Exhibit
10.49




 





 


MEMBERSHIP
INTERESTS PURCHASE AGREEMENT


 


BETWEEN


 


LAKESHORE
AQUA RENTAL LLC

AND

MAGELLAN AQUA LLC

AS

SELLER

AND

BEHRINGER HARVARD MULTIFAMILY OP I LP,

AS

PURCHASER


 






 


Dated
as of September 3, 2010


 








 





 

















 


MEMBERSHIP
INTERESTS PURCHASE AGREEMENT


 


THIS MEMBERSHIP INTERESTS
PURCHASE AGREEMENT (this “Agreement”) is entered into as of
September 3, 2010. (the “Effective Date”), by and among Lakeshore
Aqua Rental LLC, an Illinois limited liability company (“Seller 1”) and
Magellan Aqua LLC, an Illinois limited liability company (“Seller 2” and
together with Seller 1, collectively, “Seller”), and Behringer Harvard
Multifamily OP I LP, a Delaware limited partnership (“Purchaser”).


 


WHEREAS, as of the Effective
Date, Seller owns 100% of the membership interests (the “Entire Interests”)
in, Aqua Rental LLC, a Delaware limited liability company (the “Company”);


 


WHEREAS, an affiliate of
Seller, Aqua at Lakeshore East LLC, an Illinois limited liability company (“Aqua
at LSE”) is the owner in fee simple of the land legally described in Exhibit A (the “Land”)
and certain air rights (the “Air Rights”) located at 225 North Columbus
Drive, in Lakeshore East, Chicago, Illinois;


 


WHEREAS, Aqua at LSE has
developed an 82-story, mixed use building known as “Aqua at Lakeshore East”
tower (the “Building”) in the Air Rights above the Land (collectively,
the Building, Air Rights and Land, the “Project”);


 


WHEREAS, the Project has
been legally divided into the following five parcels (each, a “Parcel”),
each of which is legally described on Exhibit B:


 


A.            A parcel improved with a hotel
including a ballroom, hotel rooms and various public and back of house spaces
located on Levels P5, P1, 1, 2 and 4 through 18 of the Building
(collectively, the “Hotel Parcel”);


 


B.            A parcel improved with
(i) residential condominium units located on Levels 53 through 82 of the
Building, (ii) certain related amenities and facilities on Levels 1 and 3
of the Building and (iii) parking on Levels P5 through P1 of the Building
consisting of approximately 320 parking spaces (the “Condominium Parcel”);


 


C.            A parcel improved with nine
residential-unit park-home condominiums on Levels P5 through P2 of the
Building;


 


D.            A parcel improved with (i) 474
residential apartments located on Levels 19 through 52 of the Building,
(ii) certain related amenities and facilities located on Levels 1 through
3 of the Building and (iii) a public parking garage located on Levels P1
through P5 of the Building containing approximately 967 spaces (collectively,
the “Apartment Parcel”); and


 


E.             A parcel improved for commercial
and retail uses located Levels P1, 1 and 2 of the Building consisting of
approximately 60,713 square feet of space (collectively, the “Retail Parcel”).


 


WHEREAS, the Company owns,
or at the time of Closing (as hereinafter defined) will own, the Apartment
Parcel and the Retail Parcel, which are collectively referred to herein as the
“Real Property”; and


 


WHEREAS, Seller desires to
sell to Purchaser, and Purchaser desires to acquire from Seller, the Interests
(as hereinafter defined), all on the terms and subject to the conditions set
forth herein.


 


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NOW, THEREFORE, in
consideration of the foregoing recitals and the representations, warranties,
covenants and agreements herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:


 


ARTICLE I

Purchase and Sale of Interests


 


1.1           Purchase and Sale of Interests. On the terms and
subject to the conditions set forth herein, at the Closing, Seller shall sell,
assign, transfer, convey and deliver to Purchaser, and Purchaser shall purchase
and acquire from Seller, 75% of the Entire Interests (the “Interests”).


 


1.2           Earnest Money. Within two business days after
Purchaser shall have received a copy of this Agreement executed by Seller,
Purchaser shall deposit with Seller an amount in cash equal to $100 (the “Earnest
Money”) which shall be held by Seller until the Closing or any sooner
termination of this Agreement. No interest shall be earned on the Earnest
Money. The provisions of this Agreement regarding disposition of the Earnest
Money, or any portion thereof, following a termination of this Agreement shall
survive termination of this Agreement.


 


1.3           Purchase Price. On the terms and subject to the
conditions set forth herein, at the Closing, Purchaser will pay to Seller an
aggregate amount equal to $189,000,000 (the “Unadjusted Purchase Price”)
for the Interests, subject to adjustment as provided in Section 1.4
(as so adjusted, the “Purchase Price”). At the Closing, Purchaser shall
pay the Purchase Price, less an amount equal to the Earnest Money, by wire
transfer of immediately available funds to Portfolio Title Company, 134 N.
LaSalle Street, Chicago, Illinois 60602, Attention: Henry Marmol (“Escrow
Agent”).


 


1.4           Adjustments and Prorations.


 


(a)           The following adjustments to the
Unadjusted Purchase Price shall be made between the parties hereto as of 12:01
A.M., prevailing Central Time, on the Closing Date (as hereinafter defined).
Not less than two business days prior to the Closing Date, Seller shall provide
to Purchaser such information and verification reasonably necessary to support
the adjustments and prorations under this Section 1.4. The
following adjustments and prorations shall be based on the actual number of
days in the applicable period.


 


(i)            Real estate, franchise or other
taxes, impact fees and assessments as of the Closing Date in accordance with
the custom applicable in the city, town or county in which the Real Property is
situated, including assessments payable pursuant to that certain Building
Operating Agreement, that certain Lakeshore East Declaration and that certain
Special Assessment payable to the City of Chicago under Warrant Number 62456,
each of which will be more particularly identified in the Commitment (as
hereinafter defined). If any taxes, impact fees or assessments are not
available on the Closing Date, then proration will be made on the basis of
amounts assessed in the previous year, with a subsequent cash adjustment of
such proration to be made between Seller and Purchaser, if necessary, when
actual figures are available. Notwithstanding any provision to the contrary
contained herein, Seller and Purchaser acknowledge that the general real estate
taxes and special assessments for the Real Property for the year in which the
Closing occurs (and for prior years) shall be assessed together with the
general real estate taxes and special assessments for the balance of the
Project. The prorations of real estate taxes and special assessments determined
at Closing pursuant to this Subsection 1.4(a)(i) will be based upon
the allocations provided for in the Building Operating Agreement in respect of
the most recent ascertainable tax bill(s) for the Project. The initiation,


 


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withdrawal, settlement or
compromise of any protest or reduction proceeding, affecting the real estate
taxes or assessments assessed against any portion of the Project or the
Building prior to the Real Property components being separately taxed shall be
controlled by Seller (or Aqua at LSE, as applicable). Any net refund or credit
(i.e., after deducting reasonable attorneys’ fees and expenses in obtaining
such refunds or credits) attributable to any year prior to the year in which
the Closing occurs shall belong to and be the property of Seller and all net
refunds or credits received after Closing and attributable to the year in which
the Closing occurs shall be reasonably apportioned between Seller and Purchaser
in the same method as prorations are calculated pursuant to this Section 1.4(a)(i);


 


(ii)           Rental payments, common area
maintenance charge payments, tax payments and other receipts in respect of the
Real Property actually received for the month or other period in which the
Closing occurs, as of the Closing Date. If at the time of Closing there are
past-due rents or other charges owing from any tenant of the Real Property,
then, upon receipt thereof, Seller shall be entitled to all of such funds from
such tenant to the Closing Date. The first rents and charges collected will be
applied first to rents that became due and payable after Closing, and second,
to those that were due and payable prior to Closing, in reverse order of
maturity;


 


(iii)          Except to extent utilities are paid
directly by Tenants, Seller shall obtain or cause the Company to obtain meter
readings on all utilities as of the Closing Date, and if such readings are obtained,
then Purchaser shall receive a credit for amounts due as of the Closing Date.
Any utility deposits shall be credited to Seller. If Seller is unable to obtain
or cause the Company to obtain meter readings as of the Closing Date, then
utilities shall be prorated at the Closing Date based upon the most-recent
utility bills;


 


(iv)          In respect of any Tenant Lease that
provides for the payment of additional rent based upon a percentage of the
tenant’s gross sales during a specified annual or other period (such additional
rent is referred to herein as “Percentage Rent”), if the Closing shall
occur prior to the time when any such Percentage Rent is payable, then such
Percentage Rent for the applicable accounting period in which the Closing
occurs shall be apportioned subsequent to the Closing promptly after the
collection thereof;


 


(v)           Any deposits then held under Tenant
Leases, together with accrued interest thereon wherever interest is provided
for in such Tenant Leases or by applicable Law;


 


(vi)          Any other operating expenses of the
Real Property, including permits, licenses or other prepaid expenses (e.g., any
amounts paid or payable under Contracts as of the Closing Date); and


 


(vii)         The aggregate amount of all credits in
respect of all apartment units not in Rent Ready Condition as contemplated by Section 7.6.


 


(b)           Within 90 days after the final bills
for any prorated item become available, Seller and Purchaser shall make a final
adjustment and reconciliation of the prorations made pursuant to this Agreement.


 


(c)           On or before the Closing Date, Seller
shall pay: (i) the premium for the Owner’s Title Policy; (ii) costs and
expenses for the Survey; (iii) any State and County transfer, excise,


 


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document stamps, sales and
similar taxes applicable to the transactions contemplated hereby and Seller’s ‘CTA’
portion of City of Chicago transfer tax; (iv) one-half of any escrow fee,
including any “New York Style” closing fee; (v) costs of tax certificates,
if any; (vi) Seller’s attorneys’ fees; (vii) costs to discharge or
bond around Monetary Encumbrances; and (viii) other expenses stipulated to
be paid by Seller under other provisions of this Agreement. On or before the
Closing Date, Purchaser shall pay: (A) the premium for any endorsements to
the Owner’s Title Policy, the Excess Premium (as hereinafter defined) for the
Owner’s Title Policy, and any cost related to a lender’s title insurance
policy; (B) Purchaser’s portion of the City of Chicago transfer, excise,
document stamps, sales and similar taxes applicable to the transactions
contemplated hereby; (C) one-half of any escrow fee, including any “New
York Style” closing fee; (D) Purchaser’s attorneys’ fees;
(E) recording fees (other than fees for documents to terminate or release
any Monetary Encumbrances or to cure any title encumbrances); (F) other
expenses stipulated to be paid by Purchaser under other provisions of this
Agreement; and (G) the cost of its due diligence and all fees and expenses
in connection with the Acquisition Financing (as hereinafter defined) that are
incurred by Purchaser, including any commission due to Broker (as hereinafter
defined) to the extent that Purchaser engages Broker and obtains the
Acquisition Financing from a lender procured by Broker. At Purchaser’s request,
Seller has agreed to have Chicago Title Insurance Company (the “Title
Company”) issue the Owner’s Title Policy (and the loan policy) in
connection with the transactions contemplated by this Agreement; provided that
Purchaser agrees to pay the amount (the “Excess Premium”) by which the
premium charged by the Title Company for the Owner’s Title Policy exceeds the
premium that would have been charged by Escrow Agent for the Owner’s Title
Policy, such amount currently estimated at $30,000. The parties further
acknowledge and agree that Escrow Agent, as title agent for Old Republic, will
provide any required reinsurance at Seller’s cost.


 


(d)           If the amount of loan proceeds
received from the Acquisition Financing at the Closing is more than
$100,000,000, the interest rate is fixed at an amount less than 3.5% for a
minimum of the initial five years of the Acquisition Financing, with
interest-only payable during the entire term of the Acquisition Financing and
is non-recourse to the Company except for customary non-recourse carve-outs
(collectively, the “Specified Terms”), then the Unadjusted Purchase
Price shall be increased by $1,000,000. Notwithstanding the foregoing, if
Seller has delivered or caused to be delivered to Purchaser a term sheet from a
reputable lender evidencing such lender’s willingness to make a loan to the
Company or Purchaser on the Specified Terms, and Seller and Purchaser determine
in their reasonable discretion that such lender could reasonably be expected to
perform its obligations under such term sheet (assuming the satisfaction by the
Company or Purchaser, as applicable, of the conditions therein requiring the
performance of the Company or Purchaser, as applicable), then the Unadjusted
Purchase Price shall be increased by $1,000,000 notwithstanding an election by
Purchaser not to pursue the Acquisition Financing with such lender or on the
Specified Terms.


 


(e)           Notwithstanding any provision of this
Agreement to the contrary, in lieu of Seller providing a real estate tax
proration credit to Purchaser at Closing, Aqua at LSE shall deposit the Real
Estate Tax Funds (as hereinafter defined) into a segregated escrow account with
Escrow Agent at Closing for the payment of real estate taxes with respect to
the Real Property for the period prior to the Closing Date, such Real Estate
Tax Funds to be held by Escrow Agent pursuant to a mutually acceptable real
estate tax escrow and reproration agreement to be entered into by Aqua at LSE,
Purchaser and Escrow Company at Closing (“Real Estate Tax Escrow Agreement”).
The “Real Estate Tax Funds” shall be an amount equal to the sum of
(i) the prorated amount for the second installment of 2009 real estate
taxes with respect to the Real Property as calculated in accordance with Section 1.4(a)(i) (unless
the final 2009 tax bill has otherwise been paid by Aqua at LSE on or prior to
the Closing Date, in which event Aqua at LSE


 


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shall deposit only the sum
referenced in clause (ii) that follows) and (ii) the prorated amount
for 2010 real estate taxes for the period from January 1, 2010 to the
Closing Date with respect to the Real Property as calculated in accordance with
Section 1.4(a)(i) (“Aqua’s Tax Account”). Aqua at LSE
shall direct the investment of, and be entitled to all interest earned on,
Aqua’s Tax Account. All escrow fees charged by Escrow Agent shall be shared
equally by Aqua at LSE and Purchaser and paid at Closing. The Real Estate Tax
Escrow Agreement shall provide, among other things, that:


 


(i)            2009 Second Installment: If
the second installment of 2009 real estate taxes (“2009 Second Installment”)
has not otherwise been paid by Aqua at LSE on or before the Closing Date, then
upon Aqua at LSE’s receipt of the final 2009 tax bill(s) with respect to
the Real Property, Aqua at LSE shall deliver same to Escrow Agent, with a copy
to Purchaser, whereupon, Escrow Agent shall be authorized to pay the amount of
the 2009 Second Installment from Aqua’s Tax Account directly to the Cook County
Treasurer and shall promptly forward a receipt evidencing such payment to Aqua
at LSE and Purchaser;


 


(ii)           2010 First Installment: Upon
Aqua at LSE’s or the Company’s receipt of the bill(s) for the first
installment of 2010 real estate taxes with respect to the Real Property (“2010
First Installment”), Aqua at LSE or the Company, as applicable, shall
deliver same to Escrow Agent, with a copy to Purchaser, whereupon, Escrow Agent
shall be authorized to pay the amount of the 2010 First Installment from Aqua’s
Tax Account directly to the Cook County Treasurer and shall promptly forward a
receipt evidencing such payment to Aqua at LSE and Purchaser;


 


(iii)          2010 Second Installment: Upon
Aqua at LSE’s or the Company’s receipt of the final 2010 tax bill(s) with respect
to the Real Property, Aqua at LSE or the Company, as applicable, shall deliver
same to Purchaser and Purchaser shall promptly (A) cooperate with Aqua at
LSE in re-prorating the 2010 real estate taxes with respect to the Real
Property based upon the actual 2010 real estate tax bill(s) in accordance
with Section 1.4(a)(i); and (B) join Aqua at LSE in delivering
a written notice to Escrow Agent (“Joint Notice”), together with the
final tax bill(s) for 2010, specifying (i) the amounts that Escrow Agent is
authorized to disburse from Aqua’s Tax Account and (ii) the amount that
Purchaser shall deposit with Escrow Agent concurrently therewith representing
Purchaser’s prorated portion of the 2010 real estate taxes for the period from
the Closing Date through December 31, 2010 and (iii) that Escrow
Agent is authorized to pay the second installment of 2010 real estate taxes
with respect to the Real Property (“2010 Second Installment”) directly
to the Cook County Treasurer; it being understood and agreed that if the
balance of Aqua’s Tax Account is insufficient to pay Aqua at LSE’s remaining
prorated share of the 2010 real estate taxes, then Aqua at LSE shall deposit
the amount of any such deficiency with Escrow Agent concurrently with the
delivery of the Joint Notice. Upon payment of the 2010 Second Installment by
Escrow Agent, Escrow Agent shall promptly forward a receipt evidencing such
payment to Aqua at LSE and Purchaser. Any excess funds in Aqua’s Tax Account
shall be released by Escrow Agent to Aqua at LSE concurrently with Escrow
Agent’s payment of the 2010 Second Installment.


 


(f)            The provisions of this Section 1.4 shall
survive the Closing.


 


ARTICLE II

Closing


 


2.1           Closing Date. The closing of the purchase and sale
of the Interests (the “Closing”) shall take place at the offices of the
Escrow Agent on October 31, 2010 (the “Target Closing Date”); provided,


 


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however, (i) Seller and
Purchaser shall use commercially reasonable efforts to coordinate the Closing
to be contemporaneous with the closing of the Hotel Transaction (as hereinafter
defined), whether before or after the Target Closing Date, but the Target
Closing Date shall not be advanced to a date earlier than seven days after the
expiration of the Inspection Period or extended for more than 30 days beyond
the Target Closing Date without the mutual consent of Seller and Purchaser,
each acting in its reasonable discretion. The parties may attend the Closing by
making their respective Closing deliveries into escrow with the Escrow Agent
pursuant to escrow instructions that do not conflict with the provisions of
this Agreement. As used in this Agreement, the term “Closing Date” means
the date of the Closing.


 


2.2           Seller’s Closing Deliveries. At the Closing, Seller
shall deliver, or shall cause its applicable affiliates to deliver, to
Purchaser or the Escrow Agent:


 


(a)           Assignment Agreements.
Assignment agreements in substantially the form of Exhibits
C and D (the “Assignment
Agreements”), duly executed by Seller 1 and Seller 2, respectively.


 


(b)           Officer’s Certificate. An
Officer’s Certificate, dated as of the Closing Date, duly executed by Seller
certifying that the conditions set forth in Sections 9.2(a) and 9.2(b) are
fully satisfied.


 


(c)           Certificate of Good Standing.
A Certificate of Good Standing in respect of the Company issued by the
Secretary of State of the State of Delaware no more than five days prior to the
Closing Date.


 


(d)           Books and Records. The books
and records of the Company; provided, however that the books and records
pertaining to the operation of the Real Property shall remain at the Real
Property pursuant to the Management Agreement (as hereinafter defined).


 


(e)           Office Lease. An original of
the fully-executed and delivered Office Lease.


 


(f)            Parking Lease. An original of
the fully-executed and delivered Parking Lease.


 


(g)           Management Agreement. An
original of the fully-executed and delivered Management Agreement.


 


(h)           LLC Agreement. An amended and
restated limited liability company agreement of the Company substantially the
form of Exhibit E (the “LLC
Agreement”), duly executed by Seller 1.


 


(i)            FIRPTA Affidavit. An
affidavit of non-foreign status in substantially the form of Exhibit F and that otherwise
complies with Section 1445 of the Code, duly executed by each Seller.


 


(j)            Estoppel Certificates. A
tenant estoppel certificate executed by each tenant leasing a portion of the
Real Property for non-residential uses (each, a “Retail Tenant”) but
expressly excluding any tenant in a month to month lease, in the substantially
the form of Exhibit G, or in the form
of estoppel required under such tenant’s lease, and to the extent not delivered
by Seller to Purchaser during the Inspection Period, all REA Estoppels (as
hereinafter defined).


 


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(k)           Closing Rent Roll. A current
update of the Initial Rent Roll (“Closing Rent Roll”), certified by
Seller and the Company using the same certification as that made in respect of
the Initial Rent Roll.


 


(l)            Title Insurance Policy. An
Owner’s Policy of Title Insurance on ALTA 2006 form (with such endorsements as
Purchaser may request, the “Owner’s Title Policy”), to be issued in due
course after the Closing in accordance with a marked-up and executed version of
the Commitment (or an executed Pro Forma), in the full amount of the Purchase
Price, insuring the Company’s fee simple title to the Real Property to be good,
indefeasible and marketable subject only to Permitted Exceptions and others
approved by Purchaser in writing; provided, however, that:
(i) the standard exceptions shall, to the extent permitted under
applicable insurance regulations, be deleted; (ii) the rights of parties
in possession shall be limited only to the rights of tenants as tenants under
written leases listed on the Closing Rent Roll; and (iii) the Owner’s
Title Policy shall not contain any Monetary Encumbrances (other than the
Acquisition Financing).


 


(m)          Title Documents. All affidavits
(including a Plat Act Affidavit), bonds, gap indemnities, corporate
organizational and authority documents and other documentation duly executed
and acknowledged by Seller in form and substance satisfactory reasonably
acceptable to Purchaser and the Title Company and sufficient to permit the
Title Company to issue the Owner’s Title Policy.


 


(n)           Tax Forms/Returns. All
necessary state, county or local governmental tax forms or returns in respect
of any transfer, excise, document stamps, sales and similar taxes applicable to
the transactions contemplated hereby.


 


(o)           Rent Ready Condition of Vacant
Units. Evidence reasonably satisfactory to Purchaser that all units vacant
seven or more days before the Closing Date are in rent-ready condition on the
Closing Date.


 


(p)           Termination Agreements.
Terminations of the agreements being replaced by the Office Lease, the Parking
Lease and the Management Agreement.


 


(q)           Aqua at LSE Transfer Documents.
Copies of the following transfer documents to be executed on behalf of Aqua at
LSE and the Company prior to the Closing (“Aqua Transfer Documents”):


 


(i)            Warranty Deed;


 


(ii)           Bill of Sale;


 


(iii)          Assignment of Leases and Rents; and


 


(iv)          Assignment of Contracts.


 


2.3           Purchaser’s Closing Deliveries. At the Closing,
Purchaser shall deliver to Seller or the Escrow Agent:


 


(a)           Purchase Price. Evidence of
the wire transfer referred to in Section 1.3.


 


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(b)           Officer’s Certificate. An
Officer’s Certificate dated as of the Closing Date, duly executed by Purchaser
certifying that the conditions set forth in Sections 9.1(a) and 9.1(b) are
fully satisfied.


 


(c)           Assignment Agreements. The
Assignment Agreements, duly executed by Purchaser, or its affiliate, as
applicable.


 


(d)           LLC Agreement. The LLC
Agreement, duly executed by Purchaser.


 


(e)           Certificate of Good Standing.
A Certificate of Good Standing in respect of the Purchaser issued by the
Secretary of State of the State of Delaware no more than five days prior to the
Closing Date.


 


(f)            Title Documents. All
affidavits, bonds, gap indemnities, corporate organizational and authority
documents and other documentation duly executed and acknowledged by Purchaser
in form and substance satisfactory reasonably acceptable to Seller and the
Title Company and sufficient to permit the Title Company to issue the Owner’s
Title Policy.


 


(g)           Tax Forms/Returns. All
necessary state, county or local governmental tax forms or returns in respect
of any transfer, excise, document stamps, sales and similar taxes applicable to
the transactions contemplated hereby.


 


2.4           Joint Deliveries. At Closing, Seller and Purchaser
shall jointly deliver to the Escrow Agent:


 


(a)           Closing Statement prepared by the Escrow Agent with
direction and input from Seller and Purchaser.


 


(b)           Notices to Tenants regarding the
change in ownership of the Real Property.


 


(c)           Notices to Vendors regarding the
change in ownership of the Real Property.


 


(d)           Amendment to the Certificate of Formation of the Company
reflecting management of the Company changing from a manager-managed to a
member-managed limited liability company, changing the name of the Company to a
name selected by Purchaser and making such other amendments as permitted by,
and in keeping with, the terms of the LLC Agreement.


 


(e)           Real Estate Tax Escrow Agreement duly
executed by Aqua at LSE, Purchaser and Escrow Agent.


 


2.5           Proceedings at Closing. All actions to be taken and
all documents to be executed and delivered by Seller in connection with the
consummation of the transactions contemplated at the Closing shall be
reasonably satisfactory in form and substance to Purchaser and its counsel, and
all actions to be taken and all documents to be executed and delivered by
Purchaser in connection with the consummation of the transactions contemplated
at the Closing shall be reasonably satisfactory in form and substance to Seller
and its counsel. All actions to be taken and all documents to be executed and
delivered by all parties hereto at the Closing shall be deemed to have been
taken and executed and delivered simultaneously, and no action shall be deemed
taken nor any document executed or delivered until all have been taken,
executed and delivered.


 


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ARTICLE III

Representations and Warranties of Seller


 


Aqua
at LSE and Seller hereby make the following representations and warranties to
Purchaser, each of which is true and correct as of the Effective Date and shall
be true and correct as of the Closing Date.


 


3.1           Organization and Power. Each of the Company, Seller
1 and Seller 2 (i) is a limited liability company duly formed, validly
existing and, to the extent applicable, in good standing under the Laws of its
jurisdiction of organization and (ii) has the requisite limited liability
company power and authority to own and operate its assets and properties and to
carry on its business as now currently conducted. The Company is in good
standing and is duly qualified and authorized to conduct business as a foreign
company under the Laws of each jurisdiction in which the conduct of its
business or the ownership or lease of its assets or properties requires such
qualification or authorization.


 


3.2           Authorization. Each Seller has the requisite
limited liability company power to execute and deliver this Agreement and each
other agreement, certificate, instrument and document contemplated by this
Agreement to be executed by Seller in connection with the consummation of the
transactions contemplated hereby and thereby (all such other agreements,
certificates, instruments and documents required to be executed by Seller are
collectively referred to as the “Seller Documents”) and to perform the
obligations to be performed by it hereunder and thereunder. The execution and
delivery by each Seller of this Agreement and each Seller Document and the
performance by it of the obligations to be performed by it hereunder and
thereunder have been (or at the time of execution will be) duly authorized by
all necessary limited liability company action on the part of each Seller. This
Agreement has been (and each Seller Document will be) duly executed and
delivered by a duly authorized manager or member of each Seller and, assuming
the due execution and delivery of this Agreement and each Seller Document by
the other party or parties hereto or thereto, this Agreement and each Seller
Documents constitutes valid and binding obligations of each Seller enforceable
against each Seller in accordance with their respective terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
Laws affecting the enforcement of creditors’ rights in general and subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).


 


3.3           Consents and Approvals. Except as set forth on Schedule
3.3, no consent, approval, waiver, order or authorization of, or
registration, declaration or filing with, or notice to, any federal, state,
local or foreign court, tribunal, arbitrator or governmental, administrative or
regulatory agency, authority or body or any instrumentality or political
subdivision thereof (“Governmental Entity”) or any other person
(including any consent, approval, waiver or authorization in respect of any
Contract or Permit) is required to be obtained or made by or in respect of the
Company or Seller in connection with the execution and delivery of this
Agreement or any Seller Document by Seller, the performance by Seller of the
obligations to be performed by it hereunder or thereunder or the consummation
of the transactions contemplated hereby or thereby.


 


3.4           No Conflicts. The execution and delivery of this
Agreement does not (and of each Seller Document will not), and neither the
performance by Seller of the obligations to be performed by it hereby and
thereby, nor the consummation of the transactions contemplated hereby and
thereby, will, (i) conflict with the articles or certificate of formation
or operating agreement or other similar organizational or governance documents
of the Company or either Seller, (ii) conflict with, result in any violation
of, constitute a default (with or without notice, lapse of time or both
(herein, a “Default”)) under, or give rise to a right of termination,
cancellation or acceleration of, or any obligation or to loss of a benefit
under, any note, bond, mortgage, indenture, agreement or other document or
obligation to which the Company or Seller is a party or by which any of their
respective assets or properties are bound, other than in respect of


 


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the existing financing for which Seller will pursue
the Lender Consent (as hereinafter defined), (iii) to Seller’s knowledge,
violate, constitute a Default under, or cause the forfeiture, impairment,
non-renewal, revocation or suspension of any Permit, (iv) to Seller’s
knowledge, violate any order, judgment, decree, writ, award or injunction (“Order”)
of any Governmental Entity applicable to the Company or Seller, or (v) require
any offer to purchase or result in the creation of any lien, mortgage, deed of
trust, pledge, security interest, charge, claim, restriction, escrow, right of
first offer, right of first refusal, preemptive right, lease, easement,
servitude, proxy, voting trust or agreement, transfer restriction under any
stockholder or similar agreement or other encumbrance, limitation or
restriction of any nature (“Lien”) upon any of the assets or properties
of the Company or Seller.


 


3.5           Broker’s Fees. Except for
CBRE (“Broker”), none of the Company, Seller or any person acting on
their respective behalves has agreed to pay any commission, finder’s or
broker’s fee or similar payment in connection with the transactions
contemplated hereby or any matter related hereto to any person for which the
Company, Purchaser or any of their respective affiliates will be liable. Seller
shall pay the Broker’s fee per separate agreement.


 


3.6           Litigation; Orders. To Seller’s
knowledge, there is no claim or judicial or administrative action, suit,
proceeding or investigation pending or threatened (i) that questions the
validity of this Agreement or any Seller Document, the performance by Seller of
the obligations to be performed by it hereunder or thereunder or the
consummation of the transactions contemplated hereby or thereby, or (ii) relating
to the business of the Company as now conducted or affecting the Company or any
of its assets or properties. There is no Order of any Governmental Entity
binding on the Company or any of its assets or properties. Seller has not
received service of process in respect of any claim, action or other proceeding
described in this Section 3.6.


 


3.7           Title to Interests. Seller 1 and
Seller 2 are the record and beneficial owners of the Entire Interests, free and
clear of all Liens, and at the Closing will convey to Purchaser good tile to the
Interests, free and clear of all Liens and free and clear of all other
limitations and restrictions. Neither Seller has any other equity interests or
rights to acquire any equity interests in the Company.


 


3.8           Capitalization.


 


(a)           Seller 1 and Seller 2 are
the sole member of the Company. The Entire Interests represent the right to
receive 100% of the distributions and profits from the Company. Other than the
Entire Interests, there are no rights (including participation rights) or
interests that have been issued or granted in the distributions, proceeds or
profits of the Company. Neither Seller 1 nor Seller 2 has (i) sold, assigned,
transferred, granted, pledged or hypothecated or, except as set forth in this
Agreement, agreed to sell, assign, transfer, grant, pledge or hypothecate, all
or any part of the Interests, (ii) except as set forth in this Agreement,
granted or agreed to grant any deed, option, right of first offer or refusal or
other right or interest in, to or in respect of the Entire Interests or (iii) granted
or agreed to grant a lien or other security interest in, to or in respect of
the Entire Interests or any distributions, proceeds or profits therefrom or in
respect thereof in any manner.


 


(b)           There is no existing option,
warrant, call, right, commitment or other agreement of any character to which
Seller 1, Seller 2 or the Company is a party requiring, and there are no
securities or interests of the Company outstanding that upon conversion or
exchange would require, the issuance, sale or transfer of any additional
securities of, or other interests in, the Company or other securities or
interests convertible into; exchangeable for or evidencing the right to
subscribe for or purchase securities of, or other interests in, the Company.
None of Seller 1, Seller 2 or the Company is a party to any voting trust or
other agreement in respect of the voting,


 


11

















 


redemption, sale, transfer
or other disposition of the securities of, or interests in, the Company, other
than the Company’s limited liability company agreement.


 


3.9           Business; No Subsidiaries. The sole
business in which the Company is, or will at the time of Closing, be involved
is the ownership and operation of the Real Property. The Company does not,
directly or indirectly, own any stock or other ownership interest in any other
person.


 


3.10         Absence of Undisclosed
Liabilities. Aqua at LSE has no liabilities in respect of the
Real Property, except those liabilities (i) provided for or reserved against in
the Financial Statements (as hereinafter defined) provided to Purchaser as a
part of the Feasibility Study, or (ii) arising in the normal and ordinary
course of business consistent with past practice, which liabilities,
individually and collectively, are not material in amount. Except as disclosed
in the Financial Statements provided to Purchaser as a part of the Feasibility
Study and except in respect of the existing financing encumbering the Real
Property, Aqua at LSE is not a guarantor or indemnitor of any debt, obligation
or liability of any other person in connection with the Real Property. The term
“liabilities” includes any direct or indirect indebtedness, guaranty,
endorsement, claim, loss, damage, deficiency, cost, expense, obligation or
responsibility, whether matured or unmatured, absolute, fixed, contingent or
otherwise, known or unknown, asserted or unasserted, choate or inchoate,
liquidated or unliquidated, secured or unsecured. 


 


3.11         Financial Statements. The Financial
Statements provided to Purchaser as a part of the Submission Matters (as
hereinafter defined) have been prepared in accordance with U.S. generally
accepted accounting principles consistently applied, to the extent applicable,
and fairly present the financial condition, assets and liabilities, the results
of operations and cash flows of the Real Property as of the dates, and for the
periods, indicated therein.


 


3.12         Absence of Certain Changes. Except as
expressly contemplated by this Agreement (i) Aqua at LSE has conducted its
operations, business and affairs only in the ordinary course of business
consistent with past practice and (ii) to Aqua at LSE’s knowledge, there has
not been any event, change, occurrence or circumstance that has had or could
reasonably be expected to have a material adverse effect on the Real Property
or the historical, near-term or long-term projected business, results of
operations, condition (financial or otherwise) of the Real Property (“Material
Adverse Effect”).


 


3.13         Taxes.


 


(a)           Neither Seller 1 nor Seller
2 is a foreign person within the meaning of Section 1445 of the Code.


 


(b)           There are no tax sharing,
allocation, indemnification or similar agreements in effect as between the
Company or any of its predecessors and affiliates and any other person
(including Seller 1 and Seller 2 and any of their respective predecessors and
affiliates) under which Purchaser or the Company could be liable for any Taxes
or other claims of any person.


 


(c)           The Company is not a “United
States real property holding corporation” within the meaning of Section
897(c)(2) of the Code.


 


(e)           The Company has not applied
for, been granted or agreed to any accounting method change for which it will
be required to take into account any adjustment under Section 481 of the
Code or any similar provision of the Code or the corresponding tax laws of any
nation, state, locality or other taxing jurisdiction.


 


12

















 


(e)           No election under
Section 341(f) of the Code has been made or shall be made prior to
the Closing Date to treat the Company as a consenting corporation, as defined
in Section 341 of the Code.


 


(f)            The Company is not a party
to any agreement that would require it to make any payment that would
constitute an “excess parachute payment” for purposes of Sections 280G and 4999
of the Code.


 


(g)           The Company has not
participated, directly or indirectly, in any (i) reportable transaction
within the meaning of Section 1.6011-4(b) of the Treasury Regulations or
(ii) Tax shelter required to be registered under Section 6111 of the Code,
and the Company has disclosed on all Tax Returns all positions taken that
could, if not so disclosed, give rise to a penalty under Section 6662 of
the Code.


 


3.14         Real Property.


 


(a)           No Violations. Neither Aqua
at LSE nor Seller has received any written notice that the Real Property and
the current uses fail to comply with all Laws of all Governmental Entities
having jurisdiction over the Real Property.


 


(b)           Condemnation or Eminent
Domain.  Neither Aqua at LSE nor Seller has received any notice of any
threatened or contemplated condemnation or eminent domain proceedings that
affect all or any portion of the Real Property, and neither Aqua at LSE nor
Seller has received any written notice of the intention of any Governmental
Entity or other person to take or use all or any part thereof.


 


(c)           Insurance. Neither Aqua
at LSE nor Seller has received any notice from any insurance company that has
issued a policy in respect of the Real Property requiring performance of any
structural or other repairs or alterations to all or any portion of the Real
Property.


 


(d)           Public Improvements. No notice
from any county, township or other Governmental Entity has been served upon the
Real Property or received by Aqua at LSE or Seller requiring or calling
attention to the need for any work, repair, construction, alteration or
installation on or in connection with the Real Property that has not been
complied with.


 


(e)           Parties in Possession. There are no
parties in possession of any portion of the Real Property except Aqua at LSE,
Seller, the Company and tenants under the Tenant Leases and Retail Leases.


 


3.15         Environmental Matters. Except as
otherwise disclosed in the Submission Materials or the Additional Submission
Materials (as such terms are hereinafter defined), to the knowledge of Aqua at
LSE and Seller:


 


(a)           the operations, business and
affairs of Aqua at LSE are and have been in compliance with all applicable
Environmental Laws which compliance includes obtaining, maintaining in good
standing and complying with all Permits required by Environmental Laws (“Environmental
Permits”) and no action, suit or proceeding is pending or threatened to
revoke, modify or terminate any such Environmental Permit, and, to Seller’s
knowledge, no facts, circumstances or conditions currently exist that could
adversely affect such continued compliance with Environmental Laws and
Environmental Permits or require currently unbudgeted capital


 


13

















 


expenditures to achieve or
maintain such continued compliance with Environmental Laws and Environmental
Permits;


 


(b)           the Real Property is not the
subject of any outstanding written Order or Contract with any Governmental
Entity or other person in respect of any (i) Environmental Law,
(ii) Remedial Action, or (iii) Release or threatened Release of a
Hazardous Material;


 


(c)           no claim has been made or is
pending or threatened against the Company alleging either or both that Aqua at
LSE may be in violation of any Environmental Law or Environmental Permit, or
may have any liability under any Environmental Law;


 


(d)           no fact, circumstance or
condition exists in respect the Real Property for which Aqua at LSE arranged
for the disposal or treatment of Hazardous Materials that could reasonably be
expected to result in the Company incurring unbudgeted Environmental Costs and
Liabilities;


 


(e)           there is no investigation of
the Real Property pending or threatened that could lead to the imposition of
any Environmental Costs and Liabilities or liens under any Environmental Law;


 


(f)            there is not located at the
Real Property any (i) underground storage tanks, (ii) asbestos-containing
material or (iii) equipment containing polychlorinated biphenyls;


 


(g)           the transactions
contemplated hereby do not require the consent of or filings with any
Governmental Entity with jurisdiction over the Company and environmental
matters; and


 


(h)           Seller has provided to
Purchaser all environmentally related audits, studies, reports, analyses and
results of investigations that have been performed on behalf of Aqua at LSE in
respect of the Real Property.


 


(i)            As used in this Agreement,
the following terms have the following meanings:


 


(i)            “Environmental Costs and
Liabilities” means, in respect of any person, all liabilities, obligations,
responsibilities, Remedial Actions, losses, damages, punitive damages,
consequential damages, treble damages, costs and expenses (including all
reasonable fees, disbursements and expenses of counsel, experts and consultants
and costs of investigation and feasibility studies), fines, penalties,
sanctions and interest incurred as a result of any claim or demand by any other
person or in response to any violation of Environmental Law, whether known or
unknown, accrued or contingent, whether based in contract, tort, implied or
express warranty, strict liability, criminal or civil statute, to the extent
based upon, related to or arising under or pursuant to any Environmental Law,
Environmental Permit, Order or agreement with any Governmental Entity or other
person, that relates to any environmental, health or safety condition,
violation of Environmental Law or a Release or threatened Release of Hazardous
Materials.


 


(ii)           “Environmental Law”
means any federal, state or local statute, regulation, ordinance, rule of
common law or other legal requirement, as now or hereafter in effect, in any
way relating to the protection of human health and safety, the environment or
natural resources including, the Comprehensive Environmental Response, Compensation
and Liability Act (42 U.S.C. §9601 et seq.),
the Hazardous Materials Transportation Act (49 U.S.C. App. §1801 et seq.), the Resource Conservation and


 


14

















 


Recovery Act (42 U.S.C.
§6901 et seq.), the Clean Water
Act (33 U.S.C. §1251 et seq.), the
Clean Air Act (42 U.S.C. §7401 et
seq.), the Toxic Substances Control Act (15 U.S.C. §2601 et seq.), the Federal Insecticide,
Fungicide, and Rodenticide Act (7 U.S.C. §136 et
seg.), and the Occupational Safety and Health Act (29 U.S.C. §651 et seq.), as each has been or may be
amended and the regulations promulgated pursuant thereto.


 


(iii)          “Hazardous Material”
means any substance, material or waste that is regulated, classified or
otherwise characterized under or pursuant to any Environmental Law as
“hazardous,” “toxic,” “pollutant,” “contaminant,” “radioactive” or words of
similar meaning or effect, including petroleum and its by-products, asbestos,
polychlorinated biphenyls, radon, mold and urea formaldehyde insulation.


 


(iv)          “Release” means any
release, spill, emission, leaking, pumping, injection, deposit, disposal,
discharge, dispersal or leaching into the indoor or outdoor environment, or
into or out of any property.


 


(v)           “Remedial Action”
means all actions to (A) clean up, remove, treat or in any other way address
any Hazardous Material, (B) prevent the Release of any Hazardous Material so it
does not endanger or threaten to endanger public health or welfare or the
indoor or outdoor environment, (C) perform pre-remedial studies and
investigations or post-remedial monitoring and care or (D) correct a condition
of noncompliance with Environmental Laws.


 


3.16         Rent Roll. All
information set forth in the Initial Rent Roll is true, correct, and complete in
all material respects and all information set forth in the Closing Rent Roll
will be true, correct, and complete in all material respects as of the date of
such Closing Rent Roll. All leases to residential tenants (“Tenant Leases”)
and Retail Leases referenced in the Initial Rent Roll are, as of the Effective
Date, the only leases or occupancy agreements entered into by Aqua at LSE
currently affecting the Real Property and, except as otherwise provided to the
contrary in the Initial Rent Roll, all such Tenant Leases and Retail Leases are
in full force and effect and any tenant allowances required to be paid by Aqua
at LSE under the provisions of the Tenant Leases and Retail Leases have been
paid in full. At the Closing, all Tenant Leases and Retail Leases referenced in
the Closing Rent Roll shall be the only leases or occupancy agreements entered
into by the Company then currently affecting the Real Property and, except as
otherwise provided in the Closing Rent Roll, all such Tenant Leases and Retail
Leases shall be in full force and effect as of Closing.


 


3.17         Material Contracts.


 


(a)           Schedule 3.17 sets forth all
of the following contracts, agreements, commitments, indentures, notes, bonds,
loans, leases, instruments or other arrangements (collectively, “Contracts”)
to which Aqua at LSE is presently a party in respect of the Real Property which
provide for expenditures in excess of $5,000 annually or $10,000 in the
aggregate and will be binding upon the Company after the Closing (collectively,
the “Material Contracts”) unless Purchaser otherwise elects to terminate
the same in accordance with Section 5.4 hereof.


 


(b)           Each of the Material
Contracts is in full force and effect and is the legal, valid and binding
obligation of Aqua at LSE and, to Aqua at LSE’s knowledge, enforceable against
it in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar Laws affecting the
enforcement of creditors’ rights in general and subject to general principles of
equity (regardless of whether such enforceability is considered in


 


15

















 


a proceeding at law or in
equity). Neither Aqua at LSE. nor Seller has received no notice of default
under any Material Contract, nor, to the knowledge of Aqua at LSE or Seller, is
any other party to any Material Contract in default thereunder, and, to Aqua at
LSE and Seller’s knowledge, no event has occurred that with the lapse of time
or the giving of notice or both would constitute a Default thereunder. Seller
has delivered or otherwise made available to Purchaser, or during the
Inspection Period, Seller will deliver or otherwise make available to
Purchaser, true, correct and complete copies of all of the Material Contracts,
together with all amendments, modifications or supplements thereto.


 


3.18         Permits. To Aqua at
LSE’s and Seller’s knowledge, Aqua at LSE presently owns, holds, possesses or
lawfully uses all approvals, authorizations, certifications (including
occupancy certificates), concessions, exemptions, grants, franchises, licenses,
permits, registrations and similar authorities (“Permits”) that are
necessary for the conduct of its business as currently conducted and for the
ownership and use of its assets or properties. Neither Aqua at LSE nor Seller
has received any notice of any claim of default, in respect of any such
Permits.


 


3.19         Compliance with Laws. None of Aqua
at LSE, Seller or the Company has received any notice that it is not in
compliance in all material respects with all Laws and Orders applicable to its
operations, business and affairs or otherwise binding on it or any of its
assets or properties and is not currently in violation of any such Law or
Order. None of Aqua at LSE, Seller or the Company has received not received any
written notice or been charged with the violation of any such Law or Order. To
the knowledge of Aqua LSE and Seller, none of Aqua at LSE, Seller or the
Company is under investigation in respect of the violation of any Laws or
Orders.


 


3.20         Affiliate Transactions. Except as set
forth in Schedule 3.20, none of Aqua at LSE, Seller 1 or Seller 2, any
their respective members, affiliates, or any of their respective officers,
directors, stockholders, managers, members, partners or employees nor any of
the immediate family members of any of the foregoing (“Related Persons”)
(i) owes any amount to the Company (nor does the Company owe any amount
to, or has it committed to make any loan or extend or guarantee credit to or
for the benefit of, any Related Person), (ii) has any claim, cause of action or
any action, suit or proceeding against the Company, or (iii) owns,
directly or indirectly, in whole or in part, any real property, leasehold
interests or other property or any Permits, the use of which is necessary for
the conduct of the operations, business or affairs as currently conducted at
the Real Property. No Related Person has any direct or indirect interest in any
Contract, except for the Lakeshore Internet Contract.


 


3.21         No Employees or Benefit Plans. The Company
does not currently have and has never had any employees and does not maintain
any employee benefit plans (as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”))
or employee pension plans (as defined in Section 3(2) of ERISA.


 


3.22         Insurance. Schedule
3.22 sets forth an accurate and complete list of all insurance policies carried
by Aqua at LSE and covering the Real Property. Accurate and complete copies of
each such policy have been, or will during the Inspection Period be, made
available to Purchaser. All such policies, if any, are in full force and effect
and no notice of cancellation has been given in respect of any such policy. All
premiums due thereon have been paid in a timely manner. Neither Aqua at LSE nor
Seller has received any notice of any pending or threatened claims under any of
such insurance policies.


 


3.23         Bank Accounts. Schedule
3.23 sets forth an accurate and complete list of the names and locations of
all banks or other financial institutions in which the Company has accounts or
maintains safe deposit boxes, and in respect of each such account or safe
deposit box sets forth the type of account, the account number, and the names
of the persons authorized to draw thereon or have access thereto. No 


 


16

















 


person holds a power of attorney from the Company to
act on behalf of the Company in respect of any such account or safe deposit
box. 


 


3.24         Tangible Personal Property.


 


(a)           Aqua at LSE has good and
marketable title to any machinery, equipment, fixtures, tools, spare and
maintenance parts, furniture, vehicles and any other tangible personal property
owned by Aqua at LSE (and not otherwise by Tenants) at the Real Property
(collectively, the “Tangible Personal Property”), free and clear of any
Liens, except as set forth on Schedule 3.24(a) and except for
Permitted Exceptions. The owned and leased Tangible Personal Property
constitutes all tangible personal property necessary for the operation of the
Real Property as currently conducted or as currently contemplated to be
conducted. No person other than Aqua at LSE owns any Tangible Personal Property
situated on the Real Property or necessary to the operation of the Real
Property, except for the leased items disclosed on Schedule 3.24(b). None
of the Tangible Personal Property is subject to any agreement, arrangement or
understanding for its use by any person other than Aqua at LSE or any Tenants
of the Real Property. Except as set forth on Schedule 3.24(a), no item
of Tangible Personal Property owned or used by Aqua at LSE is subject to any
conditional sale agreement, installment sale agreement or title retention or
security agreement or arrangement of any kind. As to each item of Tangible Personal
Property subject to any such agreement or arrangement, Schedule 3.24(a) sets
forth a brief description of the property in question and the amount and
repayment terms of the underlying obligation. Seller will deliver a fixed asset
inventory to Purchaser during the Inspection Period.


 


(b)           Schedule 3.24(b) sets
forth a complete and correct list of all material Tangible Personal Property
leases to which Aqua at LSE is a party, together with a brief description of
the property leased. Seller has made available to Purchaser complete and
correct copies of each lease (and any amendments thereto) listed on Schedule
3.24(b).     Except as set forth on Schedule
3.24(b): (i) each such lease is in full force and effect; (ii) all
lease payments due to the date hereof on any such lease have been paid, and, to
Aqua at LSE’s and Seller’s knowledge, neither Aqua at LSE nor any other party
is in material default under any such lease, and no event has occurred that
constitutes, or with or without notice, lapse of time, or both would
constitute, a material default by Aqua at LSE or any other party under such
lease; and (iii) Aqua at LSE has received no notice of any disputes or
disagreements between Aqua at LSE and any other party in respect of any such
lease.


 


3.25         Disclosure. No
representation or warranty of Aqua at LSE or Seller contained in this Agreement
(including the Schedules attached hereto), and no statement contained in any
document, list, certificate or other instrument furnished or to be furnished by
or on behalf of Seller to Purchaser or Purchaser’s representatives in
connection with the transactions contemplated hereby, contains any untrue
statement of a material fact as of the Effective Date.


 


3.26         Patriot Act. Neither
Seller I nor Seller 2 is (i) engaged in any money laundering scheme or
activity in violation of applicable anti-money laundering Laws, including the
Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001, as amended (the “Patriot Act”),
or (ii) any person (A) listed on the Annex to, or who is otherwise subject
to the provisions of, the Executive Order No. 13224 on Terrorist
Financing, effective September 24, 2001, and relating to Blocking Property
and Prohibiting Transactions with Persons Who Commit, Threaten to Commit or
Support Terrorism, or (B) that is named as a “specifically designated national”
on the most current list published by the U.S. Treasury Department Office of
Foreign Assets


 


17

















 


Control at its official website
(http://www.treas.gov.ofac/t1 1sdn.pdf) or at any replacement website or other
replacement official publication of such list.


 


As used in this Agreement,
the phrases “to the knowledge of Seller” or “to Seller’s knowledge”
or “to the knowledge of Aqua at LSE” or “to Aqua at LSE’s knowledge”
mean the current actual knowledge, without investigation or inquiry, of David
Carlins (a “Seller Representative”) without regard to the knowledge of
any former or other employees, agents or contractors of Seller. The Seller
Representative shall not have any personal liability whatsoever for the
representations and warranties made herein or for any other matters relating to
this Agreement.


 


ARTICLE IV

Representations and Warranties of Purchaser


 


Purchaser
hereby makes the following representations and warranties to Seller, each of
which is true and correct as of the Effective Date and shall be true and
correct as of the Closing Date.


 


4.1           Organization. Purchaser
(i) is a limited partnership or other entity duly organized, validly existing
and in good standing under the Laws of the jurisdiction of organization
(ii) has the requisite partnership or corporate, as applicable, power and
authority to own and operate its assets and properties and to carry on its
business as now currently conducted. Purchaser is in good standing and is duly
qualified and authorized to conduct business as a foreign company under the
Laws of each jurisdiction in which the conduct of its business or the ownership
or lease of its assets or properties requires such qualification or
authorization.


 


4.2           Authorization. Purchaser has
the requisite limited partnership or other requisite power to execute and
deliver this Agreement and, subject to Purchaser obtaining necessary internal
approvals during the Inspection Period, as of the Closing Date will have the
requisite limited partnership or other requisite power to execute and deliver,
each other agreement, certificate, instrument and document contemplated by this
Agreement to be executed by Purchaser in connection with the consummation of
the transactions contemplated hereby (all such other agreements, certificates,
instruments and documents required to be executed by Purchaser are collectively
referred to as, the “Purchaser Documents” and, together with the Seller
Documents, the “Related Documents”) and, as of the Closing Date will
have the requisite limited partnership or other requisite power, to perform the
obligations to be performed by Purchaser hereby and thereby. The execution and
delivery by Purchaser of this Agreement and each Purchaser Document and the
performance by it of the obligations to be performed by it hereunder and
thereunder have been (or at the time of execution will be) duly authorized by
all necessary limited partnership or other requisite action on the part of
Purchaser. This Agreement has been (and each Purchaser Document will be) duly
executed and delivered by Purchaser and, assuming the due execution and
delivery of this Agreement and each Purchaser Document by the other party or
parties hereto or thereto, this Agreement and each Purchaser Document
constitutes a valid and binding obligation of Purchaser enforceable against
Purchaser in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium, or other similar Laws affecting the
enforcement of creditors’ rights in general and subject to general principles
of equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity). Purchaser acknowledges and agrees that
Purchaser’s internal approvals shall not be a condition precedent to Closing
after the expiration of the Inspection Period.


 


4.3           Consents and Approvals. No consent,
approval, waiver, order or authorization of, or registration, declaration or
filing with, or notice to, any Governmental Entity or other person is required
to be obtained or made by or in respect of Purchaser in connection with the
execution and delivery of this Agreement or any Purchaser Document by
Purchaser, the performance by Purchaser of the obligations to


 


18

















 


be performed by it hereunder and thereunder or the
consummation of the transactions contemplated hereby or thereby other than
those already obtained or that will be obtained prior to such execution and
delivery, performance or consummation thereof.


 


4.4           No Conflicts. The execution
and delivery of this Agreement does not (and each Purchaser Document will not),
and neither the performance by Purchaser of the obligations to be performed by
it hereunder or thereunder, nor the consummation of the transactions
contemplated hereby and thereby, will, (i) conflict with the certificate
of formation or other governance documents of Purchaser, (ii) to Purchaser’s
knowledge, conflict with, result in any violation of, constitute a Default
under, or give rise to a right of termination, cancellation or acceleration of,
or any obligation or to loss of a benefit under, any note, bond, mortgage,
indenture, license, agreement or other document or obligation to which
Purchaser is a party or by which its assets or properties are bound,
(iii) to Purchaser’s knowledge, violate any Order of any Governmental
Entity or Law applicable to Purchaser or (iv) require any offer to
purchase or result in the creation of any Lien upon any of the assets or
properties of Purchaser.


 


4.5           Litigation. To
Purchaser’s knowledge, there is no claim or judicial or administrative action,
suit, proceeding or investigation pending or threatened that questions the
validity of this Agreement or any Purchaser Document, the performance by
Purchaser of the obligations to be performed by it hereunder or thereunder or
the consummation of the transactions contemplated hereby or thereby.


 


4.6           Broker’s Fees. Neither
Purchaser nor any person acting on its behalf has agreed to pay any commission,
finder’s or broker’s fee, or similar payment in connection with the
transactions contemplated hereby or any matter related hereto or has otherwise
dealt with any broker or finder acting on behalf of Purchaser.


 


4.7           Securities Law Matters. Purchaser
understands and acknowledges that the Interests have not been registered under
the Securities Act of 1933, as amended (the “Securities Act”), or any
state securities Laws and, unless so registered, may not be offered, sold,
transferred or otherwise disposed of except pursuant to an exemption from, or
in a transaction not subject to, the registration requirements of the
Securities Act and any applicable state securities Laws. Purchaser is an
“accredited investor” (as defined in Rule 501(a) of Regulation D under the
Securities Act). Purchaser (i) has knowledge and experience in financial
and business matters such that it is capable of evaluating the merits and risks
of purchasing the Interests, and (ii) is able to bear the economic risk of
an investment in the Interests for an indefinite period, including the risk of
a complete loss of any such investment. Purchaser is acquiring the Interests
for investment for its own account, and not with a view to, or for sale in
connection with, any distribution thereof in violation of the Securities Act or
any state securities Laws.


 


4.8           Patriot Act. Purchaser is
not (i) engaged in any money laundering scheme or activity in violation of
applicable anti-money laundering Laws, including the Patriot Act, or
(ii) any person (A) listed on the Annex to, or who is otherwise subject to
the provisions of, the Executive Order No. 13224 on Terrorist Financing,
effective September 24, 2001, and relating to Blocking Property and
Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support
Terrorism, or (B) that is named as a “specifically designated national” on the
most current list published by the U.S. Treasury Department Office of Foreign
Assets Control at its official website (http://www.treas.gov.ofac/tl lsdn.pdf) or
at any replacement website or other replacement official publication of such
list.


 


As
used in this Agreement, the phrases “to the knowledge of Purchaser” or “to
Purchaser’s knowledge” or “Purchaser has actual knowledge” each mean
the current actual knowledge, without investigation or inquiry, of Robert T.
Poynter and Jon Bader (each, a “Purchaser Representative”) without


 


19

















 


regard to the knowledge of any former or other
employees, agents or contractors of Purchaser. No Purchaser Representative
shall have any personal liability whatsoever for the representations and
warranties made herein or for any other matters relating to this Agreement.


 


ARTICLE V

Inspection Period and Feasibility Study


 


5.1           Feasibility Study. Purchaser
shall have the right to conduct engineering and/or market and economic
feasibility studies of the Real Property and a physical inspection of the Real
Property, including studies or inspections to determine the existence of any
environmental hazards or conditions (collectively, the “Feasibility Study”)
during the period (the “Inspection Period”)  commencing on the
Effective Date and ending at 11:59 p.m., prevailing Central Time, on September 24,
2010. With Seller’s permission, after Seller has received advance notice
sufficient to permit it to schedule in an orderly manner Purchaser’s
examination of the Real Property and to provide at least 24-hours’ advance
written notice to any affected tenants, Purchaser or its designated agents may
enter upon the Real Property during normal business hours for purposes of
analysis or other tests and inspections that may be deemed necessary by
Purchaser for the Feasibility Study. Purchaser must be accompanied by a
representative of NNP Residential, LLC (the ”Property Manager”), the
property manager for the Real Property, or another designated representative of
Seller or have received Seller’s written permission prior to entering upon the
Real Property in connection with Purchaser’s Feasibility Study; provided,
however, that Purchaser may not enter into any space leased by any tenant
without being accompanied by the Property Manager or another designated
representative of Seller. Seller shall make the Property Manager, Seller’s
manager or another representative reasonably available during normal business
hours. Purchaser will not alter the physical condition of the Real Property
without notifying Seller of its requested tests, and obtaining the written
consent of Seller to any physical alteration of the Real Property. Purchaser
will utilize commercially reasonable diligence to conduct or cause to be
conducted all inspections and tests in a manner and at times that will not unreasonably
interfere with any tenant’s use and occupancy of the Real Property. If
Purchaser determines, in its sole judgment and for any or no reason whatsoever,
that the Real Property is not suitable for Purchaser’s intended use or purpose,
or is not in satisfactory condition, then Purchaser may terminate this
Agreement in accordance with Section 10.1(d) prior to
expiration of the Inspection Period, in which case the Earnest Money will be
returned to Purchaser in accordance with Section 10.4(a). If this
Agreement is not terminated pursuant to this Section 5.1, then
Purchaser or its designated agents may enter upon the Real Property after
expiration of the Inspection Period from time to time during normal business
hours and upon advance notice to Seller (which notice may be oral) for the
purpose of inspecting the common areas; provided, however, that
Purchaser may not enter into any space leased by any tenant without Seller’s
consent and without being accompanied by Seller’s manager for the Real Property
or another designated representative of Seller. If this Agreement is not
terminated pursuant to this Section 5.1, then Purchaser’s right to
terminate this Agreement pursuant to this Section 5.1 and any and
all objections in respect of the Feasibility Study will be deemed to have been
waived by Purchaser for all purposes.


 


5.2           Restoration of Property. Purchaser
will promptly restore the Real Property to its original condition if damaged or
changed due to the tests and inspections performed by Purchaser, free of any
mechanic’s or materialman’s liens or other encumbrances arising out of any of
the inspections or tests. The provisions of this Section 5.2 shall
survive the termination of this Agreement.


 


5.3           Indemnification and
Insurance. Purchaser shall indemnify and hold Seller harmless
from all claims, liabilities, damages, losses, costs and expenses (including
reasonable attorneys’ fees) caused by Purchaser or independent contractors,
agents, consultants and other representatives conducting the Feasibility Study
(collectively, “Purchaser’s Feasibility Representatives”) during the
Feasibility Study; provided, however, that neither Purchaser nor
any of Purchaser’s Feasibility Representatives shall be


 


20














 


liable for, and Purchaser shall not indemnify Seller
in respect of, any pre-existing condition, fact, matter, item, or substance
discovered, uncovered, located, identified, or disturbed as a result of
Purchaser’s or Purchaser’s Feasibility Representatives’ entry to the extent
such condition, fact, matter, item or substance is not exacerbated by Purchaser
or Purchaser’s Feasibility Representatives. Purchaser shall procure and
continue in force from and after the date Purchaser and Purchaser’s Feasibility
Representatives first enter the Real Property, and continuing throughout the
term of this Agreement, liability insurance of not less than $2,000,000 naming
Aqua at LSE, Seller 1, Seller 2, the Company and the Property Manager as
additional insureds. The provisions of this Section 5.3 shall
survive termination of this Agreement.


 


5.4           Service Contracts. During the
Inspection Period, Purchaser shall have the right to review all Contracts in
respect of the service and maintenance of the Real Property (the “Service
Contracts”). Purchaser may notify Seller prior to the expiration of the
Inspection Period of any Service Contracts that Purchaser, in its discretion,
approves. All Service Contracts (other than the Non-Terminable Contracts) that
Purchaser does not so approve shall be deemed disapproved, and Seller shall, at
Seller’s expense, terminate or cause to be terminated such disapproved Service
Contracts effective not later than the Closing Date. Notwithstanding the
foregoing, Purchaser shall be deemed to have approved and shall have no right
to reject those Service Contracts (“Non-Terminable Contracts”)  that,
by their terms, cannot be terminated by Seller without the payment of a
penalty, termination fee, or other charge that is greater than two months’
payment for services under such Service Contract. The Non-Terminable Contracts
are listed on Schedule 5.4.


 


5.5           Lender Consent. Purchaser
acknowledges that Seller will need to obtain the consent of the existing
lenders to the transactions contemplated by this Agreement during the
Inspection Period (the “Lender Consent”). To the extent that Seller is
unable to secure the Lender Consent on or before the expiration of the
Inspection Period, Seller shall have the right to terminate this Agreement in
accordance with Section 10.1(h) prior to expiration of the
Inspection Period, in which case the Earnest Money will be returned to
Purchaser in accordance with Section 10.4(a) and Seller shall reimburse
Purchaser for all out-of-pocket costs and expenses (including attorneys’ fees,
engineering fees, consultants’ fees, environmental fees and Acquisition
Financing costs and expense) incurred by Purchaser in connection with the
transactions contemplated hereby, the inspection and review of the Real
Property and the negotiation and preparation of this Agreement and the other
documents contemplated hereby (collectively, the “Purchaser’s Costs”), not
to exceed the amount of $1,500,000 in the aggregate. Purchaser agrees to submit
to Seller all invoices and other evidence reasonably satisfactory to Seller
substantiating the Purchaser’s Costs (“Evidence of Purchaser’s Costs”).


 


5.6           Hotel Transaction. Purchaser
acknowledges that Aqua at LSE has contracted to convey the Hotel Parcel to CM
Chicago LLC, a Delaware limited liability company (the “Prospective Hotel
Owner”) (such transaction, the “Hotel Transaction”) and has agreed
to execute the following documents: (i) Hotel BOA Amendment;
(ii) Amenities Management Agreement; (iii) Parking Agreement; and (iv) Hotel
Amenities Easement Agreement (collectively referred to as the “Hotel
Transaction Documents”). Seller will make the Hotel Transaction Documents
available to Purchaser for review during the Inspection Period. Notwithstanding
the foregoing, Seller is presently negotiating the terms of the Amenities
Management Agreement with the Prospective Hotel Owner which will be assigned to
Purchaser upon the Closing. Seller agrees to provide drafts of the Amenities
Management Agreement to Purchaser for its review during the negotiation process
and Purchaser may confer with Seller with respect to any comments Purchaser may
have; provided, however, that Seller shall have no obligation to pursue any
such comments with the Prospective Hotel Owner. Seller shall use commercially
reasonable efforts to fully negotiate the form of the Amenities Management
Agreement prior to the expiration of the Inspection Period. If Seller has fully
negotiated the Amenities Management Agreement with the Prospective Hotel Owner
prior to expiration of the Inspection Period and Purchaser elects not to
terminate this Agreement pursuant to Section 10.1(d), then
Purchaser shall be deemed to have approved the form of the Amenities


 


21

















 


Management Agreement. If Seller and the Prospective Hotel
Owner have not fully negotiated the Amenities Management Agreement prior to the
expiration of the Inspection Period and Seller subsequently agrees to a
modification that would result in a Material Adverse Effect, then Purchaser
shall have the right to terminate this Agreement upon written notice to Seller,
whereupon the Earnest Money will be returned to Purchaser in accordance with Section 10.4(a) and
Seller shall reimburse Purchaser for Purchaser’s Costs promptly upon Seller’s
receipt of the Evidence of Purchaser’s Costs.


 


5.7           Estoppel Certificates. Seller shall
use commercially reasonable efforts to deliver to Purchaser on or before the
expiration of the Inspection Period, an estoppel certificate from any third
party to any reciprocal easement agreement or other shared-use covenant,
condition or restriction to which the Real Property is subject, in each case
certifying that there is no default thereunder or event that, with the lapse of
time, giving of notice or both would become a default thereunder (each, an “REA
Estoppel”). Seller shall submit to Purchaser within five business days
following the Effective Date a proposed form of REA Estoppel. Provided
Purchaser has received the document to which the estoppel in question relates,
Purchaser shall use commercially reasonable efforts to notify Seller within
three business days following Purchaser’s receipt of the proposed form of any
comments Purchaser has to the proposed form or if Purchaser otherwise approves
the proposed form.


 


5.8           “AS IS” Sale. Purchaser
acknowledges that, except as expressly set forth in this Agreement or in any
Seller Document: (i) none of Seller, Aqua at LSE or any of their respective
affiliates, members, managers, officers, directors, shareholders, partners,
agents, employees or other representatives has made any representation or
warranty whatsoever, express or implied, regarding the Real Property, the
Building or the Project, including representations as to the physical nature or
condition of same or the Purchaser’s intended use of the Real Property, and
(ii) the sale of the Interests to Purchaser shall be “AS IS”, “WHERE IS”,
“WITH ALL FAULTS” and is made without any warranties, express or implied,
except as otherwise expressly set forth in this Agreement. Purchaser hereby
releases Seller, Aqua at LSE and the Related Parties from any claim or action
with respect to the physical condition of the Real Property, except for the
express representations, warranties and obligations of Seller and Aqua at LSE,
as applicable, under this Agreement.


 


ARTICLE VI

Casualty and Condemnation


 


6.1           Casualty.


 


(a)           Seller shall give Purchaser
prompt notice of any fire or other casualty affecting the Real Property between
the Effective Date and the Closing. Purchaser or its designated agents may
enter upon the Real Property from time to time during normal business hours and
upon advance notice to Seller in accordance with this Agreement for the purpose
of inspecting any such casualty.


 


(b)           If, prior to the Closing,
the Real Property is damaged by a fire or other casualty that would cost
$2,500,000 or more to repair, then in such event, Purchaser may, at its option,
elect to terminate this Agreement in accordance with Section 10.1(e) within
20 days after the date of Seller’s notice to Purchaser of the casualty or at
the Closing, whichever is earlier, in which case the Earnest Money will be
refunded to Purchaser in accordance with Section 10.4(a). If
Purchaser does not timely make its election to terminate this Agreement, then
the Closing will take place as provided herein without reduction of the
Purchase Price, and there will be assigned to Purchaser at the Closing all
interest of Seller in and to any casualty insurance proceeds


 


22

















 


received or to be received
by reason of such damage or destruction and shall tender at Closing the
deductible amounts under Seller’s insurance policies (including business
interruption and rental loss insurance of Seller that would be applicable to
the period after the Closing).


 


(c)           If, prior to the Closing,
the Real Property is damaged by a fire or other casualty that would cost less
than $2,500,000 to repair, and if: (i) the insurance carrier affirms and
acknowledges its liability for such damage, (ii) the insurance proceeds
are sufficient (when added to the deductible amount under such policy) to pay
the full cost of repairing such damage or destruction, and (iii) Seller
tenders at Closing the full amount of the deductible portion of such insurance
loss (including business interruption and rental loss insurance of Seller that
would be applicable to the period after the Closing) less any amounts used by
Seller to repair or restore the damage, subject to Purchaser’s Repair Approval
(as hereinafter defined), if applicable, then in such event this Agreement
shall not terminate, and, at Closing, Seller shall assign and transfer to
Purchaser all of its right, title and interest in and to such insurance
proceeds and remaining deductible amounts, if any. If the insurance proceeds
are insufficient (when added to the deductible amount under such policies) to
pay the full cost of repairing such damage or destruction, and if Seller
tenders the difference at Closing, then this Agreement shall not terminate,
and, at the Closing, Seller shall assign and transfer to Purchaser all such
insurance proceeds and the remaining deductible amount, if any. If (A) Seller
does not tender the difference at Closing, (B) the insurance carrier does
not affirm and acknowledge its liability for such damage or (C) Seller
does not tender at Closing the amount of the deductible portion of such
insurance loss (including business interruption and rental loss insurance of
Seller that would be applicable to the period after the Closing) less any
amounts used to repair or restore damage, subject to Purchaser’s Repair
Approval, if applicable, then Purchaser may, at its option, elect to terminate
this Agreement in accordance with Section 10.1(e), in which case
the Earnest Money will be refunded to Purchaser in accordance with Section 10.4(a).
For purposes of this Section 6.1(c), “Purchaser’s Repair
Approval” shall mean the approval of Purchaser in respect of the costs and
expenses to be incurred by Seller in connection with the repair and restoration
of any casualty damage prior to the Closing, which approval shall not be
unreasonably withheld, conditioned or delayed and if not given by Purchaser
within 24 hours after Seller’s request therefor, Purchaser’s approval shall be
deemed given. In no event shall Purchaser’s Repair Approval be required in
connection with any repairs or restoration work that Seller, in its discretion,
believes necessary to undertake immediately so as to prevent further property
damage or personal injury at the Real Property.


 


(d)           If and to the extent that Seller
is required in this Section 6.1 to assign and transfer to Purchaser
all of Seller’s right, title and interest in and to insurance proceeds and
deductible amounts, (i) Seller shall use commercially reasonable efforts
to cause its insurance carriers pay any unpaid insurance proceeds (including
business interruption and rental loss insurance of Seller that would be
applicable to the period after the Closing) to Purchaser and for Purchaser’s
benefit, and (ii) if Seller’s insurance carriers do not permit assignment of
such insurance proceeds to Purchaser, then Seller shall obtain from its
insurance carriers a policy endorsement to each applicable policy pursuant to
which Purchaser is added as a loss payee as of the Closing Date under each
applicable policy. The provisions of this Section 6.1(d) shall
survive the Closing.


 


6.2           Condemnation. Immediately
upon obtaining knowledge of the institution of any proceedings for the
condemnation of the Real Property, or any portion thereof, or any other
proceedings arising out of injury or damage to the Real Property, or any
portion thereof, Seller will notify Purchaser of the pendency of such
proceedings. If any condemnation proceedings affecting the Real Property, or
any portion thereof, are commenced or threatened prior to Closing, then
Purchaser may, at its option,


 


23

















 


(i) terminate this Agreement in accordance with Section 10.1(e) in
which case the Earnest Money shall be refunded to Purchaser in accordance with Section 10.4(a) or
(ii) waive its objections thereto.


 


ARTICLE VII

Covenants


 


7.1           Title Review and Approval.


 


(a)           Seller shall use
commercially reasonable efforts deliver to Purchaser within five days after the
Effective Date (i) a Commitment for Title Insurance with copies of all recorded
instruments affecting the Real Property and recited as exceptions in such
Commitment for Title Insurance (collectively, the “Commitment”) and
(ii) a current survey (or an update of an existing survey) (the “Survey”)
of the Real Property made on the ground by a registered professional land
surveyor that conforms to the current requirements of an ALTA/ACSM Land Title
Surveys as adopted by the American Land Title Association and American Congress
on Surveying and Mapping. The Survey shall be certified to Purchaser using a
form of certificate reasonably acceptable to Purchaser. Purchaser acknowledges
that the legal description for the Real Property is in the process of being
revised and Seller will update the Commitment as soon as reasonably practicable
to reflect the amended legal description.


 


(b)           If Purchaser has an
objection to items disclosed in the Commitment, or Survey, then Purchaser will
have ten days after receipt of the Commitment, and Survey (whichever is last
received) (the “Title Review Period”) to give Seller written notice of
its objections (the “Title Objections”). If Purchaser gives timely
written notice of its objections, then Seller shall have five business days
after delivery of Purchaser’s notice (the “Seller’s Response Period”), to
notify Purchaser whether Seller (i) elects to remove or insure over any such
Title Objections prior to Closing or (ii) elects not to remove or insure
over any such Title Objections. If Seller notifies Purchaser that it elects to
remove or insure over certain Title Objections prior to Closing, Seller shall
utilize reasonable diligence to do so, but Seller shall have no obligation to
expend any money, to incur any contractual or other obligations or to institute
any litigation in pursuing such efforts. If Seller notifies Purchaser that it
elects not to cure certain Title Objections or otherwise fails to notify
Purchaser of its election within the Seller’s Response Period (in which event
Seller will be deemed to have elected not to cure the Title Objections), then
Purchaser may elect, within five days after the expiration of the Seller’s
Response Period, as its sole and exclusive remedy, to either (A) terminate this
Agreement in accordance with Section 10.1(e), in which case the
Earnest Money will be refunded to Purchaser in accordance with Section 10.4(a) or
(ii) waive the Title Objection (which will thereupon become a Permitted
Exception). Any exception to title not objected to by Purchaser in the manner
and within the time period specified in this Section 7.1(b) will
be deemed accepted by Purchaser. The phrase “Permitted Exceptions” means
those exceptions to title set forth in the Commitment or Survey and that have
been accepted or deemed accepted by Purchaser, together with the Hotel Transaction
Documents to the extent same will be recorded against the Real Property upon
the Closing of the Hotel Transaction and are provided to Purchaser during the
first five days of the Inspection Period, and any new title exceptions in
accordance with Section 7.1(c). Notwithstanding the foregoing
provisions of this Section 7.1(b), in all events and regardless of
whether Purchaser objects to such exceptions, on or before the Closing, Seller
shall: (1) discharge any voluntary lien created by Seller that is secured
by any portion of the Real Property; (2) discharge any lien for delinquent
ad valorem taxes; (3) discharge any mortgage or deed of trust encumbering the
Real Property; (4) discharge or bond around any mechanics’ liens or other
involuntary liens; (collectively, “Monetary Encumbrances”).


 


24

















 


(c)           New Permitted Exceptions. Notwithstanding
any provision to the contrary herein contained, from time to time hereafter,
Seller may elect to record against the Land (including the Real Property)
easements or dedications to utilities or governmental authorities and
additional title exceptions of a similar nature reasonably required or
desirable in connection with the development of the Project or the development
of adjacent parcels in the Lakeshore East development. Such additional title
exceptions may include utility easements, plats, modifications to existing
title exceptions and other similar recorded documents. Seller shall endeavor to
deliver new title exceptions to Purchaser for comment prior to execution
thereof and such document shall constitute an additional Permitted Exception
without Purchaser’s express approval and Purchaser shall not be entitled to
issue any objections thereto; provided, however, that to the extent that any
such additional title exceptions will result in a Material Adverse Effect, in
Seller’s or Purchaser’s reasonable discretion, then Purchaser shall have the
right to approve or disapprove such additional title exceptions by written
notice to Purchaser (stating with specificity the reasons for Purchaser’s
disapproval, if any) within five business days following Seller’s written
request therefor, failing which, the additional title exception shall be deemed
accepted by Purchaser and shall constitute and an additional Permitted
Exception. If Purchaser timely notifies Seller of its disapproval of a new
title exception as provided in the immediately preceding sentence, then such
notification shall be deemed a Title Objection and the parties shall follow the
procedure set forth in Section 7.1(b).


 


7.2           Confidential Information. Purchaser
shall treat as confidential all information and materials furnished or made
available by Seller to Purchaser in accordance with this Agreement or obtained
by Purchaser in the course of its investigation and the Feasibility Study
(collectively, “Confidential Information”). Purchaser will not divulge
and will use its commercially reasonable diligence to prevent Purchaser’s
Representatives from divulging such information except as required by
applicable Law or as reasonably necessary to third parties engaged by Purchaser
for the limited purpose of analyzing and investigating such information for the
purpose of consummating the transactions contemplated hereby, including Purchaser’s
agents, attorneys, representatives, consultants, prospective lenders, current
and prospective investors and their advisors, current and prospective financial
partners and engineers in this transaction (collectively “Purchaser’s
Representatives”). If Purchaser elects to purchase the Real Property, then
Purchaser and Purchaser’s Representatives may disclose such Confidential
Information after the Closing (provided, however, that any disclosure by
Purchaser or Purchaser’s Representatives of Confidential Information regarding
Aqua at LSE, Seller 2 or any affiliates of Seller or the Company not involved
in the transactions contemplated by this Agreement, as well as any Confidential
Information pertaining to portions of the Project other than the Real Property
or common areas of the Project appurtenant to the Real Property or any portion
thereof, shall be subject to Seller’s prior approval, not to be unreasonably
withheld, delayed or conditioned). Notwithstanding any other provision of this Section 7.2
to the contrary or in any other agreement to which a party hereto is bound, the
Confidential Information shall exclude, and Purchaser and Purchaser’s
Representatives may disclose, any information or documentation that (i) is
readily ascertainable by the general public, (ii) was known to Purchaser
prior to the execution of this Agreement, (iii) is deemed advisable by
Purchaser to disclose to its officers, directors, members, managers, employees,
agents, consultants, members of professional firms serving it or potential
lenders, investors, consultants and brokers and others who need to know such
information or review such documentation for the purpose of assisting Purchaser
in connection with the transactions contemplated hereby so long as such persons
are informed by Purchaser of the confidential nature of such information and
are directed by Purchaser to treat such information confidentially,
(iv) is required to be disclosed by applicable Law or (v) is deemed
advisable by Purchaser or its counsel to be disclosed in connection with
financial reporting, securities disclosures or other legal, tax or financial
requirements or guidelines applicable to Purchaser or any affiliate thereof,
including any disclosures to the Securities and Exchange Commission. Notwithstanding
any provision to the contrary contained in this Agreement, (including Section 10.4(c) and
Section 11.4), Purchaser acknowledges that Seller is likely


 


25

















 


to suffer irreparable harm without adequate remedies
at law in the event Purchaser or any of Purchaser’s Representatives violate the
terms of this Section 7.2 and improperly discloses Confidential
Information and as a result, Seller shall have the right to pursue equitable
relief, including specific performance and any damages which Seller might be
entitled to recover. Purchaser hereby waives the defense that there is an
adequate remedy at law and waives any requirement for the posting of a bond by
Seller. In the event that Seller files an action for specific performance or
injunctive relief due to a breach of this Section 7.2 by Purchaser
or any of Purchaser’s Representatives, Seller shall be entitled to
reimbursement by Purchaser of all reasonable attorneys’ fees and expenses
incurred by Seller if Seller prevails in any such action. The terms of this Section 7.2
shall survive the Closing or any sooner termination of this Agreement.


 


7.3           Submission Matters and
Additional Submission Matters.


 


(a)           Submission Matters. Seller shall
or shall cause the Company to deliver in physical or electronic format, or
otherwise make available if not reasonably deliverable in either such format,
to Purchaser, within five days after the Effective Date, copies of the
following (the “Submission Matters”):


 


(i)            a standard form of Tenant
Lease and of the Retail Lease used in respect of the Real Property;


 


(ii)           all Tenant Leases with
Retail Tenants (“Retail Leases”);


 


(iii)          all Service Contracts
relating to the ownership and operation of the Real Property;


 


(vi)          a list of all Tangible
Personal Property;


 


(v)           all Permits in respect of
the ownership and operation of the Real Property, including all building
permits and certificates of occupancy;


 


(vi)          the most current real estate
and personal property tax statements in respect of the Real Property;


 


(vii)         to the extent (and only to
the extent) that such items are available and in Seller’s or the Company’s
actual possession or in the actual possession of the Property Manager, all
warranties and guaranties relating to the Real Property, or any part thereof,
or to the Tangible Personal Property;


 


(viii)        a rent roll as of a date not
more than 30 days prior to the Effective Date (“Initial Rent Roll”)  prepared
by the Property Manager showing, at a minimum, the following information:
(A) unit number, (B) the amount of any rental concessions and prepaid
rent, (C) rental rate, (D) expiration date of the Tenant Lease or
Retail Lease, (E) amount of deposits and (F) move-in date;


 


(ix)           the Aqua Budget Comparison,
the Aqua Balance Sheet, the Aqua Rent Roll (detailed for residential); the Aqua
Rent Roll (detailed for retail and office) for May, 2009 through December 2009
and 2010 year to date (collectively, the “Financial Statements”);


 


26

















 


(x)            to the extent (and only to the extent) that such items
are available and in Seller’s or the Company’s actual possession or in the
actual possession of the Property Manager, all environmental, engineering and
soils reports;


 


(xi)           to the extent (and only to the extent) that such items
are available and in Seller’s or the Company’s actual possession or in the
actual possession of the Property Manager, non-privileged correspondence and
pleadings in pending lawsuits affecting the Real Property, if any;


 


(xii)          a list of repairs done to the Real Property within the
last 12 months having a cost of more than $25,000;


 


(xiii)         to the extent (and only to the extent) that such items
are available and in Seller’s or the Company’s actual possession or in the
actual possession of the Property Manager, all documentation regarding any
roof, foundation or pest control (including termite) work performed on the Real
Property and the bonds and/or warranties of such work;


 


(xiv)        a schedule of all insurance claims over the past year
that relate to the Real Property or the Company, including crime and casualty
claims;


 


(xv)         all Orders of any Governmental Entities affecting the
Real Property or the Company;


 


(xvi)        a description of all pending and threatened
litigation, if any, affecting the Real Property or the Company;


 


(xvii)       any written notices either (i) claiming violation
of any applicable Law or restrictive covenant affecting the Company or any
portion of the Real Property, or (ii) requiring or calling attention to
the need for any work, repairs, construction, alterations or installation in
connection with the Real Property that is required in order to comply with any
Law or restrictive covenant;


 


(xviii)      to the extent (and only to the extent) that such items
are available and in Seller’s or the Company’s actual possession or in the
actual possession of the Property Manager, copies of any zoning information
relating to the Real Property; and


 


(xix)         drafts of the Aqua Transfer Documents (which Seller
shall deliver to Purchaser within ten days following the Effective Date) and
the Hotel Transaction Documents as provided in Section 5.6.


 


(b)           Additional Submission Matters. In addition, Seller will cause to be
made available to Purchaser for inspection at the Real Property the following
(the “Additional Submission Matters”), to the extent (and only to the
extent) that such items are available and in Seller’s or the Company’s actual
possession or in the actual possession of the Property Manager:


 


(i)            copies of all architectural drawings, plans and specifications,
engineering plans and studies, floor plans, landscape plans and other plans or
studies of any kind that relate to the Real Property in the possession of or
under the control of Seller or the Company;


 


27

















 


(ii)           a copy of the current casualty insurance and business
interruption or loss of rent insurance policies, showing conditions, coverage
and deductible amounts;


 


(iii)          the 12 most recent utility bills relating to the Real
Property;


 


(iv)          all Tenant Leases and all Retail Leases; and


 


(v)           delinquency logs, tenant complaint logs,
repair/maintenance logs and records.


 


(c)           Termination. Upon any termination of this Agreement, to the
extent requested by Seller, Purchaser shall promptly return to Seller all of
the Submission Materials and Additional Submission Materials without retaining
any copies or extracts therefrom, and, to the extent requested by Seller,
copies of any third party reports, studies or tests commissioned by Purchaser
with respect to the Real Property. In effecting such return, Purchaser may
delete its electronic copies of the Submission Materials and Additional
Submission Materials to satisfy the foregoing requirement, and Purchaser may
return hard copies of any other Submission Materials or Additional Submission
Materials that have been delivered to Purchaser in the form of hard copies.


 


7.4           Pre-Closing Operations. For a period of at least 72 hours
before the Closing, Seller shall cause the Company to discontinue data entry
operations in the on-site computer system for the Real Property, including
making deposits of rental income. Seller acknowledges that such discontinuance
is intended to afford Seller and Purchaser an opportunity to complete work on
prorations as set forth in this Agreement. Seller shall, as soon as practicable
after discontinuing such data entry (with Seller endeavoring to do the same
within two hours after such discontinuance), forward to Purchaser or its
designee final reports to facilitate compilation of prorations.


 


7.5           Continued Operations. Except as otherwise provided in Section 7.4,
from the Effective Date until Closing, Seller will, and will cause the Company
to, (i) maintain and operate the Company and the Real Property in its
current state and condition in accordance with the Company’s customary manner,
(ii) continue all insurance policies relative to the Real Property in full
force and effect, (iii) not remove any item of Tangible Personal Property from
the Real Property unless replaced by a comparable item of Tangible Personal
Property or unless obsolete, (iv) maintain all Permits, including all
development, building and use permits and certificates of occupancy, (v) perform,
when due, all material obligations under any and all Material Contracts and
otherwise in accordance with applicable Laws, and (vi) promptly forward to
Purchaser any notices of code violations received by the Company or Seller in
respect of Real Property. Without limiting the generality of the foregoing,
Seller shall cause the Company to:


 


(a)           maintain its records in substantially the same manner
as presently maintained;


 


(b)           not sell, lease or otherwise dispose of, or agree to
sell, lease or otherwise dispose of, any of its assets, except for fair value
in the ordinary course of business consistent with prior practice;


 


(c)           not acquire any material capital asset (“material” for
purposes of this paragraph shall mean any capital asset whose acquisition price
or fair market value is in excess of $100,000), except any capital repairs in
the ordinary course of business, or in connection with any repairing and
restoration after a casualty;


 


28

















 


(d)           not enter into or assume any pledge or other title
retention agreement, or permit any Lien to attach upon any of its assets (other
than Permitted Exceptions) or incur any indebtedness for borrowed money other
than in the ordinary course of business;


 


(e)           not enter into any contract, commitment or agreement
which would result in an obligation in excess of $100,000 unless terminable on
30 days notice without penalty, or amend or modify adversely, cancel, rescind,
revoke or terminate any of the Contracts in a material manner, except in the
ordinary course of business;


 


(f)            operate and maintain the Real Property in a manner
generally consistent with the manner in which the Company has operated and
maintained such Real Property prior to the Effective Date, such that at the
Closing the Real Property is in substantially the same condition as on the
Effective Date, normal wear and tear and casualty excepted;


 


(g)           not modify any Contract or enter into any new
agreement relating to the operation or maintenance of the Real Property, except
for those entered into in the ordinary course of business or otherwise approved
by Purchaser, which approval shall not be unreasonably withheld, delayed or
conditioned;


 


(h)           not cancel, revoke or terminate any Contract, except
in the ordinary course in accordance with its terms or as otherwise approved by
Purchaser, which approval shall not be unreasonably withheld;


 


(i)            not incur any capital expenditure at the Real Property
in excess of $25,000;


 


(j)            maintain policies of property casualty insurance,
liability insurance and rental loss insurance with coverage, terms, conditions
and deductible amounts substantially consistent with the insurance policies on
the Real Property currently in effect; and


 


(k)           pay as and when the same become due and payable, all
payments to be made under any loan documents in respect of the Real Property
and comply in all respects with all other provisions of such loan documents and
not cause or permit a material default thereunder, and not amend or agree to
the amendment of any of the provisions of such loan documents.


 


7.6           Rent Ready Condition. If any apartment unit is vacated seven
days or more prior to Closing, then, prior to Closing, Seller shall and shall
cause the Company to use commercially reasonable diligence to return such unit
to rentable condition in accordance with the Company’s customary cleaning,
painting and repair standards for vacant units (the condition of such an
apartment unit after cleaning is referred to herein as a “Rent Ready
Condition”). If, on the Closing Date, any of such units is not in a Rent
Ready Condition, then the Purchase Price shall be credited in an amount equal
to $1,000 for each unit that is not in a Rent Ready Condition.


 


7.7           Leasing. From the Effective Date through Closing, Seller
shall cause the Company to conduct its leasing activities in the normal course
of business; provided, however, that after the Effective Date
(i) Seller shall not enter into any new leases with corporate apartment
providers without Purchaser’s prior written approval, not to be unreasonably
withheld, delayed or conditioned, and (ii) Seller shall not enter into any new
leases for retail uses, enter into letters of intent with respect thereto
(including for renewals), negotiate. modifications and extensions of existing
Retail Leases, or cancel, revoke or terminate any Retail Lease, except upon the
scheduled expiration date, without Purchaser’s prior written approval in each
instance, which approval shall not be unreasonably withheld, delayed or
conditioned.


 


29

















 


7.8           Website. Seller shall maintain, or cause to be maintained, on
the website for the Project (the “Project Website”) until the Closing
all information relating to the Real Property, except that upon the Closing,
Seller shall remove all references to Aqua at LSE as owner, as well as any
internet lease concessions. In the Aqua Transfer Documents, Aqua at LSE shall
cause to be conveyed to the Company, a non-exclusive license to use the
following materials, if any, to the extent that Aqua at LSE owns same or has
the legal right to permit the use of same: all existing professional
photography of the Building and the Real Property and all high-resolution
electronic and physical files for artwork related to the Project, the Building
and the Real Property, including logos, brochures, inserts, signage and the
like, but specifically excluding any of the foregoing materials pertaining to
the Condominium Parcel and the Hotel Parcel.


 


7.9           Satisfaction of Conditions. Subject to the terms and conditions
hereof, Seller shall use its reasonable efforts to (i) take, or cause to be
taken, all actions necessary or appropriate to consummate the transactions
contemplated hereby and (ii) cause the fulfillment at the earliest practicable
date of all of the conditions to its obligations to consummate the transactions
contemplated hereby.


 


7.10         Notification. Seller shall promptly give written
notice to Purchaser when any it becomes aware of any event that has had, or
would reasonably be expected to have, a Material Adverse Effect. No such notice
shall affect the representations, warranties, covenants, agreements or
conditions of Seller hereunder or its liability therefor, or prevent Purchaser
from relying on such representations, warranties, covenants, agreements or
conditions contained herein or making any claims thereunder.


 


7.11         Exclusivity. From the Effective Date through the
Closing, none of Aqua at LSE, Seller or the Company shall (and each shall cause
their respective representatives and affiliates not to), directly or
indirectly, (i) solicit, initiate, entertain, consider, encourage, accept
or take any action reasonably likely to facilitate the submission of any
proposal or offer from any third party relating to the acquisition (whether by
merger, purchase of stock, purchase of assets or otherwise) of all or any part
of the Real Property or the Company or (ii) participate in any discussions
or negotiations (and each of the foregoing shall immediately cease any
discussions or negotiations that are ongoing) regarding, furnish any
information in respect of, assist or participate in any effort or attempt by
any third party to do or seek any of the foregoing. Aqua at LSE, the Company
and Seller shall promptly give Purchaser written notice of any solicitation,
proposal or offer from any third person and the details thereof, including the
identity of the third person.


 


7.12         Public Statements. Prior to the Closing, neither Seller
(or the Company) nor Purchaser shall issue any press release in respect of the
transactions contemplated hereby without the prior written consent of the other,
except to the extent required by applicable Law or as may otherwise be
permitted pursuant to Section 7.2. After the Closing, either Seller
or Purchaser shall have the right to issue a press release or private
communication announcing the purchase and sale of the Company or the resulting
change in ownership of the Real Property so long as the release does not,
except to the extent required by applicable Law or as may otherwise by
permitted pursuant to Section 7.2, disclose the economic terms
thereof (a “Permitted Release”). Notwithstanding the preceding
provisions of this Section 7.12, any press release other than a
Permitted Release issued by either Seller or Purchaser shall be subject to the
review and approval of the other party hereto (which approval shall not be
unreasonably conditioned, delayed or withheld), except to the extent required
by applicable Law or as may otherwise by permitted pursuant to Section 7.2,
in which event the review and approval of the other party hereto shall not be
required. The provisions of this Section 7.12 shall survive the
Closing.


 


7.13         Audit by Purchaser. Seller acknowledges that Purchaser may
cause to be prepared audited financial statements in respect of the Company or
the Real Property in compliance with the policies of Purchaser and certain
Laws, including applicable regulations promulgated by the Securities


 


30














 


and
Exchange Commission. Seller shall use commercially reasonable efforts to
cooperate with Purchaser’s auditors in the preparation of such audited
financial statements (including making available for interview by Purchaser and
Purchaser’s auditors the management personnel of the Property Manager who are
responsible for the day-to-day operation of the Real Property and the keeping
of the books and records in respect of the operation of the Real Property). If
Seller has audited financial statements in respect of the Real Property, then
Seller shall promptly provide Purchaser’s auditors with a copy of such audited
financial statements. Seller acknowledges that any such audit may require
review of records existing for up to three years prior to the Closing Date. If,
after the Closing Date, Seller obtains an audited financial statement in
respect of the Real Property for a fiscal period prior to the Closing Date that
was not completed as of the Closing Date, then Seller shall promptly provide
Purchaser with a copy of such audited financial statement. The provisions of
this Section 7.13 shall survive the Closing.


 


7.14         Office Lease. During the Inspection Period, Purchaser
and Seller shall attempt to agree on the form and substance of an office lease
agreement for the Retail Parcel pursuant to which the Company, as landlord,
leases approximately 41,981 square feet of office space to Magellan Development
Group LLC, or an affiliate thereof, which affiliate shall be acceptable to
Purchaser and Seller in their reasonable discretion. The parties hereto
anticipate that the office lease will (i) provide an initial term of ten
years commencing on the Closing Date and three, five-year options to extend the
term of the office lease, (ii) provide for annual rent of $35 per square
foot of space, with escalations of 3.5% per year, including during any
extension periods, (iii) be structured as a triple-net lease,
(iv) not require the landlord to provide any tenant improvements,
allowances or other concessions, (v) be guaranteed by one or more persons
acceptable to Purchaser in its discretion and (vi) contain such other
terms and conditions as may be acceptable to Seller and Purchaser. If the
parties hereto agree upon the form and substance of the office lease agreement
during the Inspection Period, then at the request of either party hereto made
before the expiration of the Inspection Period, the parties hereto will
acknowledge before the expiration of the Inspection Period their approval of
such agreement, which shall be deemed the “Office Lease”. The parties
acknowledge and agree that neither party has engaged or will engage a broker,
and no commission will be due to any broker, in connection with the Office
Lease.


 


7.15         Parking Lease. During the Inspection Period, Seller
shall use commercially reasonable efforts to negotiate a parking master lease
agreement for the 967-space parking garage in the Building pursuant to which
the Company, as master landlord, leases such parking garage to either
(a) an affiliate of Seller who will then either sublease to, or enter into
a new management agreement with, a first-class commercial parking garage
operator that is not an affiliate of Seller or Purchaser or (b) a joint
venture between an affiliate of Seller and a first class commercial parking garage
operator that is not an affiliate of Seller or Purchaser. The parties hereto
anticipate that the parking master lease agreement will (i) provide for a
minimum term of five years, (ii) provide for annual rent of not less than
$2,300,000, (iii) be structured as a triple-net lease, (iv) not
require the landlord to provide any tenant improvements, allowances or other
concessions, (v) be guaranteed by one or more persons acceptable to
Purchaser in its discretion and (vi) contain such other terms and conditions
as may be acceptable to Seller, Purchaser and such operator. Seller and
Purchaser acknowledge that they anticipate negotiating whether the parking
master lease will include an annual escalation of rent and will be structured
as a triple-net lease. If the parties hereto agree upon the form and substance
of the parking master lease agreement during the Inspection Period, then at the
request of either party hereto made before the expiration of the Inspection
Period, the parties hereto will acknowledge before the expiration of the
Inspection Period their approval of such agreement, which shall be deemed the “Parking
Lease”. The parties acknowledge and agree that neither party has engaged or
will engage a broker, and no commission will be due to any broker, in
connection with the Parking Lease.


 


7.16         Management Agreement. During the Inspection Period, Purchaser
and Seller shall attempt to agree on the form and substance of a property
management agreement, based on Purchaser’s


 


31

















 


standard
form of property management subcontract agreement, pursuant to which the
Company engages the Property Manager or an affiliate thereof. The parties
hereto anticipate that the property management agreement will (i) provide
for a three-year term, (ii) be terminable by the Company upon notice to
the Property Manager for cause (but not for convenience), cause to include any
uncured monetary default by the Property Manager or an affiliate thereof or any
default by Seller 1, Seller 2 or an affiliate of either of them under the
Office Lease, the Parking Agreement, the LLC Agreement or this Agreement,
(iii) be terminable by the Company or property manager upon notice to the
other if the buy-sell in the LLC Agreement is exercised by either party
thereto, (iv) compensate the property manager at a rate to be negotiated
during the Inspection Period and (v) contain such other terms and
conditions as may be acceptable to Seller and Purchaser. If the parties hereto
are able to agree upon the form and substance of the property management
agreement during the Inspection Period, then at the request of either party
hereto made before the expiration of the Inspection Period, the parties hereto
will acknowledge before the expiration of the Inspection Period their approval
of such agreement, which shall be deemed the “Management Agreement”.


 


7.17         Separate Tax Parcels. As soon as practical after the Closing,
Seller shall cause the Apartment Parcel and the Retail Parcel to be divided
into a tax parcel (or tax parcels) separate from the other Parcels. Purchaser
acknowledges that Seller may be required to vertically subdivide the Project in
order to complete the tax division. Purchaser agrees to reasonably cooperate
with Seller in connection with the tax division. Seller shall keep Purchaser
reasonably informed during such process. The provisions of this Section 7.17
shall survive the Closing.


 


ARTICLE VIII

Conditions to Closing


 


8.1           Conditions Precedent to Seller’s
Obligations. The
obligation of Seller to consummate the sale of the Interests as contemplated
hereby on the Closing Date is subject to the satisfaction or waiver by Seller
on the Closing Date of the following conditions:


 


(a)           Representations and Warranties. All representations and warranties of Purchaser
contained herein that are qualified as to materiality must be true and correct,
and all representations and warranties of Purchaser contained herein that are
not qualified as to materiality must be true and correct in all material
respects, in each case on and as of the Closing Date with the same force and
effect as though the same had been made on and as of the Closing Date other
than such representations and warranties that specifically relate to an earlier
date.


 


(b)           Covenants. Purchaser must have performed and complied with the
covenants and provisions of this Agreement required to be performed or complied
with by it between the Effective Date and the Closing Date.


 


(c)           Deliveries. Purchaser must have delivered to the Escrow Agent
each item set forth in Sections 2.3 and 2.4 required to be delivered by
such Purchaser on or before the Closing Date.


 


(d)           Litigation. No action, suit or proceeding may have been
initiated or threatened for the purpose or with the probable or reasonably
likely effect of enjoining or preventing the consummation of the transactions
contemplated hereby or seeking damages on account thereof.


 


(e)           Office Lease; Parking Lease; Management Agreement. If Seller and Purchaser have not agreed
on the form and substance of the Office Lease, the Parking Lease or the
Management Agreement before the expiration of the Inspection Period as
contemplated in


 


32

















 


Sections 7.14, 7.15 and 7.16, then Purchaser and
Seller must have agreed on the form and substance of the Office Lease, the
Parking Lease or the Management Agreement, as applicable.


 


8.2           Conditions Precedent to Purchaser’s
Obligations. The
obligation of Purchaser to consummate the purchase of the Interests from Seller
as contemplated hereby on the Closing Date is subject to the satisfaction or
waiver by Purchaser on the Closing Date of the following conditions:


 


(a)           Representations and Warranties. All representations and warranties of
Seller contained herein that are qualified as to materiality must be true and
correct, and all representations and warranties of Seller contained herein that
are not qualified as to materiality must be true and correct in all material
respects, in each case on and as of the Closing Date with the same force and
effect as though the same had been made on and as of the Closing Date other
than such representations and warranties that specifically relate to an earlier
date.


 


(b)           Covenants. Seller must have performed and complied with the
covenants and provisions of this Agreement required to be performed or complied
with by it between the Effective Date and the Closing Date.


 


(c)           Deliveries. Seller must have delivered to the Escrow Agent each
item set forth in Section 2.2 and 2.4 required to be delivered by
it on or before the Closing Date.


 


(d)           Litigation. No action, suit or proceeding may have been
initiated or threatened for the purpose or with the probable or reasonably
likely effect of (i) enjoining or preventing the consummation of the
transactions contemplated hereby or seeking damages on account thereof,
(ii) recovering title to the Real Property or any part thereof or any
interest therein, (iii) increasing substantially ad valorem Taxes
theretofore or thereafter assessed against the Real Property or any part thereof
or any interest therein or (iv) enjoining the violation of any Law,
restrictive covenant or zoning ordinance that may be applicable to the Real
Property or any part thereof or any interest therein.


 


(e)           No Material Adverse Change. There must not (i) have been any
change in the environmental condition of the Real Property after expiration of
the Inspection Period or (ii) have been any change in the matters
reflected in the Commitment or the Survey after the expiration of the Title
Review Period, in any event which could reasonably be expected to have a
Materially Adverse Effect.


 


(f)              Insurability of Title. The Title Company must be prepared to issue the
Owner’s Title Policy or a marked-up, binding and effective pro forma of the
Owner’s Title Policy dated as of the Closing Date, insuring the Company’s fee
simple title to the Real Property, subject only to the Permitted Exceptions, in
an amount equal to the Unadjusted Purchase Price (or if the Unadjusted Purchase
Price increases pursuant to Section 4.1(d), then in an amount equal
to the increased, Unadjusted Purchase Price).


 


(g)           Hotel Transaction. The Hotel Transaction must have closed before, or
closes contemporaneously with, the Closing.


 


(h)           Acquisition Financing. Purchaser must have obtained, and Purchaser’s lender
must be irrevocably committed, willing and able to fund on the Closing Date,
the acquisition financing for the transactions contemplated by this Agreement
in an amount not less than $100,000,000 and on terms acceptable to Purchaser in
its discretion (the “Acquisition Financing”).


 


33

















 


(i)            REA Estoppels. If Seller has not delivered all executed and final
REA Estoppels to Purchaser before the expiration of the Inspection Period as
contemplated in Section 5.7, then Seller must have delivered all
REA Estoppels in form and substance satisfactory to Purchaser in its reasonable
discretion.


 


(j)            Office Lease; Parking Lease; Management Agreement. If Seller and Purchaser have not agreed
on the form and substance of the Office Lease, the Parking Lease or the
Management Agreement before the expiration of the Inspection Period as
contemplated in Sections 7.14, 7.15 and 7.16, then
Purchaser and Seller must have agreed on the form and substance of the Office
Lease, the Parking Lease or the Management Agreement, as applicable.


 


ARTICLE IX

Survival and Indemnification


 


9.1           Survival of Representations, Warranties
and Covenants.


 


(a)           The representations and warranties of Seller and
Purchaser contained in this Agreement shall survive for a period of one year
after the Closing Date, except such representations and warranties (i) set
forth in Section 3.13 (taxes), which shall survive until 90 days
after the expiration of all applicable statutes of limitations, and (ii) set
forth in Section 3.7 (title to interests), which shall survive
indefinitely. Any claim for indemnification in respect of any representation or
warranty that is not asserted by notice given as herein provided relating
thereto prior to the expiration of the specified period of survival shall not
be pursued and is hereby irrevocably waived after the expiration of such period
of survival. Any claim for an Indemnifiable Loss (as hereinafter defined)
asserted within such period of survival as herein provided will be timely made
for purposes hereof.


 


(b)           Except to the extent the terms and provisions of this
Agreement are expressly stated herein to survive the Closing or any sooner
termination of this Agreement, the terms and provisions of this Agreement will
not survive the Closing or any sooner termination of this Agreement.


 


9.2           Indemnification.


 


(a)           Each Seller and Aqua at LSE shall jointly and
severally indemnify, defend and hold harmless Purchaser, its affiliates and
their respective officers, directors, stockholders, managers, members,
partners, employees, agents and representatives from and against any and all
Indemnifiable Losses to the extent relating to, resulting from or arising out
of:


 


(i)            any breach of representation or warranty of Aqua at
LSE or any Seller under this Agreement; and


 


(ii)           any breach of any agreement of Seller under this
Agreement.


 


(b)           Purchaser shall indemnify, defend and hold harmless
Seller 1, Seller 2, Aqua at LSE, their respective affiliates, and each of their
respective officers, directors, stockholders, managers, members, partners,
employees, agents and representatives from and against any and all
Indemnifiable Losses to the extent relating to, resulting from or arising out
of:


 


(i)            any breach of representation or warranty of Purchaser
under this Agreement; and


 


34

















 


(ii)           any breach of any agreement of Purchaser under this
Agreement.


 


9.3           Definitions. As used in this Agreement, (i) “Indemnitee”
means any person entitled to indemnification under this Agreement, (ii) “Indemnitor”
means any person required to provide indemnification under this Agreement,
(iii) “Indemnifiable Losses” means any and all damages, losses,
liabilities, obligations, costs and expenses, and any and all claims, demands,
actions, suits, proceedings or investigations or appeals by any person,
including the costs and expenses of any and all assessments, judgments,
settlements and compromises relating thereto and including reasonable
attorneys’ fees and expenses in respect thereof and in respect of establishing
the right to indemnification hereunder, (iv) “Indemnity Payment”
means any amount of Indemnifiable Losses required to be paid pursuant to this
Agreement, and (v) “Third-Party Claim” means any claim, action, suit
or proceeding made or brought by any person that is not a party to this
Agreement or an affiliate of a party to this Agreement.


 


9.4           Procedures for Third-Party Claims.


 


(a)           If any Indemnitee receives notice of assertion or
commencement of any Third-Party Claim against such Indemnitee in respect of
which an Indemnitor may be obligated to provide indemnification under this
Agreement, then the Indemnitee shall give such Indemnitor reasonably prompt
written notice thereof; provided, however, that no delay on the
part of the Indemnitee in notifying any Indemnitor shall relieve the Indemnitor
from any obligation hereunder unless (and then solely to the extent) the
Indemnitor is actually prejudiced by such delay.


 


(b)           Any Indemnitor will have the right to defend the
Indemnitee against the Third-Party Claim with counsel of its choice reasonably
satisfactory to the Indemnitee so long as (i) the Indemnitor notifies the
Indemnitee in writing within ten days after the Indemnitee has given notice of
the Third-Party Claim that the Indemnitor will indemnify the Indemnitee from
and against any such Indemnifiable Losses, (ii) the Indemnitor provides
the Indemnitee with evidence reasonably acceptable to the Indemnitee that the
Indemnitor will have the financial resources to defend against the Third-Party
Claim and fulfill its indemnification obligations hereunder, (iii) the
Third-Party Claim involves only monetary damages and does not seek an
injunction or other equitable relief, (iv) settlement of, or an adverse judgment
in respect of, the Third-Party Claim is not, in the good faith judgment of the
Indemnitee, likely to establish a precedential custom or practice adverse to
the continuing business interests of the Indemnitee, and (v) the
Indemnitor conducts the defense of the Third-Party Claim actively and
diligently.


 


(c)           So long as the Indemnitor is conducting the defense of
the Third-Party Claim in accordance with Section 9.4(b),
(i) the Indemnitee may retain separate co-counsel at its sole cost and
expense and participate in the defense of the Third-Party Claim, (ii) the
Indemnitee will not consent to the entry of any judgment or enter into any
compromise or settlement in respect of the Third-Party Claim without the prior
written consent of the Indemnitor (which consent will not be unreasonably
conditioned, delayed or withheld), and (iii) the Indemnitor will not
consent to the entry of any judgment or enter into any compromise or settlement
in respect of the Third-Party Claim without the prior written consent of the Indemnitee
(which consent will not be unreasonably conditioned, delayed or withheld); provided,
however, that in respect of clause (iii) above, the Indemnitee may
condition such consent upon the delivery by the claimant or plaintiff to the
Indemnitee of a duly executed unconditional release of the Indemnitee from all
liability in respect of such Third-Party Claim.


 


(d)           If any condition set forth in Section 9.4(b) is
or becomes unsatisfied, however, (i) the Indemnitee may defend against,
and consent to the entry of any judgment or enter into any


 


35

















 


settlement in respect of, the Third-Party Claim in any
manner it reasonably may deem appropriate; provided, however,
that the Indemnitee will consult with and obtain the consent of the Indemnitor
in connection therewith which consent shall not be unreasonably conditioned,
delayed or withheld, (ii) the Indemnitor will reimburse the Indemnitee
promptly and periodically for the costs of defending against the Third-Party Claim
(including reasonable attorneys’ fees and expenses), and (iii) the
Indemnitor will remain responsible for any Indemnifiable Losses the Indemnitee
may suffer resulting from, arising out of, relating to, in the nature of or
caused by, the Third-Party Claim to the fullest extent provided in this Section 9.4.


 


9.5           Direct Claims. The Indemnitor will have a period of 30
days within which to respond in writing to any claim by an Indemnitee on
account of an Indemnifiable Loss that does not result from a Third-Party Claim
(a “Direct Claim”). If the Indemnitor does not so respond within such
30-day period, then the Indemnitor will be deemed to have rejected such claim,
in which event the Indemnitee will be entitled to pursue such remedies as may
be available to the Indemnitee.


 


9.6           Indemnity Payments. Upon making any Indemnity Payment the
Indemnitor will, to the extent of such Indemnity Payment, be subrogated to all
rights of the Indemnitee against any third person (other than an insurance
company) in respect of the Indemnifiable Loss to which the Indemnity Payment
related; provided, however, that (i) the Indemnitor shall
then be in compliance with its obligations under this Agreement in respect of
such Indemnifiable Loss and (ii) until the Indemnitee fully recovers payment
of its Indemnifiable Loss, any and all claims of the Indemnitor against any
such third person on account of such Indemnity Payment will be subrogated and
subordinated in right of payment to the Indemnitee’s rights against such third
person. Without limiting the generality or effect of any other provision
hereof, each such Indemnitee and Indemnitor will duly execute and deliver upon
request all instruments reasonably necessary to evidence and perfect the
above-described subrogation and subordination rights. Any Indemnity Payment
hereunder shall be treated as an adjustment to the Purchase Price.


 


The provisions of this Article IX shall
survive the Closing or any earlier termination of this Agreement.


 


ARTICLE X

Termination


 


10.1         Termination. This Agreement may be terminated and
the transactions contemplated hereby abandoned at any time prior to the
Closing:


 


(a)           by the written agreement of Purchaser and Seller;


 


(b)           by Purchaser, if there shall have been a breach of any
agreement or covenant or failure to be true of any representation or warranty
set forth in this Agreement on the part of Seller, which breach is incapable of
being cured or, if capable of being cured, is not cured within 30 days after
receipt of written notice thereof by Seller from Purchaser (a “Seller’s
Breach”); provided, however, the preceding notice and opportunity to cure
does not apply to any breach by Seller in performing its obligations at Closing
if all conditions to Seller’s obligation to close in Section 8.1
have been satisfied (or otherwise waived by Seller) and there exists no
Purchaser’s Breach (as hereinafter defined).


 


(c)           by Seller, if there shall have been a breach of any
agreement or covenant or failure to be true of any representation or warranty
set forth in this Agreement on the part of Purchaser, which breach is incapable
of being cured or, if capable of being cured, is not cured within 30 days after
receipt of written notice thereof by Purchaser from Seller (a “Purchaser’s


 


36

















 


Breach”); provided, however, the preceding notice and
opportunity to cure does not apply to any breach by Purchaser in performing its
obligations at Closing if all conditions to Purchaser’s obligation to close in Section 8.2
have been satisfied (or otherwise waived by Purchaser) and there exists no
Seller’s Breach;


 


(d)           by Purchaser on or prior to the expiration of the
Inspection Period, pursuant to Section 5.1;


 


(e)           by Purchaser under and as permitted by Section 5.6,
6.1(b), 6.1(c), 6.2 or 7.1(b);


 


(f)            by Purchaser if any condition set forth in Section 8.2(d),
8.2(e), 8.2(f), 8.2(g), 8.2(h), 8.2(i) or
8.2(j) has not been satisfied on or before the Target Closing Date
(as it may be accelerated or extended) or if the satisfaction of such condition
by the Target Closing Date (as it may be accelerated or extended) is or becomes
impossible (other than through the failure of Purchaser to comply with its
obligations hereunder) and Purchaser has not waived such condition on or before
the Target Closing Date (as it may be accelerated or extended);


 


(g)           by Seller if any condition set forth in Section 8.1(d) or
8.1(e) has not been satisfied on or before the Target Closing Date (as
it may be accelerated or extended) or if the satisfaction of such condition by
the Target Closing Date (as it may be accelerated or extended) is or becomes
impossible (other than through the failure of Seller to comply with its
obligations hereunder) and Seller has not waived such condition on or before
the Target Closing Date (as it may be accelerated or extended); or


 


(h)           by Seller on or prior to the expiration of the
Inspection Period, pursuant to Section 5.5.


 


10.2         Notice of Termination. Any party desiring to terminate this
Agreement pursuant to Section 10.1(b), 10.1(c), 10.1(d),
10.1(e), 10.1(f), 10.1(g) or 10.1(h) shall
promptly give written notice of such termination to the other party.


 


10.3         Effect of Termination. Upon termination of this Agreement
pursuant to Section 10.1, this Agreement shall become null and void
and of no further force and effect and all obligations of the parties hereto
shall terminate and there shall be no liability or obligation of any party
hereto, except as otherwise provided in Section 10.4 below and
except for the obligations under this Agreement which expressly survive any
termination of this Agreement.


 


10.4         Remedies; Distribution of Earnest Money;
Liability Threshold and Cap.


 


(a)           If this Agreement is terminated pursuant to Section 10.1(a),
by Purchaser pursuant to Section 10.1(d), 10.1(e) or 10.1(f) or
by Seller pursuant to Section 10.1(g) or 10.1(h), then
in any such event the Earnest Money shall be promptly returned to Purchaser.


 


(b)           If the purchase and sale of the Interests is not
consummated due to Seller’s Breach, Purchaser shall have the right, in its
discretion and as its sole and exclusive remedy, to either (i) terminate
this Agreement pursuant to Section 10.1(b) whereupon Seller
shall pay to Purchaser the amount of $1,500,000 as liquidated damages (the “Liquidated
Damages of Purchaser”), or (ii) seek, pursue and obtain, to the
fullest extent permitted by law, specific performance of the obligations under
this Agreement of Seller. In view of the difficulty of accurately ascertaining
the actual loss and damages which the Purchaser will suffer by reason of the
transactions described hereunder not closing, the Liquidated Damages of
Purchaser provided


 


37

















 


for in this Section 10.4(b) are
hereby fixed and agreed by the parties as the agreed upon liquidated damages
(and not a penalty) that the parties acknowledge reflects a reasonable estimate
of damages that Seller will pay by reason of Seller’s Breach. All other
remedies of Purchaser for Seller’s Breach are hereby waived. Notwithstanding
any provision to the contrary contained in this Agreement, regardless of what
remedy is exercised by Purchaser upon the termination of this Agreement, if the
Closing is consummated and there is a breach by Seller of any covenants and
obligations of Seller that expressly survive the termination of this Agreement
or the Closing, Purchaser will have the right to exercise whatever rights and
remedies are available at law and in equity, including specific performance and
damages, but in no event shall Seller be liable to Purchaser for, and Purchaser
waives any right to pursue, punitive, indirect, speculative or consequential
damages (collectively, “Speculative Damages”).


 


(c)           If the purchase and sale of the Interests is not
consummated due to Purchaser’s Breach, Seller shall have the right, in its
discretion and as its sole and exclusive remedy, to terminate this Agreement
pursuant to Section 10.1(c) whereupon Purchaser shall pay to
Seller the amount of $1,500,000 as liquidated damages (the “Liquidated
Damages of Seller”). In view of the difficulty of accurately ascertaining
the actual loss and damages which the Seller will suffer by reason of the
transactions described hereunder not closing, the Liquidated Damages of Seller
provided for in this Section 10.4(c) are hereby fixed and agreed
by the parties as the agreed upon liquidated damages (and not a penalty) that
the parties acknowledge reflects a reasonable estimate of damages that
Purchaser will pay by reason of Purchaser’s Breach. All other remedies of
Seller for Purchaser’s Breach are hereby waived. Notwithstanding any provision
to the contrary contained in this Agreement, if the Closing is consummated and
there is a breach by Purchaser of any covenants and obligations of Purchaser
that expressly survive the termination of this Agreement or the Closing, Seller
will have the right to exercise whatever rights and remedies are available at
law and in equity, including specific performance and damages, but in no event
shall Purchaser be liable to Aqua at LSE, any Seller or any affiliate or
Related Persons of Aqua at LSE or any Seller for, and Aqua at LSE and each
Seller, for itself and for all Related Persons of any of them waives, any right
to pursue Speculative Damages.


 


(d)           Notwithstanding any provision to the contrary
contained in this Agreement, no act or omission during the Inspection Period
that gives rise to a Purchaser’s Breach shall entitle Aqua at LSE, any Seller
or any affiliate or Related Persons of Aqua at LSE or any Seller, and Aqua at
LSE and each Seller, for itself and for all Related Persons of any of them
waives, any right to pursue any Liquidated Damages of Seller or Speculative
Damages (provided, however, for the avoidance of doubt, the
foregoing shall not preclude Seller from pursuing any other rights and remedies
available under this Agreement, at law and in equity, in respect of any such
act or omission, subject to the provisions of Section 10.6).


 


10.5         Modification of Representations,
Warranties or Schedules. Prior to the Closing, as and to the extent that (i) Aqua at LSE,
Seller or Purchaser obtains actual knowledge of facts or (ii) Aqua at LSE,
Seller or Purchaser receives (or any such party receives and delivers to any
other party) any update to the representations and warranties contained in this
Agreement (each, a “Disclosure”), in either case containing information
that would make any of the representations or warranties made in this Agreement
inaccurate in any material respect, and the Closing occurs, then such
inaccurate portion of such representation or warranty shall be deemed to be
modified and superseded by such Disclosure, and no party shall have any
liability in respect of that portion of the representation or warranty modified
and superseded by such Disclosure.


 


10.6         Limitation of Liability. Notwithstanding any provision to the
contrary contained in this Agreement, the maximum aggregate liability of Seller
or Purchaser, or any affiliates of either party, under


 


38

















 


this
Agreement after the Closing in respect of any covenant, condition,
representation, warranty, indemnity or other obligation shall not exceed
$2,500,000; provided, however, that neither Seller nor Purchaser,
nor any of their respective affiliates, will be entitled to make a claim after
the Closing under or in respect of this Agreement unless and until the
aggregate amount of claims exceeds $50,000, in which event, the claiming party
will be entitled to make any such claim back to the first dollar of damage.


 


10.7         Survival. The provisions of this Article X shall
survive the Closing or any sooner termination of this Agreement.


 


ARTICLE XI

Miscellaneous Provisions


 


11.1         Amendments. This Agreement may be amended, modified or
supplemented only pursuant to a written instrument making specific reference to
this Agreement and signed by each of Purchaser and Seller.


 


11.2         Assignment. Neither this Agreement nor any right or obligation
hereunder shall be assigned, delegated or otherwise transferred (whether
voluntarily, by merger or operation of Law or otherwise), without the prior
written consent of the other parties hereto; provided, however,
that Purchaser may, without obtaining the prior written consent of Seller,
assign, delegate or otherwise transfer its rights and obligations hereunder
(including its right to seek indemnification hereunder) to any affiliate or
subsidiary of such Purchaser or any entity in which Purchaser or its principals
have control; provided, further, that upon both the assignment of
this Agreement and the assignee’s delivery to the Escrow Agent of the full
amount of Closing funds required to be delivered by Purchaser (or its
assignee), the original Purchaser will be released from all liabilities and
obligations under this Agreement, as long as such assignee has assumed all of
the liabilities and obligations of the Purchaser under this Agreement. Seller
shall execute such acknowledgements of such assignments and collateral
assignments in such forms as such Purchaser or any such institutional lender
may from time to time reasonably request provided such forms are reasonably
satisfactory to Seller and conform to the term of this Agreement, in general,
and this Section 11.2, in particular. Any attempted assignment,
delegation or transfer in violation of this Section 11.2 shall be
void and of no force or effect.


 


11.3         Binding Effect. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective legal
representatives, successors and permitted assigns.


 


11.4         Construction.


 


(a)           The Article and Section headings of this
Agreement are for convenience of reference only and shall not be deemed to
alter or affect the meaning or interpretation of any provision hereof. Unless
the context otherwise requires, (i) all references to Articles, Sections,
Schedules or Exhibits contained in this Agreement are references to articles,
sections, schedules or exhibits of or to this Agreement, (ii) words in the
singular include the plural and vice versa, and
(iii) words of any gender include each other gender. No provision of this
Agreement will be interpreted in favor of, or against, any party hereto by
reason of the extent to which any such party or its counsel participated in the
drafting hereof or by reason of the extent to which any such provision is
inconsistent with any prior draft hereof or thereof. Whenever there is imposed
on any party an obligation to use best efforts, commercially reasonable
efforts, reasonable efforts or diligence or similar efforts, such party shall
be required to exert those efforts or diligence only to the extent they are
economically feasible, practicable and reasonable under the circumstances and
shall not impose upon such party extraordinary financial or other burdens or be
the basis upon which any other party may claim a breach or failure hereunder.


 


39

















 


(b)           As used in this Agreement the following words or
phrases have the following meanings: (i) “affiliate” means, in
respect of any specified person, any other person that, directly or indirectly
through one or more intermediaries, controls, is controlled by or is under
common control with, such specified person and, in the case of Purchaser, also
includes any entity that participates in any investment program sponsored by
Behringer Harvard Holdings, LLC, or any of its direct or indirect parents or
subsidiaries; (ii) “business day” means any day other than
Saturday, Sunday or any day on which banks in Chicago, Illinois are
required or authorized by Law to be closed for business; (iii) for purposes
of the definition of “affiliate,” “control” when used in respect of any
person means the power to direct the management and policies of such person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise (and “controlling” and “controlled” have
meanings correlative thereto); (iv) “day” means a calendar day;
(v) “dollar” or “$” means lawful currency of the United
States; (vi) “hereby,” “herein,” “hereof,” “hereto,”
“hereunder” and words of similar import refer to this Agreement as a
whole and not to any particular provision hereof; (vii) “include,”
“including” and derivatives thereof mean “including without limitation”;
(viii) “or” means “and/or”; (ix) “person” means any
individual, corporation, joint venture, partnership, limited partnership,
limited liability company, trust, unincorporated association or other form of
business or legal entity or Governmental Entity; (x) “U.S.” or “United
States” means the United States of America; (xi) “Law” means any
law, statute, constitution, treaty, ordinance, rule or regulation; and
(xii) “discretion” means sole and absolute discretion, unless otherwise
provided in this Agreement. Whenever any determination is to be made or action
to be taken on a date specified in this Agreement, if such date falls upon a
Saturday, Sunday or holiday observed by federal savings banks in the State of
Texas or Illinois, the date for such determination or action will be extended
to the first business day immediately thereafter.


 


11.5         Counterparts. This Agreement may be executed in
multiple counterparts, each of which when so executed and delivered shall be an
original, and all of which when taken together shall constitute one and the
same instrument.


 


11.6         Entire Agreement. This Agreement (including the Exhibits
and Schedules attached hereto) constitutes the entire agreement of the parties
hereto in respect of the subject matter hereof, and supersedes any and all
prior agreements or understandings among such parties in respect of such subject
matter.


 


11.7         Expenses. Except as otherwise expressly provided in this
Agreement, each party hereto shall bear all of the expenses (including fees and
disbursements of its counsel) incurred by or on behalf of it in connection with
the preparation, negotiation, execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby. In no event shall the
Company bear any of such expenses.


 


11.8         Further Assurances. Each party hereto shall execute and
deliver all such further and additional instruments and agreements and shall
take all such further and additional actions, as may be reasonably necessary or
desirable to evidence or carry out the provisions of this Agreement or to
consummate the transactions contemplated hereby.


 


11.9         Governing Law. This Agreement (and any claims or
disputes arising out of or related to this Agreement or the transactions
contemplated hereby or to the inducement of any party to enter this Agreement,
whether for breach of contract, tortuous conduct or otherwise and whether
predicated on common law, statute or otherwise) shall in all respects be
governed and construed in accordance with the Laws of the State of Illinois,
including all matters of construction, validity and performance, in each case


 


40














 


without regard to any conflicts-of-laws principles
that might lead to the application of the Laws of any other jurisdiction.


 


11.10       Jurisdiction; Venue; Waiver
of Jury Trial. Any dispute regarding the interpretation or
validity of otherwise arising out of or relating to, this Agreement or the
transactions contemplated hereby shall be subject to the exclusive jurisdiction
of the federal court sitting in the Northern District of Illinois, or, if such
court does not have jurisdiction, any state court sitting in Cook
County, Illinois. Each party hereto hereby submits to the personal and
exclusive jurisdiction and venue of such courts (and of the appropriate
appellate courts therefrom) in any such dispute and irrevocably waives, to the
fullest extent permitted by applicable law, any objection that it may now or
hereafter have to the laying of the venue of any such dispute in any such court
or that any such dispute that is brought in any such court has been brought in
an inconvenient forum. To the extent permitted by Law, Seller and Purchaser
expressly waive any right to trial by jury of any claim or dispute arising
under or in any way connected with this Agreement, whether arising in contract,
tort or otherwise.


 


11.11       Notices.  Any
notice, request, demand or other communication required or permitted to be
given hereunder shall be in writing and shall be deemed to have been duly given
if sent by hand delivery, mail (first class, certified mail, postage prepaid),
facsimile, electronic mail or overnight courier if to any party hereto, at the
address or facsimile number set forth below such party’s name on the signature
pages hereto or to such other address or facsimile number as such party
shall have last designated by notice to the other parties hereto in accordance
with this Section 11.11. Notices sent by hand delivery shall be
deemed to have been given when received or delivery is refused; notices mailed
in accordance with this Section 11.11 shall be deemed to have been
given three days after the date so mailed; notices sent by electronic mail or
facsimile shall be deemed to have been given when electronically confirmed; and
notices sent by overnight courier shall be deemed to have been given on the
next business day after the date so sent. The inability to deliver notice
because of changed address or facsimile number of which no notice was given
shall be deemed to be receipt of the notice as of the date such attempt was
first made. Notwithstanding any other provision of this Section 11.11
to the contrary, any notice given in a manner other than as provided in this
Agreement, that is actually received, shall be effective in respect of the
recipient on receipt of such notice. Failure to send a notice to any person or
any defect in any notice shall not affect its sufficiency in respect of any
other person.


 


11.12       Non-Recourse. Notwithstanding
any other provision of this Agreement to the contrary, no past, present or
future controlling person, officer, director, stockholder, partner, manager,
member, agent, employee or other representative of Purchaser, Seller or Aqua at
LSE shall have any liability for any obligations or liabilities of Purchaser,
Seller or Aqua at LSE, respectively, under this Agreement or any claim based on
or related to the transactions contemplated hereby.


 


11.13       Severability. If any
provision of this Agreement or the application of such provision to any person
or circumstance shall be held by a court of competent jurisdiction to be
invalid, illegal or unenforceable under the applicable Law of any jurisdiction,
then (i) the remainder of this Agreement or the application of such provisions
to other persons or circumstances or in other jurisdictions shall not be
affected thereby, (ii) such invalid, illegal or unenforceable provision
shall be deemed inoperative to the extent that it may conflict therewith and
shall be deemed modified to conform to such Law and (iii) such invalid, illegal
or unenforceable provision shall not affect the validity or enforceability of
any other provision of this Agreement.


 


11.14       Specific Performance. Seller
acknowledges and agrees that Seller’s Breach would cause irreparable damage to
Purchaser and Purchaser will not have an adequate remedy at law. Accordingly,
to the extent that Purchaser is entitled to terminate this Agreement pursuant
to Section 10.1(b) and has not otherwise elected to receive
the Liquidated Damages of Purchaser pursuant to Section 10.4(b), the


 


41

















 


obligations of Seller under this Agreement to sell
the Interests to Purchaser, shall be enforceable by a decree of specific
performance issued by any court of competent jurisdiction in Cook
County, Illinois, and appropriate injunctive relief may be applied for and
granted in connection therewith. If any action, suit or proceeding is
instituted by Purchaser to enforce this Agreement as a result of Seller’s
Breach, Seller hereby waives the defense that there is an adequate remedy at
law and waives any requirement for the posting of a bond by Purchaser. In the
event of a Seller’s Breach that results in the filing of an action for specific
performance, Purchaser shall be entitled to reimbursement by Seller of all
reasonable attorneys’ fees and expenses incurred by Purchaser if Purchaser
prevails in such action for specific performance.


 


11.15       No Third-Party Beneficiaries. Nothing
express or implied in this Agreement is intended or shall be construed to
confer upon or give any person other than the parties hereto and their
respective successors and permitted assigns any right, benefit or remedy under
or by reason of this Agreement.


 


11.17       No Waiver. Except as
otherwise provided in this Agreement, the rights and remedies provided for
herein are cumulative and not exclusive of any rights or remedies that may be
available to any party hereto whether at law, in equity or otherwise. No delay,
forbearance or neglect by any party hereto, whether in one or more instances,
in the exercise or any right, power, privilege or remedy hereunder or in the
enforcement of any terms and conditions of this Agreement shall constitute or
be construed as a waiver thereof. No waiver of any provision hereof, or consent
required hereunder, or any consent or departure from this Agreement, shall be
valid or binding unless expressly and affirmatively made in writing and duly
executed by the party to be charged with such waiver. No waiver shall
constitute or be construed as a continuing waiver or a waiver in respect of any
subsequent Default, either of similar or different nature, unless expressly so
stated in such writing.


 


11.18       Independent Consideration.  Contemporaneously
with the execution and delivery of this Agreement, Purchaser has delivered to
Seller, and Seller hereby acknowledges the receipt of, $100 (“Independent
Consideration”), which amount the patties hereto bargained for and agreed
to as consideration for Purchaser’s exclusive right to inspect and purchase the
Interests pursuant to this Agreement and for Seller’s execution, delivery and
performance of this Agreement. The Independent Consideration is in addition to
and independent of any other consideration or payment provided in this
Agreement, is nonrefundable and it is fully earned and will be retained by
Seller notwithstanding any other provision of this Agreement.


 


11.19       No Recordation. Neither
Seller nor Purchaser shall record this Agreement or any memorandum hereof with
the Cook County Recorder of Deeds without the prior written consent of the
other party.


 


11.20       Attorneys’ Fees. Any party to
this Agreement who is the prevailing party in all material respects in any
legal proceeding against the other party brought under or in respect of this
Agreement or the transactions contemplated hereby will be additionally entitled
to recover court costs and reasonable attorneys’ fees from the non-prevailing
party.


 


11.21       Survival. The
provisions of this Article XI shall survive the Closing or any
sooner termination of this Agreement.


 


*
* * * *


 


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REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]


 


42

















 


IN WITNESS WHEREOF, the
undersigned have executed and delivered this Agreement as of the Effective
Date.


 


	
  PURCHASER:

  
	
   

  	
   

  
	
  BEHRINGER HARVARD MULTIFAMILY OP I LP, 

  a Delaware limited partnership

  
	
   

  	
   

  
	
  By:

  	
  BHMF, Inc.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
  its general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert T. Poynter 

  	
   

  
	
   

  	
  Name:

  	
  Robert T. Poynter 

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  



 


	
   

  	
  Address:

  	
  Behringer Harvard Multifamily OP I LP

  
	
   

  	
   

  	
  15601 Dallas Parkway, Suite 600

  
	
   

  	
   

  	
  Addison, Texas 75001

  
	
   

  	
   

  	
  Facsimile: 214-655-1610

  
	
   

  	
   

  	
  Attention: Mark T. Alfieri

  
	
   

  	
   

  	
  Email: malfieri@behringerharvard.com

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy (which shall not constitute
  notice) to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Miller,
  Egan, Molter & Nelson LLP

  
	
   

  	
   

  	
  4514
  Cole Avenue, Suite 1250

  
	
   

  	
   

  	
  Dallas, Texas 75205

  
	
   

  	
   

  	
  Facsimile: 214-628-9505

  
	
   

  	
   

  	
  Attention: Walter D. Miller

  
	
   

  	
   

  	
  Email:
  walt.miller@MillerEgan.com

  



 

















 


	
  SELLER 1:

  	
   

  
	
   

  	
   

  	
   

  
	
  LAKESHORE
  AQUA RENTAL LLC,

  	
   

  
	
  an
  Illinois limited liability company

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ David J. Carlins

  	
   

  
	
  Name:

  	
  David J. Carlins

  	
   

  
	
  Title:

  	
  Authorized Signatory

  	
   

  
				



 


	
   

  	
  Address:

  	
  Lakeshore Aqua Rental LLC

  
	
   

  	
   

  	
  c/o Magellan Development Group LLC

  
	
   

  	
   

  	
  225 North Columbus Drive, Suite 100

  
	
   

  	
   

  	
  Chicago, Illinois 60601

  
	
   

  	
   

  	
  Facsimile: 312-642-2773

  
	
   

  	
   

  	
  Attention: David Carlins

  
	
   

  	
   

  	
  Email: dcarlins@magellandevelopment.com

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy (which shall not constitute
  notice) to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Magellan Development Group LLC

  
	
   

  	
   

  	
  225 North Columbus Drive, Suite 100

  
	
   

  	
   

  	
  Chicago, Illinois 60601

  
	
   

  	
   

  	
  Facsimile: 312-642-2773

  
	
   

  	
   

  	
  Attention: Kimberly J. Sharon, General
  Counsel

  
	
   

  	
   

  	
  Email: ksharon@magellandevelopment.com

  



 


	
  SELLER 2:

  	
   

  
	
   

  	
   

  	
   

  
	
  MAGELLAN
  AQUA LLC,

  	
   

  
	
  an
  Illinois limited liability company

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ David J. Carlins

  	
   

  
	
  Name:

  	
  David J. Carlins

  	
   

  
	
  Title:

  	
  Authorized Signatory

  	
   

  
				



 


	
   

  	
  Address:

  	
  Magellan Aqua LLC

  
	
   

  	
   

  	
  c/o Magellan Development Group LLC

  
	
   

  	
   

  	
  225 North Columbus Drive, Suite 100

  
	
   

  	
   

  	
  Chicago, Illinois 60601

  
	
   

  	
   

  	
  Facsimile: 312-642-2773

  
	
   

  	
   

  	
  Attention: David Carlins

  
	
   

  	
   

  	
  Email: dcarlins@magellandevelopment.com

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy (which shall not constitute
  notice) to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Magellan Development Group LLC

  
	
   

  	
   

  	
  225 North Columbus Drive, Suite 100

  
	
   

  	
   

  	
  Chicago, Illinois 60601

  
	
   

  	
   

  	
  Facsimile: 312-642-2773

  
	
   

  	
   

  	
  Attention: Kimberly J. Sharon, General
  Counsel

  
	
   

  	
   

  	
  Email: ksharon@magellandevelopment.com

  



 

















 


JOINDER


 


Aqua at LSE hereby joins in
this Agreement for the sole purpose of confirming, ratifying and agreeing to be
bound by (i) the representations and warranties set forth in this Agreement,
(ii) the indemnity obligations of Aqua at LSE as set forth in this
Agreement and (iii) the covenants and other obligations of Aqua at LSE in this
Agreement.


 


	
  AQUA
  AT LSE:

  	
   

  
	
   

  	
   

  	
   

  
	
  AQUA
  AT LAKESHORE EAST LLC,

  	
   

  
	
  an
  Illinois limited liability company

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ David J. Carlins

  	
   

  
	
  Name:

  	
  David J. Carlins

  	
   

  
	
  Title:

  	
  Authorized Signatory

  	
   

  
				



 


	
  Address:

  	
  Aqua at Lakeshore East LLC

  
	
   

  	
  c/o Magellan Development Group LLC

  
	
   

  	
  225 North Columbus Drive, Suite 100

  
	
   

  	
  Chicago, Illinois 60601

  
	
   

  	
  Facsimile: 312-642-2773

  
	
   

  	
  Attention: David Carlins

  
	
   

  	
  Email: dcarlins@magellandevelopment.com

  
	
   

  	
   

  
	
   

  	
  with a copy (which shall not constitute
  notice) to:

  
	
   

  	
   

  
	
   

  	
  Magellan Development Group LLC

  
	
   

  	
  225 North Columbus Drive, Suite 100

  
	
   

  	
  Chicago, Illinois 60601

  
	
   

  	
  Facsimile: 312-642-2773

  
	
   

  	
  Attention: Kimberly J. Sharon, General
  Counsel

  
	
   

  	
  Email:
  ksharon@magellandevelopment.com

  



 














 


EXHIBIT A


 


DESCRIPTION
OF REAL PROPERTY


 


PARCEL 1:


 


A
PARCEL OF LAND COMPRISED OF A PART OF LOT I, ALL OF LOT IA, ALL OF LOT 2,
ALL OF LOTS 3, 3A,3B,3C AND 3D; A PART OF LOT 4 AND A PART OF LOT 15;
ALL IN LAKESHORE EAST SUBDIVISION, BEING A SUBDIVISION OF PART OF LANDS
LYING EAST OF AND ADJOINING FORT DEARBORN ADDITION TO CHICAGO, SAID ADDITION
BEING IN THE SOUTHWEST FRACTIONAL QUARTER OF SECTION 10, TOWNSHIP 39
NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY,
LLLINOIS, ACCORDING TO THE PLAT OF SAID LAKESHORE EAST SUBDIVISION, RECORDED
MARCH 4, 2003 AS DOCUMENT 0030301045, SAID PARCEL OF LAND BOUNDED AND
DESCRIBED AS FOLLOWS:


 


BEGINNING AT THE
INTERSECTION OF THE NORTH LINE OF SAID LOT 2 IN LAKESHORE EAST SUBDIVISION
WITH THE EAST LINE OF N. COLUMBUS DRIVE, AS SAID N. COLUMBUS DRIVE WAS
DEDICATED AS A PUBLIC STREET BY DOCUMENT 21925615, RECORDED JUNE 5, 1972, SAID
POINT OF INTERSECTION BEING ALSO THE NORTHWEST CORNER OF SAID LOT 2;
THENCE EAST ALONG THE NORTH LINE OF SAID LOT 2, SAID NORTH LINE BEING
PERPENDICULAR TO THE EAST LINE OF N. COLUMBUS DRIVE, A DISTANCE OF 160.57 FEET
TO THE SOUTHWEST CORNER OF LOT 3A IN SAID LAKESHORE EAST SUBDIVISION; THENCE
NORTH ALONG THE WEST LINE OF LOTS 3A AND 3B. SAID WEST LINE BEING PERPENDICULAR
TO SAID NORTH LINE OF LOT 2, A DISTANCE OF 146.62 FEET TO THE NORTHWEST CORNER
OF SAID LOT 3B; THENCE EAST ALONG THE NORTH LINE OF LOTS 3B AND 3C, SAID NORTH
LINE BEING PERPENDICULAR TO THE WEST LINE OF LOTS 3A AND 3B, A DISTANCE OF 221.17
FEET TO AN INTERSECTION WITH THE WEST LINE OF LOT 4, SAID POINT OF
INTERSECTION BEING ALSO THE NORTHEAST CORNER OF SAID LOT 3C; THENCE NORTH
ALONG THE WEST LINE OF SAID LOT 4, A DISTANCE OF 141.11 FEET TO THE NORTHWEST
CORNER OF SAID LOT 4; THENCE SOUTHEASTWARDLY ALONG THE NORTHERLY LINE OF SAID
LOT 4, SAID NORTHERLY LINE BEING ALSO THE SOUTHERLY LINE OF E. WACKER DRIVE, AS
DEDICATED BY DOCUMENT 21925615, RECORDED JUNE 5, 1972, A DISTANCE OF 60.19 FEET
TO AN INTERSECTION WITH A LINE WITH IS 60.00 FEET EAST OF AND PARALLEL
WITH SAID WEST LINE OF LOT 4; THENCE SOUTH ALONG THE LAST DESCRIBED PARALLEL
LINE, A DISTANCE OF 207.07 FEET TO AN INTERSECTION WITH THE SOUTH LINE OF
SAID LOT 4; THENCE WEST ALONG THE SOUTH LINE OF SAID LOT 4, A DISTANCE OF 60.00
FEET TO THE SOUTHWEST CORNER OF SAID LOT 4, BEING ALSO THE NORTHEAST CORNER OF
SAID LOT 3D; THENCE SOUTH ALONG THE EAST LINE OF LOT 3D, A DISTANCE OF 75.84
FEET TO AN INTERSECTION WITH THE NORTH LINE OF SAID LOT 15, SAID POINT OF
INTERSECTION BEING ALSO THE SOUTHEAST CORNER OF SAID LOT 3D; THENCE EAST
ALONG THE NORTH LINE OF SAID LOT 15, A DISTANCE OF 18.40 FEET TO AN
INTERSECTION WITH A LINE WHICH IS 41.60 FEET, MEASURED PERPENDICULARLY,
WEST OF AND PARALLEL WITH THE EAST LINE OF LOT 15; THENCE SOUTH ALONG THE LAST
DESCRIBED PARALLEL LINE A DISTANCE OF 62.16 FEET TO THE NORTH LINE OF F. SOUTH
WATER STREET, AS DEDICATED BY SAID PLAT OF LAKESHORE EAST SUBDIVISION; THENCE
WEST ALONG SAID NORTH LINE, A DISTANCE OF 55.14 FEET TO AN
INTERSECTION WITH THE WEST LINE OF N. PARK DRIVE, AS SAID N. PARK DRIVE
WAS DEDICATED BY SAID PLAT OF LAKESHORE EAST SUBDIVISION; THENCE SOUTH ALONG
SAID WEST LINE, SAID WEST LINE BEING ALSO THE EAST LINE OF LOT 15, A DISTANCE
OF 311.53 FEET TO AN INTERSECTION WITH A LINE WHICH IS 95.18 FEET NORTH OF
AND


 

















 


PARALLEL WITH THE SOUTH
LINES OF LOT 1 AND 15; THENCE WEST ALONG THE LAST DESCRIBED PARALLEL LINE, A
DISTANCE OF 345.00 FEET TO AN INTERSECTION WITH TILE WEST LINE OF SAID LOT
1, SAID WEST LINE BEING ALSO THE EAST LINE OF N. COLUMBUS DRIVE AS DEDICATED;
THENCE NORTH ALONG SAID WEST LINE OF LOT 1, A DISTANCE OF 66.00 FEET; THENCE
EAST ALONG A LINE PERPENDICULAR TO SAID WEST LINE OF LOT 1, A DISTANCE OF 90.00
FEET TO THE SOUTHWEST CORNER OF SAID LOT 1A IN LAKESHORE EAST SUBDIVISION;
THENCE NORTH ALONG THE WEST LINE OF LOT 1A, A DISTANCE OF 160.00 FEET TO THE
NORTHWEST CORNER OF SAID LOT 1A; THENCE WEST ALONG A LINE PERPENDICULAR TO THE
LAST DESCRIBED LINE, A DISTANCE OF 90.00 FEET TO THE WEST LINE OF SAID LOT 2,
SAID WEST LINE BEING ALSO THE EAST LINE OF N. COLUMBUS DRIVE; THENCE NORTH
ALONG SAID WEST LINE OF LOT 2, A DISTANCE OF 147.70 FEET TO THE POINT OF
BEGINNING.


 


ALSO


 


THAT PART OF THE
PROPERTY AND SPACE LYING ABOVE A HORIZONTAL PLANE HAVING AN ELEVATION OF 44.00
FEET ABOVE CHICAGO CITY DATUM AND LYING WITHIN THE BOUNDARIES, PROJECTED
VERTICALLY, OF THAT PART OF SAID LANDS LYING EAST OF AND ADJOINING FORT
DEARBORN ADDITION TO CHICAGO BOUNDED AND DESCRIBED AS FOLLOWS:


 


BEGINNING AT A POINT ON SAID EAST LINE OF N.
COLUMBUS DRIVE AS DEDICATED BY DOCUMENT 21925615, RECORDED JUNE 5, 1972 WHICH
POINT IS 147.70 FEET, AS MEASURED ALONG SAID EAST LINE, SOUTH OF THE NORTHWEST
CORNER OF SAID LOT 2 IN LAKESHORE EAST SUBDIVISION; THENCE EAST ALONG A LINE
PERPENDICULAR TO SAID EAST LINE OF N. COLUMBUS DRIVE, A DISTANCE OF 90.00 FEET;
THENCE SOUTH ALONG A LINE PARALLEL WITH SAID EAST LINE OF N. COLUMBUS DRIVE. A
DISTANCE OF 160.00 FEET; THENCE WEST ALONG A LINE PERPENDICULAR TO THE LAST
DESCRIBED LINE, A DISTANCE OF 90.00 FEET TO SAID EAST LINE OF N. COLUMBUS
DRIVE; THENCE NORTH ALONG SAID EAST LINE. A DISTANCE OF 160.00 FEET TO THE
POINT OF BEGINNING.


 


EXCEPTING THEREFROM THE FOLLOWING 4 DESCRIBED
PARCELS:


 


PARCEL A:


 


THAT PART OF LOT 3C IN
LAKESHORE EAST SUBDIVISION, BEING A SUBDIVISION OF PART OF LANDS LYING
EAST OF AND ADJOINING FORT DEARBORN ADDITION TO CHICAGO, SAID ADDITION BEING IN
THE SOUTHWEST FRACTIONAL QUARTER OF SECTION 10, TOWNSHIP 39 NORTH, RANGE
14 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY, LLLINOIS,
ACCORDING TO THE PLAT OF SAID LAKESHORE EAST SUBDIVISION, RECORDED
MARCH 4, 2003 AS DOCUMENT 0030301045, LYING ABOVE A HORIZONTAL PLANE
HAVING AN ELEVATION OF 31.75 FEET ABOVE CHICAGO CITY DATUM, AND BELOW A
HORIZONTAL PLANE HAVING AN ELEVATION OF 41.00 FEET ABOVE CHICAGO CITY DATUM,
BOUNDED AND DESCRIBED AS FOLLOWS:


 


BEGINNING AT A POINT 20.06
FEET SOUTH FROM THE NORTH LINE AND 23.48 FEET WEST FROM THE EAST LINE OF LOT 3C
AFORESAID;


 


THENCE WEST, PERPENDICULAR
TO SAID EAST LINE OF LOT 3C, A DISTANCE OF 8.92 FEET; THENCE SOUTH,
PERPENDICULAR TO THE LAST DESCRIBED LINE, 4.60 FEET; THENCE WEST, PERPENDICULAR
TO THE LAST DESCRIBED LINE, 9.90 FEET; THENCE NORTH, PERPENDICULAR TO THE LAST
DESCRIBED LINE, 17.10 FEET; THENCE EAST, PERPENDICULAR TO THE LAST DESCRIBED
LINE, 18.82 FEET; THENCE SOUTH,


 

















 


PERPENDICULAR TO THE LAST
DESCRIBED LINE, 12.50 FEET TO THE POINT OF BEGINNING, IN COOK COUNTY
ILLINOIS.


 


PARCEL B:


 


THAT
PART OF LOTS 3C AND 3D IN LAKESHORE EAST SUBDIVISION, BEING A SUBDIVISION
OF PART OF LANDS LYING EAST OF AND ADJOINING FORT DEARBORN ADDITION TO
CHICAGO, SAID ADDITION BEING IN THE SOUTHWEST FRACTIONAL QUARTER OF
SECTION 10, TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL
MERIDIAN, IN COOK COUNTY, LLLINOIS, ACCORDING TO THE PLAT OF SAID
LAKESHORE EAST SUBDIVISION, RECORDED MARCH 4, 2003 AS DOCUMENT 0030301045,
LYING ABOVE A HORIZONTAL PLANE HAVING AN ELEVATION OF 37.05 FEET ABOVE CHICAGO
CITY DATUM, AND BELOW A HORIZONTAL PLANE HAVING AN ELEVATION OF 41.00 FEET
ABOVE CHICAGO CITY DATUM, BOUNDED AND DESCRIBED AS FOLLOWS:


 


BEGINNING
AT A POINT 70.36 FEET SOUTH FROM THE NORTH LINE AND 16.86 FEET WEST FROM THE
WEST LINE OF LOT 3C AFORESAID;


 


THENCE
SOUTH, PARALLEL WITH THE EAST LINE OF LOTS 3C AND 3D AFORESAID, 35.00 FEET;
THENCE WEST, PERPENDICULAR TO SAID EAST LINE OF LOT 3D, 1.50 FEET; THENCE
NORTH, PERPENDICULAR TO THE LAST DESCRIBED LINE, 9.85 FEET; THENCE WEST,
PERPENDICULAR TO THE LAST DESCRIBED LINE, 10.95 FEET; THENCE SOUTH, PERPENDICULAR
TO THE LAST DESCRIBED LINE, 9.85 FEET; THENCE WEST, PERPENDICULAR TO THE LAST DESCRIBED
LINE, 1.50 FEET; THENCE NORTH, PERPENDICULAR TO THE LAST DESCRIBED LINE, 35.00 FEET;
THENCE EAST, PERPENDICULAR TO THE LAST DESCRIBED LINE, 1.50 FEET; THENCE SOUTH,
PERPENDICULAR TO THE LAST DESCRIBED LINE, 7.45 FEET; THENCE EAST, PERPENDICULAR
TO THE LAST DESCRIBED LINE, 10.95 FEET; THENCE NORTH, PERPENDICULAR TO THE LAST
DESCRIBED LINE, 7.45 FEET; THENCE EAST, PERPENDICULAR TO THE LAST DESCRIBED
LINE, 1.50 FEET TO THE POINT OF BEGINNING, IN COOK COUNTY, ILLINOIS.


 


PARCEL C:


(UPPER LEVEL)


 


THAT PART OF LOT 3 IN
LAKESHORE EAST SUBDIVISION, BEING A SUBDIVISION OF PART OF LANDS LYING
EAST OF AND ADJOINING FORT DEARBORN ADDITION TO CHICAGO, SAID ADDITION BEING IN
THE SOUTHWEST FRACTIONAL QUARTER OF SECTION 10, TOWNSHIP 39 NORTH, RANGE
14 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY, LLLINOIS,
ACCORDING TO THE PLAT OF SAID LAKESHORE EAST SUBDIVISION, RECORDED
MARCH 4, 2003 AS DOCUMENT 0030301045, LYING ABOVE A HORIZONTAL PLANE
HAVING AN ELEVATION OF 53.43 FEET ABOVE CHICAGO CITY DATUM, AND BELOW A
HORIZONTAL PLANE HAVING AN ELEVATION OF 66.43 FEET ABOVE CHICAGO CITY DATUM,
BOUNDED AND DESCRIBED AS FOLLOWS:


 


BEGINNING AT A POINT 32.12
FEET NORTH FROM THE SOUTH LINE AND 14.85 FEET EAST FROM THE WEST LINE OF LOT 3
AFORESAID;


 


THENCE NORTH, PARALLEL WITH
THE WEST LINE OF SAID LOT 3, A DISTANCE OF 7.30 FEET; THENCE EAST,
PERPENDICULAR TO THE LAST DESCRIBED LINE, 32.00 FEET; THENCE SOUTH,
PERPENDICULAR TO THE LAST DESCRIBED LINE, 7.30 FEET; THENCE WEST, PERPENDICULAR
TO THE LAST DESCRIBED LINE, 32.00 FEET TO THE POINT OF BEGINNING, IN COOK
COUNTY ILLINOIS.


 

















 


PARCEL D:

(UPPER LEVEL)


 


THAT PART OF LOT 3 IN
LAKESHORE EAST SUBDIVISION, BEING A SUBDIVISION OF PART OF LANDS LYING
EAST OF AND ADJOINING FORT DEARBORN ADDITION TO CHICAGO, SAID ADDITION BEING IN
THE SOUTHWEST FRACTIONAL QUARTER OF SECTION 10, TOWNSHIP 39 NORTH, RANGE
14 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS,
ACCORDING TO THE PLAT OF SAID LAKESHORE EAST SUBDIVISION, RECORDED
MARCH 4, 2003 AS DOCUMENT 0030301045, LYING ABOVE A HORIZONTAL PLANE
HAVING AN ELEVATION OF 57.25 FEET ABOVE CHICAGO CITY DATUM, AND BELOW A
HORIZONTAL PLANE HAVING AN ELEVATION OF 100.00 FEET ABOVE CHICAGO CITY DATUM,
BOUNDED AND DESCRIBED AS FOLLOWS:


 


BEGINNING
AT THE NORTHEAST CORNER OF LOT 3 IN SAID LAKESHORE EAST SUBDIVISION;


 


THENCE SOUTH ALONG THE EAST
LINE OF SAID LOT 3, A DISTANCE OF 107.20 FEET TO A LINE 39.42 FEET NORTH OF AND
PARALLEL WITH THE SOUTH LINE OF SAID LOT 3;


 


THENCE WEST ALONG SAID
PARALLEL LINE, PERPENDICULAR TO THE EAST LINE OF SAID LOT 3, A DISTANCE OF 206.32
FEET TO A LINE 14.85 FEET EAST OF AND PARALLEL WITH THE WEST LINE OF SAID LOT
3;


 


THENCE NORTH ALONG SAID
PARALLEL LINE, PERPENDICULAR TO THE LAST DESCRIBED COURSE, 107.20 FEET TO THE
NORTH LINE OF LOT 3 AFORESAID;


 


THENCE EAST ALONG THE NORTH
LINE OF SAID LOT 3, AND PERPENDICULAR TO THE WEST LINE OF LOTS 3A AND 3B, A
DISTANCE OF 206.32 FEET TO THE POINT OF BEGINNING;


 


TOGETHER WITH


 


(LOWER LEVEL):


 


THAT PART OF LOTS 3,
3A, 3B, 3C AND 3D IN LAKESHORE EAST SUBDIVISION, BEING A SUBDIVISION OF
PART OF LANDS LYING EAST OF AND ADJOINING FORT DEARBORN ADDITION TO
CHICAGO, SAID ADDITION BEING IN THE SOUTHWEST FRACTIONAL QUARTER OF
SECTION 10, TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN
COOK COUNTY, LLL1NOIS, ACCORDING TO THE PLAT OF SAID LAKESHORE EAST
SUBDIVISION, RECORDED MARCH 4, 2003 AS DOCUMENT 0030301045, LYING ABOVE A
HORIZONTAL PLANE HAVING AN ELEVATION OF 41.00 FEET ABOVE CHICAGO CITY DATUM,
AND LYING BELOW A HORIZONTAL PLANE HAVING AN ELEVATION OF 57.25 FEET ABOVE
CHICAGO CITY DATUM, BOUNDED AND DESCRIBED AS FOLLOWS:


 


BEGINNING AT A POINT ON THE
NORTH LINE OF LOTS 3 AND 3B IN SAID LAKESHORE EAST SUBDIVISION, 13.51 FEET EAST
OF THE NORTHWEST CORNER OF SAID LOTS 3 AND 3B;


 


THENCE EAST ALONG THE NORTH
LINE OF SAID LOTS 3, 3B AND 3C, AND ITS EASTERLY EXTENSION, A DISTANCE OF
207.66 TO THE NORTHEAST CORNER OF LOTS 3 AND 3C AFORESAID;


 


THENCE SOUTH ALONG THE EAST
LINE OF SAID LOTS, 146.62 FEET TO THE SOUTHEAST CORNER OF SAID LOTS 3 AND 3D;


 


THENCE WEST ALONG THE SOUTH
LINE OF SAID LOTS 3, 3D AND 3A, A DISTANCE OF 105.36 FEET TO A LINE 115.81 FEET
EAST FROM AND PARALLEL WITH THE WEST LINE OF SAID LOTS 3, 3A AND 3B;


 


THENCE NORTH ALONG SAID
PARALLEL LINE, 39.42 FEET TO A LINE 39.42 FEET NORTH OF AND PARALLEL WITH THE
SOUTH LINE OF SAID LOTS 3, 3A AND 3B;


 

















 


THENCE
WEST ALONG SAID PARALLEL LINE, 102.30 FEET TO A LINE 13.51 FEET EAST FROM AND
PARALLEL WITH THE WEST LINE OF SAID LOTS 3, 3A AND 3B, BEING ALSO THE
CENTERLINE OF AN INTERIOR STRUCTURAL WALL;


 


THENCE
NORTH ALONG SAID PARALLEL LINE AND THE CENTERLINE OF SAID STRUCTURAL WALL,
107.20 FEET TO THE NORTH LINE OF LOTS 3 AND 3B AFORESAID AND THE POINT OF
BEGINNING;


 


ALSO


 


THAT
PART OF LOTS 3 AND 3A IN LAKESHORE EAST SUBDIVISION, BEING A SUBDIVISION
OF PART OF LANDS LYING EAST OF AND ADJOINING FORT DEARBORN ADDITION TO
CHICAGO, SAID ADDITION BEING IN THE SOUTHWEST FRACTIONAL QUARTER OF
SECTION 10, TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL
MERIDIAN, IN COOK COUNTY, LLLINOIS, ACCORDING TO THE PLAT OF SAID
LAKESHORE EAST SUBDIVISION, RECORDED MARCH 4, 2003 AS DOCUMENT 0030301045,
LYING ABOVE A HORIZONTAL PLANE HAVING AN ELEVATION OF 41.00 FEET ABOVE CHICAGO
CITY DATUM, AND LYING BELOW AN INCLINE PLANE HAVING AN ELEVATION OF 57.25 FEET
ABOVE CHICAGO CITY DATUM ALONG THE EAST LINE AND AN ELEVATION OF 53.17 FEET
ABOVE CHICAGO CITY DATUM ALONG THE WEST LINE OF THE FOLLOWING PARCEL, BOUNDED
AND DESCRIBED AS FOLLOWS:


 


BEGINNING
ON THE SOUTH LINE OF LOTS 3 AND 3A AFORESAID AT A POINT 53.17 FEET EAST OF THE
SOUTHWEST CORNER THEREOF;


 


THENCE
NORTH PERPENDICULAR TO THE SOUTH LINE OF LOTS 3 AND 3A AFORSAID, 39.42 FEET TO
A LINE 39.42 FEET NORTH FROM AND PARALLEL WITH SAID SOUTH LINE OF LOTS;


 


THENCE
EAST ALONG SAID PARALLEL LINE, 62.64 FEET TO A LINE 115.81 FEET EAST FROM AND
PARALLEL WITH THE WEST LINE OF SAID LOTS 3 AND 3A;


 


THENCE
SOUTH ALONG SAID PARALLEL LINE, 39.42 FEET TO THE SOUTH LINE OF SAID LOTS 3 AND
3A;


 


THENCE
WEST ALONG THE SOUTH LINE OF SAID LOTS, 62.64 FEET TO THE POINT OF BEGINNING;


 


ALSO


 


THAT PART OF LOTS 3 AND
3A IN LAKESHORE EAST SUBDIVISION, BEING A SUBDIVISION OF PART OF LANDS
LYING EAST OF AND ADJOINING FORT DEARBORN ADDITION TO CHICAGO, SAID ADDITION
BEING IN THE SOUTHWEST FRACTIONAL QUARTER OF SECTION 10, TOWNSHIP 39
NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY,
LLLINOIS, ACCORDING TO THE PLAT OF SAID LAKESHORE EAST SUBDIVISION, RECORDED
MARCH 4, 2003 AS DOCUMENT 0030301045, LYING ABOVE A HORIZONTAL PLANE
HAVING AN ELEVATION OF 41.00 FEET ABOVE CHICAGO CITY DATUM, AND LYING BELOW AN
INCLINE PLANE HAVING AN ELEVATION OF 53.17 FEET ABOVE CHICAGO CITY DATUM AT THE
NORTHEAST CORNER AND AN ELEVATION OF 52.42 FEET ABOVE CHICAGO CITY DATUM AT THE
SOUTHWEST CORNER OF THE FOLLOWING PARCEL, BOUNDED AND DESCRIBED AS FOLLOWS:


 


BEGINNING ON THE SOUTH LINE
OF LOTS 3 AND 3A AFORESAID AT A POINT 13.51 FEET EAST OF THE SOUTHWEST CORNER
THEREOF, BEING ALSO THE CENTERLINE OF AN INTERIOR STRUCTURAL WALL;


 


THENCE NORTH ALONG SAID
CENTERLINE, BEING ALSO A LINE 13.51 EAST FROM AND PARALLEL WITH THE WEST LINE
OF LOTS 3 AND 3A AFORSAID, 39.42 FEET TO A LINE 39.42 FEET NORTH FROM AND
PARALLEL WITH SAID SOUTH LINE OF LOTS;


 


THENCE EAST ALONG SAID
PARALLEL LINE, 39.66 FEET TO A LINE 53.17 FEET EAST FROM AND PARALLEL WITH THE
WEST LINE OF SAID LOTS 3 AND 3A;


 

















 


THENCE
SOUTH ALONG SAID PARALLEL LINE, 39.42 FEET TO THE SOUTH LINE OF SAID LOTS 3 AND
3A;


 


THENCE
WEST ALONG THE SOUTH LINE OF SAID LOTS, 39,66 FEET TO THE POINT OF BEGINNING;


 


ALSO


 


THE
WEST 60.00 FEET OF LOT 4 LYING SOUTH OF THE EASTERLY EXTENSION OF THE NORTH
LINE OF LOT 3 IN LAKESHORE EAST SUBDIVISION, BEING A SUBDIVISION OF
PART OF LANDS LYING EAST OF AND ADJOINING FORT DEARBORN ADDITION TO
CHICAGO, SAID ADDITION BEING IN THE SOUTHWEST FRACTIONAL QUARTER OF
SECTION 10, TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL
MERIDIAN, IN COOK COUNTY, LLLINOIS, ACCORDING TO THE PLAT OF SAID
LAKESHORE EAST SUBDIVISION, RECORDED MARCH 4, 2003 AS DOCUMENT 0030301045,
AND LYING ABOVE A HORIZONTAL PLANE HAVING AN ELEVATION OF 41.00 FEET ABOVE
CHICAGO CITY DATUM, AND LYING BELOW AN INCLINE PLANE HAVING AN ELEVATION OF
55.33 FEET ABOVE CHICAGO CITY DATUM ALONG SAID THE EASTERLY EXTENSION OF THE
NORTH LINE OF LOT 3 AND AN ELEVATION OF 57.25 FEET ABOVE CHICAGO CITY DATUM
ALONG THE SOUTH LINE OF SAID LOT 4;


 


ALL IN COOK COUNTY, ILLINOIS.


 


PARCEL 2:


(APPURTENANT TO AND BURDENS ALL LOTS IN LAKESHORE
EAST SUBDIVISION.)


 


NON-EXCLUSIVE EASEMENT
APPURTENANT TO AND FOR THE BENEFIT OF PARCEL I, INCLUDING EASEMENTS FOR
ACCESS TO IMPROVEMENTS BEING CONSTRUCTED OVER TEMPORARY CONSTRUCTION EASEMENT
AREAS, FOR PEDESTRIAN AND VEHICULAR INGRESS AND EGRESS ON, OVER THROUGH AND
ACROSS THE STREETS, AND TO UTILIZE THE UTILITIES AND UTILITY EASEMENTS, IN
AND UPON LOTS AND PARTS OF LOTS IN LAKESHORE EAST SUBDIVISION AFOREMENTIONED,
ALL AS MORE PARTICULARLY DEFINED, DESCRIBED AND CREATED BY DECLARATION OF
COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS FOR LAKESHORE EAST MADE BY
AND BETWEEN LAKESHORE EAST LLC, LAKESHORE EAST PARCEL P LLC, AND ASN LAKESHORE
EAST LLC DATED AS OF JUNE 26, 2002 AND RECODED JULY 2, 2002 AS DOCUMENT
0020732020 AND AS AMENDED BY FIRST AMENDMENT TO DECLARATION OF COVENANTS,
CONDITIONS, RESTRICTIONS AND EASEMENTS FOR LAKESHORE EAST EXECUTED BY LAKESHORE
EAST LLC DATED AS OF MARCH 3,2003 AND RECORDED MARCH 7,2003 AS DOCUMENT
0030322531, AND AS AMENDED BY SECOND AMENDMENT TO DECLARATION OF COVENANTS,
CONDITIONS, RESTRICTIONS AND EASEMENTS FOR LAKESHORE EAST EXECUTED BY LAKESHORE
EAST LLC DATED AS OF NOVEMBER 12, 2004 AND RECORDED NOVEMEBER 19, 2004 AS
DOCUMENT 0432427091, AND RE-RECORDED JANUARY 19, 2005 AS DOCUMENT NUMBER
0501919098. AND FURTHER AMENDED BY THIRD AMENDMENT TO DECLARATION OF COVENANTS,
CONDITIONS, RESTRICTIONS, AND EASEMENTS FOR LAKESHORE EAST EXECUTED BY
LAKESHORE EAST LLC DATED AS OF FEBRUARY 24, 2005 AND RECORDED FEBRUARY 25, 2005
AS DOCUMENT 0505632009, AND FURTHER AMENDED BY FOURTH AMENDMENT TO DECLARATION
OF COVENANTS, RESTRICTIONS. AND EASEMENTS FOR LAKESHORE EAST EXECUTED BY
LAKESHORE EAST LLC DATED AS OF FEBRUARY 24, 2005 AND RECORDED FEBRUARY 25, 2005
AS DOCUMENT 0505632012, AND FURTHER AMENDED BY FIFTH AMENDMENT TO THE
DECLARATION OF COVENANTS. RESTRICTIONS AND EASEMENTS FOR LAKESHORE EAST
EXECUTED BY LAKESHORE EAST LLC DATED AS OF OCTOBER 27,


 

















 


2006 AND RECORDED NOVEMBER
9, 2006 AS DOCUMENT 0631333004 AND ALSO RE-RECORDED ON FEBRUARY 9, 2007 AS
DOCUMENT 0704044062, AND AS SUPPLEMENTED BY NOTICE OF SATISFACTION OF
CONDITIONS RELATED TO FIFTH AMENDMENT TO DECLARATION OF COVENANTS, CONDITIONS,
RESTRICTIONS AND EASEMENTS FOR LAKESHORE EAST LLC, DATED AS OF FEBRUARY 9, 2007
AND RECORDED MAY 22, 2007 AS DOCUMENT 00714222037.


 


PARCEL 3:


(APPURTENANT TO AND BURDENS
LOTS I AND 2 IN LAKESHORE EAST SUBDIVISION)


 


EXCLUSIVE
AND NON-EXCLUSIVE EASEMENTS APPURTENANT INCLUDING PARKING AND USE EASEMENT AND
MAINTENANCE EASEMENT ALL MORE PARTICULARLY DEFINED IN THE FIRST AMENDMENT TO
PARCELS I AND 2 DEVELOPMENT AND EASEMENT AGREEMENT DATED OCTOBER 27, 2006 AND
RECORDEDNOVEMBER 9,2006 AS DOCUMENT 061333002 AND AS SUPPLEMENTED BY NOTICE OF
SATISFACTION OF CONDITIONS RELATING TO FIFTH AMENDMENT TO DECLARATION OF
COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS FOR LAKESHORE EAST AND FIRST
AMENDMENT TO PARCELS 1 AND 2 DEVELOPMENT AND EASEMENT AGREEMENT RECORDED
MAY 22, 2007 AS DOCUMENT NUMBER 0714222037.


 


PARCEL 4:


 


COMMONWEALTH EDISION
EASEMENT DATED AS OF JUNE 26, 2002 AND RECORDED JULY 2, 2002 AS DOCUMENT
0020732345 AND AS AMENDED AND RESTATED BY FIRST AMENDMENT TO AND RESTATEMENT OF
COM ED SUPPORT EASEMENT RECORDED JUNE 11, 2007 AS DOCUMENT 0716240042.


 


PARCEL 5:


 


EASEMENTS FOR UTILITIES,
EXCLUSIVE PARKING SPACES, MAINTENANCE OF EXISTING ENCROACHMENTS, ACCESS,
EMERGENCY PEDESTRIAN EGRESS AND AIR INTAKE VERTICALLY WITHIN THE COM ED UTILITY
EASEMENT AREA. THE COM ED PARKING AND ACCESS EASEMENT AREA, AND OTHER DEFINED
AREAS, AS CONTAINED TN COM ED EASEMENT AGREEMENT DATED AS OF JUNE 26, 2002 AND
RECORDED JULY 2, 2002 AS DOCUMENT 0020732346 MADE BY AND BETWEEN ASN LAKESHORE
EAST LLC, LAKESHORE EAST PARCEL P LLC, AND COMMONWEALTH EDISON COMPANY, AND AS
AMENDED BY FIRST AMENDMENT TO AND RESTATEMENT OF COM ED EASEMENT AGREEMENT
RECORDED JUNE 11, 2007 AS DOCUMENT 0716240043. (APPURTENANT TO LOTS 1, 2 AND
UNDERLYING EASEMENT PARCEL 2 AND 3).