EXHIBIT
10.1


 


Commercial
Multi-Property Agreement of Purchase and Sale,


Together
with Related Amendments


 


 


IMPORTANT NOTE:


 


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


 


The Registrant has separately filed in paper
format with the Securities and Exchange Commission, together with the
aforementioned request for confidential treatment, a complete version of the
Commercial Multi-Property Agreement of Purchase and Sale, including the related
amendments thereto, which does not omit any information for which confidential
treatment is being sought.


 


 


 






 








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 among
the entities listed on Schedule 1-A hereto (each, a “Seller” and,
collectively, the “Sellers”), having an address at c/o The Mark Winkler
Company, 4900 Seminary Road, Suite 900, Alexandria, Virginia 22311, and DUKE
REALTY 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 of
land set forth next to such Seller’s name set forth on Schedule 1-A
hereto, which tracts of land are more particularly described on Exhibits A
attached hereto (such land, together with all appurtenances and rights,
privileges, development rights, air rights, rights of way, and easements
appurtenant thereto, are collectively referred herein to as the “Land”); and


WHEREAS, each Seller desires to sell to Buyer and
Buyer 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 as
portfolios 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 party
hereto, and intending to be legally bound hereby, Sellers and Buyer agree as
follows:


ARTICLE I.


SUBJECT
OF SALE


Section 1.1.            Sale
of the Properties. Upon and subject to the terms and conditions herein
contained, Sellers agree to sell, transfer, assign and convey to Buyer, and
Buyer agrees to 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 other
tangible and intangible property owned by Sellers in, on, attached to,
appurtenant to, and used in the operation or maintenance of, the Land or the
Buildings, including, without limitation, development rights and air rights, if
any (collectively with the Land and the Buildings, the “Properties” and,
each a “Property” or an “Individual Property”).  The sale of the Properties shall include, without
limitation, the following:


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


 


1

















 


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


(b)   Sellers’ interests, if any, in all refundable
security deposits, whether in the form of cash, letters of credit or other
security, and, except as provided herein, advance rental payments held by
Sellers in connection with the Leases, received from the tenants listed in Exhibit
B attached hereto together with all other tenants pursuant to leases and
other occupancy agreements relating to the Buildings entered into by Sellers
after 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 and
quasi-governmental bodies, officers and authorities exclusively in respect of
the ownership, occupancy, use and operation of the Land or the Buildings to the
extent assignable;


(d)   Sellers’ interest in all maintenance, parking
management, supply, and other service contracts (collectively, the “Service
Contracts”), but specifically excluding property management agreements,
which property management agreements shall be terminated, at or prior to
Closing, by the Seller whose Property is affected by such property management
agreements at such Seller’s sole cost and expense.  All Service Contracts that, to Seller’s
knowledge, are not terminable at Closing, are indicated on Exhibit C.  Except as provided below and subject to the
terms and conditions of this Agreement, Buyer shall purchase the Properties
subject to the Service Contracts and shall assume the obligations of Seller
thereunder pursuant to the terms of an Assignment and Assumption Agreement, the
form of which is set forth as Exhibit D. 
Service Contracts that affect one or more properties in addition to the
Properties to be purchased by Buyer pursuant to this Agreement shall be
terminated by Seller effective as of the Closing Date.  During the Study Period, Buyer shall review
the Service Contracts to determine which may be terminated by Seller prior to
the Closing and which may not.  Seller
agrees to provide notices of termination on or prior to the Closing for each of
the Service Contracts that are terminable and that Buyer designates in writing
during the Study Period for termination; provided that in no event shall Seller
be obligated to terminate Service Contracts relating to maintaining warranties
in connection with the Buildings and other improvements or that were obtained
in connection with the initial construction or installation.  All termination fees, if any, arising out of
a termination, shall be paid by Buyer at Closing;


(e)   All contract rights related to any
construction activities on the Properties, including improvements required by
any Leases, but only to the extent (i) assignable or transferable without
penalty or payment by any of the Sellers (unless Buyer agrees to assume
responsibility for such penalty or payment in a manner reasonably acceptable to
Sellers) and/or (ii) such contract rights are not being retained on a
non-exclusive basis by or on behalf of any of the Sellers for continuing
development of Liberty Center III, including, without limitation, the
following:  construction contracts,
architectural contracts, engineering contracts, and other agreements related to
construction 


 


2

















 


activities on the Properties that will remain in
existence after the Closing (collectively, the “Construction Contracts”).  Seller will assign to Buyer, and Buyer will
assume from Seller, the Construction Contracts listed on Exhibit E
pursuant to the terms of an Assignment and Assumption Agreement, the form of
which is set forth as Exhibit D.


(f)    all right, title and interest of Sellers in
and to any unpaid award
for any taking of all or part of the Land or the Buildings;


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


(h)   all right, title and interest of Sellers in
and to machinery, tools, equipment, fixtures and other tangible property in,
on, attached to, appurtenant to and used by Sellers solely in the operation or
maintenance 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 the
Closing Date, it being understood that such items may be in need of repair, and
Seller shall have no obligation to repair the same (the “Personal Property”),
and all right, title and interest of Sellers under all equipment leases
relating to the operation or maintenance of the Land or Buildings, which
equipment leases are listed on Exhibit F attached hereto (the “Equipment
Leases”).


(i)    Subject to the apportionment provisions of Article
VI, the sale of the Properties shall exclude (i) all cash of any Seller
(whether on hand or in bank accounts) other than the aforementioned unapplied
security deposits, (ii) delinquent Tenant arrearages and accounts receivable as
of the Closing Date, (iii) Sellers’ policies of title insurance, (iv) computer
programs 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 computer
programs, (vii) all insurance proceeds with respect to events existing or
occurring prior to, and other claims existing on, the Closing Date, other than
the proceeds assigned to Buyer pursuant to Article XVI hereof, (viii)
all bonds, letters of credit, deposits or similar assurances posted with
governmental or quasi-governmental agencies or utility companies to secure
performance of public improvements or payment obligations to utility companies,
(ix) any items of personal property owned or leased (from anyone other than a
Seller) by each Seller’s property manager and located in the property manager’s
on-site or off-site property management office, (x) any items of personal
property owned or leased (from anyone other than a Seller) by any Tenant at or
on each Seller’s Property, and (xi) any Protected Information (as defined
herein).  Buyer shall be responsible at
its sole cost and expense to post (and to pay the cost of) all bonds, deposits
or similar assurances to be posted with governmental or quasi-governmental
agencies or utility companies in connection with the development, ownership,
operation and maintenance of the Property, as the same are listed on Schedule
1.1(i) attached hereto.


(j)    Each Seller quitclaims to Buyer any rights
it 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 property
owners, to use 


 


3

















 


such names. 
Buyer hereby acknowledges that Seller makes no representations or
warranties concerning any patents, trademarks, copyrights or other intellectual
property rights.


Section 1.2.            Seller
Relationships. 
Notwithstanding anything contained in this Agreement to the contrary,
the representations, covenants and obligations of each individual Seller under
this Agreement shall be limited to the representations, covenants and
obligations of such Seller set forth in this Agreement, as applicable to such
Seller and to such Seller’s Property only. 
The obligations of the Sellers under this Agreement are not joint and
several.  No Seller shall be responsible
for the obligations of any other Seller under this Agreement.  No Seller shall be subject to claims, damages
or remedies attributable to any breach of this Agreement by another Seller.


ARTICLE II.


PURCHASE
PRICE.


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


(a)   Buyer shall, within one (1) Business Day (as
defined below) after full execution of this Agreement, deliver to First
American Title Insurance Company (in such capacity, the “Escrow Holder”)
the amount of **** of the ******** ***** in the form of a letter of credit (as
provided below) or by wire transfer of immediately available good funds to an
account designated by Escrow Holder (together with any interest earned thereon,
the “Initial Deposit”).  Provided
this Agreement is not terminated by the end of the ***** ******** **** (as
defined below), Buyer shall, within one (1) Business Day after the *****
******** ****, deposit with Escrow Holder an additional amount (together with
any interest earned thereon, the “Additional Deposit”) such that the sum of the
Initial Deposit and the Additional Deposit shall equal **** ******* **** of the
******** *****.  The Additional Deposit
shall be in the form of a letter of credit (as provided below) or by wire
transfer of immediately available good funds to an account designated by Escrow
Holder.  As used herein, the term “Deposit”
shall mean the Initial Deposit together with the Additional Deposit, from and
after the date that the Additional Deposit is required to be made.  The Deposit shall be allocated to the
Properties 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 be
refundable to Buyer if  Buyer terminates
this Agreement in accordance with the provisions of this Agreement which
expressly provide for the return of any portion of the Deposit to Buyer upon
such termination.  At the election of Buyer, the Deposit (or any
portion thereof) may be in the form of one or more irrevocable letters of
credit issued by a U.S. federally insured commercial bank approved by Sellers
for the benefit of Escrow Holder, each of which 


 


4

















 


shall have an initial term of at
least one year, the form and substance of which shall be acceptable to Sellers
and Escrow Holder.  If Buyer and Seller
cannot agree upon the issuer of a letter of credit or the form or substance of
such letter of credit, the Deposit shall be in cash.  If at any time during the term of the
Agreement, any letter of credit will expire within thirty (30) days, Buyer
shall deliver to Escrow Holder either a replacement letter of credit, or an
endorsement to the letter of credit, extending the expiration date of the
Letter 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 or
endorsement is not provided to Escrow Holder as required by the preceding
sentence within seven (7) Business Days of the expiration date, Escrow Holder
shall draw upon the letter of credit and the proceeds thereof shall be held by
Escrow Holder as the Deposit under this Agreement.  Escrow Holder shall draw upon and deliver the
proceeds of a letter of credit (or applicable portion thereof) to a Seller whenever
the terms of this Agreement require the Deposit or a portion thereof to be
delivered to such Seller, including following an event of default by Buyer that
has not been cured during any requisite cure period, and shall deliver such
letter of credit to Buyer whenever the terms of this Agreement require the
Deposit to be delivered to Buyer.  Each
letter of credit shall provide that it may be drawn upon by Escrow Holder upon
presentation, to issuer, of the original letter of credit together with a site
draft and a written statement duly executed and acknowledged by an authorized
representative of Escrow Holder, certifying that the amount drawn thereunder is
being drawn upon by Escrow Holder pursuant to the terms and conditions of this
Agreement; and


(b)   Buyer shall, on or before 11:00 a.m. (Eastern
Time) on the Closing Date, deliver to Escrow Holder, by bank wire transfer of
immediately available funds to an account designated by Escrow Holder no less
than three (3) Business Days prior to Closing, the Purchase Price less the
amount of any cash Deposit which is being paid to Seller at Closing.  At the Closing, Escrow Holder shall deliver
to Sellers the Purchase Price as adjusted to reflect prorations and other
adjustments made pursuant to Article VI. 
Except as otherwise provided in this Agreement, Escrow Holder shall hold
all amounts deposited by Buyer under this Section 2.1(b) for the benefit
of Buyer until delivered to Sellers at the Closing and Buyer shall be entitled
to a credit against the Purchase Price for all interest paid to Sellers that is
earned on such amounts from the date of the deposit until the Closing.


(c)   The Purchase Price is subject to adjustment
pursuant to the terms of the loan assumption provisions set forth on Exhibit
AA attached hereto and made a part hereof.


Section 2.2.            Investment.  The cash portion of the Deposit shall be
deposited by Escrow Holder into an interest bearing account approved by Buyer
and Seller and paid by Escrow Holder in accordance with the terms and
provisions of this Agreement.


Section 2.3.            Return
of Deposit.  Promptly after the
receipt by Escrow Holder of (a) notice of any demand by either party claiming
that it is entitled to the Deposit (or any portion thereof) or (b) any other
claim or the commencement of any action, suit or proceeding by either party,
Escrow Holder shall send a copy of such notice to the other 


 


5

















 


party and inform the other party of such claim; but
the failure by Escrow Holder to give such notice shall impose no liability on
the Escrow Holder so long as Escrow Holder does not release the Deposit.  If Escrow Holder shall receive written notice
from either party within five (5) Business Days after delivery of such notice
to the other party instructing Escrow Holder not to deliver the Deposit to the
requesting party or to otherwise hold the Deposit, or if for any reason there
is any dispute or uncertainty concerning any action to be taken hereunder,
Escrow Holder shall take no action and shall continue to hold the Deposit until
it has received instructions in writing concurred to by Sellers and Buyer or
until directed by final order or judgment of a court of competent jurisdiction,
whereupon Escrow Holder shall take such action in accordance with such
instructions or such order.  If no written
notice 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 no
response is received within five (5) Business Days thereafter, Escrow Holder
may deliver the Deposit to the party which made such demand.


Section 2.4.            Additional
Escrow Terms. 
(a) Sellers and Buyer hereby appoint Escrow Holder to act as the escrow
agent under the terms of this Agreement, and Escrow Holder has agreed to accept
such appointment under the terms of this Agreement.  The duties and responsibilities of Escrow
Holder shall be limited to those expressly set forth in this Agreement.  No implied duties of Escrow Holder shall be
read into this Agreement.


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


(c)   Escrow Holder shall be entitled to rely upon the
authenticity of any signature and the genuineness and/or validity of any
writing received by Escrow Holder pursuant to or otherwise relating to this
Agreement.  Escrow Holder shall not be
responsible or liable in any respect on account of the identity, authority or
rights of any person executing, depositing or delivering or purporting to
execute, this Agreement, or on account of or by reason of forgeries, false
representations, or the exercise of Escrow Holder’s discretion in any
particular manner, nor shall Escrow Holder be liable for any mistake of fact or
of law or any error of judgment; provided, however, that nothing
in this Agreement shall limit Escrow Holder’s liability for any claim arising
out of Escrow Holder’s negligence, willful misconduct or breach of this
Agreement.  Under no circumstances shall
Escrow Holder be liable for any general or consequential damages or damages
caused, in whole or in part, by the action or inaction of Sellers or Buyer
(collectively, the “Interested Parties”) or any of their respective
agents or employees.  Escrow Holder shall
not be liable for any damage, loss, liability, or delay caused by accident,
strike, fire, flood, war, riot, equipment breakdown, electrical or mechanical
failure, act of God or any cause which is beyond its reasonable control.


(d)   Escrow Holder shall not be responsible in any
manner whatsoever for:  (i) any failure
or inability of any Interested Party, or of any one else, to perform or comply
with any of the provisions of this Agreement or any other instrument or
agreement referred to herein; (ii) the failure to return all or any part of the
Deposit by any financial 


 


6

















 


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


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


(f)    Sellers and Buyer jointly and severally
agree to indemnify and hold harmless Escrow Holder from and against any and all
reasonable costs, claims, damages or expenses (including, without limitation,
reasonable attorneys’ fees and disbursements) howsoever occasioned that may be
incurred by Escrow Holder acting under this Agreement or to which Escrow Holder
may be put in connection with Escrow Holder acting under this Agreement, except
for 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 conflicting
demands or instructions with respect to any portion of the Deposit, Escrow
Holder shall have the right to interplead such portion of the Deposit with a
court of competent jurisdiction at the cost of Sellers and Buyer.


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


ARTICLE III.


TITLE
EXCEPTIONS; DUE DILIGENCE.


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


(a)   the standard pre-printed exclusions from coverage
contained in the ALTA form of owner’s title policies issued by a title company
selected by Buyer and reasonably acceptable to Sellers (in such capacity, the “Title
Company”) and those specific items identified on the marked form of
Schedule 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 the
Effective Date, the “Preliminary Title Reports”) prepared by the Title
Company for each Property, as listed on Schedule 3.1(a) hereto, subject
to the following:  (1) exception B-2(1)
is subject to the provisions of Section 3.3 of this Agreement; (2) exception
B-2(a) shall be a permitted exception only as to tenants or 


 


7

















 


licensees, as tenants or licensees only, under
unrecorded leases or licenses; (3) exception B-2(b) is a Permitted Exception
only 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 survey
exceptions taken by the Title Company in the owner’s policy;


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


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


(d)   Intentionally deleted;


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


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


(g)   all liens, encumbrances and governmental
obligations that either affect solely the property of a Tenant under a Lease or
are the obligation of a Tenant to discharge, cure or comply with pursuant to
the terms of its Lease, provided that this item (g) shall not be listed as a
permitted 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 Center
Portfolio, any current and future burdens and requirements, financial or
otherwise, arising from or in relation to any Transportation Management Plan
applicable with respect to the Property, as such Transportation Management Plan
may be from time to time amended (the “TMP”), provided that this item (j) shall
not be listed as a permitted exception in the Special Warranty Deed, except to
the extent appearing on the Preliminary Title Reports.


 


8






 













 


Section 3.2.            Title
Reports.  Buyer acknowledges that it
has received copies of, and, subject to Section 7.2, approves all
documents relating to Permitted Encumbrances referred to in the Preliminary
Title Reports and all other documents evidencing or relating to matters
reflected in the Preliminary Title Reports. 
Buyer will purchase from the Title Company an owner’s title insurance
policy for each Individual Property insuring Buyer in the amount of the
Purchase Price allocable to such Property (“Title Policies”).  In addition, Buyer may elect to purchase
customary endorsements to the Title Policies, provided, however, the
availability of any endorsements shall not be a condition to the Closing or a
basis for a delay or extension of the Closing. 
Buyer acknowledges and agrees that, except for the warranty in the
Special Warranty Deeds and other Seller’s Documents delivered to Buyer at
Closing, and any express warranty in this Agreement, Sellers make no
representation or warranty regarding the condition of title to the
Properties.  Notwithstanding anything to
the contrary set forth herein, attached hereto as Exhibit GG is a list
of title questions raised by Buyer (the “Title Questions”).  Buyer and Sellers acknowledge and agree that
such Title Questions are neither deemed to be, nor precluded from qualifying
as, Title Objections pursuant to Section 3.3 below.


Section
3.3.            Title Objections.   If any revision or update of any Preliminary
Title Report or Survey discloses exceptions to title other than Permitted Encumbrances
shown in the Preliminary Title Report, or Survey received during the Study
Period, that would cause title to an Individual Property to be uninsurable or
would render title unmarketable or constitute a monetary lien or judgment on a
Property, or encumbers a Property materially and adversely (the foregoing,
collectively, the “Title Objections”), Buyer shall so notify the Seller
of the particular Property to which such Title Objection relates (“Buyer’s
Objection Notice”): (a) on or before the fifth (5th) Business
Day after receipt of any revision or update if received by Buyer on or before
the fifth (5th) Business Day before the Closing Date, (b) on or
before one (1) Business Day prior to the Closing Date if received by Buyer less
than five (5) Business Days before the Closing Date (but prior to the Closing
Date) or (c) on the Closing Date if Buyer becomes aware of same on the Closing
Date (each such date, the “Objection Cut Off Date”), time being of the
essence.  Such Seller shall have until
the Closing Date (and may adjourn the Closing for such reasonable periods) to
have 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 3.4
below); provided, however, nothing herein shall require a Seller
to (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 each
Seller shall be obligated to remove the following “Mandatory Cure Items”:
(A) the mortgages or deeds of trust identified on the Preliminary Title Report
that are not assumed by Buyer pursuant to Exhibit AA attached hereto,
(B) any and all liens voluntarily placed by a Seller against its Property after
the date of the applicable Preliminary Title Report in violation of this
Agreement, (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 within
five (5) Business Days of such Seller’s receipt of Buyer’s Objection Notice
whether such Seller elects to endeavor to Remedy all or any of the Title
Objections raised in Buyer’s Objection Notice. 
Other than the exceptions to 


 


 


9

















 


title which each Seller is required pursuant to this Section
3.3 to Remedy, any exception to title which Buyer does not raise pursuant
to the terms hereof on or before the Objection Cut Off Date shall be deemed a
Permitted 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 Title
Objection, or (y) having elected to Remedy a Title Objection for any reason
whatsoever 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 after
a Seller fails to elect to Remedy a Title Objection or, with respect to any
Title Objection that a Seller fails to Remedy after having elected to do so, on
the Closing Date (as the same may be adjourned) either (1) terminate this
Agreement with respect to such Individual Property to which such Title
Objection relates and receive a return of the portion of the Deposit relating
to such Individual Property as shown on Schedule 2.1(a) (and the applicable
Seller and Buyer shall jointly instruct Escrow Holder to promptly return such
portion of the Deposit to Buyer) and such Seller shall not have any further
liability or obligation to Buyer hereunder nor shall Buyer have any further
liability or obligation to such Seller hereunder with respect to that
Individual Property, except for such obligations as are specifically stated in
this Agreement to survive the termination of this Agreement, or (2) elect to
accept 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 be
deemed a Permitted Encumbrance; if Buyer fails to timely make either such
election, Buyer shall be deemed to have elected option (1).


Section 3.4.            Removal
of Title Objections.  Notwithstanding
anything herein to the contrary, Sellers shall be deemed to have removed or
corrected each exception that is not a Permitted Encumbrance if, in Sellers’
discretion and at Sellers’ sole cost and expense, Sellers either (a) take such
actions as are necessary to eliminate (of record or otherwise, as appropriate)
such Title Objection, (b) cause the Title Company to insure over or remove such
exception that is not a Permitted Encumbrance as an exception to title in the
Title Policy or affirmatively insure against the same (and confirmation that
the Title Company will issue subsequent title policies on the Property with the
same affirmative insurance), in each case without any additional cost to Buyer, whether
such 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 amount
needed to fully discharge any such exception to the Title Company with
instructions for the Title Company to apply such funds to fully discharge any such exception, and (ii) if required by the
Title Company, such instruments, in recordable form, as are necessary to enable
the Title Company to discharge such exception of record.  Buyer shall have no right to direct the Title
Company to apply any portion of the Purchase Price to cure a Title Objection
without Sellers’ prior written approval.


Section
3.5.            Deliveries by Sellers.  Prior to the Effective Date, Buyer received
an 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 an
electronic war room (“War Room”) on its website where certain information
relating to the Property has been posted. Data in this War Room includes the
Leases, and current environmental reports, Property Evaluation Reports listed
on Exhibit H, Argus 


 


 


10

















 


modeled building-by-building cash flow projections,
Pro Forma Development Budgets, updated title reports, and updated surveys.  The due diligence materials delivered (or
made available) by Seller or its agent, including, without limitation, those
due diligence materials found in the War Room or Offering Package (together
with any other information provided to Buyer by the Sellers in accordance with
this 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 cooperate
with Buyer and shall use commercially reasonable efforts to make available
other specific information relating to such Seller’s Property (other than Protected
Information) that Buyer may reasonably request to the extent in such Seller’s
or its agent’s possession or control and to the extent readily available.  Notwithstanding the foregoing, it shall
not  in and of itself be deemed a default
by Sellers under this Agreement if Sellers do not deliver or make available any
due diligence material to Buyer, nor will the same constitute a failure of a
condition to Closing unless and to the extent expressly provided to the
contrary in this Agreement.  As used
herein, the term “Protected Information” means any one or more of the
following: any internal valuation records, personnel records, all internal
communications, including projections and internal memoranda or materials,
budgets, reports, strategic plans, internal analyses, computer software,
submissions relating to obtaining internal approvals, information that is
considered privileged, confidential or proprietary by Seller and information
protected by the attorney-client privilege or work product doctrine.


Section 3.6.            No
Representations Regarding Due Diligence Materials.  Except as expressly set forth in Article
VIII, by making available to Buyer, or furnishing Buyer with the Due
Diligence Materials, Sellers do not make any warranty or representation with
respect to the accuracy, completeness, conclusions or statements expressed in
the Due Diligence Materials.  Sellers
shall make available to Buyer, or furnish Buyer with, any material updates of
the Due Diligence Materials upon receipt by Sellers, but failure to deliver or
make available the same shall not in and of itself constitute a default
hereunder, or otherwise constitute a failure of a condition to Closing unless
and to the extent expressly provided to the contrary in this Agreement.  Buyer hereby waives any and all claims
against Sellers or any party that prepared or furnished the Due Diligence
Materials arising out of any inaccuracy, incompleteness, conclusions or
statements expressed in the Due Diligence Materials furnished or made available
by Sellers or any other party (provided the foregoing shall not limit claims
Buyer may have against Sellers for misrepresentations or breaches of warranties
expressly set forth in Article VIII of this Agreement).


Section 3.7.            Access
to the Property.


(a)   Provided
Buyer has delivered evidence of Buyer’s Liability Insurance (as hereinafter
defined) to Sellers and Sellers have approved the same (which approval shall
not be unreasonably withheld, conditioned or delayed), Sellers will allow Buyer
and its employees, agents, prospective lenders, attorneys, contractors and
representatives (collectively, “Buyer Representatives”), prior to the Closing Date at
reasonable times during normal business hours upon two (2) Business Days’ prior
notice (but subject to the rights of Tenants under their Leases), to enter upon
the Properties (i) for the purpose of performing surveys, physical inspections,
engineering studies and environmental 


 


 


11

















 


assessments which
Buyer may reasonably desire (“Investigations”).  Buyer shall be solely responsible for all of
the costs and expenses of any Investigations and shall conduct such
Investigations in good faith and with due diligence.  Notwithstanding the foregoing, without Seller’s
prior approval, which shall not be unreasonably withheld, conditioned or
delayed, Buyer shall not be permitted to conduct any Investigations which
involve invasive or destructive testing of the Properties (or any portion
thereof and including, without limitation, any boring of the Properties in
connection with an environmental audit or otherwise) or any alteration of the
Properties (or any portion thereof).  In
the event Sellers do provide their consent to any such invasive testing or alteration,
Buyer shall promptly restore the applicable Property to its condition
immediately prior to such test or alteration. 
Buyer shall provide Sellers with evidence that applicable contractors
have named Sellers and The Mark Winkler Company (the “Manager”) as
additional insureds in their respective insurance policies, which insurance
policies must be approved by Sellers in their reasonable discretion and
maintained through the Closing Date. 
Buyer shall (x) fully comply with all laws, rules and regulations
applicable to Properties and/or the Investigations and all other activities
undertaken 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 under
the Leases or other occupants of the Properties (or any of their respective
agents, representatives, guests, invitees, contractors, or employees), and (z)
permit Sellers to have a representative present during all Investigations
undertaken hereunder.  With at least two
(2) Business Days prior written notice from Buyer, Sellers shall arrange for
Buyer to conduct tenant interviews, provided such Tenants are agreeable to such
interview, and Sellers shall have the right to have a representative accompany
Buyer on such interviews.  Buyer may not,
however, request any governmental investigations or inspections of the
Properties; provided, however, nothing contained herein shall prevent Buyer
from meeting with governmental agencies to discuss and confirm the zoning of
the Properties.  Buyer hereby agrees to
indemnify, defend and hold harmless Sellers, Manager and each other Released
Party (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 other
Released Party and arising out of or in connection with (I) Buyer and/or Buyer’s
representatives entry upon the Properties, (II) any Investigations and other
activities conducted on the Properties by Buyer or Buyer’s representatives (but
nothing contained herein shall impose any liability on Buyer solely as a result
of Buyer’s mere discovery of a condition of the Property, including, but not
limited to, environmental conditions), and (III) any liens or encumbrances
filed or recorded against any Property as a consequence of any and all
Investigations and other activities undertaken by Buyer or Buyer’s
representatives.  Buyer shall procure,
prior to entry upon the Properties, and maintain for at least one (1) year
after the Effective Date commercial general liability insurance covering Buyer,
Sellers,  Manager and the Properties for
actions taken by Buyer or Buyer’s representatives, contractors, agents or
invitees on an occurrence, as opposed to claims made, basis and providing for a
combined single limit for bodily injury and property damage of not less than
**** ******* *** ****** ******* *************** per occurrence issued by
companies and in form and substance reasonably satisfactory to Sellers (“Buyer’s
Liability Insurance”), which insurance requirements may be satisfied with a
combination of  a primary policy and an
excess policy, provided the same meet the requirements set forth in this
Section 3.7(a).  


 


 


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All of Buyer’s General Liability Insurance shall be
primary and not contributing with any insurance maintained by Sellers or
Manager to the extent of Buyer’s indemnity contained in this Section 3.7.  Sellers and Manager shall be named as
additional insureds under all of Buyer’s General Liability Insurance and
Sellers and Manager shall be given written notice at least thirty (30) days
prior to cancellation, material amendment or reduction of any such
coverage.  The provisions of this Section
3.7 shall not in any way be deemed to amend the provisions of Article
XII.  The indemnity set forth in this
Section 3.7 shall survive the Closing and/or the termination of this
Agreement until the Survival Date set forth in Section 24.9(a) hereof.


(b)   Except as otherwise expressly permitted by
Section 3.7(a) hereof, Buyer and/or Buyer’s representatives shall not
communicate or otherwise interfere with the Tenants or with the normal conduct
by Sellers or the Manager of their business at the Properties.


Section 3.8.            Return
of Information Upon Termination.  If
this Agreement is terminated by either party as to one or more Individual
Properties pursuant to the terms of this Agreement, then upon Sellers’ request,
Buyer shall return to Sellers all Due Diligence Materials relating to the
Individual Property or Properties as to which this Agreement has been
terminated that were delivered to Buyer and/or Buyer’s general partners, and
their principals, officers, employees, attorneys  or other persons acting for or on behalf of
Buyer actively involved with the transactions contemplated by this Agreement
(collectively, the “Receiving Party Representatives”) but expressly
excluding any and all reports studies, data, analysis and surveys that Buyer and/or
the Receiving Party Representatives discover, commission or generate in
connection with or resulting from their due diligence activities on (or
relating to) the Properties.  All of the
Due Diligence Materials shall be maintained by Buyer in confidence, and Buyer
acknowledges and agrees that the Due Diligence Materials are subject to the
confidentiality 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 Party
Representatives’ breach of its obligations under this Section 3.8.  The obligations of Buyer set forth in this
Section 3.8 shall survive the Closing or the termination of this Agreement until
the Survival Date set forth in Section 24.9 below.


Section 3.9.            Study
Period.


(a)   During the period (the “Study
Period”) that commenced on ******* **, **** (the “***** ******
************ ****”), and ends on ******* **, ****, at **** **** *******
**** (the “***** ******** ****”), the Buyer will be afforded the
opportunity to confirm or examine whatever facts (“Facts”), as distinct
from judgments (“Judgments”), in the Offering Package and the Due
Diligence Materials and this Agreement it chooses to investigate.  In no event shall “Facts” include (i)
any pro forma information, projections, forecasts, or opinions regarding
present or future market conditions, (ii) any change, or potential change, in
the market conditions which influence the Properties including, without
limitation, the market rents for buildings in the northern Virginia and
Washington D.C. metropolitan office market, the supply and demand forces
affecting the northern Virginia and Washington D.C. metropolitan office market,
(iii) the


 


 


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Properties’ competitive position relative to their
existing and new development competitors, occupancy/vacancy rates, collection
loss allowances, if any, and projected growth rates, if any, in rents and expenses
and levels of tenant packages (including tenants work and market driven leasing
fees), (iv) the impact of the consummation of this transaction on the assessed
value of the Properties, (v) the availability or limited availability or cost
of obtaining terrorism and  other
insurance, (vi) other income sources and amounts including, without limitation,
overtime HVAC charges from the Properties, (vii) parking revenues and expense
estimates, (viii) the applicability and amount of any Commonwealth of Virginia franchise
tax, or (ix) whether any Building can be re-measured to include more net
rentable area.


(b)   Subject to Section 3.9(c) below, Buyer
may elect to terminate this Agreement with respect to an Individual Property by
written notice received by Seller on or before the ***** ******** **** (the “Termination
Notice”) if and only if Buyer determines during the Study Period that (i)
it has been unable to resolve any Title Questions listed on Exhibit GG
to Buyer’s reasonable satisfaction (regardless of whether such Title Questions
constitute a Material Difference), (ii) Buyer has not been able to conduct
tenant interviews with at least eight (8) of the eleven (11) Tenants listed on
Schedule 3.9(b) attached hereto (regardless of whether the failure of Buyer to
conduct any such interviews constitutes a Material Difference), or (iii) there
are material adverse inconsistencies with respect to an Individual Property
between (A) the Facts set forth in the Offering Package, the Due Diligence
Materials and this Agreement, and those Facts known by Buyer on the Effective
Date, and (B) Facts discovered by Buyer during the Study Period which
inconsistencies, if known by Buyer on the Effective Date, would have caused
Buyer to materially reduce the aggregate Purchase Price agreed to by Buyer
under this Agreement for the Portfolio in which the Individual Property is
located (each such material inconsistency being referred to herein as a “Material
Difference”).  Buyer’s Termination
Notice shall set forth a detailed, full and complete description of such
inconsistencies (“Buyer’s Objections”).


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


                                                (i) to
accept Buyer’s termination of the Agreement with respect to the applicable
Individual Property that is the subject of Buyer’s Objections or to terminate
this Agreement in its entirety with respect to the Portfolio in which the
Individual Property is located;


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


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


 


 


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(d)           In the event Seller disputes Buyer’s
assertion that there is a Material Difference, or if Buyer disputes whether
Seller has effected a reasonable cure of Buyer’s Objections (either by
crediting the Purchase Price or otherwise) (each, a “Dispute”), then
such party shall provide written notice to the other party that it is
commencing the resolution mechanism described in this Section 3.9(d), and the
operation of this Section 3.9(d) shall be the sole remedy of such party
with respect to such Dispute. 
Notwithstanding the foregoing, Buyer’s posting of the Additional Deposit
shall be a condition precedent to Buyer’s right to commence the dispute
resolution mechanism set forth in this Section 3.9(d).


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


                                (ii)           In the event that the Arbitrator
determines that there is a Material Difference in Facts, or that Seller has not
reasonably cured a Buyer Objection, the Arbitrator shall determine whether a
credit against the Purchase Price, or another cure proposed by Seller, is a
reasonable and satisfactory cure as contemplated in the second sentence of Section
3.9(c)(iii) above, provided that the Arbitrator shall take into
consideration Buyer’s legal status as a real estate investment trust (“REIT”)
and the regulations governing REITs in determining whether a cure is reasonable
and satisfactory.  Any such proposed
credit or cure shall be binding on the parties unless the amount of such
credit, or the amount of such cure exceeds one-half of one percent (0.5%) of
the Purchase Price allocated to the Individual Property to which such credit or
cure relates, in which event Seller may notify Buyer within ten (10) Business
Days following receipt of the Arbitrator’s determination of its election to
terminate this Agreement with respect to the applicable Individual Property
only. If the Arbitrator determines that no credit against the Purchase Price or
other cure proposed by Seller would constitute a reasonable and satisfactory
cure, then the applicable portion of the Deposit shall be returned to Buyer and
all rights, obligations and liabilities of the parties hereunder shall be
released and discharged with respect to the applicable Individual Property
only, except that Buyer’s obligation to comply with Buyer’s indemnity and
repair obligations in Section 3.7(a) and the confidentiality requirements
of Section 3.8 and any other obligations of Buyer hereunder that
expressly survive Closing shall survive termination (collectively, the “Buyer’s
Surviving Obligations”).


 


 


15

















 


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


                                (iv)          Determinations made by the Arbitrator
pursuant to this Section 3.9(d) shall be binding between the parties.  In the event that either party refuses to
abide by the decision of the Arbitrator, or fails to cooperate or timely
respond 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 either
party in connection with or as a result of this resolution mechanism
hereunder.  No party shall sue, join,
subpoena, or in any manner otherwise involve the Arbitrator in any action or
proceeding.  The Closing Date for any
Portfolio with Property that is subject to this Arbitration provision shall be
extended to allow for all time periods to run fully.


ARTICLE IV.



ASSESSMENTS




Section 4.1.            Assessments.  If, on the Closing Date, the Properties, or
any part thereof, shall be or shall have been affected by an assessment or
assessments which are or may be payable in installments, then assessments that
were due and payable during the period prior to the Closing Date shall be paid
by Sellers and all assessments relating to the period on or after the Closing
Date shall be paid by Buyer.  Any such
assessment (less the amount thereof which any Tenant is obligated to pay
directly to the assessing authority and for which Seller is not collecting
monthly installments from such Tenant under the express terms of such Tenant’s
Lease) shall be prorated as of 11:59 p.m. 
on the day preceding the Closing Date (the “Proration Time”) and
the 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 payment
required pursuant to clause (b) of Section 2.1 above.


Section 4.2.            Assessments
Survival Date.  The provisions of
this Article IV shall survive the Closing until the Survival Date set forth in
Section 24.9(a).


ARTICLE V.



EXPENSES




Section
5.1.            Expenses.  Each party shall pay its own costs and
expenses in connection with the transactions contemplated hereby, including the
fees and expenses of its attorneys, accountants, consultants and
engineers.  In addition, Buyer shall pay
(a) all of the escrow fees, if any, (b) all expenses of or related to the
issuance of owner’s title insurance policies and any endorsements to Buyer’s
policies of title insurance, (c) all expenses of obtaining, if applicable, any
lender’s title insurance policy and any endorsements to such policy, (d) all
city and state charges required to be paid to record documents in the official
records of the Commonwealth of Virginia (the “Official Records”), (e)
the cost of any updates to the Surveys initiated by Buyer, (f) one hundred
percent (100%) of all state and local taxes and recordation fees that may be
due in connection with the sale of the Properties (including with respect to
Properties in Virginia 


 


 


16

















 


the grantor’s tax imposed pursuant to Section 58.1-802
of the Virginia Code), (g) all due diligence expenses and charges for any
engineering reports or appraisals commissioned by Buyer, and (h) all costs
relating to any mortgage financing arranged by Buyer and any applicable
assumption or other similar fees in the event that any mortgage is to be
assumed; it being acknowledged and agreed by Buyer that Buyer’s obligations
under this Agreement are not subject to, or contingent upon, the availability
and/or consummation of financing.  All
other closing costs that are customarily paid in a commercial real estate
purchase and sale transaction in the Commonwealth of Virginia or in connection
with Buyer’s financing (but exclusive of costs incurred in connection with the
pay-off or release of Sellers’ financing, which shall be paid by Seller) shall
be borne by Buyer.


Section 5.2.            Survival.  The provisions of this Article V shall
survive the Closing or termination of this Agreement until the Survival Date
set forth in Section 24.9(a).


ARTICLE VI. 



APPORTIONMENTS




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


(a)   Rents, fees and other sums
and charges (collectively, “Rents”) paid or payable by Tenants,
including any advance payment of Rent, shall be adjusted and prorated as of the
Proration Time but shall be paid on an as and when collected basis.  Any amount collected by Buyer or any Seller
after the Closing Date, from Tenants who owe Rents for periods prior to the
Closing Date, shall be applied (i) first, ** ******* ** ***** *** *** ***** **
***** *** ******* **** ****** (the “******* *****”) (********* *****
**** ** ******* ** ************ *******), (ii) second, ** ******* ** ***** **
******* ** ** *** ******* **** ** *** ****** **** ***** ** ******* *** *** ****
**** ** **** **** *** **** ******* ** ********** ** **** ***** ** *******
(********* ** *** ****** ** *************) *** ********* ** * ****** ** *****
** * ********** ********** ****, (iii) third, ** ******* ** ***** **** *** ***
*** ****** ********* *** ******* *****, and 
(iv) fourth, ** ******* ** ***** ** ******* *** ********* *******
******** ** ****** **** *****.  If any
Tenant specifies that any payment shall be applied to any delinquent rent, then
the payment will be applied as directed by such Tenant.  Each such amount, less any costs of
collection (including reasonable attorneys’ fees) reasonably allocable thereto,
shall be adjusted and prorated as provided above, and the party who receives
such amount shall promptly pay over to the other party the portion thereof to
which it is so entitled.  With respect to
delinquent amounts that have not been paid to the applicable Seller prior to
the Closing Date, for a period of at least six (6) months following the Closing
Date Buyer shall use commercially reasonable efforts (but shall not be required
to undertake litigation or dispossessory actions), including, without
limitation, sending written notices to Tenants of any arrearages, to collect
such amounts from Tenants who owe Rents for periods prior to the Closing Date.  Sellers represent that as of the Effective
Date no percentage rents are 


 


 


17

















 


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


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


If
either party shall have collected or shall have caused to be collected more
than its share of such Expense Contributions attributable to 2006, as allocated
pursuant to this Section 6.1(b), such party shall pay over to the other
the amount of such excess as promptly as possible after such sums have been
ascertained and paid.  In the event a
Seller has collected less than its share of such Expense Contributions
applicable to the period in 2006 prior to the Closing Date, such Seller shall
receive a credit at Closing for the difference between the amount it actually
collected and the amount it was entitled to collect, and Buyer shall collect
such remaining amount from the Tenants. 
The principles of Section 6.1(a) shall also apply to
delinquencies in such Expense Contributions when collected; provided, however,
that notwithstanding anything to the contrary contained herein, until the
Reconciliation Date, Buyer shall be obligated to use commercially reasonable
efforts (but Buyer shall not be required to undertake litigation or dispossess
any such Tenants), including, without limitation, sending written notices to
Tenants of any arrearages, to collect all amounts payable by Tenants pursuant
to this Section 6.1(b).  Provided
Buyer does not elect to sue a Tenant for such delinquencies, each Seller shall
have the right to sue Tenants to collect such delinquencies, provided no action
shall be taken to dispossess any such Tenant, and the expenses incurred in
connection with such suit, and amounts collected, shall be apportioned as set
forth in Section 6.1(a) above; provided, however, Buyer shall not be required
to pay any expenses of any Seller in excess of Buyer’s share of rents
collected.  If any Tenant is entitled to
refunds of any such rents or charges, such refunds shall be allocated between
and paid by the applicable Seller and Buyer in accordance with the foregoing
principles.


 


 


18

















 


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


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


(2)   All real property taxes shall be adjusted by
the parties as of the Proration Time on the basis of the fiscal period for
which assessed.  If the Closing shall
occur before the tax rate is fixed, the apportionment of taxes shall be based
on the tax rate for the preceding period applied to the latest assessed
valuation and, once the tax rate is fixed after the Closing, the parties shall
adjust the real property tax apportionment accordingly.  Promptly after the date such tax rate is
fixed, the party that shall have paid less than its share of the real property
taxes shall promptly pay over to the other party the amount of such deficit;


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


(4)   Fuel used in heating the Buildings (inclusive
of fuel used for backup generators for which Seller is responsible) shall be
adjusted as of the Proration Time on the basis of the written estimate by the
applicable Seller’s fuel supplier of the quantity on or about the day preceding
the 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 of
revenue or expense not otherwise specifically provided for herein which are
customarily prorated between a buyer and seller of real property shall be
prorated as of the Proration Time in accordance with the custom 


 


 


19

















 


governing such proration.  All advance payments to occupy space or use
facilities within the Buildings shall be prorated as of the Proration Time by
allocating each such payment ratably based on the number of days in the period
to which the same apply; and


(7)   Expenses with respect to the parking
facilities at the Properties, and charges and revenues(s) (i) with respect to
monthly 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 interim
basis based on the assumption that the same shall be equal to the amount of the
daily average of charges and revenues paid for daily fees for the month
immediately preceding the Closing and shall be re-adjusted as promptly as
possible after the Closing to accurately reflect the daily charges and revenues
paid for each day of the month in which the Closing occurs.


(8)   In addition to the Purchase Price, Buyer
shall 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.            Goods
and Services.  Except as to
improvements required to be made by the landlord under the Leases pursuant to Section
6.3 below and except with respect to items otherwise covered by this
Agreement, with respect to each Property:


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


(b)   Unless otherwise provided in Section 6.1
above, as promptly as possible after the Closing Date, the parties shall adjust
the cost of all goods delivered to and services rendered at or in connection
with each Property by allocating to the applicable Seller that portion of the
total cost of such goods and services which reflect the portion of the goods
and services which is applicable to the period preceding the Closing Date and
allocating the balance to Buyer.  If
either party shall have paid less than its share of the cost of such goods and
services as so allocated, such party shall promptly pay over to the other the
amount of such deficit.


Section 6.3.            Leasing
Costs.


(a)   As of the Closing Date, all
leasing commissions, if any, for the current or initial lease terms for Leases
entered into prior to the Effective Date hereof and for renewals, extensions or
expansions of Leases properly exercised by Tenants as of the Effective Date and
the cost of any improvements and tenant allowances required to be made by the
landlord in the space to which any such Lease relates, shall have been paid by
Sellers (or credited to Buyer if not due and payable as of Closing), including
those costs and allowances set forth on Exhibit  J 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 costs
which are the responsibility of Seller pursuant to the first sentence of this
Section 6.3(a), shall be collectively referred to herein as “Sellers
Outstanding Lease Obligations”.  All
leasing commissions and tenant improvement costs and allowances for any
renewals or extensions of the terms of Leases entered into prior to the
Effective Date but which have not yet been exercised by the Effective Date
(including, without limitation, any commissions payable in connection with a
Tenant’s waiver of or failure to exercise a cancellation right) or any
expansions of the premises covered thereby but which have not been exercised by
the Effective Date (including those set forth in the column labeled “Buyers
Obligations” on Exhibit J attached hereto), shall be paid by Buyer,
which obligations are being expressly assumed by Buyer pursuant to the terms of
this Agreement.  Subject to Sections
6.3(c) and (d) herein, Buyer shall pay its allocable share of leasing commissions
payable in connection with any Leases (or extensions) entered into after the
Effective Date in accordance with the terms of this Agreement, the value of any
free rent periods, and the cost of any improvements and tenant allowances
required 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) other
space 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, fees
and expenses shall be prorated on the Closing Date based on the portion of the
term of such Leases for which rent is being paid before and after the Closing
Date.  At the Closing, Buyer shall receive
a credit (the “Sellers Outstanding Lease Obligation Credit”) against the
Purchase Price in an amount equal to the difference between (i) Sellers
Outstanding Lease Obligations, minus (ii) the amounts actually paid on account
of Sellers Outstanding Lease Obligations between the Effective Date and the
Closing Date, as documented by Sellers with paid invoices or other reasonably
satisfactory evidence of such payments. 
Notwithstanding anything set forth in this Agreement to the contrary,
following Closing there shall be no readjustment of the Sellers Outstanding
Lease Obligation Credit; provided, however, that in the event that amounts have
been paid prior to Closing by or on behalf of Sellers with respect to Sellers
Outstanding Lease Obligations for which Sellers would not have provided a
credit to Buyer at Closing but for a missing receipt or other reasonable
evidence of payment required hereunder, then if, subsequent to the Closing,
such receipt or other reasonable evidence of payment is provided, Buyer shall
promptly pay to Sellers the amount relating thereto.  Notwithstanding anything set forth in this
Agreement to the contrary, (i) all obligations with respect to Sellers
Outstanding Lease Obligations shall be expressly assumed by Buyer from and
after the Closing Date, and (ii) except with respect to Sellers Outstanding
Lease Obligations Credit, Buyer shall not be entitled to any credit hereunder
for any Outstanding Lease Obligations.


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


 


 


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


(c)   Attached hereto as Exhibit L is a
description of the leases that Sellers have identified as likely to be executed
and under which the tenants are expected to commence paying rent during
calendar year 2006 (each such lease, “Out-for-Signature Lease”),
provided that Sellers shall not be deemed to have made any representation or
warranty as to the likelihood of execution of the Out-for-Signature Leases by
such tenants.  In addition, Exhibit L
sets forth the amounts of leasing commissions and tenant improvement costs and
allowances with respect to the Out-for-Signature Leases (the “Out-for-Signature
Leasing Costs”) for which Sellers shall be responsible.  At Closing, Buyer shall receive a credit
against the Purchase Price in an amount equal to (i) with respect to Exhibit
L, Section IV, the difference between (x) the amount of rent that would
have been due from such tenant from and after the Closing Date through December
31, 2006 (assuming such Out-for-Signature Leases were in effect during such
period and tenant was paying rent thereunder) minus (y) the amount of rent
which would be due in calendar year 2006 from such tenant from and after the “Projected
OFS Lease Start Date” under such Out-for-Signature Lease as set forth on Exhibit
L hereto, plus (ii) with respect to Exhibit L Section II, the
difference between (x) the amount of rent that would have been due from such
tenant from and after the Closing Date through December 31, 2006 (assuming such
Out-for-Signature Lease renewal was in effect during such period and tenant was
paying rent thereunder) minus (y) the amount of rent which would have been due from
such tenant from and after the Closing Date through December 31, 2006 (assuming
the Out-for-Signature Lease renewal is effective on the “Projected OFS Lease
Start Date” under such Out-for-Signature Lease as set forth on Exhibit L
hereto and tenant was paying rent thereunder), plus (iii) the unfunded
Out-for-Signature Leasing Costs (as listed on Exhibit L, Sections I and
III), if any.


(d)   Attached hereto as Exhibit M is a
description of the vacant or assumed to be vacant leaseable space at the
Property and the amounts of leasing commissions and tenant improvement costs
and allowances (the “Vacancy Leasing  Costs”) for which Sellers
shall be responsible.  On the Closing
Date, Buyer shall be entitled to receive a credit against the Purchase Price in
an amount equal to the unfunded Vacancy Leasing Costs, if any.


(e)   Attached hereto as Exhibit Q is a
description of the additional credits to which Buyer shall be entitled at
Closing (the “Buyer’s Additional Credits”) to the extent Seller has not
previously paid these items prior to Closing.


(f)    Notwithstanding anything to
the contrary contained herein, in no event shall Buyer be entitled to receive
an 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 credit
to which Buyer is entitled pursuant to this Section 6.3 shall be reduced by any
amounts applied by Sellers to the expenses set forth in this Section 6.3.  The calculation of the amount of the forgoing
maximum 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 (as
illustrated on Exhibits K, Exhibit L and Exhibit M
hereby).  At the Closing, the 


 


 


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calculation of the actual credit due pursuant Sections
6.3(b), (c) and (d) hereof shall be made based on such formulas and using the
actual Closing Date hereunder.  If the
Closing Date shall fall on a date other than the first of any month, the rent
for such month shall be prorated for the purposes of determining the actual
credit.  At Closing, Seller and Purchaser
shall enter into an amendment to this Agreement that reflects the actual
Purchase 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 of
apportionments 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 certain
items hereunder (including, without limitation, water and sewer charges and
rents) by the Closing Date, such items shall be apportioned, and paid, as soon
as practicable after the Closing Date.


Section 6.5.            Monthly
Statements.  So long as amounts
payable by Tenants for periods prior to the Closing Date remain outstanding, or
any other amount that is to be apportioned between Buyer and Sellers pursuant
to this Article VI remains subject to apportionment or adjustment, Buyer
will provide Sellers with a monthly report of payments received and amounts
paid by Buyer with respect to the applicable Tenants and categories of revenue
and expense.  Buyer shall not modify or
amend any Lease in a manner that will decrease the amount payable to Sellers
pursuant to this Article VI.


Section 6.6.            Security
Deposits.  All refundable Security
Deposits under Leases not theretofore applied on or prior to the Closing Date
by 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 such
Tenants shall be delivered by Sellers to Buyer or Sellers may elect to give
Buyer a credit against the Purchase Price in the amount of such Security
Deposits.  Sellers shall not apply
Security Deposits for any Tenants that are in default of their Leases from and
after the Effective Date until Closing, without the consent of Buyer, which
consent shall not be unreasonably withheld, conditioned or delayed.  Sellers shall reasonably cooperate, at no
cost to Seller, with Buyer’s efforts to cause any Security Deposits in the form
of a letter of credit to be assigned to Buyer at Closing, including executing
any transfer requests.  Prior to the
transfer of any such letters of credit to Buyer, Sellers shall cooperate with
Buyer and take any action required by Buyer related to the letters of credit
(including executing any draw requests), provided that Buyer shall indemnify
Sellers against any damages Sellers might suffer as a result of following Buyer’s
instructions.


Section
6.7.            Capital Expenses.  Except for the capital expenses for the
projects identified on Exhibit N attached hereto, if any, all capital
expenses incurred by Sellers approved by Buyer in accordance with Article XV
hereof with respect to the Properties between the Effective Date and the
Closing Date that are to be depreciated under generally accepted accounting
principles over a useful life which extends beyond the Closing Date shall be
apportioned between Buyer and Sellers based upon the portion of the useful life
of such assets as so determined prior to and from and after the Closing
Date.  To the extent Sellers recover any
such capital expenditures from Tenants prior to 


 


 


23

















 


the Closing Date, the same shall be apportioned in the
same manner as set forth above.  At
Closing, Sellers shall provide Buyer with all lien waivers received prior to
Closing with respect to work paid for prior to Closing for the projects
described 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 in
accordance with the terms hereof.


Section 6.9.            Survival.  The provisions of this Article VI
shall survive the Closing until the Survival Date set forth in Section
24.9(a) hereof.


ARTICLE VII.



CONDITIONS TO CLOSING AND THE CLOSING.




Section 7.1.            Conditions
to Sellers’ Obligation to Sell.  The
obligations of Sellers to consummate the transaction contemplated hereunder to
occur on the Closing Date are each conditioned on the fulfillment of each of
the following on and as of the Closing Date as the same may be extended
pursuant to Section 7.3 below, provided that each Seller, in its sole
discretion, may waive any such condition as to its particular Property:


(a)   The delivery to Sellers of the Purchase Price
prorated as provided herein plus the payment by Buyer to the appropriate
parties of any closing costs to be paid by Buyer hereunder; and


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


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


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


 


 


24

















 


to close as the result of a Seller default under the
4807 Agreement which has not been cured within applicable notice and cure
periods.


Section 7.2.            Conditions
to Buyer’s Obligation to Purchase. 
The obligations of Buyer to consummate the transaction contemplated
hereunder on a Portfolio by Portfolio basis are conditioned on the fulfillment
of each of the following on and as of the Closing Date with respect to such
Portfolio, provided that Buyer, in its sole discretion, may waive such
condition:


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


(b)   The delivery by Sellers to
Buyer of a tenant estoppel certificate from Tenants (other than the General
Services Administration (the “GSA”)) who, in the aggregate, comprise at
least ********** ******* (***) of the ***** ******** **** ** *** ********* ** *
********* ***** *** ****** ** *** *** (which shall include the Tenants listed
on Exhibit FF attached hereto (collectively, the “Required Tenants”))
in substantially the same form attached hereto as Exhibit O (unless a
Tenant’s Lease has a prescribed estoppel form attached to said Lease, in which
event the prescribed form shall be acceptable for said Tenant) (a “Tenant
Estoppel”).  If a Tenant Estoppel
is delivered by Sellers to Buyer, Buyer may nevertheless disapprove such Tenant
Estoppel if and only if it does not contain such items as are required to be
given in connection with an estoppel certificate pursuant to the Tenant’s
Lease, or contains allegations of an uncured material default by a Seller or
contains information that materially deviates from the facts and financial
information contained in the Offering Memorandum, the Due Diligence Materials
or in this Agreement.  If Sellers are
unable to obtain Tenant Estoppels from a sufficient number of Tenants to
satisfy the ********** ******* (***) *********** set forth in this Section
7.2(b) on or before the Closing Date (or have not delivered Tenant
Estoppels from the Required Tenants), then the Closing Date for any applicable
Portfolio shall be adjourned for a period not to exceed thirty (30) days for
Sellers to obtain the sufficient number of Tenant Estoppels (or Estoppel
Certificates from the Required Tenants, as the case may be).  In addition, if Sellers are unable to obtain
Tenant Estoppels from a sufficient number of Tenants to satisfy the **********
******* (***) *********** set forth in this Section 7.2(b) on or before the
Closing Date (as may be 


 


 


25

















 


extended hereunder), an individual Seller shall have
the right to elect to execute and deliver to Buyer a certificate substantially
in the form of Exhibit P attached hereto (each such certificate, a “Seller’s
Estoppel”) with respect to such additional lease(s) at such individual
Seller’s Building and selected by Seller as would satisfy the requirement; provided,
however, that an individual Seller shall not have the right to deliver a
Seller’s Estoppel in lieu of Tenant Estoppels from Required Tenants.  In the event that an individual Seller elects
to deliver such a Seller’s Estoppel, each statement therein made by such Seller
shall constitute warranties and representations by such Seller hereunder which
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 Tenant Estoppel signed
by the applicable Tenant under the Lease in question that is not inconsistent
with Seller’s Estoppel.  With respect to
the rentable area of the Buildings leased to the GSA, each individual Seller
shall, as applicable, use commercially reasonable efforts to obtain a
supplemental lease agreement, novation agreement, statement of lease or similar
instrument delivered by the GSA (a “GSA Estoppel”) for Leases to the GSA
in excess of 10,000 rentable square feet (a “Material GSA Lease”);
provided, however, the delivery of a GSA Estoppel shall not be a condition
precedent to Buyer’s obligation to consummate the transaction contemplated
hereunder; provided, further that Sellers shall execute and deliver to Buyer a
certificate substantially in the form of Exhibit P attached hereto (each
such certificate, a “Seller’s GSA Estoppel”) with respect to all
Material GSA Leases at such individual Seller’s Building.  In the event that an individual Seller elects
to deliver such a Seller’s GSA Estoppel, each statement therein made by such
Seller shall constitute warranties and representations by such Seller hereunder
which 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 Estoppel
signed 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 the
Tenant Estoppels or GSA Estoppels, as applicable, Sellers are submitting to
Tenants or the GSA, as applicable, for execution.  Buyer shall begin providing any comments to
such Tenant Estoppels and GSA Estoppels within five (5) Business Days of
Sellers’ delivery of the same and diligently and continuously review said
estoppels and provide any comments to Sellers as reviews are completed by
Buyer.


(d)   Buyer shall receive estoppel certificates
from declarants and/or owner’s associations applicable to each Portfolio in a
form reasonably acceptable to Buyer  or
on the form required to be delivered pursuant to the applicable declaration,
confirming that each Individual Property is in compliance with the restrictive
covenants and no assessments are outstanding. Alternatively, if Seller cannot
obtain estoppel certificates, Buyer shall receive either title insurance
coverage or an indemnity from Seller protecting against any such violations and
monetary defaults.


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


 


 


26

















 


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


(f)    A simultaneous closing under the Company Agreement
shall have occurred with the first closing hereunder, or, if closings are
sequential under the terms of any provision of this Agreement permitting
sequential closings, then sequential closings under the Company Agreement shall
also have occurred.  Notwithstanding the
foregoing, this condition shall not apply if the Company Agreement fails to
close as the result of a Buyer default under the Company Agreement which has
not been cured within applicable notice and cure periods.


(g)   Either closing shall have occurred under the
4807 Agreement or Seller shall have terminated the 4807 Option and removed it
of record.  Notwithstanding the
foregoing, this condition shall not apply if the 4807 Agreement fails to close
as the result of a Buyer default under the 4807 Agreement which has not been
cured within applicable notice and cure periods.


Section 7.3.            Adjournment
of Closing Date.


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


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


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


 


 


27

















 


a default expressly provided in this Agreement) with
respect to one or more Individual Properties, Buyer may elect by written notice
to the applicable Sellers, to terminate this Agreement either (x) solely with respect
to 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 a
return of the portion of the Deposit applicable to such Individual Property
provided that Buyer is not otherwise in default hereunder), or (y) as to all
Properties within the Portfolio in which such Individual Property is located
(in which event Buyer may, as its sole and exclusive remedy, be entitled to
receive a return of the portion of the Deposit applicable to all Properties
within such Portfolio provided that Buyer is not otherwise in Default
hereunder).  If Buyer elects to terminate
with respect to an Individual Property only, upon receipt of such written
notice,  the Sellers of the Properties
within the Portfolio of which such Individual Property is a part may terminate
this 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 the
Deposit applicable to such Portfolio provided that Buyer is not otherwise in
default hereunder).


(d)   In no event shall the provisions of this
Section 7.3 be deemed to supersede the rights of Seller pursuant to Section
14.1 below or of Buyer pursuant to Section 14.2 below if the failure of any
condition results from a default by Buyer or a Seller hereunder.


Section 7.4.            No
Financing Contingency.  It is
expressly acknowledged by Buyer that the Closing of the transactions
contemplated by this Agreement is not subject to any financing contingency and
that no financing for this transaction shall be provided by Sellers.  Without limiting the foregoing, Buyer agrees
that the ability or inability of Buyer to obtain debt, equity investments or
other financing in order to pay all or any part of the Purchase Price shall not
be a contingency or condition to any of Buyer’s obligations under this
Agreement.


Section 7.5.            Closing.
The closing of the transaction contemplated herein (the “Closing”) shall
occur 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 but
that is not later than February 28, 2006, except with respect to Liberty Center
III, for which the Closing Date shall be as set forth on Exhibit BB
attached hereto (as the same may be adjourned in accordance with this
Agreement, the “Closing Date”), time being of the essence, subject only
to adjournment rights expressly permitted in this Agreement.


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


 


 


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ARTICLE VIII.


SELLERS’
REPRESENTATIONS.


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


(a)   Each Seller represents that it is duly
organized, validly existing and in good standing under the laws of the state of
its organization and duly qualified to do business in the Commonwealth of
Virginia, and it has full power and authority to execute and deliver this
Agreement, subject to the terms of this Agreement, and as of the Closing Date
will have authority to execute and deliver all other documents now or hereafter
to be executed and delivered by it pursuant to this Agreement (the “Seller’s
Documents”) and to perform all obligations arising under this Agreement and
its Seller’s Documents.  This Agreement
constitutes, and as of the Closing Date such Seller’s Documents will each
constitute, 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 the
enforcement of creditors’ rights generally and except as may be limited by
general equitable principles.  Within the
five (5) years prior to the Effective Date, no Seller has (i) made a general
assignment for the benefit of creditors, (ii) filed any voluntary petition in
bankruptcy or suffered the filing of any involuntary petition by Seller’s
creditors, as the case may be, (iii) suffered the appointment of a receiver to
take possession of all, or substantially all, of Seller’s assets which remains
pending, (iv) suffered the attachment or other judicial seizure of all, or
substantially all of Seller’s assets, which remains pending, (v) admitted in
writing its inability to pay its debts as they come due, or (vi) made an offer
of settlement, extension or composition to its creditors generally.


(b)   This Agreement does not and will not
contravene any provision of the organizational documents of such Seller, any
judgment, order, decree, writ or injunction, or any provision of any existing
law or regulation to which such Seller is a party or is bound.  The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby do not and will
not require (except to the extent, if any, set forth herein or in the documents
listed in the Exhibits attached hereto) any consent or waiver by any third
party (including, without limitation, the consent of any direct or indirect
partner of such Seller) or such consent or waiver has, as of the Effective
Date, been obtained by such Seller. 
Seller has granted no options or rights of first refusal to acquire any
interest in the Properties.


 


29

















 


(c)   Exhibit B attached hereto is a true
and complete tenant list for such Seller’s Property.  True and complete copies of all Leases have
been made available to Buyer for inspection in the War Room.  Sellers have delivered to Buyer a current
tenant delinquency report that each Seller uses in its operation and management
of each Property which is the most current delinquency report as of the Effective
Date.  Each Seller agrees to update the
delinquency report pertaining to such Seller’s Property upon Buyer’s written
request.


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


(e)   To each Seller’s knowledge, except as set
forth on Exhibit R attached hereto, there are no
pending actions, suits, arbitrations, claims or proceedings at law or in equity
affecting such Seller or its Property, including, but not limited to actions,
suits, arbitrations, claims or proceedings regarding Hazardous Materials (as
hereinafter 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 federal
authority or any other governmental authority . 
To each Seller’s knowledge, Seller has not received written notice of
default, that remains uncured, under any easements or other recorded restrictive
covenant affecting the Properties.


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


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


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


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


(j)    To each Seller’s knowledge, there is no
proceeding 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, a
person or entity with whom U.S. persons or entities are restricted from doing
business under regulations of the Office of Foreign Asset Control (“OFAC”) of
the Department of the Treasury (including those named on OFAC’s Specially
Designated and Blocked Persons list) or under any statute, executive order
(including the September 24, 2001, Executive Order Blocking Property and
Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or
Support Terrorism), or other governmental action and is not and will not engage
in any dealings or transactions or be otherwise associated with such persons or
entities.


Section 8.2.            Representation
Survival.  The provisions of this Article
VIII which are specifically referred to in Section 24.9(a), and the
representations and warranties set forth in such provisions, shall survive the
Closing until the Survival Dates set forth in Section 24.9(a).  Notwithstanding anything herein to the
contrary, no Seller shall have any liability to Buyer for a breach of any
representation or warranty hereunder, if the breach in question is, on or prior
to the ***** ******** ****: (a) based on a condition, state of facts or other
matter which was known by Buyer or any Receiving Party Representative, (b) made
available to Buyer or any Receiving Party Representative or (c) disclosed in
writing to Buyer or any Receiving Party Representative on or prior to the *****
******** ****.  The provisions of this
Section 8.2 shall not be deemed to limit Buyer’s rights, if any, under Section
14.2 below.


Section 8.3.           
Representation Accuracy. If prior to the Closing Date (i) Buyer or any
Receiving Party Representative has or obtains knowledge that any of Sellers’
representations or warranties set forth in this Article VIII are untrue in any
respect, or (ii) any information in the Leases, Service Contracts, any Tenant
Estoppel or GSA Estoppel,  the
Information, the Offering Package and Due Diligence Materials or other written
information provided or made available to Buyer or any Receiving Party
Representative (collectively, the “Specified Documents”) is inconsistent
with any of Sellers’ representations or warranties hereunder, and Buyer nevertheless
proceeds with the Closing, then (X) the breach by any Seller of the
representations and warranties as to which Buyer shall have such knowledge or
which are inconsistent with the Specified Documents, shall be deemed waived by
Buyer, (Y) such representations and warranties shall be deemed modified to
conform them to the information that Buyer shall have knowledge of or the
information in the Specified Documents, as applicable, and (Z) no Seller shall
have any liability to Buyer or its successors or assigns in respect
thereof.  Buyer shall promptly notify
Sellers in writing if Buyer has or obtains knowledge that any of Sellers’
representations or warranties set forth in this Article VIII are untrue
in any respect.


Section 8.4.            Limitations
on Sellers’ Representations.  Sellers
do 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 that
any 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 a
breach by any Seller of its obligations under this Agreement.  If any agreement is not in effect or a party
to any agreement is in material default (except for any Seller), such fact
shall not, in any way, relieve Buyer of its obligation to purchase the


 


 


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


Section 8.5.            Buyer’s
Knowledge.  To the extent the
Specified Documents contain provisions inconsistent with or different from the
representations and warranties made in Sections 8.l(a) through 8.1(k) or Buyer
or the Receiving Party Representatives has knowledge of such inconsistency or
difference, then such representations and warranties shall be deemed modified
to conform them to the provisions of the Specified Documents or to such
different or inconsistent facts known to Buyer or the Receiving Party
Representatives, as applicable.  For
purposes 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 charged
with the acts, omissions and/or knowledge of any of the Receiving Party
Representatives.  Nothing herein shall be
construed to imply or mean that any of the Buyer Knowledge Parties have any
personal liability for a breach of a representation or warranty or otherwise.


Section 8.6.            Sellers’
Knowledge.  For purposes of this
Agreement, the words “to Sellers’
knowledge” means the present, actual knowledge of (i) Kathy
Knizner, Vice President of Commercial Properties and Peter Scholz, Senior Vice
President and Chief Transactions Officer 
with respect to all Properties other than the ongoing construction
matters at Liberty Center III, and (ii) with respect to the ongoing
construction matters at Liberty Center III, EdWard Westrick (collectively, the “Seller Knowledge Parties”), in all cases without any independent
investigation or verification or any duty to make any inquiry, review or investigation.  The Seller Knowledge Parties are the parties
of Seller with the most knowledge about the leasing, management, operations and
development of the Properties. The Seller Knowledge Parties are not charged with knowledge of the acts, omissions and/or knowledge of the
predecessors 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 other
representatives.  Nothing herein shall be
construed to imply or mean that any of the Seller Knowledge Parties have any
personal liability for a breach of a representation or warranty or otherwise.


Section 8.7.            Sellers’
Representations and Warranties.  Each
of the Buyer and the Sellers acknowledge and agree that, notwithstanding
anything to the contrary contained herein, (i) any representation or warranty
made by Seller or Sellers hereunder shall be deemed to have been made by each
Seller individually as such representation or warranty pertains to such Seller
or its Property only, and (ii) any liability imposed on any Seller hereunder,
whether pursuant to this Agreement or otherwise, shall be several (and not
joint) as to each Seller, and, except as may be expressly provided herein, the
liability of each Seller shall be limited to the interest of such Seller in its
Property.


 


 


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ARTICLE IX.


BUYER’S
REPRESENTATIONS.


Section 9.1.            Buyer’s
Representations.  Buyer represents
and warrants to Sellers that as of the Effective Date the following representations
and warranties are true in all material respects and shall be true in all
material respects on the Closing Date:


(a)   Buyer is a limited partnership duly
organized, validly existing and in good standing under the laws of the State of
Indiana.  At the Closing Date, Buyer or
its permitted assignees will be authorized to do business in the Commonwealth
of Virginia.  Buyer has full power and
authority to execute and deliver this Agreement and all other documents now or
hereafter to be executed and delivered by it pursuant to this Agreement (the “Buyer’s
Documents”) and to perform all obligations arising under this Agreement and
Buyer’s Documents.  This Agreement
constitutes, and Buyer’s Documents will each constitute, the legal, valid and
binding obligations of Buyer enforceable against Buyer in accordance with their
respective 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 equitable
principles.  Each person or entity
comprising Buyer has duly authorized and approved this Agreement and the
transaction contemplated hereby.


(b)   This Agreement and Buyer’s Documents do not
and will not contravene any provision of the organizational documents of Buyer,
any judgment, order, decree, writ, injunction or any other agreement binding on
Buyer, or any provision of any existing law or regulation to which Buyer is a
party or is bound.  The execution and
delivery of this Agreement and the consummation of the transactions
contemplated 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, or
governmental or agency proceeding or investigation is pending or threatened
against Buyer which would materially impair or adversely affect Buyer’s ability
to perform its obligations under this Agreement and consummate the transactions
contemplated herein.


(d)   Buyer has the financial wherewithal to timely
perform its obligations hereunder.


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


 


 


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


ARTICLE X.


LIKE
KIND EXCHANGE


Section 10.1.          Like-Kind
Exchange.  Any Seller or the Buyer
may consummate the purchase or sale (as applicable) of a Property or any
portion 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 not
be delayed or affected by reason of the Exchange nor shall the consummation or
accomplishment of an Exchange be a condition precedent or condition subsequent
to the exchanging party’s obligations under this Agreement, (b) the exchanging
party shall effect its Exchange through an assignment of this Agreement, or its
rights under this Agreement, to a qualified intermediary, (c) neither party
shall be required to take an assignment of the purchase agreement for the
relinquished or replacement property or be required to acquire or hold title to
any real property for purposes of consummating an Exchange desired by the other
party, (d) the exchanging party shall pay any additional costs that would not
otherwise have been incurred by the non-exchanging party had the exchanging
party not consummated the transaction through an Exchange, and (e) the
exchanging party agrees to indemnify and hold harmless the other party from and
against all actual damages incurred by the other party arising from any tax
deferred exchange relating to such Property conducted by the exchanging
party.  Neither party shall by this
Agreement or acquiescence to an Exchange desired by the other party have its
rights under this Agreement affected or diminished in any manner or be
responsible for compliance with or be deemed to have warranted to the
exchanging party that its Exchange in fact complies with § 1031 of the Code,
provided that each party shall reasonably cooperate with the other party in
furtherance of an Exchange of the exchanging party.


ARTICLE XI.


TAX
REASSESSMENT OR REDUCTION PROCEEDINGS.


Section 11.1.  Tax
Reassessment or Reduction Proceedings. 
If any tax reassessment, refund or reduction proceedings in respect of
the Land and/or the Buildings, relating to any taxes payable in any fiscal
years prior to the fiscal year in which the Closing Date occurs, are pending on
the Closing Date, Sellers reserve and shall have the right to continue to
prosecute the same.  If any such
proceedings, relating to taxes payable for the fiscal year in which the Closing
Date occurs, are pending on the Closing Date, Sellers and Buyer shall cooperate
in such proceedings and neither Sellers nor Buyer shall settle or abandon the
same without the consent of the other (which consent shall not be unreasonably
withheld, conditioned or delayed); provided, however, that Sellers shall
have the right to retain its current counsel in connection with any pending
certiorari proceedings with respect to all prior fiscal tax years through and
including the fiscal year


 


 


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in which the Closing Date occurs.  Any net refunds or savings in the payment of
taxes (after deducting all reasonable expenses, including, but not limited to
attorneys’ fees, and taking into account amounts reimbursable to Tenants)
resulting from any tax reassessment or reduction proceedings for the tax year
in which the Closing Date occurs shall belong to and be the property of the
party who is responsible for the payment of such taxes under Section
6.1(c)(2) and shall so be apportioned, if applicable; provided, however,
that if the Closing has occurred and any such refund creates an obligation to
reimburse any Tenants for any Rents paid, that portion of such refund equal to
the amount of such required reimbursement (after deduction of allocable
expenses as may be provided in such Tenants’ respective Leases) shall be paid
to Buyer and Buyer shall disburse the same to such Tenants.    Except for any reassessment of the
Properties caused by the sale of the Properties, or improvements made to the
Properties by Buyer, Buyer shall not take any action that might (i) increase
the assessment of the Properties or decrease any settlement for real property
taxes 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 to
Sellers on account of a refund for the year in which the Closing Date occurs or
any prior year.  The provisions of this Article
XI shall survive the Closing until the Survival Date set forth in Section
24.9(a) hereof.


ARTICLE XII.


CONDITION
OF PROPERTIES; RELEASE OF CLAIMS.


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


 


 


 


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


 


 


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MATERIALS, DATA AND OTHER
INFORMATION, (IV) EXCEPT AS EXPRESSLY SET FORTH HEREIN, BUYER HAS NOT RELIED
UPON ANY SUCH REPRESENTATIONS, WARRANTIES, PROMISES OR GUARANTIES OR UPON ANY
STATEMENTS MADE IN ANY INFORMATIONAL BROCHURE WITH RESPECT TO THE PROPERTIES
AND HAS ENTERED INTO THIS AGREEMENT AFTER HAVING MADE AND RELIED SOLELY ON ITS
OWN INDEPENDENT INVESTIGATION, INSPECTION, ANALYSIS, APPRAISAL, EXAMINATION AND
EVALUATION OF THE FACTS AND CIRCUMSTANCES AND (V) BUYER
ACKNOWLEDGES THAT THE PROPERTIES MAY NOT BE IN COMPLIANCE WITH THE AMERICANS
WITH DISABILITIES ACT OF 1990, AS AMENDED AND SELLERS MAKE NO REPRESENTATIONS
WITH RESPECT TO THE SAME.  WITHOUT
LIMITING THE FOREGOING, EXCEPT AS, AND SOLELY TO THE EXTENT, SPECIFICALLY SET
FORTH IN THIS AGREEMENT, SELLERS HAVE MADE NO REPRESENTATION OR WARRANTY
WHATSOEVER REGARDING HAZARDOUS MATERIALS (AS DEFINED BELOW) OR ENVIRONMENTAL
CONDITION OF ANY KIND OR NATURE ON, ABOUT OR WITHIN THE PROPERTIES OR THE
PHYSICAL CONDITION OF THE PROPERTIES OR THE COMPLIANCE OF ANY OF THE PROPERTIES
WITH ANY LEGAL REQUIREMENTS AND BUYER AGREES TO ASSUME THE RISK THAT ADVERSE
MATTERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION OR MECHANICAL DEFECTS AND
ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS MAY NOT HAVE BEEN REVEALED BY
BUYER’S INVESTIGATIONS.  SELLER HAS NO
OBLIGATION 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.          Release
of Claims.  Without limiting any
provision in this Agreement, Buyer, for itself and any of its assigns pursuant
to Article XIX below and their affiliates, hereby irrevocably and absolutely
waives its right to recover from, and forever releases and discharges, and
covenants not to file or otherwise pursue any legal action (whether based on
contract, 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) or
broker of any of the foregoing, and any of their respective heirs, successors,
personal representatives, devisees, donees and assigns (each a “Released
Party” and collectively, “Released Parties”) with respect to any and
all suits, actions, proceedings, investigations, demands, claims, liabilities,
obligations, fines, penalties, liens, judgments, losses, injuries, damages, settlement
expenses or costs of whatever kind or nature, whether direct or indirect, known
or unknown, contingent or otherwise (including any action or proceeding brought
or threatened or ordered by any governmental authority), including, without
limitation, attorneys’ and experts’ fees and expenses, and investigation and
remediation costs that may arise on account of or in any way be connected with
(a) the Investigations by Buyer Representatives permitted pursuant


 


 


37

















 


to Section 3.7 hereof, and (b) the Properties
or any portion thereof (collectively, “Claims”), including, without
limitation, the physical, environmental and structural condition of the
Properties or any law or regulation applicable thereto, or any other matter
relating to the use, presence, discharge or release of Hazardous Materials (as
hereinafter defined) on, under, in, above or about the Properties.  In connection with this Section, Buyer
expressly waives the benefits of any provision or principle of federal or state
law or regulation that may limit the scope or effect of the foregoing waiver
and 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 to
human, plant or animal life or the environment or that is defined, determined
or identified as such in any federal, state or local law, rule or regulation
(whether now existing or hereafter enacted or promulgated) and any judicial or
administrative order or judgment, in each case relating to the protection of
human health, safety and/or the environment, including, but not limited to,
airborne toxins or mold, any materials, wastes or substances that are included
within the definition of (A) “hazardous waste” in the federal Resource
Conservation and Recovery Act; (B) “hazardous substances” in the federal
Comprehensive Environmental Response, Compensation and Liability Act; (C) “pollutants”
in the federal Clean Water Act; (D) “toxic substances” in the federal Toxic
Substances Control Act; and (E) “oil or hazardous materials” in the laws or
regulations of any State. 
Notwithstanding anything herein to the contrary (including the foregoing
release), (a) Buyer shall have the right to defend government and third-party
claims by alleging that Seller (or someone acting on Seller’s behalf), not
Buyer, is liable for such claims and Buyer has no obligation to indemnify
Seller for governmental or third party claims asserted before or after the
Closing as a result of any act or omission taken or failed to be taken by or on
Seller’s behalf prior to the Closing, (b) the release shall not apply to claims
made by tenants of the Property (1) who did not deliver an estoppel certificate
to Buyer and (2) who allege defaults by Seller, as landlord, related to the
period of Seller’s ownership of the Property and (c) the release shall not
apply to third-party tort claims relating to the Property that occurred during
Seller’s ownership of the Property.


Section 12.3.          Survival.  The provisions of this Article XII
shall survive termination or the Closing until the Survival Date set forth in Section
24.9(a) hereof.


ARTICLE XIII.


DELIVERIES AT
CLOSING.


 


Section 13.1.          Deliveries
at Closing.  The following shall be
delivered to the Title Company, Buyer or Sellers, as set forth below, on or
before the Closing Date:


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


 


 


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(b)   Each Seller and Buyer shall execute and
deliver 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 other
matters as are required by applicable law or pursuant to the terms of the
Leases or which either party may reasonably request (the “Tenant
Notification Letters”).


(c)   Each Seller and Buyer shall execute and
deliver to the other and the Title Company such evidence as may be reasonably
required by the other of the due authorization, execution and delivery by such
party of this Agreement and Seller’s Documents or Buyer’s Documents, as the
case may be.


(d)   Sellers shall deliver to Buyer a list of all
Tenants 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 such
delinquency relates.


(e)   To the extent not previously delivered to
Buyer or the Receiving Party Representatives, Sellers shall deliver to Buyer
each of the following, to the extent in Sellers’ possession:  copies of all tenant files, unexpired
warranties and guaranties affecting the Properties, the Permits, real estate
tax bills for the tax year in which the Closing Date occurs (if then
available), then current water, sewer and utility bills for the Properties, the
Service Contracts (to the extent assumed by Buyer), copies of operating
statements for the Properties for the one-year period prior to the Closing
Date, originals of the Leases, each to the extent in Sellers’ possession or
control or reasonably available to Sellers, excluding, however, such
instruments and documents as Sellers may reasonably require for their own use
following the Closing Date (and as to all such instruments and documents other
than the Leases, Sellers will deliver true and complete copies thereof to
Buyer).  Such instruments and documents
shall be deemed to have been delivered to Buyer if the same are maintained in
the property management office of any Property.


(f)    Sellers shall terminate or cause to be
terminated, effective not later than the last day of the first full calendar
month following Closing,  (i) all
existing property management and parking management agreements affecting the
Properties, (ii) all leasing commission agreements (other than any leasing
commission agreements with respect to Out-for-Signature Leases or contained
within any Lease or payable by Buyer pursuant to the provisions of this
Agreement), and (iii) those Service Contracts, designated in writing by Buyer
(no less than thirty-five (35) days prior to the Closing Date) which may by
their terms be terminated with thirty (30) days’ prior notice; provided,
however, Sellers
shall not be required to terminate any such Service Contracts, if, (A) any
payments are required to be made in connection with such termination unless
Buyer shall have agreed to pay the same or (B) any Seller shall incur any
liability with respect to such termination.


(g)   Each Seller and Buyer shall
execute and deliver to the other duplicate originals, to the extent such
agreements are not terminated prior to Closing, of notices to the contractors
under the Service Contracts and Tenants under the Leases advising such parties
of the sale of the Properties at the Closing (“Other Notification Letters”).


 


 


39

















 


(h)   Each Seller shall execute, acknowledge and
deliver to the Title Company an affidavit in the form attached hereto as Exhibit
V for the benefit of the Title Company together with such other documents
as the Title Company may reasonably require (provided the same do not result in
any additional liability to any Seller).


(i)    Sellers shall deliver to Buyer an
updated tenant list, the Leases, the Service Contracts (to the extent assumed
by Buyer).


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


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


(l)    Buyer shall deliver to the Title Company for
disbursement to Sellers the balance of the Purchase Price pursuant to Article
II above.


(m)  Sellers shall deliver to Buyer any Security
Deposits in Seller’s possession or control that have not been (i) applied to
defaults as permitted by this Agreement or (ii) credited to Buyer pursuant to Section
6.6 hereof.


(n)   Each Seller and Buyer shall execute and
deliver to each other a certificate updating the representations and warranties
made by each of them in Articles VIII and IX, respectively.  If any of the facts contained in the
representations and warranties made by Sellers in Article VIII change in
any material respect between the Effective Date and the Closing Date, then
promptly upon learning of such change in facts, Sellers shall disclose such changes
in writing to Buyer.  The matters
contained in the certificates delivered hereunder shall survive the Closing
until the respective Survival Dates set forth in Section 24.9(a) hereof
with respect to the representation to which each such matter relates.


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


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


(q)   Originals of any letters of
credit (collectively, “Letters of Credit”) identified on Exhibit S
which are held by any Seller as security deposits, if such Letters of Credit in
their present form (including amendments thereto) permit Buyer to exercise the
rights of beneficiary thereunder without amendment of such Letters of Credit; provided,
however, that as for those Letters of Credit that require amendment in
order to enable Buyer to exercise  the
rights of beneficiary thereunder, the same shall be delivered to Buyer at
Closing and Sellers and Buyer shall cooperate and expend commercially
reasonable efforts to obtain such amendments after the Closing, for the benefit
of and delivery to Buyer or to draw upon such Letter of Credit, if permitted
under the terms of such Letter of Credit (but in either case Sellers shall not
be obligated to spend any money unless Buyer has agreed to reimburse Sellers
therefor).  If Sellers shall be unable to



 


 


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amend such Letter of Credit, Sellers shall cooperate
with Buyer to obtain a replacement Letter of Credit with respect thereto in
favor of Buyer (but Sellers shall not be obligated to spend any money unless
Buyer has agreed to-reimburse Sellers therefor).  Buyer agrees to indemnify, defend and hold Sellers
harmless from and against any and all costs, loss, damages and expenses of any
kind or nature whatsoever (including reasonable attorneys’ fees and costs)
arising out of or resulting from any Seller’s presenting any such Letter of
Credit 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 Section
24.9(a) hereof.


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


(s)   Each Seller and Buyer shall execute and
deliver to each other and the Title Company such other instruments and
documents and shall pay such sums of money which may be required pursuant to
any of the other provisions of this Agreement; provided, however,
the foregoing shall not expand or modify either party’s obligations contained
in this Agreement.  Each instrument and
document to be delivered prior to the Closing Date, the form of which is not
attached to this Agreement as an Exhibit, shall be consistent with the
applicable provisions of this Agreement and shall be in the form or contain the
information or provisions provided for in this Agreement.


(t)    In the event Buyer closes on the purchase of
all Properties within the Mark Center Portfolio, the Sellers of Property within
the Mark Center Portfolio shall assign to Buyer at Closing all of their
interests as declarant, if any, under any and all recorded declarations
pertaining to Mark Center (the “Mark Center Declaration”).  The parties agree that the Mark Center
Declaration shall be amended, subject to obtaining any necessary lender
consents (i) to delete provisions thereof that provide the declarant thereunder
rights of first refusal or negotiation in connection with acquiring land or buildings
in Mark Center, and (ii)  to remove the
Millbrook project from the application of the Declaration.  In the event Buyer closes on the purchase of
all Properties within the TransDulles Centre Portfolio, the Sellers of Property
within the TransDulles Centre Portfolio shall assign to Buyer at Closing all of
their interests as declarant, if any, under any and all Declarations pertaining
to TransDulles Centre.  In the event
Buyer closes on the purchase of all Properties within the Westfields Portfolio,
the Sellers of Property within the Westfields Portfolio shall assign to Buyer
at Closing all of their interests as declarant, if any, under any and all
Declarations pertaining to Liberty Center or the TASC campus.


ARTICLE XIV.



DEFAULT; DAMAGES.




Section
14.1.          Buyer Defaults.  In the event that Buyer shall default in any
material respect under (a) this Agreement with respect to its obligations to be
performed on or before the Closing Date with respect to one or more of the
Properties, or (b) the 4807 Agreement, or that certain purchase agreement for
the sale of certain assets of the 


 


 


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Mark Winkler Company from affiliates of Sellers to
Buyer or its affiliate (the “Company Agreement,” and, together with the
4807 Agreement, the “Related Purchase Agreements”), Buyer and Sellers
agree that the actual damages that any Seller shall sustain as a result thereof
shall be substantial and shall be extremely difficult and impractical to
determine.  Buyer and Sellers therefore
agree that if Buyer fails to perform any or all of the terms, covenants,
conditions and agreements to be performed by Buyer hereunder or under the
Related Purchase Agreements, whether at or prior to the Closing,  then, subject to the provisions set forth in Section
14.3, Sellers’ sole and exclusive remedy shall be (i) that (x) the Seller
of the Property as to which Buyer has breached its obligation may elect to
terminate this Agreement with respect to such Individual Property or (y) the
Sellers of the Properties within the Portfolio in which such Individual
Property is located shall be entitled to terminate this Agreement with respect
to all Properties within the Portfolio, and to receive from Escrow Holder, as
full, complete and valid liquidated damages (and not as a penalty) the portion
of the Deposit relating to such Individual Property or Portfolio as shown on
Schedule 2.1(a), or (ii) all of the Sellers may terminate this Agreement with
respect 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 thereon
from the Escrow Holder, and thereafter neither Buyer nor any Seller shall have
any further liability or obligation to the other parties hereunder, except for
such indemnities, liabilities and obligations as are expressly stated to
survive the termination of this Agreement. 
In the event Buyer defaults in its obligations under this Agreement
after the Additional Deposit is required to be posted (but prior to actually
posting the Additional Deposit), Buyer shall be obligated to post such
Additional Deposit immediately upon receiving written notice of its default
from a Seller, and each such Seller shall be entitled to bring an action to
collect such Additional Deposit from Buyer to which such Seller is entitled.


Section 14.2.          Seller
Pre-Closing Defaults.


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


 


 


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the Option and removed the same of record, and Buyer
is not in breach in any material respect of the 4807 Agreement, Buyer may
exercise its remedy set forth in Section 14.2(a)(ii)(2) above.  As a condition precedent to Buyer’s
exercising any right it may have to bring an action for specific performance
hereunder, Buyer must commence such action for specific performance within
thirty (30) days after the date scheduled for the applicable Closing.  Buyer agrees that its failure to timely
commence such an action for specific performance within such thirty (30) day
period shall be deemed a waiver by it of its right to commence an action for
specific performance as well as a waiver by it of any right it may have to file
or record a notice of lis pendens
or notice of pendency of action or similar notice against any portion of the
Property.  In no case shall Buyer seek
punitive damages or consequential damages. It is understood that a default with
respect to one Seller or its Individual Property shall not extend the Closing
Date for any unrelated Portfolio or excuse Buyer’s performance hereunder with
respect to the Sellers and Properties of any unrelated Portfolios.


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


Section
14.3.          Right to Cure.  (a) Notwithstanding anything contained herein
to the contrary and without limiting the rights of either party set forth in
this Agreement, in the event that Buyer or a Defaulting Seller (a “Defaulting
Party”) has defaulted hereunder with respect to one or more Individual
Properties, before the non-defaulting party can exercise any of its remedies
hereunder, such non-defaulting party shall provide written notice of default to
the Defaulting Party and the Defaulting Party shall exercise its commercially reasonable
efforts  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 the
non-defaulting party’s election, for the entire Portfolio in which such
Individual Property is located, shall be extended for the period of time
reasonably necessary to effect such cure, but not in excess of 45 days,
provided that in no event shall the Closing Date be extended pursuant to
Section 7.3 and this Section 14.3 for more than seventy (70) days in the
aggregate (the “Extension Period”). 
Notwithstanding the foregoing, in no event shall Buyer be entitled to a
cure period for Buyer’s failure to deliver any portion of the Purchase Price at
Closing.  In the event the Defaulting
Seller, as without having any obligation to do so, fails to cure such default
within the Extension Period, and such default does not cause direct actual
damages to Buyer in excess of the ******* ****** applicable to each Individual
Property (as defined in this Section 14.3), then such default or condition
precedent will be deemed to have been waived by Buyer, without abatement to or
reduction of the Purchase Price subject to reduction of the Purchase Price in
the amount of such actual damages not in excess of the ******* ******.  Seller’s obligations pursuant to the
following 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, Article
V, Article VI, Article XI, Section 14.7, Article XVI, Article XVIII or Section
24.10 of this Agreement.


(b)           In
the event that a Defaulting Seller has defaulted hereunder, and such default or
failure of a condition precedent causes direct actual damages in a liquidated
amount to Buyer in excess of the ******* ****** for the Individual Property
owned by such Seller, then, in such event, such Defaulting Seller shall be
entitled, but shall not have any obligation, either:  (a) to cure such default; or (b) provide
Buyer with a credit against the Purchase Price applicable to such Defaulting
Seller’s Individual Property in an amount equal to Buyer’s actual direct
damages and such default shall be deemed cured in its entirety and Buyer shall remain obligated to purchase such
Individual Property (and all of the other Properties) without any further
reduction in the Purchase Price.


Section 14.4.          Defaults
Discovered Post Closing.  If Buyer
closes the transactions contemplated by this Agreement and, after the Closing
Date but before the applicable Survival Date, Buyer discovers a breach of any
Seller’s representations,
warranties, covenants or indemnities hereunder or under any certificates and
other documents executed at, or in connection with, the Closing, Buyer shall
have the right, until the applicable Survival Date, to sue such Seller for
actual direct damages incurred by Buyer as a result of such breach or
breaches.  However, in the event of a
claim for a breach of representation or warranty, no individual Seller shall
have 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 be
made 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 such
claims are in excess of the ******* ******, and then only to the extent of the
excess over the ******* ******.  Buyer
shall not enter any judgment or collect an amount in excess of the ************
****** *** for a breach of a representation or warranty.  Notwithstanding anything contained herein to
the contrary, if Buyer had knowledge of a default by a Seller on the Closing
Date and Buyer elects to close the transaction contemplated herein, Buyer shall
be deemed to have irrevocably waived such default and Sellers shall not have
any 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 of
any Seller covenants to apportion or pay funds after Closing pursuant to
Articles VI, XI and XVI herein or Seller indemnities for investment banker
broker claims pursuant to Article XVIII below or pay for attorneys’ fees
pursuant to Section 24.10 below.


Section 14.5.          Limitation
on Seller’s Default.  Notwithstanding
anything to the contrary, a Seller’s inability to satisfy a condition of this
Agreement shall not be considered a default by such Seller hereunder unless
such inability results from the breach of such Seller’s express obligations
hereunder.


Section
14.6.          Termination of the
Related Purchase Agreements.  In the
event either Buyer or an affiliate of Seller terminates any Related Purchase
Agreement pursuant to the terms thereof other than by reason of a default by
Sellers or Sellers’ affiliates 


 


 


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thereunder, Sellers shall have the right either to
terminate this Agreement with respect to one or more Portfolios, or to
terminate this Agreement in its entirety, and neither party shall have any
further 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 Closing
Buyer and each Seller shall enter into an escrow holdback agreement (each a “Post
Closing Escrow Holdback Agreement”) pursuant to which each Seller shall
deposit an amount equal to *** ******* (****) ** *** ******** ***** allocable
to such Seller’s Property with Escrow Holder, to be held in a separate
interest-bearing account until ******** **, ****.  No account of any Seller shall be available
to satisfy claims against any other Seller hereunder.    The funds of each Seller shall be released
to such Seller on ******** **, ****, unless Buyer has delivered written notice
to such Seller and Escrow Holder of a specific claim against such Seller under
this Agreement specified in reasonable detail, in which case Escrow Holder
shall retain *** ******* ****** **** ******* (****)  of the reasonably estimated cost to satisfy
such claim until the resolution of such claim.


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


ARTICLE XV.



OPERATION OF PROPERTIES UNTIL CLOSING.




Section 15.1.          Operation
of the Properties.  Between the
Effective 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 the
Properties and to purchase supplies for the Properties in the ordinary course
of business in accordance with present business practices.  In no event shall Sellers be obligated to
Buyer, however, to expend any sums to correct any violations, or make any
capital improvements or repairs to capital improvements, or to otherwise cause
the Properties to be in compliance with any law, regulation or ordinance.


(b)   Except as otherwise
expressly provided in this Agreement, Sellers may not, without the prior
written consent of Buyer in each instance (which consent shall not be
unreasonably withheld, conditioned or delayed), (i) cancel or terminate any
Lease (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 leasing
guidelines for each Property annexed as Exhibit Y, or pursuant to the
terms of options or extensions set forth in any existing Lease) or (iii) enter
into any new lease other than in accordance with the leasing guidelines for
each Property annexed as Exhibit Y. 
Each such Seller shall have the right to sue Tenants and to collect such
delinquencies, but no action shall be taken to dispossess any such Tenant
following Closing.  Seller shall be
entitled to any monetary awards resulting such suits (less reasonable
allocation of costs and expenses for attorneys’ fees) 


 


 


45

















 


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


(c)   Except as otherwise expressly provided in this
Agreement, Sellers may not, without the prior written consent of Buyer in each
instance (which consent shall not be unreasonably withheld, conditioned or
delayed), cancel, terminate, renew, extend or modify in any material respect
any of the Service Contracts, or enter into any new service contract or
equipment lease for all or any portion of the Properties unless, in the case of
any such cancellation or termination, a new service contract or equipment lease
on substantially similar or more favorable terms is entered into and the same
is terminable upon thirty (30) days’ notice or, in the case of any extension or
renewal of a Service Contract or entering into of any new service contract or
equipment lease, the same may be terminated on not more than thirty (30) days
notice.  Each Seller shall give Buyer
written notice prior to taking any of the actions referred to in this Section
15.1 (c), which notice shall include the material terms of the proposed action
as well as a request for Buyer’s consent thereto if such consent is required by
the terms of the foregoing provisions of this Subsection (c).  If Buyer does not respond to such notice
within five (5) Business Days after receipt thereof, time being of the essence
with 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 with
respect to the Properties which are not in the ordinary course of business in
accordance with present business practices without Buyer’s consent (which
consent shall not be unreasonably withheld, conditioned or delayed), except in
the case of emergencies to protect any property or person from damage or
injury, Sellers Outstanding Lease Obligations, the Out-for Signature Leasing
Costs, the Vacancy Leasing Costs (for which Buyer shall receive a credit at
Closing), the capital expense projects identified on Exhibit N hereto
and further provided that Buyer’s consent shall not be required for, and
Sellers shall be permitted to pay, any actual increase in property taxes,
insurance premiums, or increased costs caused by any increase in any utility
rates.  Each Seller shall complete all
work 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 a
credit to Buyer at Closing for the cost of completing such work.


(e)   Sellers will keep in full force and effect
with respect to the Properties policies of insurance providing coverage at
least as extensive as that described in Exhibit Z.


(f)    Unless to be discharged in
full on or prior to the Closing Date with releases or discharges delivered
contemporaneously with, or prior to, the Closing Date, Sellers shall not
further encumber the Properties with any mortgage, deed of trust or similar
security agreement.  Furthermore, unless
to 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 those
required in connection with ongoing development at a Property, and, (ii) 


 


 


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unless otherwise
permitted pursuant to the terms of this Agreement, execute any other documents
or agreements affecting title to the Properties.


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


(h)   Each of Buyer and the Seller of Parcel 29G
(the “29G Seller”) acknowledges and agrees that 29G Seller will enter
into 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) Metroplex
Retaining Walls of Virginia, (iii) Anderson Site Contracting, Inc., and (iv)
contracts with other entities reasonably required by 29G Seller for the construction
of the improvements on Parcel 29G, each of which shall be subject to Buyer’s
reasonable consent.  The final form of
the 29G Construction Contracts will be mutually agreeable to Buyer and 29G
Seller.  29G Seller shall perform all of
the obligations of the property owner under each of the 29G Construction
Contracts from the Effective Date until the Closing Date, and, at Closing 29G
Seller shall assign, and Buyer shall assume, all of 29G Seller’s obligations
under the 29G Construction Contracts (which shall include, without limitation,
all outstanding amounts owed and other liabilities thereunder).  29G Seller covenants to not modify any 29G
Construction Contract without the prior consent of Buyer, which consent shall
not be unreasonably withheld, conditioned or delayed.  At Closing, (I) 29G Seller shall receive
reimbursement for (A) the costs incurred as of the Effective Date by 29G Seller
in connection with the development of the improvements on Parcel 29G (which
costs are set forth on Exhibit DD attached hereto (the “29G
Construction Costs”)), and (B) any additional costs incurred by 29G Seller
in connection with the construction of the 29G Building between the Effective
Date and the Closing Date, including those costs incurred under the 29G
Construction Contracts, are otherwise consistent with the 29G budget posted in
the War Room as of the Effective Date, or are reasonably approved by Buyer
(collectively, the “29G Construction Costs”), and (II) The Winkler
Family Trust (the “Trust”) and Buyer shall enter into a master lease payment
agreement for the building being constructed on Parcel 29G in the form of Exhibit
EE attached hereto.


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


 


 


47

















 


Space with tenants having a comparable financial
capacity of other tenants of similar space within TransDulles Centre that are
reasonably acceptable to Buyer and identified by Parcel 20 Seller prior to the
Closing Date (“Parcel 20 Comparable Tenants”).   Parcel 20 Seller agrees to consult with
Buyer during the negotiation of such the UTI lease or other leases (including
without limitation, consulting with Buyer about the costs anticipated to be
incurred in negotiating such leases), and agrees that Buyer shall have the
right to approve any such leases, which approval shall not be unreasonably
withheld, conditioned or delayed.  Buyer
agrees to reimburse Parcel 20 Seller at Closing for all costs incurred by
Parcel 20 Seller in connection with such leases, including, without limitation,
hard costs, soft costs, all tenant inducement costs and the cost of any leasing
commissions, and from and after the Closing Date shall continue to fund costs
reasonably necessary to procure such UTI lease or other leases, which costs
shall be subject to Buyer’s reasonable approval.  If Parcel 20 Seller procures a lease with UTI
or one or more Parcel 20 Comparable Tenants, signed by the tenant(s), for no
less than the Parcel 20 Minimum Space on or before the date that is two hundred
seventy (270) days after the Closing Date, Buyer shall pay to Parcel 20 Seller
a Purchase Price increase in the sum of ********** within two (2) Business Days
after submission of a lease or leases signed by the tenants thereunder;
provided, however, if any lease(s) contain Tenant Contingencies (as defined
below), such ********** payment shall be delayed until the Tenant Contingencies
are satisfied or waived, provided such Tenant Contingencies are not required to
be satisfied prior to the expiration of such 270 day period.  As used herein, the term “Tenant
Contingencies” shall mean any contingencies that would permit a tenant to
terminate its lease prior to the commencement of the lease term, such as due
diligence inspection, board approval, obtaining any special exception for
zoning or other governmental approval, obtaining any tax incentives, but
expressly excluding any contingencies in Buyer’s control (such as Buyer’s
construction financing, or Buyer’s obligation to complete the Building).


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


Section 15.3.          Change
in Condition of Property Prior to Closing . 
If and when Sellers obtain knowledge of the same, Sellers shall promptly
notify Buyer of any material change in any condition with respect to the
physical condition of the Properties or of any event or circumstance which
makes any representation or warranty by Sellers under this Agreement materially
untrue or misleading, or any covenant of Sellers under this Agreement incapable
or materially less likely to be capable of being performed.


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


 


 


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Section 15.5.          No
Termination.  Notwithstanding
anything to the contrary contained herein, Buyer shall not be entitled to
terminate this Agreement and Sellers shall not be liable to Buyer, and Buyer
shall not receive a reduction in, or a credit against, the Purchase Price, in
the event any Tenant vacates its premises, defaults under its Lease in any
respect, or if any Tenant terminates its Lease in accordance with rights
granted Tenant under the terms of its Lease, prior to the Closing Date, unless
as the result of a default by any Seller beyond applicable notice and cure
periods set forth in the Lease.


Section 15.6.          Continued
Operation by Sellers.  Sellers, at
their cost, subject to Section 15.1, will, so long as the other party
thereto is not in default thereunder, continue to perform and observe in all
material respects all of the covenants and conditions required to be performed
by Sellers in the same manner as presently performed and observed by Sellers
under (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 foregoing
agreement shall not limit Sellers’ rights to terminate any of the foregoing
agreements to the extent otherwise permitted hereunder.


ARTICLE XVI.


 


CASUALTY AND CONDEMNATION


Section 16.1.          Condemnation.  If, prior to the Closing Date, all or any
portion of one or more Individual Properties other than a Material Taking of a
portion of an Individual Property is taken by eminent domain (or is the subject
of a pending taking which has not yet been consummated), the Seller of such
Individual Property shall notify Buyer of such fact promptly after obtaining
knowledge thereof.  In such event, there
shall be no abatement of the Purchase Price and the Seller of such Individual
Property shall assign to Buyer (without recourse) on the Closing Date the
rights of such Seller to any portion of the award that has not been used by
such 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 for
the taking of the applicable Individual Property or such portion thereof.  Furthermore, Buyer shall have the right to
approve any settlement with the applicable governmental authority, such
approval not to be unreasonably withheld, conditioned or delayed. In the event
there is a Material Taking of a portion of an Individual Property, Buyer shall
have the right to terminate this Agreement as to the Individual Property or the
Portfolio in which such Individual Property is located by delivering written
notice to the applicable Sellers within ten (10) Business Days after receiving
written notice of such Material Taking (which notice shall include all
documentation related thereto in such Seller’s possession), in which event
Buyer shall be entitled to a return of the portion of the Deposit allocable to
such Individual Property or Portfolio, as applicable, provided that Buyer is
not then in default hereunder after all applicable notice and cure periods, and
a corresponding reduction in Purchase Price shall be made at Closing. As used
herein, the term “Material Taking” shall mean a taking that (1) permits tenants
that occupy more than fifteen percent (15%) in the aggregate of the rentable
square feet of space within a Building to terminate their Leases, and such
tenants do not waive such termination right in writing, or (2) requires more
than ********** to 


 


49

















repair, (3) materially
and adversely affects a Building in a manner that cannot be repaired, (4)
permanently takes a material portion of the parking spaces available to a
Building, which would cost in excess of ********** to replace, (5) permanently
materially and adversely impacts vehicular access to a Building, (6) as to
undeveloped land, materially and adversely affects Buyer’s intended development
of 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 material
part (as defined below) of any Individual Property is destroyed or damaged by
fire or other casualty, the Seller of such Individual Property shall promptly
notify Buyer of such fact (“Material Damage Notice”).    Thereafter, such Seller shall engage the
Architect (as defined below) to certify to such Seller and Buyer, with
reasonably adequate supporting documentation, whether the Available Restoration
Funds (as defined below) are sufficient to restore such Individual Property to
substantially its same condition and to provide sufficient revenue to replace
rental 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 shall
contain Architect’s determination, and all supporting documentation.  If the Architect determines that the
Available Restoration Funds are not sufficient to restore such Individual
Property to substantially its same condition and to provide sufficient revenue
to replace rental revenue lost as a result of such casualty, Buyer shall have
the right to terminate this Agreement with respect to such Individual Property
or the Portfolio in which such Individual Property is located, in which event
Buyer shall be entitled to a return of the portion of the Deposit allocable to
such Individual Property or Portfolio, as applicable, provided that Buyer is
not then in default hereunder after all applicable notice and cure periods, and
a corresponding reduction in the Purchase Price shall be made at Closing.  Such right of termination must be exercised
by Buyer, if at all, within ten (10) Business Days after receipt of such Second
Notice.  However, if (i) the Architect
determines that the Available Restoration Funds are sufficient to restore such
Individual Property to substantially its same condition and to provide
sufficient 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 an
Individual Property, then (A) Buyer shall not have the right to terminate this
Agreement, (B) the Purchase Price shall not be abated, (C) the Seller of such
Individual Property shall assign to Buyer (without any recourse) on the Closing
Date the rights of such Seller to the insurance proceeds (except to the extent
already applied by Seller in effecting the repair and restoration, or to cover
rent loss prior to closing), and (D) to the extent not already applied by
Seller to effect the repair and restoration, Buyer shall be entitled to receive
from such Seller the sum of the deductible, if any, and the Seller’s
Contribution Amount.  As used herein, “Available
Restoration Funds” means the sum of (x) the insurance proceeds (including
rent loss insurance), (y) the amount of the deductible, if any, and (z) any
additional amount Seller may elect to contribute to such restoration (the “Seller’s
Contribution Amount”).  For the
purposes hereof, a “material part” of an Individual Property shall mean
damage to any portion of an Individual Property that  (1) permits tenant(s) who occupy in the
aggregate more than fifteen percent (15%) of the rentable square feet of space
within a Building to terminate their Leases, and such tenants do not waive such
termination rights in writing, (2) destroys 


 


50

















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


                In furtherance hereof, in the
event less than a material part of any Individual Property is damaged after the
Effective Date, Sellers shall, in accordance with sound management practice,
endeavor to repair such damage prior to the Closing Date, provided that if such
repair is not completed by the Closing Date, the Closing shall not be postponed
and the balance of the insurance proceeds shall be assigned to Buyer and Buyer
shall 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 and
restoration.  Notwithstanding anything
herein to the contrary, in the event the Architect determines that any damage
to 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 to
such Individual Property or Portfolio within ten (10) days after receiving
notice of such determination, in which event Buyer shall receive a refund of
the portion of the Deposit allocable to such Individual Property or Portfolio.


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


Section 16.3.          Termination.  If this Agreement is terminated pursuant to
this Article XVI, the portion of the Deposit allocable to the Individual
Property that has been terminated shall be returned to Buyer, at which time
this Agreement shall be null and void with respect to such Seller and such
Individual Property, and neither party shall have any rights or obligations
under this Agreement with respect to such Seller and such Individual
Properties, 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 or
advice (collectively, “Notice”) provided for or permitted by this
Agreement to be made or accepted by Buyer or any Seller must be in
writing.  Notice may, unless otherwise
provided herein, be given or served (a) by depositing the same in the United
States mail, postage paid, certified, and addressed to the party to be
notified, with return receipt requested, (b) by delivering the same to such
party, or an agent of such party, in person or by commercial courier, (c) by
facsimile transmission, evidenced by confirmed receipt and 


 


51

















 


concurrently followed by a “hard” copy of same
delivered to the party by mail, personal delivery or overnight delivery
pursuant to clauses (a), (b) or (d) hereof, or (d) by depositing the same into
custody of a nationally recognized overnight delivery service such as Federal
Express, Overnight Express, UPS, Airborne Express, Emery or Purolator.  Notice sent in the manner hereinabove
described (other than by facsimile) shall be effective upon receipt or refusal
of delivery.  Notice given by facsimile
shall be effective only if sent to the party to be notified between the hours
of 8:00 a.m. and 7:00 p.m. of any Business Day with delivery made after such
hours to be deemed received the following Business Day.  For the purposes of Notice, the addresses of
Sellers, 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 their
respective addresses, and each shall have the right to specify as its address
any other address within the United States of America by at least five (5) days
written Notice to the other party. 
Notices shall be addressed as follows:


(a)   if to Sellers, to:



The Mark Winkler Company

4900 Seminary Road, Suite 900

Alexandria, Virginia 22311

Attention:  Randal B. Kell

Telephone:  (703) 578-7782

Facsimile:  (703) 578-7899


With a copy to:



The Mark Winkler Company

4900 Seminary Road, Suite 900

Alexandria, Virginia 22311

Attention:  William C. Nussbaum

Telephone: (703) 578 7798

Facsimile:  (703) 578 7899



And a copy to:


Pillsbury Winthrop Shaw Pittman LLP

2300 N Street, N.W.

Washington, D.C. 20037

Attention:  John Engel

Telephone: (202) 663-8863

Facsimile: (202) 663-8007


 


(b)   if to Buyer, to:


Duke Realty Corporation

3950 Shackleford Road, Suite 300




 


52

















 


Duluth, Georgia
30096-8268

Attention:  Howard Feinsand

Telephone: (770) 717-3267

Facsimile: (770) 717-3314


With
a copy to:


James
G. Farris, Jr. 

Alston & Bird LLP 

1201 West Peachtree Street 

Atlanta, Georgia 30309-3424

Telephone: (404) 881-7896

Facsimile: (404) 253-8587


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


ARTICLE XVIII.


 


INVESTMENT BANKER AND BROKER.


Section 18.1.          Investment Banker and Broker.  Buyer warrants and represents to Sellers that
Buyer has not dealt or negotiated with any investment banker, broker or other
person that could claim a commission, fee or other compensation by reason of
having dealt with Buyer in connection with this transaction, other than
Goldman, Sachs & Co. and The Mark Winkler Company, in connection with the
transaction contemplated by this Agreement. 
Buyer shall indemnify, defend and hold harmless Sellers from and against
any and all losses, costs, liens, claims, liabilities or damages (including,
but not limited to, reasonable attorneys’ fees and disbursements) resulting
from a breach of the foregoing representation or any claim that may be made by
any investment banker, broker or other person, other than Goldman, Sachs &
Co. and The Mark Winkler Company, claiming a commission, fee or other compensation
by reason of having dealt with Buyer in connection with this transaction
including, without limitation, any loss, liability, damages, costs and expenses
(including reasonable attorneys’ fees and disbursements) incurred in enforcing
this indemnity.  Sellers warrant and
represent to Buyer that, other than Goldman, Sachs & Co. and The Mark
Winkler Company (collectively, the “Sellers’ Representatives”), Sellers
have not dealt or negotiated with any investment banker or broker in connection
with this transaction.  Sellers hereby
agree to pay Sellers’ Representatives any brokerage commissions, fees or other
compensation which may be due or payable. 
Sellers shall indemnify, defend and hold harmless Buyer from and against
any and all losses, costs, liens, claims, liabilities or damages (including,
but not limited to, reasonable attorneys’ fees and disbursements) resulting
from a breach of the foregoing representation or any claim that may be made by
any investment banker, broker or other person claiming a commission, fee or
other compensation by reason of having dealt with Sellers in connection with
this transaction including, without limitation, any 


 


53

















 


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 of
this Agreement until the Survival Date set forth in Section 24.9(a)
hereof.


ARTICLE XIX.


 


ASSIGNMENT.


Section 19.1.           
Assignment.  Buyer shall
not directly or indirectly assign or transfer this Agreement or any of its
rights hereunder without Sellers’ prior written consent in each instance, which
consent may be granted or withheld in Sellers’ sole and absolute discretion;
provided, however, Seller hereby consents to Buyer assigning this Agreement to
one or more entities at Closing (a) that are either controlling or controlled
by Buyer or (b) in which Buyer, or any affiliate of Buyer, is an investor,
member or partner.  No consent given by
Sellers to any assignment shall be construed as a consent to any other
assignment, and any unpermitted assignment made by Buyer shall be void.  In the event the rights and obligations of
Buyer shall be assigned as aforesaid, the assignee will be substituted in place
of Buyer in the documents executed or delivered pursuant to this Agreement and
shall assume in writing all of Buyer’s duties and obligations hereunder; provided,
however, that such assignment and assumption shall not relieve Buyer of
its obligations hereunder, and that Buyer and such assignee shall remain
jointly 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 and
further acts and things, and to execute and deliver such instruments and
documents, as either may reasonably request from time to time, on or after the
Closing Date, at the cost of the requesting party in furtherance of the
purposes of this Agreement and consistent with the terms hereof.  The provisions of this Article XX
shall survive the Closing until the Survival Date set forth in Section
24.9(a) hereof.


ARTICLE XXI.


 


CONFIDENTIALITY.


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


 


54

















 


the reason for any termination of this Agreement (if
applicable).  Without in any way limiting
the foregoing, prior to Closing, Buyer expressly agrees not to have any
discussions regarding, or share any information relating to, this Agreement or
the terms hereof, with any Tenant except as otherwise specifically permitted
under this Agreement.  Notwithstanding
the foregoing, the confidentiality provisions of this Section 21.1 shall not
apply to disclosures to governmental agencies having jurisdiction over either
Buyer or Seller, or other communications with their direct and indirect investors,
lenders, professional advisors assisting with the transactions contemplated
herein and employees regarding this Agreement and/or the transactions
contemplated herein (each a “Confidence Party”), without the consent of
the other; provided that each Confidence Party shall agree to be bound by the
terms of this Article XXI, and if requested by the disclosing party,
shall be obligated to execute and deliver a confidentiality agreement
confirming that such Confidence Party is bound by the terms of this Article
XXI.  The provisions of this Section
21.1 shall survive Closing or the termination of this Agreement until the
applicable Survival Date set forth in Section 24.9 (a) hereof.


ARTICLE XXII.


 


PUBLIC DISCLOSURE - PRESS
RELEASES.


Section 22.1.          Public Disclosure.  Except to the extent required by law, prior
to Closing, Sellers and Buyer each agree that it will not issue any press
release or advertisement with respect to this Agreement or the transactions
contemplated hereby without the prior written consent of the other party
hereto, which consent shall not be unreasonably withheld or delayed.  If Sellers or Buyer are required by law to issue such a
press release or other public communication, at least one (1) Business Day
prior to the issuance of the same such party shall deliver a copy of the
proposed press release or other public communication to the other party hereto
for its review and approval. 
Notwithstanding the foregoing, Sellers and Buyer may make an announcement
to, and make any other required filings with governmental agencies having
jurisdiction over either Buyer or Sellers, otherwise communicate with, its
direct and indirect investors, lenders and employees regarding this Agreement
and/or the transactions contemplated herein, without the consent of the
other.  The provisions of this Section
22.1 shall survive Closing or the earlier termination of this Agreement
until 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 shall
disburse all funds deposited with Escrow Holder on account of the Purchase
Price to Sellers as Sellers may direct or in accordance with a closing
statement prepared by Escrow Holder and approved by Sellers and Buyer.


 


55

















ARTICLE XXIV.


 


MISCELLANEOUS.


Section 24.1.          Entire Agreement.  This Agreement and the Exhibits attached
hereto, together with Seller’s Documents and Buyer’s Documents, constitute the
entire agreement between the parties with respect to the subject matter hereof,
and all understandings and agreements heretofore or simultaneously had between
the 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 by
the parties hereto; and any consent, waiver, approval or authorization (other
than deemed consents or approvals) shall be effective only if signed by the
party granting such consent, waiver, approval or authorization.


Section 24.3.          Captions.  The table of contents, captions, Section and
Article titles and Exhibit and Schedule names contained in this Agreement are
for convenience and reference only and shall not be used in construing this
Agreement.


Section 24.4.          Governing
Law.  This Agreement shall be
governed by and construed in accordance with the internal laws of the
Commonwealth of Virginia and not the conflicts of laws provisions thereof, without
the aid of any custom, canon or rule of law requiring construction against the
draftsman.  Without limiting the
foregoing, any questions relating to the status of title and conveyance
documents delivered on the Closing Date shall be governed by the internal laws
of the Commonwealth of Virginia and not the conflicts of laws provisions
thereof.  In any such litigation the
parties to this Agreement waive personal service of any summons, complaint, or
other process, and agree that service thereof may be made as provided in Article
XVII 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 a
whole, and not to any particular article or provision, unless expressly so
stated.  All words or terms used in this
Agreement, regardless of the number or gender in which they are used, shall be
deemed to include any other number and any other gender as the context may
require.


Section 24.6.          Certain
Definitions.  The following terms
used but not otherwise defined herein shall have the following meanings:


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


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


(c)           “Commercially
reasonable efforts” as used herein shall not obligate Sellers to pursue
litigation or any other enforcement action or to incur more than ******** in
the 


 


56

















 


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


Section 24.7.          Exhibits.  The Exhibits attached hereto are hereby made
part of this Agreement.


Section 24.8.          Successors
and Assigns.  Subject to the
provisions of Article XIX above, this Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns.  None
of the provisions of this Agreement are intended to be, nor shall they be
construed to be, for the benefit of any third party except for the Released
Parties pursuant to the terms hereof.


Section 24.9.          Survival.  (a) The acceptance by Buyer from each Seller
of the Deeds and related closing documents referred to in Article XIII
above shall be deemed to be an acknowledgment, for all purposes, of the full
performance and discharge of every representation, agreement and obligation on
the part of each Seller to be performed by it pursuant to the provisions of
this Agreement, except for the following provisions which are to survive the
Closing (or, as applicable, any termination of this Agreement) until the
Survival Date and any other provisions of this Agreement which are specifically
stated to survive the Closing (or, as applicable, any termination of this
Agreement).  The “Survival Date”
shall mean the following with respect to the Articles or Sections set forth
below:


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


Section 3.6 (No
Representation Regarding Due Diligence Materials),


Section 3.7 (Buyer
Investigation Indemnity),


Section 3.8 (Return of
Information 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’s
Representations),


Article XII (Condition of
Properties; Release of Claims),


Article XIV
(Default, Damages, Limitation of Liability),


Article XVII (Notices),


Article XVIII (Investment
Banker and Broker), and


Article
XXIV (Miscellaneous).


 


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


 


Article IV (Assessments),


Article V (Expenses),


Article VI (Prorations),


Sections
8.1(f)-(j) (Seller’s Representations),


Article
XI (Tax Reassessment or Reduction Proceedings),


Section 13.1(n) and (p) (Deliveries at
Closing),


Section
15.2 (Books and Records),


 


 


57

















 


Article XX (Further
Assurances),


Article XXI (Confidentiality),
and


Article XXII (Disclosure).


 


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


 


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


(c)           The
provisions of this Section 24.9 shall survive the Closing or, as
applicable, any termination of this Agreement, indefinitely.


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


Section 24.11.        Severability.  If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid or unenforceable, the remainder of this Agreement or the application of
such provision to the person or circumstance other than those in respect of
which it is invalid or unenforceable, except those provisions which are
expressly made subject to or conditioned upon such invalid or unenforceable
provisions, 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 taken
together, shall be deemed one and the same instrument.


Section 24.13.        Recordation.  Neither Sellers nor Buyer may record this
Agreement or any memorandum hereof.


Section 24.14.        Time
of Essence.  Time is of the essence
of this Agreement.  In the computation of
any period of time provided for in this Agreement or by law, the day of the act
or event from which the period of time runs shall be excluded, and the last day
of such period shall be included, unless it is a Saturday, Sunday, or legal
holiday, in which case the period shall be deemed to run until the end of the
next day which is not a Saturday, Sunday, or legal holiday.


Section 24.15.        Escrow
Holder.  Buyer, Seller and Escrow Holder
each acknowledge and agree that Escrow Holder is executing this Agreement
solely for the purpose of acknowledging its obligations set forth in Article II
and Section 23.1 hereof.  


 


58

















This Agreement shall be deemed to be binding and
effective upon execution by Buyer and Seller and when the Deposit is posted (as
required hereunder).  Amendments to this
Agreement shall not require the consent of Escrow Holder to be effective unless
affecting the rights or obligations of Escrow Holder under this Agreement.


Section 24.16.        Binding
Agreement.  The
submission of an unsigned copy of this Agreement to Buyer or Sellers shall not
constitute an offer or option to buy or sell the Property.  This Agreement shall become effective and
binding only upon execution and delivery by both Sellers and Buyer.


Section 24.17.        No Third-Party Beneficiaries.  This Agreement shall not confer any rights or
obligations upon any person other than the parties to this Agreement and their
respective successors and permitted assigns.


Section
24.18.        WAIVER OF TRIAL BY JURY.  THE SELLERS AND THE PURCHASER HEREBY WAIVE
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER ARISING IN
TORT OR CONTRACT) BROUGHT BY EITHER AGAINST THE OTHER ON ANY MATTER ARISING OUT
OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT. 
THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE CONSUMMATION OF THE
TRANSACTION CONTEMPLATED BY THE TERMS OF THIS AGREEMENT OR EARLIER TERMINATION
OF THIS AGREEMENT.


[THE REMAINDER OF THE
PAGE INTENTIONALLY LEFT BLANK]


 


59

















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


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 Corporate

  
	
   

  	
   

  	
  Secretary

  



SELLERS:


	
   

  	
  By:

  	
  [Seal]

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


[Sellers’
Signatures Attached on Following Pages]


ESCROW
HOLDER:


FIRST
AMERICAN TITLE INSURANCE COMPANY


	
   

  	
  By:

  	
  [Seal]

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


 


SCHEDULE 3.1(a)-1

















 


FIRST
AMENDMENT TO COMMERCIAL MULTI-PROPERTY AGREEMENT OF PURCHASE AND SALE


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


RECITALS:


R-1.                                                                         Buyer and
Sellers entered into that certain Commercial Multi-Property Agreement of Purchase
and Sale, dated January 24, 2006, (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.


R-2.                                                                         Simultaneously
with this First Amendment, Buyer is purchasing a portion of the Properties
through various assignees controlled by Buyer.


R-3.                                                                         Buyer and
Seller have agreed to amend the Agreement pursuant to the terms of this First
Amendment.


AGREEMENTS:


NOW, THEREFORE, in consideration of Ten Dollars ($10.00) in hand
paid from each party to the other, the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Buyer and Seller hereby agree as
follows:


1.             Definitions.  Unless
otherwise provided herein, all capitalized terms not expressly defined in this
First Amendment shall have the meanings ascribed to such terms in the
Agreement.


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


3.             Closing
Date.  Notwithstanding anything to the contrary
contained in the Agreement, Sellers and Buyer acknowledge that the properties
described on Exhibit B hereto


1

















 


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


4.             Estoppels for Delayed
Properties.  If Sellers have
satisfied the estoppel requirements for any Portfolio by delivering a Seller’s
Estoppel for any Delayed Property, Seller shall update said Seller’s Estoppel
stating the current status of facts at the Closing of such Delayed Property.


 


5.             ******
** — ***********.  Notwithstanding anything herein to the
contrary, each of **************** ****** ******* *********** (the “*** ******”) and Buyer acknowledge and
agree that, pursuant to the request of Buyer, ***
****** is conveying title to a certain portion of real property in
*********** ****** commonly known as “****** **” to *********** ***** *** (an
assignee of Buyer) rather than conveying the same to *********** *********, ***
(another assignee of Buyer) together with other real property and buildings in
TransDulles Center owned by *** ******
(the “*** ******** ********”). *********** *********, *** and ***********
**** *** are collectively referred to as the “***
******” Without waiving any other claims that Buyer (or *** ******, as assignee of Buyer) may have
against *** ****** under the
Agreement, in the event Buyer’s election to have ****** ** and the *** ********
******** conveyed to two separate buyers, rather than one single buyer
hereunder, causes any representations, warranties or covenants of *** ****** to be untrue, or conditions to
Buyer’s or *** ******* obligations
to Close to be unsatisfied, or causes any portion of ****** ** or any portion
of the *** ******** ******** to be in violation of any title, zoning (including
subdivision) or other requirements, any such failure of representation,
warranty or covenant, or the Property’s violation of any such title, zoning or
other matter, shall not be the basis of a ***
****** default hereunder and shall not excuse *** ******* performance of its obligations
under 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.             Facsimile
Signatures; Counterparts.  This
First Amendment may be executed in multiple counterparts, each of which shall
be enforceable against the party signing 


 


2

















 


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


7.             Reaffirmation
of Purchase Agreement.  Except as expressly set forth in this First
Amendment, neither the Agreement nor any provision thereof has been or is
hereby amended.  In furtherance of, and
without in any manner limiting the foregoing, Buyer and Seller each hereby
agree and acknowledge that the Agreement, as amended hereby, remains in full
force and effect and is hereby affirmed, confirmed and reaffirmed.


 


 


[Signature
Pages to Follow]


 


3

















 


                IN
WITNESS WHEREOF,
Buyer and Sellers have executed and delivered this First Amendment under seal
as 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 COMMERCIAL
MULTI-PROPERTY AGREEMENT OF


PURCHASE
AND SALE


THIS SECOND AMENDMENT TO COMMERCIAL MULTI-PROPERTY
AGREEMENT OF PURCHASE AND SALE (this “Second Amendment”)
is made as of March 10, 2006, by and among the entities listed on Schedule
1-A attached hereto (each, a “Seller” and
collectively, the “Sellers”), and DUKE REALTY LIMITED PARTNERSHIP, an Indiana limited
partnership (“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 hand
paid from each party to the other, the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Buyer and Seller hereby agree as
follows:


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


2.             Reduction
in Purchase Price.    Pursuant to Section 6.3 of the Agreement, and agreement between the parties, the Purchase Price for
the Properties being acquired on the date hereof is hereby amended and
allocated to such Properties as more particularly described on Exhibit A
attached hereto (the Properties listed on Exhibit A hereto are referred to as
the “Second Phase Properties”).


3.             Facsimile
Signatures; Counterparts.    This
Second Amendment may be executed in multiple counterparts, each of which shall
be enforceable against the party signing same, and all of which together shall
constitute a single and enforceable agreement. 
Executed

















 


counterparts of this Second Amendment may
be delivered by either party via facsimile or telecopy transmission, and any
such transmission shall be deemed effective and binding on the party effecting
such delivery.  Any party effecting
delivery of this Second Amendment by facsimile or telecopy transmission shall
not use as a defense against the enforceability hereof the fact that any
signatures so transmitted are not original.


4.             Reaffirmation
of Purchase Agreement.    Except as expressly set forth in this
Second Amendment, neither the Agreement nor any provision thereof has been or
is hereby amended.  In furtherance of,
and without in any manner limiting the foregoing, Buyer and Seller each hereby
agree and acknowledge that the Agreement, as amended hereby, remains in full
force and effect and is hereby affirmed, confirmed and reaffirmed.


 


 


[Signature
Pages to Follow]


2

















 


                IN
WITNESS WHEREOF,
Buyer and Sellers have executed and delivered this Second Amendment under seal
as 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

  
									



 


 


 


[Signature
Page 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

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
											



 


 


 


[Signature
Page 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

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
													



 

















 


THIRD
AMENDMENT TO COMMERCIAL MULTI-PROPERTY AGREEMENT OF PURCHASE AND SALE


THIS THIRD AMENDMENT TO COMMERCIAL MULTI-PROPERTY
AGREEMENT OF PURCHASE AND SALE (this “Third Amendment”)
is made as of April 21, 2006, by and between ****** ** ASSOCIATES
LIMITED PARTNERSHIP (“Seller”), and DUKE REALTY LIMITED PARTNERSHIP, an Indiana limited
partnership (“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 hand
paid from each party to the other, the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Buyer and Seller hereby agree as
follows:


1.             Definitions.           Unless
otherwise provided herein, all capitalized terms not expressly defined in this
Third Amendment shall have the meanings ascribed to such terms in the
Agreement.


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


3.             Facsimile
Signatures; Counterparts.  This
Third Amendment may be executed in multiple counterparts, each of which shall
be enforceable against the party signing same, and all of which together shall
constitute a single and enforceable agreement. 
Executed 

















counterparts of this Third Amendment may
be delivered by either party via facsimile or telecopy transmission, and any
such transmission shall be deemed effective and binding on the party effecting
such delivery.  Any party effecting
delivery of this Third Amendment by facsimile or telecopy transmission shall
not use as a defense against the enforceability hereof the fact that any signatures
so transmitted are not original.


4.             Reaffirmation
of Purchase Agreement.          Except as expressly set forth in this
Third Amendment, neither the Agreement nor any provision thereof has been or is
hereby amended.  In furtherance of, and
without in any manner limiting the foregoing, Buyer and Seller each hereby
agree and acknowledge that the Agreement, as amended hereby, remains in full
force and effect and is hereby affirmed, confirmed and reaffirmed.


 


 


[Signature
Pages to Follow]


 


 


[Signature Page of Third Amendment
to Commercial Multi-Property P&S]


 


2

















                IN
WITNESS WHEREOF,
Buyer and Seller have executed and delivered this Third Amendment under seal as
of the date first hereinabove written.


                SELLER:


****** ** 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

  


















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