C)          BCSP IV Illinois
Trust is the sole shareholder of 200 South Wacker Services.


 


(D)          There are no
outstanding or authorized options, warrants, purchase rights, subscription
rights or other commitments that could require the BCSP IV Illinois Trust, 200
South Wacker Services, 200 South Wacker LLC, 200 South Wacker Property Manager
or Illinois 


 


23

















 


Manger to
issue, sell or otherwise cause to become outstanding any additional capital
stock of BCSP IV Illinois Trust or 200 South Wacker Services or membership interests
in 200 South Wacker LLC or 200 South Wacker Property Manager that will be
effective at Closing.


 


(E)          Except as
provided in clauses (B) and (C) of this Section 5.2.3(ii), neither BCSP IV
Illinois Trust nor 200 South Wacker LLC, 200 South Wacker Services and 200
South Wacker Property Manager  own or
have any contract to acquire any equity interests or other securities of any
entity or any direct or indirect equity or ownership interest in any other
business.


 


(iii)         OFP Trust.


 


(A)          The authorized
capital stock of the OFP Trust consists of 1200 shares, $.01 par value of which
1000 are classified as common shares and 200 are classified as preferred
shares. Of the 200 preferred shares of OFP Trust, 125 are classified as
Series A Preferred Shares. As of the Closing Date, and following the
redemption of the preferred shares, the Shares issued by OFP Trust will
represent all of the issued and outstanding capital stock of OFP Trust. The
Shares issued by OFP Trust have been duly authorized and validly issued and are
fully paid. Since the organization of OFP Trust, Seller and the holders of the
outstanding preferred shares identified on Schedule 5.2.3(iii)(A) have
been and currently are the only shareholders of OFP Trust.


 


(B)          The OFP Trust is
the sole member of each of OFP Equity and OFP Property Manager.


 


(C)          OFP Equity is
the owner of 80.877% of the membership interests of OFP Holding. The remainder
of the membership interests of OFP Holding are owned by such third parties as
are set forth on Schedule 5.2.3(iii) hereto.


 


(D)          OFP Holding is
the sole member of each of OFP LLC and OFP Services.


 


(E)          Except as set
forth on Schedule 5.2.3(iii), there are no outstanding or authorized
options, warrants, purchase rights, subscription rights or other commitments
that could require OFP Trust, OFP Equity, OFP Holding, OFP Property Manager,
OFP LLC or OFP Services to issue, sell or otherwise cause to become outstanding
any additional capital stock of the OFP Trust or membership interests in OFP
Equity, OFP Holding, OFP Property Manager, OFP LLC or OFP Services that will be
effective at Closing.


 


(F)          Except as
provided in clauses (B), (C) and (D) of this Section 5.2.3(iii) and as set
forth on Schedule 5.2.3(iii), none of OFP 


 


24

















 


Trust, OFP
Equity, OFP Holding, OFP Services, OFP Property Manager  and OFP LLC own or have any contract to
acquire any equity interests or other securities of any entity or any direct or
indirect equity or ownership interest in any other business.


 


5.2.4     Financial
Statements. Seller has previously delivered to Purchaser unaudited
financial statements consisting of the balance sheets and operating statements
for each of the Trusts and the Property LLCs for (i) the year ending December
31, 2006, and (ii) the first calendar quarter of 2007 (collectively, the “Financial
Statements”). Seller shall deliver to Purchaser unaudited financial statements
consisting of the balance sheets and operating statements for each of the
Trusts and the Property LLCs for the second calendar quarter of 2007 promptly
after those statements become available to Seller, but no later than August 31,
2007, and upon delivery those statements shall be deemed to be part of the
Financial Statements. The Financial Statements have been prepared from the
books and records of the Trusts and the Property LLCs. The Financial Statements
have been prepared in accordance with GAAP, consistently applied and present
fairly in all material respects the financial condition of the Trusts and the
Property LLCs as of the dates set forth therein. Neither the Trusts nor the
Property LLCs have any liabilities or obligations of any nature (whether known
or unknown and whether absolute, accrued, contingent, or otherwise but
excluding therefrom liabilities or obligations based upon or arising out of:
(i) environmental matters (other than claims for bodily injury or personal
injury but not property damage), including, without limitation, any obligation
to remediate any Hazardous Substances; (ii) the physical condition of the
Property, including, without limitation, patent and latent defects, title and
zoning matters, governmental approvals, valuation, and compliance of the
Property with laws, other than claims for bodily injury or personal injury or
property damage; (iii) any obligations contained in the documents evidencing
the Existing Indebtedness, or (iv) tax matters, except in each case to the
extent of a breach of an express representation and warranty or covenant of the
Seller in this Agreement), except for liabilities or obligations reflected or
reserved against in the most recent balance sheet of the Trusts and the
Property LLCs, as applicable, or which would not reasonably be expected to have
a material adverse effect on the Trusts and the Property LLCs, taken as a whole
or the value of the Property, delivered to Purchaser as part of the Financial
Statements and current liabilities incurred in the ordinary course of business
since the date thereof. Since the date of the most recent balance sheets of
each of the Trusts and the Property LLCs delivered to Purchaser, there has not
been any material adverse change in the business, operations, properties,
assets, or the financial condition of the Trusts and the Property LLCs, taken
as a whole, and, to Seller’s knowledge, no event has occurred or circumstance
exists that would reasonably be expected to result in such a material adverse
change.


 


5.2.5     No
Litigation. Except as set forth on Schedule 5.2.5, other than
landlord-tenant suits and judgment against tenants, in each case for defaults
by tenants under the Leases for which the defendants have not made a
counterclaim, there is no action, suit, arbitration, unsatisfied order or
judgment, governmental investigation or proceeding pending or, to the Seller’s
knowledge, threatened in writing, against the Property, the Transferred
Companies or the Property Managers or the transactions contemplated by this
Agreement.


 


25

















 


5.2.6     Tax
Representations. Each of the Transferred Companies and the Property
Managers have paid all Taxes required to be paid by them as of the date hereof.


 


(i)            Each of the
Trusts qualified as a REIT under Sections 856 through 860 of the Code at all
times beginning on the date of each Trust’s formation through December 31,
2006. But for the redemption of the preferred shares in accordance with Section
5.6.8, each Trust will be owned and operated until the Closing in a manner that
will permit it to qualify as a REIT for its taxable year beginning January 1,
2007. If each Trust’s taxable year beginning on January 1, 2007 was treated as
ending with the Closing, each Trust would satisfy the requirements of Code
Section 856(c) for such taxable year ending with the Closing.


 


(ii)           Each of the
Transferred Companies and the Property Managers timely filed all federal and
state income Tax Returns and, to Seller’s knowledge, all other material Tax
Returns that they were required to file. All taxes shown on such Tax Returns as
being owed by each of the Transferred Companies and the Property Managers have
been paid or will be paid. There are no pending or, to the best of Seller’s
knowledge, threatened claims by any governmental authority in any jurisdiction,
including but not limited to any jurisdiction where the Transferred Companies
or the Property Managers do not file tax returns that the Transferred Companies
or the Property Managers are or may be subject to taxation by that
jurisdiction. Except as shown on Schedule 5.2.6(ii), Seller has not
received notice of any audits of such Tax Returns. None of the Transferred
Companies or the Property Managers have been given or requested any waivers or
extensions (or is or would be subject to a waiver or extension given by any
other Person) of any statute of limitations relating to the payment of Taxes or
the filing of any Tax Returns. The charges, accruals, and reserves with respect
to Taxes on the respective books of the Transferred Companies or the Property
Managers are adequate and are at least equal to the liability of the Transferred
Companies and the Property Managers for Taxes. There exists no proposed tax
assessment against the Transferred Companies or the Property Managers except as
disclosed in the most recent balance sheets of each of the Transferred
Companies and the Property Managers delivered to Purchaser. All Taxes that the
Transferred Companies and the Property Managers were required by Legal
Requirements to withhold or collect have been duly withheld or collected and,
to the extent required, have been paid to the proper Governmental Body or other
Person. All Tax Returns filed by the Transferred Companies and the Property
Managers are true, correct, and complete in all material respects.


 


(iii)         No dispute or
claim concerning any liability for taxes of the Transferred Companies or the
Property Managers has either been claimed or raised by any governmental
authority in writing.


 


(iv)          None of the
Transferred Companies or the Property Managers is a party to a tax allocation
or sharing agreement. None of the


 


26
















 


Transferred Companies or the Property Managers is entitled to any
adjustment under Section 481 of the Code.


 


(v)           None of the
Trusts has made any election under Notice 88-19, 1988-1 C.B. 486, or Treasury
Regulation Section 1.337 (d)-5, Section 1.337(d)-6 or Section 1.337(d)-7 and
the Trusts would not be subject to any tax on the net built in gain
attributable to any property held by the Transferred Parties or the Property
Managers under rules similar to Section 1374 of the Code and the regulations
thereunder or the regulations under Section 337 of the Code if such property
were sold as of the Closing Date.


 


(vi)          At Closing, none
of the Transferred Companies or the Property Managers shall own any interest in
another entity, including without limitation any interest in a corporation,
partnership, trust or limited liability company, other than interests in other
Transferred Companies or Property Managers.


 


(vii)         Seller has or
will within three (3) Business Days of the Effective Date make available to
Purchaser correct and complete copies of all Tax Returns filed by the
Transferred Companies and the Property Managers since the date of formation of
such companies, as applicable.


 


(viii)       The beneficial
ownership of each of the Trusts have been and will be held by more than 100
persons at all times during the current taxable year of each Trust beginning on
January 1, 2007 until the redemption of each Trust’s preferred shares pursuant
to Section 5.6.8.


 


(ix)          If each Trust’s
taxable year beginning on January 1, 2007 ended with the Closing, no more than
3% of the gross income for each Trust for such period would be derived from the
sources not described in Code Section 856(c)(2) of the Code.


 


(x)           No Trust has
ever been involved in a merger, consolidation, liquidation or reorganization
with any other entity. No Trust has C Corporation earnings and profits.


 


(xi)          At all times
since the formation of each of the Trusts, more than 50% of the beneficial
interests in each of the Trusts have been owned indirectly (through Seller) by
a Maryland corporation that has intended to qualify as a REIT.


 


(xii)        If the Trust’s
taxable year beginning January 1, 2007 ended with the Closing, the Trust would
not satisfy the adjusted gross income requirements of Code Section 542(a) for
such hypothetical short year.


 


(xiii)       Schedule
5.2.6(xiii) sets forth a list of each of the Transferred Companies and the
Property Managers, identifying their classification for federal income tax
purposes as of the date hereof.


 


27

















 


5.2.8     Organizational
Documents. Schedule 5.2.7 identifies each document pursuant to which
each of the Transferred Companies, the Property Managers, and Illinois Manager
are each organized and governed (collectively, the “Organizational Documents”).
As of the Effective Date, the Organizational Documents are in full force and
effect, and correct and complete copies of all of the Organizational Documents
have been delivered or will be delivered promptly after the execution and
delivery hereof by Seller to Purchaser. In addition, Seller will deliver, or
cause to be delivered promptly after the execution and delivery hereof, all
minute books and similar records (as applicable) and such correspondence that
may reveal a material liability at the entity level for each of the Transferred
Companies and the Property Managers and Illinois Manager (other than materials
relating to the evaluation of the disposition of the Shares or the Property).
The minute books and stock record books of each of the Transferred Companies,
the Property Managers and Illinois Manager 
made available to Purchaser are complete and correct in all material
respects. The minute books of the each of the Transferred Companies, the
Property Managers and Illinois Manager contain accurate and complete records of
all meetings held of, and corporate or limited liability company action taken
by, the shareholders, members, managers, officers and board of directors, as
applicable, of each of the Transferred Companies, the Property Managers and
Illinois Manager, and, as applicable to the conduct of the business of the
Transferred Companies, the Property Managers and Illinois Manager or the
ownership or operation of the Property, by the officers, board of directors and
committees of the Transferred Companies, the Property Managers and Illinois
Manager, and no meeting of any such shareholders, members, managers, officers
or directors have been held for which minutes have not been prepared and are
not contained in such minute books. There have been no amendments to any of the
Organizational Documents since the date of delivery of such documents to
Purchaser. At the Closing, possession of all of those books and records will be
delivered to Purchaser.


 


5.2.9     Indebtedness.
Schedule 5.2.8 lists each line of credit, loan facility or other
financing and any capital indebtedness of any nature of each of the Transferred
Companies and the Property Managers, whether with banks, financial institutions
or other Persons (the “Existing Indebtedness”). As of the Effective Date and
except as set forth on Schedule 5.2.8, none of the Transferred Companies
nor the Property Managers have any indebtedness outstanding and have not given
any guaranty, indemnity, comfort letter or other assurance of payment or
security of any nature for or otherwise agreed to become directly or
contingently liable for, any obligation of any other Person. True, correct and
complete copies of the documents evidencing the Existing Indebtedness have been
or will be provided to Purchaser.


 


5.2.10   Employees;
Employee Benefit Plans. None of the Transferred Companies nor the Property
Managers have ever maintained, sponsored, participated in, administered or
contributed to any employee benefit arrangement. No individuals have been or
are presently employed full-time or part-time by the Transferred Companies or
the Property Managers.


 


5.2.11   No
Bankruptcy. No petition in bankruptcy (voluntary or otherwise), assignment
for the benefit of creditors, or petition seeking reorganization or 


 


28

















 


arrangement or other action under federal or
state bankruptcy laws has been filed or commenced or is pending or contemplated
against the Transferred Companies or the Property Managers.


 


5.2.12   Compliance
with Laws. Excluding Laws relating to the physical or environmental
condition of the Property, to Seller’s knowledge, each of the Transferred
Companies and the Property Managers are in compliance with all Laws applicable
to it except where any noncompliance would not, in the aggregate, reasonably be
expected to result in a material adverse effect on either the Transferred
Companies or the Property Managers.


 


5.3           Representations
and Warranties Concerning the Property. Seller represents and warrants to
Purchaser that the statements contained in this Section 5.3 are correct and
complete as of the Effective Date:


 


5.3.1     Operating
Agreements and Plans. Except for the agreements listed on Schedule 5.3.1
(the “Operating Agreements”), there are no other material service or supply
contracts, warranties, or agreements related to the use, ownership or operation
of the Property entered into by or, to Seller’s knowledge, on behalf of Seller,
the Transferred Companies, Illinois Manager or the Property Managers, nor are
there any other contracts for which the Transferred Companies, Illinois Manager
or the Property Managers are a party. Seller has made available to Purchaser a
correct and complete copy of all Operating Agreements and Plans and their
respective amendments. To Seller’s knowledge, the Operating Agreements are in
full force and none of the Transferred Companies, the Property Managers or
Illinois Manager, nor any other party to the Operating Agreements, is in
default under the Operating Agreements in any material respect.


 


5.3.2     Leases.
The schedule of leases for the Property attached hereto as Schedule 5.3.2,
(the “Lease Schedule”) reflects (i) all leases, subleases by 10/120 Ground
Lessee, occupancy licenses, and other occupancy agreements or tenancies
affecting the Property and, to the Seller’s knowledge, approved subleases
(collectively, the “Leases”); (ii) all outstanding obligations of each of the
Property LLCs to construct or pay for tenant improvements in connection with
the Leases; (iii) any outstanding leasing commissions in connection with the
Leases; and (iv) all security deposits under the Leases and any application,
including an indication of those security deposits which are in the form of a
letter or letters of credit. Each of the Leases is in full force and effect and
neither the applicable Property LLC nor to Seller’s knowledge the tenant
thereunder is in default under any Lease (beyond any applicable grace or cure
period), and there are no rent delinquencies of more than thirty (30) days.
None of Seller, the Property Managers, Illinois Manager or the Property LLCs
have received written notice from any tenant under the Leases of any
unperformed obligation of the landlord under any of the Leases, including,
without limitation, failure of the landlord to construct any required tenant
improvements. None of Seller, the Property Managers, Illinois Manager or the
Property LLCs have been advised in writing of any claims or disputes giving
rise to any setoff by any tenant under the Leases. To the best of Seller’s
knowledge, with respect to the Leases as of the date hereof, all tenant
improvement allowances have been paid and all 


 


29

















 


tenant improvements have been completed.
There are no brokers’ commissions, finders’ fees, or other charges payable or
to become payable to any third party on behalf of Seller as a result of or in
connection with the Leases, including, without limitation, any unexecuted
options to expand or renew, except as set forth on Schedule 5.3.2. The
copies of the Leases previously delivered by or on behalf of Seller to
Purchaser are true, correct and complete copies of the Leases. The termination
of any Lease prior to Closing by reason of the tenant’s default or the
termination of such Lease shall not affect the obligations of Purchaser under
this Agreement in any manner or entitle Purchaser to an abatement of or credit
against the Purchase Price or give rise to any other claim on the part of
Purchaser. To the extent that any real property held by any Trust is used as a
hotel or other lodging facility, such real property is either (i) leased to a
hotel operator unrelated to such Trust or (ii) leased to a taxable REIT
subsidiary of such Trust at a market rate and operated on behalf of such
taxable REIT subsidiary by an eligible independent contractor, as such terms
are defined in the Code.


 


5.3.3     No
Violations. Except as set forth on Schedule 5.3.3, to Seller’s
knowledge, none of Seller, the Transferred Companies, the Property Managers or
Illinois Manager have received, any written notification from any Governmental
Body or public authority (i) that the Property is in violation of any
applicable fire, health, building, use, occupancy or zoning laws where such
violation remains outstanding and, if unaddressed, would have a cost to remedy
in excess of $5,000 or (ii) that any work is required to be done upon or in
connection with the Property, where such work remains outstanding and, if
unaddressed, would have a cost to complete in excess of $5,000. None of Seller,
the Transferred Companies, the Property Managers or Illinois Manager have
received any notice of actual or threatened cancellation or suspension of any
certificates of occupancy for any portion of the Property.


 


5.3.4     Taxes
and Assessments. Seller has not filed, has not permitted the Transferred
Companies, the Property Managers or Illinois Manager to file, and has not
retained anyone to file, notices of protests against, or to commence action to
review, real property tax assessments against the Property.


 


5.3.5     Condemnation.
To Seller’s knowledge, none of Seller, the Transferred Companies, the Property
Managers or Illinois Manager have received any written notification from any
governmental or public authority regarding condemnation or similar governmental
proceedings relating to the Property that are pending or threatened which could
have a material adverse effect on the Property taken as a whole.


 


5.3.6     Environmental
Matters. Except as set forth in the environmental reports listed in Schedule
5.3.6, copies of which have previously been delivered to Purchaser or as
otherwise disclosed to Purchaser, to Seller’s knowledge, none of Seller, the
Transferred Companies, the Property Managers or Illinois Manager have received
written notification that any governmental or quasi-governmental authority has
determined that there are any violations of environmental statutes, ordinances
or regulations affecting the Property. As used herein, “Hazardous Substances”
means all hazardous or toxic materials, substances, pollutants, contaminants,
or wastes currently identified as a hazardous substance or waste in the
Comprehensive Environmental 


 


30

















 


Response,
Compensation and Liability Act of 1980 (commonly known as “CERCLA”), as amended,
the Superfund Amendments and Reauthorization Act (commonly known as “SARA”),
the Resource Conservation and Recovery Act (commonly known as “RCRA”), or any
other federal, state or local legislation or ordinances applicable to the
Property.


 


5.3.7     Defect
Notices. To Seller’s knowledge, none of Seller, the Transferred Companies,
the Property Managers, or Illinois Manager have received any notice from the
holders of any mortgages presently encumbering the Property, any insurance
company which has issued a policy with respect to the Property or from any
board of fire underwriters claiming any defects or deficiencies in the Property
or suggesting or requesting the performance of any repairs, alterations or
other work to the Property, which have not been cured.


 


5.3.8     Utilities. To Seller’s knowledge, none of Seller, the Transferred
Companies, the Property Managers, or Illinois Manager have received any written
notice of actual or threatened reduction or curtailment of any utility service
currently supplied to the Property.


 


5.3.9     Intentionally
Omitted.


 


5.3.10   Municipal
Improvements. To Seller’s knowledge: (i) all street paving, curbing,
sanitary sewers, storm sewers and other municipal or other governmental
improvements which have been constructed or installed have been paid for and
will not hereafter be assessed; (ii) all assessments heretofore made have been
paid in full; and (iii) there are no private contractual obligations relating
to the installation of or connection to any sanitary sewers or storm sewers or
other municipal improvements.


 


5.3.11   Special
Assessments/Tax Appeals. To Seller’s
knowledge and except as shown on any tax bills delivered to Purchaser and/or in
the Title Commitment, none of Seller, the Transferred Companies, the Property
Managers or Illinois Manager have received any notice of any special assessment
which affects the Property. Except as shown on Schedule 5.3.11, there
are no pending tax appeals with respect to real property taxes or assessments
against the Property.


 


5.3.12   No
Other Purchase Rights. No person, firm or entity, other than Purchaser has
any right to acquire the Shares or any interest in the Property or any part
thereof.


 


5.3.13   Insurance.
The Commercial General Liability Policy and Commercial Umbrella Policies
providing coverage for the benefit of the Trusts or the Property LLCs or with
respect to the Property (collectively, the “Liability Policies”) are set forth
on Schedule 5.3.13 hereof and include the applicable Property LLC as a
Named Insured and each Individual Property is a scheduled location under the
Liability Policies. Each of the Liability Policies expressly provide that
except with respect to the Limits of Insurance (as defined in the Liability
Policies) and any rights or duties 


 


31

















 


assigned in the Coverage Part (as defined in
the Liability Policies) to the first Named Insured, the insurance applies on a
per location basis providing the entire limits of coverage to each individual
location. To Seller’s knowledge, none of Seller, the Transferred Companies, the
Property Managers or Illinois Manager have received (A) any refusal of coverage
or any notice that a defense will be afforded with reservation of rights, or
(B) any notice of cancellation or any other indication that any Liability
Policy is no longer in full force and effect or will not be renewed. All
premiums for the Liability Policies that are due have been paid and the
Transferred Companies and the Property Managers have otherwise performed all of
their respective obligations under the Liability Policies. There is no
deductible under the Commercial General Liability Policy. The Commercial
Umbrella Policies  are subject to a
$10,000 self insured retention.


 


5.4           Knowledge
Defined. References to the “knowledge” or “best knowledge” of Seller or words
of similar import shall refer only to the actual knowledge of the Designated
Employee and shall not be construed, by imputation or otherwise, to refer to
the knowledge of any affiliate of Seller, to any property manager, or to any
other officer, director, agent, manager, representative or employee of Seller
or any affiliate of Seller or to impose upon such Designated Employee any duty
to investigate the matter to which such actual knowledge, or the absence
thereof, pertains. As used herein, the term “Designated Employees” shall refer
to Sara Shank, Seller’s asset manager for the Property, the employee of Seller
with primary responsibility for coordinating the transactions contemplated
herein.


 


5.5           Seller’s
Indemnity, Survival of Seller’s Representations and Warranties; Maximum
Liability.


 


5.5.1     Survival.
The representations and warranties contained in Section 5.3 hereof, as updated
by the certificates of Seller to be delivered in accordance with Section 4.2.5
hereof, and the covenants set forth in this Agreement to be performed by Seller
between the Effective Date and the Closing Date, shall survive Closing for a
period of twelve (12) months (the “Property Representation Expiration Date”).
The representations and warranties of Seller set forth in Sections 5.1 and 5.2
hereof shall survive Closing for a period of twelve (12) months (the “Remaining
Representation Expiration Date”) in each case as updated by the certificate of
Seller to be delivered to Purchaser at Closing in accordance with Section 4.2.5
hereof.


 


5.5.2     Seller’s
Indemnification Obligations. Subject to the other provisions of this
Section 5.5, from and after the Closing until the Property Representation
Expiration Date or the Remaining Representation Expiration Date, as applicable
(which Remaining Representation Expiration Date shall be applicable to any
claims under Sections 5.5.2(iii)), Seller shall indemnify and hold harmless
Purchaser, the Transferred Companies (as the Transferred Companies are
constituted after Closing) and their officers, directors, affiliates, members,
partners, representatives, agents, and any successors or assigns of Purchaser
(the “Purchaser Indemnified Party”) from and against any costs or expenses
(including, without limitation, taxes and reasonable 


 


32

















 


attorneys’ fees), judgments, liabilities,
fines, losses, claims and damages (collectively, “Damages”), as incurred, to
the extent they arise out of or are a result of:


 


(i)            the breach or any
inaccuracy in any of the representations and warranties of Seller contained in
this Agreement;


 


(ii)           any breach or
default by Seller of any covenant or agreement of Seller hereunder;


 


(iii)         third-party claims
against any Purchaser Indemnified Party arising out of events that occur prior
to the Closing and during the period of ownership by Seller of the Trusts and
which purport to be related to any obligation or liability of the Transferred
Companies (as the Transferred Companies are constituted prior to Closing), the
Property Managers or Illinois Manager, including, without limitation,
contractual and tort claims and/or liabilities and the litigation referred to
in Schedule 5.2.5, provided that the foregoing shall not include (and,
except to the extent provided for in Sections 5.5.2(i) and 5.5.2(ii), Seller
shall not be obligated to indemnify the Purchaser Indemnified Party for) claims
based upon or arising out of:  (w)
environmental matters (other than claims for bodily injury or personal injury
based on events prior to Closing, but not property damage), including, without
limitation, any obligation to remediate any Hazardous Substances, or (x) the
physical condition of the Property, including, without limitation, patent and
latent defects, title and zoning matters, governmental approvals, valuation,
and compliance of the Property with laws, other than third-party claims for
bodily injury, personal injury or property damage based on events prior to
Closing; (y) any obligations contained in the documents evidencing the Existing
Indebtedness, or (z) tax matters, except in each case to the extent of a breach
of an express representation and warranty of the Seller in this Agreement.


 


5.5.3     Notice
and Resolution of Claims. No claim for indemnification under Section 5.5.2
shall be actionable or payable (a) to the extent Purchaser received a
proration, adjustment or credit at Closing for such claim; (b) if the claim in
question results from or is based on a condition, state of facts or other
matter which was known to any Purchaser Indemnified Party (other than the
Transferred Companies or the Property Managers as constituted prior to Closing)
prior to or at Closing (it being agreed that any written information delivered
to Purchaser prior to or at Closing is deemed to be known to any Purchaser
Indemnified Party but shall not vary Seller’s representations and warranties
except to the extent provided in Section 4.2.5); (c) if the claim results from
a breach of any representation, warranty or covenant of Purchaser or any
successor to or assignee of Purchaser; (d) unless and until the valid claims
under this Section 5.5 collectively aggregate more than Six Hundred Thousand
Dollars ($600,000.00) (the “Deductible”), in which event, subject to Section
5.5.3, only the amount of such claims over and above the Deductible shall be
actionable; or (e) unless written notice containing a description of the
specific nature of such claim shall have been given by any Purchaser
Indemnified Party to Seller (x) promptly after it has notice of such claim
(provided that the failure to provide such notice shall not affect the
obligations of Seller unless and only 


 


33

















 


to the extent that Seller are actually
prejudiced thereby) and (y) in all events prior to the Property Representation
Expiration Date or the Remaining Representation Expiration Date, as applicable.
The foregoing is not intended to limit any duty of any Purchaser Indemnified
Party to mitigate damages to the extent required under applicable law.


 


In the event that such claim involves a claim by a
third party against the Purchaser Indemnified Party which seeks Damages in an
amount in respect of which indemnification pursuant to this Section 5.5 would
be available, Seller shall have fifteen (15) days after receipt of such notice
to decide whether Seller will undertake, conduct and control, through counsel
of Seller’s choosing (subject to the reasonable approval of the Purchaser
Indemnified Party) and at its own expense, the settlement or defense thereof
(including, without limitation, the defense thereof by any insurer and any
claims against any insurer and the conduct and control of any claims against
any insurer with respect to such third party claim), and if Seller so decides,
the Purchaser Indemnified Party shall cooperate with Seller in connection
therewith, provided that the Purchaser Indemnified Party may participate in
such settlement or defense through counsel chosen by it, and provided further,
that the reasonable fees and expenses of such separate counsel shall be borne
by the Purchaser Indemnified Party unless: 
(a) the employment of such separate counsel shall have been approved by
Seller in connection with the settlement or defense of such action, (b) Seller
shall not have employed counsel reasonably satisfactory to the Purchaser
Indemnified Party to direct the settlement or defense of such action, or (c)
the Purchaser Indemnified Party shall have reasonably concluded that there may
be defenses available to it which are different from or additional to those
available to Seller, in any of which events the reasonable fees and expenses of
such separate counsel shall constitute Damages hereunder. Seller shall have the
sole right to settle or compromise any action which Seller determines to
undertake, conduct and control as aforesaid, subject to the approval of the
appropriate Purchaser Indemnified Party in its sole and absolute discretion, if
the amount of the settlement would not serve to release all of the Purchaser
Indemnified Parties from all liability in connection with such claim. In the
event Seller does not undertake to conduct and control the defense of any
claim, no Purchaser Indemnified Party shall settle the same without the prior
written approval of Seller, not to be unreasonably withheld, conditioned or
delayed.


 


Seller and the Purchaser Indemnified Party shall
cooperate reasonably in all aspects of any investigation, defense, pretrial
activities, trial, compromise, settlement or discharge of any claim in respect
of which indemnity is sought pursuant to this Section 5.5, including, but not
limited to, by providing the other party with reasonable access to employees
and officers (including as witnesses) and other reasonable non-privileged
information.


 


5.5.4     Sole
Recourse; Maximum Liability. Purchaser, on behalf of each Purchaser
Indemnified Party, agrees that (i) its sole recourse in the event of a breach
of any representation, covenant or warranty made by Seller hereunder or any
claim for Damages, in each case if Closing has occurred, shall be solely to
Seller, and not to any of its affiliates or any officers, directors, agents or
representatives of Seller or its affiliates, provided that Seller maintains a
net worth at least equal to the Seller Liability Cap through the Remaining
Representation Expiration Date to satisfy its indemnity 


 


34

















 


obligations hereunder, and (ii) Seller’s
maximum aggregate liability to Purchaser, pursuant to this Agreement if the
Closing has occurred, shall not otherwise exceed Six Million Dollars
($6,000,000.00) (the “Seller Liability Cap”). Notwithstanding the foregoing,
the Seller Liability Cap, as to any breach of Sections 5.2.6(ii), (vi), (viii),
(ix) and (x), and 5.6.6 shall not exceed Thirty Million Dollars
($30,000,000.00). Purchaser further agrees to first use all reasonable efforts
to seek recovery under any insurance policies, service contracts and Leases
applicable to such claim prior to seeking recovery from Seller, and Seller
shall not be liable to Purchaser for that portion of Purchaser’s claim which is
satisfied from such insurance policies, service contracts or Leases. Seller
agrees that it will maintain a net worth of at least Thirty Million Dollars
($30,000,000.00) through the Remaining Representation Expiration Date. Seller
hereby waives its rights to indemnification from the Transferred Companies in
connection with its liabilities accruing prior to the Closing, other than to
the extent covered by existing insurance, including, without limitation, so
called “D&O Coverage.”


 


5.6           Covenants
of Seller. Except as otherwise provided for in this Agreement or hereafter
agreed to in writing by Purchaser, Seller hereby covenants with Purchaser as
follows:


 


5.6.1     Conduct of Business Pending Closing. From the
Effective Date until the Closing or earlier termination of this Agreement,
Seller shall use reasonable efforts to operate and maintain or cause the
Property to be operated and maintained in a manner generally consistent with
the manner in which the Property has been operated and maintained prior to the
Effective Date, subject to reasonable wear and tear, casualty and taking by
eminent domain and shall keep on hand sufficient materials, supplies,
equipment, inventory and other personal property for the efficient operation
and management of the Property in a manner as currently operated, and shall
perform when due, all of Seller’s obligations under the Leases and other
contracts affecting the Property in each case in all material respects, and
otherwise in accordance with applicable laws, ordinances, rules and regulations
affecting the Property. From and after the Effective Date, Seller will not
permit the Transferred Companies, the Property Managers or Illinois Manager to
apply any security deposits held pursuant to the Leases without the prior
consent of Purchaser, which consent shall not be unreasonably withheld,
conditioned or delayed. Seller shall refrain from (and cause the Property
Managers, the Transferred Companies and Illinois Manager to refrain from)
transferring any of the Property, or creating on the Land any easements;
provided, however, that nothing herein shall preclude Seller from (i) replacing
any equipment, supplies or machinery in the ordinary course of operating the
Property or (ii) entering into any easements or other documents required by any
applicable governmental or quasi-governmental authority or provider of utility
services.


 


5.6.2     Operating
Agreements.From and after the Effective Date until the Closing Date or earlier
termination of this Agreement, Seller shall not permit the Transferred
Companies, the Property Managers or Illinois Manager to modify, extend, renew
or, cancel (in any case, except as a result of a default by the other party
thereunder) any Operating Agreements, or enter into any new Operating
Agreements unless cancelable on thirty (30) or fewer days’ notice without
payment of a premium or penalty, 


 


35

















 


without
Purchaser’s prior written consent in each instance, which consent shall not be
unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing,
Seller shall permit the assignment of and the transfer of all rights and
obligations accruing to 10/120 Property Manager under that certain Management Agreement
dated as of October 3, 2006 by and between 550 West Washington Property LLC and
10/120 South Riverside Illinois Property Manager LLC (the “Continuing
Management Agreement”), which assignment and transfer shall occur prior to or
concurrently with the Closing, and which assignment and transfer shall not
require the prior written consent of Purchaser so long as 10/120 Property
Manager is released from all liability arising after the date of the assignment
of the Continuing Management Agreement.


 


5.6.3     Insurance. From and after the Effective Date until
the date of Closing or earlier termination of this Agreement, Seller shall
cause the Transferred Companies, Illinois Manager and the Property Managers to
keep in full force and effect the insurance policies in effect on the Effective
Date or policies providing similar (but no less) coverage. At Closing, Seller
shall assign to Purchaser all of its rights under the Liability Policies with
respect to any claims relating to the period prior to Closing (whether such
claims are made before or after Closing) relating to the Property, the Property
Managers or the Transferred Companies, including, but not limited to, the right
to submit claims directly to the applicable insurer. Seller shall provide
Purchaser with all information reasonably required for Purchaser to submit any
claims related to a period prior to Closing, including any deadlines or other
conditions under the applicable Liability Policies and will reasonably
cooperate with Purchaser in the submission, processing and resolution of such
claims. To the extent that any assignment of rights under the Liability Polices
is not permitted by the express terms of the Liability Policies or applicable
law, then upon receipt of notice from Purchaser regarding any pre-Closing
claims subject to coverage under the Liability Policies, Seller shall timely
submit such claims to the applicable insurer upon request of Purchaser and be
responsible for processing and resolution of such claims with the applicable
insurer as directed by Purchaser at its expense, provided that no claim will be
settled or compromised without Purchaser’s consent in its sole and absolute
discretion, if the settlement will not serve to release all applicable
Purchaser Indemnified Parties and the Property from all liability in connection
with such claims. Seller and Purchaser shall not take any action to limit,
invalidate or reduce any coverage that is provided under the Liability Policies
as of Closing with respect to any pre-Closing claims. Notwithstanding the
foregoing, to the extent that any claims are made in connection with Seller’s
obligations hereunder, including its obligation to indemnify Purchaser, Seller
shall have all rights of control and resolution of such claims as set forth in
Section 5.5.3. To the extent any claims are made against the Property, the
Property Managers or the Transferred Companies relating to a period prior to
the time the Property LLCs owned the Property, Seller shall cooperate with
Purchaser in directing those claims to the prior Owner of the Property. The
foregoing covenants in this Section 5.6.4, with the exception of the first
sentence, shall survive closing.


 


5.6.4     Investments. Unless this
Agreement is terminated prior to Closing, Seller shall not cause or permit the
Transferred Companies, Illinois Manager, or the Property Managers to make any
investment in, any loan to, or any acquisition of the 


 


36

















 


securities
of any other Person, or make any acquisition of any new assets or incur any new
indebtedness (or series of related capital investments, loans and
acquisitions), except (i) for trade payables incurred in the ordinary course of
business, and (ii) in connection with the Kimco OFP Purchase Transaction
pursuant to the Kimco Purchase Agreement.


 


5.6.5     REIT Compliance. Except as set
forth in Section 5.6.8, Seller shall take all commercially reasonable steps, or
forbear from taking steps, necessary prior to the Closing to ensure that each
of the Trust’s ownership and operation until the Closing would permit each
Trust to qualify as a REIT for that Trust’s taxable year that includes the
Closing.


 


5.6.6     No
Transfer of Assets; Mergers or Acquisitions. Unless this Agreement is
terminated prior to Closing, Seller shall not cause or permit the Trusts,
Illinois Manager, OFP Equity, OFP Holding, 200 South Wacker Services, OFP
Services, the Property Managers or the Property LLCs to: (i) sell, transfer,
further encumber, assign or otherwise dispose of the Property or any portion
thereof or (ii) merge or consolidate with or acquire all or substantially all
of the assets or business of any Person, except in connection with the Kimco
OFP Purchase Transaction pursuant to the Kimco Purchase Agreement.


 


5.6.7     No Amendments
to Organizational Documents. Unless this Agreement is
terminated prior to Closing, Seller shall not cause or permit the Transferred
Companies, Illinois Manager or the Property Managers to amend their respective
Organizational Documents in any material respect except that each Trust shall
be permitted to amend its Declaration of Trust to the extent necessary to
permit the consummation of this Agreement and in form and substance provided to
Purchaser as reasonably approved by Purchaser.


 


5.6.8     Redemption of
Preferred Shareholders’ Shares. Seller and Purchaser shall
make mutually satisfactory arrangements to cause each Trust, at Closing, to
redeem the preferred shares in such Trust held by the parties identified on
Schedule 5.2.3(i)(A), Schedule 5.2.3(ii)(A) and Schedule 5.2.3(iii)(A) attached
hereto, such that, following such redemptions, the Seller’s Shares constitute
one hundred percent (100%) of the issued and outstanding shares in each Trust.
Seller shall provide Purchaser reasonable evidence of such redemption.


 


5.6.9     Leases. Except as
expressly provided herein, Seller shall, and shall cause each of the Property
Managers, Illinois Manager and the Property LLCs to, refrain from amending any
existing Lease without Purchaser’s written approval, as provided below,
provided that Purchaser shall have no ability to interfere with the
administration by Seller, the Property Managers, Illinois Manager or the
Property LLCs of any existing Lease as required by the terms of such Lease. In
addition, except as expressly provided herein, neither Seller nor any of the
Property Managers, Illinois Manager and the Property LLCs shall enter into any
new leases with respect to the Property (each, a “Proposed New Lease”), without
Purchaser’s written approval, as provided below in this Section 5.6.10,
provided, however that Purchaser’s written approval shall not be required for,
and Seller may enter into, a new lease with Morgan Stanley at One Financial
Place 


 


37

















 


on
the business terms referenced in Schedule 5.6.10, (the “Morgan Stanley
Lease”) which Morgan Stanley Lease shall not be a Proposed New Lease and
Purchaser shall receive a credit at Closing equal to all unpaid leasing
commissions, tenant improvement and other tenant concessions set forth in the
Morgan Stanley Lease. Seller shall furnish Purchaser with a true and complete
copy of any Proposed New Lease into which Seller or the Property Managers,
Illinois Manager or the Property LLCs desire to have any of the Property LLCs
enter and such financial information with respect to the proposed tenant as
Seller, the Property Managers, Illinois Manager or the Property LLCs may have
in their possession. Purchaser shall have five (5) Business Days from receipt
of such Proposed New Lease to approve or disapprove the same, which approval
shall not be unreasonably withheld, conditioned or delayed. In the event that
Purchaser does not approve any such Proposed New Lease, Purchaser shall notify
Seller, in writing, of such disapproval prior to expiration of the aforesaid
five (5) Business Day period, stating in such written notification under what
conditions, if any, Purchaser’s approval would be forthcoming and Purchaser’s
agreement to approve such Proposed New Lease if such conditions are satisfied.
All costs of tenant improvements and leasing commissions payable after Closing
with respect to any lease with respect to the Property executed between the
Effective Date and the Closing Date in accordance with the terms and conditions
of this Agreement shall be paid by Purchaser. Seller shall deliver to Purchaser
copies of any written notices that Seller sends, from and after the Effective
Date to its Lenders under Section 4.1.6(c)(v) of the loan agreements related to
the Existing Indebtedness applicable to each of 200 South Wacker Property and
10/120 South Riverside Property.


 


5.6.10   Audit
by Purchaser. Purchaser has advised Seller that Purchaser must cause to be
prepared up to three (3) years of audited financial statements and the interim
period between from January 1, 2007 through Closing in respect of the Property
in compliance with the policies of Purchaser and certain laws and regulations,
including, without limitation, Securities and Exchange Commission Regulation
S-X, Rule 3-14. Seller agrees to use reasonable efforts to cooperate with
Purchaser’s auditors in the preparation of such audited financial statements
(it being understood and agreed that the foregoing covenant shall survive the
Closing). Without limiting the generality of the preceding sentence (a) Seller
shall, during normal business hours, allow Purchaser’s auditors reasonable
access to such books and records maintained by Seller, the Property Manager and
the Property LLCs (and any other manager of the Property) in respect of the
Property as necessary to prepare such audited financial statements; (b) Seller
shall use reasonable efforts to provide to Purchaser such financial information
and supporting documentation as are necessary for Purchaser’s auditors to
prepare audited financial statements; (c) if Purchaser or its auditors require
any information that is in the possession of the party from which Seller
purchased all or a portion of the Property, Seller shall contact such prior
owner of the Property and use commercially reasonable efforts to obtain from
such party the information requested by Purchaser; (d) Seller will make
available for interview by Purchaser and Purchaser’s auditors, the manager of
the Property or other agents or representatives of Seller responsible for the
day-to-day operation of the Property and the keeping of the books and records
in respect of the operation of the Property; and (e) if Seller has audited
financial statements with respect to the Property, Seller shall promptly
provide Purchaser’s auditors with a copy of such 


 


38

















 


audited financial statements. If after the Closing Date Seller obtains
an audited financial statement in respect of the Property for a fiscal period
prior to the Closing Date that was not completed as of the Closing Date, then
Seller shall promptly provide Purchaser with a copy of such audited financial
statement. The foregoing covenants shall survive Closing.


 


5.6.11   Recycled
Entity. In order to facilitate the financing of the Property by Purchaser,
to the extent a lender requires representations and warranties relating to the
Property LLCs and the conduct of its business for the period from the formation
of each Property LLC through the Closing similar in nature to those required by
Standard & Poor’s for recycled entities in its May 1, 2003 publication
relating to U.S. CMBS Legal and Structured Finance Criteria, Seller shall
cooperate in good faith to submit a certification to Purchaser of such facts,
to the extent the same are true or indicate which facts or requirements are not
true or are qualified.


 


5.6.12   Purchaser’s
Financing. Seller agrees that to the extent reasonably requested by
Purchaser, Seller will consider and reasonably cooperate with in good faith any
modifications to the existing structure of the Trusts and the Property LLCs
that do not have any adverse tax, economic or other consequences to Seller, so
that Purchaser meets lender requirements for financing the Property.


 


5.6.13   Kimco
OFP Purchase Transaction Not a Breach or Default. 5.6.14              Notwithstanding the representations and
covenants of Seller in this Section 5 or elsewhere in this Agreement, the
creation or existence of the OFP Trust Loan and the debt obligation thereunder,
as incurred to acquire the Kimco OFP Interest, shall not constitute a breach or
default under this Agreement provided that Seller applies a portion of the
Purchase Price allocated to One Financial Place in full satisfaction of the OFP
Trust Loan at Closing.


 


5.7           Tax
Matters.


 


5.7.1     Seller
shall indemnify and hold harmless each Purchaser Indemnified Party from and
against any Damages as incurred, to the extent they arise out of or are a
result of any taxes, including, without limitation, interest, penalties and
additions thereto (other than (x) transfer taxes, stamp taxes or other taxes
assessed in connection with the sale or transfer of stock, a property or any
interest therein, or any other tax, for which responsibility is allocated to
Purchaser in accordance with Section 4.5 of this Agreement or (y) any real
property taxes or assessments for which responsibility is allocated to
Purchaser in accordance with the terms of this Agreement) imposed on the
Transferred Companies, the Property Managers or Illinois Manager relating to
taxable periods or portions thereof ending on or before the date of the Closing
or allocable to the portion thereof through the date of the Closing pursuant to
this paragraph, other than arising from (i) a breach of Purchaser’s obligations
under this Agreement, (ii) change in law following the Closing that increases
the taxes on any of the Transferred Companies, the Property Managers or
Illinois Manager, (iii) a failure by Purchaser to cause each Trust to make
sufficient distributions following the Closing, eligible for dividends paid
deductions, to eliminate any income tax liability of each Trust for such Trust’s
taxable year that includes the Closing, or (iv) any other action or 


 


39

















 


activity of
the Transferred Companies, the Property Managers or Illinois Manager after the
Closing that increases their taxes for periods ending on or prior to the
Closing Date. If the Closing Date is other than the last day of a taxable
period of the Trusts, the tax attributable to the operations of the Transferred
Companies or the Property Managers for the portion of the period up to and
including the date of the Closing shall be (i) in the case of all taxes based
on or in respect of income, the tax computed on the basis of the taxable income
or loss of the entity for such partial period ending on or before the date of
Closing as determined from its books and records, and (ii) in the case of all
other taxes (other than those allocated pursuant to Section 4.4.1(ii)), on the
basis of the actual activities of the entity for such partial period ending on
or before the date of Closing as determined from its books and records. Except
for taxes on income arising from operations in the ordinary course of business
on the Closing Date, Seller shall not be responsible for any taxes attributable
to income, action or activity on the Closing Date and on or after the Closing.
The indemnity under this Section 5.7.1 is subject to the limitations and other
provisions of Section 5.5 of this Agreement (which for the avoidance of doubt
the parties acknowledge include the survival period, procedural requirements,
Deductible and maximum liability provisions therein), except that: (i) the
indemnity under this Section 5.7.1 is not subject to Section 5.5.2(iii)(z), and
(ii) the Deductible does not apply to accrued but unpaid taxes of the
Transferred Companies, the Property Managers or Illinois Manager for their
respective taxable periods which include the Closing. With respect to clause
(ii) of the preceding sentence: (a) such accrued but unpaid taxes shall not be
taken into account when determining whether the Deductible threshold has been
met under Section 5.5.3 with respect to any other claims; and (b) any tax
refunds that are received by a Transferred Company, a Property Manager or
Illinois Manager, and any amounts credited against tax to which a Transferred
Company, a Property Manager or Illinois Manager becomes entitled, that relate
to tax periods or portions thereof ending on or before the date of the Closing
shall be for the account of Seller, and Purchaser shall pay over to Seller any
such refund or the amount of any such credit within 15 days after receipt or
entitlement thereto.


 


5.7.2     Seller
shall prepare or cause to be prepared, at the cost and expense of Seller, on a
timely basis (including any automatically available extensions) tax returns for
the Transferred Companies and the Property Managers (including the applicable
1099s, K-1s or similar schedules and reports which are part of or derived from
any such tax returns) for federal and state income, unincorporated business
taxable income or any similar type of net income tax applicable to any said
entity for all such tax returns (i) 
which are due prior to the Closing, (ii) which relate to taxable or
other relevant periods ending before January 1, 2007 or (iii) which are for a
taxable period beginning January 1, 2007.


 


All such tax returns, and any tax returns prepared pursuant to Section
5.7.2, shall in all events be prepared in a manner consistent with the prior
tax returns as to all continuing elections, characterizations and other matters
and, to the extent applicable, the structure and intent of the relevant
underlying documents and this Agreement and otherwise in accordance with
applicable law. All such tax returns shall be provided to the other party at
least 45 days prior to the date any such tax return is due (including any
automatically available extensions), which other party shall have 30 days after
receipt of 


 


40

















 


each tax
return to review such tax return and comment thereon. Upon the expiration of
such 30 day period, the party receiving and reviewing such tax return, if
acceptable, shall promptly sign and file, or cause to be signed and filed, such
tax return pursuant to this Section 5.7.2. In the event there is a dispute
between the parties in regards to the approval of a tax return, the parties
shall appoint a mutually acceptable “Big Four” accounting firm to resolve such
dispute prior to the expiration of such 45 day period.


 


Each party hereto shall make available, or cause to be made available,
to the other party all the relevant and necessary books and records to enable
such party to prepare or review, as the case may be, all such tax returns
subject to the standards of the preceding provisions and otherwise consistent
with Section 5.7.4 below and the other applicable provisions of this Agreement.


 


5.7.3     Purchaser
shall prepare and file, or cause to be prepared and filed, at the expense of
Purchaser, on a timely basis (including all automatically available extensions)
all tax returns of the Transferred Companies and the Property Managers other
than those provided for in Section 5.7.2 above. In the case of any such return
for a period that includes the Closing, Purchaser shall provide Seller the
proposed tax return at least 45 days prior to the date such tax return is due
(including any automatically available extensions), which Seller shall have 30
days after receipt of such tax return to review and comment thereon. All such
tax returns shall be prepared in a manner consistent with the prior tax returns
as to all continuing elections, characterizations and other matters and, to the
extent applicable, the structure and intent of the relevant underlying
documents and this Agreement and otherwise in accordance with applicable law.
Purchaser shall pay or cause the Transferred Companies and the Property
Managers to pay all taxes shown to be due and payable thereon. Furthermore,
Purchaser shall pay or cause the Transferred Companies and the Property
Managers to pay all taxes shown to be due and payable on any return for a
period that includes the Closing even if such tax return is prepared by or
caused to be prepared by the Seller. Notwithstanding the foregoing, on the
later of (i) 15 days after receipt of written notice from Purchaser and (ii)
seven days prior to the due date for the payment of the applicable tax, Seller
shall pay to Purchaser any amounts for which Seller is liable pursuant to
Section 5.7.1 for taxable periods that include the Closing.


 


5.7.4     Without
limiting the foregoing, after the Closing, Seller and Purchaser shall:


 


(i)            assist (and
cause their respective affiliates to assist) the other in preparing any tax
returns which such other person is responsible for preparing and filing in
accordance with this Section 5.7;


 


(ii)           cooperate
fully, as and to the extent reasonably requested by the other party, in
connection with the preparation of the tax returns pursuant to this Section 5.7
and in connection with any steps or procedures required to be undertaken in
compliance with Sections 856 through 860 of the Code and the Treasury
Regulations promulgated thereunder;


 


41

















 


(iii)         cooperate fully
in preparing for any audits of, or litigation, administrative or other
proceedings and any other disputes with taxing authorities regarding any tax
returns with respect to the Transferred Companies or the Property Managers or
otherwise with respect to taxes that may be imposed upon or otherwise payable by
the Transferred Companies or the Property Managers;


 


(iv)          make available
to the other party and to any governmental entity as reasonably requested all
information, records, and documents of the Transferred Companies and the
Property Managers relating to taxes;


 


(v)           provide timely
notice to the other party in writing of any pending or threatened tax audits or
assessments with respect to the Transferred Companies or the Property Managers
for taxable periods for which such other party may have a liability for taxes
under this Agreement;


 


(vi)          furnish each
other with copies of all correspondence received from any governmental entity
in connection with any tax audit or information request with respect to any
taxable period for which the other party may have a liability for taxes under
this Agreement;


 


(vii)         provide the other
party with timely notice of the commencement of any audit by any governmental
entity or of any judicial proceeding involving a governmental entity that
relates to any liability for taxes, or any transaction or activity of the
Transferred Companies or the Property Managers for which the other may have a
liability for taxes under this Agreement;


 


(viii)       as applicable,
prepare and/or file, or cause to be prepared and/or filed, all tax returns, all
such tax returns to be prepared in a manner consistent with the prior tax
returns as to all continuing elections, characterizations and other matters
and, to the extent applicable, the structure and intent of the relevant
underlying documents and this Agreement and otherwise in accordance with
applicable law.


 


Notwithstanding anything in
this Section 5.7.4 or in Section 5.5.3 to the contrary, all aspects of any
audit, litigation or other proceeding with respect to taxes attributable to a
taxable year ending before January 1, 2007 shall be controlled by and be the
sole responsibility of the Seller. All aspects of any audit, litigation or
other proceeding with respect to taxes attributable to a taxable year
commencing on or after January 1, 2007 shall be controlled by and be the sole
responsibility of the Purchaser, unless the audit, litigation or other
proceeding relates to a taxable period for which a tax return was prepared by
or caused to be prepared by Seller, in which case such audit, litigation or other
proceeding shall be controlled by and be the sole responsibility of the Seller.
Notwithstanding any indication in this Agreement to the contrary, neither
Seller nor Purchaser shall settle any audit, litigation or other proceeding
relating to a period ending prior to the Closing Date or for the taxable year
of each Trust beginning January 1, 2007 if such settlement is based, in whole
or in part, on the conclusion that each Trust did not qualify as a real estate
investment trust satisfying the requirements of Sections 856 


 


42

















 


through 860 of the Code at
all times during such periods. To the extent that any audit, litigation or
other proceeding with respect to taxes relates to (i) a challenge to the
position that any Trust’s deduction for dividends paid (as defined in Section
in Section 561 of the Code) for its taxable year beginning January 1, 2007 will
be of such a magnitude that (a) the distribution requirement of Section 857(a)
will be satisfied for the taxable year beginning January 1, 2007 and (b) the
Trust’s “real estate investment trust taxable income” (as defined in Section
857(b)(2) of the Code) for its taxable year beginning January 1, 2007 will be
reduced to zero, (ii) a challenge to the position that the Trust will not
constitute a personal holding company (as defined in Section 542 of the Code)
for its taxable year beginning January 1, 2007 or (iii) activities on or after
the Closing of any Transferred Company or Property Manager, Purchaser agrees to
pay or promptly reimburse any out-of-pocket costs incurred by Seller in
connection with such audit, litigation or other proceeding including, without
limitation, the fees and disbursements of legal counsel and accountants
retained by Seller in connection therewith.


 


5.7.5     Purchaser
covenants and agrees with Seller that: 
(i) Purchaser will treat the purchase of the Shares contemplated by this
Agreement for all income tax purposes as a purchase of shares of a real estate
investment trust, and (ii) Purchaser will not make an election pursuant to
Section 338(g) of the Code with respect to each Trust.


 


5.7.6     Except
as otherwise provided in Section 5.7.1, notwithstanding any other provision of
this Agreement to the contrary, the obligations of Seller and Purchaser set
forth in this Section 5.7 shall be unconditional and absolute, and shall remain
in full force and effect indefinitely.


 


6.             REPRESENTATIONS,
WARRANTIES AND COVENANTS OF PURCHASER


 


6.1           Representations
and Warranties of Purchaser.


 


Purchaser hereby represents and warrants to Seller
as of the Effective Date:


 


6.1.1        Organization. Purchaser is a
limited partnership duly organized validly existing, and in good standing under
the laws of the State of Texas.


 


6.1.2        Power and Authority. Purchaser has
all requisite, power and authority to execute and deliver this Agreement, to
acquire the Shares as provided in this Agreement and to carry out Purchaser’s
obligations hereunder, and all requisite action necessary to authorize
Purchaser to enter into this Agreement and to carry out its obligations
hereunder have been, or by the Closing will have been, taken. The person
signing this Agreement on behalf of Purchaser is authorized to do so.


 


6.1.3        Consents and Approvals; No
Violations. Neither the execution and delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
violate any statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge or other restriction of any government, governmental agency or
court to which Purchaser is subject, nor will it conflict with any of the
organizational documents of Purchaser.


 


43

















 


6.1.4        No Litigation. There is no
action, suit, arbitration, unsatisfied order or judgment, government investigation
or proceeding pending against Purchaser which, if adversely determined, could
individually or in the aggregate materially interfere with the consummation of
the transactions contemplated by this Agreement.


 


6.1.5        Investment Intent. Purchaser acknowledges
that the Shares have been offered and will be sold to Purchaser pursuant to an
exemption from registration under the Securities Act and all applicable state
securities laws. Purchaser is an “accredited investor” within the meaning of
Regulation D promulgated under the Securities Act and is purchasing the Shares
for investment purposes and has no present intent to distribute, resell, pledge
or otherwise dispose of any of such Shares other than in full compliance with
applicable federal and state securities laws. Purchaser has had the opportunity
to review such documents and to ask such questions of Seller as Purchaser has
deemed pertinent to its decision to invest in the Shares. Purchaser is fully
capable of assessing the risks associated with ownership of the Shares.


 


6.1.6        Status as Permitted Transferee.
Purchaser and affiliated entities which are directly or indirectly under common
control with Purchaser or directly or indirectly control Purchaser or are
controlled by Purchaser (i) have a net worth, as determined as of the Effective
Date, of at least $400,000,000 (exclusive of the value of the Property), and
(ii) control, directly or indirectly, real estate assets with a market value of
at least $800,000,000 (exclusive of the value of the Property).


 


6.2           Survival
of Purchaser’s Representations and Warranties. 
The representation and warranties of Purchaser set forth in Section
6.1.5 hereof and all covenants of Purchaser contained herein shall survive
Closing and shall be a continuing representation, warranty and covenant without
limitation. All other representations and warranties of Purchaser shall survive
Closing for a period of twelve (12) months. Notwithstanding the foregoing, in
the event of an assignment of this Agreement pursuant to Section 11.4, the
representation made Section 6.1.1 shall be made so as to conform to the facts
of assignee’s organizational status.


 


6.3           Purchaser’s
Indemnity; Maximum Liability.


 


6.3.1     Purchaser’s
Indemnification Obligations. Subject to the other provisions of this
Section 6.3, from and after the Closing until the Property Representation
Expiration Date or the Remaining Representation Expiration Date, as applicable
(which Remaining Representation Expiration Date shall be applicable to any
claims under Sections 6.3.1(iii) and 6.4.1 below), Purchaser shall indemnify
and hold harmless Seller and Seller’s officers, directors, affiliates, director
members or partners, representatives, agents, and any successors or assigns of
Seller (the “Seller Indemnified Party”) from and against any Damages as
incurred, to the extent they arise out of or are a result of:


 


(i)            the breach or
any inaccuracy in any of the representations and warranties of Purchaser
contained in this Agreement;


 


44

















 


(ii)           any breach or
default by Purchaser of any covenant or agreement of Purchaser hereunder; or


 


(iii)         third party claims
against any Seller Indemnified Party arising out of events that occur on or
after the Closing and during the period of ownership by Purchaser and which
purport to be related to any obligation or liability of the Transferred
Companies (as the Transferred Companies are constituted on and after the
Closing), including, without limitation, contractual and tort claims and/or
liabilities, provided that the foregoing shall not include (and, except to the
extent provided for in Sections 6.3.1(i) and 6.3.1(ii), Purchaser shall not be
obligated to indemnify the Seller Indemnified Party for) claims based upon or
arising out of:  (w) environmental
matters (other than claims for personal injury but not property damage),
including, without limitation, any obligation to remediate any Hazardous
Substances, or (x) the physical condition of the Property, including, without
limitation, patent and latent defects, title and zoning matters, governmental
approvals, valuation, and compliance of the Property with laws, other than
third-party claims for personal injury or property damage; (y) any obligations
contained in the documents evidencing the Existing Indebtedness, or (z) tax
matters, except in each case to the extent of a breach of an express
representation and warranty of Purchaser in this Agreement.


 


6.3.2     Notice
and Resolution of Claims. No claim for indemnification under Section 6.3.1
shall be actionable or payable (a) to the extent Seller received a proration,
adjustment or credit at Closing for such claim; (b) if the claim in question
results from or is based on a condition, state of facts or other matter which
was known to any Seller Indemnified Party prior to or at Closing; (c) if the
claim results from a breach of any representation, warranty or covenant of
Seller or any successor to or assignee of Purchaser; (d) unless and until the
valid claims under this Section 6.3 collectively aggregate more than the
Deductible, in which event, subject to Section 6.3.3, only the amount of such
claims over and above the Deductible shall be actionable; or (e) unless written
notice containing a description of the specific nature of such claim shall have
been given by any Seller Indemnified Party to Purchaser (x) promptly after it
has notice of such claim (provided that the failure to provide such notice
shall not affect the obligations of Purchaser unless and only to the extent
that Purchaser is actually prejudiced thereby) and (y) in all events prior to
the Property Representation Expiration Date or the Remaining Representation
Expiration Date, as applicable. The foregoing is not intended to limit any duty
of any Seller Indemnified Party to mitigate damages to the extent required
under applicable law.


 


In
the event that such claim involves a claim by a third party against the Seller
Indemnified Party which seeks Damages in an amount in respect of which
indemnification pursuant to this Section 6.3 would be available, Purchaser
shall have fifteen (15) days after receipt of such notice to decide whether
Purchaser will undertake, conduct and control, through counsel of Purchaser’s
choosing (subject to the reasonable approval of the Seller Indemnified Party)
and at its own expense, the settlement or defense thereof, and if Purchaser so
decides, the Seller Indemnified Party shall cooperate with Purchaser in
connection therewith, provided; that the Seller Indemnified Party may 


 


45

















 


participate
in such settlement or defense through counsel chosen by it, and provided
further, that the reasonable fees and expenses of such separate counsel shall
be borne by the Seller Indemnified Party unless:  (a) the employment of such separate counsel
shall have been approved by Purchaser in connection with the settlement or
defense of such action, (b) Purchaser shall not have employed counsel
reasonably satisfactory to the Seller Indemnified Party to direct the
settlement or defense of such action, or (c) the Seller Indemnified Party shall
have reasonably concluded that there may be defenses available to it which are
different from or additional to those available to Purchaser, in any of which
events the reasonable fees and expenses of such separate counsel shall
constitute Damages hereunder. Purchaser shall have the sole right to settle or
compromise any action which Purchaser determines to undertake, conduct and
control as aforesaid, subject to the approval of the appropriate Seller
Indemnified Party in its sole and absolute discretion, if the amount of the
settlement would not serve to release all of the Seller Indemnified Parties
from any liability in connection with such claim. In the event Purchaser does
not undertake to conduct and control the defense of any claim, no Seller
Indemnified Party shall settle the same without the prior written approval of
Purchaser, not to be unreasonably withheld, conditioned or delayed.


 


Purchaser
and the Seller Indemnified Party shall cooperate reasonably in all aspects of
any investigation, defense, pretrial activities, trial, compromise, settlement
or discharge of any claim in respect of which indemnity is sought pursuant to
this Section 6.3, including, but not limited to, by providing the other party
with reasonable access to employees and officers (including as witnesses) and
other reasonable non-privileged information.


 


6.3.3     Sole
Recourse; Maximum Liability. Seller, on behalf of each Seller Indemnified
Party, agrees that (i) its sole recourse in the event of a breach of any
representation, covenant or warranty made by Purchaser hereunder or any claim
for Damages, in each case if Closing has occurred, shall be solely to
Purchaser, and not to any of its affiliates or any officers, directors, agents
or representatives of Purchaser or its affiliates, provided that Purchaser
maintains a net worth at least equal to the Purchaser Liability Cap through the
Remaining Representation Expiration Date to satisfy its indemnity obligations
hereunder, and (ii) Purchaser’s maximum aggregate liability to Seller, pursuant
to this Agreement if the Closing has occurred, shall not otherwise exceed Six
Million Dollars ($6,000,000.00) (the “Purchaser Liability Cap”).
Notwithstanding the foregoing, the Purchaser Liability Cap, as to any breach of
Section 6.4.2 and 6.4.3 shall not exceed Thirty Million Dollars
($30,000,000.00). Seller further agrees to first use all reasonable efforts to
seek recovery under any insurance policies and service contracts applicable to
such claim prior to seeking recovery from Purchaser, and Purchaser shall not be
liable to Seller for that portion of Seller’s claim which is satisfied from
such insurance policies and service contracts. Purchaser agrees that it will
maintain a net worth of at least exceed Thirty Million Dollars ($30,000,000.00)
through the Remaining Representations Expiration Date.


 


6.4           Covenants
of Purchaser. Purchaser hereby covenants with Seller that Purchaser shall
furnish to Seller copies of any third party reports received by Purchaser in
connection with any inspection of the Property for the presence of Hazardous 


 


46

















 


Substances. Purchaser hereby assumes full responsibility for such
inspections and, except for claims based on representations or warranties
contained in Section 5.3.6 or based on Section 5.5.2(iii) hereof irrevocably
waives any claim against Seller arising from the presence of Hazardous
Substances on the Property. Purchaser shall also furnish to Seller, without
representation or warranty, express or implied, copies of any other third party
reports received by Purchaser relating to any other inspections of the Property
conducted on Purchaser’s behalf, if any (including, specifically, without
limitation, any reports analyzing compliance of the Property with the
provisions of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §12101, et
seq., if applicable), but excluding any appraisals or other evaluations of
value.


 


6.4.1     Ownership
in Compliance with the REIT Rules. As of the Closing and after giving
effect to the acquisition of the Shares by Purchaser and at all times during
the portion of the taxable year of each Trust that begins as of the Closing and
ends after the Closing, not more than fifty percent (50%) in value of the
outstanding shares of beneficial interest of each of the Trusts will be owned,
directly or indirectly, or through the application of the attribution rules of
Code section 544 (as modified by Code section 856(h)(1)(B)), by five (5) or
fewer individuals (defined in Code section 542(a)(2) (as modified by Code
section 856(h)(3)) to include certain entities).


 


6.4.2     Continuation
of REIT Election.


 


(i)            Purchaser
covenants that after the Closing it will take all necessary steps, or forebear
from taking steps (or cause each Trust to take (or forebear from taking such
steps, as the case may be) as may be needed) to maintain the classification and
treatment of the Trusts as REITs for the Trusts’ taxable year that includes the
Closing.


 


(ii)           Purchaser
covenants that it will take all steps within its control (including for
example, causing the Trusts to make distributions that qualify for the
dividends paid deductions set forth in Section 857(b)(2)(B) of the Code and
Section 561 of the Code) such that each Trust satisfies the 90% distribution
requirement of Code Section 857(a)(1) and each Trust’s real estate investment
trust taxable income (as defined in Section 857(b)(2) of the Code) will be
reduced to zero for the taxable year of such Trust that includes the Closing.


 


(iii)         Purchaser
covenants and agrees that prior to January 1, 2008, no Trust shall acquire,
accept transfer of, or hold, or allow any subsidiary to acquire, accept
transfer of, or hold, any assets other than the property that each Trust holds
immediately prior to the Closing.


 


(iv)          Purchaser
covenants that no Trust will take any action that is inconsistent with the
Trust’s status as a REIT for periods ending on or before December 31, 2006.


 


6.4.3     Subsequent
Filings. Promptly after Closing, Purchaser shall cause to be filed in the
states of Delaware, Maryland and Illinois name change certificates to 


 


47

















 


delete from the legal name of each Trust any
reference to “Beacon Capital” or “BCSP” and Purchaser shall provide evidence to
Seller of such filings promptly thereafter.


 


6.4.4     Tax
Matters. To cooperate with Seller to the extent provided for in Section
5.7, including, without limitation, causing the tax returns to be signed by
Purchaser, as applicable.


 


6.4.5     Information
regarding Purchaser’s Potential Compliance with REIT Status. Following the
Closing, Purchaser shall promptly provide such information as is reasonably
requested by Seller or Seller’s third-party consultants with respect to
Purchaser’s ability to cause each Trust to maintain its status as a REIT for
such Trust’s taxable year that includes the Closing, including, without
limitation, an opinion of Purchaser’s counsel, substantially in the form
attached hereto as Exhibit 4.6.1 (modified as reasonably needed to
reflect the fact that Purchaser’s counsel will address post-Closing REIT
compliance and modified to provide that, with respect to periods prior to the
Closing Date, Purchaser’s counsel may rely on the opinion of Goodwin Procter
LLP dated as of the Closing Date and described in Section 4.6.1), regarding
each Trust’s conformity, since the Closing Date, with the requirements for
qualification and treatment as a REIT during its taxable year that includes the
Closing.


 


The provisions of this
Section 6.4 shall survive Closing.


 


7.             DEFAULT


 


7.1           Default
by Purchaser. In the event that Purchaser defaults in its obligations to
consummate the transactions contemplated by this Agreement for any reason other
than:  (x) Seller’s default hereunder,
(y) a failure of a condition precedent to Purchaser’s obligations hereunder or
(z) the permitted termination of this Agreement by Seller or Purchaser as
herein expressly provided, prior to Closing, Seller shall have the right to
terminate this Agreement and receive, liquidate (by Escrow Agent drawing upon
the Acceptable Letters of Credit) and retain the Deposit as liquidated damages
and as Seller’s sole and exclusive remedy for a breach of Purchaser’s
obligations under this Agreement prior to Closing. Thereafter, except for
Purchaser’s obligations which by their terms survive the termination of this
Agreement, Seller and Purchaser shall have no further obligations to each
other. Purchaser and Seller acknowledge that the damages to Seller in the event
of a breach of this Agreement prior to Closing would be difficult or impossible
to determine, that the amount of the Deposit represents the parties best and
most accurate estimate of the damages that would be suffered by Seller if the
transactions contemplated by this Agreement should fail to close and that such
estimate is reasonable under the circumstances existing as of the date of this
Agreement and under the circumstances that Seller and Purchaser reasonably
estimate would exist at the time of such breach. Notwithstanding the foregoing,
if Purchaser fails to perform its obligations pursuant to this Agreement that
survive Closing or the earlier termination of this Agreement, then Seller shall
be entitled to pursue any and all remedies available at or law or in equity, as
a result of such default, including, without limitation the right to recover
damages against Purchaser, including, without limitation, damages suffered by
Seller and/or its direct and indirect partners as a result of one or more of
the Trusts not 


 


48

















 


qualifying as a REIT for such Trust’s taxable year beginning January 1,
2007, subject to Section 6.3. The provisions of this Section 7.1 shall survive
Closing. With respect to any default by Purchaser after Closing, Seller
acknowledges and agrees that Seller’s sole remedy shall governed by the terms
of Section 6.3 hereof.


 


7.2           Default
by Seller. In the event that Seller defaults in its obligations to consummate
the transactions contemplated by this Agreement for any reason other than:  (x) Purchaser’s default hereunder, (y) a
failure of a condition precedent to Seller’s obligations hereunder or (z) the
permitted termination of this Agreement by Seller or Purchaser as herein
expressly provided, Purchaser shall be entitled, as its sole remedy, either (a)
to receive the return of the Deposit, which return and reimbursement shall
operate to terminate this Agreement and release Seller from any and all
liability hereunder, or (b) to enforce specific performance of Seller’s
obligation to execute the documents required to convey the Shares to Purchaser,
it being understood and agreed that the remedy of specific performance shall
not be available to enforce any other obligation of Seller hereunder. Purchaser
expressly waives its rights to seek damages of any kind in the event of Seller’s
default hereunder prior to Closing. Purchaser shall be deemed to have elected
to terminate this Agreement and receive back the Deposit if Purchaser fails to
file suit for specific performance against Seller in a court having
jurisdiction in Maryland, on or before sixty (60) days following the date upon
which Closing was to have occurred. With respect to any default by Seller after
Closing, Purchaser acknowledges and agrees that Purchaser’s sole remedy shall
governed by the terms of Section 5.5 hereof.


 


8.             RISK OF LOSS


 


8.1           Minor
Damage. In the event of loss or damage to the Property which is not “major”,
this Agreement shall remain in full force and effect provided Seller performs
any necessary repairs or, at Seller’s option, provides that all right, title
and interest to any claims and proceeds each Trust or their subsidiaries may
have with respect to any casualty insurance policies or condemnation awards
relating to the Property are assigned to Purchaser or retained by the
Applicable Trust or the Property LLCs. In the event that Seller elects to have
the Property LLCs perform repairs upon the Property, Seller shall use
reasonable efforts to cause such repairs to be completed promptly and the date
of Closing shall be extended a reasonable time in order to allow for the
completion of such repairs. If Seller elects to cause a casualty claim to
remain in a Trust or their subsidiaries, the Purchase Price shall be reduced by
an amount equal to the deductible amount under the applicable insurance policy,
and, subject to Seller’s rights under Section 8.4, the amount of any uninsured
loss. Upon Closing, full risk of loss with respect to a casualty or
condemnation to the Property shall pass to Purchaser due to its ownership of
the Trusts and their subsidiaries.


 


8.2           Major
Damage. In the event of a “major” loss or damage, Purchaser may terminate this
Agreement by written notice to Seller, in which event the Deposit shall be
returned to Purchaser. If Purchaser does not elect to terminate this Agreement
within ten (10) days after Seller sends Purchaser written notice of the
occurrence of major loss or damage, then Seller and Purchaser shall be deemed
to have elected to proceed with 


 


49

















 


Closing, in which event Seller
shall, at Seller’s option, either (a) perform or cause the Property LLCs to
perform any necessary repairs, or (b) take such steps to ensure that the Trusts
or the Property LLCs retain all of Seller’s right, title and interest to any
claims and proceeds Seller, the Trusts and the Property LLCs may have with
respect to any casualty insurance policies or condemnation awards relating to
the Property, notwithstanding the transactions contemplated by this Agreement.
In the event that Seller elects to perform repairs upon the Property, Seller
shall use reasonable efforts to complete such repairs promptly and the date of
Closing shall be extended a reasonable time in order to allow for the
completion of such repairs. If Seller elects to assign a casualty claim to
Purchaser, the Purchase Price shall be reduced by an amount equal to the
deductible amount under Seller’s insurance policy, and, subject to Seller’s
rights under Section 8.4, the amount of any uninsured loss. Upon Closing, full
risk of loss with respect to a casualty or condemnation to the Property shall
pass to Purchaser due to its ownership of the Trusts and the Property LLCs.


 


8.3           Definition
of “Major” Loss or Damage. For purposes of Sections 8.1 and 8.2, “major” loss
or damage refers to the following:  (i)
loss or damage to the Property or any portion thereof such that the cost of
repairing or restoring the Property, in the aggregate, to a condition
substantially identical to that of the Property prior to the event of damage
would be, in the opinion of an architect selected by Seller and reasonably
approved by Purchaser, equal to or greater than Twenty Million Dollars
($20,000,000.00), (ii) any loss due to a condemnation which permanently and
materially impairs the current use of the Property or results in a reduction in
the value of the Property in the aggregate in excess of Twenty Million Dollars
($20,000,000.00), as determined by reference to the amount of the condemnation
award, or (iii) any material (judged across the Property as a whole) loss,
through condemnation, of access, parking or development or air rights relating
to the Property as reasonably determined by Purchaser, or if the proposed
condemnation would result in the loss of or a change in the Property’s status
as a legally conforming use. If Purchaser does not give notice to Seller of
Purchaser’s reasons for disapproving an architect within five (5) Business Days
after receipt of notice of the proposed architect, Purchaser shall be deemed to
have approved the architect selected by Seller.


 


8.4           Uninsured
Losses. Notwithstanding the foregoing, in the event of a loss or damage to any
of the Property, for which no insurance or other third party compensation is
available to reimburse the cost to remedy such loss or damage and such
uninsured loss exceeds Ten Million Dollars ($10,000,000.00), then within ten
(10) days of Seller sending written notice to Purchaser of such uninsured loss,
Seller shall either elect to:  (1)
terminate this Agreement, in which event the Deposit shall be returned to
Purchaser, or (2) give a credit to Purchaser at Closing equal in amount to the
cost to remedy the uninsured loss, as reasonably determined by Seller and
Purchaser, provided that if the parties are unable to agree on the amount of
the uninsured loss to be credited against the Purchase Price, either party may
terminate the Agreement.


 


50

















 


9.             COMMISSIONS


 


9.1           Brokerage
Commissions. In the event the transaction contemplated by this Agreement is
consummated, but not otherwise, Seller agrees to pay to Eastdil Secured, L.L.C.
(“Broker”) at Closing a brokerage commission pursuant to a separate written
agreement between Seller and Broker. Each party agrees that should any claim be
made for brokerage commissions or finder’s fees by any broker or finder,
through or on account of any acts of said party or its representatives, said
party will indemnify and hold the other party free and harmless from and
against any and all loss, liability, cost, damage and expense in connection
therewith. The provisions of this paragraph shall survive Closing or earlier
termination of this Agreement.


 


10.           DISCLAIMERS AND
WAIVERS


 


10.1         No
Reliance on Documents. Except as expressly stated herein, Seller makes no
representation or warranty as to the truth, accuracy or completeness of any
materials, data or information delivered by Seller to Purchaser in connection
with the transaction contemplated hereby. Purchaser acknowledges and agrees
that all materials, data and information delivered by Seller to Purchaser in
connection with the transaction contemplated hereby are provided to Purchaser
as a convenience only and that any reliance on or use of such materials, data
or information by Purchaser shall be at the sole risk of Purchaser, except as
otherwise expressly stated herein. Without limiting the generality of the
foregoing provisions, Purchaser acknowledges and agrees that (a) any
environmental or other report with respect the Property which is delivered by
Seller to Purchaser shall be for general informational purposes only, (b)
Purchaser shall not have any right to rely on any such report delivered by
Seller to Purchaser, but rather will rely on its own inspections and
investigations of the Property and any reports commissioned by Purchaser with
respect thereto, and (c) neither Seller, any affiliate of Seller nor the person
or entity which prepared any such report delivered by Seller to Purchaser,
shall have any liability to Purchaser for any inaccuracy in or omission from
any such report.


 


10.2         DISCLAIMERS
AND WAIVERS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, IT IS UNDERSTOOD
AND AGREED THAT SELLER IS NOT MAKING AND HAS NOT AT ANY TIME MADE ANY
WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESSED OR IMPLIED,
WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR
REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE, ZONING, TAX CONSEQUENCES, LATENT OR PATENT PHYSICAL OR
ENVIRONMENTAL CONDITION, UTILITIES, OPERATING HISTORY OR PROJECTIONS,
VALUATION, GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE PROPERTY WITH LAWS,
THE TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION PROVIDED BY OR ON BEHALF
OF SELLER TO PURCHASER, OR ANY OTHER MATTER OR THING REGARDING THE PROPERTY.
PURCHASER ACKNOWLEDGES AND AGREES THAT UPON CLOSING PURCHASER SHALL ACCEPT THE
PROPERTY “AS IS, WHERE IS, WITH ALL FAULTS,” EXCEPT TO THE EXTENT EXPRESSLY 


 


51

















 


PROVIDED OTHERWISE IN THIS AGREEMENT. EXCEPT AS OTHERWISE EXPRESSLY
PROVIDED IN THIS AGREEMENT, PURCHASER HAS NOT RELIED AND WILL NOT RELY ON, AND
SELLER IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESSED OR IMPLIED WARRANTIES,
GUARANTIES, STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE SHARES
OR THE PROPERTIES OR RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT
LIMITATION, PROPERTY INFORMATION PACKAGES DISTRIBUTED WITH RESPECT TO THE
PROPERTY AND THE SHARES) MADE OR FURNISHED BY SELLER OR ANY REAL ESTATE BROKER
OR AGENT REPRESENTING OR PURPORTING TO REPRESENT SELLER, TO WHOMEVER MADE OR
GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, UNLESS SPECIFICALLY SET
FORTH IN THIS AGREEMENT. PURCHASER REPRESENTS TO SELLER THAT PURCHASER HAS
CONDUCTED, OR WILL CONDUCT PRIOR TO CLOSING, SUCH INVESTIGATIONS OF THE
PROPERTY, INCLUDING BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL
CONDITIONS THEREOF, AS PURCHASER DEEMS NECESSARY TO SATISFY ITSELF AS TO THE
CONDITION OF THE PROPERTY AND THE EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION
TO BE TAKEN WITH RESPECT TO ANY HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED
FROM THE PROPERTY, AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION
PROVIDED BY OR ON BEHALF OF SELLER OR ITS AGENTS OR EMPLOYEES WITH RESPECT
THERETO, OTHER THAN SUCH REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AS
ARE EXPRESSLY SET FORTH IN THIS AGREEMENT. UPON CLOSING, PURCHASER SHALL ASSUME
THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION
DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN
REVEALED BY PURCHASER’S INVESTIGATIONS, AND PURCHASER, UPON CLOSING, SHALL BE
DEEMED TO HAVE WAIVED, RELINQUISHED AND RELEASED SELLER (AND SELLER’S OFFICERS,
DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS) FROM AND AGAINST ANY AND ALL
CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT), LOSSES,
DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEYS’ FEES AND COURT
COSTS) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH PURCHASER
MIGHT HAVE ASSERTED OR ALLEGED AGAINST SELLER (AND SELLER’S OFFICERS,
DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS) AT ANY TIME BY REASON OF OR
ARISING OUT OF ANY LATENT OR PATENT CONSTRUCTION DEFECTS OR PHYSICAL
CONDITIONS, VIOLATIONS OF ANY APPLICABLE LAWS (INCLUDING, WITHOUT LIMITATION,
ANY ENVIRONMENTAL LAWS AND THE ADA) AND ANY AND ALL OTHER ACTS, OMISSIONS,
EVENTS, CIRCUMSTANCES OR MATTERS REGARDING THE PROPERTIES, EXCEPT TO THE EXTENT
EXPRESSLY PROVIDED FOR ELSEWHERE HEREIN INCLUDING, WITHOUT LIMITATION, TO THE
EXTENT PROVIDED IN SECTION 5.5 HEREOF.


 


10.3         Effect
and Survival of Disclaimers. Seller and Purchaser acknowledge that the
compensation to be paid to Seller for the Shares has been decreased to take
into 


 


52

















 


account that the Shares are being sold subject to the provisions of
this Article 10. Seller and Purchaser agree that the provisions of this Article
10 shall survive Closing.


 


11.           MISCELLANEOUS


 


11.1         Confidentiality.
Purchaser and its representatives shall hold in strictest confidence all data
and information obtained with respect to Seller, the Transferred Companies,
Illinois Manager, or the Property Managers (collectively, the “Seller Parties”)
or its business, whether obtained before or after the execution and delivery of
this Agreement, and shall not disclose the same to others; provided, however,
that it is understood and agreed that Purchaser may disclose such data and
information to the employees, consultants, accountants and attorneys of
Purchaser provided that such persons are informed of the confidentiality
provisions and are directed  to treat
such data and information confidentially. In addition, to the extent that
Purchaser determines that Purchaser is required to notify any federal, state or
local governmental agency, or any other party, with respect to the conditions
at the Property or as otherwise discovered by Purchaser, Purchaser shall notify
Seller immediately, and Seller shall make such disclosures as Seller deems
appropriate. If Seller determines that Seller will not make a disclosure and
Purchaser feels that such disclosure is still required by law and notifies
Seller to that effect, then Seller shall hire an independent consultant
reasonably acceptable to Seller and Purchaser to determine whether or not such
disclosure is required and such determination will be binding upon both Seller
and Purchaser. In the event this Agreement is terminated or Purchaser fails to
perform hereunder, Purchaser shall promptly destroy or return to Seller any
statements, documents, schedules, exhibits or other written information
obtained from the Seller Parties in connection with this Agreement or the
transaction contemplated herein. It is understood and agreed that, with respect
to any provision of this Agreement which refers to the termination of this
Agreement and the return of the Deposit to Purchaser, such Deposit shall not be
returned to Purchaser unless and until Purchaser has fulfilled its obligation
to destroy or return to Seller any materials delivered to Purchaser by Seller.
In the event of a breach or threatened breach by Purchaser or its agents or
representatives of this Section 11.1, the Seller Parties shall be entitled to
seek an injunction restraining Purchaser or its agents or representatives from
disclosing, in whole or in part, such confidential information. Nothing herein
shall be construed as prohibiting Seller from pursuing any other available
remedy at law or in equity for such breach or threatened breach. Notwithstanding
the foregoing provisions or anything else to the contrary contained in this
Agreement: (i) the foregoing covenant of confidentiality shall not be
applicable to any information published by Seller as public knowledge or
otherwise available in the public domain; (ii) Purchaser shall be permitted to
disclose such information as may be recommended by Purchaser’s legal counsel in
order to comply with all financial reporting, securities laws, court order,
subpoena and other legal requirements applicable to Purchaser, including any
required disclosures to the Securities and Exchange Commission; and (iii) any
duty of confidentiality set forth in this Agreement shall terminate upon
Closing. The provisions of this Section 11.1 shall survive the termination of
this Agreement prior to the Closing.


 


53

















 


11.2         Public
Disclosure. Any press release to the public of information with respect to the
sale contemplated herein or any matters set forth in this Agreement will be
made only in a form approved by Purchaser and Seller and their respective
counsel (such approval not to be unreasonably withheld), provided, however,
either party shall have the right after Closing to issue a press release
announcing the sale of the Shares and
the resulting ownership and control of the Property without prior written
approval of the other so long as the press release does not expressly disclose
the economic terms hereof. Notwithstanding the foregoing, Purchaser, and Seller
and their respective agents may make such disclosures as are required by law or
in connection with non-public marketing efforts or internal reporting
requirements, including, without limitation, reports by either party to their
respective investors. The provisions of this Section 11.2 shall survive
Closing.


 


11.3         Discharge
of Obligations. The purchase of the Shares by Purchaser shall be deemed to be a
full performance and discharge of every representation and warranty made by
Seller herein and every agreement and obligation on the part of Seller to be
performed pursuant to the provisions of this Agreement, except those which are
herein specifically stated to survive Closing.


 


11.4         Assignment.
Purchaser may not assign its rights under this Agreement without first obtaining
Seller’s written approval, which approval may be given or withheld in Seller’s
sole discretion. Notwithstanding the foregoing, Purchaser shall have the right
to assign its rights under this Agreement, without first obtaining Seller’s
written approval, to any wholly-owned subsidiary of Purchaser. In the event
Seller’s written approval is given to an assignment of this Agreement, or if
Purchaser assigns this Agreement as otherwise permitted, Purchaser shall
nevertheless remain liable for the performance of all covenants and conditions
of this Agreement, and, in the case of an assignment, such liability shall be
joint and several. The provisions of this Section 11.4 shall survive Closing.


 


11.5         Notices.
Any notice pursuant to this Agreement shall be given in writing by (a) personal
delivery, or (b) reputable overnight delivery service with proof of delivery,
or (c) United States Mail, postage prepaid, registered or certified mail,
return receipt requested, or (d) legible facsimile transmission sent to the intended
addressee at the address set forth below, or to such other address or to the
attention of such other person as the addressee shall have designated by
written notice sent in accordance herewith, and shall be deemed to have been
given either at the time of personal delivery, or, in the case of expedited
delivery service or mail, as of the date of first attempted delivery at the
address and in the manner provided herein, or, in the case of facsimile
transmission, as of the date of the facsimile transmission provided that an
original of such facsimile is also sent to the intended addressee by means
described in clauses (a), (b) or (c) above. Notices sent by a party’s attorney
shall constitute notice from the applicable party. Unless changed in accordance
with the preceding sentence, the addresses for notices given pursuant to this
Agreement shall be as follows:


 


54

















 


If to Seller:


 


BCSP IV U.S. Investments, L.P.


c/o Beacon Capital Partners


200 State Street, 5th Floor


Boston, MA 02109


Attn: William A. Bonn, Esq.


TELECOPY: (617) 457-0499


 


with a copy to:


 


Goodwin Procter LLP


Exchange Place


Boston, MA 02109


Attn: Christopher B. Barker, Esq.


TELECOPY:  (617) 523-1231


 


If to Purchaser:


 


Behringer Harvard Operating Partnership I LP


c/o Harvard Property Trust, LLC


15601 Dallas Parkway Suite 600


Addison, Texas 75001


Attention: Jon Dooley


TELECOPY:  214-655-1600


 


with copies to:


 


Jones Day


2727 North Harwood Street


Dallas, Texas  75201


Attention:  Mark V. Minton, Esq. and
Michelle R Brown, Esq.


TELECOPY:  214-969-5100


 


and


 


Powell Coleman & Arnold LLP


8080 North Central Expressway, Suite 1380


Dallas, Texas  75206


Attention:  Patrick M. Arnold


TELECOPY:  214-373-8768


 


The provisions of this Section 11.5 shall survive
Closing.


 


11.6         Modifications.
This Agreement cannot be changed orally, and no executory agreement shall be
effective to waive, change, modify or discharge it in whole 


 


55

















 


or in part unless such executory agreement is in writing and is signed
by the parties against whom enforcement of any waiver, change, modification or
discharge is sought.


 


11.7         Calculation
of Time Periods. Unless otherwise specified, in computing any period of time
described in this Agreement, the day of the act or event after which the
designated period of time begins to run is not to be included and the last day
of the period so computed is to be included, unless such last day is not a
Business Day, in which event the period shall run until the end of the next day
which is a Business Day. For the purposes of this Agreement, a “Business Day”
shall mean any day of the week other than Saturday, Sunday or a day on which
banking institutions in Boston, Massachusetts, are obligated or authorized by law
or executive action to be closed to the normal transaction of banking business.
The final day of any such period shall be deemed to end at 5 p.m., local time
in the Commonwealth of Massachusetts. The provisions of this Section 11.7 shall
survive Closing.


 


11.8         Successors
and Assigns. The terms and provisions of this Agreement are to apply to and
bind the permitted successors and assigns of the parties hereto.


 


11.9         Entire
Agreement. This Agreement, including the Exhibits, contains the entire
agreement between the parties pertaining to the subject matter hereof and fully
supersedes all prior written or oral agreements and understandings between the
parties pertaining to such subject matter.


 


11.10       Further
Assurances. Each party agrees that it will without further consideration
execute and deliver such other documents and take such other action, whether
prior or subsequent to Closing, as may be reasonably requested by the other
party to consummate more effectively the purposes or subject matter of this Agreement.
Without limiting the generality of the foregoing, (i) Purchaser shall, if
requested by Seller, execute acknowledgments of receipt with respect to any
materials delivered by Seller to Purchaser with respect to the Property or the
Shares, and (ii) Seller shall cooperate with Purchaser in connection with all
filings necessary to change the registered agent of the Trusts and the Property
LLCs to a registered agent designated by Purchaser in each state where the
Transferred Companies are formed and doing business. The provisions of this
Section 11.10 shall survive Closing.


 


11.11       Counterparts.
This Agreement may be executed in counterparts, and all such executed
counterparts shall constitute the same agreement. It shall be necessary to
account for only one such counterpart in proving this Agreement. This Agreement
may be executed via facsimile or by sending copies of the executed Agreement
via email followed by regular mail of the originals and shall be considered
executed and binding upon receipt of the fax or email of the signature page of
the last of the party’s signature to this Agreement.


 


11.12       Severability.
If any provision of this Agreement is determined by a court of competent
jurisdiction to be invalid or unenforceable, the remainder of this Agreement
shall nonetheless remain in full force and effect.


 


56
















 


11.13                     Applicable Law. THIS AGREEMENT IS
PERFORMABLE IN THE STATE OF MARYLAND AND SHALL IN ALL RESPECTS BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE SUBSTANTIVE FEDERAL LAWS OF THE UNITED
STATES AND THE LAWS OF SUCH STATE. SELLER AND PURCHASER HEREBY IRREVOCABLY
SUBMIT TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN THE STATE
OF MARYLAND IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND HEREBY IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH
ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED IN A STATE OR FEDERAL COURT
SITTING IN THE STATE OF MARYLAND. PURCHASER AND SELLER AGREE THAT THE
PROVISIONS OF THIS SECTION 11.13 SHALL SURVIVE THE CLOSING OF THE
TRANSACTION CONTEMPLATED BY THIS AGREEMENT.


 


11.14                     No Third Party Beneficiary. The
provisions of this Agreement and of the documents to be executed and delivered
at Closing are and will be for the benefit of Seller and Purchaser only and are
not for the benefit of any third party, and accordingly, no third party shall
have the right to enforce the provisions of this Agreement or of the documents
to be executed and delivered at Closing.


 


11.15                     Captions. The section headings
appearing in this Agreement are for convenience of reference only and are not
intended, to any extent and for any purpose, to limit or define the text of any
section or any subsection hereof.


 


11.16                     Construction. The parties
acknowledge that the parties and their counsel have reviewed and revised this
Agreement and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Agreement or any exhibits or amendments hereto.


 


11.17                     Termination of Agreement. It is
understood and agreed that if either Purchaser or Seller terminate this
Agreement pursuant to a right of termination granted hereunder, such
termination shall operate to relieve Seller and Purchaser from all obligations
under this Agreement, except for such obligations as are specifically stated
herein to survive the termination of this Agreement.


 


11.18                     Time of the Essence. Time is of
the essence of this Agreement and all covenants and deadlines hereunder.
Without limiting the foregoing, Purchaser and Seller hereby confirm their intention
and agreement that time shall be of the essence of each and every provision of
this Agreement, notwithstanding any subsequent modification or extension of any
date or time period that is provided for under this Agreement. The agreement of
Purchaser and Seller that time is of the essence of each and every provision of
this Agreement shall not be waived or modified by any conduct of the parties,
and the agreement of Purchaser and Seller that time is of the essence of each
and every provision of this Agreement may only be modified or waived by
the express written agreement of Purchaser and Seller that time shall not be of
the essence with respect to a particular date or time period, or any
modification or extension thereof, which is provided under this Agreement.


 


57

















 


11.19                     Recordation. This Agreement may not
be recorded or registered with any local land records office and any attempt to
do so shall be of no effect whatsoever. Any attempt to so record or register
this Agreement or a memorandum thereof by Purchaser shall be considered a
default by Purchaser pursuant to Section 7.1 and Seller may terminate
this Agreement and retain the Deposit.


 


 


58

















 


IN WITNESS WHEREOF, the
parties hereto have duly executed this Agreement as of the Effective Date.


 


	
   

  	
  PURCHASER:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BEHRINGER HARVARD OPERATING

  PARTNERSHIP I LP,a Texas limited

  partnership

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Behringer Harvard REIT I, Inc.

  	
   

  
	
   

  	
   

  	
  a Maryland corporation,

  	
   

  
	
   

  	
   

  	
  its general partner

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SELLER:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BCSP IV U.S. INVESTMENTS, L.P., a Delaware
  limited partnership

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: BCSP REIT IV, Inc., a Maryland
  corporation, its General Partner

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  	
   

  
										



 


59

















 


Schedule I


List of
Defined Terms


 


“10/120 Trust” – See Recital A.


 


“10/120 Ground Lessee” – See Recital D.


 


“10/120 Ground Lessor” – See Recital D.


 


“10/120 Property Manager” – See Recital F.


 


“10/120 South Riverside Property” – See
Recital D.


 


“200 South Wacker LLC” – See Recital C.


 


“200 South Wacker Property” – See Recital C.


 


“200 South Wacker Property Manager” – See
Recital F.


 


“200 South Wacker Services” – See Section 1.1.7.


 


“Acceptable Letter of Credit” – See Section 1.4.


 


“ADA” – See Section 6.4.1.


 


“Additional Rents” –See Section 4.5.2.


 


“Agreement” – See Introductory Paragraph.


 


“Applicable Trust” – means either the BCSP IV
Illinois Trust, the 10/120 Trust or the OFP Trust, to the extent applicable.


 


“Appurtenances” –See Section 1.1.1.


 


“BCSP IV Illinois Trust” – See Recital A.


 


“Broker” – See Section 9.1.


 


“Business Day” – See Section 11.7.


 


“CERCLA” – See Section 5.3.6.


 


“Closing” – See Section 4.1.


 


“Closing Date” –See Section 4.1.


 


60

















 


“Closing Statement” – See Section 4.4.3.


 


“Code” means the Internal Revenue Code of
1986, as amended, and all rules and regulations promulgated thereunder.


 


“Consent” – See Section 1.5.


 


“Consent Documentation” – See Section 1.5.


 


“Consent Extension” – See Section 4.1.


 


“Consent Fees” – See Section 1.5.


 


“Continuing Management Agreement” – See Section 5.6.2.


 


“Damages” – See Section 5.5.2


 


“Deductible” – See Section 5.5.3.


 


“Deposit” – See Section 1.4.


 


“Designated Employees” – See Section 5.4.


 


“Earnest Money” – See Section 1.4.


 


“Effective Date” – See Introductory
Paragraph.


 


“Escrow Agent” – See Section 1.4.


 


“Escrow Agreement” – See Section 1.4.


 


“Estoppel Return Date” –See Section 4.6.5.


 


“Existing Indebtedness” – See Section 1.5.


 


“Extension Notice” –See Section 4.1.


 


“Financial Statements” –See Section 5.2.4.


 


“Hazardous Substances” – See Section 5.3.6.


 


“Illinois Manager” – See Recital B.


 


“Improvements” – See Section 1.1.2.


 


61

















 


“Intangible Property” – See Section 1.1.5.


 


“Individual Property” – See Section 1.1.8.


 


“Kimco OFP Interest” – See Recital H.


 


“Kimco OFP LLC” – See Recital H.


 


“Kimco OFP Purchase Transaction” – See Recital
I.


 


“Kimco Purchase Agreement” – See Recital I.


 


“Land” – See Section 1.1.1.


 


“Leases” – See Section 5.3.2.


 


“Lease Schedule” – See Section 5.3.2.


 


“Legal Requirement”  means
any federal, state, local, municipal, foreign, international, multinational, or
other administrative order, constitution, law, ordinance, principle of common
law, regulation, statute, or treaty.


 


“Lenders” – See Section 1.5.


 


“Liability Policies” –See Section 5.3.13.


 


“Lien”  means any
lien, judgment, mortgage, deed of trust, charge, option, contractual
restriction on transfer, security interest, tax lien, pledge, encumbrance,
conditional sale or title retention arrangement, broker’s lien, mechanic’s or
materialman’s lien or any other claim against the Property (or any portion
thereof), as the case may be, or any agreement to create or confer any of
the foregoing, in each case whether arising by agreement or under any statute,
law, governmental ordinance, rule, regulation, decree, order or requirement of
any governmental authority now or hereafter existing or otherwise.


 


“Major Tenant” –See Section 4.6.5.


 


“OFP Equity” – See Recital E.


 


“OFP Holding” – See Recital E.


 


“OFP LLC” – See Recital E.


 


“OFP Property Manager” – See Recital F.


 


“OFP Services” – See Recital E.


 


62

















 


“OFP Trust Loan” – See Recital I.


 


“One Financial Place” – See Recital E.


 


“Operating Agreements” – See Section 5.3.1.


 


“Organizational Documents” – See Section 5.2.8.


 


“Permits” – See Section 1.1.4.


 


“Personal Property” – See Section 1.1.6.


 


“Plans” –See Section 1.1.2.


 


“Property” – See Section 1.1.8.


 


“Property LLC” – See Recital E.


 


“Property LLCs” – See Recital E.


 


“Property Manager” – See Recital F.


 


“Property Managers” – See Recital F.


 


“Property Representation Expiration Date” –
See Section 5.5.1.


 


“Proposed New Lease” – See Section 5.6.10.


 


“Purchase Price” – See Section 1.2.


 


“Purchaser” – See Introductory Paragraph.


 


“Purchaser Indemnified Party” – See Section 5.5.2.


 


“Purchaser Liability Cap” – See Section 6.3.3.


 


“RCRA” – See Section 5.3.6.


 


“REIT” – See Section 4.6.1.


 


“Remaining Representation Expiration Date” –
See Section 5.5.1.


 


“Replacement Guaranties” – See Section 1.5.


 


“SARA” – See Section 5.3.6.


 


63

















 


“Second Additional Deposit” – See Section 4.1.


 


“Seller” – See Introductory Paragraph.


 


“Seller Encumbrance” – See Section 2.3.


 


“Seller Guaranties” – See Section 1.5.


 


“Seller Indemnified Party” – See Section 6.3.1.


 


“Seller Liability Cap” – See Section 5.5.4.


 


“Seller Parties” – See Section 11.1.


 


“Seller Release” – See Section 1.5


 


“Shares” – See Recital G.


 


“Study Period” – See Section 3.1.


 


“Substitute Loan Documents” – See Section 1.5.


 


“Surveys” – See Section 2.2.


 


“Tax” means any tax (including any income
tax, gross margin tax, capital gains tax, value-added tax, sales tax, transfer
tax, property tax, gift tax, or estate tax), levy, assessment, tariff, duty
(including any customs duty), deficiency, or other similar charge, and any
related charge or amount (including any fine, penalty, interest, or addition to
tax), imposed, assessed, or collected by or under the authority of any taxing
authority or payable pursuant to any tax-sharing agreement or any other
contract relating to the sharing or payment of any such tax, levy, assessment,
tariff, duty, deficiency, or similar charge.


 


“Tax Return”  means
any return (including any information return), report, statement, schedule,
notice, form, or other document or information filed with or submitted to, or
required to be filed with or submitted to, any taxing authority in connection
with the determination, assessment, collection, or payment of any Tax or in
connection with the administration, implementation, or enforcement of or
compliance with any Legal Requirement relating to any Tax.


 


“Tests” — See Section 3.1.


 


“Title Commitment” – See Section 2.1.


 


“Title Company” – See Section 2.1.


 


64

















 


“Title Policy” –See Section 4.5.1.


 


“Transfer Document” – See Section 4.2.1.


 


“Transferred Companies” – See Section 1.1.7.


 


“Transferred Contracts” – See Section 1.1.8.


 


“Transferred Documentation” – See Section 1.1.7.


 


“Transferred Properties” – See Recital E.


 


“Transferred Property” – See Recital E.


 


“Trusts” – See Recital A.


 


65

















 


Schedule 1.1.5


List of Trade Names


 


200 South Wacker Drive


 


10 South Riverside Plaza


 


120 South Riverside Plaza


 


One Financial Place


also known as 440 South LaSalle Street


 


66

















 


Schedule 1.1.6


Personal Property


 


67

















 


Schedule 1.2


Purchase Price Allocation


 


	
  [One
  Financial Place

  	
   

  	
  $

  	
  310,000,000

  	
  ]

  
	
  [10/120
  South Riverside Property

  	
   

  	
  $

  	
  360,000,000

  	
  ]

  
	
  [200 South
  Wacker Property

  	
   

  	
  $

  	
  170,000,000

  	
  ]

  



 


[NTD: FINAL ALLOCATIONS TBD]


 


68

















 


Schedule 4.4.2(ix)


 


Tenant Improvements and Leasing
Commissions


 


69

















 


Schedule 4.4.2(x)


 


Rent Abatement Schedule


 


70

















 


Schedule 4.4.2(xiii)


Renovations
and Improvements


 


71

















 


Schedule 5.1.3


Consents
and Approvals


 


NONE


 


72

















 


Schedule 5.2.3(i)(A)


Preferred
Shareholders of 10/120 Trust


 


73

















 


Schedule 5.2.3(ii)(A)


Preferred
Shareholders of BCSP IV Illinois Trust


 


74

















 


Schedule 5.2.3(iii)(A)


Preferred
Shareholders of OFP Trust


 


75

















 


Schedule 5.2.3(iii)


Third
Party Owners of Membership Interests of OFP Holding


 


Kimco OFP LLC owns 19.123%
of OFP Holding


 


76

















 


Schedule 5.2.5


Pending
Litigation


 


10/120 South Riverside Plaza


 


Café Baci - HVAC/MAU
dispute - This dispute has been settled and JLL is in the process of obtaining
final waivers of lien from Baci’s contractors. Landlord will pay $148,000 of
the cost of the installation of the AHU/MAU in Café Baci’s space.


 


Marwedel Minichello - lien claim
by JC Anderson for tenant improvement work - Marwedel Minichello has settled
with JC Anderson and has delivered a Final Waiver of Lien from JC Anderson. This
issue is resolved.


 


DHR International — Walsh
Construction Company of Illinois, as plaintiff v. EPS Solutions, Inc., DHR
International, Inc., Trizec Hahn 10/120 Fee, LLC, Trizec Hahn Regional
Pooling, LLC, and others, as defendants, in the Circuit Court of Cook County,
Illinois, Case No. 02 CH 20598 - The case involves Walsh Construction’s
foreclosure of an $80,000 lien claim from work it did for EPS solutions, DHR
International’s predecessor in interest. In the trial court, Walsh Construction
was found to have a valid lien claim for $80,000, plus interest, and DHR
International was found to owe the owner indemnity against the lien claim. DHR
International appealed and posted a $125,000 letter of credit as security for a
stay pending appeal. The Appellate Court recently affirmed the decision of the
trial court, but DHR International has petitioned for a rehearing. When the
previous owner sold the building, it gave the title company an indemnity, and
the title company insured over the foreclosure proceedings.


 


77

















 


Schedule 5.2.6(ii)


Tax Audits


 


NONE


 


78

















 


Schedule 5.2.6(xiii)


Classification of Transferred
Companies and Property Managers


 


79

















 


Schedule 5.2.7


Organizational
Documents


 


•                  OFP Illinois
Business Trust Amended and Restated Declaration of Trust dated October 19,
2006


 


•                  OFP Illinois
Business Trust Certificate of Trust dated July 7, 2006


 


•                  OFP Illinois
Business Trust By-laws


 


•                  OFP Illinois
Property Manager LLC Limited Liability Company Agreement dated as of July 10,
2006


 


•                  Certificate of
Formation of OFP Illinois Property Manager LLC dated July 10, 2006


 


•                  OFP Equity LLC
Limited Liability Company Agreement dated July 7, 2006


 


•                  Certificate of
Formation of OFP Equity LLC dated July 6, 2006


 


•                  One Financial
Place Holding LLC Limited Liability Company Agreement dated as of July 10,
2006


 


•                  Certificate of
Formation of One Financial Place Holding LLC dated July 6, 2006


 


•                  One Financial
Place Property LLC Limited Liability Company Agreement dated as of July 10,
2006


 


•                  Certificate of
Formation of One Financial Place Property LLC dated April 24, 2006


 


•                  OFP Illinois
Services LLC Limited Liability Company Agreement dated as of July 10, 2006


 


•                  Certificate of
Formation of OFP Illinois Services LLC dated July 10, 2006


 


•                  10/120 South
Riverside Illinois Business Trust Amended and Restated Declaration of Trust
dated January 26, 2007


 


•                  10/120 South
Riverside Illinois Business Trust Certificate of Trust dated September 18,
2006


 


•                  10/120 South
Riverside Illinois Business Trust Bylaws


 


•                  10/120 South
Riverside Illinois Property Manager LLC Limited Liability Company Agreement
dated as of September 19, 2006


 


80

















 


•                  Certificate of
Formation of 10/120 South Riverside Illinois Property Manager LLC dated September 19,
2006


 


•                  10/120 South
Riverside Fee LLC Limited Liability Company Agreement dated as of October 3,
2006


 


•                  Certificate of
Formation of 10/120 South Riverside Fee LLC dated September 19, 2006


 


•                  10/120 South
Riverside Property LLC Limited Liability Company Agreement dated as of October 3,
2006


 


•                  Certificate of
Formation of 10/120 South Riverside Property LLC dated September 19, 2006


 


•                  BCSP IV
Illinois Manager LLC Limited Liability Company Agreement dated as of January 3,
2006


 


•                  Certificate of
Formation of BCSP IV Illinois Manager LLC dated January 3, 2006


 


•                  BCSP IV
Illinois Properties Business Trust Amended and Restated Declaration of Trust
dated July 7, 2006


 


•                  BCSP IV
Illinois Properties Business Trust Bylaws


 


•                  BCSP IV
Illinois Properties Business Trust Certificate of Trust dated January 3,
2006


 


•                  BCSP IV
Illinois Property Manager LLC Limited Liability Company Agreement dated as of January 5,
2006


 


•                  Certificate of
Formation of BCSP IV Illinois Property Manager LLC dated January 5, 2006


 


•                  200 South
Wacker Property LLC Limited Liability Company Agreement dated as of January 6,
2006


 


•                  Certificate of
Formation of 200 South Wacker Property LLC dated Janaury 5, 2006


 


•                  200 South
Wacker Services, Inc. Certificate of Incorporation dated January 9,
2006


 


•                  Bylaws of 200
South Wacker Services, Inc.


 


81

















 


Schedule 5.2.8


Existing
Indebtedness


 


1.                                       10 and 120
South Riverside, Chicago, Illinois


 


•                                          Loan Agreement
dated as of October 3, 2006 by and between 10/120 South Riverside Fee LLC
and 10/120 South Riverside Property LLC (collectively, “South Riverside
Borrower”) and Merrill Lynch Mortgage Lending, Inc. (“South
Riverside Lender”)


 


•                                          Promissory Note
A in the principal sum of $200,000,000.00 dated as of October 3, 2006 by
South Riverside Borrower to South Riverside Lender


 


•                                          Promissory Note
B in the principal sum of $25,000,000.00 dated as of October 3, 2006 by
South Riverside Borrower to South Riverside Lender


 


•                                          Fee and
Leasehold Mortgage, Assignment of Leases and Rents and Security Agreement dated
as of October 3, 2006 by South Riverside Borrower for the benefit of South
Riverside Lender


 


•                                          Assignment of
Leases and Rents dated as of October 3, 2006 by South Riverside Borrower
to South Riverside Lender


 


•                                          Environmental
Indemnity Agreement dated as of October 3, 2006 by South Riverside
Borrower in favor of South Riverside Lender


 


•                                          Subordination
of Property Management Agreement and Management Fees dated as of October 3,
2006 by South Riverside Borrower to South Riverside Lender, consented and
agreed to by 10/120 South Riverside Illinois Property Manager LLC (“South
Riverside Manager”)


 


•                                          Deposit Account
Control Agreement dated as of October 3, 2006 among 10/120 South Riverside
Property LLC, South Riverside Lender and Bank of America, N.A.


 


•                                          Cash Management
Agreement dated as of October 3, 2006 among South Riverside Borrower,
South Riverside Lender, Wachovia Bank, National Association and South Riverside
Manager


 


•                                          Guaranty of
Recourse Obligations dated as of October 3, 2006 by Guarantor for the
benefit of the holder of Promissory Note B


 


•                                          Cooperation
Agreement dated as of October 3, 2006 between South Riverside Borrower and
South Riverside Lender


 


•                                          UCC-1 Financing
Statement naming South Riverside Borrower as Debtor and South Riverside Lender
as Secured Party, recorded with the Cook County, Illinois Recorder


 


•                                          UCC-1 Financing
Statement naming South Riverside Borrower as Debtor and South Riverside Lender
as Secured Party, filed with the Delaware Secretary of State


 


82

















 


2.                                       One Financial
Place, Chicago, Illinois


 


•                                          Promissory Note
in the principal sum of $188,600,000.00 dated as of July 13, 2006 by One
Financial Place Property LLC (“Financial Place Borrower”) in favor of
Wachovia Bank, National Association (“Financial Place Lender”)


 


•                                          Note Severance
Agreement dated as of July 13, 2006 between Financial Place Lender and
Financial Place Borrower


 


•                                          Promissory Note
A in the principal sum of $163,600,000.00 dated as of July 13, 2006 by
Financial Place Borrower in favor of Financial Place Lender


 


•                                          Promissory Note
B in the principal sum of $25,000,000.00 dated as of July 13, 2006 by
Financial Place Borrower in favor of Financial Place Lender


 


•                                          Mortgage,
Security Agreement, Assignment of Rents and Fixture Filing dated as of July 13,
2006 by Financial Place Borrower to Financial Place Lender, as affected by
Modification Agreement dated as of July 13, 2006 between Financial Place
Borrower and Financial Place Lender


 


•                                          Assignment of
Leases and Rents and Security Deposits dated as of July 13, 2006 by
Financial Place Borrower to Financial Place Lender


 


•                                          Consent and
Agreement regarding Property Manager dated as of July 13, 2006 by OFP
Illinois Property Manager LLC for the benefit of Financial Place Lender


 


•                                          Certificate of
Borrower as to Property Matters dated as of July 13, 2006 by Financial
Place Borrower for the benefit of Financial Place Lender


 


•                                          Central Account
Agreement dated as of July 13, 2006 by and among Financial Place Borrower,
Financial Place Lender and Wachovia Bank, National Association


 


•                                          Rent Account
Agreement dated as of July 13, 2006 by and among Financial Place Borrower,
Financial Place Lender and Bank of America, N.A.


 


•                                          Guaranty dated
as of July 13, 2006 by Guarantor for the benefit of Financial Place Lender


 


•                                          UCC-1 Financing
Statement naming Financial Place Borrower as Debtor and Financial Place Lender
as Secured Party, filed with the Delaware Secretary of State


 


3.                                       200 South
Wacker Drive, Chicago, Illinois


 


•                                          Loan Agreement
dated as of January 30, 2006 by and between 200 South Wacker Property LLC
(“South Wacker Borrower”) and Lehman Brothers Bank FSB (“South Wacker
Lender”)


 


83

















 


•                                          Promissory Note
in the principal sum of $95,500,000.00 dated as of January 30, 2006 by
South Wacker Borrower to South Wacker Lender


 


•                                          Mortgage,
Assignment of Leases and Rents and Security Agreement dated as of January 30,
2006 by South Wacker Borrower for the benefit of South Wacker Lender


 


•                                          Assignment of
Leases and Rents dated as of January 30, 2006 by South Wacker Borrower to
South Wacker Lender


 


•                                          Environmental Indemnity
Agreement dated as of January 30, 2006 by South Wacker Borrower and
Guarantor in favor of South Wacker Lender


 


•                                          Subordination
of Property Management Agreement and Management Fees dated as of January 30,
2006 by South Wacker Borrower to South Wacker Lender, consented and agreed to
by BCSP IV Illinois Property Manager LLC (“South Wacker Manager”)


 


•                                          Deposit Account
Control Agreement dated as of January 30, 2006 among South Wacker
Borrower, South Wacker Lender and Bank of America, N.A.


 


•                                          Cash Management
Agreement dated as of January 30, 2006 among South Wacker Borrower,
Wachovia Bank, National Association, South Wacker Lender and South Wacker
Manager


 


•                                          Guaranty of
Recourse Obligations dated as of January 30, 2006 by Guarantor for the
benefit of South Wacker Lender


 


•                                          Limited
Guaranty dated as of January 30, 2006 by Guarantor for the benefit of
South Wacker Lender


 


•                                          Cooperation
Agreement dated as of January 30, 2006 by and between South Wacker
Borrower and South Wacker Lender


 


•                                          UCC-1 Financing
Statement naming South Wacker Borrower as Debtor and South Wacker Lender as
Secured Party, filed with the Delaware Secretary of State


 


•                                          UCC-1 Financing
Statement naming South Wacker Borrower as Debtor and South Wacker Lender as
Secured Party, recorded with the Cook County, Illinois Recorder


 


84

















 


Schedule 5.3.1


List of Operating Agreements


 


85

















 


Schedule 5.3.2


Lease Schedule


 


(i) – Leases


 


86
















 


(ii) – Tenant Improvements


 


See Schedule 4.4.2(ix)


 


(iii) – Leasing Commissions


 


See Schedule 4.4.2(ix)


 


(iv) - Security Deposits


 


One Financial Place Security Deposits


7/31/2007


 


	
  Blue Capital Group, LLC

  	
   

  	
  (58,921.00

  	
  )

  
	
  Bullwinkle & Associates

  	
   

  	
  (1,437.50

  	
  )

  
	
  Essex Radez

  	
   

  	
  (8,000.00

  	
  )

  
	
  G Bar L.P.

  	
   

  	
  (20,895.84

  	
  )

  
	
  Gar Wood Securities, LLC

  	
   

  	
  (10,804.00

  	
  )

  
	
  Group One Trading LP

  	
   

  	
  (15,624.36

  	
  )

  
	
  Instinet Group, LLC

  	
   

  	
  (26,751.26

  	
  )

  
	
  Jesser and Farber LLP

  	
   

  	
  (11,000.00

  	
  )

  
	
  Prudential Securities Inc.

  	
   

  	
  (53,814.06

  	
  )

  
	
  Sunset Securities LLC

  	
   

  	
  (1,839.61

  	
  )

  
	
  SunTrust Capital Markets, Inc

  	
   

  	
  (6,818.75

  	
  )

  
	
  Sydan LP

  	
   

  	
  (13,918.67

  	
  )

  
	
  Term Commodities Inc.

  	
   

  	
  (13,176.92

  	
  )

  
	
  Thomson Financial

  	
   

  	
  (2,500.00

  	
  )

  
	
  Western Union International In

  	
   

  	
  (4,352.67

  	
  )

  
	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  (249,854.64

  	
  )

  



 


200 South Wacker Security Deposits


7/31/2007


 


	
  CSC Futures, LLC

  	
   

  	
  (40,000.00

  	
  )

  
	
  Colliers, Bennett & Kahnweiler

  	
   

  	
  (15,740.34

  	
  )

  
	
  E&IIA, Inc.

  	
   

  	
  (31,135.72

  	
  )

  
	
  Harris Holdings, Inc.

  	
   

  	
  (25,000.00

  	
  )

  
	
  Kelter Alliant Insurance Svcs

  	
   

  	
  (64,227.05

  	
  )

  
	
  Neustar, Inc.

  	
   

  	
  (3,375.00

  	
  )

  
	
  Ruesch International Inc

  	
   

  	
  (76,742.00

  	
  )

  
	
  Shoreline Marine Company

  	
   

  	
  (6,250.00

  	
  )

  
	
  The Field Foundation

  	
   

  	
  (1,197.00

  	
  )

  
	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  (263,667.11

  	
  )

  



 


87

















 


10 South Riverside Security Deposits


7/31/2007


 


	
  American Medical Design Corpor

  	
   

  	
  (50,000.00

  	
  )

  
	
  Corus Bank

  	
   

  	
  (1,000.00

  	
  )

  
	
  Easy Forex US, Ltd.

  	
   

  	
  (10,750.00

  	
  )

  
	
  Hochfelder, Birkenstein, Lipin

  	
   

  	
  (19,037.50

  	
  )

  
	
  Human Capital Management Sol

  	
   

  	
  (5,000.00

  	
  )

  
	
  Integrated Data Storage Inc

  	
   

  	
  (12,000.00

  	
  )

  
	
  Landau & Heyman LTD

  	
   

  	
  (11,000.00

  	
  )

  
	
  Riverside Newstand Kantila M P

  	
   

  	
  (1,630.42

  	
  )

  
	
  Parlano, Inc

  	
   

  	
  (18,732.00

  	
  )

  
	
  Stelar Inc

  	
   

  	
  (2,211.25

  	
  )

  
	
  The Standard Register Company

  	
   

  	
  (35,000.00

  	
  )

  
	
  Vestor Capital Corporation

  	
   

  	
  (50,000.00

  	
  )

  
	
  Yipes Enterprises, Inc.

  	
   

  	
  (5,707.59

  	
  )

  
	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  (222,068.76

  	
  )

  



 


120 South Riverside Security Deposits


7/31/2007


 


	
  Experient

  	
   

  	
  (30,000.00

  	
  )

  
	
  Illinois Criminal

  	
   

  	
  (6,500.00

  	
  )

  
	
  Medina and Thompson, Inc

  	
   

  	
  (2,764.00

  	
  )

  
	
  R-K Cigar Company

  	
   

  	
  (1,000.00

  	
  )

  
	
  Schindler Elevator Corporation

  	
   

  	
  (3,667.48

  	
  )

  
	
  Solomon A Weisgal

  	
   

  	
  (2,977.33

  	
  )

  
	
  Somera Communications Inc

  	
   

  	
  (12,734.08

  	
  )

  
	
  Yipes Enterprises, Inc.

  	
   

  	
  (5,708.02

  	
  )

  
	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  (65,350.91

  	
  )

  



 


Letters of Credit


As of June 30, 2007


 


	
  Entity

  	
   

  	
  Tenant

  	
   

  	
  Amount

  	
   

  	
  Total

  	
   

  
	
  OFP

  	
   

  	
  Allston
  Trading

  	
   

  	
  174,394.40

  	
   

  	
   

  	
   

  
	
  OFP

  	
   

  	
  Xchange
  Financial

  	
   

  	
  13,188.98

  	
   

  	
   

  	
   

  
	
  OFP

  	
   

  	
  You Just
  Trade

  	
   

  	
  30,000.00

  	
   

  	
   

  	
   

  
	
  OFP

  	
   

  	
  Spot Trading
  LLC

  	
   

  	
  160,000.00

  	
   

  	
  377,583.38

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  200 SW

  	
   

  	
  American
  Life Insurance

  	
   

  	
  75,000.00

  	
   

  	
   

  	
   

  
	
  200 SW

  	
   

  	
  Archelon

  	
   

  	
  100,000.00

  	
   

  	
   

  	
   

  
	
  200 SW

  	
   

  	
  Orbitz
  (Cendant)

  	
   

  	
  1,102,041.00

  	
   

  	
   

  	
   

  



 


88

















 


	
  200 SW

  	
   

  	
  Hall Prangle

  	
   

  	
  400,000.00

  	
   

  	
   

  	
   

  
	
  200 SW

  	
   

  	
  Neustar

  	
   

  	
  225,000.00

  	
   

  	
   

  	
   

  
	
  200 SW

  	
   

  	
  Regus
  Business Systems

  	
   

  	
  615,642.00

  	
   

  	
   

  	
   

  
	
  200 SW

  	
   

  	
  Hamilton,
  Thies

  	
   

  	
  125,000.00

  	
   

  	
   

  	
   

  
	
  200 SW

  	
   

  	
  Stephen A.
  Laser

  	
   

  	
  50,000.00

  	
   

  	
   

  	
   

  
	
  200 SW

  	
   

  	
  UIB Capital

  	
   

  	
  60,000.00

  	
   

  	
   

  	
   

  
	
  200 SW

  	
   

  	
  BC Ziegler
  & Company

  	
   

  	
  1,000,000.00

  	
   

  	
  3,752,683.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10 SR

  	
   

  	
  State Farm
  Insurance Ted Lauder

  	
   

  	
  6,000.00

  	
   

  	
   

  	
   

  
	
  10 SR

  	
   

  	
  1Sync

  	
   

  	
  1,300,000.00

  	
   

  	
   

  	
   

  
	
  10 SR

  	
   

  	
  Baci
  Riverside

  	
   

  	
  28,200.00

  	
   

  	
   

  	
   

  
	
  10 SR

  	
   

  	
  Blackman,
  Kallick, Bartelstein

  	
   

  	
  334,216.00

  	
   

  	
   

  	
   

  
	
  10 SR

  	
   

  	
  DoubleClick,
  Inc.

  	
   

  	
  150,000.00

  	
   

  	
   

  	
   

  
	
  10 SR

  	
   

  	
  DRW Holdings
  LLC

  	
   

  	
  750,000.00

  	
   

  	
   

  	
   

  
	
  10 SR

  	
   

  	
  General
  Employment Enterprises

  	
   

  	
  12,000.00

  	
   

  	
   

  	
   

  
	
  10 SR

  	
   

  	
  HFR Asset
  Mgt LLC

  	
   

  	
  207,033.00

  	
   

  	
   

  	
   

  
	
  10 SR

  	
   

  	
  Paetec
  Communications

  	
   

  	
  15,000.00

  	
   

  	
   

  	
   

  
	
  10 SR

  	
   

  	
  Rusin
  Maciorowski

  	
   

  	
  252,046.00

  	
   

  	
   

  	
   

  
	
  10 SR

  	
   

  	
  Superior
  Graphite

  	
   

  	
  75,000.00

  	
   

  	
  3,129,495.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  120 SR

  	
   

  	
  Boston
  Blackies

  	
   

  	
  100,000.00

  	
   

  	
   

  	
   

  
	
  120 SR

  	
   

  	
  American
  Dietetic Assoc

  	
   

  	
  600,000.00

  	
   

  	
   

  	
   

  
	
  120 SR

  	
   

  	
  CPH Holding
  Corp

  	
   

  	
  60,000.00

  	
   

  	
   

  	
   

  
	
  120 SR

  	
   

  	
  Premier
  Print & Services

  	
   

  	
  100,000.00

  	
   

  	
   

  	
   

  
	
  120 SR

  	
   

  	
  Rolfe &
  Nolan

  	
   

  	
  50,000.00

  	
   

  	
   

  	
   

  
	
  120 SR

  	
   

  	
  Welsh &
  Katz

  	
   

  	
  200,000.00

  	
   

  	
  1,110,000.00

  	
   

  



 


89

















 


Schedule 5.3.3


Violations


 


NONE


 


90

















 


Schedule 5.3.6


List of Environmental Reports


 


Report on ASTM Phase I Environmental Site
Assessment, Drinking Water Sampling, Asbestos Survey and IAQ Assessment – 10
South Riverside Plaza, Chicago, Illinois, by Haley & Aldrich, Inc.,
September 2006


 


Report on ASTM Phase I Environmental Site
Assessment, Drinking Water Sampling, Asbestos Survey and IAQ Assessment – 120
South Riverside Plaza, Chicago, Illinois, by Haley & Aldrich, Inc.,
September 2006


 


Report on ASTM Phase I Environmental Site Assessment,
Drinking Water Sampling, Asbestos Survey and IAQ Assessment – 200 South Wacker
Drive, Chicago, Illinois, by Haley & Aldrich, Inc., December 2005


 


Report on ASTM Phase I Environmental Site
Assessment, Drinking Water Sampling, Asbestos Survey and IAQ Assessment – 440
South LaSalle Street, Chicago, Illinois, by Haley & Aldrich, Inc., May 2006


 


91

















 


Schedule 5.3.11


Tax Appeals


 


NONE


 


92

















 


Schedule 5.3.13


Insurance


 


93

















 


	
  S&P

  	
   

  	
  Insurance
  Company

  	
   

  	
  Coverage

  	
   

  	
  Limits

  	
   

  	
  Policy
  No.

  	
   

  	
  Effective
  Dates

  	
   

  	
  Deductible

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  A

  	
   

  	
  Liberty
  Mutual Insurance Company

  	
   

  	
  Commercial
  General Liability Portfolio

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
  Per Occurrence

  	
   

  	
  TB2-111-253539-027

  	
   

  	
  5/1/07 - 5/1/08

  	
   

  	
  N/A

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  2,000,000

  	
   

  	
  Per Location Aggregate

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  American
  Guarantee and Liability Insurance Company

  	
   

  	
  Commercial
  Umbrella Liability

  	
   

  	
  $

  	
  25,000,000

  	
   

  	
  Primary Liability

  	
   

  	
  AUC-5345988-02

  	
   

  	
  5/1/07 - 5/1/08

  	
   

  	
  $

  	
  10,000 SIR

  	
   

  
	
   

  	
   

  	
  Great
  American Insurance Co. of New York

  	
   

  	
  Master
  Program - Aircraft Excluded

  	
   

  	
  $

  	
  25,000,000

  	
   

  	
  Excess Primary $25MM

  	
   

  	
  EXC9257251

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Federal
  Insurance Company

  	
   

  	
  All
  Policies Include Full Terrorism and Per Location Aggregate

  	
   

  	
  $

  	
  50,000,000

  	
   

  	
  Excess $50MM

  	
   

  	
  79820519

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  XL
  Insurance America, Inc.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  US00007942L107A

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The
  American Insurance Company (Fireman’s Fund)

  	
   

  	
   

  	
   

  	
  $

  	
  25,000,000

  	
   

  	
  Excess $100MM

  	
   

  	
  SHX00099116105

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Starr
  Excess Liability Insurance Company, Ltd.

  	
   

  	
   

  	
   

  	
  $

  	
  75,000,000

  	
   

  	
  Excess $125MM

  	
   

  	
  5046174

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Broker:
  Willis

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
																		



 


94

















 


Schedule
5.6.10


Terms of New
Lease With Morgan Stanley at One Financial Place


 


	
  Landlord:

  	
   

  	
  One Financial Place Property LLC (“Landlord”)

  
	
   

  	
   

  	
   

  
	
  Tenant:

  	
   

  	
  Morgan Stanley & Co. Incorporated (“Tenant”)

  
	
   

  	
   

  	
   

  
	
  Building:

  	
   

  	
  440 South LaSalle Street

  
	
   

  	
   

  	
  Chicago, Illinois

  
	
   

  	
   

  	
   

  
	
  Premises:

  	
   

  	
  Between
  59,560 and 73,501 rentable square feet (“RSF”) located, on the entire 37th
  and 38th floor and a portion of the 39th floor of the
  Building. Tenant’s Premises shall be calculated in accordance with BOMA 1996
  standards.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The Building
  has the ability to provide space for Tenant’s emergency power, supplemental
  cooling, UPS and roof space requirements. Such use shall be at the then
  current market rates for such space.

  
	
   

  	
   

  	
   

  
	
  Swing
  Space:

  	
   

  	
  Effective
  July 1, 2007 the Building should have 14,722 RSF on the 32nd floor
  Tenant shall be allowed to use this space as swing space at no cost, except
  for utilities charges, during Tenant’s construction of its improvements.

  
	
   

  	
   

  	
   

  
	
  39th Floor Premises:

  	
   

  	
  Please note that the economic terms outlined in this proposal
  contemplate the use of Swing Space to accommodate Tenant’s reconstruction of
  its space. Costs in relation to making 20,312 RSF on the 39th
  floor available thus allowing Tenant to build out nearly the entire 39th
  floor and move into that floor with minimal disruption to its daily
  operations are also factored into this response. Morgan Stanley will be able
  to renovate its recently vacated space and continue to do so. Ideally, this
  will eliminate any groups or occupiers from having to “move twice” in the
  reconstruction process.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The delivery of the 39th floor premises is subject to
  Landlord relocating one existing tenant off of the 39th floor,.
  Delivery of Suite 3990 shall be subject to Landlord’s relocation of this
  tenant in a timely fashion.

  



 


95

















 


	
   

  	
   

  	
  Tenant shall have access to the space for measurement and planning
  purposes upon execution of the lease/amendment.

  
	
   

  	
   

  	
   

  
	
  Use:

  	
   

  	
  General,
  administrative and executive office use, trading, data center, call center
  and other ancillary and legally permitted uses.

  
	
   

  	
   

  	
   

  
	
  Commencement
  Date:

  	
   

  	
  Providing a
  lease or amendment outlining the terms reflected herein is signed by August
  1, 2007, the Commencement Date of the lease will be January 1, 2007 and the
  expiration of the existing lease will be amended accordingly. In the event of
  a subsequent lease or amendment execution, the lease will commence upon
  execution of a lease or amendment reflecting the terms outlined herein.

  
	
   

  	
   

  	
   

  
	
  Landlord
  Delay:

  	
   

  	
  Tenant
  currently occupies the majority of the space referenced herein.

  
	
   

  	
   

  	
   

  
	
  Lease
  Term:

  	
   

  	
  The term of
  the lease will be for a period of eleven (11) years with a termination date
  of December 31, 2017.

  
	
   

  	
   

  	
   

  
	
  Net Base
  Rental Rate:

  	
   

  	
  Commencing
  January 1, 2007 or upon execution of a lease amendment reflecting the terms
  outlined herein, whichever is later, the Net Base Rental Rate for the Renewal
  Premises shall be $19.00 per RSF per annum.

  
	
   

  	
   

  	
   

  
	
  Financial
  Escalation:

  	
   

  	
  The Net Base
  Rental Rate shall be escalated by 2 1⁄2% per annum beginning on the first
  anniversary of the Renewal Lease Term.

  
	
   

  	
   

  	
   

  
	
  Net Free
  Rent:

  	
   

  	
  Tenant shall
  receive Net Base Rent abatement effective immediately after lease execution.
  The rental credit shall be for an amount equal to all Net Base Rent paid or
  scheduled to be paid in 2007. (As example, if the lease is executed in June
  30, 2007, Tenant’s Net Base Rent shall begin being abated on July 1, 2007. On
  January 1, 2008, until it is exhausted, Tenant shall receive a Net Base Rent
  credit for the total Net Base Rent paid from January 1-June 30, 2007).

  



 


96

















 


	
  Tenant
  Electricity:

  	
   

  	
  Electricity
  for lighting and outlets shall be metered separately and billed to Tenant
  directly by the utility supplier.

  
	
   

  	
   

  	
   

  
	
  Premises
  Improvements:

  	
   

  	
  The Premises
  shall be delivered to Tenant in an “as-is” condition. Landlord shall provide
  a Premises Improvement allowance in the amount $60.00 per RSF. The Premises
  Improvement Allowance will be used at Tenant’s sole discretion and Landlord
  will not limit constraints on Premises for hard or soft costs provided Tenant
  uses the allowance to improve the Premises. Landlord will reimburse its
  pro-rata share of Tenant’s Premises Improvement work within thirty (30) days
  of Landlord’s receipt of Tenant’s paid Premises Improvement invoices, lien
  waivers, contractor’s statements and/or other evidence regarding completion
  of payment of the work as reasonably requested by Landlord.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  In the event
  Tenant does not utilize all of the Initial Allowance towards the completion
  of its space, Tenant shall be allowed to credit up to $20.00 per RSF of the
  unused allowance towards payment of rent.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  As part of
  the Premises Improvements allowance Landlord will provide a space planning
  allowance of up to $.15 per RSF toward the completion of Tenant’s initial
  space planning including one initial and one revised space plan.

  
	
   

  	
   

  	
   

  
	
  Real Estate
  Taxes,

  	
   

  	
   

  
	
  Operating
  Expenses

  	
   

  	
   

  
	
  &
  Proportionate Share:

  	
   

  	
  Tenant shall
  be responsible for its proportionate share of taxes and operating expenses
  during each year of the lease term.

  
	
   

  	
   

  	
   

  
	
  Expansion
  Option:

  	
   

  	
  Tenant shall have an option to expand into between 4,000 and 10,000
  RSF on either the 32nd, 36th, 39th or 40th
  floor of the Building with the size and location to be determined by
  Landlord. Tenant shall notify Landlord in writing of its intent to exercise
  the option (“Expansion Option”) no later than July 1, 2009. The commencement
  date of the Expansion Option shall be between January 1, 2010 and December
  31, 2010, subject to tenant holdover. The rental

  



 


97

















 


	
   

  	
   

  	
  rate, terms and conditions of the First Expansion Option period shall
  be at the then Fair Market Rental Rate. The term shall be coterminous with the Premises.

  
	
   

  	
   

  	
   

  
	
  Right of
  First Offer:

  	
   

  	
  Subject to
  the existing rights of current tenants, Landlord’s right to renew the term of
  any tenant’s lease and Landlord’s right to lease contiguous space prior to
  the Commencement Date, Tenant shall, during the first eight (8) years of the
  lease term, have a continuing Right of First Offer (“ROFO”) to lease any
  contiguous space on the 39th floor of the building and a and a
  continuous ROFO to lease any contiguous space on the and 36th
  floors of the building.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Landlord
  shall notify Tenant of such availability and the then current market rates,
  terms and conditions which will be defined in the lease, at which Tenant may
  lease the space. Tenant shall be required to lease the space for the balance
  of the term then remaining on Tenant’s lease. Tenant shall then have fifteen
  (15) days to accept or reject the ROFO.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The rent
  payable with respect to any Right of First Offer space which Tenant elects to
  lease prior to the second anniversary of the Lease Commencement Date shall be
  the rent then payable for the balance of the Premises and with a Rent
  Concession and Tenant Improvement Cash Allowance pro-rated based on the
  remaining Lease Term relative to the initial Lease Term.

  
	
   

  	
   

  	
   

  
	
  Renewal
  Option:

  	
   

  	
  Tenant shall
  have two (2) options to renew its lease for an additional five (5) year term
  provided it notifies Landlord in writing no more than twenty-four (24) and no
  less than fifteen (15) months prior to the expiration of the Renewal Lease
  Term. The rent, terms and conditions during the option period shall be at the
  then current market rates, terms and conditions for comparable space in the
  Building.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Tenant
  agrees to negotiate the definition of FMV in the lease document.

  



 


98

















 


	
  Option to Terminate:

  	
   

  	
  Tenant shall have a one-time
  right to terminate the entire lease effective on December 31,
  2014 with notice required twelve (12) months prior to the effective date.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The
  termination fee shall equal to the unamortized transaction costs (tenant
  improvement allowances, rental abatement and brokerage commissions)
  associated with the particular premises being vacated by Tenant discounted at
  8% per annum, plus three (3) months then-escalated gross rent. Tenant will
  pay the contraction fee fifty percent (50%) upon notice and the balance
  payable thirty (30) days prior to effective date of termination.

  
	
   

  	
   

  	
   

  
	
  Assignment
  and Subletting:

  	
   

  	
  Tenant shall
  be allowed to sublet or assign the lease in accordance with the provisions to
  be negotiated in the new/amended lease document

  
	
   

  	
   

  	
   

  
	
  Initial
  Construction &

  	
   

  	
   

  
	
  Future
  Alterations:

  	
   

  	
  Tenant shall
  have the right to perform initial construction to the Premises by selecting a
  General Contractor and sub contractors subject to the Landlord’s approval
  which shall not be unreasonably withheld.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Landlord
  shall receive a supervision fee not to exceed Landlord’s reasonable actual
  out of pocket costs which costs shall not exceed $.50 per RSF.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Landlord
  will provide Tenant’s contractors reasonable non-exclusive use of the freight
  elevators during normal business hours (7:00 a.m. to 5:00 p.m., Monday
  through Friday) at no cost to Tenant. If Tenant requires dedicated or
  after-hours’ use, it must be scheduled through the Office of the Building.
  There will be an additional charge limited to Landlord’s reasonable expenses
  for such dedicated or after-hour’s use.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Tenant,
  subject to Landlord’s approval which shall not be unreasonably withheld,
  shall have the right to select the contractors, subcontractors, engineers,
  and architects of its choice to perform its Alterations.

  



 


99

















 


	
   

  	
   

  	
  Landlord
  consent shall be required for Tenant to install louvers at the perimeter
  windows/walls on any floors of the Premises, to structurally reinforce any
  floors and for the construction of internal stairways, Landlord also reserves
  the right to have Tenant return the Premises to its original condition in the
  event such consent is granted.

  
	
   

  	
   

  	
   

  
	
  Substitution:

  	
   

  	
  Landlord shall have no right to relocate Tenant.

  
	
   

  	
   

  	
   

  
	
  Landlord Approvals:

  	
   

  	
  In all instance when Landlord approval is required, Landlord will not
  unreasonably withhold or delay its consents.

  
	
   

  	
   

  	
   

  
	
  Restoration:

  	
   

  	
  Landlord
  shall have the right to inform Tenant within 15 days of its approval of the
  drawings that Tenant will be required to remove specific, extraordinary items
  at the end of the lease term.

  
	
   

  	
   

  	
   

  
	
  Services/Access/Security:

  	
   

  	
  The Building is accessible to tenants 24 hours per day, 7 days per
  week. In addition to the digital security access card readers, the Building
  maintains 24 hour per day, 7 days per week, staffed security. Visitors may be
  registered with the security desk via the Building’s web site, which
  automatically notifies security of tenant’s desired guest.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  440 South LaSalle is a first class building in Chicago’s CBD. The
  operation of the Building will be consistent with those of other first class
  office buildings in downtown Chicago.

  
	
   

  	
   

  	
   

  
	
  Cleaning and Maintenance:

  	
   

  	
  The cleaning specifications of the Building will be consistent with
  those of other first class office buildings in downtown Chicago.

  
	
   

  	
   

  	
   

  
	
  Parking:

  	
   

  	
  One
  Financial Place has nearly 300 parking spaces in a 3 level parking structure
  connected to the Building. Current monthly rates for parking are $550 for the
  inner garage $455 for reserved parking in the outer garage and $400 for
  non-reserved parking.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Tenant,
  throughout the term of the lease, shall lease four (4) inner garage spaces,
  twelve (12) reserved outer garage

  



 


100

















 


	
   

  	
   

  	
  spaces and
  thirty-seven (37) non-reserved spaces in the outer garage at the then current
  market rates.

  
	
   

  	
   

  	
   

  
	
  Loading
  Dock:

  	
   

  	
  Tenant shall
  have reasonable non-exclusive use of the building’s numerous loading bays.
  Use of the dock shall be scheduled through the office of the building.

  
	
   

  	
   

  	
   

  
	
  Storage
  Space:

  	
   

  	
  The building
  currently has 100 RSF on the 36th floor and 291 RSF on the 2nd
  floor available for tenant storage. Such storage space is available at the
  then current market rate which is currently $18.00 per RSF per annum on a
  fully serviced gross basis.

  
	
   

  	
   

  	
   

  
	
  Roof Rights:

  	
   

  	
  Tenant shall
  have the right, at Tenant’s sole cost, to install and maintain two (2)
  satellite dishes on the roof of the Building. The rate for the Roof Rights
  shall be at the then current market rates. The current roof rates are
  approximately $950.00 per month for up to two (2) 3-foot diameter dishes and
  shaft pass necessary to connect to tenant’s equipment located in its demised
  premises

  
	
   

  	
   

  	
   

  
	
  Fire Stairs:

  	
   

  	
  The fire
  stairwells are currently tied to the Building security system. Tenant,
  subject to applicable fire and building codes shall have the use of the fire
  stairs for its internal traffic and may, at its sole cost, further improve
  the fire stairs with dry wall, carpeting, lighting and paint with colors and
  materials reasonably acceptable to Landlord.

  
	
   

  	
   

  	
   

  
	
  Hoisting
  Charges/

  	
   

  	
   

  
	
  Freight
  Elevator:

  	
   

  	
  Tenant shall
  not be charged for its non-exclusive use of the freight elevator during
  normal business hours.

  
	
   

  	
   

  	
   

  
	
  Signage:

  	
   

  	
  Tenant understands that the Building is currently home to the Chicago
  Stock Exchange and current trading firms include Merrill Lynch, e*trade,
  National Stock Exchange, Prudential Securities, Man Financial and Goldman
  Sachs. The Building also enjoys direct access to the Chicago Board Options
  Exchange and is adjacent to the Chicago Board of Trade. 75% of the current
  tenants in the Building are financially related entities. Accordingly
  Landlord can not grant Tenant any exclusive identity on the partial floors 

  



 


101

















 


	
   

  	
   

  	
  it currently occupies or may occupy in the future. On multi-tenant
  floors that Tenant occupies, Tenant’s signage shall be subject to Landlord’s
  approval

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Tenant shall have the right to install signage on or adjacent to its
  front door, and subject to Landlord’s approval, in the lobby and corridor of
  any floor on which any part of the Premises is located.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  On full and multi-tenant floors that Tenant occupies, Tenant’s
  signage shall be subject to Landlord’s approval of its size, location and
  design, but shall not be required to conform to any building standard sign
  design criteria or graphics program.

  
	
   

  	
   

  	
   

  
	
  Identity:

  	
   

  	
  Landlord is in the process of creating a Building monument or column
  sign program on the western side of the Building adjacent to the Building
  plaza. Subject to: appropriate municipal approval and documents of record,
  Landlord’s approval of the design and size of the sign and conventional
  occupancy and leasehold requirements, Tenant shall be allowed to have a
  non-exclusive sign on the monument or column if constructed.

  
	
   

  	
   

  	
   

  
	
  Building Conference Room:

  	
   

  	
  Landlord shall provide Tenant with the use of the Building’s
  Conference Room one-half (1/2) a day two (2) times per week free of a room
  rental charge, excluding set-up and refreshment costs during the construction
  of Tenant’s Premises.

  
	
   

  	
   

  	
   

  
	
  Existing HVAC Ducts:

  	
   

  	
  Tenant shall be allowed to utilize a portion of the Premises
  Improvement Allowance to clean all the existing duct work in the Premises
  that will remain and is to be reutilized as part of Tenants renovations.

  
	
   

  	
   

  	
   

  
	
  ADA:

  	
   

  	
  ADA compliance issues will be addressed in accordance with the
  existing lease document.

  
	
   

  	
   

  	
   

  
	
  Hazardous Materials:

  	
   

  	
  Hazardous materials issues will be addressed in accordance with the
  existing lease document..

  
	
   

  	
   

  	
   

  
	
  Building Security:

  	
   

  	
  440 South LaSalle is a high-end Class A asset in Chicago’s CBD
  Building Security issues are addressed in Security Life Safety Answers.

  
	
   

  	
   

  	
   

  
	
  Technical Requirements:

  	
   

  	
  See Chicago Facility Answers.

  



 


102

















 


	
  Self Help:

  	
   

  	
  Self help remedies will be addressed in accordance with the existing
  lease document.

  
	
   

  	
   

  	
   

  
	
  Non-Disturbance:

  	
   

  	
  The lease shall provide that in the event of a transfer or sale of
  the Building, Tenant will not be disturbed in its possession of the Premises
  and the lease shall continue in full force and effect, provided that Tenant
  is not in default after notice and the expiration of any applicable cure
  period, and Tenant, using a commercially reasonable form, attorns to the
  purchaser or transferee as Landlord under the lease. In addition Tenant shall
  receive a SNDA from any existing  mortgage lender and Tenant’s
  subordination to any future mortgage lender or ground lessor shall
  be contingent upon receiving a SNDA.  Tenant and Landlord shall
  each provide to the other estoppels within 15  days of  written
  request by the other.

  
	
   

  	
   

  	
   

  
	
  Confidentiality:

  	
   

  	
  This proposal, the terms hereof and all discussions in connection
  herewith shall be held in confidence by Landlord and Tenant and shall not be
  disclosed to or discussed with any other party. The foregoing requirement of
  confidentiality includes, without limitation, the requirement that Tenant not
  disclose any of the terms of this proposal or any discussions in connection
  herewith to any prospective landlord or leasing agent.

  
	
   

  	
   

  	
   

  
	
  Commission:

  	
   

  	
  When a lease
  is fully executed by both parties Landlord shall pay Staubach, (“Broker”) a
  leasing commission as mutually agreed upon in a separate commission
  agreement. In no event shall Landlord be obligated to pay more than one full
  commission.

  



 


103

















 


Morgan
Stanley Net Rent Schedule June 5, 2007


 


	
   

  	
   

  	
  RSF

  	
   

  
	
  39th Floor =

  	
   

  	
  13,729

  	
   

  
	
  38th Floor =

  	
   

  	
  26,480

  	
   

  
	
  37th Floor =

  	
   

  	
  26,644

  	
   

  
	
  Total RSF =

  	
   

  	
  66,853

  	
   

  



 


	
  Period

  	
   

  	
  RSF

  	
   

  	
  Net Rental Rate

  	
   

  	
  Annual Net Rent Due

  	
   

  	
  Monthly Net Rent Due

  	
   

  
	
  1/1/2007

  	
  -

  	
  12/31/2007

  	
   

  	
  66,853

  	
   

  	
  $

  	
  19.00

  	
   

  	
  $

  	
  1,270,207.00

  	
   

  	
  $

  	
  105,850.58

  	
   

  
	
  1/1/2008

  	
  -

  	
  12/31/2008

  	
   

  	
  66,853

  	
   

  	
  $

  	
  19.48

  	
   

  	
  $

  	
  1,301,962.18

  	
   

  	
  $

  	
  108,496.85

  	
   

  
	
  1/1/2009

  	
  -

  	
  12/31/2009

  	
   

  	
  66,853

  	
   

  	
  $

  	
  19.96

  	
   

  	
  $

  	
  1,334,511.23

  	
   

  	
  $

  	
  111,209.27

  	
   

  
	
  1/1/2010

  	
  -

  	
  12/31/2010

  	
   

  	
  66,853

  	
   

  	
  $

  	
  20.46

  	
   

  	
  $

  	
  1,367,874.01

  	
   

  	
  $

  	
  113,989.50

  	
   

  
	
  1/1/2011

  	
  -

  	
  12/31/2011

  	
   

  	
  66,853

  	
   

  	
  $

  	
  20.97

  	
   

  	
  $

  	
  1,402,070.86

  	
   

  	
  $

  	
  116,839.24

  	
   

  
	
  1/1/2012

  	
  -

  	
  12/31/2012

  	
   

  	
  66,853

  	
   

  	
  $

  	
  21.50

  	
   

  	
  $

  	
  1,437,122.63

  	
   

  	
  $

  	
  119,760.22

  	
   

  
	
  1/1/2013

  	
  -

  	
  12/31/2013

  	
   

  	
  66,853

  	
   

  	
  $

  	
  22.03

  	
   

  	
  $

  	
  1,473,050.70

  	
   

  	
  $

  	
  122,754.22

  	
   

  
	
  1/1/2014

  	
  -

  	
  12/31/2014

  	
   

  	
  66,853

  	
   

  	
  $

  	
  22.59

  	
   

  	
  $

  	
  1,509,876.97

  	
   

  	
  $

  	
  125,823.08

  	
   

  
	
  1/1/2015

  	
  -

  	
  12/31/2015

  	
   

  	
  66,853

  	
   

  	
  $

  	
  23.15

  	
   

  	
  $

  	
  1,547,623.89

  	
   

  	
  $

  	
  128,968.66

  	
   

  
	
  1/1/2016

  	
  -

  	
  12/31/2016

  	
   

  	
  66,853

  	
   

  	
  $

  	
  23.73

  	
   

  	
  $

  	
  1,586,314.49

  	
   

  	
  $

  	
  132,192.87

  	
   

  
	
  1/1/2017

  	
  -

  	
  12/31/2017

  	
   

  	
  66,853

  	
   

  	
  $

  	
  24.32

  	
   

  	
  $

  	
  1,625,972.35

  	
   

  	
  $

  	
  135,497.70

  	
   

  



 


Upon
Commenecment of the Lease tenant shall receive Net Rent Abatement in the amount
of the Net Rent due


under the current lease for the period of the entire 2007 calendar
year.


Tenant
currently leases 57,575 RSF and is scheduled to pay $25.18 per RSF for a Total 2007 Net Rent due of $1,449,738.50.


 


104

















 


EXHIBIT A-1


Legal Description of 200 South Wacker


 


THAT PART OF
LOTS 13 AND 14 IN BLOCK 83 IN RESUBDIVISION OF BLOCKS 83, 92 AND 140 IN SCHOOL
SECTION ADDITION TO CHICAGO, IN SECTION 16, TOWNSHIP 39 NORTH, RANGE 14 EAST OF
THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS:


 


COMMENCING AT
THE NORTH EAST CORNER OF SAID LOT 13; THENCE SOUTH 90 DEGREES WEST ALONG THE
NORTH LINE OF SATO LOT 13 (ALSO BEING THE SOUTH LINE OF WEST ADAMS STREET),
54.00 FEET TO THE WEST LINE OF SOUTH WACKER DRIVE, AS DEDICATED, AND THE PLACE
OF BEGINNING OF THE HEREIN DESCRIBED TRACT OF LAND; THENCE SOUTH 0 DEGREES 13
MINUTES 30 SECONDS EAST ALONG THE WEST LINE OF SOUTH WACKER DRIVE, 166.04 FEET
TO THE SOUTH LINE OF SAID LOT 14 (ALSO BEING THE NORTH LINE OF WEST QUINCY
STREET); THENCE NORTH 89 DEGREES 57 MINUTES 40 SECONDS WEST ALONG THE SOUTH
LINE OF SAID LOT 14, 148.00 FEET TO A POINT; THENCE NORTH 9 DEGREES 47 MINUTES
46 SECONDS WEST, 84.20 FEET TO A POINT ON THE NORTH LINE OF SAID LOT 14; THENCE
NORTH 10 DEGREES 27 MINUTES 59 SECONDS WEST, 84.36 FEET TO THE NORTH LINE OF
SAID LOT 13; THENCE NORTH 90 DEGREES EAST ALONG THE NORTH LINE OF SAID LOT 13,
177.00 FEET TO THE PLACE OF BEGINNING, IN COOK COUNTY, ILLINOIS.


 


105

















 


EXHIBIT A-2


Legal Description of 10/120 South Riverside


 


Legal Description of 10 South Riverside


 


PARCEL 1:


 


THAT PART OF LOT 1 (EXCEPT THE SOUTH 33 FEET
THEREOF) LYING ABOVE A HORIZONTAL PLANE AT AN ELEVATION OF 21 FEET, CHICAGO
CITY DATUM AND AS TO THE SOUTH 33 FEET OF LOT 1 LYING ABOVE A HORIZONTAL PLANE
OF 25.70 FEET ABOVE CHICAGO CITY DATUM, IN RAILROAD COMPANIES’ RESUBDIVISION OF
BLOCKS 62 TO 76 BOTH INCLUSIVE, 78, PARTS OF 61 AND 77 AND CERTAIN VACATED
STREETS AND ALLEYS IN SCHOOL SECTION ADDITION TO CHICAGO, A SUBDIVISION OF
SECTION 16, TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE BUILDING AND IMPROVEMENTS
LOCATED THEREON)


 


PARCEL 2:


 


EXCLUSIVE EASEMENTS APPURTENANT TO PARCEL 1 AS
CREATED BY EASEMENT AND OPERATING AGREEMENT MADE BY CHICAGO UNION STATION
COMPANY AND TRIZECHAHN 10/120 FEE LLC, DATED NOVEMBER 8, 2001 AND RECORDED
NOVEMBER 16, 2001 AS DOCUMENT 0011080263 AS AMENDED BY DOCUMENT 0020634440,
FOR, AMONG OTHER THINGS, IN, OVER AND ACROSS ALL LAND AND SPACES BELOW THE
HORIZONTAL PLANES DESCRIBED IN PARCEL 1 ABOVE, AND IN, OVER AND ACROSS ALL LAND
AND SPACES FALLING IN THAT PART OF LOT 1 IN RAILROAD COMPANIES’ RESUBDIVISION,
AFORESAID, DESCRIBED ABOVE IN PARCEL 1, BELOW THE HORIZONTAL PLANES DESCRIBED
ABOVE IN PARCEL 1, INCLUDING EASEMENTS FOR THE AREA OCCUPIED BY THE COLUMNS,
CAISSONS, FOUNDATIONS, GUSSETS AND ALL OTHER SUPPORTING STRUCTURES FOR THE
BUILDING AND IMPROVEMENTS CONSTRUCTED IN PARCEL 1 AND IN THAT PART OF LOT 1,
AND BY ALL OTHER IMPROVEMENTS, PLENUMS, MECHANICAL AND ELECTRICAL EQUIPMENT,
PIPES, WIRES, CONDUITS, UTILITIES AND OTHER STRUCTURES LOCATED BELOW SAID
HORIZONTAL PLANES IN CONNECTION WITH SAID BUILDING AND IMPROVEMENTS, INCLUDING,
BUT NOT LIMITED TO, THE SPACE OCCUPIED BY THE IMPROVEMENTS AND STRUCTURES SHOWN
ON THE PLAT OF SURVEY PREPARED AND CERTIFIED BY CHICAGO GUARANTEE SURVEY
COMPANY DATED JULY 8, 1966 (CONSISTING OF THREE SHEETS IDENTIFIED AS ORDER NOS.
6311001K AND 6311001S AND 6311001N RESPECTIVELY), WHICH. WAS RECORDED AS PART
OF DOCUMENT NO. 19881999.


 


106

















 


LEGAL DESCRIPTION OF LEASEHOLD ESTATE ‘A’


 


TWO CERTAIN PARCELS OF LAND IN COOK COUNTY,
ILLINOIS, BOUNDED AND DESCRIBED AS FOLLOWS:


 


PARCEL 1:


 


A PART OF LOTS 1 AND 2 IN RAILROAD COMPANIES
RESUBDIVISION OF BLOCKS 62 TO 76 BOTH INCLUSIVE, 78, PARTS OF 61 AND 77 AND
CERTAIN VACATED STREETS AND ALLEYS IN SCHOOL SECTION ADDITION TO CHICAGO, A
SUBDIVISION OF SECTION 16, TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD
PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT OF SAID RESUBDIVISION RECORDED IN THE
RECORDER’S OFFICE OF COOK COUNTY, ILLINOIS ON MARCH 29, 1924 IN BOOK 188 OF
PLATS AT PAGE 16 AS DOCUMENT NUMBER 8339751, SAID PARTS OF LOTS 1 AND 2 BEING
BOUNDED AND DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID LOT
1 AND RUNNING THENCE SOUTHWARDLY ALONG THE EASTERLY LINE OF SAID LOT 1 A
DISTANCE OF 199.495 FEET TO AN ANGLE POINT IN SAID EASTERLY LOT LINE; THENCE
CONTINUING SOUTHWARDLY ALONG SAID EASTERLY LINE A DISTANCE 0F 199.23 FEET TO
ITS INTERSECTION WITH THE NORTH LINE OF THE SOUTH 33 FEET OF SAID LOT 1, THENCE
WEST ALONG THE NORTH LINE OF THE SOUTH 33 FEET OF SAID LOT 1 AND OF SAID LOT 2
A DISTANCE OF 218.865 FEET TO AN INTERSECTION WITH THE EAST LINE OF THE. WEST
20 FEET OF SAID LOT 2; THENCE NORTH ALONG SAID EAST LINE OF THE WEST 20 FEET OF
SAID LOT 2 A DISTANCE OF 398.19 FEET TO ITS INTERSECTION WITH THE NORTH LINE OF
SAID LOT 2, AND THENCE EAST ALONG THE NORTH LINE OF SAID LOT 2 AND OF SAID LOT
1 A DISTANCE OF 239 FEET TO THE POINT OF BEGINNING EXCEPTING FROM THE PARCEL OF
LAND ABOVE DESCRIBED, THE RESPECTIVE PORTIONS THEREOF LYING VERTICALLY BELOW
THE FOLLOWING HORIZONTAL PLANES:


 


(A)          A
HORIZONTAL PLANE 18.5 FEET ABOVE CHICAGO CITY DATUM, THE PERIMETER OF WHICH IS
DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWEST CORNER OF SAID PARCEL AND
RUNNING THENCE EASTERLY ALONG THE NORTH LINE OF SAID PARCEL TO THE INTERSECTION
OF SAID NORTH LINE AND A LINE (THE “LIMITING PLAN LINE”) 168 FEET EAST OF AND
PARALLEL TO THE WEST LINE OF SAID PARCEL; THENCE SOUTHWARDLY ALONG THE LIMITING
PLANE LINE TO THE INTERSECTION OF SAID LINE AND THE SOUTH LINE OF SAID PARCEL;
THENCE WESTERLY ALONG THE SOUTH LINE OF SAID PARCEL TO THE SOUTHWEST CORNER
THEREOF; THENCE NORTHERLY ALONG THE WEST LINE OF SAID PARCEL TO THE NORTHWEST
CORNER OF SAID PARCEL, WHICH IS THE POINT OF BEGINNING OF SAID HORIZONTAL
PLANE; AND


 


107

















 


(B)           A
HORIZONTAL PLANE 21.0 FEET ABOVE CHICAGO CITY DATUM OVER THAT PORTION OF SAID
PARCEL WHICH IS NOT VERTICALLY BELOW THE HORIZONTAL PLANE DESCRIBED IN CLAUSE
(A) ABOVE.’


 


PARCEL 2:


 


ALL LAND AND SPACES BELOW THE HORIZONTAL PLANES
DESCRIBED IN PARCEL 1 ABOVE WHICH ARE OCCUPIED BY THE COLUMNS, CAISSONS,
FOUNDATIONS, GUSSETS AND ALL OTHER SUPPORTING STRUCTURES, FOR THE BUILDING AND
IMPROVEMENTS CONSTRUCTED IN PARCEL 1 AND BY ALL OTHER IMPROVEMENTS, PLENUMS,
MECHANICAL AND ELECTRICAL EQUIPMENT, PIPES, WIRES, CONDUITS, UTILITIES AND
OTHER STRUCTURES LOCATED BELOW SAID HORIZONTAL PLANES IN CONNECTION WITH SAID
BUILDING AND IMPROVEMENTS, INCLUDING, BUT NOT LIMITED TO THE SPACE OCCUPIED BY
THE IMPROVEMENTS AND STRUCTURES SHOWN ON THE PLAT OF SURVEY PREPARED AND
CERTIFIED BY CHICAGO GUARANTEE SURVEY COMPANY DATED JULY 8, 1966 (CONSISTING OF
THREE SHEETS IDENTIFIED AS ORDER NOS. 6311001 K AND 6311001-S AND 6311001 N.
RESPECTIVELY), WHICH WAS RECORDED AS PART OP DOCUMENT 19881999.


 


PARCEL 3:


 


AN EASEMENT APPURTENANT TO PARCELS 1 AND 2 IN, OVER
AND ACROSS THE WEST 20 FEET OF LOT 2 IN SAID RAILROAD COMPANIES’ RESUBDIVISION
TO CONSTRUCT, USE, MAINTAIN, REPAIR, REPLACE OR RENEW FROM TIME TO TIME SUCH
COLUMNS, GUSSETS, TRUSSES, HORIZONTAL STRUCTURAL MEMBERS, CAISSONS, FOUNDATIONS
AND OTHER SUPPORTS AS MAY BE REASONABLY NECESSARY OR APPROPRIATE TO MAINTAIN
AND SUPPORT THE PLAZA AND OTHER IMPROVEMENTS CONTEMPLATED BY THE LEASE,
INCLUDING, WITHOUT LIMITATION, THE COLUMNS (DESIGNATED ‘DD’) AND THE CAISSONS,
FOUNDATIONS AND RELATED STRUCTURES SHOWN ON THE PLAT OF SURVEY REFERRED TO IN
PARCEL 2 ABOVE.


 


PARCEL 4:


 


A NONEXCLUSIVE APPURTENANT EASEMENT IN FAVOR OF THE
LEASEHOLD INTEREST IN PARCELS 1 AND 2 AS CREATED BY DEED OF EASEMENT DATED
JANUARY 16, 1990 AND RECORDED JANUARY 31, 1990 AS DOCUMENT 90047309 MADE BY
LASALLE NATIONAL BANK, AS TRUSTEE UNDER TRUST AGREEMENT DATED NOVEMBER 27, 1983
AND KNOWN AS TRUST NUMBER 107292 TO GATEWAY IV JOINT VENTURE, AN ILLINOIS
GENERAL PARTNERSHIP, LASALLE NATIONAL BANK, AS TRUSTEE UNDER TRUST AGREEMENT
DATED DECEMBER 1, 1983 AND KNOWN AS TRUST NUMBER 107361, LASALLE NATIONAL BANK,
AS TRUSTEE UNDER TRUST AGREEMENT DATED DECEMBER 1, 1983 AND KNOWN AS TRUST
NUMBER


 


108

















 


107362, AND LASALLE NATIONAL BANK, AS TRUSTEE UNDER
TRUST AGREEMENT DATED DECEMBER 1, 1983 AND KNOWN AS TRUST NUMBER 107363 FOR THE
USE OF 1,100 PUBLIC PARKING SPACES IN THE GARAGE, AS DEFIED THEREIN, WITH
RIGHTS OF INGRESS AND EGRESS AND AN EASEMENT FOR THE PURPOSE OF CONSTRUCTION OF
SUCH REPAIRS OR. RESTORATION FOR THE PERIOD REQUIRED TO COMPLETE SUCH REPAIRS
OR RESTORATION ON, OVER, AND ACROSS THE FOLLOWING DESCRIBED LEGAL DESCRIPTION:


 


LOTS 5, 6, 7, AND 8 (EXCEPT FROM SAID LOTS THAT PART
FALLING IN ALLEY) IN BLOCK 49 IN SCHOOL SECTION ADDITION TO CHICAGO IN SECTION
16, TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK
COUNTY, ILLINOIS.


 


AS AMENDED BY FIRST AMENDMENT TO DEED OF EASEMENT
DATED FEBRUARY 9, 1990, AND RECORDED OCTOBER 9, 1990, AS DOCUMENT NUMBER
90491486.


 


LEGAL DESCRIPTION FOR LEASEHOLD ESTATE ‘B’


 


TWO CERTAIN PARCELS OF LAND IN COOK COUNTY,
ILLINOIS, BOUNDED AND DESCRIBED AS FOLLOWS:


 


PARCEL 1:


 


THAT PART OF LOT 2 IN RAILROAD COMPANIES’
RESUBDIVISION OF BLOCKS 62 TO 76 BOTH INCLUSIVE, 78, PARTS OF 61 AND 77 AND
CERTAIN VACATED STREETS AND ALLEYS IN SCHOOL SECTION ADDITION TO CHICAGO, A
SUBDIVISION OF SECTION 16, TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD
PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT OF SAID RESUBDIVISION RECORDED IN THE
RECORDER’S OFFICE OF COOK COUNTY, ILLINOIS ON MARCH 29, 1924 IN BOOK 188 OF
PLATS AT PAGE 16 AS DOCUMENT NUMBER 8339751, SAID PARTS OF LOTS 1 AND 2 IN SAID
RAILROAD COMPANIES’ RESUBDIVISION WHICH IS BOUNDED AND DESCRIBED AS FOLLOWS: BEGINNING
AT THE NORTHEAST CORNER OF SAID LOT 1 AND RUNNING THENCE SOUTHWARDLY ALONG THE
EASTERLY LINE OF SAID LOT 1 A DISTANCE OF 199.495 FEET TO AN ANGLE POINT IN
SAID EASTERLY LOT LINE; THENCE CONTINUING SOUTHWARDLY ALONG SAID EASTERLY LINE
A DISTANCE OF 199.23 FEET TO ITS INTERSECTION WITH THE NORTH LINE OF THE SOUTH
33 FEET OF SAID LOT 1; THENCE WEST ALONG THE NORTH LINE OF THE SOUTH 33 FEET OF
SAID LOT 1 AND OF SAID LOT 2 A DISTANCE OF 218.865 FEET TO AN INTERSECTION WITH
THE EAST LINE OF THE WEST 20 FEET OF SAID LOT 2; THENCE NORTH ALONG SAID EAST
LINE OF THE WEST 20 FEET OF SAID LOT 2 A DISTANCE OF 398.19 FEET TO ITS
INTERSECTION WITH THE NORTH LINE OF SAID LOT 2; AND THENCE EAST ALONG THE NORTH
LINE OF SAID LOT 2 AND OF SAID LOT 1 A DISTANCE OF 239 FEET TO THE POINT OF


 


109

















 


BEGINNING EXCEPTING PROM THE PARCEL OF LAND ABOVE
DESCRIBED, THE RESPECTIVE PORTIONS THEREOF LYING VERTICALLY, BELOW THE
FOLLOWING HORIZONTAL PLANES:


 


(A)          A
HORIZONTAL PLANE 18.5 FEET ABOVE CHICAGO CITY DATUM, THE PERIMETER OF WHICH IS
DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWEST CORNER OF SAID PARCEL AND
RUINING THENCE EASTERLY ALONG THE NORTH LINE OF SAID PARCEL TO THE INTERSECTION
OF SAID NORTH LINE AND A LINE (THE “LIMITING PLANE LINE”) 168 FEET EAST OF AND
PARALLEL TO THE WEST LINE OF SAID PARCEL; THENCE SOUTHWARDLY ALONG THE LIMITING
PLANE LINE TO THE INTERSECTION OF SAID LINE AND THE SOUTH LINE OF SAID PARCEL;
THENCE WESTERLY ALONG THE SOUTH LINE OF SAID PARCEL TO THE SOUTHWEST CORNER
THEREOF; THENCE NORTHERLY ALONG THE WEST LINE OF SAID PARCEL TO THE NORTHWEST
CORNER OF SAID PARCEL, WHICH IS THE POINT OF BEGINNING OF SAID HORIZONTAL
PLANE; AND


 


(B)           A
HORIZONTAL PLANE 21.0 FEET ABOVE CHICAGO CITY DATUM OVER THE PORTION OF SAID
PARCEL WHICH IS NOT VERTICALLY BELOW THE HORIZONTAL PLANE DESCRIBED IN CLAUSE
(A) ABOVE.


 


PARCEL 2:


 


ALL LAND AND SPACES BELOW THE HORIZONTAL PLANES
DESCRIBED IN PARCEL 1 ABOVE WHICH ARE OCCUPIED BY THE COLUMNS, CAISSONS,
FOUNDATIONS, GUSSETS AND ALL OTHER SUPPORTING STRUCTURES FOR THE BUILDING AND
IMPROVEMENTS CONSTRUCTED IN PARCEL 1, AND BY ALL OTHER IMPROVEMENTS, PLENUMS,
MECHANICAL AND ELECTRICAL EQUIPMENT, PIPES, WIRES, CONDUITS, UTILITIES AND
OTHER STRUCTURES LOCATED BELOW SAID HORIZONTAL PLANES IN CONNECTION WITH SAID
BUILDING AND IMPROVEMENTS, INCLUDING, BUT NOT LIMITED TO, THE SPACE OCCUPIED BY
THE IMPROVEMENTS AND STRUCTURES SHOWN ON THE PLAT OF SURVEY PREPARED AND
CERTIFIED BY CHICAGO GUARANTEE SURVEY COMPANY, DATED JULY 8, 1966 (CONSISTING
OF THREE SHEETS IDENTIFIED AS ORDER NOS. 6311001K AND 6333001S AND 6311001N,
RESPECTIVELY), WHICH WAS RECORDED AS PART OF DOCUMENT 19881999


 


PARCEL 3:


 


AN EASEMENT APPURTENANT TO PARCELS 1 AND 2 IN; OVER
AND ACROSS THE WEST 20 FEET OF SAID LOT 2 IN SAID RAILROAD COMPANIES’
RESUBDIVISION TO CONSTRUCT, USE, MAINTAIN, REPAIR, REPLACE OR RENEW FROM TIME
TO TIME SUCH COLUMNS, GUSSETS, TRUSSES, HORIZONTAL STRUCTURAL MEMBERS,
CAISSONS, FOUNDATIONS AND OTHER SUPPORTS AS MAY BE REASONABLY NECESSARY OR
APPROPRIATE TO MAINTAIN AND SUPPORT THE PLAZA AND OTHER IMPROVEMENTS


 


110

















 


CONTEMPLATED BY THE LEASE, INCLUDING, WITHOUT
LIMITATION, THE COLUMNS (DESIGNATED ‘DD’) AND THE CAISSONS, FOUNDATIONS AND
RELATED STRUCTURES SHOWN ON THE PLAT OF SURVEY REFERRED TO IN PARCEL 2 ABOVE.


 


PARCEL 4:


 


A.            NONEXCLUSIVE
APPURTENANT EASEMENT IN FAVOR OF THE LEASEHOLD INTEREST IN PARCELS 1 AND 2 AS
CREATED BY DEED OF EASEMENT DATED JANUARY 16, 1990 AND RECORDED JANUARY 31,
1990 AS DOCUMENT 90047309 MADE BY LASALLE NATIONAL BANK, AS TRUSTEE UNDER TRUST
AGREEMENT DATED NOVEMBER 17, 1983 AND KNOWN AS TRUST NUMBER 107292 TO GATEWAY
IV JOINT VENTURE, AN ILLINOIS GENERAL PARTNERSHIP, LASALLE NATIONAL BANK, AS
TRUSTEE UNDER TRUST AGREEMENT DATED DECEMBER 1, 1983 AND KNOWN AS TRUST NUMBER
107361, LASALLE NATIONAL BANK AS TRUSTEE UNDER TRUST AGREEMENT DATED DECEMBER
1, 1983 AND KNOWN AS TRUST NUMBER 107362, AND LASALLE NATIONAL BANK, AS TRUSTEE
UNDER TRUST AGREEMENT DATED DECEMBER 1, 1983 AND KNOWN AS TRUST NUMBER 107363
FOR THE USE OF 1,100 PUBLIC PARKING SPACES IN THE GARAGE, AS DEFINED THEREIN,
WITH RIGHTS OF INGRESS AND EGRESS AND AN EASEMENT FOR THE PURPOSE OF
CONSTRUCTION OF SUCH REPAIRS OR RESTORATION FOR THE PERIOD REQUIRED TO COMPLETE
SUCH REPAIRS OR RESTORATION ON, OVER, AND ACROSS THE FOLLOWING DESCRIBED LEGAL
DESCRIPTION:


 


LOTS 5, 6, 7, AND 8 (EXCEPT FROM SAID LOTS THAT PART
FALLING IN ALLEY) IN BLOCK 49 IN SCHOOL SECTION ADDITION TO CHICAGO IN SECTION
16, TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK
COUNTY, ILLINOIS.


 


AS AMENDED BY FIRST AMENDMENT TO DEED OF EASEMENT
DATED FEBRUARY 9, 1990, AND RECORDED OCTOBER 9, 1990, AS DOCUMENT NUMBER
90491486.


 


LEASEHOLD ESTATES ‘A’ AND ‘B’ ARE ALSO KNOWN AS:


 


PARTS OF LOTS 1 AND 2, RAILROAD COMPANIES
RESUBDIVISION OF BLOCKS 62 TO 76 INCLUSIVE, 78, PARTS OF 61 AND 77 AND CERTAIN
VACATED STREETS AND ALLEYS IN SCHOOL SECTION ADDITION TO CHICAGO, A SUBDIVISION
OF SECTION 16, TOWNSHIP 39 NORTH, RANGE I4 EAST OF THE THIRD PRINCIPAL
MERIDIAN, IN COOK COUNTY, ILLINOIS, CITY OF CHICAGO, COOK COUNTY, ILLINOIS,
BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:


 


BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 1;
THENCE SOUTH 3 DEGREES 44 MINUTES 12 SECONDS WEST, 199.495 FEET; THENCE SOUTH 2



 


111

















 


DEGREES 03 MINUTES 08 SECONDS WEST, 199.23 FEET;
THENCE NORTH 89 DEGREES 35 MINUTES 40 SECONDS WEST, 218.865 FEET; THENCE NORTH
0 DEGREES 0 MINUTES 0 SECONDS EAST, 398.19 FEET; THENCE SOUTH 89 DEGREES 37
MINUTES 30 SECONDS EAST 239 FEET TO THE POINT OF BEGINNING.


 


LEGAL DESCRIPTION OF LEASEHOLD ESTATE ‘A’


 


TWO CERTAIN PARCELS OF LAND IN COOK COUNTY,
ILLINOIS, BOUNDED AND DESCRIBED AS FOLLOWS;


 


PARCEL 1:


 


A PART OF LOTS 1 AND 2 IN RAILROAD COMPANIES
RESUBDIVISION OF BLOCKS 62 TO 76 BOTH INCLUSIVE, 78, PARTS OF 61 AND 77 AND
CERTAIN VACATED STREETS AND ALLEYS IN SCHOOL SECTION ADDITION TO CHICAGO, A
SUBDIVISION OF SECTION 16, TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD
PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT OF SAID RESUBDIVISION RECORDED IN THE
RECORDER’S OFFICE OF COOK COUNTY, ILLINOIS ON MARCH 29, 1924 IN BOOK 188
OF PLATS AT PAGE 16 AS DOCUMENT 8339751, SAID PARTS OF LOTS 1 AND 2 BEING
BOUNDED AND DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID LOT
1 AND RUNNING THENCE SOUTHWARDLY ALONG THE EASTERLY LINE OF SAID LOT 1 A
DISTANCE OF 199.495 FEET TO AN ANGLE POINT IN SAID EASTERLY LOT LINE; THENCE
CONTINUING SOUTHWARDLY ALONG SAID EASTERLY LINE A DISTANCE OF 199.23 FEET TO
ITS INTERSECTION WITH THE NORTH LINE OF THE SOUTH 33 FEET OF SAID LOT 1; THENCE
WEST ALONG THE NORTH LINE OF THE SOUTH 33 FEET OF SAID LOT 1 AND OF SAID LOT 2
A DISTANCE OF 218.865 FEET TO AN INTERSECTION WITH THE EAST LINE OF THE WEST 20
FEET OF SAID LOT 2; THENCE NORTH ALONG SAID EAST LINE OF THE WEST 20 FEET OF
SAID LOT 2 A DISTANCE OF 398.19 FEET TO ITS INTERSECTION WITH THE NORTH LINE OF
SAID LOT 2, AND THENCE EAST ALONG THE NORTH LINE OF SAID LOT 2 AND OF SAID LOT
1 A DISTANCE OF 239 FEET TO THE POINT OF BEGINNING


 


EXCEPTING FROM THE PARCEL OF LAND ABOVE DESCRIBED,
THE RESPECTIVE PORTIONS THEREOF LYING VERTICALLY BELOW THE FOLLOWING HORIZONTAL
PLANES:


 


(A)          A
HORIZONTAL PLANE 18.5 FEET ABOVE CHICAGO CITY DATUM, THE PERIMETER OF WHICH IS
DESCRIBED AS FOLLOWS; BEGINNING AT THE NORTHWEST CORNER OF SAID PARCEL AND
RUNNING HENCE EASTERLY ALONG THE NORTH LINE OF SAID PARCEL TO THE INTERSECTION OF
SAID NORTH LINE AND A LINE (THE “LIMITING PLANE LINE”) 168 FEET EAST OF AND
PARALLEL TO THE WEST LINE OF SAID PARCEL; THENCE SOUTHWARDLY ALONG THE LIMITING
PLANE LINE TO THE INTERSECTION 


 


112

















 


OF SAID LINE AND THE SOUTH LINE OF SAID PARCEL;
THENCE WESTERLY ALONG THE SOUTH LINE OF SAID PARCEL TO THE SOUTHWEST CORNER
THEREOF; THENCE NORTHERLY ALONG THE WEST LINE OF SAID PARCEL TO THE NORTHWEST
CORNER OF SAID PARCEL, WHICH IS THE POINT OF BEGINNING OF SAID HORIZONTAL
PLANE; AND


 


(B)           A
HORIZONTAL PLANE 21.0 FEET ABOVE CHICAGO CITY DATUM OVER THAT PORTION OF SAID
PARCEL WHICH IS NOT VERTICALLY BELOW THE HORIZONTAL PLANE DESCRIBED IN CLAUSE
(A) ABOVE.


 


PARCEL 2:


 


ALL LAND AND SPACES BELOW THE HORIZONTAL PLANES
DESCRIBED IN PARCEL 1 ABOVE WHICH ARE OCCUPIED BY THE COLUMNS, CAISSONS,
FOUNDATIONS, GUSSETS AND ALL OTHER SUPPORTING STRUCTURES, IMPROVEMENTS,
PLENUMS, MECHANICAL AND ELECTRICAL EQUIPMENT, PIPES, WIRES, CONDUITS, UTILITIES
AND OTHER STRUCTURES AND EQUIPMENT THEN LOCATED IN THE EXCEPTED SPACE IN
CONNECTION WITH THE BUILDING AND IMPROVEMENTS CONSTRUCTED IN PARCEL 1


 


PURSUANT TO THE LEASE DESCRIBED IN SCHEDULE A, AND
BY ALL OTHER IMPROVEMENTS, PLENUMS, MECHANICAL AND ELECTRICAL EQUIPMENT, PIPES,
WIRES, CONDUITS, UTILITIES AND OTHER STRUCTURES LOCATED BELOW SAID HORIZONTAL
PLANES IN CONNECTION WITH SAID BUILDING AND IMPROVEMENTS.


 


PARCEL 3:


 


EASEMENT FOR THE BENEFIT OF PARCEL 1, CREATED BY
INSTRUMENT MADE BY CHICAGO UNION STATION COMPANY, AND OTHERS, TO
TISHMAN-GATEWAY, INC. AND LASALLE NATIONAL BANK AS TRUSTEE UNDER TRUST
AGREEMENT DATED SEPTEMBER 5, 1963 KNOWN AS TRUST NUMBER 31511, DATED JUNE 21,
1966 AND RECORDED JULY 12, 1966 AS DOCUMENT 19881999, TO CONSTRUCT, USE,
MAINTAIN, REPAIR, REPLACE AND RENEW COLUMNS, CAISSONS, FOUNDATIONS AND OTHER
SUPPORTS BELOW THE EASEMENT FOR STREET PURPOSES GRANTED TO THE CITY OF CHICAGO
BY DEED RECORDED SEPTEMBER 23, 1914 AS DOCUMENT 5499205 AND THE GRADE ELEVATION
OF WHICH IS SET FORTH IN THE ORDINANCE PASSED MARCH 23, 1914 AND RECORDED AS
DOCUMENT 5507199 PURSUANT TO WHICH SAID DEED WAS GIVEN OVER AND ACROSS THE
FOLLOWING DESCRIBED LAW:


 


THE WEST 20 FEET OF LOT 2 (EXCEPT THE SOUTH 33 FEET
THEREOF) IN RAILROAD COMPANIES RESUBDIVISION AFORESAID OF BLOCKS 62 TO 76
INCLUSIVE, 78, PARTS OF 61 AND 77 AND CERTAIN VACATED STREETS AND ALLEYS IN
SCHOOL SECTION ADDITION TO CHICAGO, AFORESAID ‘IN COOK COUNTY, ILLINOIS.


 


113

















 


PARCEL 4:


 


A NONEXCLUSIVE APPURTENANT EASEMENT IN FAVOR OF THE
LEASEHOLD INTEREST IN PARCELS I AND 2 AS CREATED BY DEED OF EASEMENT DATED
JANUARY 16, 1990 AND RECORDED JANUARY 31, 1990 AS DOCUMENT 90047309 MADE BY
LASALLE NATIONAL BANK, AS TRUSTEE UNDER TRUST AGREEMENT DATED NOVEMBER 17, 1983
AND KNOWN AS TRUST NUMBER 107292 TO GATEWAY IV JOINT VENTURE, AN ILLINOIS
GENERAL PARTNERSHIP, LASALLE NATIONAL BANK, AS TRUSTEE UNDER TRUST AGREEMENT
DATED DECEMBER 1, 1983 AND KNOW WAS TRUST NUMBER 107361, LASALLE NATIONAL BANK,
AS TRUSTEE UNDER TRUST AGREEMENT DATED DECEMBER 1, 1983 AND KNOWN AS TRUST
NUMBER 107362, AND LASALLE NATIONAL BANK, AS TRUSTEE UNDER TRUST AGREEMENT
DATED DECEMBER 1, 1983 AND KNOWN AS TRUST NUMBER 107363 FOR THE USE OF 1,100
PUBLIC PARKING SPACES IN THE GARAGE, AS DEFINED THEREIN, WITH RIGHTS OF INGRESS
AND EGRESS AND AN EASEMENT FOR THE PURPOSE OF CONSTRUCTION OF SUCH REPAIRS OR
RESTORATION FOR THE PERIOD REQUIRED TO COMPLETE SUCH REPAIRS OR RESTORATION ON,
OVER, AND ACROSS THE FOLLOWING DESCRIBED LEGAL DESCRIPTION:


 


LOTS 5, 6, 7, AND 8 (EXCEPT FROM SAID LOTS THAT PART
FALLING IN ALLAY) IN BLOCK 49 IN SCHOOL SECTION ADDITION TO CHICAGO IN SECTION
16, TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK
COUNTY, ILLINOIS.


 


AS AMENDED BY FIRST AMENDMENT TO DEED OF EASEMENT
DATED FEBRUARY 9, 1990, AND RECORDED OCTOBER 9, 1990. AS DOCUMENT NUMBER
90491486.


 


LEGAL DESCRIPTION FOR LEASEHOLD ESTATE ‘B’


 


TWO CERTAIN PARCELS OF LAND IN COOK COUNTY,
ILLINOIS, BOUNDED AND DESCRIBED AS FOLLOWS:


 


PARCEL 1:


 


THAT PART OF LOT 2 IN RAILROAD COMPANIES’
RESUBDIVISION OF BLOCKS 62 TO 76 BOTH INCLUSIVE, 78, PARTS OF 61 AND 77 AND
CERTAIN VACATED STREETS AND ALLEYS IN SCHOOL SECTION ADDITION TO CHICAGO, A
SUBDIVISION OF SECTION 16, TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD
PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT OF SAID RESUBDIVISION RECORDED IN THE
RECORDER’S OFFICE OF COOK COUNTY, ILLINOIS ON MARCH 29, 1924 IN BOOK 188 OF
PLATS AT PAGE 16 AS DOCUMENT NUMBER 8339751, SAID PARTS OF LOTS 1 AND 2 IN SAID
RAILROAD COMPANIES’ RESUBDIVISION WHICH IS BOUNDED AND DESCRIBED AS FOLLOWS: BEGINNING
AT THE NORTHEAST CORNER OF


 


114

















 


SAID LOT 1 AND RUNNING THENCE SOUTHWARDLY ALONG THE
EASTERLY LINE OF SAID LOT 1 A DISTANCE OF 199.495 FEET TO AN ANGLE POINT IN
SAID EASTERLY LOT LINE; THENCE CONTINUING SOUTHWARDLY ALONG SAID EASTERLY LINE
A DISTANCE OF 199.23 FEET TO ITS INTERSECTION WITH THE NORTH LINE OF THE SOUTH
33 FEET OF SAID LOT 1; THENCE WEST ALONG THIS NORTH LINE OF THE SOUTH 33 FEET
OF SAID LOT 1 AND OF SAID LOT 2 A DISTANCE OF 218.865 FEET TO AN INTERSECTION
WITH THE EAST LINE OF THE WEST 20 FEET OF SAID LOT 2; THENCE NORTH ALONG SAID
EAST LINE OF THE WEST 20 FEET OF SAID LOT 2 A DISTANCE OF 398.19 FEET TO ITS
INTERSECTION WITH THE NORTH LINE OF SAID LOT 2; AND THENCE EAST ALONG THE NORTH
LINE OF SAID LOT 2 AND OF SAID LOT 1 A DISTANCE OF 239 FEET TO THE POINT OF
BEGINNING EXCEPTING FROM THE PARCEL OF LAND ABOVE DESCRIBED, THE RESPECTIVE
PORTIONS THEREOF LYING VERTICALLY BELOW THE FOLLOWING HORIZONTAL PLANES;


 


(A)          A
HORIZONTAL PLANE 18.5 FEET ABOVE CHICAGO CITY DATUM, THE PERIMETER OF WHICH IS
DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWEST CORNER OF SAID PARCEL AND
RUNNING THENCE EASTERLY ALONG THE NORTH LINE OF SAID PARCEL TO THE INTERSECTION
OF SAID NORTH LINE AND A LINE (THE “LIMITING PLANE LINE”) 168 FEET EAST OF AND
PARALLEL TO THE WEST LINE OF SAID PARCEL; THENCE SOUTHWARDLY ALONG THE LIMITING
PLANE LINE TO THE INTERSECTION OF SAID LINE AND THE SOUTH LINE OF SAID PARCEL;
THENCE WESTERLY ALONG THE SOUTH LINE OF SAID PARCEL TO THE SOUTHWEST CORNER
THEREOF; THENCE NORTHERLY ALONG THE WEST LINE OF SAID PARCEL TO THE NORTHWEST
CORNER OF SAID PARCEL, WHICH IS THE POINT OF BEGINNING OF SAID HORIZONTAL
PLANE; AND


 


(B)           A
HORIZONTAL PLANE 21.0 FEET ABOVE CHICAGO CITY DATUM OVER THE PORTION OF SAID
PARCEL WHICH IS NOT VERTICALLY BELOW THE HORIZONTAL PLANE DESCRIBED IN CLAUSE
(A) ABOVE.


 


PARCEL 2:


 


ALL LAND AND SPACES BELOW THE HORIZONTAL PLANES
DESCRIBED IN PARCEL 1 ABOVE WHICH ARE OCCUPIED BY THE COLUMNS, CAISSONS,
FOUNDATIONS, GUSSETS AND ALL OTHER SUPPORTING STRUCTURES FOR THE BUILDING AND
IMPROVEMENTS CONSTRUCTED IN PARCEL 1, AND BY ALL OTHER IMPROVEMENTS, PLENUMS,
MECHANICAL AND ELECTRICAL EQUIPMENT, PIPES, WIRES, CONDUITS, UTILITIES AND
OTHER STRUCTURES LOCATED BELOW SAID HORIZONTAL PLANES IN CONNECTION WITH SAID
BUILDING AND IMPROVEMENTS, INCLUDING, BUT NOT LIMITED TO, THE SPACE OCCUPIED BY
THE IMPROVEMENTS AND STRUCTURES SHOWN ON THE PLAT OF SURVEY PREPARED AND
CERTIFIED BY CHICAGO GUARANTEE SURVEY COMPANY, DATED JULY 8, .1966 (CONSISTING
OF THREE SHEETS IDENTIFIED AS ORDER NOS. 6311001K AND 6311001S AND


 


115

















 


6311001N, RESPECTIVELY), WHICH WAS RECORDED AS PART
OF DOCUMENT 19881999


 


PARCEL 3:


 


AN EASEMENT APPURTENANT TO PARCELS 1 AND 2 IN, OVER
AND ACROSS THE WEST 20 FEET OF SAID LOT 2 IN SAID RAILROAD COMPANIES’
RESUBDIVISION TO CONSTRUCT, USE, MAINTAIN, REPAIR, REPLACE OR RENEW FROM TIME
TO TIME SUCH COLUMNS, GUSSETS, TRUSSES, HORIZONTAL STRUCTURAL MEMBERS,
CAISSIONS, FOUNDATIONS AND OTHER SUPPORTS AS MAY BE REASONABLY NECESSARY OR
APPROPRIATE TO MAINTAIN AND SUPPORT THE PLAZA AND OTHER IMPROVEMENTS
CONTEMPLATED BY THE LEASE, INCLUDING, WITHOUT LIMITATION, THE COLUMNS
(DESIGNATED ‘DD’) AND THE CAISSONS, FOUNDATIONS AND RELATED STRUCTURES SHOWN ON
THE PLAT OF SURVEY REFERRED TO IN PARCEL 2 ABOVE.


 


PARCEL 4:


 


A NONEXCLUSIVE APPURTENANT EASEMENT IN FAVOR OF THE
LEASEHOLD INTEREST IN PARCELS 1 AND 2 AS CREATED BY DEED OF EASEMENT DATED
JANUARY 16, 1990 AND RECORDED JANUARY 31, 1990 AS DOCUMENT 90047309 MADE BY
LASALLE NATIONAL BANK, AS TRUSTEE UNDER TRUST AGREEMENT DATED NOVEMBER 17, 1983
AND KNOWN AS TRUST NUMBER 107292 TO GATEWAY IV JOINT VENTURE, AN ILLINOIS
GENERAL PARTNERSHIP, LASALLE NATIONAL BANK, AS TRUSTEE UNDER TRUST AGREEMENT
DATED DECEMBER 1, 1983. AND KNOWN AS TRUST NUMBER 107361, LASALLE NATIONAL
BANK, AS TRUSTEE UNDER TRUST AGREEMENT DATED DECEMBER 1, 1983 AND KNOWN AS
TRUST NUMBER 107362, AND LASALLE NATIONAL BANK, AS TRUSTEE UNDER TRUST
AGREEMENT DATED DECEMBER 1, 1983 AND KNOWN AS TRUST NUMBER 107363 FOR THE USE
OF 1,100 PUBLIC PARKING SPACES IN THE GARAGE, AS DEFINED THEREIN, WITH RIGHTS
OF INGRESS AND EGRESS AND AN EASEMENT FOR THE PURPOSE OF CONSTRUCTION OF SUCH
REPAIRS OR RESTORATION FOR THE PERIOD REQUIRED TO COMPLETE SUCH REPAIRS OR
RESTORATION ON, OVER, AND ACROSS THE FOLLOWING DESCRIBED LEGAL DESCRIPTION:


 


LOTS 5, 6, 7, AND 8 (EXCEPT FROM SAID LOTS THAT PART
FALLING IN ALLEY) IN BLOCK 49 IN SCHOOL SECTION ADDITION TO CHICAGO IN SECTION
16, TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK
COUNTY, ILLINOIS.


 


AS AMENDED BY FIRST AMENDMENT TO DEED OF EASEMENT
DATED FEBRUARY 9, 1990, AND RECORDED OCTOBER 9, 1990, AS DOCUMENT NUMBER
90491486.


 


116
















 


LEASEHOLD ESTATES ‘A’ AND ‘B’
ARE ALSO KNOWN AS:


 


PARTS OF LOTS 1 AND 2,
RAILROAD COMPANIES RESUBDIVISION OF BLOCKS 62 TO 76 INCLUSIVE, 78, PARTS OF 61
AND 77 AND CERTAIN VACATED STREETS AND ALLEYS IN SCHOOL SECTION ADDITION
TO CHICAGO, A SUBDIVISION OP SECTION 16, TOWNSHIP 39 NORTH, RANGE 14 EAST
OF THE THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS, CITY OF CHICAGO,
COOK COUNTY, ILLINOIS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:


 


BEGINNING AT THE NORTHEAST
CORNER OF SAID LOT 1; THENCE SOUTH 3 DEGREES 44 MINUTES 12 SECONDS WEST,
199.495 FEET; THENCE SOUTH 2 DEGREES 03 MINUTES 08 SECONDS WEST, 199.23 FEET;
THENCE NORTH 89 DEGREES 35 MINUTES 40 SECONDS WEST, 219.865 FEET, THENCE NORTH
0 DEGREES 0 MINUTES 0 SECONDS EAST, 398.19 FEET; THENCE SOUTH 89 DEGREES 37
MINUTES 30 SECONDS EAST 239 FEET TO THE POINT OF BEGINNING.


 


PARCEL 1:


 


THAT PART OF LOT 2 IN
RAILROAD COMPANIES’ RESUBDIVISION OF BLOCKS 62 TO 76 BOTH INCLUSIVE, 78, PARTS
OF 61 AND 77 AND CERTAIN VACATED STREETS AND ALLEYS IN SCHOOL SECTION ADDITION
TO CHICAGO, A SUBDIVISION OF SECTION 16, TOWNSHIP 39 NORTH, RANGE 14 EAST
OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT OF SAID RESUBDIVISION
RECORDED IN THE RECORDER’S OFFICE OF COOK COUNTY, ILLINOIS ON MARCH 29,
1924 IN BOOK 188 OF PLATS AT PAGE 16 AS DOCUMENT NUMBER 8339751, FALLING
WITHIN A TRACT OF LAND COMPRISED OF PARTS OF LOTS 1 AND 2 IN SAID RAILROAD
COMPANIES’ RESUBDIVISION WHICH IS BOUNDED AND DESCRIBED AS FOLLOWS:  BEGINNING AT THE NORTHEAST CORNER OF SAID LOT
1 AND RUNNING. THENCE SOUTHWARDLY ALONG THE EASTERLY LINE OF SAID LOT 1 A
DISTANCE OF 199.495 FEET TO AN ANGLE POINT IN SAID EASTERLY LOT LINE; THENCE
CONTINUING SOUTHWARDLY ALONG SAID EASTERLY LINE A DISTANCE OF 199.23 FEET TO
ITS INTERSECTION WITH THE NORTH LINE OF THE SOUTH 33 FEET OF SAID LOT 1;
THENCE WEST ALONG THE NORTH LINE OF THE SOUTH 33 FEET OF SAID LOT 1 AND OF SAID
LOT 2 A DISTANCE OF 218.865 FEET TO AN INTERSECTION WITH THE EAST LINE OF
THE WEST 20 FEET OF SAID LOT 2; THENCE NORTH ALONG SAID EAST LINE OF THE WEST
20 FEET OF SAID LOT 2 A DISTANCE OF 398.19 FEET TO ITS INTERSECTION WITH
THE NORTH LINE OF SAID LOT 2; AND THENCE EAST ALONG THE NORTH LINE OF SAID LOT
2 AND OF SAID LOT 1 A DISTANCE OF 239 FEET TO THE POINT OF BEGINNING


 


EXCEPTING FROM THE PARCEL OF
LAND ABOVE DESCRIBED, THE RESPECTIVE PORTIONS THEREOF LYING VERTICALLY BELOW
THE FOLLOWING HORIZONTAL PLANES:


 


117

















 


(A)                              A HORIZONTAL
PLANE 18.5 FEET ABOVE CHICAGO CITY DATUM, THE PERIMETER OF WHICH IS DESCRIBED
AS FOLLOWS:


 


BEGINNING AT THE NORTHWEST
CORNER OF SAID PARCEL AND RUNNING THENCE EASTERLY ALONG THE NORTH LINE OF SAID
PARCEL TO THE INTERSECTION OF SAID NORTH LINE AND A LINE (THE “LIMITING
PLANE LINE”) 168 FEET EAST OF AND PARALLEL TO THE WEST LINE OF SAID PARCEL;
THENCE SOUTHWARDLY ALONG THE LIMITING PLAN LINE TO THE INTERSECTION OF
SAID LINE AND SOUTH LINE OF SAID PARCEL; THENCE WESTERLY ALONG THE SOUTH LINE
OF SAID PARCEL TO THE SOUTHWEST CORNER THEREOF; THENCE NORTHERLY ALONG THE.
WEST LINE OF SAID PARCEL TO THE NORTHWEST CORNER OF SAID PARCEL, WHICH IS THE
POINT OF BEGINNING OF SAID HORIZONTAL PLANE; AND


 


(B)                                A HORIZONTAL
PLANE 21.0 FEET ABOVE CHICAGO CITY DATUM OVER THE PORTION OF SAID PARCEL WHICH
IS NOT VERTICALLY BELOW THE HORIZONTAL PLANE DESCRIBED IN CLAUSE (A) ABOVE


 


AND EXCEPTING THEREFROM THE
BUILDINGS AND IMPROVEMENTS LOCATED THEREON.


 


PARCEL 2:


 


EXCLUSIVE EASEMENTS ‘
APPURTENANT TO PARCEL 1 AS CREATED BY EASEMENT AND OPERATING AGREEMENT MADE BY
CHICAGO UNION STATION COMPANY AND TRIZECHAHN 10/120 FEE LLC, DATED NOVEMBER 8,
2001 AND RECORDED NOVEMBER 16, 2001 AS DOCUMENT 0011080263, FOR AMONG
OTHER THINGS, IN, OVER AND ACROSS ALL LAND AND SPACES BELOW THE HORIZONTAL
PLANES DESCRIBED IN PARCEL 1 ABOVE, AND IN, OVER AND ACROSS ALL LAND AND SPACES
FALLING IN THAT PART OF LOT 1 IN RAILROAD COMPANIES’ RESUBDIVISION,
AFORESAID, DESCRIBED ABOVE IN PARCEL 1, BELOW THE HORIZONTAL PLANES DESCRIBED
ABOVE IN PARCEL 1, INCLUDING EASEMENTS FOR THE AREA OCCUPIED BY THE COLUMNS,
CAISSONS, FOUNDATIONS, GUSSETS AND ALL OTHER SUPPORTING STRUCTURES FOR THE
BUILDING AND IMPROVEMENTS CONSTRUCTED IN PARCEL 1 AND IN THAT PART OF LOT
1, AND BY ALL OTHER IMPROVEMENTS, PLENUMS, MECHANICAL AND ELECTRICAL EQUIPMENT,
PIPES, WIRES, CONDUITS, UTILITIES AND OTHER IMPROVEMENTS, INCLUDING, BUT NOT
LIMITED TO, THE SPACE OCCUPIED BY THE IMPROVEMENTS AND STRUCTURES SHOWN ON THE
PLAT OF SURVEY PREPARED AND CERTIFIED BY CHICAGO GUARANTEE SURVEY COMPANY DATED
JULY 8, 1966 (CONSISTING OF THREE SHEETS IDENTIFIED AS ORDER NOS. 6311001K
AND 6311001S AND 6311001N RESPECTIVELY), WHICH WAS RECORDED AS PART OF
DOCUMENT NO. 19881999.


 


118

















 


PARCEL 3:


 


AN EASEMENT APPURTENANT TO
PARCEL 1 OVER AND ACROSS THE WEST 20 FEET OF LOT 2 IN SAID RAILROAD COMPANIES’
RESUBDIVISION TO CONSTRUCT, USE, MAINTAIN, REPAIR, REPLACE OR RENEW FROM TIME
TO TIME SUCH COLUMNS, GUSSETS, TRUSSES, HORIZONTAL STRUCTURAL MEMBERS,
CAISSONS, FOUNDATIONS AND OTHER SUPPORTS AS MAY BE REASONABLY NECESSARY OR
APPROPRIATE TO MAINTAIN AND SUPPORT THE PLAZA AND OTHER IMPROVEMENTS
CONTEMPLATED BY THE EASEMENT AND OPERATING AGREEMENT DESCRIBED IN PARCELS 1 AND
5, INCLUDING, WITHOUT LIMITATION, THE COLUMNS (DESIGNATED ‘DD’) AND THE
CAISSONS, FOUNDATIONS AND RELATED STRUCTURES SHOWN ON THE PLAT OF SURVEY
REFERRED TO IN PARCEL 2 ABOVE.


 


PARCEL 4:


 


A NONEXCLUSIVE APPURTENANT
EASEMENT IN FAVOR OF THE LEASEHOLD INTEREST IN PARCEL 1, THEIR SUCCESSORS AND
ASSIGNS, INCLUDING, WITHOUT LIMITATION, CHICAGO UNION STATION COMPANY AND THE
PENN CENTRAL CORPORATION, AS THEIR INTERESTS MAY APPEAR UPON EXPIRATION OR
OTHER TERMINATION OF THE AIR RIGHTS LEASEHOLDS, AS CREATED BY DEED OF EASEMENT
DATED JANUARY 16, 1990 AND RECORDED JANUARY 31, 1990 AS DOCUMENT
90047309 FOR THE USE OF 1,100 PUBLIC PARKING SPACES IN THE GARAGE, AS DEFINED
THEREIN, WITH RIGHTS OF INGRESS AND EGRESS AND AN EASEMENT FOR THE PURPOSE OF
CONSTRUCTION OF SUCH REPAIRS OR RESTORATION FOR A PERIOD REQUIRED TO COMPLETE
SUCH REPAIRS OR RESTORATION ON, OVER AND ACROSS THE FOLLOWING DESCRIBED LEGAL
DESCRIPTION:  LOTS 5, 6, 7 AND 8 (EXCEPT
FROM SAID LOTS THAT PART FALLING IN ALLEY) IN BLOCK 49 IN SCHOOL SECTION ADDITION
TO CHICAGO IN SECTION 16, TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD
PRINCIPAL MERIDIAN, AS AMENDED BY FIRST AMENDMENT TO DEED OF EASEMENT


 


PARCEL 5:


 


EASEMENTS FOR THE BENEFIT OF
PARCEL 1 AS FOLLOWS:


 


1)                                      FOR INGRESS AND
EGRESS, FOR PERSONS, MATERIALS AND EQUIPMENT OVER SUCH AREAS LOCATED IN THE
LOWER PARCEL AS ARE REASONABLY NECESSARY TO CONFER UPON THE OWNER OF PARCEL 1;


 


2)                                      AN EASEMENT FOR
THE OTHER USES AND PURPOSES, AND AN EASEMENT FOR THE EXERCISE OF OTHER RIGHTS,
EXPRESSLY SET FORTH IN SAID AGREEMENT; AND


 


3)                                      TO MAINTAIN, SO
LONG AS THEY EXIST, SUCH INCIDENTAL ENCROACHMENTS OF THE BUILDING OR OTHER
IMPROVEMENTS, AS THEY NOW EXIST OR ARE FROM TIME TO TIME REBUILT OR REPLACED IN


 


119

















 


ACCORDANCE WITH THE TERMS OF
THIS AGREEMENT, FROM THE LAND DESCRIBED IN PARCEL 1 INTO THE LOWER PARCEL;


 


AND


 


4)                                      TO, FROM TIME
TO TIME, TEMPORARILY USE THE LOWER PARCEL AS NEEDED FOR CONSTRUCTION AND
STAGING PURPOSES TO REPAIR, MAINTAIN, RECONSTRUCT OR REPLACE (A) THE
BUILDING OR OTHER IMPROVEMENTS ON THE LAND DESCRIBED IN PARCEL 1, OR (B) THE
FOUNDATION OR OTHER FACILITIES SUBJECT TO EASEMENTS CREATED AND GRANTED BY THAT
CERTAIN EASEMENT AND OPERATING AGREEMENT MADE BY AND BETWEEN CHICAGO AND
GRANTED BY THAT CERTAIN EASEMENT AND OPERATING AGREEMENT MADE BY AND BETWEEN
CHICAGO UNION STATION COMPANY AND TRIZECHAHN 10/120 FEE  LLC, AND RECORDED NOVEMBER 16, 2001 AS
DOCUMENT 0011080263 IN, OVER AND ACROSS CERTAIN ADJOINING LAND MORE
PARTICULARLY DESCRIBED THEREIN, IN COOK COUNTY, ILLINOIS.


 


120

















 


Legal Description of 120
South Riverside


 


PARCEL 1:


 


A PART OF LOT 3 IN
RAILROAD COMPANIES’ RESUBDIVISION OF BLOCKS 62 TO 76, BOTH INCLUSIVE, 78, PARTS
OF LOTS 61 AND 77 AND CERTAIN VACATED STREETS AND ALLEYS IN SCHOOL SECTION ADDITION
TO CHICAGO, A SUBDIVISION OF SECTION 16, TOWNSHIP 39 NORTH, RANGE 14 EAST
OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT OF SAID RESUBDIVISION
RECORDED IN THE RECORDER’S OFFICE OF COOK COUNTY, ILLINOIS ON MARCH 29,
1924, IN BOOK 188 OF PLATS AT PAGE 16 AS DOCUMENT NO. 8339751;
FALLING WITHIN A TRACT OF LAND COMPRISED OF PART OF LOTS 3 AND 4 BEING
BOUNDED AND DESCRIBED AS FOLLOWS: 
BEGINNING AT THE SOUTHEAST OF CORNER OF SAID LOT 4 AND RUNNING THENCE
WEST ALONG THE SOUTH LINE OF SAID LOT 4 AND OF SAID LOT 3, A DISTANCE OF 242.50
FEET TO THE POINT OF INTERSECTION OF SAID SOUTH LINE OF LOT 3 WITH THE
EAST LINE OF THE WEST 20 FEET OF LOT 3, A DISTANCE OF 397.635 FEET TO AN INTERSECTION WITH
THE SOUND LINE OF THE NORTH 33.0 FEET OF SAID LOT 3; THENCE EAST ALONG THE
SOUND LINE OF THE NORTH 33 FEET OF SAID LOTS 3 AND 4, A DISTANCE OF 216.50 FEET
TO AN INTERSECTION WITH THE EASTERLY LINE OF SAID LOT 4; AND THENCE
SOUTHWARDLY ALONG THE EASTERLY LINE OF SAID LOT 4, A DISTANCE OF 398.60 FEET TO
THE POINT OF BEGINNING,


 


EXCEPTING, HOWEVER, FROM THE
PARCEL OF LAND ABOVE-DESCRIBED THE RESPECTIVE PORTIONS THEREOF LYING VERTICALLY
BELOW THE FOLLOWING HORIZONTAL PLANES:


 


(A)                              A HORIZONTAL
PLANE 20.5 FEET ABOVE CHICAGO CITY DATUM, THE PERIMETER OF WHICH IS DESCRIBING
AS FOLLOWS:  BEGINNING AT THE NORTHWEST
CORNER OF SAID PARCEL AND RUNNING THENCE EASTERLY ALONG THE NORTH LINE OF SAID
PARCEL, A DISTANCE OF 168 FEET; THENCE SOUTHWARDLY TO A POINT ON THE SOUTH LINE
OF SAID PARCEL 168 FEET FROM THE SOUTHWEST CORNER THEREOF; THENCE WESTERLY A
DISTANCE OF 168 FEET ALONG SAID SOUTH LINE OF SAID PARCEL TO THE SOUTHWEST
CORNER THEREOF; THENCE NORTHERLY ALONG THE WEST LINE OF SAID PARCEL TO THE
POINT OF BEGINNING OF SAID HORIZONTAL PLANE, A DISTANCE OF 397.64 FEET, MORE OR
LESS; ALSO


 


(B)                                A HORIZONTAL
PLANE 22.5 FEET ABOVE CHICAGO CITY DATUM OVER THE REMAINDER OF SAID PARCEL
WHICH IS NOT VERTICALLY BELOW THE HORIZONTAL PLANE DESCRIBED IN CLAUSE (A) ABOVE.


 


AND EXCEPTING THE BUILDINGS
AND IMPROVEMENTS LOCATED THEREON.


 


121

















 


MADE BY CHICAGO UNION
STATION COMPANY AND TRXZECHAHN 10/120 FEE LLC, DATED NOVEMBER 8, 2001 AND
RECORDED NOVEMBER 16, 2001 AS DOCUMENT 0011080264, FOR, AMONG OTHER
THINGS, IN OVER AND ACROSS ALL LAND AND SPACES BELOW THE HORIZONTAL PLANES
DESCRIBED IN PARCEL 1 ABOVE, AND IN, OVER AND ACROSS ALL LAND AND SPACES
FALLING IN THAT PART OF LOT 4 IN RAILROAD COMPANIES’ RESUBDIVISION,
AFORESAID, DESCRIBED ABOVE IN PARCEL 1, BELOW THE HORIZONTAL PLANES DESCRIBED
ABOVE IN PARCEL 1, INCLUDING EASEMENTS FOR THE AREA OCCUPIED BY THE COLUMNS,
CAISSONS, FOUNDATIONS, GUSSETS AND ALL OTHER SUPPORTING STRUCTURES FOR THE
BUILDING AND IMPROVEMENTS CONSTRUCTED IN PARCEL 1 AND IN THAT PART OF LOT
4, AND BY ALL OTHER IMPROVEMENTS, PLENUMS, MECHANICAL AND ELECTRICAL EQUIPMENT,
PIPES, WIRES, CONDUITS, UTILITIES AND OTHER STRUCTURES LOCATED BELOW SAID
HORIZONTAL PLANES IN CONNECTION WITH SAID BUILDING AND IMPROVEMENTS, INCLUDING,
BUT NOT LIMITED TO, THE SPACE OCCUPIED BY THE IMPROVEMENTS AND STRUCTURES SHOWN
ON THE PLAT OF SURVEY PREPARED AND CERTIFIED BY CHICAGO GUARANTEE SURVEY
COMPANY DATED JANUARY 3, 1968 (CONSISTING OF FIVE SHEETS IDENTIFIED AS
ORDER NUMBER 6501003AA SHEETS 1-5) WHICH WAS RECORDED AS PART OF DOCUMENT NO. 20370303.


 


PARCEL 3:


 


AN EASEMENT APPURTENANT TO
PARCEL 1 OVER AND ACROSS THE WEST 20 FEET OF LOT 3 IN SAID RAILROAD COMPANIES’
RESUBDIVISION TO CONSTRUCT, USE, MAINTAIN, REPAIR, REPLACE OF RENEW FROM TIME
TO TIME SUCH COLUMNS, GUSSETS, TRUSSES, HORIZONTAL STRUCTURAL MEMBERS,
CAISSONS, FOUNDATIONS AND OTHER SUPPORTS AS MAY BE REASONABLY NECESSARY OR
APPROPRIATE TO MAINTAIN AND SUPPORT THE PLACE AND OTHER IMPROVEMENTS
CONTEMPLATED BY THE EASEMENT AND OPERATING AGREEMENT DESCRIBED IN PARCELS 2 AND
5, INCLUDING, WITHOUT LIMITATION, THE COLUMNS (DESIGNATED ‘DD’) AND THE
CAISSONS, FOUNDATIONS AND RELATED STRUCTURES SHOWN ON THE PLAT OF SURVEY
REFERRED TO IN PARCEL 2 ABOVE.


 


PARCEL 4:


 


A NONEXCLUSIVE APPURTENANT
EASEMENT IN FAVOR OF THE LEASEHOLD INTEREST IN PARCEL 1, THEIR SUCCESSORS AND
ASSIGNS, INCLUDING, WITHOUT LIMITATION, CHICAGO UNION STATION, COMPANY AND THE
PENN CENTRAL CORPORATION, AS THEIR INTERESTS MAY APPEAR UPON EXPIRATION OR
OTHER TERMINATION OF THE AIR RIGHTS LEASEHOLDS, AS CREATED BY DEED OF EASEMENT
DATED JANUARY 16, 1990 AND RECORDED JANUARY 31, 1990 AS DOCUMENT
90047309 FOR THE USE OF 1,100 PUBLIC PARKING SPACES IN THE GARAGE, AS DEFINED
THEREIN, WITH RIGHTS OF INGRESS AND EGRESS AND AN EASEMENT FOR


 


122

















 


THE PURPOSE OF CONSTRUCTION
OF SUCH REPAIRS OR RESTORATION FOR A PERIOD REQUIRED TO COMPLETE SUCH REPAIRS
OR RESTORATION ON, OVER AND ACROSS THE FOLLOWING DESCRIBED LEGAL
DESCRIPTION:  lots 5, 6, 7 and 8 (EXCEPT
FROM SAID LOTS THAT PART FALLING IN ALLEY) IN BLOCK 49 IN SCHOOL SECTION ADDITION
TO CHICAGO IN SECTION 16, TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD
PRINCIPAL MERIDIAN, AS AMENDED BY FIRST AMENDMENT TO DEED OF EASEMENT RECORDED OCTOBER 9,
1990 AS DOCUMENT 90491486.


 


PARCEL 5:


 


EASEMENTS FOR THE BENEFIT OF
PARCEL 1 AS FOLLOWS:


 


1)                                      FOR INGRESS AND
EGRESS, FOR PERSONS, MATERIALS AND EQUIPMENT OVER SUCH AREAS LOCATED IN THE
LOWER PARCEL AS ARE REASONABLY NECESSARY TO CONFER UPON THE OWNER OF PARCEL 1;


 


AND


 


2)                                      AN EASEMENT FOR
THE OTHER USES AND PURPOSES, AND AN EASEMENT FOR THE EXERCISE OF OTHER RIGHTS,
EXPRESSLY SET FORTH IN SAID AGREEMENT;


 


AND


 


3)                                      TO MAINTAIN, SO
LONG AS THEY EXIST SUCH INCIDENTAL ENCROACHMENTS OF THE BUILDING OR OTHER
IMPROVEMENTS, AS THEY NOW EXIST OR ARE FROM TIME TO TIME REBUILT OR REPLACED IN
ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, FROM THE LAND DESCRIBED IN PARCEL 1
INTO THE LOWER PARCEL;


 


AND


 


4)                                      TO, FROM TIME
TO TIME, TEMPORARILY DUE THE LOWER PARCEL AS NEEDED FOR CONSTRUCTION AND
STAGING PURPOSES TO REPAIR, MAINTAIN, RECONSTRUCT OR REPLACE (A) THE
BUILDING OR OTHER IMPROVEMENTS ON THE LAND DESCRIBED IN PARCEL 1, OR (B) THE
FOUNDATION OR OTHER FACILITIES SUBJECT TO EASEMENTS CREATED AND GRANTED BY THAT
CERTAIN EASEMENT AND OPERATING AGREEMENT MADE BY AND BETWEEN CHICAGO UNION
STATION COMPANY AND TRIZECHAHN 10/120 FEE LLC, AND RECORDED NOVEMBER 16,
2001 AS DOCUMENT 0011080264 IN, OVER AND ACROSS CERTAIN ADJOINING LAND MORE
PARTICULARLY DESCRIBED THEREIN, IN COOK COUNTY, ILLINOIS.


 


TWO CERTAIN PARCELS OF LAND
IN THE COUNTY OF COOK, STATE OF ILLINOIS, BOUNDED AND DESCRIBED AS FOLLOWS:


 


123

















 


PARCEL 1:


 


A PART OF LOT 3 IN
RAILROAD COMPANIES RESUBDIVISION OF BLOCKS 62 TO 76 BOTH INCLUSIVE, 78, PARTS
OF 61 AND 77 AND CERTAIN VACATED STREETS AND ALLEYS IN SCHOOL SECTION ADDITION
TO CHICAGO, A SUBDIVISION OF SECTION 16, TOWNSHIP 39 NORTH, RANGE 14 EAST
OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT OF RESUBDIVISION
RECORDED IN THE RECORDER’S OFFICE OF COOK COUNTY, ILLINOIS ON MARCH 24,
1924 IN BOOK 188 OF PLATS AT PAGE 16, AS DOCUMENT 8339751; SAID PART OF
LOTS 3 AND 4 BEING BOUNDED AND DESCRIBED AS FOLLOWS:  BEGINNING AT THE SOUTHEAST CORNER OF SAID LOT
4 AND RUNNING THENCE WEST ALONG THE SOUTH LINE OF SAID LOT 4 AND OF SAID LOT 3
A DISTANCE OF 242.50 FEET TO THE POINT OF INTERSECTION OF SAID SOUTH LINE
OF LOT 3 WITH THE EAST LINE OF THE WEST 20 FEET OF SAID LOT 3; THENCE NORTH
ALONG SAID EAST LINE OF THE WEST 20 FEET OF LOT 3 A DISTANCE OF 397.635 FEET TO
AN INTERSECTION WITH THE SOUTH LINE OF THE NORTH 33 FEET OF SAID LOT 3;
THENCE EAST ALONG THE SOUTH LINE OF THE NORTH 33 FEET OF SAID LOTS 3 AND 4 A
DISTANCE OF 216.50 FEET TO AN INTERSECTION WITH THE EASTERLY LINE OF SAID
LOT 4 AND THENCE SOUTHWARDLY ALONG THE EASTERLY LINE OF SAID LOT 4 A DISTANCE
OF 398.60 FEET TO THE POINT OF BEGINNING, (EXCEPTING HOWEVER FROM THE PARCEL OF
LAND ABOVE DESCRIBED, THE RESPECTIVE PORTIONS THEREOF LYING VERTICALLY BELOW
THE FOLLOWING HORIZONTAL PLANES;


 


A)                                  A HORIZONTAL
PLANE 20.5 FEET ABOVE CHICAGO CITY DATUM, THE PERIMETER OF WHICH IS DESCRIBED
AS FOLLOWS:


 


BEGINNING AT THE NORTHWEST
CORNER OF SAID PARCEL AND RUNNING THENCE EASTERLY ALONG THE NORTH LINE OF SAID
PARCEL A DISTANCE OF 168 FEET, THENCE SOUTHWARDLY TO A POINT ON THE SOUTH LINE
OF SAID PARCEL 168 FEET FROM THE SOUTHWEST CORNER THEREOF; THENCE WESTERLY A
DISTANCE OF 168 FEET ALONG SAID SOUTH LINE OF SAID PARCEL TO THE SOUTHWEST
CORNER THEREOF; THENCE NORTHERLY LONG THE WEST LINE OF SAID PARCEL TO THE POINT
OF BEGINNING OF SAID HORIZONTAL PLANE, A DISTANCE OF 397.64 FEET, MORE OR LESS,
ALSO


 


B)                                    A HORIZONTAL
PLANE 22.5 FEET ABOVE CHICAGO CITY DATUM OVER THE REMAINDER OF SAID PARCEL
WHICH IS NOT VERTICALLY BELOW THE HORIZONTAL PLANE DESCRIBED IN CLAUSE (A) ABOVE.


 


PARCEL 2:


 


ALL LAND AND SPACES BELOW
TEE HORIZONTAL PLANES DESCRIBED IN PARCEL 1 ABOVE WHICH ARE OCCUPIED BY THE
COLUMNS, CAISSONS, FOUNDATIONS, GUSSETS AND ALL OTHER SUPPORTING STRUCTURES FOR


 


124

















 


THE BUILDING AND
IMPROVEMENTS CONSTRUCTED IN PARCEL 1, AND BY ALL OTHER IMPROVEMENTS, PLENUMS,
MECHANICAL AND ELECTRICAL EQUIPMENT, PIPES, WIRES, CONDUITS, UTILITIES AND
OTHER STRUCTURES LOCATED BELOW SAID HORIZONTAL PLANES IN CONNECTION WITH SAID
BUILDING AND IMPROVEMENTS, INCLUDING, BUT NOT LIMITED TO, THE SPACE OCCUPIED BY
THE IMPROVEMENTS AND STRUCTURES SHOWN ON THE PLAT OF SURVEY PREPARED AND
CERTIFIED BY CHICAGO GUARANTEE SURVEY COMPANY DATED JANUARY 3, 1968
(CONSISTING OF FIVE SHEETS IDENTIFIED AS ORDER NOS. 6501003 AA SHEETS 1-5)
WHICH WAS RECORDED AS PART OF DOCUMENT NO. 20370303.


 


PARCEL 3:


 


AN EASEMENT APPURTENANT TO
PARCELS 1 AND 2 OVER AND ACROSS THE WEST 20 FEET OF LOT 3 IN SAID RAILROAD
COMPANIES’ RESUBDIVISION TO CONSTRUCT, USE, MAINTAIN, REPAIR, REPLACE OR RENEW
FROM TIME TO TIME SUCH COLUMNS, GUSSETS, TRUSSES, HORIZONTAL STRUCTURAL
MEMBERS, CAISSONS, FOUNDATIONS AND OTHER SUPPORTS AS MAY BE REASONABLY
NECESSARY OR APPROPRIATE TO MAINTAIN AND SUPPORT THE PLAZA AND OTHER
IMPROVEMENTS CONTEMPLATED BY THE LEASE, INCLUDING, WITHOUT LIMITATION, THE
COLUMNS (DESIGNATED “DD”) AND THE CAISSONS, FOUNDATIONS AND RELATED STRUCTURES
SHOWN ON THE PLAT OF SURVEY REFERRED TO IN PARCEL 2 ABOVE.


 


PARCEL 4:


 


A NONEXCLUSIVE APPURTENANT
EASEMENT IN FAVOR OF THE LEASEHOLD INTEREST N PARCELS 1 AND 2 AS CREATED BY
DEED OF EASEMENT RECORDED JANUARY 31, 1990 AS DOCUMENT 90047309 FOR THE
USE OF 1,100 PUBLIC PARKING SPACES IN THE GARAGE, AS DEFINED THEREIN, WITH
RIGHTS OF INGRESS AND EGRESS AND AN EASEMENT FOR THE PURPOSE OF CONSTRUCTION OF
SUCH REPAIRS OR RESTORATION FOR A PERIOD REQUIRED TO COMPLETE SUCH REPAIRS OR
RESTORATION ON, OVER AND ACROSS THE FOLLOWING DESCRIBED LEGAL DESCRIPTION:


 


LOTS 5, 6, 7 AND 8 (EXCEPT
FROM SAID LOTS THAT PART FALLING IN ALLEY) IN BLOCK 49 IN SCHOOL SECTION ADDITION
TO CHICAGO IN SECTION 16, TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD
PRINCIPAL MERIDIAN, AS MENDED BY FIRST AMENDMENT TO DEED OF EASEMENT RECORDED OCTOBER 9,
1990 AS DOCUMENT 90491486.


 


LEGAL DESCRIPTION OF
LEASEHOLD ESTATE ‘B’


 


TWO CERTAIN PARCELS OF, LAND
IN COOK COUNTY, ILLINOIS, BOUNDED AND DESCRIBED AS FOLLOWS:


 


125

















 


PARCEL 1:


 


A PART OF LOT 3 IN
RAILROAD COMPANIES’ RESUBDIVISION OF BLOCKS 62 TO 76, BOTH INCLUSIVE, 78, PARTS
OF LOTS 61 AND 77 AND CERTAIN VACATED STREETS AND ALLEYS IN SCHOOL SECTION ADDITION
TO CHICAGO, A SUBDIVISION OF SECTION 16, TOWNSHIP 39 NORTH, RANGE 14 EAST
OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT OF SAID RESUBDIVISION
RECORDED IN THE RECORDER’S OFFICE OF COOK COUNTY, ILLINOIS ON MARCH 29,
1924, IN BOOK 188 OF PLATS AT PAGE 16 AS DOCUMENT NO. 8339751; SAID PART OF
LOTS 3 AND 4 BEING BOUNDED AND DESCRIBED AS FOLLOWS:  BEGINNING AT THE SOUTHEAST OF CORNER OF SAID
LOT 4 AND RUNNING THENCE WEST ALONG THE SOUTH LINE OF SAID LOT 4 AND OF SAID
LOT 3, A DISTANCE OF 242.50 FEET TO THE POINT OF INTERSECTION OF SAID
SOUTH LINE OF LOT 3 WITH THE EAST LINE OF THE WEST 20 FEET OF SAID LOT 3;
THENCE NORTH ALONG SAID EAST LINE OF THE WEST 20 FEET OF LOT 3, A DISTANCE OF
397.635 FEET TO AN INTERSECTION WITH THE SOUTH LINE OF THE NORTH 33.0 FEET
OF SAID LOT 3; THENCE EAST ALONG THE SOUTH LINE OF THE NORTH 33 FEET OF SAID
LOTS 3 AND 4, A DISTANCE OF 216.50 FEET TO AN INTERSECTION WITH THE
EASTERLY LINE OF SAID LOT 4; AND THENCE SOUTHWARDLY ALONG THE EASTERLY LINE OF
SAID LOT 4, A DISTANCE OF 398.60 FEET TO THE POINT OF BEGINNING,


 


EXCEPTING, HOWEVER, FROM THE
PARCEL OF LAND ABOVE-DESCRIBED THE RESPECTIVE PORTIONS THEREOF LYING VERTICALLY
BELOW THE FOLLOWING HORIZONTAL PLANES:


 


(A) A HORIZONTAL. PLANE
20.5 FEET ABOVE CHICAGO CITY DATUM, THE PERIMETER OF WHICH IS DESCRIBED AS
FOLLOWS: BEGINNING AT THE NORTHWEST CORNER OF SAID PARCEL AND RUNNING THENCE
EASTERLY ALONG THE NORTH LINE OF SAID PARCEL, A DISTANCE OF 168 FEET; THENCE
SOUTHWARDLY TO A POINT ON THE SOUTH LINE OF SAID PARCEL 168 FEET FROM THE
SOUTHWEST CORNER THEREOF; THENCE WESTERLY A DISTANCE OF 168 FEET ALONG SAID
SOUTH LINE OF SAID PARCEL TO THE SOUTHWEST CORNER THEREOF; THENCE NORTHERLY
ALONG THE WEST LINE OF SAID PARCEL TO THE POINT OF BEGINNING OF SAID HORIZONTAL
PLANE, A DISTANCE OF 397.64 FEET, MORE OR LESS; ALSO


 


(B) A HORIZONTAL PLANS
22.5 FEET ABOVE CHICAGO CITY DATUM OVER THE REMAINDER OF SAID PARCEL WHICH IS
NOT VERTICALLY BELOW THE HORIZONTAL PLANE DESCRIBED IN CLAUSE (A) ABOVE.


 


PARCEL 2:


 


ALL LAND AND SPACES BELOW
THE HORIZONTAL PLANES DESCRIBED IN PARCEL I ABOVE, WHICH ARE OCCUPIED BY THE
COLUMNS, CAISSONS, FOUNDATIONS, GUSSETS AND ALL OTHER SUPPORTING STRUCTURES FOR
THE BUILDING AND IMPROVEMENTS CONSTRUCTED IN PARCEL 1, AND BY ALL OTHER
IMPROVEMENTS, PLENUMS, MECHANICAL AND ELECTRICAL


 


126

















 


EQUIPMENT, PIPES, WIRES,
CONDUITS, UTILITIES AND OTHER STRUCTURES LOCATED BELOW SAID HORIZONTAL PLANES
IN CONNECTION WITH SAID BUILDING AND IMPROVEMENTS, INCLUDING, BUT NOT LIMITED
TO, THE SPACE OCCUPIED BY THE IMPROVEMENTS AND STRUCTURES SHOWN ON THE PLAT OF
SURVEY PREPARED AND CERTIFIED BY CHICAGO GUARANTEE SURVEY COMPANY, DATED JANUARY 3,
1968 (CONSISTING OF FIVE SHEETS IDENTIFIED AS ORDER NOS. 6501003 AA SHEETS 1-5)
WHICH WAS RECORDED AS PART OF DOCUMENT NO. 20370303.


 


PARCEL 3:


 


AN EASEMENT APPURTENANT’ TO
PARCELS 1 AND 2 OVER AND ACROSS THE WEST 20 FEET OF LOT 3 IN SAID RAILROAD
COMPANIES’ RESUBDIVISION TO CONSTRUCT USE, MAINTAIN, REPAIR, REPLACE OR RENEW
..FROM TIME TO TIME SUCH COLUMNS, GUSSETS, TRUSSES, HORIZONTAL STRUCTURAL
MEMBERS, CAISSONS, FOUNDATIONS AND OTHER SUPPORTS AS MAY BE REASONABLY
NECESSARY OR APPROPRIATE TO MAINTAIN AND SUPPORT THE PLAZA AND OTHER
IMPROVEMENTS CONTEMPLATED BY THE LEASE, INCLUDING WITHOUT LIMITATION, THE
COLUMNS (DESIGNATED ‘DD’) AND THE CAISSONS, FOUNDATIONS AND RELATED STRUCTURES
SHOWN ON THE PLAT OF SURVEY REFERRED TO IN PARCEL 2 ABOVE.


 


PARCEL 4:


 


A NONEXCLUSIVE APPURTENANT
EASEMENT IN FAVOR OF THE LEASEHOLD INTEREST IN PARCELS 1 AND 2 AS CREATED BY
DEED OF EASEMENT RECORDED JANUARY 31, 1990 AS DOCUMENT 90047309 FOR THE
USE OF 1,100 PUBLIC PARKING SPACES IN THE GARAGE, AS DEFINED THEREIN, WITH
RIGHTS OF INGRESS AND EGRESS AND AN EASEMENT FOR THE PURPOSE OF CONSTRUCTION OF
SUCH REPAIRS OR RESTORATIONS FOR A PERIOD REQUIRED TO COMPLETE SUCH REPAIRS OR
RESTORATION ON, OVER AND ACROSS THE FOLLOWING DESCRIBED LEGAL DESCRIPTION:


 


LOTS 5, 6, 7 AND 8 (EXCEPT
FROM SAID LOTS THAT PART FALLING IN ALLEY) IN BLOCK 49 IN SCHOOL SECTION ADDITION
TO CHICAGO IN SECTION 16, TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL
MERIDIAN, AS AMENDED BY FIRST AMENDMENT TO DEED OF EASEMENT RECORDED OCTOBER 9,
1990 AS DOCUMENT 90491486.


 


BEGINNING AT THE NORTHWEST
CORNER OF SAID PARCEL AND RUNNING THENCE EASTERLY ALONG THE NORTH LINE OF SAID
PARCEL A DISTANCE OF 168 FEET; THENCE SOUTHWARDLY TO A POINT ON THE SOUTH LINE
OF SAID PARCEL 168 FEET FROM THE SOUTHWEST CORNER THEREOF; THENCE WESTERLY A
DISTANCE OF 168 FEET ALONG SAID SOUTH LINE OF SAID PARCEL TO THE SOUTHWEST
CORNER THEREOF; THENCE NORTHERLY ALONG THE WEST LINE OF SAID PARCEL TO THE
POINT OF BEGINNING OF


 


127

















 


SAID HORIZONTAL PLANE, A
DISTANCE OF 397.64 FEET, MORE OR LESS, ALSO B) A HORIZONTAL PLANE 22.5 FEET
ABOVE CHICAGO CITY DATUM OVER THE REMAINDER OF SAID PARCEL WHICH IS NOT
VERTICALLY BELOW THE HORIZONTAL PLANE DESCRIBED IN CLAUSE (A) ABOVE.


 


PARCEL 2:


 


ALL LAND AND SPACES BELOW
THE HORIZONTAL PLANES DESCRIBED IN PARCEL 1 ABOVE WHICH ARE OCCUPIED BY THE
COLUMNS, CAISSONS, FOUNDATIONS, GUSSETS AND ALL OTHER SUPPORTING STRUCTURES FOR
THE BUILDING AND IMPROVEMENTS CONSTRUCTED IN PARCEL 1, AND BY ALL OTHER
IMPROVEMENTS, PLENUMS, MECHANICAL AND ELECTRICAL EQUIPMENT, PIPES, WIRES,
CONDUITS, UTILITIES AND OTHER STRUCTURES LOCATED BELOW SAID HORIZONTAL PLANES
IN CONNECTION WITH SAID BUILDING AND IMPROVEMENTS, INCLUDING, BUT NOT LIMITED
TO, THE SPACE OCCUPIED BY THE IMPROVEMENTS AND STRUCTURES SHOWN ON THE PLAT OF
SURVEY PREPARED AND CERTIFIED BY CHICAGO GUARANTEE SURVEY COMPANY DATED JANUARY 3,
1968 (CONSISTING OF FIVE SHEETS IDENTIFIED AS ORDER NOS. 6501003 AA SHEETS 1-5)
WHICH WAS RECORDED AS PART OF DOCUMENT NO. 20370303.


 


PARCEL 3:


 


AN EASEMENT APPURTENANT TO
PARCELS 1 AND 2 OVER AND ACROSS THE WEST 20 FEET OF LOT 3 IN SAID RAILROAD
COMPANIES’ RESUBDIVISION TO CONSTRUCT, USE, MAINTAIN, REPAIR, REPLACE OR RENEW
FROM TIME TO TIME SUCH COLUMNS, GUSSETS, TRUSSES, HORIZONTAL STRUCTURAL
MEMBERS, CAISSONS, FOUNDATIONS AND OTHER SUPPORTS AS MAY BE REASONABLY
NECESSARY OR APPROPRIATE TO MAINTAIN AND SUPPORT THE PLAZA AND OTHER IMPROVEMENTS
CONTEMPLATED BY THE LEASE, INCLUDING, WITHOUT LIMITATION, THE COLUMNS
(DESIGNATED “DD”) AND THE CAISSONS, FOUNDATIONS AND RELATED STRUCTURES SHOWN ON
THE PLAT OF SURVEY REFERRED TO IN PARCEL 2 ABOVE.


 


PARCEL 4:


 


A NONEXCLUSIVE APPURTENANT
BASEMENT IN FAVOR OF THE LEASEHOLD INTEREST IN PARCELS 1 AND 2 AS CREATED BY
DEED OF EASEMENT RECORDED JANUARY 31, 1990 AS DOCUMENT 90047309 FOR THE
USE OF 1,100 PUBLIC PARKING SPACES IN THE GARAGE, AS DEFINED THEREIN, WITH
RIGHTS OF INGRESS AND EGRESS AND AN EASEMENT FOR THE PURPOSE OF CONSTRUCTION OF
SUCH REPAIRS OR RESTORATION FOR A PERIOD REQUIRED TO COMPLETE SUCH REPAIRS OR
RESTORATION ON, OVER AND ACROSS THE FOLLOWING DESCRIBED LEGAL DESCRIPTION:


 


128

















 


LOTS 5, 6, 7 AND 8 (EXCEPT
FROM SAID LOTS THAT PART FALLING IN ALLEY) IN BLOCK 49 IN SCHOOL SECTION ADDITION
TO CHICAGO IN SECTION 16, TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD
PRINCIPAL MERIDIAN, AS AMENDED BY FIRST AMENDMENT TO DEED OF EASEMENT RECORDED OCTOBER 9,
1990 AS DOCUMENT 90491486.


 


LEGAL DESCRIPTION OF
LEASEHOLD ESTATE ‘B’


 


TWO CERTAIN PARCELS OF LAND
IN COOK COUNTY, ILLINOIS, BOUNDED AND DESCRIBED AS FOLLOWS:


 


PARCEL 1:


 


A PART OF LOT 3 IN
RAILROAD COMPANIES’ RESUBDIVISION OF BLOCKS 62 TO 76, BOTH INCLUSIVE, 78, PARTS
OF LOTS 61 AND 77 AND CERTAIN VACATED STREETS AND ALLEYS IN SCHOOL SECTION ADDITION
TO CHICAGO, A SUBDIVISION OF SECTION 16, TOWNSHIP 39 NORTH, RANGE 14 EAST
OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT OF SAID RESUBDIVISION RECORDED
IN THE RECORDER’S OFFICE OF COOK COUNTY, ILLINOIS ON MARCH 29, 1924, IN
BOOK 188 OF PLATS AT PAGE 16 AS OF DOCUMENT NO. 8339751; SAID PART OF
LOTS 3 AND 4 BEING BOUNDED AND DESCRIBED AS FOLLOWS:  BEGINNING AT THE SOUTHEAST OF CORNER OF SAID
LOT 4 AND RUNNING THENCE WEST ALONG THE SOUTH LINE OF SAID LOT 4 AND OF SAID
LOT 3, A DISTANCE OF 242.50 FEET TO THE POINT OF INTERSECTION OF SAID
SOUTH LINE OF LOT 3 WITH THE EAST LINE OF THE WEST 20 FEET OF SAID LOT 3;
THENCE NORTH ALONG SAID EAST LINE OF THE WEST 20 FEET OF LOT 3, A DISTANCE OF
397.635 FEET TO AN INTERSECTION WITH THE SOUTH LINE OF THE NORTH 33.0 FEET
OF SAID LOT 3; THENCE EAST ALONG THE SOUTH LINE OF THE NORTH 33 FEET OF SAID
LOTS 3 AND 4, A DISTANCE OF 216.50 FEET TO AN INTERSECTION WITH THE EASTERLY
LINE OF SAID LOT 4; AND THENCE SOUTHWARDLY ALONG THE EASTERLY LINE OF SAID LOT
4, A DISTANCE OF 398.60 FEET TO THE POINT OF BEGINNING,


 


EXCEPTING, HOWEVER, FROM THE
PARCEL OF LAND ABOVE-DESCRIBED THE RESPECTIVE PORTIONS THEREOF LYING VERTICALLY
BELOW THE FOLLOWING HORIZONTAL PLANES:


 


(A) A HORIZONTAL PLANE
20.5 FEET ABOVE CHICAGO CITY DATUM, THE PERIMETER OF WHICH IS DESCRIBED AS
FOLLOWS:  BEGINNING AT THE NORTHWEST
CORNER OF SAID PARCEL AND RUNNING THENCE EASTERLY ALONG THE NORTH LINE OF SAID
PARCEL, A DISTANCE OF 168 FEET; THENCE SOUTHWARDLY TO A POINT ON THE SOUTH LINE
OF SAID PARCEL 168 FEET FROM THE SOUTHWEST CORNER THEREOF; THENCE WESTERLY A
DISTANCE OF 168 FEET ALONG SAID SOUTH LINE OF SAID PARCEL TO THE SOUTHWEST
CORNER THEREOF THENCE NORTHERLY ALONG THE WEST


 


129

















 


LINE OF SAID PARCEL TO THE
POINT OF BEGINNING OF SAID HORIZONTAL PLANE, A DISTANCE OF 397.64 FEET, MORE OR
LESS; ALSO


 


(B)                                A HORIZONTAL
PLANE 22.5 FEET ABOVE CHICAGO CITY DATUM OVER THE REMAINDER OF SAID PARCEL
WHICH IS NOT VERTICALLY BELOW THE HORIZONTAL PLANE DESCRIBED IN CLAUSE (A) ABOVE.


 


PARCEL I:


 


THAT PART OF LOT 4
(EXCEPT THE NORTH 33 FEET THEREOF) LYING ABOVE A HORIZONTAL PLANE AT AN
ELEVATION OF 22.50 FEET, CHICAGO CITY DATUM AND AS TO THE NORTH 33 FEET OF LOT
4 LYING ABOVE A HORIZONTAL PLANE OF 25.70 FEET ABOVE CHICAGO CITY DATUM IN
RAILROAD COMPANIES’ RESUBDIVISION OF BLOCKS 62 TO 76, BOTH INCLUSIVE, 78, PARTS
OF LOTS 61 AND 77 AND CERTAIN VACATED STREETS AND ALLEYS IN SCHOOL SECTION ADDITION
TO CHICAGO, A SUBDIVISION OF SECTION 16, TOWNSHIP 39 NORTH, RANGE 14 EAST
OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT OF SAID RESUBDIVISION
RECORDED IN THE RECORDER’S OFFICE OF COOK COUNTY, ILLINOIS ON MARCH 29,
1924, IN BOOK 188 OF PLATS AT PAGE 16 AS DOCUMENT NO. 8339751, IN
COOK COUNTY, ILLINOIS, (EXCEPTING THE BUILDINGS AND IMPROVEMENTS LOCATED
THEREON).


 


PARCEL 2:


 


EASEMENTS APPURTENANT TO
PARCEL 1 AS CREATED BY EASEMENT AND OPERATING AGREEMENT MADE BY CHICAGO UNION
STATION COMPANY AND TRIZECHAHN 10/120 FEE LLC, DATED NOVEMBER 8, 2001 AND
RECORDED NOVEMBER 16, 2001 AS DOCUMENT 0011080264 AS AMENDED BY AMENDMENT
TO EASEMENT AND OPERATING AGREEMENT RECORDED JUNE 6, 2002 AS DOCUMENT
0020634435, FOR, AMONG OTHER THINGS, IN, OVER AND ACROSS ALL LAND AND SPACES
BELOW THE HORIZONTAL PLANES DESCRIBED IN PARCEL 1 ABOVE, AND IN, OVER AND
ACROSS ALL LAND AND SPACES FALLING IN THAT PART OF LOT 4 IN RAILROAD
COMPANIES’ RESUBDIVISION, AFORESAID, DESCRIBED ABOVE IN PARCEL 1, BELOW THE
HORIZONTAL PLANES DESCRIBED ABOVE IN PARCEL 1, INCLUDING EASEMENTS FOR THE AREA
OCCUPIED BY THE COLUMNS, CAISSONS, FOUNDATIONS, GUSSETS AND ALL OTHER
SUPPORTING STRUCTURES FOR THE BUILDING AND IMPROVEMENTS CONSTRUCTED IN PARCEL 1
AND IN THAT PART OF OT 4, AND BY ALL OTHER IMPROVEMENTS, PLENUMS,
MECHANICAL AND ELECTRICAL EQUIPMENT, PIPES, WIRES, CONDUITS, UTILITIES AND
OTHER STRUCTURES LOCATED BELOW SAID HORIZONTAL PLANES IN CONNECTION WITH SAID
BUILDING AND IMPROVEMENTS, INCLUDING BUT NOT LIMITED TO, THE SPACE OCCUPIED BY
THE IMPROVEMENTS AND STRUCTURES SHOWN ON THE PLAT OF SURVEY PREPARED AND
CERTIFIED BY CHICAGO GUARANTEE SURVEY COMPANY DATED JANUARY 3, 1968
(CONSISTING OF FIVE SHEETS


 


130

















 


IDENTIFIED AS ORDER NUMBER
6501003AA SHEETS 1-5) WHICH WAS RECORDED AS PART OF DOCUMENT NO. 20370303.


 


131

















 


EXHIBIT A-3


Legal Description of One Financial Place


 


PARCEL 1:


 


THAT PART OF
PETER TEMPLE’S SUBDIVISION OF BLOCK 99, AND THAT PART OF THE SUBDIVISION
OF BLOCK 114 (TAKEN AS A TRACT, INCLUDING VACATED ALLEYS) ALL IN THE SCHOOL SECTION ADDITION
TO CHICAGO, IN THE NORTHEAST 1/4 OF SECTION 16, TOWNSHIP 39 NORTH, RANGE
14 EAST OF THE THIRD PRINCIPAL MERIDIAN DESCRIBED AS FOLLOWS:


 


COMMENCING AT
THE NORTHEAST CORNER OF LOT 3 IN THE AFORESAID SUBDIVISION OF BLOCK 114; THENCE
SOUTH 0 DEGREES 00 MINUTES 23 SECONDS EAST (ALONG THE EAST LINE OF LOTS 3,
4,9,10 AND 15 IN SAID SUBDIVISION OF BLOCK 114) A DISTANCE OF 232.32 FEET TO
THE POINT OF BEGINNING OF THE TRACT HEREIN DESCRIBED; THENCE SOUTH 0 DEGREES 00
MINUTES 23 SECONDS EAST (ALONG THE EAST LINE OF LOTS 15, 16, 21 AND 22 IN SAID
SUBDIVISION OF BLOCK 114) A DISTANCE OF 133.22 FEET TO A POINT ON THE EAST LINE
OF LOT 22 WHICH IS 31.98 FEET NORTHERLY OF THE SOUTHEAST CORNER OF SAID LOT;
THENCE SOUTH 89 DEGREES 55 MINUTES 58 SECONDS WEST, A DISTANCE OF 215.15 FEET
TO A POINT ON THE WEST LINE OF LOT 24 IN PETER TEMPLE’S SUBDIVISION OF BLOCK 99
WHICH IS 31.18 FEET NORTHERLY OF THE SOUTHEAST CORNER OF SAID LOT; THENCE NORTH
0 DEGREES 01 MINUTES 21 SECONDS WEST (ALONG THE WEST LINE OF LOTS 24,19,18 AND
13 IN THE AFORESAID PETER TEMPLE’S SUBDIVISION OF BLOCK 99) A DISTANCE OF
134.17 FEET TO A POINT ON THE WEST LINE OF LOT 13 WHICH IS 232.32 FEET
SOUTHERLY OF THE NORTHWEST CORNER OF LOT 1 IN THE AFORESAID PETER TEMPLE’S
SUBDIVISION; THENCE SOUTH 89 DEGREES 48 MINUTES 43 SECONDS EAST (ALONG A LINE
DRAWN PARALLEL WITH THE NORTH LINE OF LOT 3 IN SAID SUBDIVISION OF BLOCK 114
AND ALSO PARALLEL WITH THE NORTH LINE OF LOT 1 IN THE AFORESAID PETER TEMPLE’S
SUBDIVISION OF BLOCK 99) A DISTANCE OF 215.19 FEET TO THE HEREINABOVE DESCRIBED
POINT OF BEGINNING, IN COOK COUNTY, ILLINOIS.


 


PARCEL 2:


 


THAT PART OF
PETER TEMPLE’S SUBDIVISION OF BLOCK 99, THAT PART OF THE SUBDIVISION OF
BLOCK 114, AND THAT PART OF GEORGE MERRILL’S SUBDIVISION OF BLOCK 100, AND
THAT PART OF T. G. WRIGHT’S SUBDIVISION OF BLOCK 113 (TAKEN AS A TRACT,
INCLUDING VACATED ALLEYS) ALL IN THE SCHOOL SECTION ADDITION TO CHICAGO,
IN THE NORTHEAST 1/4 OF SECTION 16, TOWNSHIP 39 NORTH, RANGE 14 EAST OF
THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS:


 


132

















 


BEGINNING AT A
POINT ON THE EAST LINE OF LOT 22 IN THE SUBDIVISION OF BLOCK 114 WHICH IS 31.98
FEET NORTHERLY OF THE SOUTHEAST CORNER THEREOF; THENCE SOUTH 0 DEGREES 00
MINUTES 23 SECONDS EAST, 31.98 FEET TO THE SOUTHEAST CORNER OF SAID LOT 22;
THENCE SOUTH 89 DEGREES 51 MINUTES 16 SECONDS EAST, ALONG THE NORTH LINE OF LOT
1 IN T. G. WRIGHTS SUBDIVISION OF BLOCK 113, A DISTANCE OF 0.14 FEET TO THE
NORTHEAST CORNER OF SAID LOT; THENCE SOUTH 0 DEGREES 05 MINUTES 33 SECONDS
WEST, ALONG THE EAST LINE OF LOTS 1 AND 6 IN THE AFORESAID T. G. WRIGHT’S
SUBDIVISION OF BLOCK 113, A DISTANCE OF 94.83 FEET; THENCE SOUTH 89 DEGREES 55
MINUTES 40 SECONDS WEST, A DISTANCE OF 210.30 FEET TO A POINT ON THE WEST LINE
OF LOT 23 IN GEORGE MERRILL’S SUBDIVISION OF BLOCK 100 WHICH IS 95.63 SOUTHERLY
OF THE NORTHWEST CORNER OF LOT 24 IN SAID SUBDIVISION; THENCE NORTH 0 DEGREES
02 MINUTES 20 SECONDS WEST, ALONG THE WEST LINES OF THE AFORESAID LOTS 23 AND
24, A DISTANCE OF 95.63 FEET TO THE NORTHWEST CORNER OF SAID LOT 24 IN GEORGE
MERRILL’S SUBDIVISION OF BLOCK 100; THENCE NORTH 89 DEGREES 51 MINUTES 16
SECONDS WEST, ALONG THE SOUTH LINE OF LOT 24 IN PETER TEMPLE’S SUBDIVISION OF
BLOCK 99, A DISTANCE OF 4.77 FEET TO THE SOUTHWEST CORNER OF SAID LOT; THENCE
NORTH 0 DEGREES 01 MINUTES 21 SECONDS WEST, ALONG THE WEST LINE OF THE
AFORESAID LOT 24, A DISTANCE OF 31.18 FEET; THENCE NORTH 89 DEGREES 55 MINUTES
58 SECONDS EAST, A DISTANCE OF 215.15 FEET TO THE HEREINABOVE DESCRIBED POINT
OF BEGINNING, IN COOK COUNTY, ILLINOIS


 


PARCEL 3 A:


 


EASEMENT FOR
THE BENEFIT OF PARCEL 1, AFORESAID, AS SHOWN ON THE SURVEY OF LAND PREPARED BY
JOSEPH A. LIMA, REGISTERED PROFESSIONAL SURVEYOR FOR THE STATE OF ILLINOIS,
LICENSE NUMBER 3080, OF NATIONAL SURVEY SERVICE, INC. (SURVEYOR), SURVEY
NUMBER N-123180, LAST UPDATED ON MARCH 16, 2000, AS SET FORTH IN PARAGRAPH
1 B OF THE GRANT OF EASEMENTS EXECUTED BY THE PENN CENTRAL CORPORATION, ET AL,
DATED APRIL 3,1981 AND RECORDED AS DOCUMENT NO. 26017406, AND AS
AMENDED BY DOCUMENT 26382162 FOR THE PURPOSE OF PEDESTRIAN INGRESS AND EGRESS
ON, OVER AND THROUGH AN ENCLOSED CORRIDOR, AT LEAST 20 FEET WIDE, ALONG THE
GEOGRAPHIC CENTER (PLUS OR MINUS 5 FEET) ON A STRAIGHT LINE FROM THE NORTH
BOUNDARY LINE TO THE SOUTH BOUNDARY LINE OF THE FOLLOWING DESCRIBED REAL ESTATE
LOCATED NORTH OF AND ADJOINING THE LAND, SAID CORRIDOR TO BE IN THE “CHICAGO
BOARD OF OPTIONS EXCHANGE (CBOE) BUILDING” AND ANY IMPROVEMENTS CONSTRUCTED ON
SAID ADJOINING LAND FROM TIME TO TIME:


 


133

















 


THAT PART OF
PETER TEMPLE’S SUBDIVISION OF BLOCK 99, AND THAT PART OF THE SUBDIVISION
OF BLOCK 114 (TAKEN AS A TRACT, INCLUDING VACATED ALLEYS) ALL IN THE SCHOOL SECTION ADDITION
TO CHICAGO, IN THE NORTHEAST 1/4 OF SECTION 16, TOWNSHIP 39 NORTH, RANGE
14 EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS:


 


BEGINNING AT
THE NORTHEAST CORNER OF LOT 3 IN THE AFORESAID SUBDIVISION OF BLOCK 114; THENCE
SOUTH 0 DEGREES 00 MINUTES 23 SECONDS EAST (ALONG THE EAST LINE OF LOTS 3, 4,
9, 10 AND 15 IN SAID SUBDIVISION OF BLOCK 114) A DISTANCE OF 232.32 FEET;
THENCE NORTH 89 DEGREES 48 MINUTES 43 SECONDS WEST (ALONG A LINE DRAWN PARALLEL
WITH THE NORTH LINE OF LOT 3 IN SAID SUBDIVISION OF BLOCK 114 AND ALSO PARALLEL
WITH THE NORTH LINE OF LOT 1 IN THE AFORESAID PETER TEMPLE’S SUBDIVISION OF
BLOCK 99) A DISTANCE OF 215.19 FEET TO THE WEST LINE OF LOT 13 IN SAID PETER
TEMPLE’S SUBDIVISION; THENCE NORTH 0 DEGREES 01 MINUTES 21 SECONDS WEST (ALONG
THE WEST LINE OF LOTS 13,12, 7, 6 AND 1 IN THE AFORESAID PETER TEMPLE’S
SUBDIVISION OF BLOCK 99) A DISTANCE OF 232.32 FEET TO THE NORTHWEST CORNER OF
LOT 1; THENCE SOUTH 89 DEGREES 48 MINUTES 43 SECONDS EAST, 215.25 FEET TO THE
HEREINABOVE DESIGNATED POINT OF BEGINNING, IN COOK COUNTY, ILLINOIS.


 


PARCEL 3B:


 


EASEMENT FOR
THE BENEFIT OF PARCEL 1, AFORESAID, AS SHOWN ON THE SURVEY OF LAND PREPARED BY
SURVEYOR, SURVEY NUMBER N-123180, LAST UPDATED ON MARCH 16,2000 AS SET
FORTH IN THE RECIPROCAL UNDERGROUND CAISSON EASEMENT AGREEMENT RECORDED JULY 15,
1982 AS DOCUMENT 26290689 BETWEEN AMERICAN NATIONAL BANK AND TRUST COMPANY OF
CHICAGO AS TRUSTEE UNDER TRUST AGREEMENT DATED FEBRUARY 26, 1982 KNOWN AS
TRUST NUMBER 54793 AND EXCHANGE NATIONAL BANK OF CHICAGO AS TRUSTEE UNDER TRUST
AGREEMENT DATED APRIL 20, 1982 KNOWN AS TRUST NUMBER 39787 GRANTING THE
RIGHT, AUTHORITY AND EASEMENT TO CONSTRUCT AND MAINTAIN, IN CONNECTION WITH THE
CONSTRUCTION OF THE BUILDING LOCATED ON PARCEL 1, UNDERGROUND CAISSONS WHICH
ENCROACH UPON A PORTION OF THE UNDERGROUND WHICH UNDERLIES PARCEL 3, NOT TO
EXTEND NORTH OF A LINE WHICH LIES THREE FEET NORTH OF AND PARALLEL TO THE SOUTH
BOUNDARY OF PARCEL 3 NOR BE CONSTRUCTED ABOVE A HORIZONTAL PLANE WHOSE
UNDERGROUND DEPTH LEVEL IS THE LOWER OF THIRTY FIVE FEET BELOW CHICAGO CITY
DATUM, OR TEN FEET BELOW THE BOTTOM OF ANY PORTION OF THE FOUNDATION OF THE
CBOE BUILDING WHICH LIES ON PARCEL 3 AT OR SOUTH OF A LINE LYING THREE FEET
NORTH OF AND PARALLEL TO THE SOUTH BOUNDARY OF PARCEL 3, FALLING WITHIN THE
FOLLOWING DESCRIBED REAL ESTATE:


 


134

















 


THAT PART OF
PETER TEMPLE’S SUBDIVISION OF BLOCK 99, AND THAT PART OF THE SUBDIVISION
OF BLOCK 114 (TAKEN AS A TRACT, INCLUDING VACATED ALLEYS) ALL IN THE SCHOOL SECTION ADDITION
TO CHICAGO, IN THE NORTHEAST 1/4 OF SECTION 16, TOWNSHIP 39 NORTH, RANGE
14 EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS:


 


BEGINNING AT
THE NORTHEAST CORNER OF LOT 3 IN THE AFORESAID SUBDIVISION OF BLOCK 114; THENCE
SOUTH 0 DEGREES 00 MINUTES 23 SECONDS EAST (ALONG THE EAST LINE OF LOTS 3,
4,9,10 AND 15 IN SAID SUBDIVISION OF BLOCK 114) A DISTANCE OF 232.32 FEET;
THENCE NORTH 89 DEGREES 48 MINUTES 43 SECONDS WEST (ALONG A LINE DRAWN PARALLEL
WITH THE NORTH LINE OF LOT 3 IN SAID SUBDIVISION OF BLOCK 114 AND ALSO PARALLEL
WITH THE NORTH LINE OF LOT 1 IN THE AFORESAID PETER TEMPLE’S SUBDIVISION OF
BLOCK 99) A DISTANCE OF 215.19 FEET TO THE WEST LINE OF LOT 13 IN SAID PETER
TEMPLE’S SUBDIVISION; THENCE NORTH 0 DEGREES 01 MINUTES 21 SECONDS WEST (ALONG
THE WEST LINE OF LOTS 13,12, 7, 6 AND 1 IN THE AFORESAID PETER TEMPLE’S
SUBDIVISION OF BLOCK 99) A DISTANCE OF 232.32 FEET TO THE NORTHWEST CORNER OF
LOT 1; THENCE SOUTH 89 DEGREES 48 MINUTES 43 SECONDS EAST, 215.25 FEET TO THE
HEREINABOVE DESIGNATED POINT OF BEGINNING, IN COOK COUNTY, ILLINOIS.


 


PARCEL 3C:


 


EXERCISED
OPTIONS FOR EASEMENTS FOR THE BENEFIT OF PARCEL 2, AFORESAID, AS SHOWN ON THE
SURVEY OF LAND PREPARED BY SURVEYOR, SURVEY NUMBER N-123180, LAST UPDATED ON MARCH 16,2000,
AS SET FORTH IN GRANT OF EASEMENTS, OPTIONS FOR EASEMENTS, OPTION TO LEASE AND
DECLARATION OF COVENANTS AND RESTRICTIONS CONTAINED IN INSTRUMENT RECORDED APRIL 1,1981
AS DOCUMENT 25824625 AND FIRST AMENDMENT RECORDED AS DOCUMENT 26363994 MADE BY
AND BETWEEN THE PENN CENTRAL CORPORATION, WILLIAM M. GIBBONS, TRUSTEE OF THE
PROPERTY OF CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY AND THE REGIONAL
TRANSPORTATION AUTHORITY FOR: (A) AN INTERIOR PEDESTRIAN EASEMENT ON, OVER
AND THROUGH A TRIP OF PROPERTY TWENTY FEET WIDE, ALONG THE GEOGRAPHIC CENTER OF
PARCEL 3 (PLUS OR MINUS FIVE FEET OF THE GEOGRAPHIC CENTER THEREOF) ON A
STRAIGHT LINE FROM THE NORTH BOUNDARY OF PARCEL 3 TO THE SOUTHERN BOUNDARY OF
PARCEL 3 AND; (B) A STREET GRADE PEDESTRIAN EXTERIOR EASEMENT ALONG THE
EAST R WEST LINES OF PARCEL 3, FALLING WITHIN THE FOLLOWING DESCRIBED REAL
ESTATE:


 


THAT PART OF
PETER TEMPLE’S SUBDIVISION OF BLOCK 99, AND THAT PART OF THE SUBDIVISION
OF BLOCK 114 (TAKEN AS A TRACT, INCLUDING


 


135

















 


VACATED
ALLEYS) ALL IN THE SCHOOL SECTION ADDITION TO CHICAGO, IN THE NORTHEAST
1/4 OF SECTION 16, TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL
MERIDIAN, DESCRIBED AS FOLLOWS:


 


BEGINNING AT
THE NORTHEAST CORNER OF LOT 3 IN THE AFORESAID SUBDIVISION OF BLOCK 114; THENCE
SOUTH 0 DEGREES 00 MINUTES 23 SECONDS EAST (ALONG THE EAST LINE OF LOTS 3,4,9,
10 AND 15 IN SAID SUBDIVISION OF BLOCK 114) A DISTANCE OF 232.32 FEET; THENCE
NORTH 89 DEGREES 48 MINUTES 43 SECONDS WEST (ALONG A LINE DRAWN PARALLEL WITH
THE NORTH LINE OF LOT 3 IN SAID SUBDIVISION OF BLOCK 114 AND ALSO PARALLEL WITH
THE NORTH LINE OF LOT 1 IN THE AFORESAID PETER TEMPLE’S SUBDIVISION OF BLOCK
99) A DISTANCE OF 215.19 FEET TO THE WEST LINE OF LOT 13 IN SAID PETER TEMPLE’S
SUBDIVISION; THENCE NORTH 0 DEGREES 01 MINUTES 21 SECONDS WEST (ALONG THE WEST
LINE OF LOTS 13, 12, 7, 6 AND 1 IN THE AFORESAID PETER TEMPLE’S SUBDIVISION OF
BLOCK 99) A DISTANCE OF 232.32 FEET TO THE NORTHWEST CORNER OF LOT 1; THENCE
SOUTH 89 DEGREES 48 MINUTES 43 SECONDS EAST, 215.25 FEET TO THE HEREINABOVE
DESIGNATED POINT OF BEGINNING, IN COOK COUNTY, ILLINOIS.


 


PARCEL 4:


 


EASEMENT FOR
THE BENEFIT OF PARCELS 1 AND 2, AFORESAID, AS SHOWN ON THE SURVEY OF LAND
PREPARED BY SURVEYOR, SURVEY NUMBER N-123180, LAST UPDATED ON MARCH 16,
2000 AS SET FORTH IN PARAGRAPH 1(B) (III) OF THE DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS FOR THE ESTABLISHMENT OF EXCHANGE CENTER PLAZA AND
GRANT OF EASEMENT FOR UNDERGROUND PARKING GARAGE EXECUTED BY THE CITY OF
CHICAGO, ET AL, DATED APRIL 11,1983 RECORDED APRIL 14,1983 AS
DOCUMENT 26569966, AS SUPPLEMENTED BY SUPPLEMENT DATED AUGUST 2, 1984
RECORDED AUGUST 7, 1984 AS DOCUMENT 27204188 FOR THE PURPOSE OF THE
CONSTRUCTION, OPERATION AND MAINTENANCE OF AN UNDERGROUND PARKING GARAGE,
ACCESS RAMPS AND UTILITY LINES ON THE FOLLOWING DESCRIBED PARCEL:


 


THAT PART OF
BLOCK 99 IN SCHOOL SECTION ADDITION TO CHICAGO IN THE NORTHEAST 1/4 OF SECTION 16,
TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL MERIDIAN, BEING A TRACT
LYING BELOW PLUS 22.0 FEET, CHICAGO CITY DATUM, SAID TRACT BEING DESCRIBED AS
FOLLOWS: BEGINNING AT THE NORTHWEST CORNER OF LOT 1 IN PETER TEMPLE’S
SUBDIVISION OF THE AFORESAID BLOCK 99; THENCE NORTH 89 DEGREES 48 MINUTES 43
SECONDS WEST, 40.00 FEET TO THE NORTHEAST CORNER OF LOT 1 IN COLE’S SUBDIVISION
OF PART OF SAID BLOCK 99; THENCE CONTINUING NORTH 89 DEGREES 48 MINUTES 43
SECONDS WEST, 85.83 FEET ALONG THE NORTH LINE OF SAID LOT 1 IN COLE’S
SUBDIVISION


 


136

















 


AND ALONG THE
NORTH LINE OF LOTS 1 AND 2 IN THE ASSESSOR’S DIVISION OF PART OF SAID
BLOCK 99 AND ALONG THE NORTH LINE OF MICAJAH GLASCOCK’S SUBDIVISION OF PART OF
SAID BLOCK 99 TO A POINT; THENCE SOUTH 0 DEGREES 02 MINUTES 07 SECONDS EAST,
367.05 FEET TO THE POINT OF INTERSECTION WITH THE WESTERLY EXTENSION OF A
LINE DRAWN FROM A POINT ON THE EAST LINE OF LOT 22, IN THE SUBDIVISION OF BLOCK
114 IN THE AFORESAID SCHOOL SECTION ADDITION TO CHICAGO, SAID POINT BEING
31.98 FEET NORTH OF THE SOUTHEAST CORNER OF SAID LOT 22 TO A POINT ON THE WEST
LINE OF LOT 24, IN THE AFORESAID PETER TEMPLE’S SUBDIVISION, SAID POINT BEING
31.18 FEET NORTH OF THE SOUTHWEST CORNER OF SAID LOT 24; THENCE NORTH 89
DEGREES 55 MINUTES 58 SECONDS EAST ALONG SAID 
ESTERLY EXTENSION, 125.75 FEET TO THE WEST LINE OF SAID LOT 24; THENCE
NORTH 0 DEGREES 01 MINUTES 21 SECONDS WEST, 366.49 FEET ALONG THE WEST LINE OF
LOTS 24,19,18,13,12, 7,6 AND 1 IN SAID PETER TEMPLE’S SUBDIVISION TO THE
HEREINABOVE DESCRIBED POINT OF BEGINNING, IN COOK COUNTY, ILLINOIS.


 


PARCEL 5:


 


LOTS 1, 2 AND
3 IN COLE’S SUBDIVISION OF PART OF BLOCK 99 AND THAT PART OF LOTS 1
AND 2 IN ASSESSOR’S DIVISION OF PART OF BLOCK 99 LYING NORTH OF A STRAIGHT
LINE DRAWN FROM THE NORTHWEST CORNER OF LOT 4 IN COLE’S SUBDIVISION AS
AFORESAID TO A POINT IN THE WEST LINE OF SAID LOT 2 IN SAID ASSESSOR’S DIVISION
WHICH POINT IS 125.53 FEET SOUTH OF THE NORTHWEST CORNER OF SAID LOT 2 ALL IN
BLOCK 99 IN SCHOOL SECTION ADDITION TO CHICAGO IN THE NORTHEAST 1/4 OF SECTION 16,
TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK
COUNTY, ILLINOIS.


 


137

















 


EXHIBIT 1.4


Form of Deposit Escrow
Agreement


 


138

















 


ESCROW
AGREEMENT


 


This Escrow Agreement (this “Agreement”)
is made and entered into this [     ] day of [          ],
2007, by and among BCSP IV U.S. Investments, L.P. (“Seller”), Behringer
Harvard Operating Partnership I LP (“Purchaser”), and LandAmerica
National Commercial Services (“Escrow Agent”).


 


WITNESSETH


 


WHEREAS, Seller and Purchaser entered into
that certain Stock Purchase and Sale Agreement (the “P&S Agreement”)
of even date herewith;


 


WHEREAS, Purchaser has deposited with Escrow
Agent either (i) a letter of credit, in form and substance, and
issued by a financial institution reasonably acceptable to Seller and payable
to Escrow Agent (the “Letter of Credit”), or (ii) immediately
available federal funds, and all interest earned thereon (the “Earnest Money”),
in each case, in the amount of Thirty-Five Million Dollars ($35,000,000.00)
(collectively, the “Deposit”); and


 


WHEREAS, Seller and Purchaser desire to have
Escrow Agent hold the Deposit in escrow as required under the P&S Agreement
pursuant to the terms thereof.


 


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


 


1.                                       Seller and
Purchaser hereby appoint LandAmerica National Commercial Services to act as
Escrow Agent hereunder.


 


2.                                       Purchaser has
deposited the Deposit with Escrow Agent as required by the P&S Agreement.
Escrow Agent agrees to hold and disburse the Deposit as hereinafter provided.


 


3.                                       Escrow Agent
shall invest the Earnest Money in an interest-bearing savings or money market
account or short term U.S. Treasury Bills or similar cash equivalent
securities, as Purchaser may direct.


 


4.                                       Upon written notification
from Seller and Purchaser that the contemplated sale under the P&S
Agreement is to be consummated, Escrow Agent shall apply the Earnest Money
toward the Purchase Price or return the Letter of Credit, as the case may be.


 


139

















 


5.                                       Upon written
notification from Purchaser that Purchaser is terminating the P&S Agreement
in accordance with the P&S Agreement, then Escrow Agent shall deliver the
Deposit or Letter of Credit, as applicable, to Purchaser. Upon written
notification from Seller and Purchaser that the contemplated sale shall not
take place for any other reason, Escrow Agent shall disburse the Deposit in
accordance with written instructions from Seller and Purchaser, which
instructions shall be in accordance with and governed by the P&S Agreement.


 


6.                                       The parties
hereto covenant and agree that Escrow Agent, in performing any of its duties
under this Agreement, shall not be liable for any loss, costs or damage which
it may incur as a result of serving as the escrow agent hereunder, except
for any loss, costs or damage arising out of its willful default or gross
negligence.


 


7.                                       Accordingly,
Escrow Agent shall not incur any liability with respect to (a) any action
taken or omitted to be taken in good faith upon advice of its counsel given
with respect to any questions relating to its duties and responsibilities, or (b) to
any action taken or omitted to be taken in reliance upon any document,
including any written notice of instruction provided for in this Agreement, not
only as to its due execution and the validity and effectiveness of its
provisions, but also to the truth and accuracy of any information contained
therein, which Escrow Agent shall in good faith believe to be genuine, to have
been signed or presented by a proper person or persons and to conform with
the provisions of this Agreement.


 


8.                                       Seller and
Purchaser hereby agree to indemnify and hold harmless Escrow Agent against any
and all losses, claims, damages, liabilities and expenses, including without
limitation, reasonable costs of investigation and attorneys’ fees and
disbursements which may be imposed upon or incurred by Escrow Agent in
connection with its serving as the escrow agent hereunder, except for any loss,
cost or damage arising out of its willful default or gross negligence.


 


9.                                       In the event of
a dispute between any of the parties hereto, including any dispute regarding
the application under the P&S Agreement of the Deposit, Escrow Agent shall
be entitled to tender unto the registry or custody of any court of competent
jurisdiction all money or property in its hands held under the terms of this
Agreement, together with such legal pleadings as it deems appropriate, and
thereupon be discharged.


 


10.                                 Any escrow fee to be
charged by Escrow Agent is to borne one-half (1/2) by Seller and one-half (1/2)
by Purchaser.


 


11.                                 This Agreement may be
executed in counterparts, and all such executed counterparts shall constitute
the same agreement. It shall be necessary to account for only one such counterpart in
proving this Agreement.


 


[Remainder of Page Intentionally
Left Blank]


 


140

















 


IN WITNESS WHEREOF, Seller, Purchaser and
Escrow Agent have executed this Agreement as of the day and year first above
written.


 


	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  BEHRINGER
  HARVARD OPERATING

  
	
   

  	
  PARTNERSHIP
  I LP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Behringer
  Harvard REIT I, Inc., its

  
	
   

  	
   

  	
  General
  Partner

  
	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  BCSP IV U.S.
  INVESTMENTS, L.P.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  BCSP REIT IV, Inc.,
  its

  
	
   

  	
   

  	
  General
  Partner

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  ESCROW AGENT:

  
	
   

  	
   

  
	
   

  	
  LANDAMERICA NATIONAL COMMERCIAL

  SERVICES

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	 

	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
								



 


141

















 


EXHIBIT 4.2.1


Form of
Assignment of Shares


 


142

















 


ASSIGNMENT AND ASSUMPTION
AGREEMENT


 


This Assignment and
Assumption Agreement (this “Assignment”) dated as of                    ,
2007 by and between BCSP IV U.S. Investments, L.P., a Delaware limited
partnership (“Assignor”) and Behringer Harvard Operating Partnership I
LP, a Texas limited partnership (“Assignee”).


 


In consideration of the
mutual promises hereinafter set forth and in the Stock Purchase and Sale
Agreement dated as of [               ],
2007 (the “Purchase Agreement”) and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Assignor and
Assignee, intending to be legally bound hereby, agree as follows:


 


1.                                       Assignor hereby
assigns, transfers and conveys to Assignee all of its right, title and interest
in and to one hundred percent (100%) of the Common Shares of each of (i) BCSP
IV Illinois Properties Business Trust, a Maryland business trust, (ii) 10/120
South Riverside Illinois Business Trust, a Maryland business trust, and (iii) OFP
Illinois Business Trust, a Maryland business trust, and all rights and
interests related thereto (the “Assigned Interests”), effective as of
the date hereof.


 


2.                                       Assignee hereby
accepts the transfer and assignment of the Assigned Interests and, effective as
of the date hereof, assumes and agrees to perform each and every duty,
obligation and liability of Assignor, if any, with respect to the Assigned
Interests, in accordance with the terms and conditions of this Assignment and
the Purchase Agreement


 


3.                                       This Assignment may be
executed in one or two counterparts, each of which shall be an original but all
of which taken together shall constitute one instrument. In addition, any
counterpart signature page may be executed by any party
wheresoever such party is located, and may be delivered by telephone
facsimile transmission, and any such facsimile transmitted signature pages may be
attached to one or more counterparts of this Assignment, and such faxed
signature(s) shall have the same force and effect, and be as binding, as
original signatures executed and delivered in person.


 


4.                                       This Assignment
shall be binding upon and shall inure to the benefit of the respective heirs,
administrators, executors, successors and permitted assigns of Assignor and
Assignee. This Assignment shall not be modified, waived, discharged or
terminated except by an instrument in writing signed by the party against whom
any waiver, modification, discharge or termination is sought.


 


5.                                       This Assignment
shall be governed by the laws of the State of Maryland without giving effect to
the principles of conflicts of law thereof.


 


6.                                       Capitalized
terms not otherwise defined herein shall have the meanings assigned thereto in
the Purchase Agreement.


 


143

















 


IN WITNESS WHEREOF,
the parties hereto have executed this Assignment and Assumption Agreement as of
the date first set forth above.


 


	
   

  	
  ASSIGNOR:

  
	
   

  	
   

  
	
   

  	
  BCSP IV U.S. INVESTMENTS, L.P., a

  Delaware limited partnership

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  BCSP REIT IV, Inc., a Maryland

  corporation, its general partner

  
	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  ASSIGNEE:

  
	
   

  	
   

  
	
   

  	
  BEHRINGER HARVARD OPERATING

  PARTNERSHIP I LP, a Texas limited

  partnership

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Behringer Harvard REIT I, Inc.

  
	
   

  	
   

  	
  a Maryland corporation,

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
										



 


144

















 


EXHIBIT 4.6.1


 


Form of
Opinion of Goodwin Procter LLP


 

















 


EXHIBIT 4.6.5


 


Form of
Tenant Estoppel


 


[Address of Purchaser]


 


 


[Address of Lender]


 


 


RE:                              [Name and Address of
Property]


 


Gentlemen:


 


Reference is made to that certain [Lease Agreement] dated as of                             ,
         between                                         ,
a                  ,
as landlord (“Landlord”), and the undersigned, as tenant (“Tenant”),
demising premises at the captioned address more particularly described in the
Lease (the “Premises”). The lease, together with all amendments thereto
included in Schedule 1 attached hereto, is herein referred to as
the “Lease”. Tenant hereby represents to the Benefited Parties (as
herein defined) that the following statements are true and correct as of the
date hereof:


 


1.                                       A true, correct
and complete copy of the Lease (including all amendments) is attached hereto as
Schedule 1. The undersigned is the Tenant under the Lease for space
at the Premises covering                    
rentable square feet.


 


2.                                       The Lease is in
full force and effect and has not been amended, modified, supplemented or
superseded except as indicated in Schedule 1. There are no understandings,
contracts, agreement or commitments of any kind whatsoever with respect to the
Premises, except as expressly provided in the Lease.


 


3.                                       The term of the
Lease commenced on                       ,
and expires on                   ,
subject to any rights of Tenant to extend the term as provided therein. The
base rent presently being charged is $              .
All rentals, charges, additional rent and other obligations on the part of
the undersigned have been paid to and including                   ,
200   . No rental, other than for the current month, has been
paid in advance. Except as described in Paragraph 5 below, the undersigned has
accepted possession and now occupies the Premises and is currently open for business.
In addition to the fixed minimum Base Rent, the Tenant pays its pro-rata share
of real estate taxes and operating expenses in excess of a base stop of                    .


 


4.                                       Tenant has paid
to Landlord a security deposit in the amount of $                       .
Tenant has no claim against Landlord for any other security, rental, cleaning
access card, key or other deposits or any prepaid rentals.


 

















 


5.                                       Landlord is not
in any respect in default in the performance of the terms and provisions of the
Lease, nor does any state of facts or condition exist which, with the giving of
notice or the passage of time, or both, would result in such a default. All
conditions under the Lease to be performed by Landlord have been satisfied.
Without limiting the generality of the foregoing, all improvements to be
constructed in the Premises by Landlord have been completed to the satisfaction
of Tenant and accepted by Tenant and any tenant construction allowances have
been paid in full, and all duties of an inducement nature required of Landlord
in the Lease have been fulfilled to Tenant’s satisfaction except as follows:
                         .
Tenant has no claim against Landlord by reason of any restriction, encumbrance
or defect in title of the Premises of which Tenant has actual knowledge.


 


6.                                       There currently
is no defense, offset, lien, claim or counterclaim by or in favor of Tenant
against Landlord under the Lease or against the obligations of Tenant under the
Lease (including, without limitation, any rentals or other charges due or to
become due under the Lease) and Tenant is not contesting any such obligations,
rentals or charges. To Tenant’s knowledge, all leasing commissions due in
respect of the current term of the Lease have been paid.


 


 7.                                    Tenant
has no renewal, extension or expansion option, no right of first offer or right
of first refusal and no other similar right to renew or extend the term of the
Lease or expand the property demised thereunder except as may be expressly
set forth in the Lease. Tenant has no right to lease or occupy any parking
spaces within the Property except as set forth in the Lease. Tenant is entitled
to no free rent nor any credit, offsets or deductions in rent, nor other
leasing concessions other than those specified in the Lease.


 


8.                                       Tenant is not in
any respect in default in the performance of the terms and provisions of the
Lease nor does any state of facts or condition exist which, with the giving of
notice or the passage of time, or both, would result in such a default. Without
limiting the generality of the foregoing, Tenant is current in its rental
obligation under the Lease.


 


9.                                       The undersigned
has not received notice of a prior transfer, assignment, hypothecation or
pledge by Landlord of any of Landlord’s interest in the Lease other than to the
holder of any first mortgage on the captioned property.


 


10.                                 There are no liens
recorded against the Premises with respect to work performed by or on behalf of
Tenant or materials supplied to the demised property.


 


11.                                 Tenant has not
assigned the Lease nor sublet all or any part of the Premises, except as
shown on Schedule 1 attached hereto and made a part hereof for all
purposes.


 


The above certifications are
made to the Benefited Parties knowing that the Benefited Parties will rely
thereon in making an investment in the Premises. For purposes


 

















 


hereof, the term “Benefited
Parties” means the addressees of this letter and all of the following: (a) Harvard
Property Trust, LLC, a Delaware limited liability company and its successors,
assigns, and designees (including, without limitation, any tenant in common
purchasers); and (b) any lender to which any party described in the
foregoing clause (a) grants a deed of trust, mortgage or other lien upon
the Premises.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
   

  	
  ,

  
	
   

  	
  a

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title: