**EXHIBIT10.1**

 

**CommercialMulti-Property Agreement of Purchase and Sale,**

**Togetherwith Related Amendments**

 

 

**IMPORTANT NOTE****:**

 

Certain information contained in theoriginally executed copy of the Commercial Multi-Property Agreement of Purchaseand Sale, as well as in the related amendments thereto, has been omitted fromthe following Exhibit 10.1 pursuant to a request for confidential treatmentdelivered by the Registrant to the Office of the Secretary of the Securitiesand Exchange Commission simultaneously with the filing of this Form 10-Q.  The omitted information has been replacedwith the symbol “***” to notify readers that such information has beenomitted.  The omission of thisinformation appears on many of the pages of the Commercial Multi-Property Agreementof Purchase and Sale, as well as the related amendments thereto.

 

The Registrant has separately filed in paperformat with the Securities and Exchange Commission, together with theaforementioned request for confidential treatment, a complete version of theCommercial Multi-Property Agreement of Purchase and Sale, including the relatedamendments thereto, which does not omit any information for which confidentialtreatment is being sought.

 

 

 

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TABLE OF CONTENTS
| **ARTICLE I. SUBJECT OF SALE**                   | ** **    | ** **                                            |
|--------------------------------------------------|---------------|-------------------------------------------------------|
|                                             | Section  1.1. | Sale  of the Properties                               |   |   |
|                                             | Section  1.2. | Seller  Relationships                                 |   |   |
| **ARTICLE II. PURCHASE PRICE**                   | ** **    | ** **                                            |
|                                             | Section  2.1. | Purchase  Price                                       |   |   |
|                                             | Section  2.2. | Investment                                            |   |   |
|                                             | Section  2.3. | Return  of Deposit                                    |   |   |
|                                             | Section  2.4. | Additional  Escrow Terms                              |   |   |
| **ARTICLE III. TITLE EXCEPTIONS; DUE DILIGENCE** | ** **    | ** **                                            |
|                                             | Section  3.1. | State  of Title to be Conveyed                        |   |   |
|                                             | Section  3.2. | Title  Reports                                        |   |   |
|                                             | Section  3.3. | Title  Objections                                     |   |   |
|                                             | Section  3.4. | Removal  of Title Objections                          |   |   |
|                                             | Section  3.5. | Deliveries  by Seller                                 |   |   |
|                                             | Section  3.6. | No  Representations Regarding Due Diligence Materials |   |   |
|                                             | Section  3.7. | Access  to the Property                               |   |   |
|                                             | Section  3.8. | Return  of Information Upon Termination               |   |   |
|                                             | Section  3.9. | Study  Period                                         |   |   |
| **ARTICLE IV. ASSESSMENTS**                      | ** **    | ** **                                            |
|                                             | Section  4.1. | Assessments                                           |   |   |
| **ARTICLE V. EXPENSES**                          | ** **    | ** **                                            |
|                                             | Section  5.1. | Expenses                                              |   |   |
|                                             | Section  5.2. | Survival                                              |   |   |

 

 

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| **ARTICLE VI. APPORTIONMENTS**                          | ** **    | ** **                                         |
|---------------------------------------------------------|---------------|----------------------------------------------------|
|                                                    | Section  6.1. | Apportionments                                     |   |   |
|                                                    | Section  6.2. | Goods  and Services                                |   |   |
|                                                    | Section  6.3. | Leasing  Costs                                     |   |   |
|                                                    | Section  6.4. | Reapportionment                                    |   |   |
|                                                    | Section  6.5. | Monthly  Statements                                |   |   |
|                                                    | Section  6.6. | Security  Deposits                                 |   |   |
|                                                    | Section  6.7. | Capital  Expenses                                  |   |   |
|                                                    | Section  6.8. | Timing                                             |   |   |
|                                                    | Section  6.9. | Survival                                           |   |   |
| **ARTICLE VII. CONDITIONS TO CLOSING AND THE  CLOSING** | ** **    | ** **                                         |
|                                                    | Section  7.1. | Conditions  to Sellers’ Obligation to Sell    |   |   |
|                                                    | Section  7.2. | Conditions  to Buyer’s Obligation to Purchase |   |   |
|                                                    | Section  7.3. | Adjournment  of Closing Date                       |   |   |
|                                                    | Section  7.3. | No  Financing Contingency                          |   |   |
|                                                    | Section  7.4. | Closing                                            |   |   |
| **ARTICLE VIII. SELLERS’ REPRESENTATIONS**         | ** **    | ** **                                         |
|                                                    | Section  8.1. | Sellers’  Representations                     |   |   |
|                                                    | Section  8.2. | Representation  Survival                           |   |   |
|                                                    | Section  8.4. | Limitations  on Sellers’ Representations      |   |   |
|                                                    | Section  8.5. | Buyer’s  Knowledge                            |   |   |
|                                                    | Section  8.6. | Sellers’  Knowledge                           |   |   |
|                                                    | Section  8.7. | Sellers’  Representations and Warranties      |   |   |
| **ARTICLE IX. BUYER’S REPRESENTATIONS**            | ** **    | ** **                                         |
|                                                    | Section  9.1. | Buyer’s  Representations                      |   |   |
|                                                    | Section  9.2. | Survival                                           |   |   |

 

 

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| **ARTICLE X. LIKE KIND EXCHANGE**                            | ** **      | ** **                                        |
|--------------------------------------------------------------|-----------------|---------------------------------------------------|
|                                                         | Section  24.18. | Like-Kind  Exchange                               |   |   |
| **ARTICLE XI. TAX REASSESSMENT OR REDUCTION  PROCEEDINGS**   | ** **      | ** **                                        |
|                                                         | Section  11.1.  | Tax  Reassessment or Reduction Proceedings        |   |   |
| **ARTICLE XII. CONDITION OF PROPERTIES; RELEASE OF  CLAIMS** | ** **      | ** **                                        |
|                                                         | Section  12.1.  | Condition  of Properties                          |   |   |
|                                                         | Section  12.2.  | Release  of Claims                                |   |   |
| **ARTICLE XIII. DELIVERIES AT CLOSING**                      | ** **      | ** **                                        |
|                                                         | Section  13.1.  | Deliveries  at Closing                            |   |   |
| **ARTICLE XIV. DEFAULT; DAMAGES**                            | ** **      | ** **                                        |
|                                                         | Section  14.1.  | Buyer  Defaults                                   |   |   |
|                                                         | Section  14.2.  | Seller  Defaults                                  |   |   |
|                                                         | Section  14.3.  | Right  to Cure                                    |   |   |
|                                                         | Section  14.4.  | Defaults  Discovered Post Closing                 |   |   |
|                                                         | Section  14.5.  | Limitation  on Seller’s Default              |   |   |
|                                                         | Section  14.6.  | Termination  of Related Purchase Agreements       |   |   |
|                                                         | Section  14.6.  | Survival                                          |   |   |
| **ARTICLE XV. OPERATION OF PROPERTIES UNTIL  CLOSING**       | ** **      | ** **                                        |
|                                                         | Section  15.1.  | Operation  of the Properties                      |   |   |
|                                                         | Section  15.2.  | Books  and Records                                |   |   |
|                                                         | Section  15.3.  | Change  in Condition of Property Prior to Closing |   |   |
|                                                         | Section  15.4.  | Deemed  Consent                                   |   |   |
|                                                         | Section  15.5.  | No  Termination                                   |   |   |
|                                                         | Section  15.6.  | Continued  Operation by Sellers                   |   |   |

 

 

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| **ARTICLE XVI. CASUALTY AND CONDEMNATION**           | ** **     | ** **                    |
|------------------------------------------------------|----------------|-------------------------------|
|                                                 | Section  16.1. | Condemnation                  |   |   |
|                                                 | Section  16.2. | Casualty                      |   |   |
|                                                 | Section  16.3. | Termination                   |   |   |
| **ARTICLE XVII. NOTICES**                            | ** **     | ** **                    |
|                                                 | Section  17.1. | Notices                       |   |   |
| **ARTICLE XVIII. INVESTMENT BANKER AND BROKER**      | ** **     | ** **                    |
|                                                 | Section  18.1. | Investment  Banker and Broker |   |   |
| **ARTICLE XIX. ASSIGNMENT**                          | ** **     | ** **                    |
|                                                 | Section  19.1. | Assignment                    |   |   |
| **ARTICLE XX. FURTHER ASSURANCES**                   | ** **     | ** **                    |
|                                                 | Section  20.1. | Further  Assurances           |   |   |
| **ARTICLE XXI. CONFIDENTIALITY**                     | ** **     | ** **                    |
|                                                 | Section  21.1. | Confidentiality               |   |   |
| **ARTICLE XXII. PUBLIC DISCLOSURE - PRESS RELEASES** | ** **     | ** **                    |
|                                                 | Section  22.1. | Public  Disclosure            |   |   |
| **ARTICLE XXIII. DISBURSEMENTS BY ESCROW HOLDER**    | ** **     | ** **                    |
|                                                 | Section  23.1. | Actions  by Escrow Holder     |   |   |
| **ARTICLE XXIV. MISCELLANEOUS**                      | ** **     | ** **                    |
|                                                 | Section  24.1. | Entire  Agreement             |   |   |
|                                                 | Section  24.2. | Modification                  |   |   |
|                                                 | Section  24.3. | Captions                      |   |   |
|                                                 | Section  24.4. | Governing  Law                |   |   |
|                                                 | Section  24.5. | References                    |   |   |
|                                                 | Section  24.6. | Certain  Definitions          |   |   |
|                                                 | Section  24.7. | Exhibits                      |   |   |

 

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|   | Section  24.8.  | Successors  and Assigns |   |   |
|--------|-----------------|-------------------------|--------|--------|
|   | Section  24.9.  | Survival                |   |   |
|   | Section  24.10. | Attorneys’  Fees   |   |   |
|   | Section  24.11. | Severability            |   |   |
|   | Section  24.12. | Counterparts            |   |   |
|   | Section  24.14. | Recordation             |   |   |
|   | Section  24.15. | Time  of Essence        |   |   |
|   | Section  24.17. | Escrow  Holder          |   |   |

 

 

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EXHIBITS AND SCHEDULES
|       |   |                                                      |   |                   |
|------------|--------|-----------------------------------------------------------|--------|------------------------|
| Exhibit A  |   | Description of Land                                       |   | Recital                |
| Exhibit B  |   | Tenant List                                               |   | 1.1(a), 1.1(b), 8.1(c) |
| Exhibit C  |   | Service Contracts                                         |   | 1.1(e), 8.1(d)         |
| Exhibit D  |   | Form of Assignment and  Assumption Agreement              |   | 1.1(e), 13.1(a)        |
| Exhibit E  |   | Construction Contracts                                    |   | 1.1(f)                 |
| Exhibit F  |   | Equipment Leases                                          |   | 1.1(i)                 |
| Exhibit G  |   | Form of Special Warranty  Deed                            |   | 3.1, 13.1(a)           |
| Exhibit H  |   | Property Evaluation  Reports                              |   | 3.5                    |
| Exhibit I  |   | Assessments                                               |   | 4.1                    |
| Exhibit J  |   | Outstanding Lease  Obligations                            |   | 6.3(a)                 |
| Exhibit K  |   | Schedule of Rent Step Up                                  |   | 6.3(b), 6.3(e)         |
| Exhibit L  |   | Schedule of “Out for  Signature” Leases         |   | 6.3 (c), 6.3(e)        |
| Exhibit M  |   | Schedule of Vacancy  Leasing Costs                        |   | 6.3(d), 6.3(e)         |
| Exhibit N  |   | Capital Expense Projects                                  |   | 6.7                    |
| Exhibit O  |   | Form of Tenant Estoppel  Certificate                      |   | 7.2(b)                 |
| Exhibit P  |   | Form of Seller’s Estoppel                            |   | 7.2(b)                 |
| Exhibit Q  |   | Buyer’s Additional Credits                           |   | 6.3(e)                 |
| Exhibit R  |   | Pending Claims                                            |   | 8.1(e)                 |
| Exhibit S  |   | Security Deposits                                         |   | 8.1(g)                 |
| Exhibit T  |   | Schedule of Tax Reduction  Proceedings                    |   | 8.1(h)                 |
| Exhibit U  |   | Form of Bill of Sale                                      |   | 13.1(a)                |
| Exhibit V  |   | Form of Seller’s Title  Affidavit                    |   | 13.1(h)                |
| Exhibit W  |   | Form of FIRPTA  Certification                             |   | 13.1(k)                |
| Exhibit X  |   | Pre-Development Costs                                     |   | 6.1(8)                 |
| Exhibit Y  |   | Leasing Guidelines                                        |   | 15.1(b)                |
| Exhibit Z  |   | Insurance Coverage                                        |   | 15.1(e), 16.2          |
| Exhibit AA |   | Provisions Pertaining to  Loan Assumptions                |   | 2.1(c)                 |
| Exhibit BB |   | Provisions Pertaining to  Buildings Under Construction    |   | 7.5                    |
| Exhibit CC |   | Description of Portfolios                                 |   | 7.3                    |
| Exhibit DD |   | 29G Construction Costs  Incurred as of the Effective Date |   | 15.1(h)                |
| Exhibit EE |   | Form of Master Lease for  Parcel 29G                      |   | 15.1(h)                |
| Exhibit FF |   | Required Tenants                                          |   | 7.2(b)                 |
| Exhibit GG |   | Title Questions                                           |   | 3.2, 3.9(b)            |

 

 

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|             |   |                                    |   |         |
|------------------|--------|-----------------------------------------|--------|--------------|
| Schedule         |   |                                    |   | Section      |
| Schedule  1- A   |   | List  of Sellers                        |   | Recital      |
| Schedule  1.1(i) |   | Bonds,  Deposits and Similar Assurances |   | 1.1(i)       |
| Schedule  2.1    |   | Purchase  Price Allocation              |   | 2.1          |
| Schedule  2.1(a) |   | Allocation  of Security Deposit         |   | 2.1(a)       |
| Schedule  3.1(a) |   | Preliminary  Title Reports              |   | 3.1(a),  3.3 |
| Schedule  3.1(f) |   | Surveys                                 |   | 3.1(f)       |
| Schedule  3.9(b) |   | Tenants  to be Interviewed              |   | 3.9(b)       |

 

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**AGREEMENT OF PURCHASE AND SALE**

THIS AGREEMENT OF PURCHASE AND SALE (this “Agreement”)is made as of this January ___, 2006 (the “Effective Date”) by and amongthe entities listed on Schedule 1-A hereto (each, a “Seller” and,collectively, the “Sellers”), having an address at c/o The Mark WinklerCompany, 4900 Seminary Road, Suite 900, Alexandria, Virginia 22311, and DUKEREALTY LIMITED PARTNERSHIP, an Indiana limited partnership (“Buyer”),having an address at 600 East 96th Street, Suite 100, Indianapolis,Indiana 46240.

W I T N E S S E T H:

WHEREAS, each Seller is the owner of the tracts ofland set forth next to such Seller’s name set forth on Schedule 1-Ahereto, which tracts of land are more particularly described on Exhibits Aattached hereto (such land, together with all appurtenances and rights,privileges, development rights, air rights, rights of way, and easementsappurtenant thereto, are collectively referred herein to as the “Land”); and

WHEREAS, each Seller desires to sell to Buyer andBuyer desires to purchase from each Seller, each Property (as defined below),subject to the terms and conditions of this Agreement.  Certain of the Properties are grouped asportfolios as shown on Exhibit CC attached hereto (each, a “Portfolio”).

NOW, THEREFORE, for good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged by each partyhereto, and intending to be legally bound hereby, Sellers and Buyer agree asfollows:

# **ARTICLE I.**

# SUBJECTOF SALE

## Section 1.1.            Saleof the Properties. Upon and subject to the terms and conditions hereincontained, Sellers agree to sell, transfer, assign and convey to Buyer, andBuyer agreesto purchase from Sellers each Seller’s interest in: (a) the Land,(b) the buildings and other improvements, if any, located on the Land (the “Buildings”),and (c) except to the extent otherwise set forth herein, all of the othertangible and intangible property owned by Sellers in, on, attached to,appurtenant to, and used in the operation or maintenance of, the Land or theBuildings, including, without limitation, development rights and air rights, ifany (collectively with the Land and the Buildings, the “Properties” and,each a “Property” or an “Individual Property”).  The sale of the Properties shall include, withoutlimitation, the following:

### (a)   Sellers’ interests as landlord under allleases, licenses and other occupancy agreements for space in the Buildingsreflected in the tenant list attached as Exhibit B hereto (as the samemay be amended, modified, renewed or extended in accordance with the terms ofthis Agreement, the “Leases”), together with all leases and otheroccupancy agreements relating to the Buildings entered into by Sellers afterthe Effective Date in accordance with the terms of this Agreement, to theextent the Leases do 

 

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### not expire or are not terminated prior to the ClosingDate (as hereinafter defined) in accordance with the terms of this Agreement;

### (b)   Sellers’ interests, if any, in all refundablesecurity deposits, whether in the form of cash, letters of credit or othersecurity, and, except as provided herein, advance rental payments held bySellers in connection with the Leases, received from the tenants listed in ExhibitB attached hereto together with all other tenants pursuant to leases andother occupancy agreements relating to the Buildings entered into by Sellersafter the Effective Date in accordance with the terms of this Agreement (the “Tenants”),including all accrued interest thereon which Tenants are entitled to receive;

### (c)   Sellers’ interests, if any, in all licenses,permits, certificates, approvals, authorizations, variances and consents(collectively, the “Permits”) issued or granted by governmental andquasi-governmental bodies, officers and authorities exclusively in respect ofthe ownership, occupancy, use and operation of the Land or the Buildings to theextent assignable;

### (d)   Sellers’ interest in all maintenance, parkingmanagement, supply, and other service contracts (collectively, the “ServiceContracts”), but specifically excluding property management agreements,which property management agreements shall be terminated, at or prior toClosing, by the Seller whose Property is affected by such property managementagreements at such Seller’s sole cost and expense.  All Service Contracts that, to Seller’sknowledge, are not terminable at Closing, are indicated on Exhibit C.  Except as provided below and subject to theterms and conditions of this Agreement, Buyer shall purchase the Propertiessubject to the Service Contracts and shall assume the obligations of Sellerthereunder pursuant to the terms of an Assignment and Assumption Agreement, theform of which is set forth as Exhibit D. Service Contracts that affect one or more properties in addition to theProperties to be purchased by Buyer pursuant to this Agreement shall beterminated by Seller effective as of the Closing Date.  During the Study Period, Buyer shall reviewthe Service Contracts to determine which may be terminated by Seller prior tothe Closing and which may not.  Selleragrees to provide notices of termination on or prior to the Closing for each ofthe Service Contracts that are terminable and that Buyer designates in writingduring the Study Period for termination; provided that in no event shall Sellerbe obligated to terminate Service Contracts relating to maintaining warrantiesin connection with the Buildings and other improvements or that were obtainedin connection with the initial construction or installation.  All termination fees, if any, arising out ofa termination, shall be paid by Buyer at Closing;

### (e)   All contract rights related to anyconstruction activities on the Properties, including improvements required byany Leases, but only to the extent (i) assignable or transferable withoutpenalty or payment by any of the Sellers (unless Buyer agrees to assumeresponsibility for such penalty or payment in a manner reasonably acceptable toSellers) and/or (ii) such contract rights are not being retained on anon-exclusive basis by or on behalf of any of the Sellers for continuingdevelopment of Liberty Center III, including, without limitation, thefollowing:  construction contracts,architectural contracts, engineering contracts, and other agreements related toconstruction 

###  

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### activities on the Properties that will remain inexistence after the Closing (collectively, the “Construction Contracts”).  Seller will assign to Buyer, and Buyer willassume from Seller, the Construction Contracts listed on Exhibit Epursuant to the terms of an Assignment and Assumption Agreement, the form ofwhich is set forth as Exhibit D.

### (f)    all right, title and interest of Sellers inand to any unpaid awardfor any taking of all or part of the Land or the Buildings;

### (g)   all right, title and interest of Sellers inand to all assignable warranties and guaranties, if any with respect to theLand or the Buildings; and

### (h)   all right, title and interest of Sellers inand to machinery, tools, equipment, fixtures and other tangible property in,on, attached to, appurtenant to and used by Sellers solely in the operation ormaintenance of, the Land or the Buildings which are owned by Sellers including,without limitation, all inventory, supplies, building materials, tools,machinery and equipment in the condition, and of the volume, as existing on theClosing Date, it being understood that such items may be in need of repair, andSeller shall have no obligation to repair the same (the “Personal Property”),and all right, title and interest of Sellers under all equipment leasesrelating to the operation or maintenance of the Land or Buildings, whichequipment leases are listed on Exhibit F attached hereto (the “EquipmentLeases”).

### (i)    Subject to the apportionment provisions of ArticleVI, the sale of the Properties shall exclude (i) all cash of any Seller(whether on hand or in bank accounts) other than the aforementioned unappliedsecurity deposits, (ii) delinquent Tenant arrearages and accounts receivable asof the Closing Date, (iii) Sellers’ policies of title insurance, (iv) computerprograms which are not related solely to the operation of the Properties  or are not owned by Seller, (v) Sellers’rights under this Agreement, (vi) all proprietary or licensed computerprograms, (vii) all insurance proceeds with respect to events existing oroccurring prior to, and other claims existing on, the Closing Date, other thanthe proceeds assigned to Buyer pursuant to Article XVI hereof, (viii)all bonds, letters of credit, deposits or similar assurances posted withgovernmental or quasi-governmental agencies or utility companies to secureperformance of public improvements or payment obligations to utility companies,(ix) any items of personal property owned or leased (from anyone other than aSeller) by each Seller’s property manager and located in the property manager’son-site or off-site property management office, (x) any items of personalproperty owned or leased (from anyone other than a Seller) by any Tenant at oron each Seller’s Property, and (xi) any Protected Information (as definedherein).  Buyer shall be responsible atits sole cost and expense to post (and to pay the cost of) all bonds, depositsor similar assurances to be posted with governmental or quasi-governmentalagencies or utility companies in connection with the development, ownership,operation and maintenance of the Property, as the same are listed on Schedule1.1(i) attached hereto.

### (j)    Each Seller quitclaims to Buyer any rightsit may have to use the names “Mark Center”, “TransDulles Centre”,  and “Liberty Center”, and the related logos,and Buyer shall have the non-exclusive right, together with other propertyowners, to use 

 

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### such names. Buyer hereby acknowledges that Seller makes no representations orwarranties concerning any patents, trademarks, copyrights or other intellectualproperty rights.

## Section 1.2.            SellerRelationships. Notwithstanding anything contained in this Agreement to the contrary,the representations, covenants and obligations of each individual Seller underthis Agreement shall be limited to the representations, covenants andobligations of such Seller set forth in this Agreement, as applicable to suchSeller and to such Seller’s Property only. The obligations of the Sellers under this Agreement are not joint andseveral.  No Seller shall be responsiblefor the obligations of any other Seller under this Agreement.  No Seller shall be subject to claims, damagesor remedies attributable to any breach of this Agreement by another Seller.

# **ARTICLE II.**

# PURCHASEPRICE.

## Section 2.1.            PurchasePrice. The aggregate purchase price for the Properties (the “Purchase Price”)is EIGHT HUNDRED THIRTY-SEVEN MILLION THREE HUNDRED SIXTY-SIX THOUSAND NINETYONE AND 00/100 DOLLARS ($837,366,091), which represents the sum of the purchaseprice allocated to each Property as shown on Schedule 2.1, payable byBuyer as follows.  Parcel 20 Seller mayalso be entitled to the increase in the Purchase Price allocable to itsProperty pursuant to the terms of Section 15.1(i) below:

### (a)   Buyer shall, within one (1) Business Day (asdefined below) after full execution of this Agreement, deliver to FirstAmerican Title Insurance Company (in such capacity, the “Escrow Holder”)the amount of **** of the ******** ***** in the form of a letter of credit (asprovided below) or by wire transfer of immediately available good funds to anaccount designated by Escrow Holder (together with any interest earned thereon,the “Initial Deposit”).  Providedthis Agreement is not terminated by the end of the ***** ******** **** (asdefined below), Buyer shall, within one (1) Business Day after the ************* ****, deposit with Escrow Holder an additional amount (together withany interest earned thereon, the “Additional Deposit”) such that the sum of theInitial Deposit and the Additional Deposit shall equal **** ******* **** of the******** *****.  The Additional Depositshall be in the form of a letter of credit (as provided below) or by wiretransfer of immediately available good funds to an account designated by EscrowHolder.  As used herein, the term “Deposit”shall mean the Initial Deposit together with the Additional Deposit, from andafter the date that the Additional Deposit is required to be made.  The Deposit shall be allocated to theProperties as set forth on Schedule 2.1(a). The Deposit shall be non-refundable; provided, however,that the Deposit (or the appropriate allocable portion thereof) shall berefundable to Buyer if  Buyer terminatesthis Agreement in accordance with the provisions of this Agreement whichexpressly provide for the return of any portion of the Deposit to Buyer uponsuch termination.  At the election of Buyer, the Deposit (or anyportion thereof) may be in the form of one or more irrevocable letters ofcredit issued by a U.S. federally insured commercial bank approved by Sellersfor the benefit of Escrow Holder, each of which 

 

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### shall have an initial term of atleast one year, the form and substance of which shall be acceptable to Sellersand Escrow Holder.  If Buyer and Sellercannot agree upon the issuer of a letter of credit or the form or substance ofsuch letter of credit, the Deposit shall be in cash.  If at any time during the term of theAgreement, any letter of credit will expire within thirty (30) days, Buyershall deliver to Escrow Holder either a replacement letter of credit, or anendorsement to the letter of credit, extending the expiration date of theLetter of Credit for at least one (1) year, or to a date that is thirty (30)days following the scheduled Closing Date, whichever is earlier.  If a replacement letter of credit orendorsement is not provided to Escrow Holder as required by the precedingsentence within seven (7) Business Days of the expiration date, Escrow Holdershall draw upon the letter of credit and the proceeds thereof shall be held byEscrow Holder as the Deposit under this Agreement.  Escrow Holder shall draw upon and deliver theproceeds of a letter of credit (or applicable portion thereof) to a Seller wheneverthe terms of this Agreement require the Deposit or a portion thereof to bedelivered to such Seller, including following an event of default by Buyer thathas not been cured during any requisite cure period, and shall deliver suchletter of credit to Buyer whenever the terms of this Agreement require theDeposit to be delivered to Buyer.  Eachletter of credit shall provide that it may be drawn upon by Escrow Holder uponpresentation, to issuer, of the original letter of credit together with a sitedraft and a written statement duly executed and acknowledged by an authorizedrepresentative of Escrow Holder, certifying that the amount drawn thereunder isbeing drawn upon by Escrow Holder pursuant to the terms and conditions of thisAgreement; and

### (b)   Buyer shall, on or before 11:00 a.m. (EasternTime) on the Closing Date, deliver to Escrow Holder, by bank wire transfer ofimmediately available funds to an account designated by Escrow Holder no lessthan three (3) Business Days prior to Closing, the Purchase Price less theamount of any cash Deposit which is being paid to Seller at Closing.  At the Closing, Escrow Holder shall deliverto Sellers the Purchase Price as adjusted to reflect prorations and otheradjustments made pursuant to Article VI. Except as otherwise provided in this Agreement, Escrow Holder shall holdall amounts deposited by Buyer under this Section 2.1(b) for the benefitof Buyer until delivered to Sellers at the Closing and Buyer shall be entitledto a credit against the Purchase Price for all interest paid to Sellers that isearned on such amounts from the date of the deposit until the Closing.

### (c)   The Purchase Price is subject to adjustmentpursuant to the terms of the loan assumption provisions set forth on ExhibitAA attached hereto and made a part hereof.

## Section 2.2.            Investment.  The cash portion of the Deposit shall bedeposited by Escrow Holder into an interest bearing account approved by Buyerand Seller and paid by Escrow Holder in accordance with the terms andprovisions of this Agreement.

## Section 2.3.            Returnof Deposit.  Promptly after thereceipt by Escrow Holder of (a) notice of any demand by either party claimingthat it is entitled to the Deposit (or any portion thereof) or (b) any otherclaim or the commencement of any action, suit or proceeding by either party,Escrow Holder shall send a copy of such notice to the other 

 

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## party and inform the other party of such claim; butthe failure by Escrow Holder to give such notice shall impose no liability onthe Escrow Holder so long as Escrow Holder does not release the Deposit.  If Escrow Holder shall receive written noticefrom either party within five (5) Business Days after delivery of such noticeto the other party instructing Escrow Holder not to deliver the Deposit to therequesting party or to otherwise hold the Deposit, or if for any reason thereis any dispute or uncertainty concerning any action to be taken hereunder,Escrow Holder shall take no action and shall continue to hold the Deposit untilit has received instructions in writing concurred to by Sellers and Buyer oruntil directed by final order or judgment of a court of competent jurisdiction,whereupon Escrow Holder shall take such action in accordance with suchinstructions or such order.  If no writtennotice is received by Escrow Holder within such five (5) Business Day period,Escrow Holder shall deliver a second notice to the other party, and if noresponse is received within five (5) Business Days thereafter, Escrow Holdermay deliver the Deposit to the party which made such demand.

## Section 2.4.            AdditionalEscrow Terms. (a) Sellers and Buyer hereby appoint Escrow Holder to act as the escrowagent under the terms of this Agreement, and Escrow Holder has agreed to acceptsuch appointment under the terms of this Agreement.  The duties and responsibilities of EscrowHolder shall be limited to those expressly set forth in this Agreement.  No implied duties of Escrow Holder shall beread into this Agreement.

### (b)   Upon receipt of the Deposit, Escrow Holdershall provide written notice to Sellers and Buyer acknowledging suchreceipt.  Concurrently with the deliveryof this Agreement, Buyer shall deliver to Escrow Holder an executed W-9 Formfrom Buyer stating Buyer’s federal tax identification number.

### (c)   Escrow Holder shall be entitled to rely upon theauthenticity of any signature and the genuineness and/or validity of anywriting received by Escrow Holder pursuant to or otherwise relating to thisAgreement.  Escrow Holder shall not beresponsible or liable in any respect on account of the identity, authority orrights of any person executing, depositing or delivering or purporting toexecute, this Agreement, or on account of or by reason of forgeries, falserepresentations, or the exercise of Escrow Holder’s discretion in anyparticular manner, nor shall Escrow Holder be liable for any mistake of fact orof law or any error of judgment; provided, however, that nothingin this Agreement shall limit Escrow Holder’s liability for any claim arisingout of Escrow Holder’s negligence, willful misconduct or breach of thisAgreement.  Under no circumstances shallEscrow Holder be liable for any general or consequential damages or damagescaused, in whole or in part, by the action or inaction of Sellers or Buyer(collectively, the “Interested Parties”) or any of their respectiveagents or employees.  Escrow Holder shallnot be liable for any damage, loss, liability, or delay caused by accident,strike, fire, flood, war, riot, equipment breakdown, electrical or mechanicalfailure, act of God or any cause which is beyond its reasonable control.

### (d)   Escrow Holder shall not be responsible in anymanner whatsoever for:  (i) any failureor inability of any Interested Party, or of any one else, to perform or complywith any of the provisions of this Agreement or any other instrument oragreement referred to herein; (ii) the failure to return all or any part of theDeposit by any financial 

 

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### institution in which the Deposit is deposited; or(iii) any investment decision with respect to the Deposit.  Furthermore, Escrow Holder shall not beresponsible for the collection of any checks deposited with it.

### (e)   Escrow Holder shall not be bound or in anyway affected by any notice of any modification or cancellation of thisAgreement, of any fact or circumstance affecting or alleged to affect theparties’ respective rights or liabilities hereunder other than as is expresslyprovided in this Agreement, unless notice of the same is delivered to EscrowHolder in writing, signed by the proper parties.

### (f)    Sellers and Buyer jointly and severallyagree to indemnify and hold harmless Escrow Holder from and against any and allreasonable costs, claims, damages or expenses (including, without limitation,reasonable attorneys’ fees and disbursements) howsoever occasioned that may beincurred by Escrow Holder acting under this Agreement or to which Escrow Holdermay be put in connection with Escrow Holder acting under this Agreement, exceptfor costs, claims or damages arising out of Escrow Holder’s willful misconduct,negligence or breach of this Agreement.

### (g)   In the event of a dispute or conflictingdemands or instructions with respect to any portion of the Deposit, EscrowHolder shall have the right to interplead such portion of the Deposit with acourt of competent jurisdiction at the cost of Sellers and Buyer.

### (h)   Sellers and Buyer reserve the right, at anytime and from time to time, to substitute a new escrow agent in place of EscrowHolder pursuant to a writing executed by Sellers and Buyer which shall containinstructions to Escrow Holder regarding disbursement of the Deposit to the newescrow agent.

# **ARTICLE III.**

# TITLEEXCEPTIONS; DUE DILIGENCE.

## Section 3.1.            Stateof Title to be Conveyed.  Each Seller’s interest in its Property shallbe conveyed to Buyer at the Closing for such Property in fee simple by SpecialWarranty Deed in the form of Exhibit G attached hereto, free and clearof any and all liens, mortgages, deeds of trust, security interests,encumbrances and other title matters, except for the following “PermittedEncumbrances”:

### (a)   the standard pre-printed exclusions from coveragecontained in the ALTA form of owner’s title policies issued by a title companyselected by Buyer and reasonably acceptable to Sellers (in such capacity, the “TitleCompany”) and those specific items identified on the marked form ofSchedule B-II of the preliminary title reports listed on Schedule 3.1(a)hereto (as same may have been updated, amended or modified prior to theEffective Date, the “Preliminary Title Reports”) prepared by the TitleCompany for each Property, as listed on Schedule 3.1(a) hereto, subjectto the following:  (1) exception B-2(1)is subject to the provisions of Section 3.3 of this Agreement; (2) exceptionB-2(a) shall be a permitted exception only as to tenants or 

 

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### licensees, as tenants or licensees only, underunrecorded leases or licenses; (3) exception B-2(b) is a Permitted Exceptiononly as to easements shown on the Surveys received during the Study Period; (4)exception B-2(c) is subject to the provisions of Section 3.3 hereof; and (5)exception B-2(d) shall be deleted and replaced with any specific surveyexceptions taken by the Title Company in the owner’s policy;

### (b)   the Leases that exist as of the Closing foreach Property (including the Leases that exist as of the Effective Date andsuch Leases that are entered into, modified or renewed after the date of thisAgreement not in violation of this Agreement, but excluding those Leases thathave expired or have been duly terminated);

### (c)   all liens of general real estate taxes andassessments, assessments in connection with any proposed Dulles Rail extension(if applicable), personal property taxes and all water, sewer, utility, trashand other similar charges and assessments that are not yet due and payable, itbeing agreed that all such amounts due and payable as of Closing shall be paidin full by Seller, subject to proration for the month and year of Closing, asset forth in this Agreement;

### (d)   Intentionally deleted;

### (e)   all liens, encumbrances and other defects orexceptions to title insurance coverage caused by (i) Buyer; (ii) any of Buyer’srepresentatives; or (iii) any of the Sellers or any of their respectiverepresentatives at Buyer’s or any Buyer’s representative’s written request;

### (f)    matters shown on those certain ALTA/ACSMLand Title Surveys listed on Schedule 3.1(f) (as same may have beenupdated, amended or modified prior to the Effective Date, the “Surveys”),provided that this item (f) shall not be listed as a permitted exception in theSpecial Warranty Deed;

### (g)   all liens, encumbrances and governmentalobligations that either affect solely the property of a Tenant under a Lease orare the obligation of a Tenant to discharge, cure or comply with pursuant tothe terms of its Lease, provided that this item (g) shall not be listed as apermitted exception in the Special Warranty Deed;

### (h)    Intentionally Omitted;

### (i)    all Title Objections (as defined below)approved or deemed approved by Buyer pursuant to Section 3.3 below; and

### (j)    as to the Properties in the Mark CenterPortfolio, any current and future burdens and requirements, financial orotherwise, arising from or in relation to any Transportation Management Planapplicable with respect to the Property, as such Transportation Management Planmay be from time to time amended (the “TMP”), provided that this item (j) shallnot be listed as a permitted exception in the Special Warranty Deed, except tothe extent appearing on the Preliminary Title Reports.

 

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## Section 3.2.            TitleReports.  Buyer acknowledges that ithas received copies of, and, subject to Section 7.2, approves alldocuments relating to Permitted Encumbrances referred to in the PreliminaryTitle Reports and all other documents evidencing or relating to mattersreflected in the Preliminary Title Reports. Buyer will purchase from the Title Company an owner’s title insurancepolicy for each Individual Property insuring Buyer in the amount of thePurchase Price allocable to such Property (“Title Policies”).  In addition, Buyer may elect to purchasecustomary endorsements to the Title Policies, provided, however, theavailability of any endorsements shall not be a condition to the Closing or abasis for a delay or extension of the Closing. Buyer acknowledges and agrees that, except for the warranty in theSpecial Warranty Deeds and other Seller’s Documents delivered to Buyer atClosing, and any express warranty in this Agreement, Sellers make norepresentation or warranty regarding the condition of title to theProperties.  Notwithstanding anything tothe contrary set forth herein, attached hereto as Exhibit GG is a listof title questions raised by Buyer (the “Title Questions”).  Buyer and Sellers acknowledge and agree thatsuch Title Questions are neither deemed to be, nor precluded from qualifyingas, Title Objections pursuant to Section 3.3 below.

## Section3.3.            Title Objections.   If any revision or update of any PreliminaryTitle Report or Survey discloses exceptions to title other than Permitted Encumbrancesshown in the Preliminary Title Report, or Survey received during the StudyPeriod, that would cause title to an Individual Property to be uninsurable orwould render title unmarketable or constitute a monetary lien or judgment on aProperty, or encumbers a Property materially and adversely (the foregoing,collectively, the “Title Objections”), Buyer shall so notify the Sellerof the particular Property to which such Title Objection relates (“Buyer’sObjection Notice”): (a) on or before the fifth (5th) BusinessDay after receipt of any revision or update if received by Buyer on or beforethe fifth (5th) Business Day before the Closing Date, (b) on orbefore one (1) Business Day prior to the Closing Date if received by Buyer lessthan five (5) Business Days before the Closing Date (but prior to the ClosingDate) or (c) on the Closing Date if Buyer becomes aware of same on the ClosingDate (each such date, the “Objection Cut Off Date”), time being of theessence.  Such Seller shall have untilthe Closing Date (and may adjourn the Closing for such reasonable periods) tohave each such Title Objection (i) insured over, (ii) removed, or (iii)corrected (each as selected by a Seller, a “Remedy”) (in the case of (i) or(iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4below); provided, however, nothing herein shall require a Sellerto (I) bring any action or proceeding to remove any Title Objection or (II)take any steps, or incur any expense, in excess of *** ******* ******** ***************** in the aggregate to remove any Title Objections (except that eachSeller shall be obligated to remove the following “Mandatory Cure Items”:(A) the mortgages or deeds of trust identified on the Preliminary Title Reportthat are not assumed by Buyer pursuant to Exhibit AA attached hereto,(B) any and all liens voluntarily placed by a Seller against its Property afterthe date of the applicable Preliminary Title Report in violation of thisAgreement, (C) any and all liens arising by, through or under a Seller and (D)any other Title Objection that would cost not more than the foregoing ********** ******** ******* **********, in the aggregate, to remove).  Each Seller agrees to notify Buyer withinfive (5) Business Days of such Seller’s receipt of Buyer’s Objection Noticewhether such Seller elects to endeavor to Remedy all or any of the TitleObjections raised in Buyer’s Objection Notice. Other than the exceptions to 

 

 

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## title which each Seller is required pursuant to this Section3.3 to Remedy, any exception to title which Buyer does not raise pursuantto the terms hereof on or before the Objection Cut Off Date shall be deemed aPermitted Encumbrance and not a Title Objection.  If a Seller at or prior to the Closing Date(as the same may be extended) either (x) does not elect to Remedy a TitleObjection, or (y) having elected to Remedy a Title Objection for any reasonwhatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned),Buyer may at its sole and exclusive option within five (5) Business Days aftera Seller fails to elect to Remedy a Title Objection or, with respect to anyTitle Objection that a Seller fails to Remedy after having elected to do so, onthe Closing Date (as the same may be adjourned) either (1) terminate thisAgreement with respect to such Individual Property to which such TitleObjection relates and receive a return of the portion of the Deposit relatingto such Individual Property as shown on Schedule 2.1(a) (and the applicableSeller and Buyer shall jointly instruct Escrow Holder to promptly return suchportion of the Deposit to Buyer) and such Seller shall not have any furtherliability or obligation to Buyer hereunder nor shall Buyer have any furtherliability or obligation to such Seller hereunder with respect to thatIndividual Property, except for such obligations as are specifically stated inthis Agreement to survive the termination of this Agreement, or (2) elect toaccept title to the Individual Property as it then is without any reduction in,abatement of, or credit against the Purchase Price and such exceptions shall bedeemed a Permitted Encumbrance; if Buyer fails to timely make either suchelection, Buyer shall be deemed to have elected option (1).

## Section 3.4.            Removalof Title Objections.  Notwithstandinganything herein to the contrary, Sellers shall be deemed to have removed orcorrected each exception that is not a Permitted Encumbrance if, in Sellers’discretion and at Sellers’ sole cost and expense, Sellers either (a) take suchactions as are necessary to eliminate (of record or otherwise, as appropriate)such Title Objection, (b) cause the Title Company to insure over or remove suchexception that is not a Permitted Encumbrance as an exception to title in theTitle Policy or affirmatively insure against the same (and confirmation thatthe Title Company will issue subsequent title policies on the Property with thesame affirmative insurance), in each case without any additional cost to Buyer, whethersuch insurance is made available in consideration of payment, bonding,indemnity given by Sellers or otherwise , or (c) deliver (i) their own funds(or direct that a portion of the Purchase Price be delivered) in an amountneeded to fully discharge any such exception to the Title Company withinstructions for the Title Company to apply such funds to fully discharge any such exception, and (ii) if required by theTitle Company, such instruments, in recordable form, as are necessary to enablethe Title Company to discharge such exception of record.  Buyer shall have no right to direct the TitleCompany to apply any portion of the Purchase Price to cure a Title Objectionwithout Sellers’ prior written approval.

## Section3.5.            Deliveries by Sellers.  Prior to the Effective Date, Buyer receivedan offering package with respect to the Properties (the “Offering Package”)distributed by a representative of Sellers. Sellers through their agents, have also made available to Buyer anelectronic war room (“War Room”) on its website where certain informationrelating to the Property has been posted. Data in this War Room includes theLeases, and current environmental reports, Property Evaluation Reports listedon Exhibit H, Argus 

 

 

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## modeled building-by-building cash flow projections,Pro Forma Development Budgets, updated title reports, and updated surveys.  The due diligence materials delivered (ormade available) by Seller or its agent, including, without limitation, thosedue diligence materials found in the War Room or Offering Package (togetherwith any other information provided to Buyer by the Sellers in accordance withthis Agreement, the “Due Diligence Materials”) do not (and are not intended to)include any Protected Information (as defined below).  Prior to Closing, each Seller will cooperatewith Buyer and shall use commercially reasonable efforts to make availableother specific information relating to such Seller’s Property (other than ProtectedInformation) that Buyer may reasonably request to the extent in such Seller’sor its agent’s possession or control and to the extent readily available.  Notwithstanding the foregoing, it shallnot  in and of itself be deemed a defaultby Sellers under this Agreement if Sellers do not deliver or make available anydue diligence material to Buyer, nor will the same constitute a failure of acondition to Closing unless and to the extent expressly provided to thecontrary in this Agreement.  As usedherein, the term “Protected Information” means any one or more of thefollowing: any internal valuation records, personnel records, all internalcommunications, including projections and internal memoranda or materials,budgets, reports, strategic plans, internal analyses, computer software,submissions relating to obtaining internal approvals, information that isconsidered privileged, confidential or proprietary by Seller and informationprotected by the attorney-client privilege or work product doctrine.

## Section 3.6.            NoRepresentations Regarding Due Diligence Materials.  Except as expressly set forth in ArticleVIII, by making available to Buyer, or furnishing Buyer with the DueDiligence Materials, Sellers do not make any warranty or representation withrespect to the accuracy, completeness, conclusions or statements expressed inthe Due Diligence Materials.  Sellersshall make available to Buyer, or furnish Buyer with, any material updates ofthe Due Diligence Materials upon receipt by Sellers, but failure to deliver ormake available the same shall not in and of itself constitute a defaulthereunder, or otherwise constitute a failure of a condition to Closing unlessand to the extent expressly provided to the contrary in this Agreement.  Buyer hereby waives any and all claimsagainst Sellers or any party that prepared or furnished the Due DiligenceMaterials arising out of any inaccuracy, incompleteness, conclusions orstatements expressed in the Due Diligence Materials furnished or made availableby Sellers or any other party (provided the foregoing shall not limit claimsBuyer may have against Sellers for misrepresentations or breaches of warrantiesexpressly set forth in Article VIII of this Agreement).

## Section 3.7.            Accessto the Property.

### (a)   ProvidedBuyer has delivered evidence of Buyer’s Liability Insurance (as hereinafterdefined) to Sellers and Sellers have approved the same (which approval shallnot be unreasonably withheld, conditioned or delayed), Sellers will allow Buyerand its employees, agents, prospective lenders, attorneys, contractors andrepresentatives (collectively, “Buyer Representatives”), prior to the Closing Date atreasonable times during normal business hours upon two (2) Business Days’ priornotice (but subject to the rights of Tenants under their Leases), to enter uponthe Properties (i) for the purpose of performing surveys, physical inspections,engineering studies and environmental 

 

 

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### assessments whichBuyer may reasonably desire (“Investigations”).  Buyer shall be solely responsible for all ofthe costs and expenses of any Investigations and shall conduct suchInvestigations in good faith and with due diligence.  Notwithstanding the foregoing, without Seller’sprior approval, which shall not be unreasonably withheld, conditioned ordelayed, Buyer shall not be permitted to conduct any Investigations whichinvolve invasive or destructive testing of the Properties (or any portionthereof and including, without limitation, any boring of the Properties inconnection with an environmental audit or otherwise) or any alteration of theProperties (or any portion thereof).  Inthe event Sellers do provide their consent to any such invasive testing or alteration,Buyer shall promptly restore the applicable Property to its conditionimmediately prior to such test or alteration. Buyer shall provide Sellers with evidence that applicable contractorshave named Sellers and The Mark Winkler Company (the “Manager”) asadditional insureds in their respective insurance policies, which insurancepolicies must be approved by Sellers in their reasonable discretion andmaintained through the Closing Date. Buyer shall (x) fully comply with all laws, rules and regulationsapplicable to Properties and/or the Investigations and all other activitiesundertaken in connection therewith, (y) not interfere with the use, occupancy,management, maintenance or operation of the Properties (or any portion thereof)by Sellers,  Manager, the Tenants underthe Leases or other occupants of the Properties (or any of their respectiveagents, representatives, guests, invitees, contractors, or employees), and (z)permit Sellers to have a representative present during all Investigationsundertaken hereunder.  With at least two(2) Business Days prior written notice from Buyer, Sellers shall arrange forBuyer to conduct tenant interviews, provided such Tenants are agreeable to suchinterview, and Sellers shall have the right to have a representative accompanyBuyer on such interviews.  Buyer may not,however, request any governmental investigations or inspections of theProperties; provided, however, nothing contained herein shall prevent Buyerfrom meeting with governmental agencies to discuss and confirm the zoning ofthe Properties.  Buyer hereby agrees toindemnify, defend and hold harmless Sellers, Manager and each other ReleasedParty (as hereafter defined) from and against any and all loss, cost, expense,damage, claim and liability (including, without limitation, reasonable attorneys’fees and disbursements), suffered or incurred by Sellers, Manager or any otherReleased Party and arising out of or in connection with (I) Buyer and/or Buyer’srepresentatives entry upon the Properties, (II) any Investigations and otheractivities conducted on the Properties by Buyer or Buyer’s representatives (butnothing contained herein shall impose any liability on Buyer solely as a resultof Buyer’s mere discovery of a condition of the Property, including, but notlimited to, environmental conditions), and (III) any liens or encumbrancesfiled or recorded against any Property as a consequence of any and allInvestigations and other activities undertaken by Buyer or Buyer’srepresentatives.  Buyer shall procure,prior to entry upon the Properties, and maintain for at least one (1) yearafter the Effective Date commercial general liability insurance covering Buyer,Sellers,  Manager and the Properties foractions taken by Buyer or Buyer’s representatives, contractors, agents orinvitees on an occurrence, as opposed to claims made, basis and providing for acombined single limit for bodily injury and property damage of not less than**** ******* *** ****** ******* *************** per occurrence issued bycompanies and in form and substance reasonably satisfactory to Sellers (“Buyer’sLiability Insurance”), which insurance requirements may be satisfied with acombination of  a primary policy and anexcess policy, provided the same meet the requirements set forth in thisSection 3.7(a).  

 

 

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### All of Buyer’s General Liability Insurance shall beprimary and not contributing with any insurance maintained by Sellers orManager to the extent of Buyer’s indemnity contained in this Section 3.7.  Sellers and Manager shall be named asadditional insureds under all of Buyer’s General Liability Insurance andSellers and Manager shall be given written notice at least thirty (30) daysprior to cancellation, material amendment or reduction of any suchcoverage.  The provisions of this Section3.7 shall not in any way be deemed to amend the provisions of ArticleXII.  The indemnity set forth in thisSection 3.7 shall survive the Closing and/or the termination of thisAgreement until the Survival Date set forth in Section 24.9(a) hereof.

### (b)   Except as otherwise expressly permitted bySection 3.7(a) hereof, Buyer and/or Buyer’s representatives shall notcommunicate or otherwise interfere with the Tenants or with the normal conductby Sellers or the Manager of their business at the Properties.

## Section 3.8.            Returnof Information Upon Termination.  Ifthis Agreement is terminated by either party as to one or more IndividualProperties pursuant to the terms of this Agreement, then upon Sellers’ request,Buyer shall return to Sellers all Due Diligence Materials relating to theIndividual Property or Properties as to which this Agreement has beenterminated that were delivered to Buyer and/or Buyer’s general partners, andtheir principals, officers, employees, attorneys  or other persons acting for or on behalf ofBuyer actively involved with the transactions contemplated by this Agreement(collectively, the “Receiving Party Representatives”) but expresslyexcluding any and all reports studies, data, analysis and surveys that Buyer and/orthe Receiving Party Representatives discover, commission or generate inconnection with or resulting from their due diligence activities on (orrelating to) the Properties.  All of theDue Diligence Materials shall be maintained by Buyer in confidence, and Buyeracknowledges and agrees that the Due Diligence Materials are subject to theconfidentiality provisions of Article XXI.  Buyer shall indemnify the Released Parties(as hereinafter defined) from and against any and all Claims resulting from,arising out of or in connection with Buyer’s and/or the Receiving PartyRepresentatives’ breach of its obligations under this Section 3.8.  The obligations of Buyer set forth in thisSection 3.8 shall survive the Closing or the termination of this Agreement untilthe Survival Date set forth in Section 24.9 below.

## Section 3.9.            StudyPeriod.

### (a)   During the period (the “StudyPeriod”) that commenced on ******* **, **** (the “***** ****************** ****”), and ends on ******* **, ****, at **** **** *********** (the “***** ******** ****”), the Buyer will be afforded theopportunity to confirm or examine whatever facts (“Facts”), as distinctfrom judgments (“Judgments”), in the Offering Package and the DueDiligence Materials and this Agreement it chooses to investigate.  In no event shall “Facts” include (i)any pro forma information, projections, forecasts, or opinions regardingpresent or future market conditions, (ii) any change, or potential change, inthe market conditions which influence the Properties including, withoutlimitation, the market rents for buildings in the northern Virginia andWashington D.C. metropolitan office market, the supply and demand forcesaffecting the northern Virginia and Washington D.C. metropolitan office market,(iii) the

 

 

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### Properties’ competitive position relative to theirexisting and new development competitors, occupancy/vacancy rates, collectionloss allowances, if any, and projected growth rates, if any, in rents and expensesand levels of tenant packages (including tenants work and market driven leasingfees), (iv) the impact of the consummation of this transaction on the assessedvalue of the Properties, (v) the availability or limited availability or costof obtaining terrorism and  otherinsurance, (vi) other income sources and amounts including, without limitation,overtime HVAC charges from the Properties, (vii) parking revenues and expenseestimates, (viii) the applicability and amount of any Commonwealth of Virginia franchisetax, or (ix) whether any Building can be re-measured to include more netrentable area.

### (b)   Subject to Section 3.9(c) below, Buyermay elect to terminate this Agreement with respect to an Individual Property bywritten notice received by Seller on or before the ***** ******** **** (the “TerminationNotice”) if and only if Buyer determines during the Study Period that (i)it has been unable to resolve any Title Questions listed on Exhibit GGto Buyer’s reasonable satisfaction (regardless of whether such Title Questionsconstitute a Material Difference), (ii) Buyer has not been able to conducttenant interviews with at least eight (8) of the eleven (11) Tenants listed onSchedule 3.9(b) attached hereto (regardless of whether the failure of Buyer toconduct any such interviews constitutes a Material Difference), or (iii) thereare material adverse inconsistencies with respect to an Individual Propertybetween (A) the Facts set forth in the Offering Package, the Due DiligenceMaterials and this Agreement, and those Facts known by Buyer on the EffectiveDate, and (B) Facts discovered by Buyer during the Study Period whichinconsistencies, if known by Buyer on the Effective Date, would have causedBuyer to materially reduce the aggregate Purchase Price agreed to by Buyerunder this Agreement for the Portfolio in which the Individual Property islocated (each such material inconsistency being referred to herein as a “MaterialDifference”).  Buyer’s TerminationNotice shall set forth a detailed, full and complete description of suchinconsistencies (“Buyer’s Objections”).

### (c)   Not later than five (5) Business Daysfollowing the date of Seller’s timely receipt of Buyer’s written TerminationNotice, Seller shall elect one of the following by written notice to Buyer:

                                                (i) toaccept Buyer’s termination of the Agreement with respect to the applicableIndividual Property that is the subject of Buyer’s Objections or to terminatethis Agreement in its entirety with respect to the Portfolio in which theIndividual Property is located;

                                                (ii) tonotify Buyer that it disputes Buyer’s termination; or

                                                (iii) toelect to reasonably cure the Material Difference constituting Buyer’sObjections either by crediting against the Purchase Price an amount equal tothe diminution in value of the Individual Property resulting from the MaterialDifference to Buyer’s reasonable satisfaction, or curing to Buyer’s reasonablesatisfaction the Buyer’s Objections.

 

 

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### (d)           In the event Seller disputes Buyer’sassertion that there is a Material Difference, or if Buyer disputes whetherSeller has effected a reasonable cure of Buyer’s Objections (either bycrediting the Purchase Price or otherwise) (each, a “Dispute”), thensuch party shall provide written notice to the other party that it iscommencing the resolution mechanism described in this Section 3.9(d), and theoperation of this Section 3.9(d) shall be the sole remedy of such partywith respect to such Dispute. Notwithstanding the foregoing, Buyer’s posting of the Additional Depositshall be a condition precedent to Buyer’s right to commence the disputeresolution mechanism set forth in this Section 3.9(d).

                                                (i)            Within five (5) Business Days afterBuyer has delivered notice of a Dispute to Seller or received notice fromSeller of a Dispute, Buyer shall deliver to Seller a reasonably detailedanalysis (together with supporting documentation) of such Material Differenceor Seller’s failure to reasonably cure (as applicable, the “Disputed Information”),and within five (5) Business Days thereafter Buyer and Seller shall togetherpresent such Disputed Information to Bruce Lane, or, if he is unable orunwilling to serve, Gerard Leval,  (eachof such individuals, an “Arbitrator”). At that time, each party may also submit to the Arbitrator (with copiesto the other party) any additional information that such party desires theArbitrator to consider in rendering an opinion. Within ten (10) Business Days after the presentation to the Arbitrator (forpurposes of this Section 3.9(d), the “Evaluation Period”), theArbitrator either shall request that the parties appear before the Arbitratorto present their positions and, if requested, present additional information,or the Arbitrator shall issue a written statement either (A) that there isor is not a Material Difference in Facts (as applicable), or (B) that Sellerhas or has not reasonably cured any Buyer Objection (as applicable).

                                (ii)           In the event that the Arbitratordetermines that there is a Material Difference in Facts, or that Seller has notreasonably cured a Buyer Objection, the Arbitrator shall determine whether acredit against the Purchase Price, or another cure proposed by Seller, is areasonable and satisfactory cure as contemplated in the second sentence of Section3.9(c)(iii) above, provided that the Arbitrator shall take intoconsideration Buyer’s legal status as a real estate investment trust (“REIT”)and the regulations governing REITs in determining whether a cure is reasonableand satisfactory.  Any such proposedcredit or cure shall be binding on the parties unless the amount of suchcredit, or the amount of such cure exceeds one-half of one percent (0.5%) ofthe Purchase Price allocated to the Individual Property to which such credit orcure relates, in which event Seller may notify Buyer within ten (10) BusinessDays following receipt of the Arbitrator’s determination of its election toterminate this Agreement with respect to the applicable Individual Propertyonly. If the Arbitrator determines that no credit against the Purchase Price orother cure proposed by Seller would constitute a reasonable and satisfactorycure, then the applicable portion of the Deposit shall be returned to Buyer andall rights, obligations and liabilities of the parties hereunder shall bereleased and discharged with respect to the applicable Individual Propertyonly, except that Buyer’s obligation to comply with Buyer’s indemnity andrepair obligations in Section 3.7(a) and the confidentiality requirementsof Section 3.8 and any other obligations of Buyer hereunder thatexpressly survive Closing shall survive termination (collectively, the “Buyer’sSurviving Obligations”).

 

 

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                                (iii)          Fees and expenses of the Arbitratorshall be divided evenly between the parties.

                                (iv)          Determinations made by the Arbitratorpursuant to this Section 3.9(d) shall be binding between the parties.  In the event that either party refuses toabide by the decision of the Arbitrator, or fails to cooperate or timelyrespond to the dispute resolution mechanism set forth in this Section 3.9(d)such refusal shall be a default under Article XIV of the Agreement.  The Arbitrator shall not be liable to eitherparty in connection with or as a result of this resolution mechanismhereunder.  No party shall sue, join,subpoena, or in any manner otherwise involve the Arbitrator in any action orproceeding.  The Closing Date for anyPortfolio with Property that is subject to this Arbitration provision shall beextended to allow for all time periods to run fully.

# **ARTICLE IV.**ASSESSMENTS

## Section 4.1.            Assessments.  If, on the Closing Date, the Properties, orany part thereof, shall be or shall have been affected by an assessment orassessments which are or may be payable in installments, then assessments thatwere due and payable during the period prior to the Closing Date shall be paidby Sellers and all assessments relating to the period on or after the ClosingDate shall be paid by Buyer.  Any suchassessment (less the amount thereof which any Tenant is obligated to paydirectly to the assessing authority and for which Seller is not collectingmonthly installments from such Tenant under the express terms of such Tenant’sLease) shall be prorated as of 11:59 p.m. on the day preceding the Closing Date (the “Proration Time”) andthe net amount thereof shall be added to (if such net amount is in Sellers’favor) or deducted from (if such net amount is in Buyer’s favor) the paymentrequired pursuant to clause (b) of Section 2.1 above.

## Section 4.2.            AssessmentsSurvival Date.  The provisions ofthis Article IV shall survive the Closing until the Survival Date set forth inSection 24.9(a).

# **ARTICLE V.**EXPENSES

## Section5.1.            Expenses.  Each party shall pay its own costs andexpenses in connection with the transactions contemplated hereby, including thefees and expenses of its attorneys, accountants, consultants andengineers.  In addition, Buyer shall pay(a) all of the escrow fees, if any, (b) all expenses of or related to theissuance of owner’s title insurance policies and any endorsements to Buyer’spolicies of title insurance, (c) all expenses of obtaining, if applicable, anylender’s title insurance policy and any endorsements to such policy, (d) allcity and state charges required to be paid to record documents in the officialrecords of the Commonwealth of Virginia (the “Official Records”), (e)the cost of any updates to the Surveys initiated by Buyer, (f) one hundredpercent (100%) of all state and local taxes and recordation fees that may bedue in connection with the sale of the Properties (including with respect toProperties in Virginia 

 

 

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## the grantor’s tax imposed pursuant to Section 58.1-802of the Virginia Code), (g) all due diligence expenses and charges for anyengineering reports or appraisals commissioned by Buyer, and (h) all costsrelating to any mortgage financing arranged by Buyer and any applicableassumption or other similar fees in the event that any mortgage is to beassumed; it being acknowledged and agreed by Buyer that Buyer’s obligationsunder this Agreement are not subject to, or contingent upon, the availabilityand/or consummation of financing.  Allother closing costs that are customarily paid in a commercial real estatepurchase and sale transaction in the Commonwealth of Virginia or in connectionwith Buyer’s financing (but exclusive of costs incurred in connection with thepay-off or release of Sellers’ financing, which shall be paid by Seller) shallbe borne by Buyer.

## Section 5.2.            Survival.  The provisions of this Article V shallsurvive the Closing or termination of this Agreement until the Survival Dateset forth in Section 24.9(a).

# **ARTICLE VI.**APPORTIONMENTS

## Section 6.1.            Apportionments.  The parties shall apportion, as of theProration Time, the following in respect of each Property and the net amountthereof shall be added to (if such net amount is in the applicable Seller’sfavor) or deducted from (if such net amount is in Buyer’s favor) the paymentrequired pursuant to Section 2.1(b):

### (a)   Rents, fees and other sumsand charges (collectively, “Rents”) paid or payable by Tenants,including any advance payment of Rent, shall be adjusted and prorated as of theProration Time but shall be paid on an as and when collected basis.  Any amount collected by Buyer or any Sellerafter the Closing Date, from Tenants who owe Rents for periods prior to theClosing Date, shall be applied (i) first, ** ******* ** ***** *** *** ***** ******* *** ******* **** ****** (the “******* *****”) (********* ********* ** ******* ** ************ *******), (ii) second, ** ******* ** ***** ********* ** ** *** ******* **** ** *** ****** **** ***** ** ******* *** *** ******** ** **** **** *** **** ******* ** ********** ** **** ***** ** *******(********* ** *** ****** ** *************) *** ********* ** * ****** ** ******* * ********** ********** ****, (iii) third, ** ******* ** ***** **** *** ****** ****** ********* *** ******* *****, and (iv) fourth, ** ******* ** ***** ** ******* *** ********* *************** ** ****** **** *****.  If anyTenant specifies that any payment shall be applied to any delinquent rent, thenthe payment will be applied as directed by such Tenant.  Each such amount, less any costs ofcollection (including reasonable attorneys’ fees) reasonably allocable thereto,shall be adjusted and prorated as provided above, and the party who receivessuch amount shall promptly pay over to the other party the portion thereof towhich it is so entitled.  With respect todelinquent amounts that have not been paid to the applicable Seller prior tothe Closing Date, for a period of at least six (6) months following the ClosingDate Buyer shall use commercially reasonable efforts (but shall not be requiredto undertake litigation or dispossessory actions), including, withoutlimitation, sending written notices to Tenants of any arrearages, to collectsuch amounts from Tenants who owe Rents for periods prior to the Closing Date.  Sellers represent that as of the EffectiveDate no percentage rents are 

 

 

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### due pursuant to the Leases.  To the extent any such percentage rentsbecome due and payable prior to the Closing Date, the parties shall apportionsuch percentage rents in a manner reasonably acceptable to the parties.

### (b)   Payments by the Tenants under the Leases forutility costs, operating expenses, insurance costs and other escalation charges(excluding real estate tax payments and deposits) (collectively, “ExpenseContributions”) shall be prorated as of the Proration Time by allocatingeach such payment ratably based on the number of days in the period to whichthe same applies, and shall be paid upon receipt.  Buyer and Sellers hereby acknowledge andagree that Expense Contributions are billed to, and paid by, Tenants on thebasis of estimates of the expenses with respect to which Expense Contributionsare payable.  Seller shall have theresponsibility and authority to handle all 2005 expense reconciliations and allpayments received therefor shall belong to Seller.  On or before the date that is one hundredeighty (180) days after the Closing Date (the “Reconciliation Date”),Sellers and Buyer shall agree to a final reconciliation of utility costs,operating expenses, insurance costs and other escalation charges (estimating inthe parties’ reasonable judgment any amounts that are unknown or uncertain asof such date ) for that portion of 2006 that predates the Closing Date.  In the event such final reconciliationreveals a discrepancy from the Expense Contributions made by Tenants, asbetween Buyer and the applicable Seller, such discrepancy shall be allocatedratably between Purchaser and Seller on a per diem basis for the period towhich it applies.

Ifeither party shall have collected or shall have caused to be collected morethan its share of such Expense Contributions attributable to 2006, as allocatedpursuant to this Section 6.1(b), such party shall pay over to the otherthe amount of such excess as promptly as possible after such sums have beenascertained and paid.  In the event aSeller has collected less than its share of such Expense Contributionsapplicable to the period in 2006 prior to the Closing Date, such Seller shallreceive a credit at Closing for the difference between the amount it actuallycollected and the amount it was entitled to collect, and Buyer shall collectsuch remaining amount from the Tenants. The principles of Section 6.1(a) shall also apply todelinquencies in such Expense Contributions when collected; provided, however,that notwithstanding anything to the contrary contained herein, until theReconciliation Date, Buyer shall be obligated to use commercially reasonableefforts (but Buyer shall not be required to undertake litigation or dispossessany such Tenants), including, without limitation, sending written notices toTenants of any arrearages, to collect all amounts payable by Tenants pursuantto this Section 6.1(b).  ProvidedBuyer does not elect to sue a Tenant for such delinquencies, each Seller shallhave the right to sue Tenants to collect such delinquencies, provided no actionshall be taken to dispossess any such Tenant, and the expenses incurred inconnection with such suit, and amounts collected, shall be apportioned as setforth in Section 6.1(a) above; provided, however, Buyer shall not be requiredto pay any expenses of any Seller in excess of Buyer’s share of rentscollected.  If any Tenant is entitled torefunds of any such rents or charges, such refunds shall be allocated betweenand paid by the applicable Seller and Buyer in accordance with the foregoingprinciples.

 

 

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### (c)   Each of the following, to the extent the sameis not required to be paid directly to the billing entity or vendor by anyTenant under its Lease, shall be adjusted as of the Proration Time, as follows:

#### (1)   All payments and deposits made by Tenants onaccount of real estate taxes including, without limitation, payments relatingto the common areas, shall be adjusted by the parties as of the Proration Timein accordance with the parties’ respective responsibilities for the payment ofsuch taxes as set forth in Section 6.1(c)(2), with the intention thatthe party that is liable for any portion of any tax shall be allocated thepayments made by Tenants on account of such tax payments;

#### (2)   All real property taxes shall be adjusted bythe parties as of the Proration Time on the basis of the fiscal period forwhich assessed.  If the Closing shalloccur before the tax rate is fixed, the apportionment of taxes shall be basedon the tax rate for the preceding period applied to the latest assessedvaluation and, once the tax rate is fixed after the Closing, the parties shalladjust the real property tax apportionment accordingly.  Promptly after the date such tax rate isfixed, the party that shall have paid less than its share of the real propertytaxes shall promptly pay over to the other party the amount of such deficit;

#### (3)   To the extent possible, Sellers shall causeall utility meters which are not payable by Tenants to be read as of theClosing Date, and Sellers shall pay all charges for those utilities payable bySellers with respect to the Properties which have accrued to and including theClosing Date, and Buyer shall pay all such expenses accruing after the ClosingDate.  To the extent that final readingsare not taken on the Closing Date, water, electricity, and sewer charges andrents and vault taxes, fees and charges, if any (other than those required tobe paid directly to the utility companies by any Tenant under its Lease), shallbe adjusted as of the Proration Time on the basis of the fiscal period for whichassessed, but if any of such charges shall be payable on the basis of meterreadings, then such charges shall be apportioned on the basis of meter readingsmade on a date (prior to the Closing Date) which is as close to the ClosingDate as is reasonably practicable.  AfterClosing, upon the determination of the final meter readings as of the ProrationTime, the party that shall have paid less than its share of the metered chargesshall promptly pay over to the other party the amount of such deficit;

#### (4)   Fuel used in heating the Buildings (inclusiveof fuel used for backup generators for which Seller is responsible) shall beadjusted as of the Proration Time on the basis of the written estimate by theapplicable Seller’s fuel supplier of the quantity on or about the day precedingthe Closing Date and Seller’s cost therefor (including sales tax, if any);

#### (5)   Charges, revenue(s) and deposits, if any,under any Service Contracts not terminated prior to Closing;

#### (6)   All customary items ofrevenue or expense not otherwise specifically provided for herein which arecustomarily prorated between a buyer and seller of real property shall beprorated as of the Proration Time in accordance with the custom 

 

 

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#### governing such proration.  All advance payments to occupy space or usefacilities within the Buildings shall be prorated as of the Proration Time byallocating each such payment ratably based on the number of days in the periodto which the same apply; and

#### (7)   Expenses with respect to the parkingfacilities at the Properties, and charges and revenues(s) (i) with respect tomonthly parking fees shall be apportioned in accordance with Section 6.1(a) and(ii) with respect to daily parking fees paid shall be apportioned on an interimbasis based on the assumption that the same shall be equal to the amount of thedaily average of charges and revenues paid for daily fees for the monthimmediately preceding the Closing and shall be re-adjusted as promptly aspossible after the Closing to accurately reflect the daily charges and revenuespaid for each day of the month in which the Closing occurs.

#### (8)   In addition to the Purchase Price, Buyershall pay at Closing to Sellers or their designees an amount equal to the ******************** ***** ** ******* * attached hereto, and any ********** ******************** ******** ******* *** ******* **** not to exceed the ******* *** ***** ********* * ******** ****** (the “*************** *****”).

## Section 6.2.            Goodsand Services.  Except as toimprovements required to be made by the landlord under the Leases pursuant to Section6.3 below and except with respect to items otherwise covered by thisAgreement, with respect to each Property:

### (a)   Each Seller shall pay for all goods deliveredand services rendered at or in connection with its Property prior to theClosing Date and (ii) Buyer shall pay for all goods delivered and servicesrendered at or in connection with the Properties which are in the process ofbeing delivered or rendered on or after the Closing Date and ordered in theordinary course of business; and

### (b)   Unless otherwise provided in Section 6.1above, as promptly as possible after the Closing Date, the parties shall adjustthe cost of all goods delivered to and services rendered at or in connectionwith each Property by allocating to the applicable Seller that portion of thetotal cost of such goods and services which reflect the portion of the goodsand services which is applicable to the period preceding the Closing Date andallocating the balance to Buyer.  Ifeither party shall have paid less than its share of the cost of such goods andservices as so allocated, such party shall promptly pay over to the other theamount of such deficit.

## Section 6.3.            LeasingCosts.

### (a)   As of the Closing Date, allleasing commissions, if any, for the current or initial lease terms for Leasesentered into prior to the Effective Date hereof and for renewals, extensions orexpansions of Leases properly exercised by Tenants as of the Effective Date andthe cost of any improvements and tenant allowances required to be made by thelandlord in the space to which any such Lease relates, shall have been paid bySellers (or credited to Buyer if not due and payable as of Closing), includingthose costs and allowances set forth on ExhibitJ attached hereto(the “Outstanding Lease Obligations”). Those amounts listed on Exhibit J hereto in the column labeled “Seller

 

 

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### Obligation”, together with any other leasing costswhich are the responsibility of Seller pursuant to the first sentence of thisSection 6.3(a), shall be collectively referred to herein as “SellersOutstanding Lease Obligations”.  Allleasing commissions and tenant improvement costs and allowances for anyrenewals or extensions of the terms of Leases entered into prior to theEffective Date but which have not yet been exercised by the Effective Date(including, without limitation, any commissions payable in connection with aTenant’s waiver of or failure to exercise a cancellation right) or anyexpansions of the premises covered thereby but which have not been exercised bythe Effective Date (including those set forth in the column labeled “BuyersObligations” on Exhibit J attached hereto), shall be paid by Buyer,which obligations are being expressly assumed by Buyer pursuant to the terms ofthis Agreement.  Subject to Sections6.3(c) and (d) herein, Buyer shall pay its allocable share of leasing commissionspayable in connection with any Leases (or extensions) entered into after theEffective Date in accordance with the terms of this Agreement, the value of anyfree rent periods, and the cost of any improvements and tenant allowancesrequired to be made by the landlord in (i) the space to which any such Leases(or extensions) entered into after the Effective Date relate or (ii) otherspace in the Buildings pursuant to any requirements set forth in such Leases(or extensions) entered into after the Effective Date.  Seller’s allocable share of such costs, feesand expenses shall be prorated on the Closing Date based on the portion of theterm of such Leases for which rent is being paid before and after the ClosingDate.  At the Closing, Buyer shall receivea credit (the “Sellers Outstanding Lease Obligation Credit”) against thePurchase Price in an amount equal to the difference between (i) SellersOutstanding Lease Obligations, minus (ii) the amounts actually paid on accountof Sellers Outstanding Lease Obligations between the Effective Date and theClosing Date, as documented by Sellers with paid invoices or other reasonablysatisfactory evidence of such payments. Notwithstanding anything set forth in this Agreement to the contrary,following Closing there shall be no readjustment of the Sellers OutstandingLease Obligation Credit; provided, however, that in the event that amounts havebeen paid prior to Closing by or on behalf of Sellers with respect to SellersOutstanding Lease Obligations for which Sellers would not have provided acredit to Buyer at Closing but for a missing receipt or other reasonableevidence of payment required hereunder, then if, subsequent to the Closing,such receipt or other reasonable evidence of payment is provided, Buyer shallpromptly pay to Sellers the amount relating thereto.  Notwithstanding anything set forth in thisAgreement to the contrary, (i) all obligations with respect to SellersOutstanding Lease Obligations shall be expressly assumed by Buyer from andafter the Closing Date, and (ii) except with respect to Sellers OutstandingLease Obligations Credit, Buyer shall not be entitled to any credit hereunderfor any Outstanding Lease Obligations.

### (b)   Attached hereto as ExhibitK is a description of certain Tenant rent increases scheduled to occur incalendar year 2006 (each such increase, the “Rent Step-Up”).  If the Rent Step-Up has not occurred for aTenant listed on Exhibit K on or prior to the Closing Date, Buyer shallreceive a credit against the Purchase Price in an amount equal to thedifference between (x) the amount of rent that would have been due from suchTenant from and after the Closing Date through the date the Rent Step-Up isscheduled to occur (the “Rent Step-Up Date”) had the Rent Step-Upoccurred prior to the 

 

 

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### Closing Date minus (y) the amount of rent actually duefrom such Tenant from and after the Closing Date through the Rent Step-Up Date.

### (c)   Attached hereto as Exhibit L is adescription of the leases that Sellers have identified as likely to be executedand under which the tenants are expected to commence paying rent duringcalendar year 2006 (each such lease, “Out-for-Signature Lease”),provided that Sellers shall not be deemed to have made any representation orwarranty as to the likelihood of execution of the Out-for-Signature Leases bysuch tenants.  In addition, Exhibit Lsets forth the amounts of leasing commissions and tenant improvement costs andallowances with respect to the Out-for-Signature Leases (the “Out-for-SignatureLeasing Costs”) for which Sellers shall be responsible.  At Closing, Buyer shall receive a creditagainst the Purchase Price in an amount equal to (i) with respect to ExhibitL, Section IV, the difference between (x) the amount of rent that wouldhave been due from such tenant from and after the Closing Date through December31, 2006 (assuming such Out-for-Signature Leases were in effect during suchperiod and tenant was paying rent thereunder) minus (y) the amount of rentwhich would be due in calendar year 2006 from such tenant from and after the “ProjectedOFS Lease Start Date” under such Out-for-Signature Lease as set forth on ExhibitL hereto, plus (ii) with respect to Exhibit L Section II, thedifference between (x) the amount of rent that would have been due from suchtenant from and after the Closing Date through December 31, 2006 (assuming suchOut-for-Signature Lease renewal was in effect during such period and tenant waspaying rent thereunder) minus (y) the amount of rent which would have been due fromsuch tenant from and after the Closing Date through December 31, 2006 (assumingthe Out-for-Signature Lease renewal is effective on the “Projected OFS LeaseStart Date” under such Out-for-Signature Lease as set forth on Exhibit Lhereto and tenant was paying rent thereunder), plus (iii) the unfundedOut-for-Signature Leasing Costs (as listed on Exhibit L, Sections I andIII), if any.

### (d)   Attached hereto as Exhibit M is adescription of the vacant or assumed to be vacant leaseable space at theProperty and the amounts of leasing commissions and tenant improvement costsand allowances (the “Vacancy LeasingCosts”) for which Sellersshall be responsible.  On the ClosingDate, Buyer shall be entitled to receive a credit against the Purchase Price inan amount equal to the unfunded Vacancy Leasing Costs, if any.

### (e)   Attached hereto as Exhibit Q is adescription of the additional credits to which Buyer shall be entitled atClosing (the “Buyer’s Additional Credits”) to the extent Seller has notpreviously paid these items prior to Closing.

### (f)    Notwithstanding anything tothe contrary contained herein, in no event shall Buyer be entitled to receivean aggregate credit against the Purchase Price pursuant to Sections 6.3(a),(b), (c), (d) and (e) hereof in excess of ***********, and the amount of creditto which Buyer is entitled pursuant to this Section 6.3 shall be reduced by anyamounts applied by Sellers to the expenses set forth in this Section 6.3.  The calculation of the amount of the forgoingmaximum credit was determined using the formulas set forth in Sections 6.3(b),(c) and (d) above and assumes a Closing Date as of January 1, 2006 (asillustrated on Exhibits K, Exhibit L and Exhibit Mhereby).  At the Closing, the 

 

 

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### calculation of the actual credit due pursuant Sections6.3(b), (c) and (d) hereof shall be made based on such formulas and using theactual Closing Date hereunder.  If theClosing Date shall fall on a date other than the first of any month, the rentfor such month shall be prorated for the purposes of determining the actualcredit.  At Closing, Seller and Purchasershall enter into an amendment to this Agreement that reflects the actualPurchase Price, as adjusted by the credits set forth in Sections 6.3(a), (b),(c), (d) and (e) above (the “Purchase Price Amendment”).

## Section 6.4.            Reapportionment.  Any errors in the calculation ofapportionments shall be corrected or adjusted, and paid, as soon as practicable(but not more often than monthly) after the Closing Date.  If it is impracticable to apportion certainitems hereunder (including, without limitation, water and sewer charges andrents) by the Closing Date, such items shall be apportioned, and paid, as soonas practicable after the Closing Date.

## Section 6.5.            MonthlyStatements.  So long as amountspayable by Tenants for periods prior to the Closing Date remain outstanding, orany other amount that is to be apportioned between Buyer and Sellers pursuantto this Article VI remains subject to apportionment or adjustment, Buyerwill provide Sellers with a monthly report of payments received and amountspaid by Buyer with respect to the applicable Tenants and categories of revenueand expense.  Buyer shall not modify oramend any Lease in a manner that will decrease the amount payable to Sellerspursuant to this Article VI.

## Section 6.6.            SecurityDeposits.  All refundable SecurityDeposits under Leases not theretofore applied on or prior to the Closing Dateby Sellers as landlord in accordance with the terms of an applicable Lease,with interest thereon to the extent any interest is required to be paid to suchTenants shall be delivered by Sellers to Buyer or Sellers may elect to giveBuyer a credit against the Purchase Price in the amount of such SecurityDeposits.  Sellers shall not applySecurity Deposits for any Tenants that are in default of their Leases from andafter the Effective Date until Closing, without the consent of Buyer, whichconsent shall not be unreasonably withheld, conditioned or delayed.  Sellers shall reasonably cooperate, at nocost to Seller, with Buyer’s efforts to cause any Security Deposits in the formof a letter of credit to be assigned to Buyer at Closing, including executingany transfer requests.  Prior to thetransfer of any such letters of credit to Buyer, Sellers shall cooperate withBuyer and take any action required by Buyer related to the letters of credit(including executing any draw requests), provided that Buyer shall indemnifySellers against any damages Sellers might suffer as a result of following Buyer’sinstructions.

## Section6.7.            Capital Expenses.  Except for the capital expenses for theprojects identified on Exhibit N attached hereto, if any, all capitalexpenses incurred by Sellers approved by Buyer in accordance with Article XVhereof with respect to the Properties between the Effective Date and theClosing Date that are to be depreciated under generally accepted accountingprinciples over a useful life which extends beyond the Closing Date shall beapportioned between Buyer and Sellers based upon the portion of the useful lifeof such assets as so determined prior to and from and after the ClosingDate.  To the extent Sellers recover anysuch capital expenditures from Tenants prior to 

 

 

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## the Closing Date, the same shall be apportioned in thesame manner as set forth above.  AtClosing, Sellers shall provide Buyer with all lien waivers received prior toClosing with respect to work paid for prior to Closing for the projectsdescribed on Exhibit N hereto.

## Section 6.8.            Timing.  The parties further agree to meet three (3)Business Days prior to the Closing Date to agree upon the apportionments inaccordance with the terms hereof.

## Section 6.9.            Survival.  The provisions of this Article VIshall survive the Closing until the Survival Date set forth in Section24.9(a) hereof.

# **ARTICLE VII.**CONDITIONS TO CLOSING AND THE CLOSING.

## Section 7.1.            Conditionsto Sellers’ Obligation to Sell.  Theobligations of Sellers to consummate the transaction contemplated hereunder tooccur on the Closing Date are each conditioned on the fulfillment of each ofthe following on and as of the Closing Date as the same may be extendedpursuant to Section 7.3 below, provided that each Seller, in its solediscretion, may waive any such condition as to its particular Property:

### (a)   The delivery to Sellers of the Purchase Priceprorated as provided herein plus the payment by Buyer to the appropriateparties of any closing costs to be paid by Buyer hereunder; and

### (b)   All representations and warranties of Buyercontained in this Agreement shall, in all material respects, be true at and asof the Closing Date as if such representations and warranties were made at andas of the Closing Date and Buyer shall have performed and complied in allmaterial respects with all covenants, agreements and conditions required bythis Agreement to be performed or complied with by Buyer prior to or by theClosing Date (including, but not limited to, the delivery by Buyer of the itemsdescribed in Article XIII below). Buyer shall exercise commercially reasonable, good faith efforts tocause all conditions precedent within Buyer’s control to be satisfied.

### (c)   A simultaneous closing under the CompanyAgreement shall have occurred if all closings occur concurrently under thisAgreement.  If closings are sequentialunder the terms of any provision of this Agreement permitting sequentialclosings, then sequential closings under the Company Agreement shall also haveoccurred as provided in the Company Agreement. Notwithstanding the foregoing, this condition shall not apply if theCompany Agreement fails to close as the result of a Seller default under theCompany Agreement which has not been cured within applicable notice and cureperiods.

### (d)   Closing shall have occurredunder that certain Assignment and Assumption Agreement (the “4807 Agreement”)with respect to the Option Agreement dated December 17, 2004 (the “4807Option”), by and between 4807 Stonecroft Associates Limited Partnership (“4807Assignor”) and 4803 Stonecroft Associates LLC.  Notwithstanding the foregoing, this conditionshall not apply if the 4807 Agreement fails 

 

 

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### to close as the result of a Seller default under the4807 Agreement which has not been cured within applicable notice and cureperiods.

## Section 7.2.            Conditionsto Buyer’s Obligation to Purchase. The obligations of Buyer to consummate the transaction contemplatedhereunder on a Portfolio by Portfolio basis are conditioned on the fulfillmentof each of the following on and as of the Closing Date with respect to suchPortfolio, provided that Buyer, in its sole discretion, may waive suchcondition:

### (a)   All representations and warranties of eachSeller as to each such Seller’s Property contained in this Agreement shall betrue in all material respects at and as of the Closing Date with respect tosuch Property as if such representations and warranties were made at and as ofthe Closing Date (except for (i) changes in facts permitted hereunderincluding, without limitation, as a result of actions taken by any Seller inaccordance with Article XV hereof or occurring from events consented to byBuyer (not to be unreasonably withheld, conditioned or delayed), and (ii)Sellers’ right to update all of the Exhibits to account for changes firstoccurring from and after the Effective Date; provided, however,that the foregoing right to update and amend the Exhibits hereto shall not bedeemed to permit a Seller to default under any express covenant made by suchSeller herein) nor shall it be deemed to affect the other rights of Buyerhereunder, and Sellers shall have performed and complied in all materialrespects with all representations, covenants, agreements and conditionsrequired by this Agreement to be performed or complied with by Sellers prior toor by the Closing Date (including, but not limited to, the delivery by Sellersof the items described in Article XIII).

### (b)   The delivery by Sellers toBuyer of a tenant estoppel certificate from Tenants (other than the GeneralServices Administration (the “GSA”)) who, in the aggregate, comprise atleast ********** ******* (***) of the ***** ******** **** ** *** ********* ** ********** ***** *** ****** ** *** *** (which shall include the Tenants listedon Exhibit FF attached hereto (collectively, the “Required Tenants”))in substantially the same form attached hereto as Exhibit O (unless aTenant’s Lease has a prescribed estoppel form attached to said Lease, in whichevent the prescribed form shall be acceptable for said Tenant) (a “TenantEstoppel”).  If a Tenant Estoppelis delivered by Sellers to Buyer, Buyer may nevertheless disapprove such TenantEstoppel if and only if it does not contain such items as are required to begiven in connection with an estoppel certificate pursuant to the Tenant’sLease, or contains allegations of an uncured material default by a Seller orcontains information that materially deviates from the facts and financialinformation contained in the Offering Memorandum, the Due Diligence Materialsor in this Agreement.  If Sellers areunable to obtain Tenant Estoppels from a sufficient number of Tenants tosatisfy the ********** ******* (***) *********** set forth in this Section7.2(b) on or before the Closing Date (or have not delivered TenantEstoppels from the Required Tenants), then the Closing Date for any applicablePortfolio shall be adjourned for a period not to exceed thirty (30) days forSellers to obtain the sufficient number of Tenant Estoppels (or EstoppelCertificates from the Required Tenants, as the case may be).  In addition, if Sellers are unable to obtainTenant Estoppels from a sufficient number of Tenants to satisfy the ***************** (***) *********** set forth in this Section 7.2(b) on or before theClosing Date (as may be 

 

 

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### extended hereunder), an individual Seller shall havethe right to elect to execute and deliver to Buyer a certificate substantiallyin the form of Exhibit P attached hereto (each such certificate, a “Seller’sEstoppel”) with respect to such additional lease(s) at such individualSeller’s Building and selected by Seller as would satisfy the requirement; provided,however, that an individual Seller shall not have the right to deliver aSeller’s Estoppel in lieu of Tenant Estoppels from Required Tenants.  In the event that an individual Seller electsto deliver such a Seller’s Estoppel, each statement therein made by such Sellershall constitute warranties and representations by such Seller hereunder whichshall survive for a period terminating on the earlier of (i) December 28, 2006,or (ii) the date on which Buyer has received an executed Tenant Estoppel signedby the applicable Tenant under the Lease in question that is not inconsistentwith Seller’s Estoppel.  With respect tothe rentable area of the Buildings leased to the GSA, each individual Sellershall, as applicable, use commercially reasonable efforts to obtain asupplemental lease agreement, novation agreement, statement of lease or similarinstrument delivered by the GSA (a “GSA Estoppel”) for Leases to the GSAin excess of 10,000 rentable square feet (a “Material GSA Lease”);provided, however, the delivery of a GSA Estoppel shall not be a conditionprecedent to Buyer’s obligation to consummate the transaction contemplatedhereunder; provided, further that Sellers shall execute and deliver to Buyer acertificate substantially in the form of Exhibit P attached hereto (eachsuch certificate, a “Seller’s GSA Estoppel”) with respect to allMaterial GSA Leases at such individual Seller’s Building.  In the event that an individual Seller electsto deliver such a Seller’s GSA Estoppel, each statement therein made by suchSeller shall constitute warranties and representations by such Seller hereunderwhich shall survive for a period terminating on the earlier of (i) December 28,2006, or (ii) the date on which Buyer has received an executed GSA Estoppelsigned by the GSA under the Material GSA Lease in question.

### (c)   Promptly after the ***** ******** ****,Sellers shall submit to Buyer, for Buyer’s reasonable approval, copies of theTenant Estoppels or GSA Estoppels, as applicable, Sellers are submitting toTenants or the GSA, as applicable, for execution.  Buyer shall begin providing any comments tosuch Tenant Estoppels and GSA Estoppels within five (5) Business Days ofSellers’ delivery of the same and diligently and continuously review saidestoppels and provide any comments to Sellers as reviews are completed byBuyer.

### (d)   Buyer shall receive estoppel certificatesfrom declarants and/or owner’s associations applicable to each Portfolio in aform reasonably acceptable to Buyer  oron the form required to be delivered pursuant to the applicable declaration,confirming that each Individual Property is in compliance with the restrictivecovenants and no assessments are outstanding. Alternatively, if Seller cannotobtain estoppel certificates, Buyer shall receive either title insurancecoverage or an indemnity from Seller protecting against any such violations andmonetary defaults.

### (e)   In the event this Agreementremains in effect for only a portion of a Portfolio, the termination of thisAgreement as to any Individual Property within such Portfolio, thereby creatingmultiple owners of the Properties, shall not (i) cause such Properties to failto comply in all material respects with applicable zoning, subdivision andparking laws and regulations, (ii) adversely affect ingress, egress and utility

 

 

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### easements necessary for the use and operation of suchProperties, or (iii) violate any lease, mortgage/deed of trust or otheragreement affecting such Properties.

### (f)    A simultaneous closing under the Company Agreementshall have occurred with the first closing hereunder, or, if closings aresequential under the terms of any provision of this Agreement permittingsequential closings, then sequential closings under the Company Agreement shallalso have occurred.  Notwithstanding theforegoing, this condition shall not apply if the Company Agreement fails toclose as the result of a Buyer default under the Company Agreement which hasnot been cured within applicable notice and cure periods.

### (g)   Either closing shall have occurred under the4807 Agreement or Seller shall have terminated the 4807 Option and removed itof record.  Notwithstanding theforegoing, this condition shall not apply if the 4807 Agreement fails to closeas the result of a Buyer default under the 4807 Agreement which has not beencured within applicable notice and cure periods.

## Section 7.3.            Adjournmentof Closing Date.

### (a)   If the conditions set forth in Section 7.1or Section 7.2 above for any Portfolio are not satisfied or waived, ordeemed to have been waived, on or before the Closing Date by the party entitledto waive such condition, any Sellers of a Portfolio as to which such conditionis not satisfied may, from time to time, in their sole discretion, extend theClosing Date for said Portfolio to allow such conditions set forth in Section7.1 and in Section 7.2 to be satisfied. If the conditions set forth in Section 7.2 above for any Portfolio arenot satisfied or waived or deemed to have been waived by Buyer as of theClosing Date, Buyer may, from time to time, in its sole discretion, extend theClosing Date for said Portfolio to allow such condition to be satisfied.  In no event shall the Closing Date beextended pursuant to this Section 7.3 by more than sixty (60) days in theaggregate.

### (b)   If one or more conditions set forth inSection 7.1 is not satisfied by the Closing Date (as the same may be extendedby the foregoing sixty (60) day period) (and after the satisfaction andexpiration of all required notice and cure periods in the event of a defaultexpressly provided in this Agreement), either (x) the Seller of an IndividualProperty to which such condition relates may terminate this Agreement withrespect to such Individual Property (in which event such Seller shall beentitled to retain the portion of the Deposit applicable to such IndividualProperty and/or to pursue any other remedies available to such Seller pursuantto Section 14.1 below), or (y) the Sellers of all of the Properties in thePortfolio in which such Individual Property is located may terminate thisAgreement with respect to the entire Portfolio, and such Sellers shall beentitled to receive the portion of the Deposit applicable to such Portfolioand/or to pursue their remedies set forth in Section 14.1 hereof.

### (c)   If one or more conditionsset forth in Section 7.2 is not satisfied by the Closing Date (as the same maybe extended by the foregoing sixty (60) day period) (and after the satisfactionand expiration of all required notice and cure periods in the event of 

 

 

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### a default expressly provided in this Agreement) withrespect to one or more Individual Properties, Buyer may elect by written noticeto the applicable Sellers, to terminate this Agreement either (x) solely with respectto such Individual Property or Properties as to which such condition relates(in which event Buyer may, as its sole and exclusive remedy, be entitled to areturn of the portion of the Deposit applicable to such Individual Propertyprovided that Buyer is not otherwise in default hereunder), or (y) as to allProperties within the Portfolio in which such Individual Property is located(in which event Buyer may, as its sole and exclusive remedy, be entitled toreceive a return of the portion of the Deposit applicable to all Propertieswithin such Portfolio provided that Buyer is not otherwise in Defaulthereunder).  If Buyer elects to terminatewith respect to an Individual Property only, upon receipt of such writtennotice,  the Sellers of the Propertieswithin the Portfolio of which such Individual Property is a part may terminatethis Agreement with respect to such entire Portfolio (in which event Buyer may,as its sole and exclusive remedy, be entitled to a return of the portion of theDeposit applicable to such Portfolio provided that Buyer is not otherwise indefault hereunder).

### (d)   In no event shall the provisions of thisSection 7.3 be deemed to supersede the rights of Seller pursuant to Section14.1 below or of Buyer pursuant to Section 14.2 below if the failure of anycondition results from a default by Buyer or a Seller hereunder.

## Section 7.4.            NoFinancing Contingency.  It isexpressly acknowledged by Buyer that the Closing of the transactionscontemplated by this Agreement is not subject to any financing contingency andthat no financing for this transaction shall be provided by Sellers.  Without limiting the foregoing, Buyer agreesthat the ability or inability of Buyer to obtain debt, equity investments orother financing in order to pay all or any part of the Purchase Price shall notbe a contingency or condition to any of Buyer’s obligations under thisAgreement.

## Section 7.5.            Closing.The closing of the transaction contemplated herein (the “Closing”) shalloccur at the offices of Pillsbury Winthrop Shaw Pittman LLP, 2300 N Street, NW,Washington, DC, 20037 on a date that is mutually agreeable to the parties butthat is not later than February 28, 2006, except with respect to Liberty CenterIII, for which the Closing Date shall be as set forth on Exhibit BBattached hereto (as the same may be adjourned in accordance with thisAgreement, the “Closing Date”), time being of the essence, subject onlyto adjournment rights expressly permitted in this Agreement.

## Section7.6.            Joint Cooperation.  Buyer and Seller shall, at no cost or expenseor increased liability to either party, reasonably cooperate with each other inobtaining the items listed in Section 7.2 including, without limitation,delivering such additional agreements, instruments and/or information as mayreasonably be required in order to obtain the items listed in Section 7.2.  Buyer and Seller shall use commerciallyreasonable, good faith efforts to cause all conditions precedent within eachparty’s control to be satisfied.

 

 

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# **ARTICLE VIII.**

# SELLERS’REPRESENTATIONS.

## Section 8.1.            Sellers’Representations.  Each Sellerrepresents and warrants to Buyer that, as of the Effective Date, the followingrepresentations and warranties pertaining to such Seller and such Seller’sProperty are true in all material respects. Sellers reserve the absolute right to update all of the Exhibits andSchedules hereto in order to make such representations and warranties true asof the Closing Date; provided, however, that the foregoing rightto update and amend the Exhibits and Schedules hereto shall not be deemed awaiver of any Buyer’s claims of a Seller default (i.e. the foregoing right toupdate and amend the Exhibits and Schedules hereto shall not be deemed topermit Sellers to default under any express covenant made by Sellers).

### (a)   Each Seller represents that it is dulyorganized, validly existing and in good standing under the laws of the state ofits organization and duly qualified to do business in the Commonwealth ofVirginia, and it has full power and authority to execute and deliver thisAgreement, subject to the terms of this Agreement, and as of the Closing Datewill have authority to execute and deliver all other documents now or hereafterto be executed and delivered by it pursuant to this Agreement (the “Seller’sDocuments”) and to perform all obligations arising under this Agreement andits Seller’s Documents.  This Agreementconstitutes, and as of the Closing Date such Seller’s Documents will eachconstitute, the legal, valid and binding obligations of such Seller,enforceable against such Seller in accordance with their respective terms,subject to bankruptcy, reorganization and other similar laws affecting theenforcement of creditors’ rights generally and except as may be limited bygeneral equitable principles.  Within thefive (5) years prior to the Effective Date, no Seller has (i) made a generalassignment for the benefit of creditors, (ii) filed any voluntary petition inbankruptcy or suffered the filing of any involuntary petition by Seller’screditors, as the case may be, (iii) suffered the appointment of a receiver totake possession of all, or substantially all, of Seller’s assets which remainspending, (iv) suffered the attachment or other judicial seizure of all, orsubstantially all of Seller’s assets, which remains pending, (v) admitted inwriting its inability to pay its debts as they come due, or (vi) made an offerof settlement, extension or composition to its creditors generally.

### (b)   This Agreement does not and will notcontravene any provision of the organizational documents of such Seller, anyjudgment, order, decree, writ or injunction, or any provision of any existinglaw or regulation to which such Seller is a party or is bound.  The execution and delivery of this Agreementand the consummation of the transactions contemplated hereby do not and willnot require (except to the extent, if any, set forth herein or in the documentslisted in the Exhibits attached hereto) any consent or waiver by any thirdparty (including, without limitation, the consent of any direct or indirectpartner of such Seller) or such consent or waiver has, as of the EffectiveDate, been obtained by such Seller. Seller has granted no options or rights of first refusal to acquire anyinterest in the Properties.

 

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### (c)   Exhibit B attached hereto is a trueand complete tenant list for such Seller’s Property.  True and complete copies of all Leases havebeen made available to Buyer for inspection in the War Room.  Sellers have delivered to Buyer a currenttenant delinquency report that each Seller uses in its operation and managementof each Property which is the most current delinquency report as of the EffectiveDate.  Each Seller agrees to update thedelinquency report pertaining to such Seller’s Property upon Buyer’s writtenrequest.

### (d)   To eachSeller’s knowledge, ExhibitC attached hereto is a true and complete list of all Service Contractsaffecting such Seller’s Property (subject to amendments, modifications orsupplements permitted pursuant to Article XV).  Attached hereto as Exhibit E is a trueand complete list of all Construction Contracts affecting such Seller’sProperty (subject to amendments, modifications or supplements permitted pursuantto Article XV).

### (e)   To each Seller’s knowledge, except as setforth on Exhibit R attached hereto, there are**nopending actions, suits, arbitrations, claims or proceedings at law or in equityaffecting such Seller or its Property, including, but not limited to actions,suits, arbitrations, claims or proceedings regarding Hazardous Materials (ashereinafter defined), Americans with Disabilities Act of 1990 or any zoning,building, health, traffic, flood control or other applicable rules,regulations, codes, ordinances, or statutes of any local, state or federalauthority or any other governmental authority . To each Seller’s knowledge, Seller has not received written notice ofdefault, that remains uncured, under any easements or other recorded restrictivecovenant affecting the Properties.

### (f)    As of the Closing Date each Seller shallhave paid all leasing commissions payable by such Seller with respect to thecurrent lease term of any Lease, subject to the terms of Section 6.3 above.

### (g)   Attached as Exhibit S is a list of allrefundable Security Deposits (and all accrued interest required to be paidthereon) held by such Seller as of the Effective Date.

### (h)   Except as set forth on Exhibit Ihereto, each Seller represents individually as to the Property owned by suchSeller, as of the Effective Date, to each such Seller’s knowledge as to its ownProperty, such Seller has not received written notice of any assessmentscurrently affecting its Property that are not of public record or would notgenerally be recorded in the public records except with respect to anyassessments, if any, imposed from time to time pursuant to recorded covenants.

### (i)    To each Seller’s knowledge, except as setforth on Exhibit T, there are no tax reduction proceedings pending withrespect to all or any portion of the Properties.

### (j)    To each Seller’s knowledge, there is noproceeding or inquiry by any governmental agency with respect to the release,production, disposal or storage at the Properties of any Hazardous Materials(as hereafter defined).

 

 

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### (k)   Such Seller is not, and will not become, aperson or entity with whom U.S. persons or entities are restricted from doingbusiness under regulations of the Office of Foreign Asset Control (“OFAC”) ofthe Department of the Treasury (including those named on OFAC’s SpeciallyDesignated and Blocked Persons list) or under any statute, executive order(including the September 24, 2001, Executive Order Blocking Property andProhibiting Transactions With Persons Who Commit, Threaten to Commit, orSupport Terrorism), or other governmental action and is not and will not engagein any dealings or transactions or be otherwise associated with such persons orentities.

## Section 8.2.            RepresentationSurvival.  The provisions of this ArticleVIII which are specifically referred to in Section 24.9(a), and therepresentations and warranties set forth in such provisions, shall survive theClosing until the Survival Dates set forth in Section 24.9(a).  Notwithstanding anything herein to thecontrary, no Seller shall have any liability to Buyer for a breach of anyrepresentation or warranty hereunder, if the breach in question is, on or priorto the ***** ******** ****: (a) based on a condition, state of facts or othermatter which was known by Buyer or any Receiving Party Representative, (b) madeavailable to Buyer or any Receiving Party Representative or (c) disclosed inwriting to Buyer or any Receiving Party Representative on or prior to the ************* ****.  The provisions of thisSection 8.2 shall not be deemed to limit Buyer’s rights, if any, under Section14.2 below.

## Section 8.3.           Representation Accuracy. If prior to the Closing Date (i) Buyer or anyReceiving Party Representative has or obtains knowledge that any of Sellers’representations or warranties set forth in this Article VIII are untrue in anyrespect, or (ii) any information in the Leases, Service Contracts, any TenantEstoppel or GSA Estoppel,  theInformation, the Offering Package and Due Diligence Materials or other writteninformation provided or made available to Buyer or any Receiving PartyRepresentative (collectively, the “Specified Documents”) is inconsistentwith any of Sellers’ representations or warranties hereunder, and Buyer neverthelessproceeds with the Closing, then (X) the breach by any Seller of therepresentations and warranties as to which Buyer shall have such knowledge orwhich are inconsistent with the Specified Documents, shall be deemed waived byBuyer, (Y) such representations and warranties shall be deemed modified toconform them to the information that Buyer shall have knowledge of or theinformation in the Specified Documents, as applicable, and (Z) no Seller shallhave any liability to Buyer or its successors or assigns in respectthereof.  Buyer shall promptly notifySellers in writing if Buyer has or obtains knowledge that any of Sellers’representations or warranties set forth in this Article VIII are untruein any respect.

## Section 8.4.            Limitationson Sellers’ Representations.  Sellersdo not represent or warrant that any particular Lease, Out-for-Signature Lease,or Service Contract will be in force or effect as of the Closing Date or thatany Tenant under a Lease or any party to an Equipment Lease or Service Contract(other than any Seller) will not be in default under its, as applicable, Lease,Equipment Lease or Service Contract unless such party’s default arises from abreach by any Seller of its obligations under this Agreement.  If any agreement is not in effect or a partyto any agreement is in material default (except for any Seller), such factshall not, in any way, relieve Buyer of its obligation to purchase the

 

 

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## Properties or entitle Buyer to a reduction in thePurchase Price unless and to the extent expressly provided to the contrary inthis Agreement.  Subject to theprovisions of Article XV, the termination of any Lease, Equipment Leaseor Service Contract shall not affect the obligations of Buyer hereunder unlessand to the extent expressly provided to the contrary in this Agreement.

## Section 8.5.            Buyer’sKnowledge.  To the extent theSpecified Documents contain provisions inconsistent with or different from therepresentations and warranties made in Sections 8.l(a) through 8.1(k) or Buyeror the Receiving Party Representatives has knowledge of such inconsistency ordifference, then such representations and warranties shall be deemed modifiedto conform them to the provisions of the Specified Documents or to suchdifferent or inconsistent facts known to Buyer or the Receiving PartyRepresentatives, as applicable.  Forpurposes of this Agreement, the words “**to Buyer’s knowledge**”, “**known to Buyer**” and similar phrases, means the present,actual knowledge of Nicholas Anthony and Chris Kollme (collectively the “**Buyer Knowledge Parties**”). The Buyer Knowledge Parties are not chargedwith the acts, omissions and/or knowledge of any of the Receiving PartyRepresentatives.  Nothing herein shall beconstrued to imply or mean that any of the Buyer Knowledge Parties have anypersonal liability for a breach of a representation or warranty or otherwise.

## Section 8.6.            Sellers’Knowledge.  For purposes of thisAgreement, the words “to**Sellers’knowledge**” means the present, actual knowledge of (i) KathyKnizner, Vice President of Commercial Properties and Peter Scholz, Senior VicePresident and Chief Transactions Officer with respect to all Properties other than the ongoing constructionmatters at Liberty Center III, and (ii) with respect to the ongoingconstruction matters at Liberty Center III, EdWard Westrick (collectively, the “**Seller Knowledge Parties**”), in all cases without any independentinvestigation or verification or any duty to make any inquiry, review or investigation.  The Seller Knowledge Parties are the partiesof Seller with the most knowledge about the leasing, management, operations anddevelopment of the Properties. The Seller Knowledge Parties are not charged with knowledge of the acts, omissions and/or knowledge of thepredecessors in title to any of the Properties or with knowledge of the acts,omissions and/or knowledge of any of the Seller’s agents, employees or otherrepresentatives.  Nothing herein shall beconstrued to imply or mean that any of the Seller Knowledge Parties have anypersonal liability for a breach of a representation or warranty or otherwise.

## Section 8.7.            Sellers’Representations and Warranties.  Eachof the Buyer and the Sellers acknowledge and agree that, notwithstandinganything to the contrary contained herein, (i) any representation or warrantymade by Seller or Sellers hereunder shall be deemed to have been made by eachSeller individually as such representation or warranty pertains to such Selleror its Property only, and (ii) any liability imposed on any Seller hereunder,whether pursuant to this Agreement or otherwise, shall be several (and notjoint) as to each Seller, and, except as may be expressly provided herein, theliability of each Seller shall be limited to the interest of such Seller in itsProperty.

 

 

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# **ARTICLE IX.**

# BUYER’SREPRESENTATIONS.

## Section 9.1.            Buyer’sRepresentations.  Buyer representsand warrants to Sellers that as of the Effective Date the following representationsand warranties are true in all material respects and shall be true in allmaterial respects on the Closing Date:

### (a)   Buyer is a limited partnership dulyorganized, validly existing and in good standing under the laws of the State ofIndiana.  At the Closing Date, Buyer orits permitted assignees will be authorized to do business in the Commonwealthof Virginia.  Buyer has full power andauthority to execute and deliver this Agreement and all other documents now orhereafter to be executed and delivered by it pursuant to this Agreement (the “Buyer’sDocuments”) and to perform all obligations arising under this Agreement andBuyer’s Documents.  This Agreementconstitutes, and Buyer’s Documents will each constitute, the legal, valid andbinding obligations of Buyer enforceable against Buyer in accordance with theirrespective terms, covenants and conditions, subject to bankruptcy,reorganization and other similar laws affecting the enforcement of creditors,rights generally, and except as may be limited by general equitableprinciples.  Each person or entitycomprising Buyer has duly authorized and approved this Agreement and thetransaction contemplated hereby.

### (b)   This Agreement and Buyer’s Documents do notand will not contravene any provision of the organizational documents of Buyer,any judgment, order, decree, writ, injunction or any other agreement binding onBuyer, or any provision of any existing law or regulation to which Buyer is aparty or is bound.  The execution anddelivery of this Agreement and the consummation of the transactionscontemplated hereby do not and will not require (except to the extent,specifically set forth herein) any consent by any third party (including,without limitation, the consent of any direct or indirect partner of Buyer).

### (c)   To Buyer’s knowledge, no litigation, orgovernmental or agency proceeding or investigation is pending or threatenedagainst Buyer which would materially impair or adversely affect Buyer’s abilityto perform its obligations under this Agreement and consummate the transactionscontemplated herein.

### (d)   Buyer has the financial wherewithal to timelyperform its obligations hereunder.

### (e)   Buyer is not, and will not become, a personor entity with whom U.S. persons or entities are restricted from doing businessunder regulations of the Office of Foreign Asset Control (“OFAC”) of theDepartment of the Treasury (including those named on OFAC’s SpeciallyDesignated and Blocked Persons list) or under any statute, executive order(including the September 24, 2001, Executive Order Blocking Property andProhibiting Transactions With Persons Who Commit, Threaten to Commit, orSupport Terrorism), or other governmental action and is not and will not engagein any dealings or transactions or be otherwise associated with such persons orentities.

 

 

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## Section 9.2.            Survival.  The provisions of this Article IX andthe representations and warranties set forth in such provisions (and all otherrepresentations and warranties of Buyer contained herein), shall survive theClosing until the Survival Date set forth in Section 24.9(a) hereof.

# **ARTICLE X.**

# LIKEKIND EXCHANGE

## Section 10.1.          Like-KindExchange.  Any Seller or the Buyermay consummate the purchase or sale (as applicable) of a Property or anyportion thereof as part of a so-called like kind exchange (an “Exchange”)pursuant to § 1031 of the Internal Revenue Code of 1986, as amended (the “Code”),provided that:  (a) the Closing shall notbe delayed or affected by reason of the Exchange nor shall the consummation oraccomplishment of an Exchange be a condition precedent or condition subsequentto the exchanging party’s obligations under this Agreement, (b) the exchangingparty shall effect its Exchange through an assignment of this Agreement, or itsrights under this Agreement, to a qualified intermediary, (c) neither partyshall be required to take an assignment of the purchase agreement for therelinquished or replacement property or be required to acquire or hold title toany real property for purposes of consummating an Exchange desired by the otherparty, (d) the exchanging party shall pay any additional costs that would nototherwise have been incurred by the non-exchanging party had the exchangingparty not consummated the transaction through an Exchange, and (e) theexchanging party agrees to indemnify and hold harmless the other party from andagainst all actual damages incurred by the other party arising from any taxdeferred exchange relating to such Property conducted by the exchangingparty.  Neither party shall by thisAgreement or acquiescence to an Exchange desired by the other party have itsrights under this Agreement affected or diminished in any manner or beresponsible for compliance with or be deemed to have warranted to theexchanging party that its Exchange in fact complies with § 1031 of the Code,provided that each party shall reasonably cooperate with the other party infurtherance of an Exchange of the exchanging party.

# **ARTICLE XI.**

# TAXREASSESSMENT OR REDUCTION PROCEEDINGS.

Section 11.1.  TaxReassessment or Reduction Proceedings. If any tax reassessment, refund or reduction proceedings in respect ofthe Land and/or the Buildings, relating to any taxes payable in any fiscalyears prior to the fiscal year in which the Closing Date occurs, are pending onthe Closing Date, Sellers reserve and shall have the right to continue toprosecute the same.  If any suchproceedings, relating to taxes payable for the fiscal year in which the ClosingDate occurs, are pending on the Closing Date, Sellers and Buyer shall cooperatein such proceedings and neither Sellers nor Buyer shall settle or abandon thesame without the consent of the other (which consent shall not be unreasonablywithheld, conditioned or delayed); provided, however, that Sellers shallhave the right to retain its current counsel in connection with any pendingcertiorari proceedings with respect to all prior fiscal tax years through andincluding the fiscal year

 

 

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in which the Closing Date occurs.  Any net refunds or savings in the payment oftaxes (after deducting all reasonable expenses, including, but not limited toattorneys’ fees, and taking into account amounts reimbursable to Tenants)resulting from any tax reassessment or reduction proceedings for the tax yearin which the Closing Date occurs shall belong to and be the property of theparty who is responsible for the payment of such taxes under Section6.1(c)(2) and shall so be apportioned, if applicable; provided, however,that if the Closing has occurred and any such refund creates an obligation toreimburse any Tenants for any Rents paid, that portion of such refund equal tothe amount of such required reimbursement (after deduction of allocableexpenses as may be provided in such Tenants’ respective Leases) shall be paidto Buyer and Buyer shall disburse the same to such Tenants.    Except for any reassessment of theProperties caused by the sale of the Properties, or improvements made to theProperties by Buyer, Buyer shall not take any action that might (i) increasethe assessment of the Properties or decrease any settlement for real propertytaxes for the year in which the Closing Date occurs or any prior year or (ii)decrease the amount of any refund or reduction that would otherwise be paid toSellers on account of a refund for the year in which the Closing Date occurs orany prior year.  The provisions of this ArticleXI shall survive the Closing until the Survival Date set forth in Section24.9(a) hereof.

# **ARTICLE XII.**

# CONDITIONOF PROPERTIES; RELEASE OF CLAIMS.

## Section 12.1.          Condition of Properties.  EXCEPT ASEXPRESSLY SET FORTH HEREIN, BUYER IS PURCHASING THE PROPERTIES “AS-IS, WHERE ISAND WITH ALL FAULTS” IN THEIR PRESENT CONDITION, SUBJECT TO REASONABLE USE,WEAR, TEAR AND NATURAL DETERIORATION OF THE PROPERTIES BETWEEN THE EFFECTIVEDATE AND THE CLOSING DATE AND FURTHER AGREES THAT (i) SELLERS SHALL NOT BELIABLE FOR ANY LATENT OR PATENT DEFECTS IN THE PROPERTIES AND (ii) EXCEPT ASEXPRESSLY SET FORTH HEREIN, NEITHER MANAGER, SELLERS, NOR ANY OTHER RELEASEDPARTY HAS MADE OR WILL MAKE OR WILL BE ALLEGED TO HAVE MADE ANY VERBAL ORWRITTEN REPRESENTATIONS, WARRANTIES, PROMISES OR GUARANTIES WHATSOEVER TOBUYER, WHETHER EXPRESS OR IMPLIED, REGARDING THE PROPERTIES OR ANY PARTTHEREOF, OR ANYTHING RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, AND(iii) BUYER, IN EXECUTING, DELIVERING AND PERFORMING THIS AGREEMENT, HAS NOTAND DOES NOT RELY UPON ANY STATEMENT, INFORMATION, OR REPRESENTATION TOWHOMSOEVER MADE OR GIVEN, WHETHER TO BUYER OR OTHERS, AND WHETHER DIRECTLY ORINDIRECTLY, VERBALLY OR IN WRITING, MADE BY ANY PERSON, FIRM OR CORPORATION,EXCEPT AS EXPRESSLY SET FORTH HEREIN.  INADDITION TO THE FOREGOING, AS OF THE EFFECTIVE DATE, BUYER SHALL BE DEEMED TOHAVE REPRESENTED THAT **(I) AS OF THE CLOSINGDATE BUYER SHALL HAVE EXAMINED THE PROPERTIES AND THE PROPERTY CONDITIONREPORTS AND IS FAMILIAR WITH THE PHYSICAL AND ENVIRONMENTAL CONDITION OF THEPROPERTIES AND**

 

 

 

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## **HAS CONDUCTED (OR ELECTED NOT TOCONDUCT) SUCH INVESTIGATION OF THE AFFAIRS AND CONDITION OF THE PROPERTIES ASBUYER HAS CONSIDERED APPROPRIATE, (II) EXCEPT AS EXPRESSLY SET FORTH HEREIN,NEITHER MANAGER, SELLERS, NOR ANY OTHER RELEASED PARTY HAS MADE OR WILL MAKE ORWILL BE ALLEGED TO HAVE MADE ANY VERBAL OR WRITTEN REPRESENTATIONS, WARRANTIES,PROMISES OR GUARANTIES WHATSOEVER TO BUYER, WHETHER EXPRESS OR IMPLIED, AND, INPARTICULAR, THAT NO SUCH REPRESENTATIONS, WARRANTIES, PROMISES OR GUARANTIESHAVE BEEN MADE OR WILL BE MADE OR WILL BE ALLEGED TO HAVE BEEN MADE WITHRESPECT TO THE PHYSICAL CONDITION, ENVIRONMENTAL CONDITION OR OPERATION OF THEPROPERTIES; THE ACTUAL OR PROJECTED REVENUE AND EXPENSES OF THE PROPERTIES, THEZONING AND OTHER LAWS, REGULATIONS, ORDINANCES, RULES,****BUILDING CODES AND ZONINGPROFFERS, ALL GOVERNMENTAL APPROVALS APPLICABLE TO THE PROPERTIES, AND ALLCOVENANTS, CONDITIONS AND RESTRICTIONS OF RECORD****APPLICABLE TO THEPROPERTIES OR THE COMPLIANCE OF THE PROPERTIES THEREWITH, THE QUANTITY, QUALITYOR CONDITION OF THE ARTICLES OF PERSONAL PROPERTY AND FIXTURES INCLUDED IN THETRANSACTIONS CONTEMPLATED HEREBY; THE USE OR OCCUPANCY OF THE PROPERTIES OR ANYPART THEREOF OR ANY OTHER MATTER OR THING AFFECTING OR RELATED TO THEPROPERTIES OR THE TRANSACTIONS CONTEMPLATED HEREBY, EXCEPT AS, AND SOLELY TOTHE EXTENT, HEREIN SPECIFICALLY SET FORTH, (III) EXCEPT AS EXPRESSLY SET FORTHHEREIN NEITHER MANAGER, SELLER, NOR ANY OTHER RELEASED PARTY HAS MADE OR WILLMAKE ANY VERBAL OR WRITTEN REPRESENTATIONS, WARRANTIES, PROMISES OR GUARANTIESWHATSOEVER TO BUYER, WHETHER EXPRESS OR IMPLIED, AND, IN PARTICULAR, THAT NOSUCH REPRESENTATIONS, WARRANTIES, PROMISES OR GUARANTIES HAVE BEEN OR WILL BEMADE WITH RESPECT TO THE TRUTH, ACCURACY OR COMPLETENESS OF ANY MATERIALS, DATAOR OTHER INFORMATION, INCLUDING, WITHOUT LIMITATION, THE CONTENTS OF SELLERS’BOOKS AND RECORDS, CONTRACTS, ENVIRONMENTAL REPORTS, ENGINEERING REPORTS,PROPERTY CONDITION REPORTS, PHYSICAL CONDITION SURVEYS, INFORMATIONAL BROCHUREWITH RESPECT TO THE PROPERTIES, TENANT LISTS OR INCOME AND EXPENSE STATEMENTS,WHICH SELLERS OR THEIR REPRESENTATIVES MAY HAVE DELIVERED, MADE AVAILABLE ORFURNISHED TO BUYER IN CONNECTION WITH THE PROPERTIES AND BUYER REPRESENTS,WARRANTS AND AGREES THAT ANY SUCH MATERIALS, DATA AND OTHER INFORMATIONDELIVERED, MADE AVAILABLE OR FURNISHED TO BUYER AND/OR THE RECEIVING PARTYREPRESENTATIVES ARE DELIVERED, MADE AVAILABLE OR FURNISHED TO BUYER AND/OR THERECEIVING PARTY REPRESENTATIVES AS A CONVENIENCE AND ACCOMMODATION ONLY ANDEXPRESSLY DISCLAIMS ANY INTENT TO RELY ON ANY SUCH**

 

 

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## **MATERIALS, DATA AND OTHERINFORMATION, (IV) EXCEPT AS EXPRESSLY SET FORTH HEREIN, BUYER HAS NOT RELIEDUPON ANY SUCH REPRESENTATIONS, WARRANTIES, PROMISES OR GUARANTIES OR UPON ANYSTATEMENTS MADE IN ANY INFORMATIONAL BROCHURE WITH RESPECT TO THE PROPERTIESAND HAS ENTERED INTO THIS AGREEMENT AFTER HAVING MADE AND RELIED SOLELY ON ITSOWN INDEPENDENT INVESTIGATION, INSPECTION, ANALYSIS, APPRAISAL, EXAMINATION ANDEVALUATION OF THE FACTS AND CIRCUMSTANCES AND (V)****BUYERACKNOWLEDGES THAT THE PROPERTIES MAY NOT BE IN COMPLIANCE WITH THE AMERICANSWITH DISABILITIES ACT OF 1990, AS AMENDED AND SELLERS MAKE NO REPRESENTATIONSWITH RESPECT TO THE SAME.  WITHOUTLIMITING THE FOREGOING, EXCEPT AS, AND SOLELY TO THE EXTENT, SPECIFICALLY SETFORTH IN THIS AGREEMENT, SELLERS HAVE MADE NO REPRESENTATION OR WARRANTYWHATSOEVER REGARDING HAZARDOUS MATERIALS (AS DEFINED BELOW) OR ENVIRONMENTALCONDITION OF ANY KIND OR NATURE ON, ABOUT OR WITHIN THE PROPERTIES OR THEPHYSICAL CONDITION OF THE PROPERTIES OR THE COMPLIANCE OF ANY OF THE PROPERTIESWITH ANY LEGAL REQUIREMENTS AND BUYER AGREES TO ASSUME THE RISK THAT ADVERSEMATTERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION OR MECHANICAL DEFECTS ANDADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS MAY NOT HAVE BEEN REVEALED BYBUYER’S INVESTIGATIONS.  SELLER HAS NOOBLIGATION TO REMEDY OR CAUSE COMPLIANCE WITH ANY VIOLATION OF ANY FEDERAL,STATE, COUNTY, OR MUNICIPAL LAWS, ORDINANCES, ORDERS, REGULATIONS,REQUIREMENTS, OR RECORDED COVENANTS OR RESTRICTIONS AFFECTING ANY PROPERTY.**

## Section 12.2.          Releaseof Claims.  Without limiting anyprovision in this Agreement, Buyer, for itself and any of its assigns pursuantto Article XIX below and their affiliates, hereby irrevocably and absolutelywaives its right to recover from, and forever releases and discharges, andcovenants not to file or otherwise pursue any legal action (whether based oncontract, statutory rights, common law or otherwise) against, Sellers, Sellers’affiliates or their affiliates or any direct or indirect partner, member,trustee, beneficiary, director, shareholder, controlling person, affiliate,officer, attorney, employee, agent, contractor, representative (including,without limitation, Goldman, Sachs & Co. and The Mark Winkler Company) orbroker of any of the foregoing, and any of their respective heirs, successors,personal representatives, devisees, donees and assigns (each a “ReleasedParty” and collectively, “Released Parties”) with respect to any andall suits, actions, proceedings, investigations, demands, claims, liabilities,obligations, fines, penalties, liens, judgments, losses, injuries, damages, settlementexpenses or costs of whatever kind or nature, whether direct or indirect, knownor unknown, contingent or otherwise (including any action or proceeding broughtor threatened or ordered by any governmental authority), including, withoutlimitation, attorneys’ and experts’ fees and expenses, and investigation andremediation costs that may arise on account of or in any way be connected with(a) the Investigations by Buyer Representatives permitted pursuant

 

 

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## to Section 3.7 hereof, and (b) the Propertiesor any portion thereof (collectively, “Claims”), including, withoutlimitation, the physical, environmental and structural condition of theProperties or any law or regulation applicable thereto, or any other matterrelating to the use, presence, discharge or release of Hazardous Materials (ashereinafter defined) on, under, in, above or about the Properties.  In connection with this Section, Buyerexpressly waives the benefits of any provision or principle of federal or statelaw or regulation that may limit the scope or effect of the foregoing waiverand release to the extent applicable. For purposes of this Agreement, the term “Hazardous Materials”means any substance, chemical, compound, product, solid, gas, liquid, waste,byproduct, pollutant, contaminant or other material that is hazardous, toxic,ignitable, corrosive, carcinogenic or otherwise presents a risk of danger tohuman, plant or animal life or the environment or that is defined, determinedor identified as such in any federal, state or local law, rule or regulation(whether now existing or hereafter enacted or promulgated) and any judicial oradministrative order or judgment, in each case relating to the protection ofhuman health, safety and/or the environment, including, but not limited to,airborne toxins or mold, any materials, wastes or substances that are includedwithin the definition of (A) “hazardous waste” in the federal ResourceConservation and Recovery Act; (B) “hazardous substances” in the federalComprehensive Environmental Response, Compensation and Liability Act; (C) “pollutants”in the federal Clean Water Act; (D) “toxic substances” in the federal ToxicSubstances Control Act; and (E) “oil or hazardous materials” in the laws orregulations of any State. Notwithstanding anything herein to the contrary (including the foregoingrelease), (a) Buyer shall have the right to defend government and third-partyclaims by alleging that Seller (or someone acting on Seller’s behalf), notBuyer, is liable for such claims and Buyer has no obligation to indemnifySeller for governmental or third party claims asserted before or after theClosing as a result of any act or omission taken or failed to be taken by or onSeller’s behalf prior to the Closing, (b) the release shall not apply to claimsmade by tenants of the Property (1) who did not deliver an estoppel certificateto Buyer and (2) who allege defaults by Seller, as landlord, related to theperiod of Seller’s ownership of the Property and (c) the release shall notapply to third-party tort claims relating to the Property that occurred duringSeller’s ownership of the Property.

## Section 12.3.          Survival.  The provisions of this Article XIIshall survive termination or the Closing until the Survival Date set forth in Section24.9(a) hereof.

# **ARTICLE XIII.**

# DELIVERIES ATCLOSING.

#  

## Section 13.1.          Deliveriesat Closing.  The following shall bedelivered to the Title Company, Buyer or Sellers, as set forth below, on orbefore the Closing Date:

### (a)   Each Seller shall execute and deliver to theTitle Company a Special Warranty Deed in the form of Exhibit G attachedhereto, an Assignment and Assumption Agreement in the form of Exhibit Dattached hereto, and a Bill of Sale in the form of Exhibit U attachedhereto, and a Post Closing Escrow Holdback Agreement, each pertaining to theProperty owned by such Seller.

 

 

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### (b)   Each Seller and Buyer shall execute anddeliver to the other duplicate originals of notices to all Tenants stating that(i) the Properties have been sold and conveyed to Buyer; and (ii) such othermatters as are required by applicable law or pursuant to the terms of theLeases or which either party may reasonably request (the “TenantNotification Letters”).

### (c)   Each Seller and Buyer shall execute anddeliver to the other and the Title Company such evidence as may be reasonablyrequired by the other of the due authorization, execution and delivery by suchparty of this Agreement and Seller’s Documents or Buyer’s Documents, as thecase may be.

### (d)   Sellers shall deliver to Buyer a list of allTenants who are delinquent, as of the Closing Date, in the payment of Rents,the amount of each such delinquency and the period to which each suchdelinquency relates.

### (e)   To the extent not previously delivered toBuyer or the Receiving Party Representatives, Sellers shall deliver to Buyereach of the following, to the extent in Sellers’ possession:  copies of all tenant files, unexpiredwarranties and guaranties affecting the Properties, the Permits, real estatetax bills for the tax year in which the Closing Date occurs (if thenavailable), then current water, sewer and utility bills for the Properties, theService Contracts (to the extent assumed by Buyer), copies of operatingstatements for the Properties for the one-year period prior to the ClosingDate, originals of the Leases, each to the extent in Sellers’ possession orcontrol or reasonably available to Sellers, excluding, however, suchinstruments and documents as Sellers may reasonably require for their own usefollowing the Closing Date (and as to all such instruments and documents otherthan the Leases, Sellers will deliver true and complete copies thereof toBuyer).  Such instruments and documentsshall be deemed to have been delivered to Buyer if the same are maintained inthe property management office of any Property.

### (f)    Sellers shall terminate or cause to beterminated, effective not later than the last day of the first full calendarmonth following Closing,  (i) allexisting property management and parking management agreements affecting theProperties, (ii) all leasing commission agreements (other than any leasingcommission agreements with respect to Out-for-Signature Leases or containedwithin any Lease or payable by Buyer pursuant to the provisions of thisAgreement), and (iii) those Service Contracts, designated in writing by Buyer(no less than thirty-five (35) days prior to the Closing Date) which may bytheir terms be terminated with thirty (30) days’ prior notice;provided,however, Sellersshall not be required to terminate any such Service Contracts, if, (A) anypayments are required to be made in connection with such termination unlessBuyer shall have agreed to pay the same or (B) any Seller shall incur anyliability with respect to such termination.

### (g)   Each Seller and Buyer shallexecute and deliver to the other duplicate originals, to the extent suchagreements are not terminated prior to Closing, of notices to the contractorsunder the Service Contracts and Tenants under the Leases advising such partiesof the sale of the Properties at the Closing (“Other Notification Letters”).

 

 

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### (h)   Each Seller shall execute, acknowledge anddeliver to the Title Company an affidavit in the form attached hereto as ExhibitV for the benefit of the Title Company together with such other documentsas the Title Company may reasonably require (provided the same do not result inany additional liability to any Seller).

### (i)    Sellers shall deliver to Buyer anupdated tenant list, the Leases, the Service Contracts (to the extent assumedby Buyer).

### (j)    Subject to Section 7.2(b), Sellersshall deliver to Buyer the Tenant Estoppels that Sellers have received from theTenants.

### (k)   Each Seller shall deliver to Buyer a FIRPTAcertification in the form of Exhibit W attached hereto.

### (l)    Buyer shall deliver to the Title Company fordisbursement to Sellers the balance of the Purchase Price pursuant to ArticleII above.

### (m)  Sellers shall deliver to Buyer any SecurityDeposits in Seller’s possession or control that have not been (i) applied todefaults as permitted by this Agreement or (ii) credited to Buyer pursuant to Section6.6 hereof.

### (n)   Each Seller and Buyer shall execute anddeliver to each other a certificate updating the representations and warrantiesmade by each of them in Articles VIII and IX, respectively.  If any of the facts contained in therepresentations and warranties made by Sellers in Article VIII change inany material respect between the Effective Date and the Closing Date, thenpromptly upon learning of such change in facts, Sellers shall disclose such changesin writing to Buyer.  The matterscontained in the certificates delivered hereunder shall survive the Closinguntil the respective Survival Dates set forth in Section 24.9(a) hereofwith respect to the representation to which each such matter relates.

### (o)   Sellers and Buyer shall each execute anddeliver to each other and Title Company a closing statement.

### (p)   Sellers and Buyer shall each execute anddeliver to each other and the Title Company the Purchase Price Amendment.

### (q)   Originals of any letters ofcredit (collectively, “Letters of Credit”) identified on Exhibit Swhich are held by any Seller as security deposits, if such Letters of Credit intheir present form (including amendments thereto) permit Buyer to exercise therights of beneficiary thereunder without amendment of such Letters of Credit; provided,however, that as for those Letters of Credit that require amendment inorder to enable Buyer to exercise  therights of beneficiary thereunder, the same shall be delivered to Buyer atClosing and Sellers and Buyer shall cooperate and expend commerciallyreasonable efforts to obtain such amendments after the Closing, for the benefitof and delivery to Buyer or to draw upon such Letter of Credit, if permittedunder the terms of such Letter of Credit (but in either case Sellers shall notbe obligated to spend any money unless Buyer has agreed to reimburse Sellerstherefor).  If Sellers shall be unable to

 

 

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### amend such Letter of Credit, Sellers shall cooperatewith Buyer to obtain a replacement Letter of Credit with respect thereto infavor of Buyer (but Sellers shall not be obligated to spend any money unlessBuyer has agreed to-reimburse Sellers therefor).  Buyer agrees to indemnify, defend and hold Sellersharmless from and against any and all costs, loss, damages and expenses of anykind or nature whatsoever (including reasonable attorneys’ fees and costs)arising out of or resulting from any Seller’s presenting any such Letter ofCredit for payment in accordance with Buyers request.  The provisions of this Section 13.1(p)shall survive the Closing until the Survival Date set forth in Section24.9(a) hereof.

### (r)    Sellers shall deliver to Buyer thedeclarant/owner’s association estoppels that Sellers have received.

### (s)   Each Seller and Buyer shall execute anddeliver to each other and the Title Company such other instruments anddocuments and shall pay such sums of money which may be required pursuant toany of the other provisions of this Agreement; provided, however,the foregoing shall not expand or modify either party’s obligations containedin this Agreement.  Each instrument anddocument to be delivered prior to the Closing Date, the form of which is notattached to this Agreement as an Exhibit, shall be consistent with theapplicable provisions of this Agreement and shall be in the form or contain theinformation or provisions provided for in this Agreement.

### (t)    In the event Buyer closes on the purchase ofall Properties within the Mark Center Portfolio, the Sellers of Property withinthe Mark Center Portfolio shall assign to Buyer at Closing all of theirinterests as declarant, if any, under any and all recorded declarationspertaining to Mark Center (the “Mark Center Declaration”).  The parties agree that the Mark CenterDeclaration shall be amended, subject to obtaining any necessary lenderconsents (i) to delete provisions thereof that provide the declarant thereunderrights of first refusal or negotiation in connection with acquiring land or buildingsin Mark Center, and (ii)  to remove theMillbrook project from the application of the Declaration.  In the event Buyer closes on the purchase ofall Properties within the TransDulles Centre Portfolio, the Sellers of Propertywithin the TransDulles Centre Portfolio shall assign to Buyer at Closing all oftheir interests as declarant, if any, under any and all Declarations pertainingto TransDulles Centre.  In the eventBuyer closes on the purchase of all Properties within the Westfields Portfolio,the Sellers of Property within the Westfields Portfolio shall assign to Buyerat Closing all of their interests as declarant, if any, under any and allDeclarations pertaining to Liberty Center or the TASC campus.

# **ARTICLE XIV.**DEFAULT; DAMAGES.

## Section14.1.          Buyer Defaults.  In the event that Buyer shall default in anymaterial respect under (a) this Agreement with respect to its obligations to beperformed on or before the Closing Date with respect to one or more of theProperties, or (b) the 4807 Agreement, or that certain purchase agreement forthe sale of certain assets of the 

 

 

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## Mark Winkler Company from affiliates of Sellers toBuyer or its affiliate (the “Company Agreement,” and, together with the4807 Agreement, the “Related Purchase Agreements”), Buyer and Sellersagree that the actual damages that any Seller shall sustain as a result thereofshall be substantial and shall be extremely difficult and impractical todetermine.  Buyer and Sellers thereforeagree that if Buyer fails to perform any or all of the terms, covenants,conditions and agreements to be performed by Buyer hereunder or under theRelated Purchase Agreements, whether at or prior to the Closing,  then, subject to the provisions set forth in Section14.3, Sellers’ sole and exclusive remedy shall be (i) that (x) the Sellerof the Property as to which Buyer has breached its obligation may elect toterminate this Agreement with respect to such Individual Property or (y) theSellers of the Properties within the Portfolio in which such IndividualProperty is located shall be entitled to terminate this Agreement with respectto all Properties within the Portfolio, and to receive from Escrow Holder, asfull, complete and valid liquidated damages (and not as a penalty) the portionof the Deposit relating to such Individual Property or Portfolio as shown onSchedule 2.1(a), or (ii) all of the Sellers may terminate this Agreement withrespect to all of the Properties and receive from Escrow Holder, as full,complete and valid liquidated damages (and not a penalty) the entire Deposit(including the Additional Deposit, if required to be deposited at such time,whether or not the same actually has been posted by Buyer),  together with any interest earned thereonfrom the Escrow Holder, and thereafter neither Buyer nor any Seller shall haveany further liability or obligation to the other parties hereunder, except forsuch indemnities, liabilities and obligations as are expressly stated tosurvive the termination of this Agreement. In the event Buyer defaults in its obligations under this Agreementafter the Additional Deposit is required to be posted (but prior to actuallyposting the Additional Deposit), Buyer shall be obligated to post suchAdditional Deposit immediately upon receiving written notice of its defaultfrom a Seller, and each such Seller shall be entitled to bring an action tocollect such Additional Deposit from Buyer to which such Seller is entitled.

## Section 14.2.          SellerPre-Closing Defaults.

### (a)   In the event that any Sellerhas defaulted in any material respect under this Agreement with respect to itsobligations hereunder (a “Defaulting Seller”), and provided that Buyerwas not in breach in any material respect of this Agreement, then, subject tothe provisions set forth in Section 14.3, Buyer shall be entitled, asits sole and exclusive remedy, and Buyer hereby waives its right to pursue anyother remedy at law or in equity, to either: (i) treat this Agreement as being in full force and effect and pursueonly the remedy of specific performance of the Defaulting Sellers’ obligationsto deliver the documents described in Section 13.1(a) hereof; or (ii)terminate this Agreement either (1) solely with respect to the DefaultingSeller and the Individual Property to which such default relates or (2) withthe entire specific Portfolio in which the Property is located, and receive areturn of a pro rata portion of the Deposit as shown on Schedule 2.1(a),together with any interest earned thereon (and the parties shall jointlyinstruct Escrow Holder to promptly return to Buyer such pro rata portion of theDeposit shown on Schedule 2.1(a), together with any interest earnedthereon).  In the event that either (i)the Seller has defaulted in any material respect under the Company Agreement,and provided that Buyer was not in breach in any material respect of theCompany Agreement, or (ii) if Seller shall have defaulted in any materialrespect under the 4807 Agreement and has not terminated 

 

 

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### the Option and removed the same of record, and Buyeris not in breach in any material respect of the 4807 Agreement, Buyer mayexercise its remedy set forth in Section 14.2(a)(ii)(2) above.  As a condition precedent to Buyer’sexercising any right it may have to bring an action for specific performancehereunder, Buyer must commence such action for specific performance withinthirty (30) days after the date scheduled for the applicable Closing.  Buyer agrees that its failure to timelycommence such an action for specific performance within such thirty (30) dayperiod shall be deemed a waiver by it of its right to commence an action forspecific performance as well as a waiver by it of any right it may have to fileor record a notice of *lis pendens*or notice of pendency of action or similar notice against any portion of theProperty.  In no case shall Buyer seekpunitive damages or consequential damages. It is understood that a default withrespect to one Seller or its Individual Property shall not extend the ClosingDate for any unrelated Portfolio or excuse Buyer’s performance hereunder withrespect to the Sellers and Properties of any unrelated Portfolios.

### (b)   If prior to the Closing Date Buyer has orobtains knowledge that a Seller has defaulted on its obligations hereunder inany respect, and Buyer nevertheless proceeds with the Closing, then the defaultby such Seller as to which Buyer shall have such knowledge shall be deemedwaived by Buyer and Sellers shall have no liability to Buyer or its successorsand assigns in respect thereof.  Buyershall promptly notify Sellers in writing if Buyer has or obtains knowledge thata Seller has defaulted on its obligations hereunder in any respect.

## Section14.3.          Right to Cure.  (a) Notwithstanding anything contained hereinto the contrary and without limiting the rights of either party set forth inthis Agreement, in the event that Buyer or a Defaulting Seller (a “DefaultingParty”) has defaulted hereunder with respect to one or more IndividualProperties, before the non-defaulting party can exercise any of its remedieshereunder, such non-defaulting party shall provide written notice of default tothe Defaulting Party and the Defaulting Party shall exercise its commercially reasonableefforts  to cure such default promptly,for a period of up to forty-five (45) days. The Closing Date with respect to such Individual Property or, at thenon-defaulting party’s election, for the entire Portfolio in which suchIndividual Property is located, shall be extended for the period of timereasonably necessary to effect such cure, but not in excess of 45 days,provided that in no event shall the Closing Date be extended pursuant toSection 7.3 and this Section 14.3 for more than seventy (70) days in theaggregate (the “Extension Period”). Notwithstanding the foregoing, in no event shall Buyer be entitled to acure period for Buyer’s failure to deliver any portion of the Purchase Price atClosing.  In the event the DefaultingSeller, as without having any obligation to do so, fails to cure such defaultwithin the Extension Period, and such default does not cause direct actualdamages to Buyer in excess of the ******* ****** applicable to each IndividualProperty (as defined in this Section 14.3), then such default or conditionprecedent will be deemed to have been waived by Buyer, without abatement to orreduction of the Purchase Price subject to reduction of the Purchase Price inthe amount of such actual damages not in excess of the ******* ******.  Seller’s obligations pursuant to thefollowing Sections and Articles shall not be subject to the ******* ******threshold for the purposes of this Section 14.3(a):  (i) the Mandatory Cure Items 

 

 

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## set forth in Section 3.3, or (ii) Article IV, ArticleV, Article VI, Article XI, Section 14.7, Article XVI, Article XVIII or Section24.10 of this Agreement.

## (b)           Inthe event that a Defaulting Seller has defaulted hereunder, and such default orfailure of a condition precedent causes direct actual damages in a liquidatedamount to Buyer in excess of the ******* ****** for the Individual Propertyowned by such Seller, then, in such event, such Defaulting Seller shall beentitled, but shall not have any obligation, either:  (a) to cure such default; or (b) provideBuyer with a credit against the Purchase Price applicable to such DefaultingSeller’s Individual Property in an amount equal to Buyer’s actual directdamages and such default shall be deemed cured in its entirety and Buyer shall remain obligated to purchase suchIndividual Property (and all of the other Properties) without any furtherreduction in the Purchase Price.

## Section 14.4.          DefaultsDiscovered Post Closing.  If Buyercloses the transactions contemplated by this Agreement and, after the ClosingDate but before the applicable Survival Date, Buyer discovers a breach of anySeller’s representations,warranties, covenants or indemnities hereunder or under any certificates andother documents executed at, or in connection with, the Closing, Buyer shallhave the right, until the applicable Survival Date, to sue such Seller foractual direct damages incurred by Buyer as a result of such breach orbreaches.  However, in the event of aclaim for a breach of representation or warranty, no individual Seller shallhave any liability to Buyer for all or any of such matters in excess of ********** (**) of the ******* ***** allocated to such ******** ******** (the “****************** ***”) and no claim for breach of a representation or warranty may bemade unless the claims, individually or in the aggregate, shall be in excess of**** ** *** **** ******* ****** *** *** **** ******** (the “******* ******”)after taking into account all prior claims and then only to the extent suchclaims are in excess of the ******* ******, and then only to the extent of theexcess over the ******* ******.  Buyershall not enter any judgment or collect an amount in excess of the ****************** *** for a breach of a representation or warranty.  Notwithstanding anything contained herein tothe contrary, if Buyer had knowledge of a default by a Seller on the ClosingDate and Buyer elects to close the transaction contemplated herein, Buyer shallbe deemed to have irrevocably waived such default and Sellers shall not haveany liability with respect to such default. Further, notwithstanding anything to the contrary contained herein, the************ ****** *** and the Minimum Amount shall not apply to a breach ofany Seller covenants to apportion or pay funds after Closing pursuant toArticles VI, XI and XVI herein or Seller indemnities for investment bankerbroker claims pursuant to Article XVIII below or pay for attorneys’ feespursuant to Section 24.10 below.

## Section 14.5.          Limitationon Seller’s Default.  Notwithstandinganything to the contrary, a Seller’s inability to satisfy a condition of thisAgreement shall not be considered a default by such Seller hereunder unlesssuch inability results from the breach of such Seller’s express obligationshereunder.

## Section14.6.          Termination of theRelated Purchase Agreements.  In theevent either Buyer or an affiliate of Seller terminates any Related PurchaseAgreement pursuant to the terms thereof other than by reason of a default bySellers or Sellers’ affiliates 

 

 

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## thereunder, Sellers shall have the right either toterminate this Agreement with respect to one or more Portfolios, or toterminate this Agreement in its entirety, and neither party shall have anyfurther obligation to the other, except (i) as provided in Section 14.1 hereof,(ii) and those obligations that expressly survive termination.

## Section 14.7.          Sellers’Post Closing Obligations.  At ClosingBuyer and each Seller shall enter into an escrow holdback agreement (each a “PostClosing Escrow Holdback Agreement”) pursuant to which each Seller shalldeposit an amount equal to *** ******* (****) ** *** ******** ***** allocableto such Seller’s Property with Escrow Holder, to be held in a separateinterest-bearing account until ******** **, ****.  No account of any Seller shall be availableto satisfy claims against any other Seller hereunder.    The funds of each Seller shall be releasedto such Seller on ******** **, ****, unless Buyer has delivered written noticeto such Seller and Escrow Holder of a specific claim against such Seller underthis Agreement specified in reasonable detail, in which case Escrow Holdershall retain *** ******* ****** **** ******* (****)  of the reasonably estimated cost to satisfysuch claim until the resolution of such claim.

## Section 14.8.          Survival.  The provisions of this Article XIVshall survive the Closing and the termination of this Agreement until theSurvival Date set forth in Section 24.9(a) hereof.

# **ARTICLE XV.**OPERATION OF PROPERTIES UNTIL CLOSING.

## Section 15.1.          Operationof the Properties.  Between theEffective Date and the Closing Date:

### (a)   Subject to Sections 15.1(b), (c), (d), (e),(f), (g), (h) and (i), Sellers shall continue to operate and maintain theProperties and to purchase supplies for the Properties in the ordinary courseof business in accordance with present business practices.  In no event shall Sellers be obligated toBuyer, however, to expend any sums to correct any violations, or make anycapital improvements or repairs to capital improvements, or to otherwise causethe Properties to be in compliance with any law, regulation or ordinance.

### (b)   Except as otherwiseexpressly provided in this Agreement, Sellers may not, without the priorwritten consent of Buyer in each instance (which consent shall not beunreasonably withheld, conditioned or delayed), (i) cancel or terminate anyLease (other than for a default thereunder by a party other than any Seller),(ii) renew or extend any Lease (other than in accordance with the leasingguidelines for each Property annexed as Exhibit Y, or pursuant to theterms of options or extensions set forth in any existing Lease) or (iii) enterinto any new lease other than in accordance with the leasing guidelines foreach Property annexed as Exhibit Y. Each such Seller shall have the right to sue Tenants and to collect suchdelinquencies, but no action shall be taken to dispossess any such Tenantfollowing Closing.  Seller shall beentitled to any monetary awards resulting such suits (less reasonableallocation of costs and expenses for attorneys’ fees) 

 

 

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### for Rents pertaining to the three month period priorto the Closing Date, and for operating expense delinquencies applicable to anyperiod of time prior to the Closing Date. Each Seller shall give Buyer written notice prior to taking any of theactions referred to in this Section 15.1(b), which notice shall include thematerial terms of the proposed action.

(c)   Except as otherwise expressly provided in thisAgreement, Sellers may not, without the prior written consent of Buyer in eachinstance (which consent shall not be unreasonably withheld, conditioned ordelayed), cancel, terminate, renew, extend or modify in any material respectany of the Service Contracts, or enter into any new service contract orequipment lease for all or any portion of the Properties unless, in the case ofany such cancellation or termination, a new service contract or equipment leaseon substantially similar or more favorable terms is entered into and the sameis terminable upon thirty (30) days’ notice or, in the case of any extension orrenewal of a Service Contract or entering into of any new service contract orequipment lease, the same may be terminated on not more than thirty (30) daysnotice.  Each Seller shall give Buyerwritten notice prior to taking any of the actions referred to in this Section15.1 (c), which notice shall include the material terms of the proposed actionas well as a request for Buyer’s consent thereto if such consent is required bythe terms of the foregoing provisions of this Subsection (c).  If Buyer does not respond to such noticewithin five (5) Business Days after receipt thereof, time being of the essencewith respect thereto, Buyer shall be deemed to have consented to such actions,as set forth in Section 15.4 below.

### (d)   Sellers shall not make any expenditures withrespect to the Properties which are not in the ordinary course of business inaccordance with present business practices without Buyer’s consent (whichconsent shall not be unreasonably withheld, conditioned or delayed), except inthe case of emergencies to protect any property or person from damage orinjury, Sellers Outstanding Lease Obligations, the Out-for Signature LeasingCosts, the Vacancy Leasing Costs (for which Buyer shall receive a credit atClosing), the capital expense projects identified on Exhibit N heretoand further provided that Buyer’s consent shall not be required for, andSellers shall be permitted to pay, any actual increase in property taxes,insurance premiums, or increased costs caused by any increase in any utilityrates.  Each Seller shall complete allwork described on Exhibit N hereto pertaining to such Seller’s Property,and if the same is not completed prior to Closing, such Seller shall provide acredit to Buyer at Closing for the cost of completing such work.

### (e)   Sellers will keep in full force and effectwith respect to the Properties policies of insurance providing coverage atleast as extensive as that described in Exhibit Z.

### (f)    Unless to be discharged infull on or prior to the Closing Date with releases or discharges deliveredcontemporaneously with, or prior to, the Closing Date, Sellers shall notfurther encumber the Properties with any mortgage, deed of trust or similarsecurity agreement.  Furthermore, unlessto be discharged in full on or prior to the Closing Date, Sellers shall not,without Buyer’s prior written approval not to be unreasonably withheld,conditioned or delayed (i) execute any easement agreements except thoserequired in connection with ongoing development at a Property, and, (ii) 

 

 

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unless otherwisepermitted pursuant to the terms of this Agreement, execute any other documentsor agreements affecting title to the Properties.

### (g)   Notwithstanding any limitation set forthherein, Sellers may, without Buyer’s consent and without cost to Buyer (unlessotherwise set forth herein or unless otherwise approved by Buyer) (i) take suchactions, if any, with respect to the Properties, reasonably necessary to complywith the terms of the Leases and any insurance requirements or to comply withlaws, rules or regulations of any governmental authority, (ii) take suchactions as they deem reasonably necessary to repair any insured or uninsuredcasualty or damage, and (iii) take such actions with respect to the Propertiesreasonably necessary to prevent loss of life, personal injury or propertydamage.

### (h)   Each of Buyer and the Seller of Parcel 29G(the “29G Seller”) acknowledges and agrees that 29G Seller will enterinto separate contracts (collectively, the “29G Construction Contracts”)with the following entities for the construction of improvements on Parcel 29G:(i) Trinity Group Construction, Inc. (the general contractor), (ii) MetroplexRetaining Walls of Virginia, (iii) Anderson Site Contracting, Inc., and (iv)contracts with other entities reasonably required by 29G Seller for the constructionof the improvements on Parcel 29G, each of which shall be subject to Buyer’sreasonable consent.  The final form ofthe 29G Construction Contracts will be mutually agreeable to Buyer and 29GSeller.  29G Seller shall perform all ofthe obligations of the property owner under each of the 29G ConstructionContracts from the Effective Date until the Closing Date, and, at Closing 29GSeller shall assign, and Buyer shall assume, all of 29G Seller’s obligationsunder the 29G Construction Contracts (which shall include, without limitation,all outstanding amounts owed and other liabilities thereunder).  29G Seller covenants to not modify any 29GConstruction Contract without the prior consent of Buyer, which consent shallnot be unreasonably withheld, conditioned or delayed.  At Closing, (I) 29G Seller shall receivereimbursement for (A) the costs incurred as of the Effective Date by 29G Sellerin connection with the development of the improvements on Parcel 29G (whichcosts are set forth on Exhibit DD attached hereto (the “29GConstruction Costs”)), and (B) any additional costs incurred by 29G Sellerin connection with the construction of the 29G Building between the EffectiveDate and the Closing Date, including those costs incurred under the 29GConstruction Contracts, are otherwise consistent with the 29G budget posted inthe War Room as of the Effective Date, or are reasonably approved by Buyer(collectively, the “29G Construction Costs”), and (II) The WinklerFamily Trust (the “Trust”) and Buyer shall enter into a master lease paymentagreement for the building being constructed on Parcel 29G in the form of ExhibitEE attached hereto.

### (i)    Each of Buyer and theSeller of Parcel 20 located in TransDulles Centre (the “Parcel 20 Seller”)acknowledge and agree that Parcel 20 Seller has entered into a letter of intentwith, and is currently negotiating a build-to-suit lease with UniversalTechnical Institute or its affiliate (collectively “UTI”) forapproximately 150,000 rentable square feet of space (the “Parcel 20 MinimumSpace”) within a building to be constructed on a portion of the Parcel 20Land (the “Parcel 20 Building”). In the event UTI and Parcel 20 Seller terminate negotiations, Parcel 20Seller shall market the Parcel 20 Building and seek to enter into one or moreleases for no less than the Parcel 20 Minimum 

 

 

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### Space with tenants having a comparable financialcapacity of other tenants of similar space within TransDulles Centre that arereasonably acceptable to Buyer and identified by Parcel 20 Seller prior to theClosing Date (“Parcel 20 Comparable Tenants”).   Parcel 20 Seller agrees to consult withBuyer during the negotiation of such the UTI lease or other leases (includingwithout limitation, consulting with Buyer about the costs anticipated to beincurred in negotiating such leases), and agrees that Buyer shall have theright to approve any such leases, which approval shall not be unreasonablywithheld, conditioned or delayed.  Buyeragrees to reimburse Parcel 20 Seller at Closing for all costs incurred byParcel 20 Seller in connection with such leases, including, without limitation,hard costs, soft costs, all tenant inducement costs and the cost of any leasingcommissions, and from and after the Closing Date shall continue to fund costsreasonably necessary to procure such UTI lease or other leases, which costsshall be subject to Buyer’s reasonable approval.  If Parcel 20 Seller procures a lease with UTIor one or more Parcel 20 Comparable Tenants, signed by the tenant(s), for noless than the Parcel 20 Minimum Space on or before the date that is two hundredseventy (270) days after the Closing Date, Buyer shall pay to Parcel 20 Sellera Purchase Price increase in the sum of ********** within two (2) Business Daysafter submission of a lease or leases signed by the tenants thereunder;provided, however, if any lease(s) contain Tenant Contingencies (as definedbelow), such ********** payment shall be delayed until the Tenant Contingenciesare satisfied or waived, provided such Tenant Contingencies are not required tobe satisfied prior to the expiration of such 270 day period.  As used herein, the term “TenantContingencies” shall mean any contingencies that would permit a tenant toterminate its lease prior to the commencement of the lease term, such as duediligence inspection, board approval, obtaining any special exception forzoning or other governmental approval, obtaining any tax incentives, butexpressly excluding any contingencies in Buyer’s control (such as Buyer’sconstruction financing, or Buyer’s obligation to complete the Building).

## Section 15.2.          Booksand Records.  Upon Buyer’s request,for a period of eighteen (18) months after the Closing Date, Sellers shall makeall of Sellers’ records with respect to the Properties which are in thepossession of Sellers and/or Manager available to Buyer for inspection by Buyer’sdesignated accountants.

## Section 15.3.          Changein Condition of Property Prior to Closing . If and when Sellers obtain knowledge of the same, Sellers shall promptlynotify Buyer of any material change in any condition with respect to thephysical condition of the Properties or of any event or circumstance whichmakes any representation or warranty by Sellers under this Agreement materiallyuntrue or misleading, or any covenant of Sellers under this Agreement incapableor materially less likely to be capable of being performed.

## Section15.4.          Deemed Consent.  Except as otherwise set forth herein, ifBuyer’s consent is required under this Article XV, time being of theessence, and Buyer does not object in writing (stating its specific objections)within five (5) Business Days after Buyer’s receipt of written request for suchconsent, then Buyer will be deemed to have given such consent and will confirmsuch, consent in writing upon demand.

 

 

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## Section 15.5.          NoTermination.  Notwithstandinganything to the contrary contained herein, Buyer shall not be entitled toterminate this Agreement and Sellers shall not be liable to Buyer, and Buyershall not receive a reduction in, or a credit against, the Purchase Price, inthe event any Tenant vacates its premises, defaults under its Lease in anyrespect, or if any Tenant terminates its Lease in accordance with rightsgranted Tenant under the terms of its Lease, prior to the Closing Date, unlessas the result of a default by any Seller beyond applicable notice and cureperiods set forth in the Lease.

## Section 15.6.          ContinuedOperation by Sellers.  Sellers, attheir cost, subject to Section 15.1, will, so long as the other partythereto is not in default thereunder, continue to perform and observe in allmaterial respects all of the covenants and conditions required to be performedby Sellers in the same manner as presently performed and observed by Sellersunder (a) the Leases, (b) Service Contracts, (c) the Permitted Encumbrances,(d) any note, indenture, mortgage or deed of trust affecting the Properties,and (e) any Permits; provided, however, that the foregoingagreement shall not limit Sellers’ rights to terminate any of the foregoingagreements to the extent otherwise permitted hereunder.

# **ARTICLE XVI.**

# ** **

# CASUALTY AND CONDEMNATION

## Section 16.1.          Condemnation.  If, prior to the Closing Date, all or anyportion of one or more Individual Properties other than a Material Taking of aportion of an Individual Property is taken by eminent domain (or is the subjectof a pending taking which has not yet been consummated), the Seller of suchIndividual Property shall notify Buyer of such fact promptly after obtainingknowledge thereof.  In such event, thereshall be no abatement of the Purchase Price and the Seller of such IndividualProperty shall assign to Buyer (without recourse) on the Closing Date therights of such Seller to any portion of the award that has not been used bysuch Seller to restore or rebuild the applicable Individual Property, if any,for the taking, and Buyer shall be entitled to receive and keep all awards forthe taking of the applicable Individual Property or such portion thereof.  Furthermore, Buyer shall have the right toapprove any settlement with the applicable governmental authority, suchapproval not to be unreasonably withheld, conditioned or delayed. In the eventthere is a Material Taking of a portion of an Individual Property, Buyer shallhave the right to terminate this Agreement as to the Individual Property or thePortfolio in which such Individual Property is located by delivering writtennotice to the applicable Sellers within ten (10) Business Days after receivingwritten notice of such Material Taking (which notice shall include alldocumentation related thereto in such Seller’s possession), in which eventBuyer shall be entitled to a return of the portion of the Deposit allocable tosuch Individual Property or Portfolio, as applicable, provided that Buyer isnot then in default hereunder after all applicable notice and cure periods, anda corresponding reduction in Purchase Price shall be made at Closing. As usedherein, the term “Material Taking” shall mean a taking that (1) permits tenantsthat occupy more than fifteen percent (15%) in the aggregate of the rentablesquare feet of space within a Building to terminate their Leases, and suchtenants do not waive such termination right in writing, or (2) requires morethan ********** to 

 

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## repair, (3) materiallyand adversely affects a Building in a manner that cannot be repaired, (4)permanently takes a material portion of the parking spaces available to aBuilding, which would cost in excess of ********** to replace, (5) permanentlymaterially and adversely impacts vehicular access to a Building, (6) as toundeveloped land, materially and adversely affects Buyer’s intended developmentof the land, or (7) that is not a condemnation of a leasehold interest.

## Section 16.2.          Casualty.

### (a)   If, prior to the Closing Date, a materialpart (as defined below) of any Individual Property is destroyed or damaged byfire or other casualty, the Seller of such Individual Property shall promptlynotify Buyer of such fact (“Material Damage Notice”).    Thereafter, such Seller shall engage theArchitect (as defined below) to certify to such Seller and Buyer, withreasonably adequate supporting documentation, whether the Available RestorationFunds (as defined below) are sufficient to restore such Individual Property tosubstantially its same condition and to provide sufficient revenue to replacerental revenue lost as a result of such casualty.   After the Architect makes its determination,Seller shall so notify Buyer in writing (the “Second Notice”), which shallcontain Architect’s determination, and all supporting documentation.  If the Architect determines that theAvailable Restoration Funds are not sufficient to restore such IndividualProperty to substantially its same condition and to provide sufficient revenueto replace rental revenue lost as a result of such casualty, Buyer shall havethe right to terminate this Agreement with respect to such Individual Propertyor the Portfolio in which such Individual Property is located, in which eventBuyer shall be entitled to a return of the portion of the Deposit allocable tosuch Individual Property or Portfolio, as applicable, provided that Buyer isnot then in default hereunder after all applicable notice and cure periods, anda corresponding reduction in the Purchase Price shall be made at Closing.  Such right of termination must be exercisedby Buyer, if at all, within ten (10) Business Days after receipt of such SecondNotice.  However, if (i) the Architectdetermines that the Available Restoration Funds are sufficient to restore suchIndividual Property to substantially its same condition and to providesufficient revenue to replace rental revenue lost as a result of such casualty,or (ii) the damage or destruction constitutes less than a material part of anIndividual Property, then (A) Buyer shall not have the right to terminate thisAgreement, (B) the Purchase Price shall not be abated, (C) the Seller of suchIndividual Property shall assign to Buyer (without any recourse) on the ClosingDate the rights of such Seller to the insurance proceeds (except to the extentalready applied by Seller in effecting the repair and restoration, or to coverrent loss prior to closing), and (D) to the extent not already applied bySeller to effect the repair and restoration, Buyer shall be entitled to receivefrom such Seller the sum of the deductible, if any, and the Seller’sContribution Amount.  As used herein, “AvailableRestoration Funds” means the sum of (x) the insurance proceeds (includingrent loss insurance), (y) the amount of the deductible, if any, and (z) anyadditional amount Seller may elect to contribute to such restoration (the “Seller’sContribution Amount”).  For thepurposes hereof, a “material part” of an Individual Property shall meandamage to any portion of an Individual Property that  (1) permits tenant(s) who occupy in theaggregate more than fifteen percent (15%) of the rentable square feet of spacewithin a Building to terminate their Leases, and such tenants do not waive suchtermination rights in writing, (2) destroys 

 

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### a material portion of the parking spaces available toa Building which cannot be replaced, or (3) Seller’s insurance company refusesto confirm in writing to Buyer that the damage shall be covered in full,subject only to the deductible.   As usedherein, the “Architect” means an architect or other professional mutually andreasonably agreed upon by Buyer and Sellers.

##                 In furtherance hereof, in theevent less than a material part of any Individual Property is damaged after theEffective Date, Sellers shall, in accordance with sound management practice,endeavor to repair such damage prior to the Closing Date, provided that if suchrepair is not completed by the Closing Date, the Closing shall not be postponedand the balance of the insurance proceeds shall be assigned to Buyer and Buyershall receive a credit against the Purchase Price of the sum of the deductible,to the extent not already applied by Seller to effect the repair andrestoration.  Notwithstanding anythingherein to the contrary, in the event the Architect determines that any damageto a material part of an Individual Property cannot be repaired within nine (9)months, Buyer shall have the right to terminate this Agreement with respect tosuch Individual Property or Portfolio within ten (10) days after receivingnotice of such determination, in which event Buyer shall receive a refund ofthe portion of the Deposit allocable to such Individual Property or Portfolio.

### (b)   Sellers shall not enter into any settlementwith the insurance carrier for any damage that constitutes a material part ofan Individual Property without the consent of Buyer, which shall not beunreasonably withheld, conditioned or delayed. If permitted by Sellers’ insurance carrier without any additional costor expense, Sellers shall request that Buyer be named as an additional insured,as its interest may appear, under Sellers’ insurance policies described in ExhibitZ and, if so permitted, Sellers shall provide evidence thereof to Buyer.

## Section 16.3.          Termination.  If this Agreement is terminated pursuant tothis Article XVI, the portion of the Deposit allocable to the IndividualProperty that has been terminated shall be returned to Buyer, at which timethis Agreement shall be null and void with respect to such Seller and suchIndividual Property, and neither party shall have any rights or obligationsunder this Agreement with respect to such Seller and such IndividualProperties, except that the rights and obligations that, by their terms,expressly survive Closing, shall survive termination.

# **ARTICLE XVII.**

# ** **

# NOTICES.

## Section 17.1.          Notices.  Any notice, communication, request, reply oradvice (collectively, “Notice”) provided for or permitted by thisAgreement to be made or accepted by Buyer or any Seller must be inwriting.  Notice may, unless otherwiseprovided herein, be given or served (a) by depositing the same in the UnitedStates mail, postage paid, certified, and addressed to the party to benotified, with return receipt requested, (b) by delivering the same to suchparty, or an agent of such party, in person or by commercial courier, (c) byfacsimile transmission, evidenced by confirmed receipt and 

 

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##  

## concurrently followed by a “hard” copy of samedelivered to the party by mail, personal delivery or overnight deliverypursuant to clauses (a), (b) or (d) hereof, or (d) by depositing the same intocustody of a nationally recognized overnight delivery service such as FederalExpress, Overnight Express, UPS, Airborne Express, Emery or Purolator.  Notice sent in the manner hereinabovedescribed (other than by facsimile) shall be effective upon receipt or refusalof delivery.  Notice given by facsimileshall be effective only if sent to the party to be notified between the hoursof 8:00 a.m. and 7:00 p.m. of any Business Day with delivery made after suchhours to be deemed received the following Business Day.  For the purposes of Notice, the addresses ofSellers, Buyer and Escrow Holder shall, until changed as hereinafter provided,be as set forth in this Article XVII. Buyer and Sellers shall have the right from time to time to change theirrespective addresses, and each shall have the right to specify as its addressany other address within the United States of America by at least five (5) dayswritten Notice to the other party. Notices shall be addressed as follows:

### (a)   if to Sellers, to:The Mark Winkler Company4900 Seminary Road, Suite 900Alexandria, Virginia 22311Attention:  Randal B. KellTelephone:  (703) 578-7782Facsimile:  (703) 578-7899

### With a copy to:The Mark Winkler Company4900 Seminary Road, Suite 900Alexandria, Virginia 22311Attention:  William C. NussbaumTelephone: (703) 578 7798Facsimile:  (703) 578 7899And a copy to:

### Pillsbury Winthrop Shaw Pittman LLP2300 N Street, N.W.Washington, D.C. 20037Attention:  John EngelTelephone: (202) 663-8863Facsimile: (202) 663-8007

 

### (b)   if to Buyer, to:

Duke Realty Corporation3950 Shackleford Road, Suite 300

 

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Duluth, Georgia30096-8268Attention:  Howard FeinsandTelephone: (770) 717-3267Facsimile: (770) 717-3314

Witha copy to:

JamesG. Farris, Jr. Alston & Bird LLP 1201 West Peachtree Street Atlanta, Georgia 30309-3424Telephone: (404) 881-7896Facsimile: (404) 253-8587

or to such other person and/or address as shall bespecified by either party in a notice given to the other pursuant to theprovisions of this Article XVII.  This article shall survive Closing or theearlier termination of this Agreement.

# **ARTICLE XVIII.**

# ** **

# INVESTMENT BANKER AND BROKER.

## Section 18.1.          Investment Banker and Broker.  Buyer warrants and represents to Sellers thatBuyer has not dealt or negotiated with any investment banker, broker or otherperson that could claim a commission, fee or other compensation by reason ofhaving dealt with Buyer in connection with this transaction, other thanGoldman, Sachs & Co. and The Mark Winkler Company, in connection with thetransaction contemplated by this Agreement. Buyer shall indemnify, defend and hold harmless Sellers from and againstany and all losses, costs, liens, claims, liabilities or damages (including,but not limited to, reasonable attorneys’ fees and disbursements) resultingfrom a breach of the foregoing representation or any claim that may be made byany investment banker, broker or other person, other than Goldman, Sachs &Co. and The Mark Winkler Company, claiming a commission, fee or other compensationby reason of having dealt with Buyer in connection with this transactionincluding, without limitation, any loss, liability, damages, costs and expenses(including reasonable attorneys’ fees and disbursements) incurred in enforcingthis indemnity.  Sellers warrant andrepresent to Buyer that, other than Goldman, Sachs & Co. and The MarkWinkler Company (collectively, the “Sellers’ Representatives”), Sellershave not dealt or negotiated with any investment banker or broker in connectionwith this transaction.  Sellers herebyagree to pay Sellers’ Representatives any brokerage commissions, fees or othercompensation which may be due or payable. Sellers shall indemnify, defend and hold harmless Buyer from and againstany and all losses, costs, liens, claims, liabilities or damages (including,but not limited to, reasonable attorneys’ fees and disbursements) resultingfrom a breach of the foregoing representation or any claim that may be made byany investment banker, broker or other person claiming a commission, fee orother compensation by reason of having dealt with Sellers in connection withthis transaction including, without limitation, any 

##  

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## loss, liability, damages,costs and expenses (including reasonable attorneys’ fees and disbursements)incurred in enforcing this indemnity. This Article XVIII shall survive the Closing or termination ofthis Agreement until the Survival Date set forth in Section 24.9(a)hereof.

# **ARTICLE XIX.**

# ** **

# ASSIGNMENT.

## Section 19.1.           Assignment.  Buyer shallnot directly or indirectly assign or transfer this Agreement or any of itsrights hereunder without Sellers’ prior written consent in each instance, whichconsent may be granted or withheld in Sellers’ sole and absolute discretion;provided, however, Seller hereby consents to Buyer assigning this Agreement toone or more entities at Closing (a) that are either controlling or controlledby Buyer or (b) in which Buyer, or any affiliate of Buyer, is an investor,member or partner.  No consent given bySellers to any assignment shall be construed as a consent to any otherassignment, and any unpermitted assignment made by Buyer shall be void.  In the event the rights and obligations ofBuyer shall be assigned as aforesaid, the assignee will be substituted in placeof Buyer in the documents executed or delivered pursuant to this Agreement andshall assume in writing all of Buyer’s duties and obligations hereunder; provided,however, that such assignment and assumption shall not relieve Buyer ofits obligations hereunder, and that Buyer and such assignee shall remainjointly and severally liable for all obligations of the Buyer hereunder.

# **ARTICLE XX.**

# ** **

# FURTHER ASSURANCES.

## Section 20.1.          Further Assurances.  The parties agree to do such other andfurther acts and things, and to execute and deliver such instruments anddocuments, as either may reasonably request from time to time, on or after theClosing Date, at the cost of the requesting party in furtherance of thepurposes of this Agreement and consistent with the terms hereof.  The provisions of this Article XXshall survive the Closing until the Survival Date set forth in Section24.9(a) hereof.

# **ARTICLE XXI.**

# ** **

# CONFIDENTIALITY.

## Section 21.1.          Confidentiality.  Buyer acknowledges and agrees that terms ofthis Article XXI shall supersede in its entirety the confidentiality agreementexecuted by Buyer in favor of Sellers prior to the Effective Date (the “ConfidentialityAgreement”).  Without in any waylimiting the foregoing, Buyer agrees that each of the following shall be keptstrictly confidential in accordance with the terms hereof:  (i) the existence of and subject matter ofthis Agreement and all of the terms hereof (including the Purchase Price); and(ii) any and all materials and information provided by Sellers or madeavailable to Buyer, including, without limitation, the Due Diligence Materials;and (iii) 

##  

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## the reason for any termination of this Agreement (ifapplicable).  Without in any way limitingthe foregoing, prior to Closing, Buyer expressly agrees not to have anydiscussions regarding, or share any information relating to, this Agreement orthe terms hereof, with any Tenant except as otherwise specifically permittedunder this Agreement.  Notwithstandingthe foregoing, the confidentiality provisions of this Section 21.1 shall notapply to disclosures to governmental agencies having jurisdiction over eitherBuyer or Seller, or other communications with their direct and indirect investors,lenders, professional advisors assisting with the transactions contemplatedherein and employees regarding this Agreement and/or the transactionscontemplated herein (each a “Confidence Party”), without the consent ofthe other; provided that each Confidence Party shall agree to be bound by theterms of this Article XXI, and if requested by the disclosing party,shall be obligated to execute and deliver a confidentiality agreementconfirming that such Confidence Party is bound by the terms of this ArticleXXI.  The provisions of this Section21.1 shall survive Closing or the termination of this Agreement until theapplicable Survival Date set forth in Section 24.9 (a) hereof.

# **ARTICLE XXII.**

#  

# PUBLIC DISCLOSURE - PRESSRELEASES.

## Section 22.1.          Public Disclosure.  Except to the extent required by law, priorto Closing, Sellers and Buyer each agree that it will not issue any pressrelease or advertisement with respect to this Agreement or the transactionscontemplated hereby without the prior written consent of the other partyhereto, which consent shall not be unreasonably withheld or delayed.  If Sellers or Buyer are required by law to issue such apress release or other public communication, at least one (1) Business Dayprior to the issuance of the same such party shall deliver a copy of theproposed press release or other public communication to the other party heretofor its review and approval. Notwithstanding the foregoing, Sellers and Buyer may make an announcementto, and make any other required filings with governmental agencies havingjurisdiction over either Buyer or Sellers, otherwise communicate with, itsdirect and indirect investors, lenders and employees regarding this Agreementand/or the transactions contemplated herein, without the consent of theother.  The provisions of this Section22.1 shall survive Closing or the earlier termination of this Agreementuntil the Survival Date set forth in Section 24.9(a).

# **ARTICLE XXIII.**

#  

# DISBURSEMENTS BY ESCROW HOLDER.

## Section 23.1.          Actions by Escrow Holder.  Upon the Closing, Escrow Holder shalldisburse all funds deposited with Escrow Holder on account of the PurchasePrice to Sellers as Sellers may direct or in accordance with a closingstatement prepared by Escrow Holder and approved by Sellers and Buyer.

#  

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# **ARTICLE XXIV.**

#  

# MISCELLANEOUS.

## Section 24.1.          Entire Agreement.  This Agreement and the Exhibits attachedhereto, together with Seller’s Documents and Buyer’s Documents, constitute theentire agreement between the parties with respect to the subject matter hereof,and all understandings and agreements heretofore or simultaneously had betweenthe parties are merged in, superseded by and contained in this Agreement.

## Section 24.2.          Modification.  This Agreement may not be waived, changed,modified or discharged orally, but only by an agreement in writing signed bythe parties hereto; and any consent, waiver, approval or authorization (otherthan deemed consents or approvals) shall be effective only if signed by theparty granting such consent, waiver, approval or authorization.

## Section 24.3.          Captions.  The table of contents, captions, Section andArticle titles and Exhibit and Schedule names contained in this Agreement arefor convenience and reference only and shall not be used in construing thisAgreement.

## Section 24.4.          GoverningLaw.  This Agreement shall begoverned by and construed in accordance with the internal laws of theCommonwealth of Virginia and not the conflicts of laws provisions thereof, withoutthe aid of any custom, canon or rule of law requiring construction against thedraftsman.  Without limiting theforegoing, any questions relating to the status of title and conveyancedocuments delivered on the Closing Date shall be governed by the internal lawsof the Commonwealth of Virginia and not the conflicts of laws provisionsthereof.  In any such litigation theparties to this Agreement waive personal service of any summons, complaint, orother process, and agree that service thereof may be made as provided in ArticleXVII above.

## Section 24.5.          References.  The terms “hereof,” “herein,” and “hereunder”and words of similar import, shall be construed to refer to this Agreement as awhole, and not to any particular article or provision, unless expressly sostated.  All words or terms used in thisAgreement, regardless of the number or gender in which they are used, shall bedeemed to include any other number and any other gender as the context mayrequire.

## Section 24.6.          CertainDefinitions.  The following termsused but not otherwise defined herein shall have the following meanings:

(a)           “BusinessDay” shall mean any day other than a Saturday, Sunday or bank holiday in theCommonwealth of Virginia or any holiday when the federal government in the Districtof Columbia is closed.

(b)           “Person”shall mean any natural person, a partnership, a corporation, limited liabilitycompany, a business trust and any other form of business or legal entity.

(c)           “Commerciallyreasonable efforts” as used herein shall not obligate Sellers to pursuelitigation or any other enforcement action or to incur more than ******** inthe 

 

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aggregate under this Agreement.  Buyer’s assertion that Sellers have notexercised commercially reasonable efforts shall not be the basis for thedeclaration of a Seller default hereunder.

## Section 24.7.          Exhibits.  The Exhibits attached hereto are hereby madepart of this Agreement.

## Section 24.8.          Successorsand Assigns.  Subject to theprovisions of Article XIX above, this Agreement shall be binding uponand shall inure to the benefit of the parties hereto and their respectivesuccessors and permitted assigns.  Noneof the provisions of this Agreement are intended to be, nor shall they beconstrued to be, for the benefit of any third party except for the ReleasedParties pursuant to the terms hereof.

## Section 24.9.          Survival.  (a) The acceptance by Buyer from each Sellerof the Deeds and related closing documents referred to in Article XIIIabove shall be deemed to be an acknowledgment, for all purposes, of the fullperformance and discharge of every representation, agreement and obligation onthe part of each Seller to be performed by it pursuant to the provisions ofthis Agreement, except for the following provisions which are to survive theClosing (or, as applicable, any termination of this Agreement) until theSurvival Date and any other provisions of this Agreement which are specificallystated to survive the Closing (or, as applicable, any termination of thisAgreement).  The “Survival Date”shall mean the following with respect to the Articles or Sections set forthbelow:

##                 (i)            The following Articles or Sectionsshall survive indefinitely subject to applicable statute of limitations: 

Section 3.6 (NoRepresentation Regarding Due Diligence Materials),

Section 3.7 (BuyerInvestigation Indemnity),

Section 3.8 (Return ofInformation Upon Termination),

Sections 8.1 (a)-(b), and(k) (Seller’s Corporate and Entity Representations),

Sections 8.2, 8.3, 8.4, 8.5,8.6 and 8.7 (Limitations on Seller’s Representations),

Article IX (Buyer’sRepresentations),

Article XII (Condition ofProperties; Release of Claims),

ArticleXIV(Default, Damages, Limitation of Liability),

Article XVII (Notices),

Article XVIII (InvestmentBanker and Broker), and

ArticleXXIV (Miscellaneous).

 

(ii) The following Articles and Sections shall survive until December 28,2006:

 

Article IV (Assessments),

Article V (Expenses),

Article VI (Prorations),

Sections8.1(f)-(j) (Seller’s Representations),

ArticleXI (Tax Reassessment or Reduction Proceedings),

Section 13.1(n) and (p) (Deliveries atClosing),

Section15.2 (Books and Records),

 

 

57

----

 

Article XX (FurtherAssurances),

Article XXI (Confidentiality),and

Article XXII (Disclosure).

 

(iii) Section 15.2 shall survive for a period of eighteen months after theClosing Date.

 

(b)           Noticeof any claim made by Buyer or Sellers on the basis of a breach of a provisionof this Agreement which survives the Closing (or, as applicable, anytermination of this Agreement) shall be given on or before the applicableSurvival Date.  In the event that eitherparty shall fail to give such written notice prior to the applicable SurvivalDate, such party shall be deemed to have waived all claims in connection withany such provision.  Any litigation withrespect to such claim shall be commenced within sixty (60) days after theapplicable Survival Date.  Time shall beof the essence with respect to giving notice hereunder and commencing anylitigation.

(c)           Theprovisions of this Section 24.9 shall survive the Closing or, asapplicable, any termination of this Agreement, indefinitely.

## Section 24.10.        Attorneys’Fees.  If any party obtains ajudgment (including a judgment ordering specific performance) against any otherparty by reason of breach of this Agreement, reasonable attorneys’ fees anddisbursements as fixed by the court shall be included in such judgment.

## Section 24.11.        Severability.  If any provision of this Agreement, or theapplication of such provision to any person or circumstance, shall be heldinvalid or unenforceable, the remainder of this Agreement or the application ofsuch provision to the person or circumstance other than those in respect ofwhich it is invalid or unenforceable, except those provisions which areexpressly made subject to or conditioned upon such invalid or unenforceableprovisions, shall not be affected thereby.

## Section 24.12.        Counterparts.  This Agreement may be executed in counterparts,each of which shall be deemed an original and all of which, when takentogether, shall be deemed one and the same instrument.

## Section 24.13.        Recordation.  Neither Sellers nor Buyer may record thisAgreement or any memorandum hereof.

## Section 24.14.        Timeof Essence.  Time is of the essenceof this Agreement.  In the computation ofany period of time provided for in this Agreement or by law, the day of the actor event from which the period of time runs shall be excluded, and the last dayof such period shall be included, unless it is a Saturday, Sunday, or legalholiday, in which case the period shall be deemed to run until the end of thenext day which is not a Saturday, Sunday, or legal holiday.

## Section 24.15.        EscrowHolder.  Buyer, Seller and Escrow Holdereach acknowledge and agree that Escrow Holder is executing this Agreementsolely for the purpose of acknowledging its obligations set forth in Article IIand Section 23.1 hereof.  

 

58

----

## This Agreement shall be deemed to be binding andeffective upon execution by Buyer and Seller and when the Deposit is posted (asrequired hereunder).  Amendments to thisAgreement shall not require the consent of Escrow Holder to be effective unlessaffecting the rights or obligations of Escrow Holder under this Agreement.

## Section 24.16.        BindingAgreement.** **Thesubmission of an unsigned copy of this Agreement to Buyer or Sellers shall notconstitute an offer or option to buy or sell the Property.  This Agreement shall become effective andbinding only upon execution and delivery by both Sellers and Buyer.

## Section 24.17.        No Third-Party Beneficiaries.  This Agreement shall not confer any rights orobligations upon any person other than the parties to this Agreement and theirrespective successors and permitted assigns.

## Section24.18.        WAIVER OF TRIAL BY JURY.  THE SELLERS AND THE PURCHASER HEREBY WAIVETRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER ARISING INTORT OR CONTRACT) BROUGHT BY EITHER AGAINST THE OTHER ON ANY MATTER ARISING OUTOF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT. THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE CONSUMMATION OF THETRANSACTION CONTEMPLATED BY THE TERMS OF THIS AGREEMENT OR EARLIER TERMINATIONOF THIS AGREEMENT.

[THE REMAINDER OF THEPAGE INTENTIONALLY LEFT BLANK]

 

59

----

IN WITNESS WHEREOF, the parties hereto have dulyexecuted this Agreement under seal as of the day and year first above written.

BUYER:

 

DUKE REALTY LIMITEDPARTNERSHIP, an Indiana limited partnership

 

By:  DUKE REALTY CORPORATION, an Indiana corporation, its sole general partner

 
|   | By:    | /s/  Howard L. Feinsand [Seal] |
|--------|--------|--------------------------------|
|   | Name:  | Howard  L. Feinsand            |
|   | Title: | Executive  Vice President,     |
|   |   | General  Counsel and Corporate |
|   |   | Secretary                      |

SELLERS:
|   | By:    | [Seal] |
|--------|--------|--------|
|   | Name:  |   |
|   | Title: |   |

 

[Sellers’Signatures Attached on Following Pages]

ESCROWHOLDER:

FIRSTAMERICAN TITLE INSURANCE COMPANY
|   | By:    | [Seal] |
|--------|--------|--------|
|   | Name:  |   |
|   | Title: |   |

 

 

SCHEDULE 3.1(a)-1

----

 

**FIRSTAMENDMENT TO COMMERCIAL MULTI-PROPERTY AGREEMENT OF PURCHASE AND SALE**

**THIS FIRST AMENDMENT TO COMMERCIAL MULTI-PROPERTYAGREEMENT OF PURCHASE AND SALE**(this “**First Amendment**”)is made as of February 28, 2006, by and among the entities listed on Schedule1-A attached hereto (each, a “**Seller**” andcollectively, the “**Sellers**”), and**DUKE REALTY LIMITED PARTNERSHIP**, an Indiana limitedpartnership (“Buyer”).

**RECITALS:**

**R-1.**                                                                         Buyer andSellers entered into that certain Commercial Multi-Property Agreement of Purchaseand Sale, dated January 24, 2006, (the “**Agreement**”),wherein, interalia, Buyer agreed to purchase from Seller, andSeller agreed to sell to Buyer, certain improved and unimproved real propertymore particularly described in Exhibit A of the Agreement.

**R-2.**                                                                         Simultaneouslywith this First Amendment, Buyer is purchasing a portion of the Propertiesthrough various assignees controlled by Buyer.

**R-3.**                                                                         Buyer andSeller have agreed to amend the Agreement pursuant to the terms of this FirstAmendment.

**AGREEMENTS:**

**NOW, THEREFORE,**in consideration of Ten Dollars ($10.00) in handpaid from each party to the other, the mutual covenants and agreementscontained herein and other good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, Buyer and Seller hereby agree asfollows:

**1.             Definitions.**  Unlessotherwise provided herein, all capitalized terms not expressly defined in thisFirst Amendment shall have the meanings ascribed to such terms in theAgreement.

**2.             Reductionin Purchase Price. **Pursuant to Section 6.3 of the Agreement,****and agreement between the parties, the Purchase Price forthe Properties being acquired on or about this day is hereby amended andallocated to the Properties being acquired as of this date as more particularlydescribed on Exhibit A attached hereto (the Properties listed on ExhibitA hereto are referred to as the “**First Phase Properties**”).The parties acknowledge that the Purchase Price allocated to **** ************, *********, ******** includes a credit to Buyer of ********, inaddition to adjustments pursuant to Section 6.3 of the Agreement (which******** reduction is included in the amended Purchase Price for said Propertyin Exhibit A attached hereto).

**3.             ClosingDate.**  Notwithstanding anything to the contrarycontained in the Agreement, Sellers and Buyer acknowledge that the propertiesdescribed on Exhibit B hereto

1

----

 

 (collectively, the “**DelayedProperties**” and each a “**Delayed Property**”)will not close at the same time as the First Phase Properties, due to delays infinalizing the assignment and assumption of Outstanding Loans for the DelayedProperties.  Sellers and Buyer waive anyand all rights they may have to terminate the Agreement solely as a result ofall of the Properties not closing on the same date.  Closing for each Delayed Property shall occurwithin five (5) Business Days after the loan assumption for the OutstandingLoan related to each Delayed Property is approved by the Existing Lender, andall documents and other conditions required by the Existing Lender have beensatisfied, and all other conditions to Closing set forth in the Agreement aresatisfied as it relates to such Delayed Property; provided, however, allClosings shall occur, if at all, by May 3, 2006. The parties acknowledge thatClosings for each Delayed Property are not contingent on Closings for any otherDelayed Property; except that Buyer shall not be required to acquire **** **,unless and until Buyer has acquired **** *** and that Closing of **** ** mayoccur after the Closing of **** ***.  ForDelayed Properties, all references in the Agreement to “Closing” shall mean theClosing for each such Delayed Property. Notwithstanding the foregoing, nothing contained in this Section 3 shallaffect the Closing on ******* ****** ***, which is governed by Exhibit BBto the Agreement.

**4.             Estoppels for DelayedProperties. **If Sellers havesatisfied the estoppel requirements for any Portfolio by delivering a Seller’sEstoppel for any Delayed Property, Seller shall update said Seller’s Estoppelstating the current status of facts at the Closing of such Delayed Property.

 

**5.             ******** — ***********. **Notwithstanding anything herein to thecontrary, each of **************** ****** ******* *********** (the “***** ********”) and Buyer acknowledge andagree that, pursuant to the request of Buyer, ************* is conveying title to a certain portion of real property in*********** ****** commonly known as “****** **” to *********** ***** *** (anassignee of Buyer) rather than conveying the same to *********** *********, ***(another assignee of Buyer) together with other real property and buildings inTransDulles Center owned by ***** ********(the “*** ******** ********”). *********** *********, *** and *************** *** are collectively referred to as the “*************” Without waiving any other claims that Buyer (or ***** ********, as assignee of Buyer) may haveagainst ***** ******** under theAgreement, in the event Buyer’s election to have ****** ** and the *** **************** conveyed to two separate buyers, rather than one single buyerhereunder, causes any representations, warranties or covenants of ***** ******** to be untrue, or conditions toBuyer’s or ***** ********* obligationsto Close to be unsatisfied, or causes any portion of ****** ** or any portionof the *** ******** ******** to be in violation of any title, zoning (includingsubdivision) or other requirements, any such failure of representation,warranty or covenant, or the Property’s violation of any such title, zoning orother matter, shall not be the basis of a ************* default hereunder and shall not excuse ***** ********* performance of its obligationsunder this Agreement, and shall not be the basis of any claim against ***** ******** hereunder after Closing. The terms of this paragraph shall survive Closing indefinitely.

**6.             FacsimileSignatures; Counterparts.**  ThisFirst Amendment may be executed in multiple counterparts, each of which shallbe enforceable against the party signing 

 

2

----

 

same, and all of which together shallconstitute a single and enforceable agreement. Executed counterparts of this First Amendment may be delivered by eitherparty via facsimile or telecopy transmission, and any such transmission shallbe deemed effective and binding on the party effecting such delivery.  Any party effecting delivery of this FirstAmendment by facsimile or telecopy transmission shall not use as a defense againstthe enforceability hereof the fact that any signatures so transmitted are notoriginal.

**7.             Reaffirmationof Purchase Agreement.**  Except as expressly set forth in this FirstAmendment, neither the Agreement nor any provision thereof has been or ishereby amended.  In furtherance of, andwithout in any manner limiting the foregoing, Buyer and Seller each herebyagree and acknowledge that the Agreement, as amended hereby, remains in fullforce and effect and is hereby affirmed, confirmed and reaffirmed.

 

 

[*SignaturePages to Follow*]

 

3

----

 

**                INWITNESS WHEREOF**,Buyer and Sellers have executed and delivered this First Amendment under sealas of the date first hereinabove written.

 
| ** ** | **SELLERS:**                                                       |
|------------|--------------------------------------------------------------------|
|       | [Sellers’ Signatures  Attached on Following Page]             |
|       |                                                               |
|       | **BUYER:**                                                         |
|       |                                                               |
|       | DUKE REALTY LIMITED  PARTNERSHIP,   an Indiana limited partnership |
|       |                                                               |   |   |   |
|       | By:                                                                | Duke Realty Corporation,  an Indiana corporation, its sole general partner |
|       |                                                               |   |   |   |
|       |                                                               | By: | /s/ Howard L. Feinsand | [Seal] |
|       |                                                               | Name: | Howard L. Feinsand |
|       |                                                               | Title: | Executive Vice President,  General Counsel and Secretary |

 

 

4

----

 

 

**** ******** **********

 
| **With respect to **** ********  | ** ASSOCIATES LIMITED  PARTNERSHIP,    |
|----------------------------------|----------------------------------------|
| ************** *********:**      | a Virginia limited  partnership        |
|                             |                                   |   |   |   |
|                             | By:                                    | MCOP, Inc., a Virginia  corporation, its sole general partner |
|                             |                                   |   |   |   |
|                             |                                   |   |   |   |
|                             |                                   | By: | /s/ Randal B. Kell |
|                             |                                   |   | Name: | Randal B. Kell |
|                             |                                   |   | Title: | President |
|                             |                                   |   |   |   |
|                             |                                   |   |   |   |
|                             |                                   |   |   |   |
| **With respect to **** *******   | ******ASSOCIATES  LIMITED PARTNERSHIP, |
| ************** *********:**      | a Virginia limited  partnership        |
|                             |                                   |   |   |   |
|                             | By:                                    | MCOP, Inc., a Virginia  corporation,   its sole general partner |
|                             |                                   |   |   |   |
|                             |                                   |   |   |   |
|                             |                                   | By: | /s/ Randal B. Kell |
|                             |                                   |   | Name: |  Randal B. Kell |
|                             |                                   |   | Title: | President |
|                             |                                   |   |   |   |
|                             |                                   |   |   |   |
|                             |                                   |   |   |   |
| **With respect to **** ******:** | ** ASSOCIATES LIMITED PARTNERSHIP,     |
| ************** *********:**      | a Virginia limited  partnership        |
|                             |                                   |   |   |   |
|                             | By:                                    | MCOP, Inc., a Virginia  corporation,   its sole general partner |
|                             |                                   |   |   |   |
|                             |                                   |   |   |   |
|                             |                                   | By: | /s/ Randal B. Kell |
|                             |                                   |   | Name: | Randal B. Kell |
|                             |                                   |   | Title: | President |

 

 

 

----

 

 
| **With respect to **** *******       | ** ASSOCIATES LIMITED  PARTNERSHIP,                           |
|--------------------------------------|---------------------------------------------------------------|
| ************ ******:**               | a Virginia limited  partnership                               |
|                                 |                                                          |   |   |   |
|                                 | By:                                                           | MCOP, Inc., a Virginia  corporation, its sole general partner |
|                                 |                                                          |   |   |   |
|                                 |                                                          |   |   |   |
|                                 |                                                          | By: | /s/ Randal B. Kell |
|                                 |                                                          |   | Name: | Randal B. Kell |
|                                 |                                                          |   | Title: | President |
|                                 |                                                          |   |   |   |
|                                 |                                                          |   |   |   |
|                                 |                                                          |   |   |   |
| **With respect to **** ***** ** | ****** ***** ************ASSOCIATES  LIMITED                  |
| ************ ******:**               | PARTNERSHIP, a Virginia  limited partnership                  |
|                                 |                                                          |   |   |   |
|                                 | By:                                                           | **** ***** **********  ******, Inc., a Virginia corporation, its sole general partner |
|                                 |                                                          |   |   |   |
|                                 |                                                          | By: | /s/ Randal B. Kell |
|                                 |                                                          |   | Name: | Randal B. Kell |
|                                 |                                                          |   | Title: | President |
|                                 |                                                          |   |   |   |
|                                 |                                                          |   |   |   |
|                                 |                                                          |   |   |   |
| **With respect to **** *******       | ****** ***** ************ASSOCIATES  LIMITED ** **  |
| ************ ******:**               | PARTNERSHIP, a Virginia  limited partnership                  |
|                                 |                                                          |   |   |   |
|                                 | By:                                                           | **** ***** ********** ******,  Inc., a Virginia corporation, its sole general partner |
|                                 |                                                          |   |   |   |
|                                 |                                                          | By: | /s/ Randal B. Kell |
|                                 |                                                          |   | Name: | Randal B. Kell |
|                                 |                                                          |   | Title: | President |
|                                 |                                                          |   |   |   |
|                                 |                                                          |   |   |   |
|                                 |                                                          |   |   |   |
| **With respect to **** *******       | **** ****** ***** II  LIMITED PARTNERSHIP,                    |
| ************ ******:**               |                                                          |   |   | a Virginia limited  partnership |
| ** **                           |                                                          |   |   |   |
|                                 | By:                                                           | Plaza II, Inc., a Virginia  corporation, its sole general partner |
|                                 |                                                          |   |
|                                 |                                                          | By: | /s/ Randal B. Kell |
|                                 |                                                          |   | Name: | Randal B. Kell |
|                                 |                                                          |   | Title: | President |
|                                 |                                                          |   |   |   |

 

** **

 

 

----

 

 
| **With respect to **** ******* | **** ****** ***** II  LIMITED PARTNERSHIP,   |
|--------------------------------|----------------------------------------------|
| ************ ******:**         | a Virginia limited  partnership              |
|                           |                                         |   |   |   |
|                           | By:                                          | Plaza II, Inc., a Virginia  corporation, |
|                           |                                         | its sole general partner |
|                           |                                         |   |   |   |
|                           |                                         | By: | /s/ Randal B. Kell |
|                           |                                         |   | Name: | Randal B. Kell |
|                           |                                         |   | Title: | President |
|                           |                                         |   |   |   |
|                           |                                         |   |   |   |
|                           |                                         |   |   |   |
| **With respect to **** ******* | ****** ***** ************ASSOCIATES  LIMITED |
| ************ ******:**         | PARTNERSHIP, a Virginia  limited partnership |
|                           |                                         |   |   |   |
|                           | By:                                          | MCOP, Inc., a Virginia  corporation, |
|                           |                                         | its sole general partner |
|                           |                                         |   |   |   |
|                           |                                         | By: | /s/ Randal B. Kell |
|                           |                                         |   | Name: | Randal B. Kell |
|                           |                                         |   | Title: | President |
|                           |                                         |   |   |   |
|                           |                                         |   |   |   |
|                           |                                         |   |   |   |
| **With respect to **** ******* | ****** ***** ********** ********LIMITED      |
| ************ ******:**         | PARTNERSHIP, a Virginia  limited partnership |
|                           |                                         |   |   |   |
|                           | By:                                          | **** ***** **********,  Inc., a Virginia |
|                           |                                         | corporation, its sole  general partner |
|                           |                                         |   |   |   |
|                           |                                         | By: | /s/ Randal B. Kell |
|                           |                                         |   | Name: | Randal B. Kell |
|                           |                                         |   | Title: | President |
|                           |                                         |   |   |   |
|                           |                                         |   |   |   |

 

 

 

----

 
| **With respect to ******        | PLAZA I-A ASSOCIATES  LIMITED PARTNERSHIP,   |
|---------------------------------|----------------------------------------------|
| ********** ****:**              | a Virginia limited  partnership              |
|                            |                                         |   |   |   |
|                            | By:                                          | Plaza I-A, Inc., a  Virginia corporation, |
|                            |                                         | its sole general partner |
|                            |                                         |   |   |   |
|                            |                                         | By: | /s/ Randal B. Kell |
|                            |                                         |   | Name: | Randal B. Kell |
|                            |                                         |   | Title: | President |
|                            |                                         |   |   |   |
|                            |                                         |   |   |   |
|                            |                                         |   |   |   |
| **With respect to **** ******   | ****** *** ASSOCIATES  LIMITED PARTNERSHIP,  |
| ******** ***** ********         | a Virginia limited  partnership              |
|                            |                                         |   |   |   |
|                            | By:                                          | ****** ***, Inc., a  Virginia corporation, |
|                            |                                         | its sole general partner |
|                            |                                         |   |   |   |
|                            |                                         | By: | /s/ Randal B. Kell |
|                            |                                         |   | Name: | Randal B. Kell |
|                            |                                         |   | Title: | President |
|                            |                                         |   |   |   |
|                            |                                         |   |   |   |
|                            |                                         |   |   |   |
| **With respect to **** ******** | MARK CENTER PROPERTIES  LIMITED              |
| ******* **********:**           | PARTNERSHIP, a Virginia  limited partnership |
|                            |                                         |   |   |   |
|                            | By:                                          | Mark Center Properties,  Inc., a Virginia |
|                            |                                         | corporation, its sole  general partner |
|                            |                                         |   |   |   |
|                            |                                         | By: | /s/ Randal B. Kell |
|                            |                                         |   | Name: | Randal B. Kell |
|                            |                                         |   | Title: | President |

 

 

----

 

************* ***********

 
| **With respect to *************   | WINKLER-SOUTHERN TOWERS  LIMITED             |
|-----------------------------------|----------------------------------------------|
| ********: **                 | PARTNERSHIP, a Virginia  limited partnership |
|                              |                                         |   |   |   |
|                              | By:                                          | Winkler-TDC LLC, a  Virginia limited |
|                              |                                         | liability company, its  sole general partner |
|                              |                                         |   |   |   |
|                              |                                         | By: | The Family Trust Under the  Last Will |
|                              |                                         |   | and Testament of Mark  Winkler, |
|                              |                                         |   | Deceased, its sole member |
|                              |                                         |   |   |   |
|                              |                                         |   | By: | /s/ Randal B. Kell |
|                              |                                         |   |   | Name: | Randal B. Kell |
|                              |                                         |   |   | Title: | Trust Manager |
|                              |                                         |   |   |   |
|                              |                                         |   |   |   |
|                              |                                         |   |   |   |
| **With respect to******** ****:** | WINKLER-SOUTHERN TOWERS  LIMITED             |
|                              | PARTNERSHIP, a Virginia  limited partnership |
|                              |                                         |   |   |   |
|                              | By:                                          | Winkler-TDC LLC, a  Virginia limited |
|                              |                                         | liability company, its  sole general partner |
|                              |                                         |   |   |   |
|                              |                                         | By: | The Family Trust Under the  Last Will |
|                              |                                         |   | and Testament of Mark  Winkler, |
|                              |                                         |   | Deceased, its sole member |
|                              |                                         |   |   |   |
|                              |                                         |   | By: | /s/ Randal B. Kell |
|                              |                                         |   |   | Name: | Randal B. Kell |
|                              |                                         |   |   | Title: | Trust Manager |

 

 

 

----

 

 
| **With respect to******** ****:** | ****** ** ASSOCIATES  LIMITED PARTNERSHIP, |
|-----------------------------------|--------------------------------------------|
|                              | a Virginia limited partnership             |
|                              |                                       |   |   |   |   |
|                              | By:                                        | W Investment VII, LLC, a  Virginia limited |
|                              |                                       | liability company, its  sole general partner |
|                              |                                       |   |   |   |   |
|                              |                                       | By: | The Family Trust Under the  Last Will |
|                              |                                       |   | and Testament of Mark  Winkler, |
|                              |                                       |   | Deceased, its sole member |
|                              |                                       |   |   |   |   |
|                              |                                       |   | By: | /s/ Randal B. Kell |
|                              |                                       |   |   | Name: | Randal B. Kell |
|                              |                                       |   |   | Title: | Trust Manager |
|                              |                                       |   |   |   |   |
|                              |                                       |   |   |   |   |
|                              |                                       |   |   |   |   |
| **With respect to******** ****:** | ****** ** ASSOCIATES  LIMITED PARTNERSHIP, |
|                              | a Virginia limited  partnership            |
|                              |                                       |   |   |   |   |
|                              | By:                                        | W Investment VI LLC, a  Virginia limited |
|                              |                                       | liability company, its  sole general partner |
|                              |                                       |   |   |   |   |
|                              |                                       | By: | Mark Center Properties  Limited |
|                              |                                       |   | Partnership, a Virginia  limited |
|                              |                                       |   | partnership, its sole  member |
|                              |                                       |   |   |   |   |
|                              |                                       |   | By: | Mark Center Properties,  Inc., a |
|                              |                                       |   |   | Virginia corporation, its  sole |
|                              |                                       |   |   | general partner |
|                              |                                       |   |   |   |   |
|                              |                                       |   | By: | /s/ Randal B. Kell |
|                              |                                       |   |   | Name: | Randal B. Kell |
|                              |                                       |   |   | Title: | President |
|                              |                                       |   |   |   |   |

 

 

 

----

 

************ ***********

** **
| **With respect to********* | ****** ** ASSOCIATES  LIMITED PARTNERSHIP,   |
|----------------------------|----------------------------------------------|
| ****** ***:**              | a Virginia limited  partnership              |
|                       |                                         |   |   |   |   |
|                       | By:                                          | ****** **, Inc., a  Virginia corporation, |
|                       |                                         | its sole general partner |
|                       |                                         |   |   |   |   |
|                       |                                         | By: | /s/ Randal B. Kell |
|                       |                                         |   | Name: | Randal B. Kell |
|                       |                                         |   | Title: | President |
|                       |                                         |   |   |   |   |
|                       |                                         |   |   |   |   |
|                       |                                         |   |   |   |   |
| **With respect to********* | ****** ** ASSOCIATES  LIMITED PARTNERSHIP,   |
| ****** ****:**             | a Virginia limited  partnership              |
|                       |                                         |   |   |   |   |
|                       | By:                                          | ****** ** LLC, a Virginia  limited liability |
|                       |                                         | company, its sole general  partner |
|                       |                                         |   |   |   |   |
|                       |                                         | By: | The Mark Winkler Company,  a Virginia |
|                       |                                         |   | corporation, its sole  manager |
|                       |                                         |   |   |   |   |
|                       |                                         |   | By: | /s/ Randal B. Kell |
|                       |                                         |   |   | Name: | Randal B. Kell |
|                       |                                         |   |   | Title: | Chief Executive Officer |
|                       |                                         |   |   |   |   |
|                       |                                         |   |   |   |   |
|                       |                                         |   |   |   |   |
| **With respect to********* | ******* ****** ***  ASSOCIATES LIMITED       |
| ****** *****:**            | PARTNERSHIP, a Delaware  limited partnership |
|                       |                                         |   |   |   |   |
|                       | By:                                          | ** ***, LLC, a Delaware  limited liability company, its sole general partner |
|                       |                                         |   |   |   |   |
|                       |                                         | By: | The Mark Winkler Company,  a Virginia |
|                       |                                         |   | corporation, its sole  manager |
|                       |                                         |   |   |   |   |
|                       |                                         |   | By: | /s/ Randal B. Kell |
|                       |                                         |   |   | Name: | Randal B. Kell |
|                       |                                         |   |   | Title: | Chief Executive Officer |
|                       |                                         |   |   |   |   |
|                       |                                         |   |   |   |   |
|                       |                                         |   |   |   |   |

 

 

 

----

 

 
| **With respect to *********      | ****** **/*** * LLC,                                  |
|----------------------------------|-------------------------------------------------------|
| ******** **:**                   | a Virginia limited  liability** **company        |
| ** **                       |                                                  |   |   |   |   |
| ** **                       | By:                                                   | The Mark Winkler Company,  a Virginia |
| ** **                       |                                                  | corporation, its sole  manager |
| ** **                       |                                                  |   |   |   |   |
| ** **                       |                                                  | By: | /s/ Randal B. Kell |
| ** **                       |                                                  |   | Name: | Randal B. Kell |
| ** **                       |                                                  |   | Title: | Chief Executive Officer |
| ** **                       |                                                  |   |   |   |   |
| ** **                       |                                                  |   |   |   |   |
| ** **                       |                                                  |   |   |   |   |
| **With respect to **** * * **:** | ****** *** ASSOCIATES  LIMITED PARTNERSHIP,           |
| ** **                       | a Virginia limited** **partnership               |
| ** **                       |                                                  |   |   |   |   |
| ** **                       | By:                                                   | ****** *** Inc., a  Virginia corporation, |
| ** **                       |                                                  | its sole manager |
| ** **                       |                                                  |   |   |   |   |
| ** **                       |                                                  | By: | /s/ Randal B. Kell |
| ** **                       |                                                  |   | Name: | Randal B. Kell |
| ** **                       |                                                  |   | Title: | President |
| ** **                       |                                                  |   |   |   |   |
| ** **                       |                                                  |   |   |   |   |
| ** **                       |                                                  |   |   |   |   |
| **With respect to **** ***:**    | **** ********** ASSOCIATES  LIMITED                   |
| ** **                       | PARTNERSHIP, a Virginia  limited** **partnership |
| ** **                       |                                                  |   |   |   |   |
| ** **                       | By:                                                   | **** **********, Inc., a  Virginia corporation, |
| ** **                       |                                                  | its sole manager |
| ** **                       |                                                  |   |   |   |   |
| ** **                       |                                                  | By: | /s/ Randal B. Kell |
| ** **                       |                                                  |   | Name: | Randal B. Kell |
| ** **                       |                                                  |   | Title: | President |
| ** **                       |                                                  |   |   |   |   |

 

 

 

 

----

 
| **With respect to **** **:**       | **** ********** ASSOCIATES  LIMITED                   |
|------------------------------------|-------------------------------------------------------|
| ** **                         | PARTNERSHIP, a Delaware  limited** **partnership |
|                               |                                                  |   |   |   |   |
| ** **                         | By:                                                   | **** **********, LLC, a Delaware  limited liability |
| ** **                         |                                                  | company, its sole general  partner |
|                               |                                                  |   |   |   |   |
| ** **                         |                                                  | By: | The Mark Winkler Company,  a Virginia |
| ** **                         |                                                  |   | corporation, its sole  manager |
|                               |                                                  |   |   |   |   |
| ** **                         |                                                  |   | By: |  /s/ Randal B. Kell |
| ** **                         |                                                  |   |   | Name: | Randal B. Kell |
|                               |                                                  |   |   | Title: | Chief Executive Officer |
| ** **                         |                                                  |   |   |   |   |
| ** **                         |                                                  |   |   |   |   |
|                               |                                                  |   |   |   |   |
| **With respect to******** *****:** | ****** *** ASSOCIATES  LIMITED PARTNERSHIP,           |
|                               | a Delaware limited** **partnership               |
|                               |                                                  |   |   |   |   |
|                               | By:                                                   | ****** ***, LLC, a Delaware  limited liability |
|                               |                                                  | company, its sole general  partner |
|                               |                                                  |   |   |   |   |
|                               |                                                  | By: | The Mark Winkler Company,  a Virginia |
|                               |                                                  |   | corporation, its sole  manager |
|                               |                                                  |   |   |   |   |
|                               |                                                  |   | By: | /s/ Randal B. Kell |
|                               |                                                  |   |   | Name: | Randal B. Kell |
|                               |                                                  |   |   | Title: | Chief Executive Officer |
|                               |                                                  |   |   |   |   |
|                               |                                                  |   |   |   |   |
|                               |                                                  |   |   |   |   |
|                               |                                                  |   |   |   |   |

 

 

 

----

 
| **With respect to******** ****:** | W INVESTMENT VIII, L.P.,                |
|-----------------------------------|-----------------------------------------|
|                              | a Delaware limited** **partnership |
|                              |                                    |   |   |   |   |
|                              | By:                                     | W Investment VIII, LLC, a  Delaware limited |
|                              |                                    | liability company, its  sole manager |
|                              |                                    |   |   |   |   |
|                              |                                    | By: | The Mark Winkler Company,  a Virginia |
|                              |                                    |   | corporation, its sole  general partner |
|                              |                                    |   |   |   |   |
|                              |                                    | By: | /s/ Randal B. Kell |
|                              |                                    |   | Name: | Randal B. Kell |
|                              |                                    |   | Title: | Chief Executive Officer |
|                              |                                    |   |   |   |   |
|                              |                                    |   |   |   |   |
|                              |                                    |   |   |   |   |
| **With respect to******** ****:** | W INVESTMENT VIII, L.P.,                |
|                              | a Delaware limited** **partnership |
|                              |                                    |   |   |   |   |
|                              | By:                                     | W Investment VIII, LLC, a  Delaware limited |
|                              |                                    | liability company, its  sole general partner |
|                              |                                    |   |   |   |   |
|                              |                                    | By: | The Mark Winkler Company,  a Virginia |
|                              |                                    |   | corporation, its sole  manager |
|                              |                                    |   |   |   |   |
|                              |                                    |   | By: | /s/ Randal B. Kell |
|                              |                                    |   |   | Name: | Randal B. Kell |
|                              |                                    |   |   | Title: | Chief Executive Officer |
|                              |                                    |   |   |   |   |
|                              |                                    |   |   |   |   |

 

 

----

 

**SECOND AMENDMENT TO COMMERCIALMULTI-PROPERTY AGREEMENT OF**

**PURCHASEAND SALE**

**THIS SECOND AMENDMENT TO COMMERCIAL MULTI-PROPERTYAGREEMENT OF PURCHASE AND SALE**(this “**Second Amendment**”)is made as of March 10, 2006, by and among the entities listed on Schedule1-A attached hereto (each, a “**Seller**” andcollectively, the “**Sellers**”), and**DUKE REALTY LIMITED PARTNERSHIP**, an Indiana limitedpartnership (“**Buyer**”).

**RECITALS:**
| **R-1.**   |   | Buyer  and Sellers entered into that certain Commercial Multi-Property Agreement of  Purchase and Sale, dated January 24, 2006, as amended by that certain First  Amendment to Commercial Multi-Property Agreement of Purchase and Sale, dated  February 28, 2006 (collectively, the “**Agreement**”),  wherein, inter  alia, Buyer agreed to purchase from Seller, and  Seller agreed to sell to Buyer, certain improved and unimproved real property  more particularly described in Exhibit A of the Agreement  (individually a “**Property**” and  together the “**Properties**”). |
|------------|--------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| ** ** |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |
| **R-2.**   |   | Simultaneously  with this Second Amendment, Buyer is purchasing a portion of the Properties  through various assignees controlled by Buyer.                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |
| ** ** |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |
| **R-3.**   |   | Buyer  and Sellers have agreed to amend the Agreement pursuant to the terms of this  Second Amendment.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
| ** ** |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |

**AGREEMENTS:**

**NOW, THEREFORE,**in consideration of Ten Dollars ($10.00) in handpaid from each party to the other, the mutual covenants and agreementscontained herein and other good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, Buyer and Seller hereby agree asfollows:

**1.             Definitions**.   Unless otherwise provided herein, all capitalized terms not expresslydefined in this Second Amendment shall have the meanings ascribed to such termsin the Agreement.

**2.             Reductionin Purchase Price.    **Pursuant to Section 6.3 of the Agreement,****and agreement between the parties, the Purchase Price forthe Properties being acquired on the date hereof is hereby amended andallocated to such Properties as more particularly described on Exhibit Aattached hereto (the Properties listed on Exhibit A hereto are referred to asthe “**Second Phase Properties**”).

**3.             FacsimileSignatures; Counterparts**.    ThisSecond Amendment may be executed in multiple counterparts, each of which shallbe enforceable against the party signing same, and all of which together shallconstitute a single and enforceable agreement. Executed

----

 

counterparts of this Second Amendment maybe delivered by either party via facsimile or telecopy transmission, and anysuch transmission shall be deemed effective and binding on the party effectingsuch delivery.  Any party effectingdelivery of this Second Amendment by facsimile or telecopy transmission shallnot use as a defense against the enforceability hereof the fact that anysignatures so transmitted are not original.

**4.             Reaffirmationof Purchase Agreement**.    Except as expressly set forth in thisSecond Amendment, neither the Agreement nor any provision thereof has been oris hereby amended.  In furtherance of,and without in any manner limiting the foregoing, Buyer and Seller each herebyagree and acknowledge that the Agreement, as amended hereby, remains in fullforce and effect and is hereby affirmed, confirmed and reaffirmed.

 

 

[*SignaturePages to Follow*]

2

----

 

**                INWITNESS WHEREOF**,Buyer and Sellers have executed and delivered this Second Amendment under sealas of the date first hereinabove written.

 
|   | **SELLERS:**                                           |                  |                                 |
|--------|--------------------------------------------------------|-----------------------|--------------------------------------|
|   |                                                   |                  |                                 |
|   | [Sellers’ Signatures  Attached on Following Page] |
|   |                                                   |                  |                                 |
|   |                                                   |                  |                                 |
|   | **BUYER:**                                             |                  |                                 |
|   |                                                   |                  |                                 |   |   |
|   |                                                   |                  |                                 |   |   |
|   |                                                   |                  |                                 |
|   |                                                   |                  | DUKE REALTY LIMITED  PARTNERSHIP, an |
|   |                                                   |                  | Indiana limited  partnership         |
|   |                                                   |                  |                                 |   |
|   |                                                   |                  | By:                                  | Duke Realty Corporation,  an Indiana |
|   |                                                   |                  |                                 | corporation, its sole  general partner |
|   |                                                   |                  |                                 |   |
|   |                                                   |                  |                                 | By: |   /s/ Howard L. Feinsand |  [Seal] |
|   |                                                   |                  |                                 | Name:  Howard L. Feinsand |
|   |                                                   |                  |                                 | Title:  Executive Vice President, General |
|   |                                                   | Counsel and Secretary |
|        |                                                        |                       |                                      |  |  |  |  |  |

 

 

 

*[SignaturePage of Second Amendment to Commercial Multi-Property P&S]*

 

----

 

 
| **With respect to******** *******:** |   | **** ********** ASSOCIATES LIMITED |                                                  |
|-------------------------------------------|--------|------------------------------------|-------------------------------------------------------|
|                                      |   |                               | PARTNERSHIP, a Virginia  limited** **partnership |   |
|                                      |   |                               |                                                  |   |   |   |
|                                      |   |                               | By:                                                   | **** **********, Inc., a Virginia  corporation, |
|                                      |   |                               |                                                  | its sole manager |
|                                      |   |                               |                                                  |   |
|                                      |   |                               |                                                  | By: |   /s/ Randal B. Kell |   |
|                                      |   |                               |                                                  |   | Name: | Randal B. Kell |   |
|                                      |   |                               |                                                  |   | Title: | President |   |
|                                      |   |                               |                                                  |   |   |   |   |
|                                           |        |                                    |                                                       |  |  |  |  |  |  |  |

 

 

 

*[SignaturePage of Second Amendment to Commercial Multi-Property P&S]*

 

----

 

 
| **With respect to****** ****:** | **** ********** ASSOCIATES LIMITED |   |                                                  |
|---------------------------------|------------------------------------|--------|-------------------------------------------------------|
|                            |                               |   | PARTNERSHIP, a Delaware  limited** **partnership |   |   |
|                            |                               |   |                                                  |   |   |   |   |   |
|                            |                               |   | By:                                                   | **** **********, LLC, a Delaware limited |   |
|                            |                               |   |                                                  | liability company, its  sole general partner |   |
|                            |                               |   |                                                  |   |   |   |   |   |
|                            |                               |   |                                                  | By: | The Mark Winkler Company,  a Virginia |
|                            |                               |   |                                                  |   | corporation, its sole  manager |   |
|                            |                               |   |                                                  |   |   |   |   |
|                            |                               |   |                                                  |   | By: |   /s/ Randal B. Kell |   |
|                            |                               |   |                                                  |   |   | Name: | Randal B. Kell |
|                            |                               |   |                                                  |   |   | Title: | Chief Executive Officer |
|                            |                               |   |                                                  |   |   |   |   |   |
|                            |                               |   |                                                  |   |   |   |   |   |
|                            |                               |   |                                                  |   |   |   |   |   |
|                                 |                                    |        |                                                       |  |  |  |  |  |  |  |  |  |

 

----

 

**THIRDAMENDMENT TO COMMERCIAL MULTI-PROPERTY AGREEMENT OF PURCHASE AND SALE**

**THIS THIRD AMENDMENT TO COMMERCIAL MULTI-PROPERTYAGREEMENT OF PURCHASE AND SALE**(this “**Third Amendment**”)is made as of April 21, 2006, by and between ****** ** **ASSOCIATESLIMITED PARTNERSHIP** (“**Seller**”), and**DUKE REALTY LIMITED PARTNERSHIP**, an Indiana limitedpartnership (“**Buyer**”).

**RECITALS:**
| **R-1.**   |   | Buyer  and Seller and affiliates of Seller entered into that certain Commercial  Multi-Property Agreement of Purchase and Sale, dated January 24, 2006, as  amended by that certain First Amendment to Commercial Multi-Property  Agreement of Purchase and Sale, dated February 28, 2006, as amended by that  certain Second Amendment to Commercial Multi-Property Agreement of Purchase  and Sale, dated March 10, 2006 (collectively, the “**Agreement**”),  wherein, inter  alia, Buyer agreed to purchase from Seller, and  Seller agreed to sell to Buyer, certain improved real property more  particularly described in Exhibit A of the Agreement (the “**Property**”). |
|------------|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|       |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       |
| **R-2.**   |   | Simultaneously  with this Third Amendment, Buyer is purchasing the Property through an  assignee controlled by Buyer.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |
| ** ** |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       |
| **R-3.**   |   | Buyer  and Seller have agreed to amend the Agreement pursuant to the terms of this  Third Amendment.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       |

** **

**AGREEMENTS:**

**NOW, THEREFORE,**in consideration of Ten Dollars ($10.00) in handpaid from each party to the other, the mutual covenants and agreementscontained herein and other good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, Buyer and Seller hereby agree asfollows:

**1.             Definitions**.           Unlessotherwise provided herein, all capitalized terms not expressly defined in thisThird Amendment shall have the meanings ascribed to such terms in theAgreement.

**2.             Reductionin Purchase Price. **Pursuant to Section 6.3 of the Agreement,****and agreement between the parties, the Purchase Price forthe Property being acquired on the date hereof is hereby amended and allocatedto such Property as more particularly described on Exhibit A attachedhereto (the Property listed on Exhibit A hereto is referred to as the “**Third Phase Property**”).

**3.             FacsimileSignatures; Counterparts**.  ThisThird Amendment may be executed in multiple counterparts, each of which shallbe enforceable against the party signing same, and all of which together shallconstitute a single and enforceable agreement. Executed 

----

counterparts of this Third Amendment maybe delivered by either party via facsimile or telecopy transmission, and anysuch transmission shall be deemed effective and binding on the party effectingsuch delivery.  Any party effectingdelivery of this Third Amendment by facsimile or telecopy transmission shallnot use as a defense against the enforceability hereof the fact that any signaturesso transmitted are not original.

**4.             Reaffirmationof Purchase Agreement**.          Except as expressly set forth in thisThird Amendment, neither the Agreement nor any provision thereof has been or ishereby amended.  In furtherance of, andwithout in any manner limiting the foregoing, Buyer and Seller each herebyagree and acknowledge that the Agreement, as amended hereby, remains in fullforce and effect and is hereby affirmed, confirmed and reaffirmed.

 

 

[*SignaturePages to Follow*]

 

 

*[**Signature Page of Third Amendmentto Commercial Multi-Property P&S**]*

 

2

----

**                INWITNESS WHEREOF**,Buyer and Seller have executed and delivered this Third Amendment under seal asof the date first hereinabove written.

**                SELLER:**

****** ** ASSOCIATESLIMITED PARTNERSHIP,a Virginia limited partnership
| By:    | ******  ** LLC, a Virginia limited liability company, its sole general partner |
|--------|--------------------------------------------------------------------------------|
|   |                                                                           |
|   | By:                                                                            | The  Mark Winkler Company, a Virginia corporation, its sole manager |
|   |                                                                           |   |
|   | By:                                                                            | /s/ Randal B. Kell |
|   |                                                                           | Name: Randal B. Kell |
|   |                                                                           | Title: Chief Executive  Officer |

----

**BUYER:**

 

 

 

DUKE REALTY LIMITEDPARTNERSHIP,an Indiana limited partnership

 
| By:    | Duke Realty Corporation,  an Indiana 

corporation, its sole  general partner |
|--------|-------------------------------------------------------------------------------|
|   |                                                                          |   |   |
|   | By:                                                                           | /s/ Howard L. Feinsand | [Seal] |
|   | Name:                                                                         | Howard L. Feinsand |   |
|   | Title:                                                                        | Executive Vice President,  General

Counsel and Secretary |   |

----