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Exhibit 10.17  


 
 

FIFTH AMENDMENT TO REAL ESTATE CONTRACT    
    


        This FIFTH AMENDMENT TO REAL ESTATE CONTRACT (hereinafter sometimes referred to as the "Fifth Amendment") is hereby made and entered into as of this 25th day of
February, 2005, by and between PANATTONI DEVELOPMENT COMPANY, LLC, a California limited liability company, and the sellers listed on the attached Exhibit A (collectively, "Seller"), and
DIVIDEND CAPITAL OPERATING PARTNERSHIP LP, a Delaware limited partnership ("Purchaser"). 


RECITALS  


        A.    WHEREAS,
Seller and Purchaser entered into that certain Real Estate Contract dated December 23, 2004, as amended on January 7, 2005, January 21,
2005, February 15, 2005 and February 22, 2005 (the "Contract"), regarding those certain real properties more particularly described in the Contract, which are located in the City of
Memphis, County of Shelby, State of Tennessee; and 


        B.    WHEREAS,
Seller and Purchaser desire to amend the terms of the Contract as hereinafter set forth. 



        NOW,
THEREFORE, for and in consideration of the sum of the mutual covenants and agreements set forth in this Fifth Amendment, the premises, and other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged by each of the parties hereto, notwithstanding anything to the contrary contained in the Contract, the parties hereto agree as
follows: 


	1.
	All
capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Contract.



	2.
	The
Closing Date for the Shelby 5 property as set forth in Paragraph 1.6 is hereby amended to be March 2, 2005.



	3.
	Except
as herein specifically modified and amended by this Fifth Amendment, all of the terms, covenants and conditions of the Contract are hereby ratified and confirmed and shall
remain in full force and effect. This Fifth Amendment may be executed in multiple counterparts, each of which shall constitute an original but when taken together shall constitute one and the same
instrument. Facsimile signatures shall constitute originals for all purposes under this Fifth Amendment.



	4.
	Except
insofar as reference to the contrary is made in any such instrument, all references to the "Contract" in any future correspondence or notice shall be deemed to refer to the
Contract as modified by this Fifth Amendment.



	5.
	This
Fifth Amendment shall be governed by and construed in accordance with the laws of the State of Tennessee, without regard to principles of conflicts of laws. 

 





SIGNATURE PAGE  


        IN WITNESS WHEREOF, the parties have caused this Fifth Amendment to be executed as of the day and year first above written. 



	

 	
 	

SELLER:
	

 	
 	

PANATTONI DEVELOPMENT COMPANY, LLC, a California limited liability company, for itself and as agent for the sellers listed on the attached Exhibit A
	

 	
 	

By:	
 	

 Carl D. Panattoni, Trustee of the Panattoni Living Trust dated April 18, 1998, Sole Member
	

 	
 	

PURCHASER:
	

 	
 	

DIVIDEND CAPITAL OPERATING PARTNERSHIP LP, a Delaware limited partnership
	

 	
 	

By:	
 	

Dividend Capital Trust Inc., a Maryland corporation, its general partner
	

 	
 	

 	
 	

By:	
 	


	 	 	 	 	Name:	 	 
	 	 	 	 	Title:	 	 







 


Exhibit A  



	Property
 
	 	 

	Technicolor II

5140 Memphis Oaks Dr.	 	PANATTONI HOLDINGS, INC., a California corporation, MALONE ROAD 850 DM, LLC, MALONE ROAD 850 CP, LLC, and MALONE ROAD 850 JR, LLC
	

Shelby 4

4800 Hickory Hill	
 	

MERCY CAPITAL CENTER JOINT VENTURE, a California general partnership ("Mercy Capital"), MITCHELL INVESTMENTS, LLC, a Tennessee limited liability company ("Mitchell"),
	

Shelby 5	
 	

VAN VALKENBUGH-SHELBY 5, LLC, a Tennessee limited liability company, J & C INVESTMENTS, L.L.C., a California limited liability company ("VV-Shelby 5") and CHARLES KESSINGER
	

Shelby 19

5166 Pleasant Hill	
 	

RIEGER-SHELBY 19, LLC, a Tennessee limited liability company "Rieger-Shelby 19"), PANATTONI-SHELBY 19, LLC, a California limited liability company ("P-Shelby 19"), VANVALKENBURGH-SHELBY 19, LLC, a Tennessee limited liability company ("VV-Shelby 19"),
JAMES F. JORDAN and wife, SUSAN R. JORDAN (collectively "Jordan")
	

Eastpark I

5300 Hickory Hill	
 	

PVV-5300 Hickory Hill, LLC, a Tennessee limited liability company ("PVV"), CARL D. PANATTONI ("CDP"), PANATTONI-5300 HICKORY HILL, LLC, a Tennessee limited liability company ("P-5300"), VAN VALKENBURGH-5300 HICKORY HILL, LLC, a Tennessee limited
liability company ("VV-5300"), PML-5300 HICKORY HILL, LLC, a Tennessee limited liability company ("PML-5300"), RIEGER-5300 HICKORY HILL, LLC, a Tennessee limited liability company ("R-5300"), PANATTONI HOLDINGS, INC., a California
corporation
	

Eastpark II

5405 Hickory Hill	
 	

PANATTONI-5405 HICKORY HILL, LLC, a Tennessee limited liability company, ("P-5405"), VAN VALKENBURGH-5405 HICKORY HILL, LLC, a Tennessee limited liability company ("VV-5405"), RIEGER-5405 HICKORY HILL, LLC, a Tennessee limited liability company
("R-5405"), MITCHELL-5405 HICKORY HILL, LLC, a Tennessee limited liability company ("M-5405")
	

Shelby 18

5155 Citation Drive	
 	

RIEGER-CITATION DRIVE, LLC, a Tennessee limited liability company ("Citation"), VAN VALKENBURGH-CITATION DRIVE, LLC, a Tennessee limited liability company ("VV-Citation"), PANATTONI-CITATION DRIVE, LLC, a Tennessee limited liability company
("P-Citation") and JAMES F. JORDAN and wife, SUSAN R. JORDAN (collectively "Jordan") (together "Seller")














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FIFTH AMENDMENT TO REAL ESTATE CONTRACT