exv10w29



 






Exhibit 10.29




AGREEMENT OF PURCHASE AND SALE AND




ESCROW INSTRUCTIONS




FOR




4612 NAVISTAR DRIVE, FREDERICK COUNTY, MD

AND

400 EAST GUDE DRIVE, AND 7300, 7301 AND 7362 CALHOUN PLACE,

ROCKVILLE, MONTGOMERY COUNTY, MD




Date: October 22, 2004




 









 








AGREEMENT OF PURCHASE AND SALE OF

MEMBERSHIP INTERESTS AND ESCROW INSTRUCTIONS




4612 Navistar Drive, Frederick County, MD

and

400 East Gude Drive, and 7300, 7301 and 7362 Calhoun Place,

Rockville, Montgomery County, MD




     THIS AGREEMENT OF PURCHASE AND SALE OF MEMBERSHIP INTERESTS AND ESCROW INSTRUCTIONS (this
“Agreement”) is made and entered into as of October 22, 2004, by and among the following person and
entities:



     (A) for the “Navistar Property” (as hereinafter defined): (i) Navistar Management, LLC, in its
capacity as Manager and a member of, and T. Richard Butera and RIP Investments LP, in their
capacities as the members of, Navistar Investors, LLC (individually a “Navistar Investors Member”
and collectively, the “Navistar Investors Members”); and (ii) First Potomac Realty Investment
Limited Partnership, a Delaware limited partnership (“FP-LP”), and FP Navistar Manager, LLC, a to
be formed limited liability company (“FP Navistar Manager”); and



     (B) for the “Metro Park North Property” (as hereinafter defined): (i) BP Gude Management, LLC,
in its capacity as Manager and a member of, and The Butera LLLP and RIP Investments LP, in their
capacities as the members of, BP Gude, LLC (individually a “BP Gude Member” and collectively, the
“BP Gude Members”); and (ii) FP-LP, and FP Gude Manager, LLC, a to be formed limited liability
company (“FP Gude Manager”) (FP-LP, FP Navistar Manager and FP Gude Manager being collectively
referred to herein as the “FP LLC Buyers”).



(FP LLC Buyers are also referred to herein collectively as the “Buyer”. Navistar Investors, LLC
and BP Gude, LLC are referred to herein collectively as the “LLCs”. Navistar Investors, LLC, the
Navistar Investors Members, BP Gude, LLC, and the BP Gude Members, are referred to herein
collectively as “Seller” or “Seller Parties”).




RECITALS:




     R-1. Navistar Investors, LLC is the owner of the Navistar Property located in Frederick
County, Maryland, as legally and more particularly described on Exhibit A-1 attached
hereto.



     R-2. FP LLC Buyers wish to purchase, and the Navistar Investors Members wish to sell, all of
the membership interests in Navistar Investors,, LLC on the terms and conditions set forth herein.



     R-3. BP Gude, LLC is the owner of the Metro Park North Property located in Montgomery County,
Maryland, as legally and more particularly described on Exhibit A-2 attached hereto.



     R-4. FP LLC Buyers wish to purchase, and the BP Gude Members wish to sell, all of the
membership interests in BP Gude, LLC on the terms and conditions set forth herein.



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     NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, and
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
Seller Parties and Buyer hereby agree as follows:



     Article 1 of this Agreement consists of definitions for certain of the defined terms that are
used throughout this Agreement.



     Article 2 of this Agreement constitutes instructions to “Escrow Agent” (as such term is
defined below), as well as agreements between Buyer and the Seller Parties.



     Article 3 of this Agreement consists of further agreements between Buyer and the Seller
Parties, with which Escrow Agent need not be concerned (except as otherwise directed in Article 2).
Escrow Agent may rely entirely on the instructions contained in Article 2; however, as between
Buyer and the Seller Parties, the provisions of Article 3 shall control if there is any
inconsistency between those provisions and the instructions in Article 2.



ARTICLE 1 DEFINITIONS




     The following terms, wherever used in this Agreement, shall have the respective meanings set
forth below:



     1.1. Actual Knowledge. “Actual Knowledge” means the actual (and not the constructive)
current knowledge of the person or entity making a representation or warranty in this Agreement to
his or its “Actual Knowledge”, and does not imply any inspection, examination or other inquiry
undertaken by such person or entity to determine the accuracy of any representation, warranty or
other statement made to such person’s or entity’s “Actual Knowledge” in this Agreement or in any of
Seller’s Closing Documents or Buyer’s Closing Documents, as applicable.



     1.2. Agreement. “Agreement” has the meaning set forth in the first paragraph of the
preamble.



     1.3. Assignment of Membership Interests. “Assignment of Membership Interests” means
an assignment of membership interests in form and substance reasonably acceptable to the Parties to
be executed and delivered by each of the Selling Members at Closing, pursuant to which, each
Selling Member shall assign and transfer to Buyer the applicable Membership Interest in accordance
with the terms and conditions contained herein. The Assignment of Membership Interests shall
contain an express warranty from each Selling Member that such Selling Member is the sole owner and
holder of the entire legal and beneficial interest in and to the Membership Interest transferred
thereby, that the Membership Interest is free and clear of any liens, pledges, claims or
encumbrances, that the Membership Interest has not been previously transferred, conveyed or
assigned, that such Selling Member has granted no options or rights to purchase the Membership
Interest, that no person or entity has an option or right to acquire such Membership Interest, and
that the Selling Member has full power and authority to make such assignment without joinder by or
consent or approval of any other party, except the applicable Existing Lender (as hereinafter
defined). Pursuant to each Assignment of



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Membership Interests, Buyer shall assume all obligations
of the Selling Member that is a party thereto to the applicable LLC arising from and after the
Closing Date.




     1.4. Broker. “Broker” means Matan Realty, LLLP.



     1.5. Navistar Investors, LLC Membership Interests. “Navistar Investors, LLC
Membership Interests” means one hundred percent (100%) of the membership interests in Navistar
Investors, LLC, as owned by the Navistar Investors Members in the percentages reflected on
Exhibit B-1 attached hereto.



     1.6. Navistar Investors Manager. “Navistar Investors Manager” means Navistar
Management, LLC, manager of Navistar Investors, LLC.



     1.7. BP Gude, LLC Membership Interests. “BP Gude, LLC Membership Interests” means one
hundred percent (100%) of the membership interests in BP Gude, LLC, as owned by the BP Gude Members
in the percentages reflected on Exhibit B-2 attached hereto.



     1.8. BP Gude Manager. “BP Gude Manager” means BP Gude Management, LLC, manager of BP
Gude, LLC.



     1.9. Buyer. “Buyer” means, collectively, the FP LLC Buyers (as defined in clause (A)
of the preamble).



     1.10. Buyer’s Knowledge. “Buyer’s Knowledge” means the Actual Knowledge of Nicholas
R. Smith, an officer of each Buyer, and does not imply any inspection, examination or other inquiry
undertaken by Buyer or said individual to determine the accuracy of any representation, warranty or
other statement made “to Buyer’s Knowledge” in this Agreement or in any of Buyer’s Closing
Documents.



     1.11. Buyer’s Closing Documents. “Buyer’s Closing Documents” has the meaning
specified in the last sentence of Section 2.2.2.



     1.12. Closing. “Closing” means the execution and delivery by the Seller Parties of
the Seller Closing Documents and by Buyer of the Buyer Closing Documents, as applicable,
concurrently with the disbursement by the Title Company of the Purchase Price to the Seller Parties
as at a “New York-style” closing in conformity with the terms and provisions of this Agreement;
provided, however, that if the Existing Lenders’ Approvals (as defined in Section 3.3.6 below) do
not occur within three (3) Business Days of one another, then (i) “Closing” shall mean, with
respect to the Navistar Investors LLC Membership Interests, the execution and delivery by the
Navistar Investor Members of the applicable Seller Closing Documents and by FP-LP and FP Navistar
Manager of the applicable Buyer Closing Documents, concurrently with the disbursement by the Title
Company to the Navistar Investors Members of the Purchase Price allocated to the Navistar
Investors, LLC Membership Interests as shown on Exhibit P attached hereto, as at a “New
York-style” closing in conformity with the terms and provisions of this Agreement applicable to the
Navistar Investors, LLC Membership Interests; and (ii) “Closing” shall mean, with respect to the BP
Gude, LLC Membership Interests, the execution and delivery by the BP Gude Members of the applicable
Seller Closing Documents and by FP-LP and FP



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Gude Manager of the applicable Buyer Closing
Documents, concurrently with disbursement by the Title Company to the BP Gude Members of the
Purchase Price allocated to the BP Gude, LLC Membership Interests as shown on Exhibit P
attached hereto, as at a “New York-style”
closing in conformity with the terms and provisions of this Agreement applicable to the BP
Gude, LLC Membership Interests.




     1.13. Closing Date. “Closing Date” means the later of (i) on or before the thirtieth
(30th) day following the Feasibility Period Expiration Date, or (ii) on or before the
seventh (7th) Business Day following the Parties’ receipt of the last of the Existing
Lenders’ Approvals (as defined in Section 3.3.6 below); provided, however, that if the Existing
Lenders’ Approvals do not occur within three (3) Business Days of one another, then (x) the
“Closing Date” shall mean, with respect to the Navistar Investors, LLC Membership Interests, on or
before the seventh (7th) Business Day following the Parties’ receipt of approval from
Existing Lender #1 (as defined in Section 2.3.5.1 below); and (y) the Closing Date shall mean, with
respect to the BP Gude, LLC Membership Interests, on or before the seventh (7th)
Business Day following the Parties receipt of approval from Existing Lender #2 (as defined in
Section 2.3.5.2 below), but in any event no sooner than the thirtieth (30th) day
following the Feasibility Period Expiration Date. Notwithstanding the foregoing provisions, in no
event shall the Closing Date occur later than December 23, 2004.



     1.14. Closing Indemnity Agreement. “Closing Indemnity Agreement” has the meaning
specified in Section 3.2.1.B(xi) and Section 3.2.2. (v), and shall also mean a separate written
indemnification agreement for the applicable Manager on behalf of the applicable LLC and for the
Buyer covering the respective indemnities set forth in Section 2.5.2 and Section 3.5.2.



     1.15. Day and Business Day. The term “day” means a calendar day, and the term
“Business Day” means any day on which commercial banks are generally open for business in the State
of Maryland. Any period of time specified in this Agreement that would otherwise end upon a
non-Business Day shall be extended to, and shall end upon, the next following Business Day.



     1.16. Deposit. “Deposit” has the meaning specified in Section 2.1.1.1.



     1.17. Effective Date. “Effective Date” means the last date on which all of the Seller
Parties and the Buyer have executed and delivered this Agreement, as indicated by the later of the
dates appearing next to their respective signatures below.



     1.18. Environmental Law. “Environmental Law” shall mean any environmental or health
and safety-related law, regulation, rule, ordinance, order or determination of any governmental or
judicial authority at the federal, state, or local level, to the extent applicable to the
Properties, including, but not limited to, the Comprehensive Response, Compensation and Liability
Act, as amended (“CERCLA”), the Resource Conservation and Recovery Act, as amended (“RCRA”), the
Federal Clean Water Act, as amended, the Toxic Substances Control Act, as amended, and the
Hazardous Materials Transportation Act, as amended.



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     1.19. Environmental Reports. “Environmental Reports” means, collectively, the reports for
the Properties that are identified in the Schedule of Environmental Reports attached hereto as a
part of Exhibit M.



     1.20. Escrow Agent. “Escrow Agent” means Chicago Title Insurance Company having an
address at 19 East Fayette Street, Suite 300, Baltimore, Maryland 21202, Attn: Albert E. Sikorsky,
III.



     1.21. Escrow. “Escrow” means the escrow established by and pursuant to this
Agreement, with Escrow Agent, as applicable, for purposes of consummating the sale and purchase of
the Membership Interests in accordance with this Agreement.



     1.22. Existing Title Policies. “Existing Title Policies” means, collectively, the
following:



     (a) That certain owner’s policy of title insurance for the Navistar Real Property (Policy No.
5312-758019), dated June 28, 2001, issued to Navistar Investors, LLC by Record Title & Escrow, LLC,
as Agent for Fidelity National Title Insurance Company of New York (“Navistar Existing Title
Policy”).



     (b) That certain owner’s policy of title insurance for the Metro Park North Real Property
(Policy No. 5312-758027), dated February 13, 2002, issued to BP Gude, LLC by Record Title & Escrow,
LLC, as Agent for Fidelity National Title Insurance Company of New York (“Metro Park North Existing
Title Policy”).



“Existing Title Policy” means either of the Navistar Existing Title Policy, or the Metro Park North
Existing Title Policy, as the case may be.




     1.23. Feasibility Period. “Feasibility Period” means the period that commenced on
October 8, 2004 and that expires on October 29, 2004.



     1.24. Feasibility Period Expiration Date. “Feasibility Period Expiration Date” means
October 29, 2004.



     1.25. Hazardous Substance. “Hazardous Substance” means any pollutant, contaminant,
toxic substance, hazardous waste, hazardous material, hazardous substance, petroleum or petroleum
product, asbestos, polychlorinated biphenyls, underground or aboveground storage tanks and the
contents thereof including, without limitation, any such materials defined in or regulated pursuant
to any Environmental Law.



     1.26. Improvements. “Improvements” means, collectively, all of the following:



     (a) All of the buildings, improvements, fixtures, structures, utilities and amenities on the
Navistar Land (“Navistar Property Improvements”).



     (b) All of the buildings, improvements, fixtures, structures, utilities and amenities on the
Metro Park North Land (“Metro Park North Property Improvements”).



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     1.27. Land. “Land” means, collectively, all of the following:



     (a) That certain parcel of land that is legally and more particularly described on Exhibit A-1
attached hereto, together with all easements, benefits, rights, privileges and other rights
appurtenant thereto (“Navistar Land”).



     (b) That certain parcel of land that is legally and more particularly described on Exhibit A-2
attached hereto, together with all easements, benefits, rights, privileges and other rights
appurtenant thereto (“Metro Park North Land”).



     1.28. Laws. “Laws” means any and all constitutions, statutes, ordinances, rules,
regulations, orders, rulings or decrees of the United States, or of the state, county, city, other
municipality, political subdivision, or governmental or quasi-governmental authority having
jurisdiction or otherwise operating where the Properties are located, or any agency, division,
district, court or other authority thereof.



     1.29. Lease. “Lease” means any of the following:



     (a) “Navistar Property Lease” means (1) any of the leases of commercial space within the
Navistar Property Improvements identified in the Schedule of Leases (Rent Roll) attached hereto as
Exhibit D-1; and (2) any lease of space within the Navistar Property Improvements entered into
after the Effective Date subject to and in conformity with the provisions set forth in Section
3.2.1.A(xvii). “Navistar Property Leases” mean, collectively, every Navistar Property Lease.



     (b) “Metro Park North Property Lease” means (1) any of the leases of commercial space within
the Metro Park North Property Improvements identified in the Schedule of Leases (Rent Roll)
attached hereto as Exhibit D-2; and (2) any lease of space within the Metro Park North Property
Improvements entered into after the Effective Date subject to and in conformity with the provisions
set forth in Section 3.2.1.A(xvii). “Metro Park North Property Leases” mean, collectively, every
Metro Park North Property Lease.



“Leases” mean, collectively, every Lease.




     1.30. LLCs. “LLCs” has the meaning set forth in the last paragraph of the preamble,
and “LLC” means any of the LLCs.



     1.31. LLC Instruments. “LLC Instruments” has the meaning specified in Section
3.2.1.B(ii).



     1.32. LLC Instrument Amendments. “LLC Instrument Amendments” means the amendments to
the LLC Instruments in form and substance reasonably acceptable to the Parties to be executed and
delivered by each of the Selling Members and the FP LLC Buyers at Closing, pursuant to which the
LLC Instruments shall be amended to reflect the transfer and conveyance of the LLC Interests, the
withdrawal from each of the LLCs by each of the Selling Members and the admission to the LLC of the
FP LLC Buyers in accordance with the terms and conditions contained herein. To the extent
required, the LLC Instrument Amendments shall be in proper



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form for recording among the applicable records of the MSDAT.




     1.33. Membership Interests. “Membership Interests” means, collectively, one hundred
percent (100%) of the membership interests in each of the LLCs.



     1.34. Parties and Party. “Parties” means, collectively, the Buyer and the Seller
Parties and “Party” means any of the Buyer or the Seller Parties, as the case may be.



     1.35. Permit. “Permit” means any permit, certificate, license or other form of
authorization or approval issued by a government agency or authority and legally required for the
occupancy and use of the applicable Property or any component thereof (including, without
limitation, any certificates of occupancy with respect to the improvements on any Property) in
Seller’s possession on Effective Date. “Permits” means, collectively, every Permit.



     1.36. Permitted Exceptions. “Permitted Exceptions” means, collectively, all of the
following:



     (a) “Navistar Property Permitted Exceptions” means with respect to the Navistar Real Property
(i) liens for all real property taxes and general and special assessments for the current year that
are not yet due and payable, (ii) liens or encumbrances arising out of any activity of Buyer with
respect to the Navistar Real Property, (iii) the Navistar Property Leases and the lien securing the
applicable Existing Financing, (iv) title exceptions reflected in the Navistar Title Commitment and
matters reflected on the Navistar Survey as updated by a Buyer’s Survey Update, if applicable, that
are not objected to by Buyer or are otherwise deemed to be “Navistar Property Permitted Exceptions”
pursuant to the title review process set forth in Section 2.3.2, expressly including all standard
“printed form” exceptions and exclusions from coverage customarily included within the form of a
policy for owner’s title insurance. Notwithstanding anything to the contrary set forth in this
Agreement, the term Navistar Property Permitted Exceptions expressly excludes any liens, monetary
encumbrances or judgments affecting title to the Navistar Property, all of which, subject to the
conditions and limitations set forth in Section 2.3.4, shall be released of record by Navistar
Investors, LLC at its sole cost and expense on or before Closing pursuant to Section 2.3.4, except
for the lien securing the applicable Existing Financing and except for any liens or encumbrances
referenced in clause (ii) above.



     (b) “Metro Park North Property Permitted Exceptions” means with respect to the Metro Park
North Real Property (i) liens for all real property taxes and general and special assessments for
the current year that are not yet due and payable, (ii) liens or encumbrances arising out of any
activity of Buyer with respect to the Metro Park North Real Property, (iii) the Metro Park North
Property Leases and the lien securing the applicable Existing Financing, (iv) title exceptions
reflected in the Metro Park North Title Commitment and matters reflected on the Metro Park North
Survey as updated by a Buyer’s Survey Update, if applicable, that are not objected to by Buyer or
are otherwise deemed to be “Metro Park North Property Permitted Exceptions” pursuant to the title
review process set forth in Section 2.3.2, expressly including all standard “printed form”
exceptions and exclusions from coverage customarily included within the form of a policy for
owner’s title insurance. Notwithstanding anything to the contrary set forth in this Agreement, the
term Metro Park North Property Permitted Exceptions expressly excludes any liens, monetary
encumbrances or judgments affecting title to the Metro Park North



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Property, all of which, subject
to the conditions and limitations set forth in Section 2.3.4, shall be released of record by BP
Gude, LLC at its sole cost and expense on or before Closing pursuant to Section 2.3.4, except for
the lien securing the applicable Existing Financing and except for any liens or encumbrances referenced in clause (ii) above.




“Permitted Exception” means any of the Navistar Property Permitted Exceptions, and the Metro Park
North Property Permitted Exceptions, as the case may be.




     1.37. Personal Property. “Personal Property” means, collectively, all of the
following:



     (a) All of the non-affixed equipment, trade fixtures, furnishings, furniture, appliances,
equipment, decorative items, inventory, supplies, tools and other tangible personal property owned
by Navistar Investors, LLC and used or held for use in operation of the Navistar Real Property,
including, without limitation, the personal property listed on Exhibit C hereto (“Navistar
Personal Property”).



     (b) All of the non-affixed equipment, trade fixtures, furnishings, furniture, appliances,
equipment, decorative items, inventory, supplies, tools and other tangible personal property owned
by BP Gude, LLC and used or held for use in operation of the Metro Park North Real Property,
including, without limitation, the personal property listed on Exhibit C hereto (“Metro
Park North Personal Property”).



“Personal Property” means any of the Navistar Personal Property, and the Metro Park North Personal
Property, as the case may be.



     1.38. Plans. “Plans” means the plans and specifications for the original construction
of the applicable Improvements, together with any subsequent material modifications thereof, to the
extent such items are in the applicable Seller’s possession on the Effective Date.



     1.39. Properties. “Properties” means, collectively, all of the following:



     (a) “Navistar Property” means, collectively, (i) the Navistar Real Property; (ii) the
Navistar Personal Property, (iii) the Navistar Service Contracts; (iv) all of Navistar Investors,
LLC’s rights in or to condemnation awards and insurance proceeds (to the extent not applied to
restoration) relating to the Navistar Real Property, subject to the terms set forth herein; (v)
all assignable warranties, guaranties, bonds, claims and rights, if any, in favor of Navistar
Investors, LLC relating to the construction, maintenance, operation or repair of the Navistar Real
Property or any component thereof, if any; (vi) all of Navistar Investors, LLC’s right, title and
interest in and to any assignable drawings, plans, specifications, surveys, manuals and contracts
relating to construction, maintenance and operation of the Navistar Real Property or the Navistar
Personal Property that are in Navistar Investors, LLC’s possession on the Effective Date; (vii) all
Permits applicable to the Navistar Real Property; (viii) all of Navistar Investors, LLC’s interest
in and under all of the Navistar Leases including unapplied security deposits held by Navistar
Investors, LLC in connection therewith, which shall be credited against the Purchase Price payable
by Buyer at Closing hereunder, as allocated to the Navistar Property pursuant to Exhibit P;
and (ix)



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all other tangible and intangible property or rights which Navistar Investors, LLC owns or
in which Navistar Investors, LLC has an interest in connection with its ownership and operation of
the Navistar Real Property, to the extent the same are assignable.




     (b) “Metro Park North Property” means, collectively, (i) the Metro Park North Real Property;
(ii) the Metro Park North Personal Property, (iii) the Metro Park North Service Contracts; (iv)
all of BP Gude, LLC’s rights in or to condemnation awards and insurance proceeds (to the extent not
applied to restoration) relating to the Metro Park North Real Property, subject to the terms set
forth herein; (v) all assignable warranties, guaranties, bonds, claims and rights, if any, in favor
of BP Gude, LLC relating to the construction, maintenance, operation or repair of the Metro Park
North Real Property or any component thereof, if any; (vi) all of BP Gude, LLC’s right, title and
interest in and to any assignable drawings, plans, specifications, surveys, manuals and contracts
relating to construction, maintenance and operation of the Metro Park North Real Property or the
Metro Park North Personal Property that are in BP Gude, LLC’s possession on the Effective Date;
(vii) all Permits applicable to the Metro Park North Real Property; (viii) all of BP Gude, LLC’s
interest in and under all of the Metro Park North Leases including unapplied security deposits held
by BP Gude, LLC in connection therewith, which shall be credited against the Purchase Price payable
by Buyer at Closing hereunder, as allocated to the Metro Park North Property pursuant to
Exhibit P; and (ix) all other tangible and intangible property or rights which BP Gude, LLC
owns or in which BP Gude, LLC has an interest in connection with its ownership and operation of the
Metro Park North Real Property, to the extent the same are assignable.



“Property” means any of the Navistar Property, and the Metro Park North Property, as the case may
be.




     1.40. Purchase Price. “Purchase Price” means the purchase price being paid by Buyer
to the Seller Parties for the Membership Interests, as specified in Section 2.1.



     1.41. Real Properties. “Real Properties” means, collectively, all of the following:



     (a) “Navistar Real Property” means, collectively, the Navistar Land and the Navistar
Improvements.



     (b) “Metro Park North Real Property” means, collectively, the Metro Park North Land and the
Metro Park North Improvements.



“Real Property” means any of the Navistar Real Property, and the Metro Park North Real Property, as
the case may be.




     1.42. Seller. “Seller” has the meaning set forth in the last paragraph of the
preamble.



     1.43. Seller’s Knowledge. “Seller’s Knowledge” means, as to the applicable Seller or
the applicable Manager, as the context of this Agreement may require, the Actual Knowledge of T.
Richard Butera or Mark C. Matan, and does not imply or require any inspection, examination or other
inquiry undertaken by any Seller or either of said individuals to determine the accuracy of any
representation, warranty or other statement made “to Seller’s Knowledge” in this



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Agreement or in
any of Seller’s Closing Documents. Seller represents, however, that T. Richard Butera and Mark C.
Matan are individuals to whom material facts relevant to the matters covered by the representations
and warranties of Seller that are set forth in this Agreement would be reported in the ordinary
course of business. Notwithstanding the foregoing, or anything else set forth in this Agreement to
the contrary, (i) T. Richard Butera shall not have any personal liability
under this Agreement, except as set forth in Section 3.2.7; (ii) Mark C. Matan shall not have
any personal liability whatsoever under this Agreement; (iii) except for T. Richard Butera as
provided in clause (i) above, none of the officers, directors, stockholders, employees, agents,
principals, members, partners or affiliates of the Selling Members shall have any personal
liability whatsoever under this Agreement; and (iv) Buyer and Buyer’s officers, directors,
employees, principals and affiliates hereby expressly disclaim and waive any and all rights they
may have to bring any actions or claims against T. Richard Butera, except as set forth in Section
3.2.7, or Mark C. Matan, or any of the officers, directors, stockholders, employees, agents,
principals, members, partners or affiliates of the Selling Members (except for T. Richard Butera as
provided in clause (i) above), for or in connection with the provisions of this paragraph or in
connection with any representations and/or warranties that are made throughout this Agreement to
the applicable “Seller’s Knowledge”, or the applicable “Manager’s Knowledge”, as herein defined.




     1.44. Seller Representative. “Seller Representative” means T. Richard Butera.



     1.45. Seller Parties. “Seller Parties” has the meaning set forth in the last
paragraph of the preamble.



     1.46. Seller’s Closing Documents. “Seller’s Closing Documents” has the meaning
specified in the last sentence of Section 2.2.1.



     1.47. Selling Members. “Selling Members” means, collectively, Navistar Investors
Manager, Navistar Investors Members, BP Gude Manager, and BP Gude Members, and “Selling Member”
means any of Navistar Investors Manager, Navistar Investors Members, BP Gude Manager, and BP Gude
Members, as the case may be.



     1.48. Service Contracts. “Service Contracts” mean, collectively, all of the
following:



     (a) “Navistar Service Contract” means any contract or other arrangement for the provision of
services relating to the construction, maintenance, repair or operation of the Navistar Property;
excluding, however any property management contract or arrangement. “Navistar Service Contracts”
mean, collectively, every Navistar Service Contract.



     (b) “Metro Park North Service Contract” means any contract or other arrangement for the
provision of services relating to the construction, maintenance, repair or operation of the Metro
Park North Property; excluding, however any property management contract or arrangement. “Metro
Park North Service Contracts” mean, collectively, every Metro Park North Service Contract.



“Service Contract” means any of the Navistar Service Contracts, and the Metro Park North Service
Contracts, as the case may be.





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     1.49. Surveyor. “Surveyor” means Lavelle & Associates, Inc.



     1.50. Surveys. “Surveys” mean, collectively, all of the following:



     (a) That certain ALTA/ACSM Survey of the Navistar Real Property prepared by and
most recently certified by the Surveyor (“Navistar Survey”).



     (b) That certain ALTA/ACSM Survey of the Metro Park North Real Property prepared by and most
recently certified by the Surveyor (“Metro Park North Survey”).



     (c)



     1.51. Tenant. “Tenant” means any tenant or lessee under a Lease.



     1.52. Title Commitments. “Title Commitments” means, collectively, all of the
following:



     (a) A commitment for title insurance acquired by Buyer at its cost from the Title Company in
connection with its proposed acquisition of the Navistar Real Property and the issuance of the
Navistar Title Policy (“Navistar Title Commitment”).



     (b) A commitment for title insurance acquired by Buyer at its cost from the Title Company in
connection with its proposed acquisition of the Metro Park North Real Property and the issuance of
the Metro Park North Title Policy (“Metro Park North Title Commitment”).



     1.53. Title Company. “Title Company” means Chicago Title Insurance Company.



     1.54. Title Policies. “Title Policies” means, collectively, all of the following:



     (a) “Navistar Title Policy” means an ALTA owner’s policy of title insurance, in the amount of
the Purchase Price that has been allocated to the Navistar Property, as reflected on Exhibit
P attached hereto, insuring, at standard rates (excluding endorsement premiums), fee simple
title to the Navistar Real Property pursuant to the Navistar Title Commitment, under the latest
ALTA standard full coverage owner’s title insurance policy form, which shall contain no exceptions
except for the Navistar Permitted Exceptions and shall be dated as of the Closing Date, as more
fully described below in Section 2.3.3.



     (b) “Metro Park North Title Policy” means an ALTA owner’s policy of title insurance, in the
amount of the Purchase Price that has been allocated to the Metro Park North Property, as reflected
on Exhibit P attached hereto, insuring, at standard rates (excluding endorsement premiums),
fee simple title to the Metro Park North Real Property pursuant to the Metro Park North Title
Commitment, under the latest ALTA standard full coverage owner’s title insurance policy form, which
shall contain no exceptions except for the Metro Park North Permitted Exceptions and shall be dated
as of the Closing Date, as more fully described below in Section 2.3.3.



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     1.55. Waiver of Claims. “Waiver of Claims” means a written waiver of any claims
against (A) the applicable LLC to be executed by the applicable Selling Members pursuant to Section
3.2.1.B(x); and (B) the applicable Selling Members to be executed by the applicable LLC pursuant to
Section 3.2.1.B(x).



     1.56. Other Definitions. Terms defined in any other part of this Agreement shall have
the defined meanings wherever capitalized herein. As used in this Agreement, the terms
“herein,” “hereof” and “hereunder” refer to this Agreement in its entirety and are not limited
to any specific sections; and the term “person” means any natural person, other legal entity, or
combination of natural persons and/or other legal entities acting as a unit. Wherever appropriate
in this Agreement, the singular shall be deemed to refer to the plural and the plural to the
singular, and pronouns of certain genders shall be deemed to comprehend either or both of the other
genders.



ARTICLE 2

COVENANT OF PURCHASE AND SALE AND INSTRUCTIONS TO ESCROW AGENT




     In accordance with and subject to the terms and conditions of this Agreement, for and in
consideration of the Purchase Price, each of the Selling Members shall sell to Buyer, and Buyer
shall purchase from each of the Selling Members, one hundred percent (100%) of the Membership
Interests in each of the LLCs. No later than two (2) Business Days after the Effective Date, Buyer
shall deliver a copy of this Agreement to Escrow Agent, and Escrow Agent shall promptly notify
Seller Representative on behalf of all of the Seller Parties, of such delivery and shall evidence
its agreement to act as Escrow Agent hereunder by countersigning and delivering to Buyer and Seller
Representative, on behalf of all of the Seller Parties, a copy of this Agreement.



     On the Closing Date, Seller Representative shall, in coordination with the Buyer, cause its
accountants to close the books of the LLCs. Seller Representative shall, under its direction and
control, cause a tax return to be prepared and filed for each of the LLCs for the period from
January 1, 2004 through the Closing Date. Further, Buyer shall not, and shall require that the
LLCs shall not, amend any tax returns filed by such LLCs with respect to any periods ending on or
prior to the Closing Date.



     In connection with the administration of Escrow and Closing, Buyer and the Seller Parties
hereby agree, and advise and instruct Escrow Agent, as follows:



     2.1 Purchase Price. The aggregate Purchase Price for the Membership Interests shall
be Sixty Three Million Dollars ($63,000,000.00) (the “Purchase Price”), which shall be payable as
provided below. The Purchase Price shall be allocated among the Membership Interests in accordance
with Exhibit P attached hereto (the “Purchase Price Allocation”).



     2.1.1 Buyer’s Deposit.



               2.1.1.1 Buyer’s Deposit. Within two (2) business days after full execution of this
Agreement by the Buyer and Seller Parties, Buyer shall deliver to Escrow Agent a deposit (the
“Deposit”) either, at Buyer’s election, (i) in the form of cash or immediately available federal



13









 





funds in the amount of Two Million Five Hundred Thousand Dollars ($2,500,000.00), to be held in
escrow in an interest bearing account; or (ii) in the form of an irrevocable commercial letter of
credit having an expiration date no earlier than six (6) months after the Effective Date of this
Agreement, and issued by a bank or other financial institution that is acceptable to Seller in its
reasonable discretion and capable of being drawn in person at a financial institution located in
the Washington, DC metropolitan area (collectively with any additional letters of credit or
replacements therefor or extensions thereof being referred to herein as the “Credit”). The Deposit
whether in the form of cash or Credit, shall be dealt with by the Escrow Agent in conformity
with the terms of this Agreement. All interest earned on the Deposit shall be paid to the
Party entitled to receive the Deposit pursuant to the terms of this Agreement. The term “Deposit”,
as used in this Agreement, shall include any interest that may accrue on any cash Deposit. The
Deposit shall be allocated among the Membership Interests as follows: $873,000.00 of the Deposit
shall be allocated to the Navistar Investors, LLC Membership Interests, and $1,627,000.00 of the
Deposit shall be allocated to the BP Gude, LLC Membership Interests. Any Credit given as the
Deposit shall be issued to the Seller and Escrow Agent, as their interests may appear, by a
commercial banking institution reasonably acceptable to Seller, shall be delivered to Escrow Agent,
and shall be in substantially the form of Exhibit R attached hereto and incorporated herein
by this reference. Any Credit may be drawn upon: (1) by any Seller, if Buyer is in default of its
obligations under this Agreement beyond any applicable notice and cure period specified herein; or
(2) by Escrow Agent, if the Credit is due to expire within thirty (30) days and the expiration date
of the Credit has not been extended as required by the terms of this Section 2.1.1. In the event
that the Credit shall be due to expire prior to the Closing Date, Buyer shall, at least thirty (30)
days prior to the expiration of the Credit or each subsequent Credit, substitute a replacement
Credit or cause the issuer to extend the expiration date of the Credit in such intervals of up to
six (6) months each from time to time as may be necessary to cause the expiration date of the
Credit to be at least thirty (30) days after the reasonably anticipated date of Closing. If the
Credit has not been extended or a replacement Credit substituted therefor as hereinabove required,
Escrow Agent shall, upon the written direction of Seller, draw upon the Credit, in which event the
funds received upon such draw shall be deemed to constitute the Deposit and shall be deposited in
conformity with the provisions of Section 2.1.1.2, and otherwise shall be held and dealt with as
provided in this Agreement for a cash Deposit. Whenever Seller is entitled to the Deposit as
provided in this Agreement, Escrow Agent shall, upon the written direction of Seller, immediately
deliver the Credit to Seller. Whenever Escrow Agent is required to draw against the Credit as
provided in this Agreement, Escrow Agent shall promptly do so and hold the proceeds thereof in
escrow as provided in this Agreement for a cash Deposit. If a dispute shall arise with respect to
the Deposit, Escrow Agent shall continue to hold any Credit or other Deposit pursuant to the terms
of this Section 2.1.1, and Buyer shall extend the maturity of the Credit for periods of up to six
(6) months each as necessary from time to time to permit resolution of such dispute prior to the
expiration of the Credit, and the provisions of this Section 2.1.1 permitting the Credit to be
drawn shall apply in the event Buyer shall fail to extend the Credit as required at any time. The
obligations of the Escrow Agent with respect to the Deposit shall be g
overned by the terms and
conditions set forth below in this Article 2.




               2.1.1.2 Investment of Cash Deposit. Any cash Deposit, while held in Escrow, shall be
held by the Escrow Agent in escrow and invested in an interest bearing money market account that is
mutually approved by Seller Representative, on behalf of the Seller Parties, and Buyer, such
approval not to be unreasonably withheld, conditioned or delayed. All interest



14









 





earned on any cash Deposit while in Escrow shall be added to, and become part of, the Deposit.




               2.1.1.3 Application of Deposit. In the event that Buyer terminates this Agreement
after the Effective Date in conformity with Buyer’s rights hereunder, Escrow Agent shall,
immediately upon receipt of written notice thereof from both Buyer and Seller Representative, on
behalf of the Seller Parties, to Escrow Agent deliver the Deposit to Buyer; provided, however, that
if Buyer terminates this Agreement pursuant to the terms and conditions of Section 2.4 hereof on or
before the Feasibility Period Expiration Date, then Escrow Agent shall return the Deposit to Buyer
upon its receipt of such Buyer’s written request and without
authorization from any of the Seller Parties or the Seller Representative. If Buyer, in
breach of its obligations under this Agreement, defaults in its obligations to purchase the
Membership Interests subject to and in conformity with the terms and conditions of this Agreement,
the Seller Parties, as their sole and exclusive remedy hereunder, shall be entitled to receive the
Deposit as liquidated damages (and not as a penalty), as more fully provided in Section 3.22. At
Closing, Escrow Agent shall apply the applicable portion of any cash Deposit against the Purchase
Price with respect to the Membership Interests then being acquired, or if the Deposit is in the
form of a Credit, Escrow Agent shall return the Credit to Buyer. Following the Feasibility Period
Expiration Date, the Deposit shall be non-refundable to the Buyer except in the event of a failed
condition precedent to the obligation of the Buyer to close hereunder as set forth in Section 3.3
or in the event of a default by any of the Seller Parties under this Agreement which remains
uncured beyond any applicable notice and cure period provided in this Agreement.



               2.1.1.4 Duties and Liabilities of Escrow Agent. Escrow Agent shall not be liable to
any of the Parties in connection with the performance of any duty imposed upon Escrow Agent
hereunder for any action taken by Escrow Agent in good faith in conformity with the provisions of
this Agreement in holding or dealing with the Deposit, except for the negligence or misconduct of
Escrow Agent. Escrow Agent may act upon any instrument or other writing believed by Escrow Agent
in good faith to be genuine and to be executed and presented by the proper person. Escrow Agent
shall have no duties or responsibilities other than as expressly set forth herein. In the event
that (i) Escrow Agent shall be uncertain as to its rights or duties hereunder, (ii) Escrow Agent
shall receive instructions from the Buyer or Seller Representative on behalf of the Seller Parties
or the issuer of the Credit (if applicable) which, in the reasonable opinion of Escrow Agent, are
in conflict with any of the provisions hereof, or (iii) Escrow Agent shall receive conflicting
demands from the Buyer or Seller Representative on behalf of the Seller Parties or the issuer of
the Credit (if applicable) with respect to the Deposit or directing Escrow Agent to take any action
with respect to the Deposit, Escrow Agent may take affirmative steps in order to terminate its
duties hereunder by depositing the Deposit with the clerk of court for the Circuit Court for
Montgomery County, Maryland in an action for interpleader, naming the conflicting claimants as
parties in such action. The reasonable costs and expenses of Escrow Agent in connection with
filing such an interpleader action, not to exceed a total of $5,000 shall be divided equally
between the Buyer and the Seller Parties.



               2.1.1.5 EINs. For the information of Escrow Agent, the Employer Identification Number
of the FP-LP is 52-2057842 and the Employer Identification Number of Navistar Investors, LLC is
52-2322770, and the Employer Identification Number of BP Gude, LLC is 45-0463616.



15









 





     2.1.2 Balance of the Purchase Price (and Other Funds Required for Closing). On the
Closing Date, the FP LLC Buyers shall take title to the Membership Interests, with the Properties
remaining subject to the lien of the applicable “Existing Deed(s) of Trust” (as defined on
Exhibit Q hereto) and the terms and conditions of the other applicable “Existing Financing
Documents” (as defined below in Section 2.3.5.1), and Buyer shall deposit in Escrow with Escrow
Agent immediately available federal funds in an amount equal to the difference between the Purchase
Price and the outstanding principal balance under the “Existing Notes” (as defined below in Section
2.3.5.1) on the Closing Date, plus Buyer’s share of Closing costs under Section 2.6,
plus the balance as of the Closing Date of the “Existing Lender Escrows” (as defined below
in Section 3.2.1.A(xxiv)(B)) held by the “Existing Lenders” (as defined below in Section 2.3.5.1),
plus cash held in any lockbox account, or any cash management account, or any “sweep”
account, or any other type of controlled account, with the Existing Lenders not delivered to the
Seller Parties prior to Closing, minus the amount of any cash Deposit (if applicable), and
plus or minus (as the case may be) the net amount of prorations and other credits
under Section 2.5.



     2.2 Escrow Deposits.



          2.2.1 By the Seller Parties. On the Closing Date, the Seller Parties, as applicable,
shall deposit or cause to be deposited in Escrow, for each applicable LLC in which the Selling
Members are selling their respective Membership Interests in that LLC and that LLC’s respective
Property or Properties:




               (i) An Assignment of Membership Interests duly executed by each of the applicable Selling
Members for all of the applicable LLC Membership Interests.



               (ii) The applicable LLC Instrument Amendments for the applicable LLC duly executed by
applicable LLC and each of the applicable Selling Members.



               (iii) The Closing Indemnity Agreement for the applicable LLC duly executed by the applicable
Selling Members.



               (iv) The Waiver of Claims for the applicable LLC duly executed by the applicable Selling
Members.



               (v) A FIRPTA Certificate duly executed by the applicable Manager on behalf of the applicable
LLC with respect to that LLC’s Property or Properties subject to and in conformity with the terms
and provisions of this Agreement.



               (vi) The applicable Seller’s Closing Certificate, dated as of Closing, duly executed by the
applicable Manager on behalf of the applicable LLC, subject to and in conformity with the terms and
provisions of this Agreement, that all of the warranties and representations contained in Section
3.2.1.(A), relating to the applicable LLC’s Property or Properties, or the applicable LLC or the
applicable LLC Membership Interests or the applicable Selling Members, are true and correct in all
material respects as of the Closing Date, except for matters specified in such Seller’s Closing
Certificate, which matters must be reasonably satisfactory to Buyer.



16









 





               (vii) The original (or, where an original is not available, a copy) of each applicable Lease
and Service Contract, and all applicable Plans, Environmental Reports and Property Document
Deliveries for the applicable Properties (the “LLC Originals”); provided, however, that, instead of
delivering the LLC Originals and other documents and materials identified above to Buyer through
Escrow, each applicable LLC may deliver any or all of the LLC Originals directly to Buyer.



               (viii) All tenant files pertaining to the operation of the applicable LLC’s Property or
Properties not theretofore delivered, subject to the applicable Seller Parties’ continued right of
access thereto for a reasonable period after Closing for proper purposes.



               (ix) An Owner’s Affidavit from the applicable Manager for the applicable LLC subject to and in
conformity with the terms and provisions of this Agreement.



               (x) A “gap” indemnity agreement from the applicable Manager for the applicable LLC subject to
and in conformity with the terms and provisions of this Agreement and as is customarily required by
the Title Company in connection with conducting a “New York style” closing.



               (xi) Such other documents as the Title Company may reasonably require to effect Closing on the
purchase and sale of the applicable LLC Membership Interest, on terms and conditions reasonably
acceptable to the applicable Seller, including, but not limited to, such documents that apply to
the applicable LLC as reflected on Schedule B-1 to the applicable Title Commitment, as the same may
be amended to reflect the acquisition of the applicable LLC Membership Interests.



               (xii) The Final Certified Rent Roll for the applicable LLC’s Property or Properties (as
defined in Section 3.3.5).



               (xiii) The Affidavit for Non-Imputation Endorsement from the applicable Selling Members
subject to and in conformity with the terms and provisions of this Agreement.



               (xiv) Such documents as may be reasonably required to permit Buyer to take title to the
applicable LLC Membership Interests with that LLC’s respective Property or Properties remaining
subject to the lien of the applicable Existing Deed(s) of Trust and the other applicable Existing
Financing Documents, on terms and conditions reasonably acceptable to Seller.



               (xv) The Updated Balance Sheet for the applicable LLC (as defined in Section 3.3.7(iv)).



               (xvi) Such other documents and instruments as may be reasonably required from the applicable
LLC and/or the applicable Selling Members to consummate the transaction contemplated by this
Agreement with respect to the applicable LLC Membership Interests subject to and in conformity with
the terms and provisions hereof and on terms and



17









 





conditions reasonably acceptable to Seller.




     Each of the documents specified in this Section 2.2.1 (collectively, “Seller’s Closing
Documents”) shall, as applicable, have been duly executed and, if appropriate, acknowledged, by the
applicable Seller Parties and shall be subject to and in conformity with the terms and provisions
hereof, and otherwise in form and content reasonably acceptable to both Seller and Buyer (to extent
that the form of any such document is not attached to this Agreement).



          2.2.2 By Buyer. In addition to the deposit of funds under Section 2.1.2, on the
Closing Date, the Buyer shall duly execute, deliver and deposit or cause to be deposited in Escrow,
for each applicable LLC in which the Selling Members are selling their respective Membership
Interests in the LLC and that LLC’s respective Property or Properties:




               (i) A counterpart of the Assignment of Membership Interests for all of the applicable LLC
Membership Interests.



               (ii) Counterparts of the applicable LLC Instrument Amendments for each applicable LLC.



               (iii) Counterparts of the Waiver of Claims duly executed by the applicable Selling Members
pursuant to Section 3.2.1.B(x).



               (iv) Counterparts of the Closing Indemnity Agreement duly executed by the applicable Selling
Members.



               (v) Buyer’s Closing Certificate, dated as of Closing, duly executed by Buyer, subject to and
in conformity with the terms and provisions of this Agreement, that all of the warranties and
representations contained in Section 3.2.2 are true and correct in all material respects as of the
Closing Date, except for matters specified in such Buyer’s Closing Certificate, which matters are
reasonably satisfactory to Seller.



               (vi) Such other documents as the Title Company may reasonably require to effect Closing on the
purchase and sale of the applicable LLC Membership Interests, on terms and conditions reasonably
acceptable to Buyer, including, but not limited to, such documents that apply to Buyer as reflected
on Schedule B-1 to each applicable Title Commitment, as the same may be amended to reflect the
acquisition of the applicable LLC Membership Interests.



               (vii) Such documents as may be reasonably required to permit Buyer to take title to the
applicable LLC Membership Interests with that LLC’s respective Property or Properties remaining
subject to the lien of the applicable Existing Deed(s) of Trust and the other applicable Existing
Financing Documents, on terms and conditions reasonably acceptable to Buyer, including, without
limitation, all guaranties that the Existing Lenders require to approve the assumption of all
Existing Financing by Buyer consistent with the requirements, terms and conditions of all Existing
Financing Documents.



18









 





               (viii) Such other documents and instruments as may be reasonably required from Buyer to
consummate the transaction contemplated by this Agreement with respect to the applicable LLC
Membership Interests subject to and in conformity with the terms and provisions hereof and on terms
and conditions reasonably acceptable to Buyer.



Each of the documents specified in this Section 2.2.2 (“Buyer’s Closing Documents”) shall have been
duly executed and, if appropriate, acknowledged by Buyer, and shall be subject to and in conformity
with the terms and provisions hereof, and otherwise in form and content reasonably acceptable to
both Seller and Buyer (to extent that the form of any such document is not attached to this
Agreement).




     2.3 Due Diligence; Title Insurance; Existing Financing.



     2.3.1 Buyer shall have the right at any time to examine title to, and the operation and
condition of, the Properties and receive copies of any and all documents relating to title to, or
the operation or condition of, the Properties, and, subject to the rights of Tenants at the
Properties, to enter upon, test, study, survey, inspect, and conduct engineering, architectural,
environmental, soil, economic and other tests on the Properties as Buyer deems necessary or
desirable in order to evaluate the Properties; provided, however, that Buyer shall (i) give Seller
reasonable prior written notice of the time and place of such entry, in order to permit a
representative of Seller to accompany Buyer; (ii) use its best efforts not to interfere with the
operations of the Properties or any Tenant thereof; (iii) restore any damage to the Properties or
any adjacent property caused by such actions; (iv) not enter into any Tenant’s leased premises or
communicate with any Tenant unless accompanied by Seller or a Seller’s representative in each
instance; (v) prior to entry onto the Properties, furnish Seller with a certificate of general
liability and property damage insurance maintained by Buyer with single occurrence coverage of at
least $1,000,000 (and aggregate coverage of $2,000,000) and naming Seller and its property manager
as additional insureds; and (vi) not conduct any environmental investigations or testing other than
a standard “Phase I” investigation, without the prior written approval of Seller in its sole and
absolute discretion. The LLCs shall reasonably cooperate with Buyer (at no cost, liability or
expense to the LLCs) in Buyer’s conducting such due diligence, and each of the LLCs hereby grants
to Buyer access to the Properties to conduct such due diligence subject to the terms and provisions
of this Agreement. Seller Representative shall also permit Buyer and its accountant’s full access
to the books and records of the LLCs upon reasonable prior telephonic notice so as to permit Buyer
to review, verify, and/or audit the financial data furnished to Buyer by the LLCs pursuant to the
terms of this Agreement.



     2.3.2 Prior to the Effective Date, the LLCs have delivered to Buyer, and Buyer hereby
acknowledges receipt of, the Existing Title Policies and the Surveys. Promptly following the
Effective Date, (i) Buyer shall order the Title Commitments from the Title Company; and (ii) Buyer
may order an update of the Surveys from an engineering firm selected by Buyer (the “Buyer’s Survey
Update(s)”). On or before 5:00 p.m. (Eastern Time) on October 29, 2004 (the “Title/Survey
Objection Date”), Buyer shall advise the Seller by written notice (the “Buyer’s Title Objection
Notice”) of any objections that Buyer may have to (1) the title exceptions reflected in the Title
Commitments; (2) any matters reflected on the Surveys, as updated by the Buyer’s Survey Updates, if
applicable; and (3) any zoning matters affecting any of the Properties. Any title exceptions
reflected in the Title Commitments or matters reflected on the Surveys, as



19









 





updated by the Buyer’s
Survey Updates, if applicable, or zoning matters affecting any of the
Properties, as to which Buyer does not object in the Buyer’s Title Objection Notice shall be
included within the meaning of the term “ Navistar Property Permitted Exceptions”, and/or
“ Metro Park North Property Permitted Exceptions ”, as applicable. By no later than
five (5) Business Days after the Title/Survey Objection Date, the applicable Seller Parties shall
advise Buyer by written notice (the “Seller’s Title Notice”) as to whether the applicable Seller
Parties intend to correct the objectionable matters reflected in the Buyer’s Title Objection
Notice. Seller shall have no obligation whatsoever to correct any objectionable matters reflected
in the Buyer’s Title Objection Notice, subject to Section 2.3.4 below. In the event that Purchaser
does not receive a Seller’s Title Notice or Seller’s Title Notice does not address any of the
objectionable matters raised by Buyer in Buyer’s Title Objection Notice, Seller shall be deemed to
have elected not to cure any such objectionable items raised in Buyer’s Title Objection Notice.
Any objectionable matters that the applicable Seller agrees to correct in its sole and absolute
discretion shall be corrected by the applicable Seller prior to Closing and the correction of such
objectionable matters by the applicable Seller shall be a condition precedent to Buyer’s
obligations to proceed to Closing hereunder. Notwithstanding the foregoing provision, any
objectionable matter(s) that the applicable Seller agrees to correct, but is unable to correct
prior to Closing, shall not constitute a default on the part of any of the Seller Parties, but
shall simply be a failed condition precedent to the obligation of the Buyer to close hereunder. In
addition to (and not in limitation of) Buyer’s other termination rights specified in Section 2.4,
if the Seller’s Title Notice reflects that any of the Seller Parties does not intend to correct
some or all of the objectionable matters specified in the Buyer’s Title Objection Notice or if
Seller is deemed to have elected not to cure such items, Buyer shall have the right, exercisable by
written notice to the Seller given on or before the earlier to occur of (i) the fifth
(5th) Business Day following Buyer’s receipt of Seller’s Title Notice, or (ii) the tenth
(10th) business day following Buyer’s delivery of Buyer’s Title Objection Notice, in the
event that Buyer does not receive a Seller’s Title Notice addressing all items raised in Buyer’s
Title Objection Notice, to terminate this Agreement. Buyer’s failure to timely respond shall be
deemed Buyer’s option to terminate this Agreement. In the event that Buyer elects not to terminate
this Agreement and to proceed to Closing hereunder, the matters reflected in Buyer’s Title
Objection Notice that any of the Seller Parties elects not to correct (as reflected in the Seller’s
Title Notice) shall be deemed “Permitted Exceptions” hereunder.




     2.3.3 Issuance of Title Policies. Buyer shall have the right to cause the Title
Company to issue to Buyer as soon as practicable after Closing the Title Policies pursuant to the
Title Commitments in the applicable amount of the Purchase Price as reflected on the Purchase Price
Allocation attached hereto as Exhibit P insuring good of record and in fact and marketable
fee simple title to each of the Properties.



     2.3.4 Satisfaction and Removal of Liens, Monetary Encumbrances and Judgments.
Notwithstanding any other provision hereof, on or before Closing (or from proceeds of Closing), the
Seller Parties shall be obligated at their sole cost and expense to satisfy and release of record:
(i) any mechanics’, materialman or similar liens, and any monetary liens evidencing a claim against
any of the Seller Parties for the satisfaction of any monetary obligations in a liquidated amount
(including any tax and/or judgment liens other than real estate tax liens and assessments which are
a lien but not yet billed, or not yet due and payable) for an aggregate liquidated sum of up to
$500,000 filed against the Properties and affecting title to the Properties or the Membership



20









 





Interests, as applicable, and the Selling Members shall convey the Membership Interests to the FP
LLC Buyers free and clear of all such liens, encumbrances and judgments, with the
applicable LLC Properties free and clear of all such liens, encumbrances and judgments; and
(ii) all liens securing any financing obtained by any of the Seller Parties, except for the liens
of the Existing Deeds of Trust and other Existing Financing Documents.




     2.3.5. Existing Financing.



          2.3.5.1 (a) The Navistar Property is currently encumbered by and subject to the lien of an
existing deed of trust (“Existing Deed of Trust #1”), securing a loan previously advanced by UBS
Warburg Real Estate Investments Inc., with Existing Deed of Trust #1 being in the original
principal amount of Thirteen Million Five Hundred Thousand Dollars ($13,500,000.000), with a
current outstanding principal balance of approximately Thirteen Million One Hundred Thirteen
Thousand Seven Hundred Eleven Dollars and Forty-Six Cents ($13,113,711.46) (“Existing Financing
#1”), which Existing Financing #1 is currently held by LaSalle Bank National Association, as
Trustee (the “Existing Lender #1). Existing Financing #1 is evidenced by a promissory note dated
June 27, 2001, in the original face amount of Thirteen Million Five Hundred Thousand Dollars
($13,500,000.000), bearing interest at the rate of seven and 48/100 percent (7.48%) per annum,
payable in monthly installments of principal and interest in the amount of Ninety Four Thousand Two
Hundred Nine Dollars and Fourteen Cents ($94,209.14) (“Existing Note #1”). Existing Lender #1 is
the current holder of Existing Note #1 and the beneficiary of Existing Deed of Trust #1. A list of
all of the documents evidencing and securing Existing Financing #1 (collectively, the “Existing
Financing #1 Documents”) is attached hereto as Exhibit Q.




          (b) The Metro Park North Property is currently encumbered by and subject to the lien of an
existing deed of trust (“Existing Deed of Trust #2”), securing a loan previously advanced by UBS
Warburg Real Estate Investments Inc., with Existing Deed of Trust #2 being in the original
principal amount of Twenty Four Million Seven Hundred Thousand Dollars ($24,700,000.00), with a
current outstanding principal balance of approximately Twenty Four Million Two Hundred Sixty
Thousand Two Hundred Two Dollars and Seventy-Nine Cents ($24,260,202.79) (“Existing Financing #2”),
which Existing Financing #2 is currently held by LaSalle Bank National Association, as Trustee (the
“Existing Lender #2). Existing Financing #2 is evidenced by a promissory note dated February 11,
2002, in the original face amount of Twenty Four Million Seven Hundred Thousand Dollars
($24,700,000.00), bearing interest at the rate of seven and 11/100 percent (7.11%) per annum,
payable in monthly installments of principal and interest in the amount of One Hundred Sixty Nine
Thousand Twenty Eight Dollars and Nine Cents ($169,028.09) (“Existing Note #2”). Existing Lender
#2 is the current holder of Existing Note #2 and the beneficiary of Existing Deed of Trust #2. A
list of all of the documents evidencing and securing Existing Financing #2 (collectively, the
“Existing Financing #2 Documents”) is attached hereto as Exhibit Q.




          (c) For purposes of this Agreement: (i) “Existing Deed of Trust” means either of Existing Deed
of Trust #1 or Existing Deed of Trust #2, as the case may be, and “Existing Deeds of Trust” mean,
collectively, every Existing Deed of Trust; (ii) “Existing Financing” means either of Existing
Financing #1 or Existing Financing #2, as the case may be, and “Existing Financing” also means,
collectively every Existing Financing; (iii) “Existing Lender” means




21









 








either of Existing Lender #1
or Existing Lender #2, as the case may be, and “Existing Lenders” mean, collectively, every
Existing Lender; (iv) “Existing Note” means either of Existing Note #1 or Existing Note #2, as the
case may be, and “Existing Notes” mean, collectively, every Existing
Note; and (v) “Existing Financing Documents” means any of Existing Financing #1 Documents and
Existing Financing #2 Documents, as the case may be, and “Existing Financing Documents” also mean,
collectively, all Existing Financing Documents.




          2.3.5.2 Subject to the terms and conditions of this Agreement, at Closing, Buyer shall take
title to the Membership Interests, with the Properties remaining subject to the lien of the
applicable Existing Deed of Trust and the terms and conditions of the other applicable Existing
Financing Documents. During the period from the Effective Date and until Closing hereunder, the
Seller Parties and the Buyer shall use diligent, commercially reasonable, good faith efforts to
obtain the approval of the Existing Lenders to the transactions contemplated by this Agreement and
a written release executed by each of the Existing Lenders of all obligations of T. Richard Butera
under or in connection with the Existing Financing in form and content reasonably acceptable to T.
Richard Butera, the Seller Representative named herein (the “Existing Financing Releases”). The
obligations of the Seller Parties to proceed to Closing hereunder shall be conditioned upon the
Seller Representative receiving at Closing the Existing Financing Releases.




          2.3.5.3 Each of the LLCs covenants, agrees and warrants to the Buyer as follows with respect
to the Existing Financing: (i) the list of the Existing Financing Documents attached hereto as
Exhibit Q constitutes all of the documents or instruments evidencing or securing the
Existing Financing, there being no amendments or modifications thereto except as noted on
Exhibit Q hereto; (ii) if not previously delivered, within five (5) Business Days after the
Effective Date hereof, the LLCs shall deliver to Buyer, true, correct and complete copies of each
the Existing Financing Documents listed on Exhibit Q hereto; and (iii) each of the LLCs
shall until Closing (A) fully and timely perform all of their respective payment and other material
obligations under the Existing Financing Documents; (B) not make any voluntary principal
prepayments of the Existing Notes (i.e., no principal payments greater than those mandatory
principal payments presently required by the terms of the Existing Notes); and (C) not join in or
consent to any modifications of the Existing Financing Documents without Buyer’s prior written
consent thereto in each instance which consent may be granted or withheld in Buyer’s reasonable
discretion.




          2.3.5.4 The obligations of the Buyer to proceed to Closing hereunder shall be conditioned upon
Buyer receiving at Closing evidence that the LLCs have paid each of the mortgage payments due and
payable for the month in which Closing occurs and a statement (which may be included as a part of
any loan assignment and/or assumption agreement) from each of the Existing Lenders (the “Existing
Lender Statement”), dated no more than ten (10) Business Days prior to Closing, setting forth the
following with respect to the applicable Existing Financing: (i) the outstanding principal balance
of the applicable Existing Note; (ii) the interest rate payable on the applicable Existing Note and
the latest date to which interest has been paid thereon; (iii) the current balance of the escrow
accounts for real property taxes and insurance premiums, the current balance of the replacement
reserves, the current balance of the tenant improvement and/or leasing commission reserves, and any
other reserve or escrow accounts required to be maintained pursuant to the terms of the applicable
Existing Financing Documents;




22









 








and (iv) the amount of the required monthly payment to each such
escrow or reserve and the latest date to which such payments have been made. The LLCs agree to
reasonably cooperate with Buyer, at no cost to the LLCs (other than their own legal fees), in
obtaining each Existing Lender Statement and otherwise causing the applicable Existing Lender to
permit the FP LLC
Buyers to take title to the Membership Interests, with the Properties remaining subject to the
lien of the applicable Existing Deed(s) of Trust. Buyer shall pay the costs associated with the
assumption of all Existing Financing as and when required, including, without limitation, all
assumption fees, application fees, non-refundable deposit fees or retainers, and all other charges
required to be paid to each Existing Lender and all of each Existing Lender’s legal fees and other
consultant fees, which obligations shall survive Closing or other termination of this Agreement.




     2.4 Termination Prior to Feasibility Period Expiration Date. Buyer shall have the
right, in its sole and absolute discretion, to either proceed to Closing hereunder in accordance
with the terms hereof following the Feasibility Period Expiration Date or to terminate this
Agreement on or before the Feasibility Period Expiration Date. In the event that Buyer has not
given the Seller Representative, on behalf of the Seller Parties, written notice that Buyer intends
to proceed under this Agreement following the Feasibility Period Expiration Date on or before 5:00
p.m., Eastern Standard Time (the “Notice to Proceed”), on the Feasibility Period Expiration Date,
Buyer shall be deemed to have terminated this Agreement, in which event, the Parties shall have no
further liabilities or obligations hereunder, except for such liabilities and obligations that
expressly survive the termination of this Agreement, and the Deposit, together with all accrued
interest thereon, shall be refunded in full to Buyer by Escrow Agent. In the event that Buyer
timely issues the Notice to Proceed to Seller in conformity with this Section 2.4, the Buyer and
the Seller Parties shall proceed to Closing under this Agreement subject to and upon the terms and
conditions hereof, and the Deposit shall be non-refundable except in the event of a failed
condition precedent to Buyer’s obligations to close hereunder or in the event of a default
hereunder by any of the Seller Parties, which continues beyond the expiration of any applicable
notice or cure period.



     2.5 Prorations and Credits.



     2.5.1 Prorated Items. The following items (on an accrual basis) shall be prorated
between the applicable Seller Parties and the Buyer with respect to each of the applicable
Properties as of 12:00:01 a.m., local time, on the Closing Date:



          2.5.1.1 Rents. Rents and other fixed periodic payments under each Lease. No proration
shall be made of any such rents or other payments that have not been actually received from Tenants
as of the Closing Date.




          2.5.1.2 Taxes. All real estate taxes and assessments, general and special (including,
without limitation, the current year’s installment of any bond assessments) and all personal
property taxes with respect to the Properties.




          2.5.1.3 Operating Expenses. For purposes hereof, “Operating Expenses” shall mean all
costs, expenses, charges and fees relating to the ownership, management, operation, maintenance and
repair of the Properties, including, without limitation, all assessments and charges imposed with
respect to the Properties pursuant to any declaration of covenants,





23









 








conditions and restrictions,
water and sewer charges, public telephone and other public utilities, common area maintenance and
utility charges, vault charges, personal property taxes, and periodic charges payable under the
Service Contracts, but not including any costs, expenses, charges or fees that are the direct
responsibility of a Tenant under a Lease. All Operating Expenses shall be prorated between Seller
and Buyer as of the Closing Date based on the actual number of days in the month during which the
Closing Date occurs for monthly expenses, and based on a 365-day year for annual expenses. Seller
shall be responsible for all Operating Expenses attributable to the period before the Closing Date
and Buyer shall be responsible for all Operating Expenses attributable to the period on and after
the Closing Date. To the extent commercially reasonable and practicable, Seller and Buyer shall
obtain billings and meter readings as of the Business Day preceding the Closing Date to aid in the
proration of charges for gas, electricity and other utility services that are not the direct
responsibility of Tenants. If billings or meter readings as of the Business Day preceding the
Closing Date are obtained, adjustments of any costs, expenses, charges or fees shown thereon shall
be made in accordance with such billings or meter readings. If billings or meter readings as of
the Business Day preceding the Closing Date are not available for any utility service, the charges
therefor shall be adjusted at the Closing on the basis of the per diem charges for the most recent
prior period for which bills were issued.




          2.5.1.4 Other Revenue and Expenses. All other recurring operating receipts, recurring
revenues and recurring expenses or charges attributable to the Properties, including (without
limitation) recurring charges under each of the Service Contracts, electric utility charges paid by
Tenants of the Properties to the applicable Seller Parties, utility expenses, water and sewer
rents, or similar charges or fees, inventories of supplies and fuel oil and gas (if applicable),
and accrued but unpaid interest on all Existing Financing, but excluding insurance premiums. The
applicable Seller’s insurance with respect to its respective Properties shall terminate as of
Closing and shall not be assigned to Buyer.




     2.5.2 Credits. At Closing, the applicable Seller Parties shall deliver to Buyer, or
make appropriate adjustments for, all unapplied Tenant security deposits and the like, together
with contractual interest (if any) owed to Tenants, held by each of the LLCs. Pursuant to the
applicable Closing Indemnity Agreement, the applicable LLC and the Buyer shall indemnify, defend
and save harmless the applicable Manager from and against any claims relating to the applicable
LLC’s or the Buyer’s application or holding of such deposits and interest, which the Buyer has
received or for which an adjustment has been made at Closing, from and after Closing, but the Buyer
shall not indemnify any of the Seller Parties for any amount in excess of the sums so delivered or
the amount of such adjustment. Pursuant to the applicable Closing Indemnity Agreement, the
applicable Manager of the applicable LLC shall indemnify, defend and save harmless the applicable
LLC and the Buyer from and against any claims relating to the application or holding of such
deposits and interest by the applicable LLCs prior to Closing or for any claims for deposits that
are not delivered to Buyer or for which an adjustment is not made in favor of the Buyer at Closing.



24









 





     2.5.3 Determination of Prorations and Credits. The prorations and credits provided
for in this Section 2.5 shall be effected through Escrow, based upon:



               (i) In the case of real estate taxes and assessments, the most recent available tax bill for
the applicable Real Property.



               (ii) In the case of all other prorations and credits, a proration statement which Buyer and
the Seller Parties shall jointly prepare and deliver to Escrow Agent on or before the Closing Date.



After taking all such prorations and credits into account, the net amount owing to the Seller
Parties or the Buyer (as the case may be) shall be added to or deducted from the proceeds of the
Purchase Price payable to the Seller Parties at Closing.




     2.5.4 Utility Deposits. At Closing, the FP LLC Buyers shall pay to Seller all utility
deposits and all interest accrued thereon.



     2.5.5 Closing Escrow. At Closing, (1) all operating adjustments between Buyer and the
Seller Parties provided for pursuant to the terms of this Agreement shall be made on the basis of
estimates (except as otherwise set forth above in 2.5.3) using the most current information
available as of the Closing Date; and (2) a suitable escrow (the “Closing Escrow”), the amount and
terms of which shall be reasonably satisfactory to Buyer and the Seller Parties, shall be
established by the Seller Parties and held by the Escrow Agent to provide for payment of utility
charges, operating expenses, contract liabilities accrued, and/or work on the Properties contracted
for by or on behalf of the applicable Seller Parties, that are due and payable by the Seller
Parties pursuant to the terms of this Agreement, but for which final bills are not available at
Closing. Buyer and the Seller Parties agree that within sixty (60) days after the completion of
Closing hereunder, Buyer and the Seller Parties shall make a final settlement of all operating
adjustments to be made pursuant to the terms of this Agreement, and following such final settlement
of Closing adjustments, any sums remaining in the Closing Escrow shall be paid by Escrow Agent to
the Seller Parties.



     2.5.6. Tenant Related Expenses. With respect to all leasing or tenant-related
expenses at the Properties, and provided that Closing occurs, Seller and Buyer intend that, from
and after the Effective Date, Buyer shall solely be responsible for such costs (including, without
limitation, brokerage commissions, tenant improvements, and reasonable legal fees for in-house or
outside counsel), provided that such expenses were not due and owing before the Effective Date.
Buyer shall provide Seller with a credit at Closing for any such post-Effective Date expenses that
are actually paid by Seller. Notwithstanding the foregoing provisions to the contrary, (i) the
applicable Seller Parties shall be responsible for the leasing and tenant-related expenses to be
paid by the applicable Seller Parties as provided on Exhibit T attached hereto and made a
part hereof, which shall be paid or accounted for at Closing; and (ii) Buyer shall be responsible
for the leasing and tenant-related expenses to be paid by the Buyer as provided on Exhibit
T, which shall be paid or accounted for at Closing.



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     2.6 Closing Costs.



     2.6.1 Allocation of Closing Costs. Closing costs shall be allocated between Buyer and
the Seller Parties as follows:



               (i) The Seller Parties shall pay:



                    (A) One-half (1/2) of the fees and expenses of Escrow Agent for administering Escrow;



                    (B) The commission due to Broker on the Closing of the Membership Interests, in accordance
with a separate written agreement between the Seller Parties and the Broker;



                    (C) All costs to satisfy and release of record all liens, monetary encumbrances and judgments
affecting title to the Properties or the Membership Interests and to convey the Properties and the
Membership Interests to the Buyer free and clear thereof, except for the liens of the Existing
Deeds of Trust and the other Existing Financing Documents, and subject to the conditions and
limitations set forth in Section 2.3.4; and



                    (D) All legal fees and consulting fees, if any, incurred by the Seller Parties in connection
with the transaction contemplated by this Agreement.



               (ii) Buyer shall pay:



                    (A) All costs associated with the issuance of the Title Commitments and the Title Policies,
and the cost of acquiring the Buyer’s Survey Updates (if acquired by Buyer);



                    (B) One-half (1/2) of the fees and expenses of Escrow Agent for administering Escrow;



                    (C) All fees, charges and expenses related to (1) Buyer’s financing (if any) for the purchase
of the Membership Interests; and (2) the assumption of all Existing Financing (other than the legal
fees of the Seller Parties);



                    (D) All of the fees and costs (other than legal fees of the Seller Parties) specified in
Section 2.3.5 relating to Buyer’s purchase of the Membership Interests, with the Properties
remaining subject to the lien of the applicable Existing Deed of Trust and the other Existing
Financing Documents;



                    (E) All costs incurred in connection with Buyer’s review of the Existing Title Policies,
Surveys, and Property Document Deliveries, and with Buyer’s due diligence investigations of the
Properties;



                    (F) All legal and consulting fees, if any, incurred by Buyer in connection with the
transaction contemplated by this Agreement; and



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                    (G) All the State and County transfer taxes (if any), recordation taxes and recording charges
payable in connection with the recording of any financing documents for Buyer’s financing (if any)
for the purchase of the Membership Interests.



     2.6.2 Preliminary Closing Statement. At least three (3) Business Days prior to the
Closing Date, Escrow Agent shall prepare and submit to each of Buyer and the Seller Parties
preliminary Closing statements, showing the Parties’ respective amounts of Closing costs, the
Deposit, the net credit due to the Seller Parties or Buyer under Section 2.5 and the net amount of
funds required to be deposited by Buyer in order to effect Closing hereunder.



     2.7 Closing.



     2.7.1 Time and Place. Closing shall take place at the Escrow Agent’s offices (or at
another location in the Washington, D.C. metropolitan area mutually agreed upon by Buyer and the
Seller Parties) on or before the Closing Date, provided that all of the conditions specified in
Section 2.7.2 and Sections 3.3 and 3.4 are satisfied. If Escrow Agent is unable to close Escrow by
the Closing Date in compliance with Section 2.7.2, Escrow Agent shall hold Escrow open and effect
Closing as soon as it is able to do so in compliance with such provision, unless Escrow Agent
receives written demand from either Buyer or the Seller Representative, on behalf of the Seller
Parties, for cancellation of Escrow (in which event, Escrow Agent shall proceed in accordance with
Section 2.8). Neither Party shall be required to attend Closing in person.



     2.7.2 Closing Instructions. On the Closing Date, as soon as:



               (i) The Seller Parties have delivered into Escrow Seller’s Closing Documents, and Buyer has
approved Seller’s Closing Documents as satisfying the requirements of this Agreement; and



               (ii) Buyer has delivered into Escrow the funds required to effect Closing hereunder as
reflected on the final closing statement that has been approved by the Parties and Buyer’s Closing
Documents, and Seller has approved Buyer’s Closing Documents as satisfying the requirements of this
Agreement;



     Escrow Agent shall close Escrow by:



               (iii) Disbursing the funds in Escrow as follows and otherwise in accordance with the final
approved closing statement:



                    (A) To Seller by wire transfer of immediately available federal funds, the net proceeds
payable to Seller pursuant the final approved closing statement; and



                    (B) To Buyer, any funds remaining in Escrow after the foregoing disbursement to Seller and
payment of all of the Closing costs; and



               (iv) Delivering to Buyer the originals (if and to the extent deposited with Escrow Agent) and
the rest of Seller’s Closing Documents; and



27









 





               (v) Delivering to Seller the originals (if and to the extent deposited with Escrow Agent) and
the rest of the Buyer’s Closing Documents; and



               (vi) Delivering to Buyer the executed Title Policies for each of the Properties (or marked up
Title Commitments in a form so that such documents constitute owner’s title insurance policies
binding upon the Title Company for the benefit of Buyer for each of the Properties).



Nothing set forth in this Section 2.7.2 shall negate or modify the obligations of the Parties and
the Title Company to conduct the Closing as a “New York-style” closing, subject to and in
conformity with the terms and conditions of this Agreement.




     2.8 Cancellation of Escrow Without Closing. After the Closing Date, if Closing has
still not occurred, upon receiving a written demand from either Party for cancellation of Escrow,
Escrow Agent shall promptly deliver a copy of such demand to the other Party and shall then proceed
as follows:



               (i) If, by close of business on the fifth (5th) Business Day after Escrow Agent
gives the other Party a copy of such demand for cancellation, Escrow Agent has not received from
such other Party written instructions which conflict in any way with such demand, Escrow Agent
shall cancel Escrow, disburse the Deposit as directed in such demand and return every other item
deposited in Escrow to the Party which deposited the same; or



               (ii) If, by close of business on the fifth (5th) Business Day after Escrow Agent
gives the other Party a copy of such demand for cancellation, Escrow Agent has received conflicting
written instructions from such other Party, Escrow Agent shall take no further actions with respect
to Escrow (other than to continue to invest and reinvest the Deposit as provided in Section 2.1.1)
except (A) in accordance with joint written instructions of the Seller Representative, acting on
behalf of the Seller Parties, and Buyer, or (B) upon advice of Escrow Agent’s legal counsel, in
accordance with a certified copy of the order or judgment of any court; provided, however, that if
the Seller Representative and Buyer have not provided Escrow Agent with joint written instructions
as to the disposition of Escrow (and all items deposited therein) within 60 days after Escrow
Agent’s receipt of such demand for cancellation, Escrow Agent shall have the right (at any time
thereafter) to commence an action in interpleader in the Circuit Court for Montgomery County,
Maryland against the Seller Parties and Buyer and, in connection therewith, to deposit all funds
and other items held in Escrow with the court hearing such action, whereupon Escrow Agent shall be
relieved of all further obligations and duties with respect to Escrow.



Each of Buyer and the LLCs shall share equally, and Buyer and the LLCs, jointly, shall hold
harmless and indemnify Escrow Agent from and against, any costs and expenses incurred by it in
connection with any interpleader action commenced pursuant to clause (ii) above, not to exceed a
total of $5,000.00 in the aggregate. Upon cancellation of Escrow, either pursuant to this Section
or other joint written instructions of the Seller Representative and Buyer, the LLCs and Buyer
shall each pay one-half of Escrow Agent’s reasonable and customary cancellation fees. All notices
and other communications by Escrow Agent under this Section 2.8 shall be given and





28









 








delivered in accordance with Section 3.12.




     2.9 Supplemental Escrow Agreement. Buyer and the Seller Parties shall execute such
supplemental escrow instructions or supplemental escrow agreement as Escrow Agent may reasonably
request, provided the provisions of such supplemental escrow instructions or agreement do not
materially conflict with the provisions of this Agreement. In the event of any conflict between
this Agreement and such supplemental escrow instructions, the supplemental escrow instructions
shall control.



ARTICLE 3

FURTHER AGREEMENTS BETWEEN BUYER AND THE SELLER PARTIES

(OF NO CONCERN TO ESCROW AGENT

EXCEPT AS EXPRESSLY REFERENCED IN ARTICLES 1 OR 2)




     3.1 Items to be Delivered Outside of Escrow.



     3.1.1 Property Document Deliveries. Prior to the Effective Date, each of the LLCs has
either delivered to Buyer, or made available to Buyer at the LLCs’ business/management offices
located in Frederick and Germantown, Maryland, each of the items generally specified in the
schedule of documents (“Property Document Deliveries”) attached hereto as Exhibit L, to the
extent such items exist and are within the Seller Parties’ possession. Buyer hereby acknowledges
that it has already received the Property Document Deliveries.



     3.1.2 Return of Documents; Copies of Buyer Reports. If this Agreement terminates
without Closing for any reason, Buyer shall promptly return to the LLCs each item provided pursuant
to this Section 3.1 and shall diligently undertake either to have delivered to the LLCs or
destroyed every copy, digest or summary made of any such item so delivered by the LLCs. In
addition, if this Agreement terminates without Closing for reasons other than default by the Seller
Parties, Buyer shall deliver to the LLCs copies of all feasibility reports and studies, to the
extent that the same are in Buyer’s possession or control, that have been prepared by Buyer’s third
party professional consultants regarding the Properties. The obligation of Buyer set forth in this
Section 3.1.2 shall survive the termination of this Agreement.



     3.2 Warranties, Representations and Covenants.



     3.2.1 By the Seller Parties.



     A. Each of the Managers (as to itself only and for or in respect of matters relating to that
Manager’s applicable LLC or that LLC’s respective Property or Properties only) hereby warrants,
represents and/or covenants to the Buyer as follows (the representations and warranties of each of
the Managers, in their respective capacities as the Managers of their respective LLCs, that are set
forth in this Section 3.2.1.A being referred to herein collectively as the “Manager’s Property
Representations”):



               (i) The applicable LLC is a limited liability company validly existing and in good standing
under the laws of the state of its formation; is in good standing and qualified to do business in
the jurisdiction where the Property or Properties owned by such LLC



29









 





is located. The applicable LLC
and its respective Manager has full authority, right and power to enter into this Agreement, to
perform each of their respective obligations hereunder and to consummate the transactions
contemplated hereby applicable to it. The applicable LLC and its respective Manager has full
authority, right and power to enter into this Agreement and has caused this Agreement to be duly
executed and delivered to Buyer by an individual who is duly authorized and empowered to do so.
This Agreement and the applicable Seller’s Closing Documents will constitute valid and legally
binding obligations of the Seller, enforceable in accordance with their respective terms, subject
to: (i) judicial principles limiting the availability of specific performance, injunctive relief,
and other equitable remedies, and (ii) bankruptcy, insolvency, reorganization, moratorium or other
laws now or hereafter in effect generally relating to or affecting creditors’ rights.




               (ii) The applicable LLC and its respective Manager has obtained all government or third-party
consents and approvals, except for the consent of the applicable Existing Lender, necessary for the
execution and delivery of this Agreement by the applicable LLC and its respective Manager, to make
this Agreement binding upon the applicable LLC and its respective Manager, and to permit
consummation of the transactions contemplated herein in accordance with the terms of this
Agreement. The execution and performance of this Agreement by the applicable LLC and its
respective Manager do not and will not violate, and are not restricted by, the terms of any other
contract or instrument to which the applicable LLC or its respective Manager is a party, except for
the applicable Existing Financing Documents, or any Law by which the applicable LLC, its respective
Manager or any of the applicable LLC’s Property or Properties is bound.



               (iii) Within the twelve (12) month period prior to the Effective Date hereof, the applicable
LLC or its respective Manager has not received any written notice from any government authority,
agency, officer or insurance company that the current condition, occupancy or use of any of the
applicable LLC’s Properties is not in material compliance with applicable Law or that any
condition or situation exists which requires work to be done to cure a noted violation with respect
to the applicable LLC’s Properties, except for failures to comply (if any) which have been
remedied or will be remedied on or before the Closing Date at the sole cost and expense of the
applicable LLC, subject to the conditions and limitations set forth in Section 3.3.4. The Managers
shall promptly provide Buyer with copies of any such written notice received by any of the LLCs or
the Managers prior to the Closing Date.



               (iv) Exhibit D-1 and Exhibit D-2 is a rent roll which identifies for the
Navistar Property, and the Metro Park North Property, respectively, each existing Lease, indicating
security and other deposits. To the applicable LLC’s Actual Knowledge and the applicable Manager’s
Actual Knowledge, but upon commercially reasonable investigation and inquiry by the applicable LLC
and the applicable Manager, Exhibit D-1 and Exhibit D-2, is true, accurate and
complete as of the date of said rent roll. To the applicable LLC’s Actual Knowledge and the
applicable Manager’s Actual Knowledge, (i) no material default or breach exists under any Lease on
the part of the applicable LLC, as landlord, and no event has occurred or has failed to occur
which, with the passage of time, or the giving of notice, or both, would constitute a default on
the part of the applicable LLC under any of said Leases; and (ii) no monetary default exists under
any Lease on the part of a Tenant, except as otherwise listed on the Aged Delinquencies Report
attached hereto as Exhibit S. To the applicable LLC’s Actual



30









 





Knowledge and the applicable
Manager’s Actual Knowledge, but upon commercially reasonable investigation and inquiry by the
applicable LLC and the applicable Manager, (i) the applicable LLC and the applicable Manager has
not received written notice of any material default by such LLC, as landlord, under any of said
Leases that has not been cured; and (ii) the applicable LLC has not made any commitment to any
Tenants to provide any benefits, services, facilities, or amenities, or to perform repairs or
renovations not specified in the applicable Leases with such Tenants. Except as shown on the
applicable Rent Roll, no Tenant at the applicable Property or Properties has paid any rent in
advance except for the then-current month. Except as provided in Exhibit D-1 or
Exhibit D-2, or as reflected in the applicable Leases, no Tenant of the applicable
Properties has received or is entitled to any rebate, concession, “free rent”, abated rent (in the
nature of an incentive), or other benefit. The LLCs shall not execute new leases with any new
tenant with respect to any vacant space at the Properties except in accordance with the provisions
of Section 3.2.1.A(xvii) hereof. The applicable Manager shall update the rent rolls for each of
the applicable Properties on a monthly basis and shall promptly provide a copy of such updates to
Buyer for each month after the Effective Date until Closing.




               (v) Exhibit G-1 and Exhibit G-2 correctly identifies each existing Service
Contract in effect on the Effective Date and that may be in effect on the Closing Date for the
Navistar Property, and the Metro Park North Property, respectively, and except as disclosed on
Exhibit G-1 or Exhibit G-2, and except for utilities, no other service contract or
management, service, leasing, employment or supply commitments or contracts of any kind or
description are in existence with respect to the applicable Properties (or will be in existence
with respect to the applicable Properties on the Closing Date). The Service Contracts available
for review by Buyer are true and correct copies of the actual Service Contracts in the applicable
LLC’s possession and, to the applicable LLC’s Actual Knowledge and the applicable Manager’s Actual
Knowledge, are the complete written documentation of all of the agreements between the applicable
LLC and third party vendors.



               (vi) Within the twelve (12) month period prior to the Effective Date hereof, the applicable
LLC or its respective Manager has not received (i) any written notice from any governmental agency
having jurisdiction that any of the applicable Real Properties (including land, surface and
subsurface soil, surface water, ground water and improvements) or any part thereof is not presently
in compliance in any material respect with any applicable Environmental Laws, except as reflected
in the Environmental Reports or in the Buyer’s environmental reports to be delivered to the Seller
following the Effective Date hereof; and (ii) any written notice from any adjoining property owners
that its respective real property (including land, surface and subsurface soil, surface water,
ground water and improvements) or any part thereof is not presently in compliance in any material
respect with any applicable Environmental Laws, except as reflected in the Environmental Reports or
in the Buyer’s environmental reports to be delivered to the Seller following the Effective Date
hereof. The applicable LLC and the applicable Manager have no Actual Knowledge of any adverse
environmental conditions existing on the applicable LLC’s Property or Properties as of the
Effective Date, except for those conditions reflected in the applicable Environmental Report(s) and
except for those conditions reflected in Buyer’s environmental reports to be delivered to the
Seller following the Effective Date hereof.



31









 





               (vii) There are no lawsuits, governmental proceedings, notices of action required to be taken,
judgments, causes of action or special assessments, pending or, to the applicable LLC’s Actual
Knowledge and the applicable Manager’s Actual Knowledge, threatened, against the applicable LLC,
whose outcome could adversely affect the operation of the applicable Properties (including, without
limitation, actions for condemnation). There are no bankruptcy, insolvency, rearrangement or
similar actions or proceedings, whether voluntary or involuntary, pending or, to the applicable
LLC’s Actual Knowledge and the applicable Manager’s Actual Knowledge, threatened, against the
applicable LLC.



               (viii) Except as disclosed in the applicable Existing Title Policies and/or in the applicable
Title Commitments and/or in the applicable Leases and/or in the applicable Existing Financing
Documents, (i) the applicable LLC has not entered into any agreement granting or creating any
option or other right to acquire any legal or beneficial ownership interest in the applicable
Property or Properties or any part thereof; and (ii) no person or entity has a legal or beneficial
ownership interest in, or has an option to acquire any legal or beneficial ownership interest in,
the applicable Property or Properties or any part thereof, the basis for which arises out of an
event or circumstance that occurred during the applicable LLC’s period of ownership of its
respective Property and that is not of record among the appropriate land records as of the
Effective Date. The applicable LLC has not owned any interest in any real property since the date
of its formation other than its respective Real Property or Real Properties owned by it as of the
Effective Date.



               (ix) Except for Broker, the applicable LLC and the applicable Manager has not engaged or dealt
with any broker, finder or similar agent in connection with the transaction contemplated by this
Agreement.



               (x) All bills, accounts, invoices and/or claims for labor performed and services and materials
furnished to or for the benefit of the applicable Properties prior to the Closing Date, including
all utility bills, have been or will be paid in full (or for any such unpaid items an escrow shall
be established at Closing); and there are no mechanic’s liens or materialman’s liens filed or, to
the applicable LLC’s Actual Knowledge and the applicable Manager’s Actual Knowledge, threatened, or
past due utility bills on or affecting the applicable Properties. To the applicable LLC’s Actual
Knowledge and the applicable Manager’s Actual Knowledge, but upon commercially reasonable
investigation and inquiry by the applicable LLC and the applicable Manager, the applicable LLC has
filed all federal, state and local tax returns required by applicable law to be filed by such LLC,
including income tax returns and information returns, and has paid all taxes required to be paid by
applicable law in respect of the periods covered by such tax returns, and all such federal, state
and local tax returns filed by the applicable LLC are complete and accurate in all material
respects. To the applicable LLC’s Actual Knowledge and the applicable Manager’s Actual Knowledge,
but upon commercially reasonable investigation and inquiry by the applicable LLC and the applicable
Manager, (i) the balance sheet for the applicable LLC previously delivered to Buyer by the
applicable Manager prior to the Effective Date hereof (each, an “Initial Balance Sheet”) presents,
in all material respects, the assets and liabilities of the applicable LLC as of the date of such
Initial Balance Sheet; and (ii) the applicable LLC has no liabilities which are not reflected, or
reserved against, on such Initial Balance Sheet.



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               (xi) All items of Personal Property, if any, which are included in the applicable Properties
and listed on Exhibit C are owned by the applicable LLC and shall be owned by the
applicable LLC on the date of Closing, free and clear of all liens, debts, charges, and
encumbrances of every nature, kind, and description, except for the lien securing the applicable
Existing Financing, and subject to the replacement rights relating to such personal property as are
set forth herein.



               (xii) To the applicable LLC’s Actual Knowledge and the applicable Manager’s Actual Knowledge,
the applicable LLC holds, and is in compliance in all material respects with, all Permits.



               (xiii) The applicable LLC has no employees for or with respect to the applicable Properties
and all employees providing services to or for the benefit of the applicable Properties are
employees of the applicable LLC’s property management company. The applicable LLC is not a party
to or bound by any currently effective employment contract, deferred compensation agreement, bonus
plan, incentive plan, profit sharing plan, retirement agreement or other employee compensation
agreement or employee benefit plan as defined in the Employee Retirement Income Security Act of
1974, as amended.



               (xiv) Neither the applicable LLC nor the applicable Manager is a “foreign person” within the
meaning of the Internal Revenue Code of 1986, as amended to date (the “Code”), and the transaction
contemplated hereby does not constitute a disposition of a U.S. real property interest by a foreign
person.



               (xv) During the period from the Effective Date to the Closing Date, the applicable LLC shall:



               (A) Maintain its respective Property or Properties in its or their present condition and state
of repair and maintenance (subject to casualty damage and to normal wear and tear and damages by
the elements);



               (B) Subject to the terms of Section 3.2.1.A(xvii) below, continue implementation of its
leasing program for space in its respective Improvements, and use commercially reasonable efforts
to preserve relations with each Tenant; and



               (C) Take commercially reasonable measures consistent with the applicable LLC’s past practices
to preserve and enforce all of its rights and remedies with respect to its respective Property or
Properties and each respective Lease, Service Contract and Permit.



               (D) Not incur or agree to incur any obligations or liabilities, except for the applicable
Existing Financing and obligations or liabilities in the ordinary course of business and/or
contained in the applicable Existing Financing Documents, or incur or agree to incur any debt,
except for debt or liabilities in the ordinary course of business which such liabilities and/or
debt will be fully paid or discharged, as applicable, on or before the Closing Date, and except for
the applicable Existing Financing which will not be discharged on or before the Closing Date, but
will be assumed by Buyer as provided elsewhere in this Agreement;



33









 





               (E) Not declare or effect any repurchase or redemption or other acquisition of the Membership
Interests in the applicable LLC;



               (F) Not mortgage, pledge or subject to a lien or other encumbrance any of the applicable LLC’s
Property or Properties;



               (G) Not sell or transfer its respective Property or Properties; and



               (H) Not waive any rights of material value relating to the period after the Closing Date.



               (xvi) During the period from the Effective Date to the Closing Date, the applicable LLC shall
comply in all material respects with the terms and conditions of all applicable Service Contracts
and other agreements pertaining to the operation, management, leasing, and maintenance of the
applicable Properties. Without the prior written consent of Buyer in each case, which consent will
not be unreasonably withheld, delayed or conditioned, the applicable LLC shall not at any point
during the period from the Effective Date to the Closing Date (i) enter into any new contracts
concerning the operation, management, leasing or maintenance of the applicable Properties or
services thereto which are not cancelable without premium or penalty on thirty (30) days’ notice,
or (ii) make or contract for any maintenance item or capital repair exceeding a cost of $10,000.00,
except in the event of an emergency (in which event, the applicable LLC shall provide Buyer with
prompt notice of any emergency), unless the same is paid for in full before or at Closing. The
applicable LLC shall not modify or terminate an existing applicable Service Contract other than in
a manner consistent with the following restrictions: After the Effective Date, the applicable LLC
may not modify or terminate any applicable Service Contract with respect to any applicable Property
without Buyer’s prior written consent, which Buyer shall not unreasonably withhold, delay or
condition. No approval by Buyer shall be required for any Service Contract entered into by any of
the applicable LLC prior to Closing to the extent the same will be fully performed and paid for by
the applicable LLC before Closing.



               (xvii) From and after the Effective Date, the applicable LLC shall not enter into any new
lease or commitment to lease with respect to any portion of the applicable Properties exceeding
5,000 square feet, without Buyer’s prior written consent, which consent will not be unreasonably
withheld, delayed or conditioned, and with respect to any new lease or commitment to lease any
portion of the applicable Properties equal to or less than 5,000 square feet, which does not
require the approval of Buyer, such leases or commitments to lease, shall be at customary market
rates and on customary terms and conditions. All leases referenced in Exhibit D-1 and
Exhibit D-2, and any new lease or amendment entered into from and after the Effective Date
conforming to the terms of this Section 3.2.1.A(xvii) or with Buyer’s prior written consent shall
be deemed included within the term “Leases” as used herein and the tenants under any such new
leases and/or amendments shall be deemed included within the term “Tenants” as used herein. The
applicable LLC shall comply with the terms and conditions of all applicable Leases in effect at its
respective Property or Properties.



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               (xviii) Each of the representations and warranties given and covenants undertaken by the
applicable LLC and the applicable Manager in Section 2.3.5 above with respect to the applicable
Existing Financing are incorporated into this Section 3.2.1.A(xviii) by this reference. The
applicable LLC shall keep the applicable Existing Financing current at all times until Closing.
The applicable LLC will not further encumber its respective Properties, grant any easements or
rights-of-way with respect to its Properties or in any way affect or alter the title to its
Properties, and shall not engage in any activity or effect any transaction with respect to its
Properties, including, but not limited to, the disposal of any items of personal property or
fixtures which are attached to the realty and are part of its Properties, which is outside the
normal and ordinary course of business of its Properties, without the Buyer’s prior written
consent, which consent may be withheld in Buyer’s reasonable discretion. After the Effective Date
hereof, the applicable LLC shall not remove any fixtures, equipment, furnishings, and other
personalty from the applicable Improvements without replacing them with items of like kind and
quality.



               (xix) During the period from the Effective Date to the Closing Date, the applicable LLC and
the applicable Manager shall provide Buyer, its agents, consultants, accountants and counsel upon
reasonable prior notice, (A) access at all reasonable times to all of the LLC’s contracts, books
and records and other documents relating to the acquisition, construction, occupancy, operation,
leasing, maintenance and repair of the applicable Properties (including, without limitation, such
records maintained by or otherwise in the possession of the applicable LLC’s property manager, but
excluding any appraisals, budgets, internal valuations or attorney-client privileged materials),
with the right to make photocopies thereof at Buyer’s expense, (B) subject to the foregoing
exclusions, access to all such other information regarding the applicable Properties and in the
applicable LLC’s or the applicable Manager’s possession (including copies of such contracts, books
and records and other documents) as Buyer may reasonably request, and (C) subject to the rights of
Tenants to the quiet enjoyment and exclusive possession of their leased premises, access to the
applicable Properties at all reasonable times for purposes of conducting (at Buyer’s expense and
liability) any examinations, surveys and tests as Buyer may reasonably require pursuant to the
terms of this Agreement.



               (xx) The applicable Manager shall promptly furnish to Buyer copies of any and all written
notices that the applicable LLC receives from federal, state or local governmental authorities
having jurisdiction over the applicable Properties, any Board of Fire Underwriters and from any
other body having jurisdiction with respect to the use and occupancy or physical condition of the
applicable Properties.



               (xxi) The applicable Manager shall deliver to Buyer the following additional materials from
time to time while this Agreement is in effect promptly upon the receipt thereof by the applicable
LLC: (a) copies of any notices of violation of law received by the applicable LLC that are issued
with respect to the applicable Properties; (b) copies of any additional applicable Service
Contracts or amendments to applicable Service Contracts; and (c) any assessment or reassessment
notices received for the applicable Properties.



               (xxii) During the period from the Effective Date to the Closing Date, the applicable LLC shall
maintain in force any currently existing policy or policies of fire and extended coverage, hazard
insurance and a liability insurance policy with respect to the



35









 





applicable Properties in an amount
not less than is presently in force. The applicable LLC and the applicable Manager has not
received any written notice from the applicable Existing Lender indicating that the currently
existing insurance policy or policies for the applicable Properties do not comply with the
insurance requirements of the applicable Existing Lender.




               (xxiii) During the period from the Effective Date to the Closing Date, the applicable LLC
shall not, and the applicable Manager shall not and shall cause the applicable LLC not to,
knowingly commit any act or fail to take any required action, other than as required or permitted
hereunder, which would result in any of the warranties or representations contained in this Section
not being materially true or correct as of Closing.



               (xxiv) The assets of the applicable LLC at Closing shall consist only of the following
(collectively, the “LLC Assets”):



                    (A) As to the applicable LLC, its respective Property or Properties (as defined herein),
subject to the applicable Permitted Exceptions; and



                    (B) All real estate tax escrows, fire and casualty insurance escrows, all operating and
replacement reserves and the like, and all other escrows and reserves as may be required by the
applicable Existing Lender (collectively, the “Existing Lender Escrows”), subject to payment and
reimbursement by Buyer to the applicable Seller Parties for the same, as provided elsewhere in this
Agreement.



               (xxv) The liabilities of the applicable LLC at Closing shall consist only of the following
(collectively, the “LLC Liabilities”):



                    (A) Obligations of the applicable LLC under the applicable Service Contracts, and as landlord
under the Leases applicable to such LLC’s Property or Properties, and liabilities shown on the
Initial Balance Sheet delivered to the Buyer by the applicable Manager for the applicable LLC,
including, but not limited to, utilities, accrued real estate taxes, prepaid rents and Tenant
security deposits, subject to the adjustments and prorations between the parties, as provided
elsewhere in this Agreement; and



                    (B) Obligations of the applicable LLC under the applicable Existing Financing, the Permitted
Exceptions and the Permits.



               (xxvi) The applicable LLC will not, as of the Closing Date, own, manage or control, directly
or indirectly, any interest in any corporation, partnership, limited liability company,
association, or other business entity, and the Applicable LLC will not, as of the Closing Date, be
a general partner, limited partner, member, manager or participant in any joint venture,
partnership, or similar arrangement.



               (xxvii) At Closing, the applicable LLC and the applicable Manager shall remake and rewarrant
to Buyer each of the representations and warranties given by the applicable LLC and the applicable
Manager pursuant to the terms of this Section 3.2.1.A (subject to any modifications thereof made
pursuant to Section 3.2.3) pursuant to the applicable Seller’s Closing Certificate.



36









 





     B. Each of the Selling Members hereby warrants, represents and/or covenants to Buyer (as to
only itself, and as to only the LLC or LLCs in which the Selling Member is a member, as
applicable), as follows (the representations and warranties of each of the Selling Members set
forth in this Section 3.2.1.B being referred to herein collectively as the “Selling Member
Representations”):



               (i) The applicable Selling Member (other than T. Richard Butera with respect to Navistar
Investors, LLC) is an entity validly existing and in good standing under the laws of the state of
its formation. The applicable Selling Member owns good and marketable title to its respective
Membership Interests free and clear of all liens, pledges, claims and encumbrances. No Selling
Member has pledged, encumbered, granted an option or right to acquire, assigned, or transferred the
Membership Interests owned by such Selling Member. Except as provided in the LLC Instruments, (i)
no person or entity has an option to acquire such Membership Interests, and (ii) there are no
outstanding rights, options, rights of first refusal or similar rights for the purchase or
acquisition of the Membership Interests owned by the applicable Selling Member in the LLCs.




               (ii) Attached hereto as Exhibit H-1 and Exhibit H-2 is a list of each of the
LLC instruments and amendments for Navistar Investors, LLC, and BP Gude, LLC, respectively,
comprising the applicable LLC operating agreement and articles of organization since the formation
of such LLC (which are referred to herein individually as the “Navistar Investors, LLC Instruments
and the BP Gude, LLC Instruments, respectively, and collectively as the “LLC Instruments”). The
applicable LLC Instruments have not been modified or amended in any respect except as listed on
Exhibit H-1 and Exhibit H-2, as applicable. Prior to the Effective Date, the
applicable Selling Members have delivered to the Buyer true, accurate and complete copies of the
applicable LLC Instruments.




               (iii) Attached hereto as Exhibit B-1 and Exhibit B-2, is a true, accurate and
complete list of all current managers and members of the applicable LLC, and the respective
percentage of Membership Interests owned by each such manager and member.



               (iv) The applicable Selling Member has the power and authority to enter into this Agreement,
to perform its obligations hereunder and to consummate the transactions contemplated hereby,
including, without limitation, to convey the Membership Interests owned by such Selling Member to
the Buyer in accordance with this Agreement. Except for the consent of the applicable Existing
Lender, no consents or approvals of any other third parties are necessary for the applicable
Selling Member to enter into and consummate Closing under this Agreement. This Agreement and the
applicable Seller’s Closing Documents will constitute valid and legally binding obligations of the
applicable Selling Member, enforceable in accordance with their respective terms, subject to: (i)
judicial principles limiting the availability of specific performance, injunctive relief, and other
equitable remedies, and (ii) bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect generally relating to or affecting creditors’ rights.



37









 





               (v) The applicable Selling Member is not a party to any pending or, to the applicable Selling
Member’s Actual Knowledge, threatened, litigation or proceedings relating to any of the applicable
LLC’s Properties, the operation of any of the applicable LLC’s Properties or the activities of the
applicable LLC. There are no bankruptcy, insolvency, rearrangement or similar actions or
proceedings, whether voluntary or involuntary, pending or, to the applicable Selling Member’s
Actual Knowledge, threatened, against such Selling Member.



               (vi) There are no lawsuits, governmental proceedings, notices of action required to be taken,
judgments, causes of action or special assessments, pending or, to the applicable Selling Member’s
Actual Knowledge, threatened, against the applicable Selling Member whose outcome could adversely
affect the ability of the applicable Selling Member to convey its Membership Interests to the Buyer
under this Agreement.



               (vii) The execution and performance of this Agreement by the applicable Selling Member (i)
does not and will not violate the applicable LLC Instruments or the terms of any other contract or
instrument to which the applicable Selling Member is a party or successor party or any Law by which
the applicable Selling Member is bound, other than the applicable Existing Financing Documents,
until the required approvals from the applicable Existing Lender are obtained; and (ii) are not or
will not be restricted by the applicable LLC Instruments once the applicable LLC Instrument
Amendments are executed and delivered by the applicable Selling Member and the FP LLC Buyers.



               (viii) At Closing, the applicable Selling Member shall assign and transfer to the Buyer all
Membership Interests in each applicable LLC owned by such Selling Member pursuant to an Assignment
of Membership Interests. As of the Closing Date, the applicable Selling Member will hold
its respective Membership Interests in the LLCs, as the record owner thereof, free and clear of all
liens, pledges, claims and encumbrances whatsoever, and the respective Membership Interests sold by
the applicable Selling Member will constitute all of the Membership Interests owned by the
applicable Selling Member in the LLCs. The Membership Interests, when sold, assigned and
transferred to Buyer at Closing in accordance with the terms of this Agreement will be free of
restrictions on transfer created by the applicable Selling Member or the applicable LLC, except for
any restrictions on transfer provided in the applicable LLC Instruments and/or the applicable
Existing Financing Documents.



               (ix) At Closing, the applicable Selling Member shall remake and rewarrant to Buyer each of the
representations and warranties given by such Selling Member pursuant to the terms of this Section
3.2.1.B. (subject to any modifications thereof made pursuant to Section 3.2.3) pursuant to the
applicable Seller’s Closing Certificate.



               (x) At Closing, (1) the applicable Selling Member shall irrevocably waive in writing any
claims or causes of action that such Selling Member may have against the LLCs in which such Selling
Member is a member or any of such LLCs’ assets as a result of events occurring prior to and
including the Closing Date; and (2) the applicable LLC shall irrevocably waive in writing any
claims or causes of action that such LLC may have against the Selling Members or any of their
assets as a result of events occurring prior to and including the Closing Date.



38









 





               (xi) At Closing, the applicable Selling Member shall execute a Closing Indemnity Agreement,
pursuant to which the applicable Selling Member shall indemnify, defend and save harmless the Buyer
from and against all loss, cost, damage, expense (including reasonable attorneys’ fees and
litigation costs), liabilities, claims and causes of action arising in respect of any liability of
the applicable Selling Member resulting from the intentional or negligent acts of the applicable
Selling Member or failures to act where the applicable Selling Member was under a duty to act prior
to the Closing Date or in connection with Closing under this Agreement. In the event that any
claim is made against the Buyer after Closing on account of any such liabilities of the applicable
Selling Member, other than the LLC Liabilities, that are covered by the foregoing indemnity, the
applicable Selling Member shall promptly pay or satisfy the same. The indemnity of the applicable
Selling Member set forth in this Section 3.2.1.B(xi) shall be contained in a written
indemnification agreement (a “Closing Indemnity Agreement”) executed by the applicable Selling
Member in favor of the Buyer at Closing, which shall survive Closing for a period of twelve (12)
months following the Closing Date.



               (xii) During the period from the Effective Date to the Closing Date, the applicable Selling
Member shall not knowingly commit any act or fail to take any required action, other than as
required or permitted hereunder, which would result in any of the warranties or representations
given by the applicable Selling Member as contained in this Section 3.2.1.B not being materially
true or correct as of Closing. The applicable Selling Member shall promptly provide Buyer with
copies of any written notices of the threat or institution of any litigation received by such
Selling Member prior to the Closing Date.



               3.2.2 By Buyer. Buyer hereby warrants, represents and covenants to the Seller Parties that:



               (i) FP-LP is a limited partnership validly existing and in good standing under the laws of
Delaware; has full power and authority to enter into this Agreement and to fulfill its obligations
hereunder; has duly authorized this Agreement by all appropriate action; and has caused this
Agreement to be duly executed and delivered to the Seller Parties by an individual who is duly
authorized and empowered to do so. FP Navistar Manager and FP Gude Manager are or will be by
Closing limited liability companies validly existing and in good standing under the laws of the
state of their organization; has full power and authority to enter into this Agreement and to
fulfill its obligations hereunder; has duly authorized this Agreement by all appropriate action;
and has caused this Agreement to be duly executed and delivered to the Seller Parties by an
individual who is duly authorized and empowered to do so. This Agreement and the Buyer’s Closing
Documents will constitute valid and legally binding obligations of the applicable Buyer,
enforceable in accordance with their respective terms, subject to: (i) judicial principles limiting
the availability of specific performance, injunctive relief, and other equitable remedies, and (ii)
bankruptcy, insolvency, reorganization, moratorium or other laws now or hereafter in effect
generally relating to or affecting creditors’ rights. There are no bankruptcy, insolvency,
rearrangement or similar actions or proceedings, whether voluntary or involuntary, pending or, to
the Buyer’s Actual Knowledge, threatened, against the Buyer.



               (ii) To Buyer’s Knowledge, no government or other third-party approvals or consents are
required for the execution and delivery of, or performance of its obligations under, this Agreement
by the Buyer. The execution and performance of this



39









 





Agreement by the Buyer do not and will not
violate, and are not restricted by, any the terms of any other contract or instrument to which any
of the Buyer is a party or any Law by which any of the Buyer is otherwise bound.




               (iii) To Buyer’s Knowledge, there are no lawsuits pending and served against the Buyer or
threatened against the Buyer whose outcome could adversely affect the ability of the Buyer to
purchase the Membership Interests under this Agreement.



               (iv) The Buyer has not engaged or dealt with any broker, finder or similar agent in connection
with the transaction contemplated by this Agreement.



               (v) At Closing, the Buyer and the applicable LLC shall execute a Closing Indemnity Agreement,
pursuant to which the Buyer and the applicable LLC shall indemnify, defend and save harmless the
applicable Selling Members from and against all loss, cost, damage, expense (including reasonable
attorneys’ fees and litigation costs), claims, liabilities and causes of action arising in respect
of any liability of the applicable LLC or the Buyer resulting from the intentional or negligent
acts of the applicable LLC or the Buyer, or failures to act where the applicable LLC or the Buyer
was under a duty to act, on or after the Closing Date or in connection with Closing under this
Agreement. In the event that any claim is made against the applicable Selling Members after
Closing on account of any such liabilities of the applicable LLC or the Buyer that are covered by
the foregoing indemnity, the Buyer and the applicable LLC shall promptly pay or satisfy the same in
accordance with the terms of such Closing Indemnity Agreement. The obligations of the Buyer and
the applicable LLC under such Closing Indemnity Agreement shall survive Closing for a period of
twelve (12) months following the Closing Date.



               (vi) EXCEPT FOR THE WARRANTIES, REPRESENTATIONS, COVENANTS AND INDEMNITIES OF THE SELLER
PARTIES EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN THE SELLER’S CLOSING DOCUMENTS, (1) BUYER’S
PURCHASE OF THE MEMBERSHIP INTERESTS HEREUNDER WILL BE “AS-IS, WHERE-IS, WITH ALL FAULTS”, AND (2)
BUYER WILL BE CONCLUDING THE PURCHASE OF THE MEMBERSHIP INTERESTS HEREUNDER BASED SOLELY ON ITS OWN
INSPECTION AND INVESTIGATION OF THE PROPERTIES AND ON ALL DOCUMENTS RELATED THERETO. WITHOUT
LIMITING THE FOREGOING, BUYER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR
IN THE SELLER’S CLOSING DOCUMENTS, THE SELLER PARTIES HAVE NOT MADE ANY REPRESENTATIONS, WARRANTIES
OR INDEMNITIES ON WHICH BUYER IS RELYING AS TO ANY MATTERS CONCERNING THE PROPERTIES OR THE
MEMBERSHIP INTERESTS. FURTHER, TO THE EXTENT THAT THE SELLER PARTIES OR ANY OF THEIR AGENTS OR
CONSULTANTS HAS PROVIDED TO BUYER ANY ENVIRONMENTAL REPORT OR ANY INFORMATION FROM ANY OTHER
INSPECTION, ENGINEERING OR ENVIRONMENTAL REPORTS CONCERNING ASBESTOS, RADON OR ANY HAZARDOUS
SUBSTANCE, NO REPRESENTATIONS, WARRANTIES OR INDEMNITIES ARE MADE BY ANY OF THE SELLER PARTIES WITH
RESPECT TO THE ACCURACY OR COMPLETENESS, METHODOLOGY OF PREPARATION OR OTHERWISE CONCERNING THE
CONTENTS OF SUCH REPORTS.



40









 





               AS A MATERIAL PART OF THE CONSIDERATION TO THE SELLER PARTIES FOR THE SALE OF THE MEMBERSHIP
INTERESTS AND PROPERTIES, BUYER AND, UPON CLOSING, THE LLCS, HEREBY WAIVE AND RELEASE THE SELLER
PARTIES (AND THEIR RESPECTIVE PARTNERS, MANAGERS, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES AND
AGENTS) FROM, ANY AND ALL CLAIMS (OTHER THAN THOSE RELATING TO BREACH OF WARRANTIES,
REPRESENTATIONS OR COVENANTS BY THE SELLER PARTIES OR FOR INDEMNITIES OF THE SELLER PARTIES SET
FORTH IN THIS AGREEMENT OR IN THE SELLER’S CLOSING DOCUMENTS) THAT ARE BASED DIRECTLY OR INDIRECTLY
ON, ARISE FROM OR IN CONNECTION WITH, OR ARE RELATED TO: (A) ANY PAST, PRESENT OR FUTURE CONDITION
OF THE PROPERTIES, INCLUDING, WITHOUT LIMITATION, THE PRESENCE OF HAZARDOUS SUBSTANCES AT THE
PROPERTIES, (B) ANY AND ALL STATEMENTS, REPRESENTATIONS, WARRANTIES, DETERMINATIONS, CONCLUSIONS,
ASSESSMENTS, ASSERTIONS OR ANY OTHER INFORMATION CONTAINED IN ANY OF THE PROPERTY DOCUMENT
DELIVERIES, OR (C) ANY DEFECT, INACCURACY OR INADEQUACY IN TITLE OF THE PROPERTIES, LEGAL
DESCRIPTION OF THE PROPERTIES, COVENANTS, RESTRICTIONS, ENCUMBRANCES OR ENCROACHMENTS WHICH AFFECT
THE PROPERTIES.



BUYER HEREBY ACKNOWLEDGES AND AGREES THAT (i) BUYER MAY HEREAFTER DISCOVER FACTS DIFFERENT FROM OR
IN ADDITION TO THOSE NOW (OR AS OF THE CLOSING) KNOWN OR BELIEVED TO BE TRUE REGARDING THE
PROPERTIES AND/OR PROPERTY INFORMATION, AND (ii) UPON CLOSING, THE BUYER’S AGREEMENT TO RELEASE,
ACQUIT AND DISCHARGE THE SELLER PARTIES, SUBJECT TO AND UPON THE TERMS AND PROVISIONS SET FORTH
HEREIN, SHALL REMAIN IN FULL FORCE AND EFFECT, NOTWITHSTANDING THE EXISTENCE OR DISCOVERY OF ANY
SUCH DIFFERENT OR ADDITIONAL FACTS; PROVIDED THAT SUCH DIFFERENT OR ADDITIONAL FACTS WERE NOT
INTENTIONALLY OR FRAUDULENTLY CONCEALED BY THE SELLER PARTIES.




     3.2.3 Changes in Representations and Warranties. From and after full execution hereof until
Closing, each Party shall promptly notify the other Parties in writing of any events or
circumstances, of which the notifying Party has Actual Knowledge which have occurred from and after
the Effective Date hereof or which were unknown to the notifying Party as of such date and were
subsequently discovered by the notifying Party, which events or circumstances make any of the
foregoing representations and warranties untrue, incomplete or inaccurate in any material respect.



     3.2.3.1 If at or prior to the Closing, (A) Buyer has Actual Knowledge (whether through its
own efforts, by notice from any Seller or otherwise) that any of the representations or warranties
made herein by any Seller are untrue, inaccurate or incorrect and shall give the Seller
Representative notice thereof at or prior to the Closing, or (B) the Seller Representative shall
notify Buyer that a representation or warranty made herein by any Seller is untrue, inaccurate or
incorrect, then either Party may, in its sole discretion, elect by notice to the other Party to
adjourn the Closing one or more times for up to sixty (60) days in the aggregate in order to allow
the applicable Seller to cure or correct such untrue, inaccurate or incorrect representation or



41









 





warranty. If any such untrue, inaccurate or incorrect representation or warranty is not cured or
corrected by the applicable Seller on or before the Closing Date (whether or not the Closing is
adjourned as provided above), then Buyer, as its sole and exclusive remedy for any and all such
untrue, inaccurate or incorrect representations or warranties, shall elect either (x) to waive such
misrepresentations or breaches of warranties and consummate the transactions contemplated hereby
without any reduction of or credit against the Purchase Price, or (y) to terminate this Agreement
by notice given to the Seller Representative on or before the Closing Date, in which event, this
Agreement shall be terminated and neither Party shall have any further rights, obligations or
liabilities hereunder, except as otherwise expressly set forth herein, and Escrow Agent shall
refund the Deposit to Buyer, and Seller shall reimburse Buyer for its actual third party due
diligence costs incurred in connection with this Agreement, but not to exceed $100,000.00.




     3.2.4 Seller Parties’ Liability for Representations, Warranties and Covenants; Limitation on
Actions for Seller Parties’ Breach of Warranties. Except for the terms and conditions set forth in
Section 3.2.3.1 above, notwithstanding anything to the contrary set forth herein, but subject to
the conditions and limitations set forth below in this Section 3.2.4 and in Section 3.21, each
applicable Seller Party shall be liable for a breach by such Seller Party of its respective
representations and warranties set forth in Section 3.2.1 and for the performance of the covenants
undertaken by such Seller Party as set forth in Section 3.2.1 or elsewhere in this Agreement, and
for the performance of its indemnity obligations set forth in this Agreement and the applicable
Seller’s Closing Documents; provided that the limitations set forth in this paragraph shall not
apply to any breach by a Selling Member of its Selling Member Representations set forth in Section
3.2.1.B(i) through (vii), inclusive, of this Agreement. The representations and warranties in
Section 3.2.1 will be deemed made on and as of the Closing Date with the same force and effect as
if made at that time and the Seller Parties shall execute and deliver the applicable Seller Closing
Certificate as of the Closing Date confirming the representations and warranties contained herein,
subject to any modifications thereof made pursuant to Section 3.2.3. Except for the terms and
conditions set forth in Section 3.2.3.1 above, notwithstanding any other provision of this
Agreement or Seller’s Closing Documents, any claim following the Closing Date based on a breach of
the representations, warranties and covenants in Section 3.2.1 or in a Seller Closing Certificate
shall be forever barred, and Buyer shall bring no action thereon, unless:



          3.2.4.1 Buyer has incurred actual losses as a result of such breach in excess of Fifty
Thousand Dollars ($50,000.00); provided that the foregoing provisions of this Section 3.2.4.1 shall
not apply to any breach by a Selling Member of its Selling Member Representations set forth in
Section 3.2.1.B(i) through (vii), inclusive, of this Agreement; and




          3.2.4.2 Buyer gives the applicable Manager written notice of such claim within six (6) months
following the Closing Date with respect to any breach of the applicable Manager’s Property
Representations; or Buyer gives the applicable Selling Member written notice of such claim within
twelve (12) months following the Closing Date with respect to any breach of the applicable Selling
Member Representations. Each such written notice given pursuant to this Section 3.2.4.2 shall
describe with reasonable particularity in such notice each representation and warranty of the
applicable Seller Parties which Buyer claims to have been breached and the facts on which such
claim is based; and





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          3.2.4.3 Buyer files an action on such claim in a court of appropriate jurisdiction within (A)
eight (8) months following the Closing Date with respect to any breach of the applicable Manager’s
Property Representations; or (B) within fourteen (14) months following the Closing Date with
respect to any breach of the applicable Selling Member Representations; and




          3.2.4.4 (i) Buyer has no Actual Knowledge of the facts constituting such breach prior to
Closing; and (ii) such facts are not otherwise contained or found within (A) the Property Document
deliveries, the Leases, the Service Contracts, the Environmental Reports, the Existing Title
Policies, the LLC Instruments, the Permits, the Permitted Exceptions, the Plans, the Surveys and
the Title Commitments, but only to the extent that such items are actually received by Buyer, or
(B) any of the reports and studies that have been prepared by Buyer’s third party professional
consultants regarding the Properties; and




          3.2.4.5 Such claim is not covered by Buyer’s or the LLC’s insurance policies in effect at the
time of the claim, and if so covered, the applicable Seller Party shall reimburse Buyer or the
applicable LLC for its deductible, not to exceed $10,000.00 per claim, or $50,000.00 in the
aggregate; and provided further, that in no event shall Seller’s aggregate liability to Buyer for
all breaches of the representations set forth in Section 3.2.1 exceed Five Million Dollars
($5,000,000.00), except as otherwise provided below in this Section 3.2.4.5 with respect to a
Selling Member, except that nothing set forth herein shall limit Buyer’s rights and remedies under
Section 3.21 below. Notwithstanding anything to the contrary set forth herein, a Selling Member’s
aggregate liability to Buyer for any breaches by a Selling Member of the Selling Member
Representations set forth in Section 3.2.1B(i) through (vii), inclusive, of this Agreement shall
not be limited pursuant to the provisions of this paragraph; provided that in no event shall any
Selling Member be liable under this Section 3.2.4 for an amount in excess of the total
distributions such Selling Member would be entitled to receive from the applicable LLC if its
respective Property or Properties were sold for the Purchase Price allocated to such Property on
Exhibit P to this Agreement, or Properties and the net proceeds of such sale were
distributed to the Selling Member in conformity with the terms of the LLC Instruments.




Notwithstanding the foregoing provisions to the contrary, the limitations set forth above in this
Section 3.2.4 and set forth below in Section 3.21 shall not apply to any of the applicable Seller’s
indemnity obligations set forth in this Agreement or in the Seller’s Closing Documents (but such
indemnity obligations shall be subject to the conditions and limitations thereon as set forth
elsewhere in this Agreement) and shall not apply to the Seller’s breach of its covenants or
obligations set forth in Sections 3.9 and 3.25 hereof and shall not apply to the extent that Seller
has committed fraud.




     3.2.5 Buyer’s Liability for Representations, Warranties and Covenants; Limitation on Actions
for Buyer’s Breach of Warranties. Notwithstanding anything to the contrary contained herein, but
subject to the conditions and limitations set forth below in this Section 3.2.5 and in Section
3.22, the Buyer shall be liable for a breach by the Buyer of its representations and warranties set
forth in Section 3.2.2 and for the performance of the covenants undertaken by the Buyer as set
forth in Section 3.2.2 or elsewhere in this Agreement, and the performance of Buyer’s indemnity
obligations set forth in this Agreement and the applicable



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Buyer’s Closing Documents. The
representations and warranties in Section 3.2.2 will be deemed made on and as of the Closing Date
with the same force and effect as if made at that time and Buyer shall execute and deliver the
Buyer’s Closing Certificate as of the Closing Date confirming the representations and warranties
contained herein, subject to any modifications thereof made pursuant to Section 3.2.3.
Notwithstanding any other provision of this Agreement or Buyer’s Closing Documents, any claim based
on a breach of Buyer’s representations and warranties in Section 3.2.2 or in Buyer’s Closing
Certificate shall be forever barred, and none of the Seller Parties shall bring any action thereon,
unless:




          3.2.5.1 The Seller Parties have incurred actual losses as a result of such breach in excess
of Fifty Thousand Dollars ($50,000.00); and




          3.2.5.2 The Seller Parties give Buyer written notice of such claim within six (6) months
following the Closing Date, describing with reasonable particularity in such notice, each
representation and warranty of Buyer which the Seller Parties claim to have been breached and the
facts on which such claim is based; and provided further that in no event shall Buyer’s aggregate
liability to the Seller Parties for all breaches of its representations and warranties exceed the
actual damages incurred by the Seller Parties for or in connection with such breach by Buyer; and




          3.2.5.3 The Seller Parties file an action on such claim in a court of appropriate jurisdiction
within eight (8) months following the Closing Date; and




          3.2.5.4 The Seller Parties have no Actual Knowledge of the facts constituting such breach
prior to Closing; and provided further that in no event shall Buyer’s aggregate liability to the
Seller Parties for all breaches of its representations and warranties exceed an amount equal to the
amount of the Deposit.




          The limitations set forth above in this Section 3.2.5 and set forth below in Section 3.22
shall not apply to any of Buyer’s indemnity obligations set forth in this Agreement or in Buyer’s
Closing Documents (but such indemnity obligations shall be subject to the conditions and
limitations thereon as set forth elsewhere in this Agreement) and shall not apply to the Buyer’s
breach of its covenants or obligations set forth in Sections 2.3.1, 3.1.2, 3.9 and 3.25 hereof and
shall not apply to the extent that Buyer has committed fraud.




     3.2.6 Overall Limitation on Liability of Selling Members. Notwithstanding anything in this
Agreement or in the Closing Documents to the contrary, the aggregate liability of the Selling
Members to Buyer and, after Closing, to the LLCs, for any and all claims under this Agreement or
any Closing Document (including, but not limited to, any and all breaches of the Selling Member
Representations and covenants made by the Selling Members, and any indemnification obligations of
the Selling Members) shall be limited to the total distributions the Selling Members would be
entitled to receive in the aggregate from the LLCs if the Properties were sold for the Purchase
Price and the net proceeds of such sale were distributed to the Selling Members in conformity with
the terms of the LLC Instruments. Further, the aggregate liability of each Selling Member with
respect to such claims shall be limited to the total distribution such Selling Member would be
entitled to receive from the applicable LLC if its respective Property or Properties were sold for
the Purchase Price and the net proceeds of such sale were distributed



44









 





to such Selling Members in conformity with the terms of the applicable LLC Instruments.




     3.2.7 Liability of T. Richard Butera. Subject to the terms and conditions set forth in this
Section 3.2.7, T. Richard Butera personally agrees to indemnify and hold harmless Buyer from and
against all direct loss, cost, damage, expense (including reasonable attorneys’ fees and litigation
costs), liabilities, claims and causes of action (collectively, the “Buyer Losses”) arising as a
result of the breach by any Selling Member of the Selling Member Representations set forth in
Section 3.2.1.B (i) through (vii), inclusive, of this Agreement. The indemnification set forth in
this Section 3.2.7 shall be subject to the Buyer’s satisfaction of each of the applicable
conditions set forth in Sections 3.2.4.2, 3.2.4.3, 3.2.4.4(i) and 3.2.4.5 as well as the following
limitations: (a) the Buyer Losses that are the subject of the indemnification set forth in this
Section 3.2.7 shall expressly exclude any and all indirect, consequential and punitive damages that
may be suffered or incurred by the Buyer; and (b) the aggregate liability of T. Richard Butera
under or pursuant to the indemnification set forth in this Section 3.2.7 shall be expressly limited
to the total distributions T. Richard Butera and The Butera LLLP would be entitled to receive in
the aggregate from the applicable LLCs if the applicable Properties were sold for the Purchase
Price allocated to such Properties on Exhibit P to this Agreement and the net proceeds of
such sale were distributed in conformity with the terms of the LLC instruments. T. Richard Butera
hereby represents and warrants to Buyer that he is the general partner of The Butera LLLP, a
Colorado limited liability limited partnership, and that he personally owns a one percent (1%)
general partner partnership interest in The Butera LLLP and a one percent (1%) limited partner
partnership interest in The Butera LLLP. T. RICHARD BUTERA HAS REVIEWED THE TERMS OF THIS AGREEMENT
INCLUDING WITHOUT LIMITATION THE TERMS OF THIS SECTION 3.2.7 WITH COUNSEL OF HIS OWN CHOOSING AND
HAS JOINED IN THE EXECUTION OF THIS AGREEMENT TO EVIDENCE HIS ACKNOWLEDGEMENT AND CONSENT TO THE
TERMS AND PROVISIONS OF THIS SECTION 3.2.7.



     3.3 Conditions Precedent to Buyer’s Obligation. The obligations of the Buyer to close under
this Agreement shall be expressly subject to satisfaction of each of the following conditions
precedent:



     3.3.1 Performance of Seller Parties’ Obligations. Performance by the Seller Parties in all
material respects of their respective obligations under this Agreement to be performed at or before
Closing. The Seller Parties shall have complied with and not be in material breach of any of their
respective covenants contained in Section 3.2.1.



     3.3.2 Accuracy of Warranties and Representations; Compliance with Covenants. Each of the
warranties and representations of the Seller Parties set forth in Section 3.2.1 shall be true and
accurate in all material respects as if made as of the date of Closing, subject only to changes
made in conformity with Section 3.2.3. To the extent that any of such representations and
warranties are expressly limited to the applicable Seller’s Actual Knowledge, satisfaction of this
condition precedent shall require the actual truth of the underlying facts and circumstances which
are the subject of these representations and warranties, without regard to the state of Seller’s
Knowledge about such facts and circumstances. The foregoing notwithstanding, such failure of
condition shall not be deemed to be or create liability for a breach of the applicable Seller’s
representations and warranties contained herein or constitute any other breach hereunder.



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     3.3.3 Satisfactory Title. Title to the each of the Properties shall be insurable pursuant to
the Title Commitments, subject only to the applicable Permitted Exceptions, and the Title Company
shall be prepared to issue Title Policies in the form of the pro-forma title policies reasonably
approved by Buyer on or before the Title/Survey Objection Date.



     3.3.4 Compliance with any Governmental Violations. All written notices of violations of
governmental orders or requirements noted or issued by any public authority having jurisdiction,
and any action in any court against or affecting the Properties which have been received by any of
the Seller Parties, the costs of complying with which exceed Fifty Thousand Dollars ($50,000.00)
and are less than One Hundred Fifty Thousand Dollars ($150,000.00), as reasonably determined by the
Seller Parties and Buyer, shall have been complied with by the Seller Parties and the Properties
shall be free and clear thereof. No part of any of the Properties shall be in violation, in any
material respect, of any governmental laws, ordinances, rules or regulations pertaining to zoning,
use, construction or operation of the Properties, including building, fire and health or similar
type ordinances, codes or regulations, the costs of complying with which exceed Fifty Thousand
Dollars ($50,000.00) and are less than One Hundred Fifty Thousand Dollars ($150,000.00), as
reasonably determined by the Seller Parties and Buyer. The nature, extent, methods and materials
for any corrective work performed by the Seller Parties, in their reasonable discretion, relating
to any of such notices of violation and the parties performing such work shall be subject to
Buyer’s prior approval, which approval shall not be unreasonably withheld, delayed or conditioned.



     3.3.5 Performance of the LLCs’ Obligations under the Leases. The applicable Manager shall
have provided to Buyer an updated rent roll for their respective Properties certified by the
applicable Manager on behalf of the applicable LLC as of a date no more than five (5) Business Days
prior to the date of Closing in the form attached hereto as Exhibit D-1 and Exhibit
D-2, as applicable (the “Final Certified Rent Roll”), showing as of the date of such rent roll
all rebates, concessions, deductions or abatements of rent to which any Tenant is entitled, which
Final Certified Rent Roll shall show no material adverse changes from the Rent Roll for the
Properties delivered to Buyer for the month prior to the month in which Closing occurs.



     3.3.6 Approval of Existing Lenders and Related Matters. (a) Buyer shall have received all
approvals from the Existing Lenders that are required for or in connection with the consummation of
the transactions contemplated by this Agreement, approving the assumption of all Existing Financing
by Buyer at Closing upon the existing terms and conditions as set forth in the Existing Financing
Documents, with no new terms and conditions reasonably unacceptable to Buyer (collectively, the
“Existing Lenders’ Approvals”); (b) Buyer shall have received an Existing Lender Statement from
each Existing Lender; and (c) all other conditions precedent to Buyer’s obligations to close
hereunder relating to the Existing Financing as set forth in Section 2.3.5 hereof shall be
satisfied.



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     3.3.7 LLCs Conditions.



               (i) The assets of the LLCs at Closing shall consist only of the LLC Assets. It is expressly
understood and agreed that all cash or liquid assets of the LLCs shall be retained by, and shall
remain the exclusive property of, the Selling Members. The LLC Assets at Closing shall not include
any cash, securities, certificates of deposit, bank accounts, or other similar assets, whether or
not held by the Existing Lenders.



               (ii) The LLC shall have no liabilities or obligations of any kind or nature at Closing except
for the LLC Liabilities. To the extent that there are liabilities or obligations of the LLC other
than the LLC Liabilities, to the extent that Buyer has expressly agreed in writing to the same, an
adjustment will be allowed at Closing pursuant to this Agreement; provided, however, that if such
adjustment exceeds Fifty Thousand Dollars ($50,000.00), such adjustment shall be approved by Seller
in its sole discretion.



               (iii) Good and marketable title to the Membership Interests shall be vested in the Selling
Members (in accordance with the information contained on Exhibit B-1 and Exhibit
B-2, as applicable, attached hereto), free and clear of all liens, pledges, claims, and
encumbrances whatsoever and restrictions on transfer, except for any restrictions on transfer
provided in the LLC Instrument Amendments and/or in the applicable Existing Financing Documents.



               (iv) For each of the LLCs, the applicable Manager shall provide to Buyer an unaudited updated
balance sheet, certified by the applicable Manager on behalf the applicable LLC, in the same form
as the applicable Initial Balance Sheet dated no earlier than fifteen (15) days prior to the
Closing Date to be delivered to Buyer on or before the Closing Date (each, an “Updated Balance
Sheet”), which Updated Balance Sheet shall show, as of such date, that there have been no material
changes from the assets and liabilities shown on the Initial Balance Sheet for the applicable LLC
other than (a) in connection with expenses incurred by such LLC in the normal and customary course
of business, which LLC operations shall at all times following the Effective Date of this Agreement
be in compliance with the requirements of this Agreement, and (b) the amount of cash or liquid
assets in the applicable LLC, which Buyer agrees that such LLC shall be entitled to distribute to
the Selling Members prior to Closing without adjustment to the Purchase Price.



     3.3.8 Tenant Estoppel Certificates. Estoppel certificates from all Tenants who lease space
within the Improvements shall be received by the Buyer prior to Closing, with no material adverse
changes to the estoppel certificates delivered to such Tenants and no material defaults by the
Landlord or no material monetary defaults by the Tenant being cited therein.



     3.3.9 Legal Opinions. RIP Investments LP shall provide the written opinions of its counsel,
which may be conditioned upon a certificate or certificates from it or its owners regarding factual
matters, and which may contain customary limitations and qualifications, dated as of the Closing
Date and addressed to the Buyer, stating that:




47










 






     (i) RIP Investments LP has the power and authority to sell, assign, and transfer their
respective Membership Interests to Buyer in accordance with the terms and conditions of this
Agreement.



     (ii) RIP Investments LP has the power and authority to execute, acknowledge, seal and deliver
this Agreement and to perform the transactions contemplated by this Agreement to be performed by
RIP Investments LP. All actions have been taken by RIP Investments LP necessary to deliver this
Agreement and to perform the transactions required to be performed by RIP Investments LP. This
Agreement constitutes the legal, valid and binding obligations of RIP Investments LP and is fully
enforceable against RIP Investments LP in accordance with its terms, except to the extent that the
enforceability hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other
laws affecting creditors’ rights generally or by general principles of equity and subject to other
customary qualifications and limitations on enforceability opinions.



     (iii) RIP Investments LP is duly organized, validly existing and in good standing under the
laws of the State of Delaware. All partners of RIP Investments LP, other than individual members,
are duly organized, validly existing and in good standing under the laws of the State of Delaware.



     (iv) The execution and delivery of this Agreement by RIP Investments LP will not result in a
breach or violation of any of the provisions of RIP Investments LP’s organizational documents or
any other agreement or instrument to which RIP Investments LP is a party, other than the applicable
Existing Financing Documents, until the required approvals from the applicable Existing Lender are
obtained.



     (v) Based on the said Certificate(s), RIP Investments LP is not a party to any pending, or to
the actual knowledge of counsel, threatened, litigation or legal proceedings related to the Selling
Members, or the Properties, or this Agreement, and RIP Investments LP is not subject to any
governmental proceedings, judgments, causes of action or special assessments pending, or to the
actual knowledge of counsel, threatened, against RIP Investments LP, the outcome of which could
adversely affect the ability of RIP Investments LP to convey its respective Membership Interests
under this Agreement.



     3.3.10 Buyer’s Closing Documents. Buyer’s Closing Documents, to the extent not attached as
exhibits to this Agreement, shall be subject to and in conformity with the terms and provisions of
this Agreement, and otherwise in form and content reasonably acceptable to Buyer and Seller.



     3.3.11 Certification Letter to Buyer’s Auditor. The Parties hereto acknowledge and agree that
the Buyer’s accounting firm ( the “Auditor”) shall audit the revenues and expenses relating to the
Properties (the “Audit”), which Audit shall be completed by the Auditor on or before November 15,
2004, and in connection with such Audit, the Seller shall cause its property manager, Matan
Property Management, Inc., to execute and deliver an audit certification letter, substantially in
the same form and substance as that certification letter attached hereto as Exhibit E, prior to
Closing. Seller will provide all information reasonably requested by Buyer’s Auditor.



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If any one or more of the conditions specified in this Section 3.3. are not satisfied as of the
Closing Date, then Buyer shall have the option, in its sole discretion, exercised by written notice
to the Seller Representative, to either (i) waive such condition and make full Closing under this
Agreement in accordance with the terms and conditions hereof; or (ii) terminate this Agreement
before Closing on the Closing Date, in which event, the Escrow Agent shall refund the Deposit to
Buyer and the Parties shall be released from all further liability or obligation under this
Agreement, except as otherwise expressly set forth herein, or (iii) extend Closing for a period of
not more than sixty (60) days to allow Seller to utilize commercially reasonable efforts to satisfy
such failed condition; provided that, if Buyer elects to terminate this Agreement pursuant to
clause (ii) above, and the failed condition(s) giving rise to such termination right is reasonably
capable of being cured or satisfied within sixty (60) days after the Closing Date set forth herein
as mutually and reasonably determined by the Seller Parties and Buyer, and an extension of the
Closing Date will not adversely impact in any respect any of Buyer’s financing for the transaction
contemplated by this Agreement, as determined by Buyer in its sole discretion, then the Seller
Parties shall have the right, exercisable by written notice to Buyer, to utilize commercially
reasonable efforts to satisfy such failed condition and, in connection therewith, to extend the
Closing Date to the date that is sixty (60) days after the Closing Date set forth herein (the
“Extended Closing Date”), in which event, if such failed condition(s) is not satisfied on or before
the Extended Closing Date, Buyer shall once again have the rights specified in clauses (i) and (ii)
above. Failure by Seller to satisfy any such failed condition on or before the Extended Closing
Date shall not constitute a default or breach by Seller under this Agreement. Buyer’s election
under clauses (i) or (ii) of this Section 3.3 shall be Buyer’s sole rights in the event any
conditions to Closing are unable to be satisfied unless the failure of such condition to be
satisfied was caused by a breach of this Agreement by Seller, in which event the provisions of
Section 3.21 of this Agreement shall also apply. If Buyer elects to proceed to Closing under
clause (i) above, then once Closing has occurred, all of the foregoing conditions, to the extent
not satisfied at Closing, shall be deemed to have been waived by Buyer.




     3.4 Conditions Precedent to the Seller Parties’ Obligation. The Seller Parties’ obligation to
close under this Agreement shall be expressly subject to satisfaction of each of the following
conditions precedent:



     3.4.1 Performance of Buyer’s Obligations. Performance by the Buyer in all material respects
of its respective obligations under this Agreement to be performed at or before Closing. Buyer
shall have complied with and not be in material breach of any of the covenants contained in Section
3.2.2 hereof.



     3.4.2 Accuracy of Warranties and Representations. Each of the warranties and representations
of Buyer set forth in Section 3.2.2 hereof shall be true and accurate in all material respects as
if made as of the date of Closing, subject to only changes made pursuant to Section 3.2.3. To the
extent that any of such representations and warranties are expressly limited to the Buyer’s Actual
Knowledge, satisfaction of this condition precedent shall require the actual truth of the
underlying facts and circumstances which are the subject of these representations and warranties,
without regard to the state of Buyer’s Knowledge about such facts and circumstances. The foregoing
notwithstanding, such failure of condition shall not be deemed to be or create liability for a
breach of the applicable Buyer’s representations and warranties contained herein or constitute any
other breach hereunder.



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     3.4.3 Existing Financing Releases. Seller shall have received the fully executed and dated
Existing Financing Releases from all Existing Lenders.



     3.4.5 No Adverse Change in Buyer. As of the Closing Date, there shall be no litigation or
administrative agency or other governmental proceeding pending or threatened, which would
materially adversely affect the ability of Buyer to fully comply in all material respects with all
of Buyer’s duties and obligations contained in this Agreement or in any of the Buyer’s Closing
Documents.



     3.4.6 Seller’s Closing Documents. Seller’s Closing Documents, to the extent not attached as
exhibits to this Agreement, shall be subject to and in conformity with the terms and provisions of
this Agreement, and otherwise in form and content reasonably acceptable to Seller and Buyer.



If any of the foregoing conditions is not satisfied (or waived by the Seller Parties in writing),
the Seller Parties shall have the right to terminate this Agreement before Closing on the Closing
Date by written notice of such termination to Buyer and Escrow Agent given at any time prior to the
satisfaction of such condition, in which event, the Escrow Agent shall refund the Deposit to Buyer
and the Parties shall be released from all further liability or obligations under this Agreement,
except as otherwise expressly set forth herein; but once Closing has occurred, all of the foregoing
conditions, to the extent not satisfied at Closing, shall be deemed to have been waived by Seller.



     3.5 Indemnities.



     3.5.1 Buyer’s Activities on the Real Property. Buyer shall hold harmless, indemnify and
defend the Seller Parties from and against any and all claims, causes of action, liabilities and
losses, and expenses related thereto (including reasonable attorneys’ fees), which Seller Parties
incur by reason of any damage to the Properties (or any other property owned by any other person
regardless of whether it is located on the Real Properties or elsewhere) caused by, or any
third-person claim against the Seller Parties arising or asserted to arise out of, any activity of
Buyer, or any of Buyer’s agents, conducted on the Real Properties prior to Closing. Buyer shall,
with reasonable promptness, repair any damage caused to the Properties (or any other property owned
by any other person regardless of whether it is located on the Real Properties or elsewhere) by
Buyer or its agents as a result of any such activity. The limitations on Buyer’s liability set
forth in Section 3.2.5 above and Section 3.22 below shall not apply to the Buyer’s indemnity
obligations set forth in this Section 3.5.1.



     3.5.2 Leases and Service Contracts and General Indemnity. Pursuant to the applicable Closing
Indemnity Agreement, each applicable Manager shall hold harmless, indemnify and defend the
applicable LLC and the Buyer from and against any and all claims, causes of action, liabilities and
losses, and expenses related thereto (including reasonable attorneys’ fees and costs), which the
Buyer incurs by reason of (i) any alleged default or failure to perform an obligation on the part
of the landlord under an applicable Lease or as vendee under an applicable Service Contract based
upon an event or condition occurring (or alleged to have occurred) prior to the Closing Date; and
(ii) any act or omission (where there is a duty to act) by



50









 




the applicable LLC or its respective Manager occurring (or alleged to have occurred) prior to
the Closing Date. Pursuant to the applicable Closing Indemnity Agreement, the applicable LLC and
Buyer shall hold harmless, indemnify and defend the applicable Manager from and against any and
all claims, causes of action, liabilities and losses, and expenses related thereto (including
reasonable attorneys’ fees and costs), which the applicable Manager incurs by reason of (x) any
alleged default or failure to perform an obligation on the part of the landlord under an applicable
Lease or as vendee under an applicable Service Contract based upon an event or condition occurring
(or alleged to have occurred) on or after the Closing Date; and (y) any act or omission (where
there is a duty to act) by the applicable LLC or the Buyer, as applicable, occurring (or alleged to
have occurred) on or after the Closing Date.




     3.5.3 Survival. Notwithstanding any provisions of this Agreement to the contrary, the
provisions of, and the Buyer’s obligations under, Section 3.5.1 shall survive Closing or
termination of this Agreement, as applicable, for a period of three (3) years. Notwithstanding any
provisions of this Agreement to the contrary, the provisions of, and the Parties’ respective
obligations under, Section 2.5.2 and Section 3.5.2 shall survive Closing for a period of twelve
(12) months following the Closing Date, and any indemnity claim by a Party pursuant to Section
3.5.2 and Section 2.5.2 against the other Party shall be forever barred, and a Party shall bring no
action thereon, unless (i) a Party gives the other Party written notice of such indemnity claim
within twelve (12) months following the Closing Date, and the said Party files an action on such
indemnity claim against the other Party in a court of appropriate jurisdiction within fourteen (14)
months following the Closing Date; and (ii) the event or circumstance which gives rise to the
indemnity claim is not covered by such Party’s insurance policies, and if so covered, the
indemnifying Party shall reimburse the indemnified Party for its deductible, not to exceed
$10,000.00 per claim, or $50,000.00 in the aggregate. The indemnifications contained in this
Section 3.5 and Section 2.5.2 shall be set forth in the applicable Closing Indemnity Agreement and
shall run to the benefit of the indemnified Parties.



     3.6 Damage, Destruction or Condemnation.



     3.6.1 Risk of Loss. The risk of loss or damage to each of the Properties by fire or other
casualty prior to Closing is borne by the Seller Parties. The Seller Representative shall give
Buyer prompt notice of any destruction of any part of the any of the Properties or any portion
thereof or the commencement of any condemnation proceedings against any of the Properties or any
portion thereof between the Effective Date and the Closing Date.



     3.6.2 Minor Casualty. If any of the Improvements are destroyed by fire or other casualty
prior to Closing and the estimated cost of repairs as reasonably and mutually determined by Buyer
and the Seller Representative is less than or equal to One Million Dollars ($1,000,000.00) (a
“Minor Casualty”), Closing will occur and at Closing:



          (a) The Buyer shall receive a credit against the Purchase Price in an amount equal to the
aggregate estimated cost of repair of any damage to the Properties remaining unrepaired at Closing,
and any unpaid costs of repairs performed prior to Closing for which Buyer will be responsible, and
the future loss of rental income as a result of the Minor Casualty as reasonably mutually
determined by the Seller Representative and Buyer;



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          (b) Buyer shall accept the Properties and the Membership Interests with the Properties
affected by such Minor Casualty in its damaged state;



          (c) The applicable Manager and Selling Members shall have no obligation to repair or restore
any damaged or destroyed portions of the Properties affected by such Minor Casualty;



          (d) The applicable Manager and Selling Members shall maintain (and at Closing the applicable
LLC’s Assets will not include) all rights to the applicable LLC’s interest in and to all proceeds
of property insurance awards relating to such Minor Casualty and the full right to settle insurance
claims relating thereto (and if such proceeds are delivered to the applicable LLC after Closing,
Buyer shall promptly deliver the same to the Seller Representative, on behalf of the applicable
Manager and Selling Members, which obligation shall survive Closing hereunder); and



          (e) The Seller Parties shall be permitted reasonable access the Property affected by the Minor
Casualty after Closing in connection with the completion by the applicable Manager of the claim
process with the applicable insurance company, having insurance coverage for such Minor Casualty.



     3.6.3 Major Casualty. If any of the Improvements are destroyed by fire or other casualty and
the estimated cost of repairs as reasonably mutually determined by Buyer and the Seller
Representative is more than One Million Dollars ($1,000,000.00) (a “Major Casualty”), then Buyer or
Seller may, as its sole and exclusive remedy, waiving all other remedies, terminate this Agreement
by giving notice to the other Party within ten (10) days after the Major Casualty occurs, in which
event, the Escrow Agent shall return the Deposit to Buyer, and the parties shall have no further
rights, liabilities, or obligations under this Agreement (other than those that expressly survive
termination). If neither Buyer nor Seller, within ten (10) days after the Major Casualty,
terminates this Agreement as provided above, then both Seller and Buyer shall be deemed to have
elected to terminate this Agreement pursuant to clause (i) above. If both Seller and Buyer elect
to proceed to Closing, which election shall be made within ten (10) days after the Major Casualty
occurs, then Closing will occur without reduction in the Purchase Price and:



          (a) At Closing, the applicable Seller Parties shall assign to Buyer all of their respective
interests in all proceeds of property insurance awards relating to such Major Casualty (and the
applicable Seller Parties shall execute all reasonably required assignment or other instruments to
confirm the foregoing), less any reasonable amounts actually paid by the applicable Seller
Parties to repair, restore, or clean up the Properties affected by such Major Casualty (and, the
applicable LLC’s Assets will expressly include all interests of such LLC and/or the applicable
Seller Parties in and to all such proceeds of property insurance awards); and



          (b) At Closing, the applicable Seller Parties shall assign to Buyer all of their respective
interests in all proceeds of rental loss and business interruption insurance applicable to the
period after the Closing Date relating to such Major Casualty (and the applicable Seller Parties
shall execute all reasonably required assignment or other instruments to confirm the foregoing),
and the applicable LLC’s Assets will expressly include all interests of such LLC



52









 




and/or the applicable Seller Parties in and to all such proceeds of rental loss and business
interruption insurance); and




          (c) Buyer will pay and reimburse the applicable Seller the amount of any deductible under the
applicable LLC’s or Seller’s property insurance policy and rental loss and business interruption
insurance, if any, paid by the applicable LLC or Seller before Closing; and



          (d) Buyer will accept title to the Membership Interests and the Properties with the applicable
Property or Properties affected by such Major Casualty in its damaged state; and



          (e) The applicable Seller shall have no obligation to repair or restore any damaged or
destroyed portions of the Property affected by such Major Casualty.



     3.6.4 Condemnation. As a condition precedent to the obligations of the Buyer and Seller to
proceed to Closing hereunder, neither the whole nor any “Significant Portion” (as hereinafter
defined) of any of the Properties shall have been acquired, or shall be about to be acquired, by
authority of any governmental agency or other authority in the exercise of its power of eminent
domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if
any of the Seller Parties shall have received written notice of any such contemplated Taking, Buyer
or Seller may, at its sole option (i) terminate this Agreement and Buyer shall receive a full
refund of the Deposit; or (ii) continue this Agreement, and Buyer shall pay the full Purchase Price
without reduction and accept an assignment of the Seller Parties’ rights in any condemnation award
(whether received prior to or after Closing), and the Parties shall proceed to Closing; provided
that, (A) none of the Seller Parties shall consent to any Taking or agree to any condemnation award
without the prior written consent of Buyer (which consent shall not be unreasonably withheld or
delayed); (B) prior to Closing, the Seller Parties shall provide Buyer with a reasonable
opportunity to participate with the Seller Parties in any negotiations relating to a Taking
affecting any portion of any of the Properties or any condemnation award to be made in connection
therewith; and (C) the Seller Parties shall reasonably cooperate with Buyer after Closing in
prosecuting any claim for a condemnation award arising prior to Closing. As used herein, a
“Significant Portion” of any of the Properties shall be deemed to mean such portion of any Property
as, when taken, would leave remaining a balance of such Property that is commercially unreasonable
for Buyer to use or that would not permit Buyer to realize a reasonable return from the Property
(because of the area so taken or the location of the part so taken in relation to the part not so
taken), as determined by Buyer in its reasonable discretion.



     3.7 Assignment by Buyer. Buyer shall have the right to assign this Agreement to such other
entity in which Buyer has an ownership interest and management control by delivering to the Seller
Representative, on behalf of the Seller Parties, a written assignment and assumption agreement
(“Contract Assignment”) under which the assignee assumes all of Buyer’s obligations under this
Agreement. The Seller Parties shall have the right to approve the form and substance of the
Contract Assignment, which approval shall not be unreasonably withheld, conditioned or delayed.
Except as provided in the foregoing two sentences, Buyer shall have no right to assign or transfer
its rights under this Agreement except with the prior written consent of the Seller Parties, which
the Seller Parties may withhold in their sole and absolute discretion. The Seller Parties shall
have no obligation to respect any assignment in violation of this Section



53









 




and such an assignment shall constitute a material breach of this Agreement on the part of Buyer.
No assignment shall relieve or excuse Buyer of its obligations and liability hereunder. The Seller
Parties’ consent to any one assignment shall not be deemed consent to any other assignment or a
waiver of the requirement for its consent to any other assignment.




     3.8 Termination. Intentionally Deleted.



     3.9 Brokerage Commission. The Seller Parties and Buyer acknowledge that the Broker has acted
as the broker in connection with the transaction contemplated by this Agreement. The Seller
Parties agree to pay the Broker as the total commission for services rendered, the commission
specified in separate listing agreement between the Seller Parties and the Broker. In the event
that Closing shall fail to occur under this Agreement for any reason whatsoever, none of Buyer or
any of the Seller Parties shall have any liability of obligation to the Broker for any commission
or other payment in connection with this Agreement, including payment to the Broker by Seller of
any portion of the Deposit retained by Seller. Except as specified in this Section 3.9, the Seller
Parties and Buyer represent and warrant to each other that no other agent, broker, or finder has
acted for the Seller Parties or Buyer, as applicable, in connection with this Agreement. Each of
the Seller Parties and Buyer shall indemnify, defend and save the other party hereto harmless from
and against any claims for brokerage, commission or finders fees resulting from a breach of the
foregoing representations and warranties of the Seller Parties and Buyer, which obligations of the
Seller Parties and Buyer hereunder shall be joint and several. Nothing contained herein shall be
deemed to make Broker a third-party beneficiary of this Agreement or to create any obligation on
the part of any Party to close the sale and purchase of the Membership Interests for the Broker’s
benefit.



     3.10 Post-Closing Prorations and Adjustments; Possession. The Parties shall make the
following additional prorations and settlements:



     3.10.1 Delinquent Rents. Any and all rents which are past due at Closing shall not be
adjusted; Buyer shall have no obligation to collect such past-due rents but for a period of twelve
(12) months after Closing, shall reimburse the applicable Seller Parties for such past-due rents
when, as and if collected, net of reasonable costs of collection; provided that, there shall be no
costs of collection for any past due rents collected within sixty (60) days after Closing), it
being understood that Buyer shall not be deemed to have collected such arrearage attributable to
the period prior to Closing until such tenant is current in the payment of rentals accruing on or
after Closing and Buyer shall have recovered all reasonable costs of collection. The applicable
Seller Party shall retain the right after Closing to sue for and collect any rents or other amount
due under a Lease for a period ending before Closing (but in no event shall a Seller Party have the
right to sue any such Tenant for eviction), and Buyer shall reasonably cooperate with the
applicable Seller Party, at no cost to Buyer, in its efforts to collect any such amount. During the
period of the first sixty (60) calendar days after the Closing Date, the Seller Parties shall not
take any action to sue for or collect any rents or other amounts due and owing under a Lease for a
period prior to the Closing Date, but after the expiration of said sixty (60) day period the
applicable Seller Party may at any time or times take such actions as are permitted by the terms of
this Section 3.10.1. The applicable Seller Party shall advise Buyer in writing of the filing of
any law suit for the collection of rents or other amount due under a Lease, as described in the
immediately preceding sentence, and shall keep Buyer reasonably informed of the status of the



54









 




proceedings in such a suit during the course thereof. After the twelve (12) month period
following the Closing Date, Buyer shall have no further obligations to remit rents owed to Seller.




     3.10.2 Real Estate Taxes and Assessments; Utility Charges. If Closing prorations of real
estate taxes and assessments are based on other than the current year’s tax bill, within thirty
(30) days after such bill is issued to Buyer, Buyer shall recompute such proration. If such
recomputation results in a larger proration credit to the Seller Parties, Buyer shall pay to the
Seller Parties the additional amount due the Seller Parties within such thirty (30) days. If such
recomputation results in a larger proration credit to Buyer, the Seller Parties shall pay Buyer the
additional amount due Buyer within thirty (30) days after receiving Buyer’s written recomputation
of such proration, accompanied by a copy of such tax bill. Any utility rebate received by Buyer
after Closing for the period prior to the Closing Date which has not already been paid or
reimbursed by Buyer shall be promptly paid over to the Seller Parties which obligation shall
survive Closing hereunder.



     3.10.3 Remittal of Post-Closing Receipts to Buyer. The Seller Parties shall immediately remit
to Buyer each check or other payment which any of the Seller Parties receives after Closing on
account of rent or other amounts due under any Lease for any period ending after Closing. The Buyer
shall immediately remit to the Seller Representative, on behalf of the Seller Parties, each check
or other payment which the Buyer receives after Closing on account of rent or other amounts due
under any Lease for any period prior to Closing.



     3.10.4 Determinations of Post-Closing Prorations and Adjustments. Except where expressly
provided otherwise, Buyer shall make the required determinations and computations of all
post-Closing prorations and other adjustments under this Section 3.10 (the “Post-Closing
Prorations”) and shall provide the Seller Parties with a reasonably detailed written summary of
each Post-Closing Proration, concurrently with or prior to making any payment to or requesting any
payment from Seller under this Section 3.10 with respect thereto. The Seller Parties shall have
the right after reasonable prior notice to Buyer to audit all of Buyer’s books and records
pertaining to the Post-Closing Prorations. For these purposes, Buyer shall allow the Seller
Parties’ designated representatives access to such books and records, at the Properties or Buyer’s
principal place of business, as applicable, at any time during normal business hours and after
reasonable prior notice, and the Seller Parties shall have the right to make copies of such books
and records (and the right to use Buyer’s photocopying equipment to make such copies, paying Buyer
its actual out-of-pocket cost for such copying).



     3.10.5 Possession. The Seller Parties agree to give possession and occupancy of the
Properties in their entirety to Buyer at the time of Closing, free and clear of all leases,
tenancies, and occupancies except for the Leases and as otherwise herein permitted. In the event
that the Seller Parties shall fail so to do, the Seller Parties shall be and become tenants by
sufferance of Buyer, and the Seller Parties hereby waive all notice to quit as provided by the
applicable laws of the governing jurisdictions.



     3.11 Section 1031 Exchange. Upon request of any Seller (herein the “Exchangor”) to be made
not later than five (5) days prior to Closing, Buyer agrees to reasonably cooperate with the
Exchangor (at their sole cost and expense) in structuring the purchase and sale of the Membership
Interests as contemplated by this Agreement as part of a like-kind exchange



55









 




pursuant to Section 1031 of the Code. Buyer agrees to take such steps and execute such documents
(at Exchangor’s sole cost and expense) as may be reasonably required by Exchangor’s in order to
substitute a qualified intermediary (within the meaning of the Code) to act in the place of the
Exchangor. Buyer shall not be required to incur any expense, to assume any liability, to provide
any deposit or other security or to permit Exchangor to use the Deposit in connection with such
like-kind exchange, or to be in the chain of title of any exchange property. The like-kind
exchange shall not reduce, diminish or adversely affect Exchangor’s rights or remedies under this
Agreement in any respect, nor shall the consummation of the exchange cause any delay in the
Closing. Buyer will have no responsibility or obligation for any tax incidents or consequences in
connection with the exchange.




     3.12 Notices. Except in the case (if any) where this Agreement expressly provides for an
alternate form of communication, any notice, consent, demand or other communication to be delivered
to a Party hereunder shall be deemed delivered and received when made in writing and transmitted to
the applicable Party either by receipted courier service, recognized overnight courier service, or
by the United States Postal Service, first class registered or certified mail, postage prepaid,
return receipt requested, or by electronic facsimile transmission (with a confirmatory copy
currently transmitted by one of the other permitted means of delivery as described herein) (“FAX”),
at the address or addresses indicated for such Party below (and/or to such other address as such
Party may from time to time by written notice given in conformity with this Section 3.12 designate
to the other):



	 	 	 
	If to any of
	 	 
	the Seller Parties:

	 	Navistar Investors, LLC
	

	 	BP Gude, LLC
	

	 	c/o Matan Property Management, Inc.
	

	 	4600 Wedgewood Boulevard
	

	 	Suite A
	

	 	Frederick, Maryland 21703
	

	 	Attention: Mark C. Matan
	

	 	Fax No.: 301-694-9214
	

	 	Phone: 301-694-9200
	

	 	Email: MarkMatan@aol.com (for informational purposes only)
	 
	 	 
	with a copy to:

	 	Philip D. Topper, Jr., LLC
	

	 	110 North Court Street
	

	 	Frederick, Maryland 21701
	

	 	Attention: Philip D. Topper, Jr., Esq.
	

	 	Fax No.: 301-696-0858
	

	 	Phone: 301-696-9780
	

	 	Email: PhilTopper@aol.com (for informational purposes only)






56









 






	 	 	 
	If to Buyer:

	 	First Potomac Realty Trust
	

	 	7200 Wisconsin Avenue, Suite 310
	

	 	Bethesda, Maryland 20814
	

	 	Attention: Nicholas R. Smith
	

	 	Fax No.: 301-986-5554
	

	 	Phone: 301-986-9200
	

	 	Email: nsmith@first-potomac.com (for informational purposes only)
	 
	 	 
	with a copy to:

	 	Linowes and Blocher, LLP
	

	 	7200 Wisconsin Avenue, Suite 800
	

	 	Bethesda, MD 20814
	

	 	Attention: Richard M. Zeidman, Esq.
	

	 	Fax No.: 301-654-2801
	

	 	Phone: 301-961-5136
	

	 	Email: rzeidman@linowes-law.com(for informational purposes
only)





Notices given in conformity with this Section 3.12 shall be deemed delivered and received: (A) on
the date of delivery, if delivery is made by commercial courier or recognized overnight courier or
by FAX transmission and is completed before 5:00 pm recipient’s local time on a Business Day, as
evidenced by courier receipt or by the transmission log sheet generated by the sending FAX machine;
(B) if tendered for delivery by commercial courier or recognized overnight courier between 9:00 am
and 5:00 pm (recipient’s local time) on a Business Day and refused, then on the date of such
attempted delivery and refusal, as evidenced by courier receipt; and (C) three (3) Business Days
after being deposited with the United States Postal Service by first class registered or certified
mail as required by this Section 3.12.




     3.13 Binding Effect. Except as otherwise expressly provided herein, this Agreement shall bind
and inure to the benefit of the Parties and their respective heirs, successors and permitted
assigns. Other than the Parties hereto, nothing contained in this Agreement shall be deemed to
make any person or entity a third-party beneficiary of this Agreement.



     3.14 Entire Agreement; Modification; Severability. This Agreement constitutes the entire
agreement between the Parties pertaining to the subject matter hereof and supersedes all prior
agreements, understandings and representations of the Parties with respect to the subject matter
hereof (including, without limitation, any letter of intent or other such written proposal). This
Agreement may not be modified, amended, supplemented or otherwise changed, except by a writing
executed by both Parties. If any term, covenant, condition, provision or agreement herein
contained is held to be invalid, void or otherwise unenforceable by any court of competent
jurisdiction, the fact that such term, covenant, condition, provision or agreement is invalid, void
or otherwise unenforceable shall in no way affect the validity or enforceability of any other term,
covenant, condition, provision or agreement herein contained.



     3.15 Captions. Article and section headings used herein are for convenience of reference only
and shall not affect the construction of any provision of this Agreement.



57









 





     3.16 Interpretation. Each Party acknowledges that it and its legal counsel have participated
substantially in the drafting of this Agreement and agree that in the interpretation and
construction of this Agreement, no ambiguity, real or apparent, in any provision hereof shall be
construed against either Party by reason of the role of such Party or its counsel in the drafting
of such provision.



     3.17 Mutual Cooperation; Further Assurances. The Parties shall cooperate with each other as
reasonably necessary to effect the provisions of this Agreement, shall use reasonable and good
faith efforts to satisfy conditions to Closing and, at and after Closing, shall each execute and
deliver such additional instruments or other documents as the other may reasonably request to
accomplish the purposes and intent of this Agreement; provided, however, that nothing in this
Section shall be deemed to enlarge the obligations of the Parties hereunder or to require either
Party to incur any material expense or liability not otherwise required of it hereunder.



     3.18 Exhibits. Each of the exhibits attached hereto is hereby incorporated herein to the same
extent as if set forth herein in full.



     3.19 Counterparts; Facsimile Signatures. This Agreement, and any amendment hereto, may be
executed in any number of counterparts and by each Party on separate counterparts, each of which
when so executed and delivered shall be deemed an original and all of which taken together shall
constitute but one and the same instrument. Any party may execute this Agreement by delivery to
the other party of a facsimile copy hereof evidencing such party’s signature. In any such case the
party executing by facsimile shall promptly thereafter provide a signed original counterpart hereof
to the other parties. This Agreement shall not be binding until delivery of an original counterpart
but upon such delivery the Effective Date shall become the date of the delivery of the facsimile.



     3.20 Governing Law. This Agreement shall be deemed to be an agreement made under the laws of
the State of Maryland and for all purposes shall be governed by and construed in accordance with
such laws.



     3.21 Remedies for Breach by Seller Parties. In the event that any of the Seller Parties shall
fail to perform their respective obligations hereunder, including, but not limited to, to make full
Closing in accordance with the terms hereof, Buyer may (i) enforce specific performance by the
Seller Parties of their respective obligations hereunder, including, but not limited to, to convey
the Membership Interests to Buyer in accordance with this Agreement, and, in connection therewith,
enforce other non-monetary equitable remedies, including injunctive relief, with the Deposit
remaining in Escrow pending the resolution of such specific performance action; or (ii) terminate
this Agreement by giving notice to the Seller Parties, in which event the Escrow Agent shall return
the Deposit to Buyer, and Seller shall reimburse Buyer for its actual third party due diligence
costs incurred in connection with this Agreement, but not to exceed $100,000.00, and except as set
forth in this Section 3.21, the parties shall have no further rights, liabilities, or obligations
under this Agreement (other than those that expressly survive termination) of this Agreement; or
(iii) pursue the applicable Seller Parties for actual damages suffered or incurred by Buyer as a
result of such breach by the Seller Parties (expressly excluding indirect, consequential and
punitive damages); provided that, (1) Buyer shall make an



58









 




election of the remedies available to Buyer pursuant to this Section 3.21 within sixty (60) days
after the date that Buyer obtains Actual Knowledge of the breach of the obligations by the Seller
Parties giving rise to such election of remedies; (2) Buyer’s actual damage claim pursuant to this
Section 3.21 shall in no event exceed the total distributions the applicable Selling Member would
be entitled to receive from the applicable LLC if its Property or Properties were sold for the
Purchase Price allocated to such Property or Properties as set forth on Exhibit P attached
hereto and the net proceeds of such sale were distributed to the Selling Member in conformity with
the terms of the applicable LLC Instruments; and (3) Buyer may only pursue the remedy of actual
damages pursuant to this Section 3.21 in the event that (A) in violation of this Agreement, an LLC
sells, pledges or encumbers any of its Properties, or a Selling Member sells, pledges or encumbers
its Membership Interests, and the remedy of specific performance is not available to Buyer, or (B)
any of the Seller Parties has committed fraud. The provisions of this 3.21 shall be Buyer’s sole
and exclusive remedies for any breach of the obligations by the Seller Parties of the terms of this
Agreement, and Buyer hereby waives all other remedies. Notwithstanding any provision to the
contrary set forth herein, but subject to the conditions and limitations set forth in Section
3.2.3.1 and Section 3.2.4, nothing set forth herein shall limit or impair any remedies that may be
available to Buyer for or in connection with a breach by any of the Seller Parties of their
respective representations and warranties set forth above in Section 3.2 or in connection with any
post-closing indemnities or other post-closing obligations of the Seller Parties that are expressly
set forth herein or in any of the Seller’s Closing Documents.




     3.22 LIQUIDATED DAMAGES AND LIMITATION ON REMEDIES FOR BREACH BY BUYER. IF THE BUYER IN
BREACH OF THIS AGREEMENT FAILS TO CLOSE OR TO PERFORM ANY OTHER OBLIGATION REQUIRED OF IT PURSUANT
TO THE TERMS OF THIS AGREEMENT, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE SELLER PARTIES
SHALL, AS THEIR SOLE AND EXCLUSIVE REMEDY ON ACCOUNT OF SUCH FAILURE AND IN CONSIDERATION OF THEIR
WITHDRAWAL OF THE PROPERTIES FROM THE MARKET DURING THE TERM OF THIS AGREEMENT, BE ENTITLED TO
TERMINATE THIS AGREEMENT AND TO RECEIVE AND RETAIN, AS LIQUIDATED DAMAGES (AND NOT AS A PENALTY),
THE ENTIRE DEPOSIT; AND THE SELLER PARTIES SPECIFICALLY WAIVE ANY RIGHT SPECIFICALLY TO ENFORCE THE
OBLIGATIONS OF THE BUYER HEREUNDER TO PURCHASE THE MEMBERSHIP INTERESTS OR FOR MONETARY DAMAGES.
THE PARTIES ACKNOWLEDGE AND AGREE THAT:



     3.22.1 THE WRONGFUL FAILURE BY THE BUYER TO CLOSE OR TO PERFORM ANY OTHER OBLIGATION REQUIRED
OF IT PURSUANT TO THE TERMS OF THIS AGREEMENT WILL CAUSE THE SELLER PARTIES TO INCUR LOSSES AND
OTHER DAMAGES IN AN AMOUNT THAT WOULD BE EXTREMELY DIFFICULT TO ASCERTAIN.



     3.22.2 THE DEPOSIT BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES WHICH THE PARTIES ESTIMATE
THE SELLER PARTIES WILL SUFFER BY REASON OF THE BUYER’S WRONGFUL FAILURE TO CLOSE AND IS NOT AN
UNREASONABLE AMOUNT OF LIQUIDATED DAMAGES UNDER THE CIRCUMSTANCES EXISTING AT THE TIME THIS
AGREEMENT IS MADE.



59









 





     3.22.3 SUCH LIQUIDATED DAMAGES ARE ALSO REASONABLE CONSIDERATION FOR THE SELLER PARTIES’
AGREEMENT TO LIMIT THEIR REMEDIES AGAINST THE BUYER FOR SUCH A FAILURE TO CLOSE OR TO PERFORM ANY
OTHER OBLIGATION REQUIRED OF IT PURSUANT TO THE TERMS OF THIS AGREEMENT.



     3.22.4 THE BUYER HAS FULLY CONSIDERED THE PROVISIONS OF THIS SECTION 3.22 AND HAS CONSULTED
WITH ITS LEGAL COUNSEL WITH RESPECT THERETO.



     3.22.5 THE FOREGOING SECTIONS SHALL NOT, HOWEVER, (i) APPLY IN THE EVENT BUYER, OR ANYONE OF
THEM, HAS COMMITTED FRAUD, OR (ii) LIMIT THE SELLER PARTIES’ RIGHTS AND REMEDIES TO ENFORCE
OBLIGATIONS OF BUYER UNDER SECTIONS 3.1.2, 3.5.1, 3.9 AND/OR 3.25, OR OF THE BUYER AS MAY BE SET
FORTH ELSEWHERE IN THIS AGREEMENT OR IN THE BUYER’S CLOSING DOCUMENTS, PROVIDED THAT IN NO EVENT
SHALL THE AGGREGATE LIABILITY OF THE BUYER TO THE SELLER PARTIES FOR ALL SUCH BREACHES EXCEED
THE ACTUAL DAMAGES INCURRED BY THE SELLER PARTIES FOR OR IN CONNECTION WITH SUCH BREACH BY THE
BUYER.


Any attendance or appearance at Closing by either party shall not nullify or void this provision
for payment of liquidated damages as Seller’s sole remedy.




     3.23 Recording. Neither this Agreement nor any notice or memorandum hereof shall be recorded
in any public record. A violation of this prohibition shall constitute a material breach of this
Agreement.



     3.24 TIME OF THE ESSENCE. TIME IS OF THE ESSENCE OF THIS AGREEMENT, AND OF EACH COVENANT,
AGREEMENT AND CONDITION REPRESENTED HEREOF THAT PROVIDES FOR NOTICE TO BE GIVEN OR ACTION TAKEN ON
A SPECIFIC DATE OR WITHIN A SPECIFIED PERIOD OF TIME.



     3.25 Confidentiality. From and after the Effective Date, the Parties and each of their
respective representatives shall hold in strictest confidence the terms of this transaction, the
contents of all items delivered to Buyer pursuant to Section 3.1.1, and all data and information
obtained with respect to the Properties, the Seller Parties or the Buyer or their respective
businesses, whether obtained before or after the Effective Date, and shall not disclose the same to
others; provided, however, that it is understood and agreed that each of the Parties may disclose
such data and information to employees, consultants, accountants, attorneys, existing and
potential, members, partners, investors or lenders of the Parties and as otherwise required to
comply with applicable law or to enforce the terms and provisions of this Agreement. In the event
of a breach or threatened breach by any Party or its respective agents or representatives of this
Section 3.25, the non-defaulting party hereunder shall be entitled to an injunction restraining the
defaulting party hereunder from disclosing, in whole or in part, such confidential information.
Nothing herein shall be construed as prohibiting the Parties from pursuing any other available
remedy at law or in equity for such breach or threatened breach. Prior to Closing, Buyer and the
Seller Representative shall, at their option, confer and agree on a press release to



60









 




be issued jointly by Buyer and the Seller Parties disclosing the transaction and the appropriate
time for making such release. Neither Buyer nor the Seller Parties shall issue any press releases
with respect to the transaction contemplated in this Agreement without the prior written approval
of the other Party. The provisions of this Section 3.25 shall survive Closing or the earlier
termination of this Agreement for a period of one (1) year. The obligation of confidentiality by
the Parties and their respective representatives as set forth in this Section 3.25 shall not apply
to any data and information with respect to the Properties or the LLCs which is a matter of public
record or otherwise in the public domain.




     3.26.1 Terrorism/Patriot Act. Neither Buyer (nor any of Buyer’s affiliates) is
subject to sanctions of the United States government or in violation of any federal, state,
municipal or local laws, statutes, codes, ordinances, orders, decrees, rules or regulations
relating to terrorism or money laundering, including, without limitation, Executive Order No. 13224
on Terrorist Financing, effective September 24, 2001 (the “Executive Order”) and the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001 (Public Law 107-56, the “Patriot Act”). Neither Buyer nor any Buyer affiliate is a
“Prohibited Person,” which term is defined as follows:



     (i) a person or entity that is listed in the Annex to, or is otherwise subject to the
provisions of, the Executive Order;



     (ii) a person or entity owned or controlled by, or acting for or on behalf of, any person or
entity that is listed in the Annex to, or is otherwise subject to the provisions of, the Executive
Order;



     (iii) a person or entity with whom Seller is prohibited from dealing or otherwise engaging in
any transaction by any terrorism or anti-money laundering Law, including the Executive Order and
the Patriot Act;



     (iv) a person or entity who commits, threatens or conspires to commit or supports “terrorism”
as defined in the Executive Order; or



     (v) a person or entity that is named as a “specially designated national and blocked person”
on the most current list published by the U.S. Treasury Department Office of Foreign Asset Control
at its official website, http://www.treas.gov/ofac/tllsdn.pdf or any replacement website or other
replacement official publication of such list.



     3.26.2 Neither Buyer nor any affiliate of Buyer is or will (i) conduct any business or
engage in making or receiving any contribution of funds, goods or services to or for the benefit of
any Prohibited Person, (ii) deal in, or otherwise engage in, any transaction relating to any
property or interest in property blocked pursuant to the Executive Order, or (iii) engage in or
conspire to engage in any transaction that evades or avoids, or has the purpose of evading or
avoiding, or attempts to violate, any of the prohibitions set forth in the Executive Order or the
Patriot Act.



     3.26.3 Buyer shall deliver to Seller any certification or other evidence reasonably
requested from time to time by Seller confirming Buyer’s compliance with the provisions this
Section 3.26.



61









 





     3.26.4 The Buyer’s representations and warranties set forth in this Section 3.26 shall survive
the Closing or termination of this Agreement



     3.27 Montgomery County, Maryland Disclosures. The following disclosures are made
pursuant to applicable law in Montgomery County, Maryland, with respect to those Properties which
are located therein:



     3.27.1 Buyer acknowledges that:



     (i) Buyer has been given an opportunity to review the applicable county master plan and
municipal land use plan and any adopted amendment(s) to each and approved official maps showing
planned land uses, roads and highways, parks and other public facilities affecting the property
contained in the plan;



     (ii) Seller has informed Buyer that amendments affecting the plan may be pending before the
planning board or the county council or a municipal planning body;



     (iii) Buyer has reviewed each plan and adopted amendment, or Buyer has waived the right to
review each plan and adopted amendment; and



     (iv) Buyer understands that, to stay informed of future changes in county and municipal land
use plans, it should consult the planning board and appropriate municipal planning body.


Buyer also acknowledges that, in accordance with applicable law, it has been advised of the
relative location of any airport or heliport that exists within a five-mile radius of such
Properties. Buyer acknowledges that it is aware that the applicable plan or general plan for
Montgomery County is available at the Maryland National Capital Park and Planning Commission and
that at no time did Seller explain to Buyer the intent or meaning of such a plan, nor did Buyer
rely on any representations made by or on behalf of Seller or any of Seller’s agents or affiliates
pertaining to the applicable master plan or general plan.




     3.27.2 Notice and Disclosure of Availability of Sewage Disposal System in Designated
Areas.



     (i) Buyer is hereby given notice, pursuant to the Montgomery County Code, of the obligation of
Seller, or Seller’s duly authorized agent, to disclose to Buyer any information known to Seller as
to (i) whether any of such Properties is connected to, or has been approved for connection to, a
public water and sewer system, and if not, the source, if any, for potable water for any of such
Properties, whether an individual sewage disposal system has been constructed on any of such
Properties, or approved for construction; (ii) the water and sewer service area category or
categories that currently applies to any of such Properties and a brief explanation of how each
category affects the availability of water and sewer service; (iii) any recommendations in the
water and sewer comprehensive plan amendments or service area category changes that would apply to
any of such Properties.



62









 





     (ii) Buyer hereby acknowledges that Seller has informed Buyer of any of the foregoing information
of which Seller has knowledge. Buyer understands that, to stay informed of future changes in
Montgomery County and municipal water and sewer plans, Buyer should consult the County Planning
Board, the Washington Suburban Sanitary Commission, the County Department of Environmental
Protection, or any appropriate municipal planning or water and sewer body.



     (iii) If an individual sewage disposal system has been or is to be installed upon any of such
Properties, and if the applicable Property is located in a subdivision, Buyer acknowledges that it
has received a copy of the subdivision record plat, it has reviewed said record plat, including any
restrictions on the location of initial and reserve wells, individual sewer disposal systems, and
the buildings to be served by the individual sewage disposal system.



[Signatures on Following Page]





63









 








     IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered
by their respective representatives, thereunto duly authorized, as their free act and deed for the
uses and purposes herein contained as of the date first above written.



	 	 	 	 	 	 	 	 	 	 	 	 	 
	WITNESS:	 	 	 	SELLER PARTIES:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	NAVISTAR INVESTORS, LLC	 	 
	 	 	 	 	By: Navistar Management, LLC, Manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	/s/
Kathryn Kehr 

	 	 	 	 	 	By:	 	/s/ T. Richard Butera	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	Kathryn Kehr	 	 	 	 	 	 	 	T. Richard Butera, Manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	BP GUDE, LLC	 	 
	 	 	 	 	By: BP Gude Management, LLC, Manager	 	 
	 	 	 	 	 	 	By: BP Gude SPC, Inc., Manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	/s/
Kathryn Kehr 

	 	 	 	 	 	 	 	By:	 	/s/ T.
Richard Butera	 	 
	Kathryn Kehr

	 	 	 	 	 	 	 	 	 	T. Richard Butera, President	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	NAVISTAR MANAGEMENT, LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	/s/
Kathryn Kehr 

	 	 	 	By:	 	/s/
T. Richard Butera	 	 
	Kathryn Kehr	 	 	 	 	 	T. Richard Butera, Manager	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	BP GUDE MANAGEMENT, LLC	 	 
	 	 	 	 	By: BP Gude SPC, Inc., Manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	/s/
Kathryn Kehr 

	 	 	 	 	 	By:	 	/s/ T. Richard Butera	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	Kathryn Kehr	 	 	 	 	 	 	 	T. Richard Butera, President	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	RIP INVESTMENTS LP	 	 
	 	 	 	 	By: Village Hook, LLC, General Partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	/s/
Philip D. Topper Jr. 

	 	 	 	 	 	By:	 	/s/ Matthew H. Kamens	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	Philip D. Topper Jr.	 	 	 	 	 	 	 	Matthew H. Kamens, Manager	 	 
	 
	/s/ Kathryn Kehr 
	 	 	 	/s/ T. Richard Butera	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	Kathryn Kehr	 	 	 	T. Richard Butera, an Individual	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	THE BUTERA LLLP,	 	 
	 	 	 	 	a Colorado limited liability limited partnership	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	/s/
Kathryn Kehr 

	 	 	 	By:	 	/s/ T. Richard Butera	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	Kathryn Kehr	 	 	 	 	 	T. Richard Butera, General Partner	 	 






 









 






FURTHER JOINDER OF T. RICHARD BUTERA



The undersigned, T. Richard Butera, has also joined in the execution of this Agreement to evidence
his acknowledgement and consent to the terms of Section 3.2.7 of this Agreement.




Witness:




	 	 	 	 	 	 	 
	/s/
Kathryn Kehr 

	 	 	 	/s/
T. Richard Butera
	 	 
	

	 	 	 	T. Richard Butera	 	 






 









 








	 	 	 	 	 	 	 	 	 	 	 
	WITNESS:	 	 	 	BUYER(S):	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	FIRST POTOMAC REALTY INVESTMENT	 	 
	 	 	 	 	  LIMITED PARTNERSHIP, a Delaware
limited partnership	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	First Potomac Realty Trust, a Maryland

real estate investment trust,

its general partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	/s/
John
Rawley Hessick

	 		 	 	 	By:
	/s/
Nicholas R. Smith
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	John
Rawley Hessick

	 	 	 	 	 	Print Name:
	Nicholas
R. Smith
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	 	 	 	Title:
	 	Executive
VP
	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	FP NAVISTAR MANAGER, LLC, a to be
formed limited liability company	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	First Potomac Realty Investment Limited
Partnership, a Delaware limited partnership,
its Sole Member and Manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	First Potomac Realty Trust, a Maryland

real estate investment trust,

its general partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	
/s/ John Rawley Hessick

	 	 	 	 	 	By:
	/s/ Nicholas R. Smith
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	John
Rawley Hessick

	 	 	 	 	 	Print Name:
	Nicholas R. Smith
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	 	 	 	Title:
	Executive
VP
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	FP GUDE MANAGER, LLC, a to be
formed limited liability company	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	First Potomac Realty Investment Limited
Partnership, a Delaware limited partnership,
its Sole Member and Manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	First Potomac Realty Trust, a Maryland

real estate investment trust,

its general partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	/s/
John
Rawley Hessick

	 	 	 	 	 	By:
	/s/
Nicholas R. Smith
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	John
Rawley Hessick

	 	 	 	 	 	Print Name:
	Nicholas R. Smith
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	 	 	 	Title:
	Executive
VP
	 	 
	 
	 	 	 	 	 	 	 	 	 	 





 









 





The undersigned agrees to serve as Escrow Agent in accordance with the terms and conditions set
forth under the foregoing Agreement:




	 	 	 	 	 	 	 
	 	 	Chicago Title Insurance Company	 	 
	 
	 	 	 	 	 	 
	

	 	By:	 	/s/
Michael N. Schulepner Jr. 
	 	 






Date of Escrow Agent’s Execution:




	 	 	 
	October 29, 2004	 	 






 









 





[The following exhibits have
been omitted in part from this filing. Any omitted exhibit will be
provided to the Commission upon request of the Company.]




LIST OF EXHIBITS




	 	 	 
	Exhibit A-1

	 	Legal Description of Navistar Land
	Exhibit A-2

	 	Legal Description of Metro Park North Land
	Exhibit B-1

	 	Schedule of Members, Percentages of Membership Interests
owned by Navistar Investors Members
	Exhibit B-2

	 	Schedule of Members, Percentages of Membership Interests
owned by BP Gude Members Members
	Exhibit C

	 	Personal Property
	Exhibit D-1

	 	Schedule of Leases (Rent Roll) for Navistar Property Improvements
	Exhibit D-2

	 	Schedule of Leases (Rent Roll) for Metro Park North Property Improvements
	Exhibit E

	 	Auditor Certification Letter
	Exhibit F

	 	Intentionally Omitted
	Exhibit G-1

	 	Services Contracts for Navistar Property
	Exhibit G-2

	 	Services Contracts for Metro Park North Property
	Exhibit H-1

	 	List of LLC Instruments for Navistar Investors, LLC
	Exhibit H-2

	 	List of LLC Instruments for BP Gude, LLC
	Exhibit I

	 	Intentionally Omitted
	Exhibit J

	 	Intentionally Omitted
	Exhibit K

	 	Intentionally Omitted
	Exhibit L

	 	List of Property Document Deliveries
	Exhibit M

	 	List of Environmental Reports
	Exhibit N

	 	Intentionally Omitted
	Exhibit O

	 	Intentionally Omitted
	Exhibit P

	 	Purchase Price Allocation
	Exhibit Q

	 	List of Existing Financing Documents
	Exhibit R

	 	Form of Deposit Letter of Credit
	Exhibit S

	 	Aged Delinquencies Report
	Exhibit T

	 	Leasing and Tenant-Related Expenses





 









 








EXHIBIT P




Purchase Price Allocation




	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	PURCHASE PRICE	 
	 	ENTITY	 	PROPERTIES	 	ALLOCATION	 
	 	 	 
	 	 
	 	 	 	 	 	 	 
	 	Navistar Investors, LLC
	 	Navistar Property	 	$	22,000,000.00	 	 
	 	 
	 	 	 	 	 	 	 
	 	 	 
	 	 
	 	 	 	 	 	 	 
	 	BP Gude, LLC
	 	Metro Park North Property	 	$	41,000,000.00	 	 
	 	 
	 	 	 	 	 	 	 
	 	 	 







 









 








EXHIBIT T




Leasing and Tenant Related Expenses




LEASING COMMISSIONS




	 	 	 	 	 	 	 	 	 
	Property	 	Tenant	 	Amount	 	Responsible Party
	Navistar

	 	Crisplant
	 	$	518,449.51	 	 	Seller
	 
	 	 	 	 	 	 	 	 
	Metro Park North

	 	First American Registry
	 	$	301,406.21	 	 	Seller






TENANT IMPROVEMENTS




	 	 	 	 	 	 	 	 	 
	Property	 	Tenant	 	Amount	 	Responsible Party
	Metro Park North

	 	First American Registry
	 	$	112,488.40	 	 	Seller
	

	 	 	 	(to be used by 3/31/05)