**Exhibit 10.1**

** **

**AGREEMENT OF PURCHASE AND SALE**

** **

This Agreement of Purchase and Sale (“**Agreement**”),dated as of June 23, 2005 (the “**EffectiveDate**”, as defined in Section 9.14 herein), is by and between ER Carter, L.L.C., a Delaware limitedliability company (“**Seller**”), andComstock Carter Lake, L.C., a Virginia limited liability company (“**Buyer**”).

 

**ARTICLE IPURCHASE AND SALE OF PROPERTY**

 

**Section 1.1****                                  **Sale.

 

Seller agrees to sell to Buyer, and Buyer agrees to purchase fromSeller, subject to the terms, covenants and conditions set forth herein, all ofSeller’s right, title and interest in and to the following property(collectively, the “**Property**”):

 

**(a)****                                 **RealProperty.  That certain real propertycommonly known as “Carter Lake Apartments” and located in Reston, Virginia asmore particularly described in **Exhibit A**attached hereto and made a part hereof (the “**Land**”),together with (1) all improvements located thereon (the “**Improvements**”), (2) all rights,benefits, privileges, easements, tenements, hereditaments, rights-of-way andother appurtenances thereon or in any way appertaining thereto, including allmineral rights, development rights, air and water rights, and (3) allstrips and gores and any land lying in the bed of any street, road or alley,open or proposed, adjoining such Land (collectively, the “**Real Property**”);

 

**(b)****                                 **Leases.  All of the Seller’s interest in and to all ofthe Leases (as defined in Section 2.1 below), including Leases enteredinto after the date of this Agreement as permitted by this Agreement;

 

**(c)****                                 **TangiblePersonal Property.  All of theequipment, machinery, furniture, furnishings, supplies and other tangiblepersonal property, if any, owned by Seller and now or hereafter located on andused exclusively in the operation, ownership or maintenance of the RealProperty (collectively, the “**TangiblePersonal Property**”), but specifically excluding from the TangiblePersonal Property, except to the extent sold or assigned to Buyer pursuant tothe provisions of this Agreement (1) any items of personal property ownedby tenants under the Leases, (2) any items of personal property in Seller’sproperty management office, if any, located on the Real Property, (3) anyitems of personal property owned by third parties and leased to Seller, and (4) proprietarycomputer software, systems and equipment and related licenses used inconnection with the operation or management of the Property. Seller hasprovided to Buyer all lists and inventories in Seller’s possession or controlof such Tangible Personal Property; and

 

**(d)****                                 **IntangiblePersonal Property.  To the extentassignable at no cost to Seller, all intangible personal property, if any,owned by Seller and related to the Real Property, including, withoutlimitation: any trade names and trademarks associated with the Real Property(but specifically excluding the name “RREEF” and any derivatives thereof); anyplans and specifications and other architectural and engineering drawings forthe Improvements; any warranties; any Service Contracts (as defined in Section 2.1below) and other contract rights

 

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related to theProperty (but only to the extent Seller’s obligations thereunder are expresslyassumed by Buyer pursuant to the Assignment of Leases as defined in Section 8.3(a)(3) below);and any governmental permits, approvals and licenses (including any pendingapplications) (collectively, the “**IntangiblePersonal Property**”).  Sellerhas provided to Buyer all lists and inventories in Seller’s possession orcontrol of such Intangible Personal Property.

 

**Section 1.2****                                   PurchasePrice.**

 

**(a)****                                 **Thepurchase price of the Property is Thirty Six Million Two Hundred Fifty Thousandand No/100 Dollars ($36,250,000.00) (the “**PurchasePrice**”).

 

**(b)****                                 **ThePurchase Price shall be paid as follows:

 

**(1)****                                **Withinfive (5) business days after delivery to Buyer of the necessary approvalsrequired by Section 9.23, Buyer shall deliver to Seller cash or otherimmediately available funds in the amount of Four Million and No/100 Dollars($4,000,000.00) (the “**Deposit**”).  Upon delivery the Deposit shall be fullyearned by Seller and shall be nonrefundable (except in the event of Seller’swillful refusal to close after Buyer’s full performance hereunder or asotherwise expressly provided in this Agreement) and shall not be subject to anyBuyer closing condition.

 

The fullamount of the Deposit paid to the Seller shall be credited against the PurchasePrice at the Closing (as defined in Section 1.2(b)(2) below).  **IF THE SALEOF THE PROPERTY IS NOT CONSUMMATED DUE TO SELLER’S WILLFUL FAILURE TO CONVEYTHE PROPERTY TO SELLER, THEN BUYER MAY ELECT, AS BUYER’S SOLE ANDEXCLUSIVE REMEDY, EITHER TO: (1) TERMINATE THIS AGREEMENT AND, WHEREEXPRESSLY PROVIDED HEREUNDER, RECEIVE A REFUND OF THE DEPOSIT IN WHICH EVENTNEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER EXCEPT ASPROVIDED IN SECTIONS 6.1, 9.3 AND 9.9 BELOW, OR (2) ENFORCE SPECIFICPERFORMANCE OF THIS AGREEMENT.  IF THESALE OF THE PROPERTY IS NOT CONSUMMATED DUE TO ANY OTHER DEFAULT BY SELLER THENBUYER MAY, AS BUYER’S SOLE AND EXCLUSIVE REMEDY, ENFORCE SPECIFIC PERFORMANCEOF THIS AGREEMENT.  BUYER SHALL NOT HAVEANY OTHER RIGHTS OR REMEDIES HEREUNDER AS A RESULT OF ANY DEFAULT BY SELLERPRIOR TO CLOSING, AND BUYER HEREBY WAIVES ANY OTHER SUCH REMEDY AS A RESULT OFA DEFAULT HEREUNDER BY SELLER.  IF THESALE IS NOT CONSUMMATED DUE TO ANY DEFAULT BY BUYER HEREUNDER, AND BUYER FAILSTO CURE SUCH DEFAULT WITHIN FIVE (5) DAYS AFTER NOTICE FROM SELLER, THENSELLER SHALL RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES, AS SELLER’S SOLE AND EXCLUSIVEREMEDY IN CONNECTION WITH SUCH DEFAULT. THE PARTIES HAVE AGREED THAT SELLER’S ACTUAL DAMAGES, IN THE EVENT OF AFAILURE TO CONSUMMATE THIS SALE DUE TO BUYER’S DEFAULT PRIOR TO CLOSING, WOULDBE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE.  AFTER NEGOTIATION, THE PARTIES HAVE AGREEDTHAT, CONSIDERING ALL THE CIRCUMSTANCES**

 

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**EXISTING ON THE DATE OF THIS AGREEMENT, THEAMOUNT OF THE DEPOSIT IS A REASONABLE ESTIMATE OF THE DAMAGES THAT SELLER WOULDINCUR IN SUCH EVENT.  BY PLACING THEIRINITIALS BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTSMADE ABOVE AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHOEXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF THISLIQUIDATED DAMAGES PROVISION.  THEFOREGOING IS NOT INTENDED TO LIMIT BUYER’S OBLIGATIONS UNDER SECTIONS 6.1, 9.3AND 9.9.**

 
| INITIALS: |   | SELLER |   | BUYER |
|-----------|--------|--------|--------|-------|

 

**(2)****                                **Thebalance of the Purchase Price (plus or minus the prorations pursuant to Section 8.5hereof) shall be paid to Seller in cash or by wire transfer of otherimmediately available funds at the consummation of the purchase and salecontemplated hereunder (the “**Closing**”).

 

**ARTICLE IICONDITIONS**

 

**Section 2.1****                                   Buyer’sConditions Precedent.**

 

Subject to the provisions of Section 9.3 hereof, Buyeracknowledges that Seller has provided Buyer and its consultants and otheragents and representatives with access to the Property to perform Buyer’sinspections and review and determine the present condition of theProperty.  Buyer acknowledges that Sellerhas delivered or made available to Buyer at Seller’s offices or at the RealProperty copies of all “Due Diligence Materials” in Seller’s possession, exceptas otherwise specifically provided herein. “**Due Diligence Materials**”****shall include, but not be limited to, (i) tenantleases, any guaranties thereof and any other occupancy agreements, and allamendments and modifications thereof affecting the Property (collectively, the “**Leases**”), (ii) all contracts pertainingto the operation of the Property, including all management, leasing, serviceand maintenance agreements, and equipment leases (collectively, the “**Service Contracts**”), (iii) all othercontracts, agreements, reports and other items and materials related to theProperty, (iv) any environmental reports in Seller’s possession andprepared by or on behalf of Seller, and (v) copies of building plans, ifany, at the Property. ** **Notwithstanding anything to thecontrary contained herein, the Due Diligence Materials shall expressly exclude (i) thoseportions of the Due Diligence Materials that would disclose Seller’s cost ofacquisition of the Real Property, or cost of construction of the Improvementsand related soft costs, (ii) any reports, presentations, summaries and thelike prepared for any of Seller’s boards, committees, partners or investors inconnection with its consideration of the acquisition of the Real Property,construction of the Improvements or sale of the Property, (iii) anyproposals, letters of intent, draft contracts or the like prepared by or forother prospective purchasers of the Property or any part thereof, (iv) Seller’sinternal memoranda, attorney-client privileged materials, internal appraisals,structural or physical inspection reports, and (v) any information whichis the subject of a confidentiality agreement between Seller and a third party

 

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(the itemsdescribed in clauses (i), (ii) (iii), (iv) and (v) beingcollectively referred to as the “**ConfidentialInformation**”). Buyer’s obligation to purchase the Property isconditioned upon title to the Property being conveyed in accordance with theprovisions of Section 4.1(e) below. Anything provided in this Agreement to the contrary notwithstanding, thefailure of the condition described in the preceding sentence, unless suchfailure results from the intentional act or omission of Seller, shall not beconsidered a default by Seller and shall not entitle Buyer to receive a returnof the Deposit. The failure of Seller to obtain the necessary approvals asrequired by Section 9.23 below on or before July 29, 2005 shallentitle either party to terminate this Agreement, unless upon notice fromSeller of its intention to terminate this Agreement, Buyer waives the approvalrequirements contain in Section 9.24.

 

**ARTICLE IIIBUYER’S EXAMINATION**

 

**Section 3.1****                                   Representationsand Warranties of Seller.**

 

Subject to the disclosures contained in **Schedule 1** attached hereto and made a part hereof(the “**Disclosure Items**”), matterscontained in the Due Diligence Materials, and any matters of public recordwhere the Property is located, Seller hereby makes the followingrepresentations and warranties with respect to the Property.  Notwithstanding anything to the contrarycontained herein or in any document delivered in connection herewith, Sellershall have no liability with respect to the Disclosure Items.

 

**(a)****                                 **Sellerhas not (i) made a general assignment for the benefit of creditors, (ii) filedany voluntary petition in bankruptcy or suffered the filing of any involuntarypetition by Seller’s creditors, (iii) suffered the appointment of areceiver to take possession of all, or substantially all, of Seller’s assets, (iv) sufferedthe attachment or other judicial seizure of all, or substantially all, ofSeller’s assets, (v) admitted in writing its inability to pay its debts asthey come due, or (vi) made an offer of settlement, extension orcomposition to its creditors generally.

 

**(b)****                                 **Selleris not a “foreign person” as defined in Section 1445 of the InternalRevenue Code of 1986, as amended (the “**Code**”)and any related regulations.

 

**(c)****                                 **(i) ThisAgreement has been, and all documents executed by Seller which are to bedelivered to Buyer at Closing will be, duly authorized, executed and deliveredby Seller, and (ii) this Agreement , and all documents executed by Sellerwhich are to be delivered to Buyer at Closing, do not and will not violate anyprovision of any agreement or judicial order to which Seller is a party or towhich Seller or, to the best of Seller’s knowledge, the Property is subject.

 

**(d)****                                 **Theonly Leases in force for the Property as of the Effective Date are set forth ina tenant list and rent roll, together with information regarding any securitydeposits held in connection with the same, and current delinquency information,attached hereto as **Exhibit B**and made a part hereof (the “**Rent Roll**”).  To the best of Seller’s knowledge, Seller hasreceived

 

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no writtennotice of any default by Seller with respect to such Leases which has not beencured.  To the best of Seller’sknowledge, the updated Rent Roll delivered at closing shall include all of theLeases then in force for the Property.

 

**(e)****                                 **Theonly Service Contracts in effect for the Property as of the Effective Date areset forth in a list of Service Contracts attached hereto as **Exhibit G** and made a part hereof.  To the best of Seller’s knowledge, theupdated list of Service Contracts delivered at closing shall include all of theService Contracts then in effect for the Property.

 

**(f)****                                   **Tothe best of Seller’s knowledge, as of the Effective Date there is no litigationor governmental proceeding (including, but not limited to any condemnationproceeding) pending or threatened with respect to the Property, or with respectto Seller which impairs Seller’s ability to perform its obligations under thisAgreement, except for any personal injury or property damage action for whichthere is adequate insurance coverage.

 

**(g)****                                **Tothe best of Seller’s knowledge, as of the Effective Date Seller has received nowritten notice from any governmental authority of any violation of any lawapplicable to the Property (including, without limitation, any EnvironmentalLaw as defined in Section 3.6(a)(2) below) that has not beencorrected.

 

**(h)****                                **Tothe best of Seller’s knowledge, all of the Due Diligence Materials delivered ormade available by Seller to Buyer in connection with the Property are completecopies of such items in Seller’s possession which are used by Seller in theoperation of the Property.

 

**(i)****                                   **Sellerhas been, and as of the Closing Date shall be, duly organized, validlyexisting, and in good standing in the state in which it was formed, and, if sorequired to, qualified to do business in the state in which the Real Propertyis located.

 

**(j)****                                   **Otherthan Seller’s Broker (as defined in Section 6.1 below), Seller has had nocontact with any broker or finder with respect to the sale of the Property.

 

**(k)****                               **Sellerhas not prepaid, more than thirty (30) days in advance, expenses for theProperty other than real estate taxes and payments under Service Contractswhich are not terminable without penalty or payment of a fee or other cost toSeller.

 

Each of therepresentations and warranties of Seller contained in this Section 3.1:  (1) shall be true in all materialrespects as of the Effective Date or as of such other date as is expresslyprovided in such representation or warranty, subject in each case to (A) anyException Matters (as defined below), (B) the Disclosure Items, and (C) othermatters expressly permitted in this Agreement or otherwise specificallyapproved in writing; and (2) shall survive the Closing as provided in Section 3.3below.

 

**Section 3.2****                                   NoLiability for Exception Matters.**

 

As used herein, the term “**ExceptionMatter**” shall refer to a matter which would make a representation orwarranty of Seller contained in this Agreement untrue or incorrect as of a date

 

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prior to theEffective Date, or as of such other date as is expressly provided in suchrepresentation or warranty, and which is disclosed to Buyer in the DueDiligence Materials, the Disclosure Items, or otherwise, or is a matter ofpublic record, or is otherwise discovered by Buyer before the Closing,including, without limitation, matters disclosed in any interviews withtenants, property managers or any other person. If Buyer first obtains knowledge of any material Exception Matter afterthe Effective Date and prior to the Closing Date and such Exception Matter wasnot contained in the Due Diligence Materials, the Disclosure Items or is not amatter of public record, Buyer’s sole remedy shall be to terminate thisAgreement on the basis thereof, upon written notice to Seller within theearlier of (a) five (5) days following Buyer’s discovery of suchException Matter or (b) the Closing Date, which ever occurs first, inwhich event the Deposit shall be returned to Buyer, unless within five (5) daysafter receipt of such notice or by the Closing Date, as the case may be, Sellernotifies Buyer in writing that it elects to attempt to cure or remedy suchException Matter, in which event there shall be no return of the Deposit unlessand until Seller is unable to so cure or remedy prior to the Closing Date.  Buyer’s failure to give notice within five (5) daysafter it has obtained knowledge of a material Exception Matter shall be deemeda waiver by Buyer of such Exception Matter. Seller shall have no obligation to cure or remedy any Exception Matter(other than monetary liens as provided in Section 4.1(c) below), evenif Seller has notified Buyer of Seller’s election to attempt to cure or remedyany Exception Matter (except as specifically provided in Section 4.1(c) hereof),and, subject to Buyer’s right to terminate this Agreement as set forth above,Seller shall have no liability whatsoever to Buyer with respect to anyException Matters.  Upon any terminationof this Agreement, neither party shall have any further rights or obligationshereunder, except as provided in Sections 6.1, 9.3 and 9.9 below. If Buyerobtains knowledge of any Exception Matter, but nonetheless elects to proceedwith the acquisition of the Property, Seller shall have no liability withrespect to such Exception Matter, notwithstanding any contrary provision,covenant, representation or warranty contained in this Agreement or in anyOther Documents (as defined in Section 9.19 below).

 

**Section 3.3****                                   Survivalof Seller’s Representations and Warranties of Sale.**

 

The representations and warranties of Seller contained herein or in anyOther Documents shall survive for a period of nine (9) months after theClosing.  Any claim which Buyer may haveagainst Seller for a breach of any such representation or warranty, whethersuch breach is known or unknown, which is not specifically asserted by writtennotice to Seller within such nine (9) month period shall not be valid oreffective, and Seller shall have no liability with respect thereto.

 

**Section 3.4****                                   Seller’sKnowledge.**

 

For purposes of this Agreement and any document delivered at Closing,whenever the phrase “**to the best of Seller’sknowledge**” or the “**knowledge**”of Seller or words of similar import are used, they shall be deemed to mean andare limited to the current actual knowledge only of Peter F. Feinberg andRobert Hanrahan, at the times indicated only, and not any implied, imputed orconstructive knowledge of such individual(s) or of Seller or any Seller RelatedParties (as defined in Section 3.7 below), and without any independentinvestigation or inquiry

 

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having beenmade or any implied duty to investigate, make any inquiries or review the DueDiligence Materials.  Furthermore, it isunderstood and agreed that such individual(s) shall have no personal liabilityin any manner whatsoever hereunder or otherwise related to the transactionscontemplated hereby.

 

**Section 3.5****                                   Representationsand Warranties of Buyer.**

 

Buyer represents and warrants to Seller as follows:

 

**(a)****                                 **ThisAgreement and all documents executed by Buyer which are to be delivered toSeller at Closing do not and at the time of Closing will not violate anyprovision of any agreement or judicial order to which Buyer is a party or towhich Buyer is subject.

 

**(b)****                                 **Buyerhas not (i) made a general assignment for the benefit of creditors, (ii) filedany voluntary petition in bankruptcy or suffered the filing of any involuntarypetition by Buyer’s creditors, (iii) suffered the appointment of areceiver to take possession of all, or substantially all, of Buyer’s assets, (iv) sufferedthe attachment or other judicial seizure of all, or substantially all, of Buyer’sassets, (v) admitted in writing its inability to pay its debts as theycome due, or (vi) made an offer of settlement, extension or composition toits creditors generally.

 

**(c)****                                 **Buyerhas been duly organized, is validly existing and is in good standing in thestate in which it was formed, and, if required to do so, is qualified to dobusiness in the state in which the Real Property is located.  This Agreement has been, and all documentsexecuted by Buyer which are to be delivered to Seller at Closing will be, dulyauthorized, executed and delivered by Buyer.

 

**(d)****                                 **Omitted.

 

**(e)****                                 **Buyeris not a party in interest with respect to any employee benefit or other planwithin the meaning of Section 3(3) of the Employee Retirement IncomeSecurity Act of 1974, as amended (“**ERISA**”),or of Section 4975(e)(1) of the Code, which is subject to ERISA or Section 4975of the Code and which is an investor in Seller.

 

**(f)****                                   **Otherthan Seller’s Broker (as defined in Section 6.1 below), Buyer has had nocontact with any broker or finder with respect to the Property.

 

Each of therepresentations and warranties of Buyer contained in this Section shall bedeemed remade by Buyer as of the Closing and shall survive the Closing.

 

**Section 3.6****                                   Buyer’sIndependent Investigation.**

 

**(a)****                                 **Buyerhereby acknowledges and agrees that it has been given a full opportunity toinspect and investigate each and every aspect of the Property, eitherindependently or through agents of Buyer’s choosing, including, withoutlimitation:

 

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**(1)****                                **Allmatters relating to title and survey, together with all governmental and otherlegal requirements such as taxes, assessments, zoning, use permit requirementsand building codes.

 

**(2)****                                **Thephysical condition and aspects of the Property, including, without limitation,the interior, the exterior, the square footage within the Improvements andwithin each tenant space therein, the structure, seismic aspects of theProperty, the foundation, roof, paving, parking facilities, utilities, and allother physical and functional aspects of the Property.  Such examination of the physical condition ofthe Property has included an examination for the presence or absence ofHazardous Materials, as defined below. For purposes of this Agreement, “**HazardousMaterials**” shall mean inflammable explosives, radioactive materials,asbestos, asbestos–containing materials, polychlorinated biphenyls, lead,lead-based paint, radon, under and/or above ground tanks, hazardous materials,hazardous wastes, hazardous substances, oil, or related materials, which arelisted or regulated in the Comprehensive Environmental Response, Compensationand Liability Act of 1980, as amended (42 U.S.C. Sections 6901, et seq.), theResources Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901,et seq.), the Clean Water Act (33 U.S.C. Section 1251, et seq.), the Safe DrinkingWater Act (14 U.S.C. Section 1401, et seq.), the Hazardous MaterialsTransportation Act (49 U.S.C. Section 1801, et seq.), and the ToxicSubstance Control Act (15 U.S.C. Section 2601, et seq.), and any otherapplicable federal, state or local laws (collectively, “**Environmental Laws**”).

 

**(3)****                                **Anyeasements and/or access rights affecting the Property.

 

**(4)****                                **TheLeases and all matters in connection therewith, including, without limitation,the ability of the tenants to pay the rent and the economic viability of thetenants.

 

**(5)****                                **TheService Contracts and any other documents or agreements of significanceaffecting the Property.

 

**(6)****                                **Allother matters of material significance affecting the Property, including, butnot limited to, the Due Diligence Materials.

 

**(b)****                                 **Exceptas expressly stated herein, Seller makes no representation or warranty as tothe truth, accuracy or completeness of any materials, data or informationdelivered by Seller to Buyer in connection with the transaction contemplatedhereby.  Buyer acknowledges and agreesthat all materials, data and information delivered by Seller to Buyer inconnection with the transaction contemplated hereby are provided to Buyer as aconvenience only and that any reliance on or use of such materials, data or informationby Buyer shall be at the sole risk of Buyer, except as otherwise expresslystated herein.  Without limiting thegenerality of the foregoing provisions, Buyer acknowledges and agrees that (a) anyenvironmental or other report with respect to the Property which is deliveredby Seller to Buyer shall be for general informational purposes only, (b) Buyershall not have any right to rely on any such report delivered by Seller toBuyer, but rather will rely on its own inspections and investigations of theProperty and any reports commissioned by Buyer with respect thereto, (c) neitherSeller, any

 

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affiliate ofSeller nor the person or entity which prepared any such report delivered bySeller to Buyer shall have any liability to Buyer for any inaccuracy in oromission from any such report and (d) the failure to deliver any report asto the environmental or other condition of the Property, including any proposalfor work at the Property which was not performed by Seller, shall not beactionable by Buyer under this Agreement or otherwise.

 

**(c)****                                 **EXCEPTAS EXPRESSLY SET FORTH IN SECTION 3.1 ABOVE AND ELSEWHERE IN THISAGREEMENT, BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT SELLER IS SELLINGAND BUYER IS PURCHASING THE PROPERTY ON AN “AS IS WITH ALL FAULTS” BASIS ANDTHAT BUYER IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KINDWHATSOEVER, EXPRESS OR IMPLIED, FROM SELLER, ANY SELLER RELATED PARTIES, ORTHEIR AGENTS OR BROKERS, OR ANY OTHER PERSON ACTING OR PURPORTING TO ACT ONBEHALF OF SELLER, AS TO ANY MATTERS CONCERNING THE PROPERTY, INCLUDING WITHOUTLIMITATION:  (i) the quality,nature, adequacy and physical condition and aspects of the Property, including,but not limited to, the structural elements, seismic aspects of the Property,foundation, roof, appurtenances, access, landscaping, parking facilities andthe electrical, mechanical, HVAC, plumbing, sewage, and utility systems,facilities and appliances, the square footage within the Improvements andwithin each tenant space therein, (ii) the quality, nature, adequacy, andphysical condition of soils, geology and any groundwater, (iii) theexistence, quality, nature, adequacy and physical condition of utilitiesserving the Property, (iv) the development potential of the Property, andthe Property’s use, habitability, merchantability, or fitness, suitability,value or adequacy of the Property for any particular purpose, (v) thezoning or other legal status of the Property or any other public or privaterestrictions on use of the Property, (vi) the compliance of the Propertyor its operation with any applicable codes, laws, regulations, statutes,ordinances, covenants, conditions and restrictions of any governmental orquasi-governmental entity or of any other person or entity, (vii) thepresence of Hazardous Materials on, under or about the Property or theadjoining or neighboring property, (viii) the quality of any labor andmaterials used in any improvements on the Real Property, (ix) the conditionof title to the Property, (x) the value, economics of the operation or incomepotential of the Property, or (xi) any other fact or condition which may affectthe Property, including without limitation, the physical condition, value,economics of operation or income potential of the Property.  In addition, except as expressly providedherein to the contrary, Seller shall have no legal obligation to apprise Buyerregarding any event or other matter involving the Property which occurs afterthe Effective Date or to otherwise update the Due Diligence Items.

 

**Section 3.7****                                   Release.**

 

Without limiting the above, and subject to the representations andwarranties of Seller contained in Section 3.1 hereof and any other matterswhich expressly survive Closing under this Agreement, Buyer, as of the date ofClosing, on behalf of itself and its successors and assigns waives its right torecover from, and forever releases and discharges, Seller, Seller’s affiliates,Seller’s investment advisor, the partners, trustees, beneficiaries,shareholders, members, managers, directors, officers, employees and agents andrepresentatives of each of them, and their respective heirs, successors,personal representatives and assigns (collectively, the “**Seller**

 

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**RelatedParties**”), from any and all demands, claims, legal oradministrative proceedings, losses, liabilities, damages, penalties, fines,liens, judgments, costs or expenses whatsoever (including, without limitation,court costs and attorneys’ fees and disbursements), whether direct or indirect,known or unknown, foreseen or unforeseen, that may arise on account of or inany way be connected with (i) the physical condition of the Propertyincluding, without limitation, all structural and seismic elements, allmechanical, electrical, plumbing, sewage, heating, ventilating, airconditioning and other systems, the environmental condition of the Property andthe presence of Hazardous Materials on, under or about the Property, or (ii) anylaw or regulation applicable to the Property, including, without limitation,any Environmental Law and any other federal, state or local law.

 

**Section 3.8****                                   Survival.**

 

The provisions of this Article III shall survive the Closingsubject to the limitations and qualifications contained in such provisions andin Sections 9.11 and 9.19 hereof.

 

**ARTICLE IVTITLE**

 

**Section 4.1****                                   Conditionsof Title.**

 

**(a)****                                 **Buyerhas obtained (i) an updated preliminary title report or commitment (the “**Title Report**”) from Premier Title, 8221 OldCourthouse Road #300, Vienna, Virginia 22182  (the “**Title Company**”) and (ii) any plat orsurvey of the Property or any update thereto from a duly licensed surveyor (the“**Survey**”) desired by Buyer ornecessary to support the issuance of the Title Policy (as defined in Section 4.2below).  If Buyer has not already doneso, Buyer’s shall provide to Seller a copy of (x) the Title Report, togetherwith copies of all underlying documents relating to title exceptions referredto therein and (y) the Survey, which shall be certified to the Title Company,Buyer and Seller.  Buyer shall pay theentire cost of the Title Report and the Survey. If Closing does not occur, Buyer shall, if Seller so requests, assign toSeller all contract rights Buyer has with the surveyor (to the extent that suchassignment is permitted under Buyer’s contract with the surveyor) and in suchevent Seller shall reimburse Buyer for the cost of the Survey.

 

**(b)****                                 **Withinone (1) business day after the Effective Date (the “**Title Review Date**”), Buyer shall furnishSeller with a written statement of objections, if any, to conditions to thetitle to the Property which were not disclosed in the title report and surveypreviously delivered to Buyer by Seller, including, without limitation, any objectionsto any matter first disclosed by the Survey (collectively, “**Objections**”).  In the event the Title Company amends orupdates the Title Report after the Title Review Date (each, a “**Title Report Update**”), Buyer shall furnishSeller with a written statement of Objections to any matter first raised in aTitle Report Update within three (3) business days after its receipt ofsuch Title Report Update (each, a “**TitleUpdate Review Period**”). Should Buyer fail to notify Seller in writing of any Objections in theTitle Report prior to the Title Review Date, or to any matter first disclosedin a Title Report Update prior to the Title Update Review Period, asapplicable, Buyer shall be

 

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deemed to haveapproved such matters which shall be considered to be “**Conditions of Title**” as defined in Section 4.1(e) below.

 

**(c)****                                 **IfSeller receives a timely Objection in accordance with Section 4.1(b) (“**Buyer’s Notice**”), Seller shall have theright, but not the obligation, within five (5) business days after receiptof Buyer’s Notice (“**Seller’s Response Period**”),to elect to attempt to cure any such matter upon written notice to Buyer (“**Seller’s Response**”), and may extend theClosing Date for up to fifteen (15) business days to allow such cure.  If Seller does not give any Seller’sResponse, Seller shall be deemed to have elected not to attempt to cure anysuch matters.  Notwithstanding theforegoing, Seller shall in any event be obligated to cure all matters or items (i) thatare mortgage or deed of trust liens or security interests against the Property,in each case granted by Seller (and not tenants of the Property or other thirdparties), (ii) real estate tax liens, other than liens for taxes andassessments not yet delinquent and (iii) that have been voluntarily placedagainst the Property by Seller (and not tenants of the Property or other thirdparties) after the date of this Agreement and that are not otherwise permittedpursuant to the provisions hereof. Seller shall be entitled to apply the Purchase Price towards the paymentor satisfaction of such liens, and may cure any Objection by causing the TitleCompany to insure against collection of the same out of the Property.

 

**(d)****                                 **IfSeller elects (or is deemed to have elected) not to attempt to cure anyObjections related to defects in title caused by the Seller and raised in anyBuyer’s Notice timely delivered by Buyer to Seller pursuant to Section 4.1(b),or if Seller notifies Buyer that it elects to attempt to cure any suchObjection but then does not for any reason effect such cure on or before theClosing Date as it may be extended hereunder, then Buyer, as its sole andexclusive remedy, shall have the option of terminating this Agreement bydelivering written notice thereof to Seller within three (3) business daysafter (as applicable) (i) its receipt of Seller’s Response stating thatSeller will not attempt to cure any such Objection or (ii) the expirationof Seller’s Response Period if Seller does not deliver a Seller’s Response or (iii) Seller’sfailure to cure by the Closing Date (as it may be extended hereunder) anyObjection which Seller has previously elected to attempt to cure pursuant to aSeller’s Response.  In the event of sucha termination, the Deposit shall be returned to Buyer, and neither party shallhave any further rights or obligations hereunder except as provided in Sections6.1, 9.3 and 9.9 below.  If no suchtermination notice is timely received by Seller hereunder, Buyer shall bedeemed to have waived all such Objections in which event those Objections shallbecome “**Conditions of Title**” underSection 4.1(e).  If the Closing isnot consummated for any reason other than Seller’s default hereunder, Buyershall be responsible for any title or escrow cancellation charges.

 

**(e)****                                 **Atthe Closing, Seller shall convey title to the Property to Buyer by deed in theform of **Exhibit C**attached hereto (the “**Deed**”)subject to no exceptions other than:

 

(i)                                     Interests oftenants in possession under the Leases;

 

(ii)                                  Matters created by,or with the written consent of, Buyer;

 

(iii)                               Non-delinquent liens forreal estate taxes and assessments; and

 

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(iv)                              Any exceptions disclosedby the Title Report and any Title Report Update which is approved or deemedapproved by Buyer in accordance with this Article IV above, and any otherexceptions to title disclosed by the public records or which would be disclosedby an inspection and/or survey of the Property.

 

All of theforegoing exceptions shall be referred to collectively as the “**Conditions of Title**.”  Subject to the terms and conditions containedelsewhere in this Agreement, by acceptance of the Deed and the Closing of thepurchase and sale of the Property, (x) Buyer agrees it is assuming for thebenefit of Seller all of the obligations of Seller with respect to theConditions of Title from and after the Closing, and (y) Buyer agrees thatSeller shall have conclusively satisfied its obligations with respect to titleto the Property.  The provisions of this Section shallsurvive the Closing.

 

**Section 4.2****                                   Evidenceof Title.**

 

Delivery of title in accordance with the foregoing shall be evidencedby the willingness of the Title Company to issue, at Closing, its Owner’s ALTAPolicy of Title Insurance in the amount of the Purchase Price showing title tothe Real Property vested in Buyer, subject to the Conditions of Title (the “**Title Policy**”).  The Title Policy may contain suchendorsements as reasonably required by Buyer provided that the issuance of suchendorsements shall not be a condition to Buyer’s obligations hereunder.  Buyer shall pay the costs for all suchendorsements.  Seller shall have noobligation to provide any indemnity or agreement to the Title Company or Buyerto support the issuance of the Title Policy or any such endorsements other thanan affidavit as to the existing tenants of the Property and any ongoingconstruction work at the Property.

 

**ARTICLE VRISK OF LOSS AND INSURANCE PROCEEDS**

 

**Section 5.1****                                   MinorLoss.**

 

Buyer shall be bound to purchase the Property for the full PurchasePrice as required by the terms hereof, without regard to the occurrence oreffect of any damage to the Property or destruction of any improvements thereonor condemnation of any portion of the Property, provided that:  (a) the cost to repair any such damageor destruction does not exceed Four Million Dollars ($4,000,000), in theestimate of an architect or contractor selected by Seller and reasonablyacceptable to Buyer or in the case of a condemnation, the diminution in thevalue of the remaining Property as a result of a partial condemnation is notmaterial (as defined in Section 5.2 below) and (b) upon the Closing,there shall be a credit against the Purchase Price due hereunder equal to theamount of any insurance proceeds or condemnation awards collected by Seller asa result of any such damage or destruction or condemnation, plus the amount ofany insurance deductible, less any sums expended by Seller toward thecollection of such proceeds or awards and the restoration or repair of theProperty (the nature of which restoration or repairs, but not the right ofSeller to effect such restoration or repairs, shall be subject to the approvalof

 

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Buyer, whichapproval shall not be unreasonably withheld, conditioned or delayed).  If the proceeds or awards have not beencollected as of the Closing, then such proceeds or awards shall be assigned toBuyer, except to the extent needed to reimburse Seller for sums expended tocollect such proceeds or awards or to repair or restore the Property (subjectto the approval of Buyer, not to be unreasonably withheld, conditioned ordelayed provided no such approval shall be required in the case of repairswhich the Seller must make in order to comply with applicable laws, resolve anemergency condition, or avoid default under an agreement to which Seller is aparty), and Seller shall retain the rights to such proceeds and awards to suchextent.

 

**Section 5.2****                                   MajorLoss.**

 

If the cost to repair the damage or destruction as specified aboveexceeds Four Million Dollars ($4,000,000) in the estimate of an architect orcontractor selected by Seller and reasonably acceptable to Buyer or thediminution in the value of the remaining Property as a result of a condemnationis material (as hereinafter defined), then Buyer may, at its option to beexercised within five (5) days of Seller’s notice of the occurrence of thedamage or destruction or the commencement of condemnation proceedings, eitherterminate this Agreement or consummate the purchase for the full Purchase Priceas required by the terms hereof.  IfBuyer elects to terminate this Agreement by delivering written notice thereofto Seller or fails to give Seller notice within such five (5) day periodthat Buyer will proceed with the purchase, then this Agreement shall terminate,the Deposit shall be returned to Buyer and neither party shall have any furtherrights or obligations hereunder except as provided in Sections 6.1, 9.3 and 9.9below.  If Buyer elects to proceed withthe purchase, then upon the Closing, there shall be a credit against thePurchase Price due hereunder equal to the amount of any insurance proceeds orcondemnation awards collected by Seller as a result of any such damage ordestruction or condemnation, plus the amount of any insurance deductible, lessany sums expended by Seller toward the collection of such proceeds or awards orto restoration or repair of the Property (the nature of which restoration or repairs,but not the right of Seller to effect such restoration or repairs, shall besubject to the approval of Buyer, which approval shall not be unreasonablywithheld, conditioned or delayed).  Ifthe proceeds or awards have not been collected as of the Closing, then suchproceeds or awards shall be assigned to Buyer, except to the extent needed toreimburse Seller for sums expended to collect such proceeds or awards or torepair or restore the Property (subject to the approval of Buyer, not to beunreasonably withheld, conditioned or delayed provided no such approval shallbe required in the case of repairs which the Seller must make in order tocomply with applicable laws, resolve an emergency condition, or avoid defaultunder an agreement to which Seller is a party), and Seller shall retain therights to such proceeds and awards to such extent.  A condemnation shall be deemed material ifany portion of any net rentable area of the Property, or any parking is taken whichwould cause the Property to be in violation of any existing laws orregulations, including but not limited to, zoning regulations, or the existingaccess to the Property is materially and adversely affected, permanently.

 

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**ARTICLE VIBROKERS AND EXPENSES**

 

**Section 6.1****                                   Brokers.**

 

The parties represent and warrant to each other that no broker orfinder was instrumental in arranging or bringing about this transaction exceptfor CB Richard Ellis, Inc. (“**Seller’sBroker**”).  At Closing, Sellershall pay the commission due, if any, to Seller’s Broker, which shall be paidpursuant to a separate agreement between Seller and Seller’s Broker.  If any other person brings a claim for acommission or finder’s fee based upon any contact, dealings or communicationwith Buyer or Seller, then the party through whom such person makes his claimshall defend the other party (the “**IndemnifiedParty**”) from such claim, and shall indemnify the Indemnified Partyand hold the Indemnified Party harmless from any and all costs, damages,claims, liabilities or expenses (including without limitation, court costs andreasonable attorneys’ fees and disbursements) incurred by the Indemnified Partyin defending against the claim.  Theprovisions of this Section 6.1 shall survive the Closing or, if thepurchase and sale is not consummated, any termination of this Agreement.

 

**Section 6.2****                                   Expenses.**

 

Except as expressly provided in this Agreement, each party hereto shallpay its own expenses incurred in connection with this Agreement and thetransactions contemplated hereby.

 

**ARTICLE VIILEASES AND OTHER AGREEMENTS**

 

**Section 7.1****                                   Leasing.**

 

During the period between the Effective Date and the delivery of theDeposit, Seller shall continue to manage and lease the Property in the same manneras before the making of this Agreement, the same as though Seller wereretaining the Property. Provided, however, Seller shall have no obligation tolease or market the Property and Seller shall have no liability for Leaseswhich are terminated either by agreement between the Seller and the applicabletenant or as a result of a tenant’s default under its Lease.

 

During the period between the delivery of the Deposit and the ClosingDate, Seller hereby agrees to (to the extent permitted by applicable law):  (i) not enter into any new Lease, renewany existing Lease, or modify any existing Lease for a unit at the Propertyunless (a) (1) the term of such Lease expires on or before the datesspecified on **Exhibit F**attached hereto for each individual building and (2) the Lease terminatesby its express terms on a date certain; and (3) the Lease does not containany autorenewal or non-termination provisions that benefit the Tenant; or (b) Buyerotherwise waives the requirements of this Section in writing with respectto all or certain tenants; and (ii) cooperate with Buyer in anysubmissions to governmental authorities relating to Purchaser’s intended useand development of the Property.  UponBuyer’s request, but only after the Deposit has been made, Seller shall delivera notice of termination (the “120 Day Notice”) to tenants specified by Buyer,provided, however, that Seller shall have no obligation to send the 120 DayNotice if the sending of the 120 Day Notice will result in the Lease beingterminated prior to the dates specified on **Exhibit F**or the date the Lease expires according to its own terms (without reference toany tenant holdover or automatic renewal provisions contained in suchLease).  In addition, Seller and Buyeragree that Buyer shall have

 

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the right tocause the Seller to send 120 Day Notices with respect to Leases that expiremore than one hundred twenty (120) days after the date of the 120 Day Notice,provided that such notices specify that the Lease shall not be terminated untilthe later of (x) one hundred twenty (120) days after the date of the 120 DayNotice; and (y) the date the Lease expires according to its own terms (withoutreference to any tenant holdover or automatic renewal provisions contained insuch Lease).  Seller and Purchaser shalljointly draft the 120 Day Notice, which may contain additional informationregarding Purchaser’s intended plans with respect to the Property.  Commencing on the date which is fifteen (15)days after delivery of the Deposit, and monthly thereafter until the ClosingDate, Buyer shall pay directly to Seller the amount of Fifty Thousand andNo/100 Dollars ($50,000.00) (a “**VacancyPayment**”).  Each installmentof the Vacancy Payment shall be nonrefundable and shall be fully earned bySeller when paid.  The Vacancy Paymentshall not be credited against the Purchase Price.  Buyer’s failure to pay an installment of theVacancy Payment when due shall be a material default under this Agreement andin the event of such default, in addition to any other remedies available toSeller, Seller may cease to comply with the obligations of this Section 7.1.

 

During the period between the Effective Date and the Closing Date, ifSeller becomes aware that a Unit is going to become vacant for the buildingslocated at 11011, 11013, 11015, 11017 and 11019 Becontree Lake Drive on a datebetween the Effective Date and the Closing Date (provided that nothingcontained in this paragraph shall affect the Seller’s obligations with respectto the Lease termination dates set forth in Exhibit F.), then Seller shallgive Buyer written notice of such vacancy, describing the Lease, the rent andthe terms and conditions of the Lease. All terms and conditions shall be substantially similar to those offeredto prospective tenants at the Property. Buyer shall have four (4) business days from the receipt of suchnotice to agree to lease the unit that will become vacant for the rent and uponthe terms and conditions specified in such notice by giving written notice toSeller.  If Buyer exercises its rightshereunder to enter into a Lease, the parties shall promptly execute a Lease forsaid unit, and Buyer and Seller shall thereafter comply with each of theirrespective obligations under the Lease until the Closing Date (and thereafterif Closing does not occur).  If Buyerdoes not exercise its rights hereunder to enter into a Lease, Seller may enterinto a Lease for that Unit with a third party on substantially the same termsas were offered to Buyer and otherwise in compliance with the requirements ofthis Agreement regarding leasing.  Allamounts paid by Buyer to Seller under Leases entered into pursuant to thisparagraph shall be credited to the Purchase Price at Closing.  The provisions of this paragraph shallsurvive the termination of this Agreement, unless such termination results froma default by Seller under this Agreement.

 

During the period between the Effective Date and the Closing Date, on amonthly basis Seller shall deliver to Buyer copies of the current rent roll forthe Property together with copies of any newly executed Leases or modificationsor renewals of Leases.  Such rent rollshall be the actual rent roll used by Seller in its operation of the Property.

 

**Section 7.2****                                   LeasingCommissions and Concessions.**

 

With respect to any new Lease entered into by Seller between theEffective Date****and the delivery ofthe Deposit, and with respect to any renewal, extension or modification of anyLease permitted pursuant to Section 7.1, all leasing commissions, legalfees or other expenses or grants

 

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of any freerent period or other concessions shall be prorated over the term of the lease,renewal or extension, based on the economic benefit to the parties heretooccurring before or after the Closing. Seller’s share of such costs shall be based on the portion of economicbenefit of the lease term, renewal or extension, as the case may be, occurringprior to Closing, which amount shall be a credit against the Purchase Price,and Buyer shall be responsible for the remainder of such costs.  Buyer shall reimburse Seller for all suchcosts incurred by Seller to the extent Buyer is obligated therefor pursuant to theprovisions hereof.  Pursuant to the Assignmentof Leases Buyer shall assume any then outstanding obligations with respect tosuch leasing commissions and concessions. The provisions of this Section shall survive the Closing.

 

**Section 7.3****                                   TenantNotices.**

 

At the Closing, Seller shall furnish Buyer with a signed notice to begiven to each tenant of the Property. The notice shall disclose that the Property has been sold to Buyer,that, after the Closing, all rents should be paid to Buyer and that Buyer shallbe responsible for the tenant’s security deposit.  The form of the notice shall be otherwisereasonably acceptable to the parties. Buyer covenants to deliver said notices to each tenant as soon asreasonably possible after Closing.  Thisprovision shall expressly survive Closing.

 

**Section 7.4****                                  Maintenanceof Improvements and Operation of Property; Removal of Tangible PersonalProperty.**

 

Seller agrees to keep its customary property insurance covering theProperty in effect until the Closing (provided, however, that the terms of anysuch coverage maintained in blanket form may be modified as Seller deemsnecessary).  Seller shall maintain allImprovements substantially in their present condition (ordinary wear and tear,casualty and condemnation excepted), and shall operate and manage the Propertyin a manner consistent with Seller’s practices in effect prior to the EffectiveDate (except as provided in Section 7.1 above), provided that Seller shallin no event be obligated to make any capital expenditures or repairs other thanthose that are necessary to maintain the habitability of, or emergency repairsto, units at the Property which are occupied under then current Leases.  Seller shall not remove any Tangible PersonalProperty, except as may be required for necessary repair or replacement, andreplacement shall be of approximately equal quality and quantity as the removeditem of Tangible Personal Property.

 

**Section 7.5****                                   ServiceContracts.**

 

Within five (5) business days after the Effective Date, Buyer willadvise Seller in writing which Service Contracts Buyer will assume and whichService Contracts Buyer requests be terminated at Closing, provided Sellershall have no obligation to terminate, and Buyer shall be obligated to assume,any Service Contracts which by their terms cannot be terminated without penaltyor payment of a fee or other cost to Seller. Seller shall deliver at Closing notices of termination of all ServiceContracts that are not so assumed and Buyer shall be responsible for anycharges applicable to periods commencing with the Closing.  Notwithstanding the foregoing, Seller shallterminate, as of the Closing Date, all existing management and brokerageagreements with respect to the Property.

 

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During the period between the Effective Date and the Closing Date, on amonthly basis Seller shall deliver to Buyer a current list of Service Contractsalong with copies of any Service Contracts which first appear on suchlist.  Such list shall be the actual listused by Seller in its operation of the Property.  Seller shall have no obligation to deliversuch list during any month when such list would contain no changes from thelist attached to this Agreement as Exhibit G or another list of ServiceContracts delivered to Buyer pursuant to this Section 7.5.

 

**ARTICLE VIIICLOSING AND ESCROW**

 

**Section 8.1****                                   IntentionallyOmitted.**

 

**Section 8.2****                                   Closing.**

 

The Closing hereunder shall beheld and delivery of all items to be made at the Closing under the terms ofthis Agreement shall be made before 11:00 a.m. prevailing Eastern time atthe offices of the Title Company or as otherwise mutually agreed on December 10,2005, provided that Buyer shall have the automatic right to extend the ClosingDate to January 10, 2006 upon written notice to Seller on or before November 30,2005, or such other earlier date and time as Buyer and Seller may mutuallyagree upon in writing (the “**Closing Date**”).Buyer shall have the right to accelerate the Closing Date to any earlier dateupon five (5) business days notice to Seller.  Except as expressly provided herein, suchdate and time may not be extended without the prior written approval of bothSeller and Buyer.

 

**Section 8.3****                                   Depositof Documents.**

 

**(a)****                                 **Ator before the Closing, Seller shall deposit into escrow the following items:

 

**(1)****                                **theduly executed and acknowledged Deed in the form attached hereto as **Exhibit C**conveying the Real Propertyto Buyer subject to the Conditions of Title;

 

**(2)****                                **four(4) duly executed counterparts of the Bill of Sale in the form attachedhereto as **Exhibit D** (the “**Bill of Sale**”);

 

**(3)****                                **four(4) duly executed counterparts of an Assignment and Assumption of Leases,Service Contracts, Warranties and Other Intangible Property in the formattached hereto as **Exhibit E**pursuant to the terms of which Buyer shall assume all of Seller’s obligationsunder the Leases, Service Contracts, and other documents and agreementsaffecting the Property (the “**Assignment ofLeases**”);

 

**(4)****                                **anaffidavit pursuant to Section 1445(b)(2) of the Code, and on whichBuyer is entitled to rely, that Seller is not a “foreign person” within themeaning of Section 1445(f)(3) of the Code; and

 

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**(5)****                                **anupdated Rent Roll, certified to Buyer.

 

**(b)****                                 **Ator before Closing, Buyer shall deposit into escrow the following items:

 

**(1)****                                **immediatelyavailable funds necessary to close this transaction, including, withoutlimitation, the Purchase Price (less the Deposit and interest thereon net ofinvestment fees, if any) and funds sufficient to pay Buyer’s closing costs andshare of prorations hereunder;

 

**(2)****                                **four(4) duly executed counterparts of the Bill of Sale; and

 

**(3)****                                **four(4) duly executed counterparts of the Assignment of Leases.

 

**(c)****                                 **Sellerand Buyer shall each execute and deposit a closing statement, such transfer taxdeclarations and such other instruments as are reasonably required by the TitleCompany or otherwise required to close the escrow and consummate theacquisition of the Property in accordance with the terms hereof.  Seller and Buyer hereby designate TitleCompany as the “**Reporting Person**”for the transaction pursuant to Section 6045(e) of the Code and theregulations promulgated thereunder and agree to execute such documentation asis reasonably necessary to effectuate such designation.

 

**(d)****                                 **Onthe Closing Date, Seller shall deliver or make available at the Property toBuyer: originals of the Leases to the extent in Seller’s possession, or copiesof any Leases not in Seller’s possession together with an affidavit from Selleras to such copies being true and complete copies of the applicable Lease(s),copies of the tenant correspondence files (for the three (3) most recentyears of Seller’s ownership of the Property only and the current year), andoriginals of any other items which Seller was required to furnish Buyer copiesof or make available at the Property pursuant to Section 2.1 above, to theextent in Seller’s possession, except for Seller’s general ledger and otherinternal books or records which shall be retained by Seller.  Seller shall deliver possession of theProperty to Buyer as required hereunder and shall deliver to Buyer or makeavailable at the Property the keys to the Property on the Closing Date.

 

**Section 8.4****                                   Omitted**

 

**Section 8.5****                                   Prorations.**

 

**(a)****                                 **Rentsand any additional charges and expenses payable by tenants under Leases, all asand when actually collected; real property taxes and assessments; water, sewerand utility charges; amounts payable under any Service Contracts or otheragreements or documents; annual permits and/or inspection fees (calculated onthe basis of the period covered); and any other expenses of the operation andmaintenance of the Property (including, without limitation, expenses prepaid bySeller and expenses already paid by Seller but which are being amortized overtime by Seller and with respect to which Seller shall receive a credit atClosing in the amount of the prepaid or unamortized portion thereof), shall allbe prorated as of 11:59 p.m. on the day immediately prior to Closing(i.e., Buyer is entitled to the income and responsible for the expenses of theday of Closing), on the basis of a 365-day year.  Buyer shall reimburse Seller for

 

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the leasingcommissions, legal fees and other expenses, and free rent and otherconcessions, as provided in Section 7.2.

 

All rentscollected after the Closing shall be applied and paid as provided in this Section 8.5(a).  If a tenant shall specifically designate apayment as being attributable to, or if it is readily ascertainable that apayment received from a tenant is attributable to a specific period of time orfor a specific purpose, including, without limitation, for operating expensesor real estate tax payments which were not paid or were underpaid by suchtenant or for reimbursement for work performed by Seller on the tenant’spremises, such payment shall be so applied. If there is no such designation or if not so readily ascertainable, anypayment received from a tenant after Closing shall be deemed a payment of rentdue after the Closing until the tenant is current on rents and sums due underthe applicable Lease on or after the Closing, and then such payments shall bepaid to Seller to the extent of any rent or other sums owing to Seller forperiods prior to Closing.  Buyer shalluse reasonable efforts to collect such rents and other sums owing toSeller.  Seller retains the right tocollect any such rents and other sums from tenants after Closing; provided,however, that Seller shall have no right to cause any such tenant to be evictedor to exercise any other landlord remedy against such tenant other than to suefor collection.

 

The amount ofany cash security deposits held by Seller under Leases shall be creditedagainst the Purchase Price (and Seller shall be entitled to retain such cashsecurity deposits).  Seller shall receivecredits at Closing for the amount of any utility or other deposits with respectto the Property.  Buyer shall cause allutilities to be transferred into Buyer’s name and account at the time ofClosing.

 

Seller andBuyer hereby agree that if any of the aforesaid prorations and credits cannotbe calculated accurately on the Closing Date or in the case of rents or othercharges received from tenants, such amount have not been collected, then thesame shall be calculated as soon as reasonably practicable after the ClosingDate or the date such amounts have been collected, and either party owing theother party a sum of money based on such subsequent proration(s) or creditsshall pay said sum to the other party within thirty (30) days thereafter.  Any amounts not paid within such thirty (30)day period shall bear interest from the date actually received by the payoruntil paid at the greater of (i) the rate of ten percent (10%) per annumor (ii) the prime rate (or base rate) reported from time to time in the “MoneyRates” column or section of The Wall Street Journal as being thebase rate on corporate loans at larger United States money center commercialbanks plus two (2) percent.  Uponrequest of either party, the parties shall provide a detailed and accuratewritten statement signed by such party certifying as to the payments receivedby such party from tenants from and after Closing and to the manner in whichsuch payments were applied, and shall make their books and records availablefor inspection by the other party during ordinary business hours uponreasonable advance notice.

 

**(b)****                                 **Alltitle charges (including endorsements and reinsurance charges), survey costs,escrow or closing fees, sale and transfer taxes, recording fees or taxes,documentary taxes and similar taxes and fees imposed upon the transfer of theProperty by applicable law shall be paid by Buyer at Closing.  Any escrow fees shall be split equallybetween Seller and Buyer.  The partieswill execute and deliver any required transfer or other similar taxdeclarations to the appropriate governmental entity at Closing.

 

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**(c)****                                 **Omitted

 

**(d)****                                 **Theprovisions of this Section 8.5 shall survive the Closing.

 

**ARTICLE IXMISCELLANEOUS**

 

**Section 9.1****                                   Notices.**

 

Any notices required or permitted to be given hereunder shall be givenin writing and shall be delivered (a) in person, (b) by certifiedmail, postage prepaid, return receipt requested, (c) by facsimile withconfirmation of receipt, or (d) by a commercial overnight courier thatguarantees next business day delivery and provides a receipt, and such noticesshall be addressed as follows:

 
| To Buyer:        |   | Christopher Clemente                       |
|------------------|--------|--------------------------------------------|
|             |   | Comstock Homebuilding Companies, Inc. |
|             |   | 11465 Sunset Hills Road, Suite 510    |
|             |   | Reston, Virginia 20190                     |
|             |   | Fax No.: (703) 760-1520                    |
|             |   |                                       |
|             |   | Jubal Thompson, Esquire                    |
|             |   | Comstock Homebuilding Companies, Inc. |
|             |   | 11465 Sunset Hills Road, Suite 510    |
|             |   | Reston, Virginia 20190                     |
|             |   | Fax No.: (703) 760-1520                    |
|             |   |                                       |
| with a copy  to: |   | Joseph Edward Bankert, Esquire             |
|             |   | Bankert & Associates, P.C.        |
|             |   | 3025 Hamaker Court, #501                   |
|             |   | Fairfax, Virginia 22031                    |
|             |   | Fax No.: (703) 876-4628                    |
|             |   |                                       |
| To Seller:       |   | ER  Carter, L.L.C.                         |
|             |   | c/o RREEF America L.L.C.                   |
|             |   | 280 Park Avenue, 40th Floor                |
|             |   | New York, New York 10017                   |
|             |   | Attention: Peter F. Feinberg               |
|             |   | Fax No.: 212-454-6616                      |
|             |   |                                       |
| with a copy  to: |   | Seyfarth Shaw LLP                          |
|             |   | 55 East Monroe Street, Suite 4200     |
|             |   | Chicago, Illinois 60603                    |
|             |   | Attention: Jeffrey D. Friedman             |
|             |   | Fax No.: 312-269-8869                      |

 

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or to such other address as either party may from time to time specifyin writing to the other party.  Anynotice or other communication sent as hereinabove provided shall be deemedeffectively given (a) on the date of delivery, if delivered in person; (b) onthe date mailed if sent by certified mail, postage prepaid, return receiptrequested or by a commercial overnight courier; or (c) on the date oftransmission, if sent by facsimile with confirmation of receipt.  Such notices shall be deemed received (a) onthe date of delivery, if delivered by hand or overnight express deliveryservice; (b) on the date indicated on the return receipt if mailed; or (c) onthe date of transmission, if sent by facsimile with confirmation ofreceipt.  Any notice sent by the attorneyrepresenting a party, shall qualify as notice under this Agreement.

 

**Section 9.2****                                   EntireAgreement.**

 

This Agreement, together with the Exhibits and schedules hereto, containsall representations, warranties and covenants made by Buyer and Seller andconstitutes the entire understanding between the parties hereto with respect tothe subject matter hereof.  Any priorcorrespondence, memoranda or agreements are replaced in total by this Agreementtogether with the Exhibits and schedules hereto.

 

**Section 9.3****                                   Entryand Indemnity.**

 

Notwithstanding the fact that Buyer has no due diligence or inspectioncontingency under this Agreement, Seller shall permit Buyer to enter the Propertyin accordance with the terms of this Section 9.3 solely for purposes ofplanning and preparing for Buyer’s ownership of the Property and for purposesof performance and design testing or inspection solely related to such planningand preparation.  In connection with anyentry by Buyer, or its agents or employees onto the Property, Buyer shall giveSeller reasonable advance notice of such entry and the nature and scope of anytesting or inspection to be performed in connection with such entry and shall conductsuch entry and any inspections in connection therewith (a) during normalbusiness hours, (b) so as to minimize, to the greatest extent possible,interference with Seller’s operation of the Property and the use and enjoymentof the Property by Seller’s tenants, (c) in compliance with all applicablelaws, and (d) otherwise in a manner reasonably acceptable to Seller.  Notwithstanding anything to the contrarycontained herein, Buyer shall not contact any governmental authority or anytenant without first notifying Seller of the nature of such contact, andSeller, at Seller’s election, shall be entitled to have a representativeparticipate in any telephone or other contact made by Buyer to a tenant andpresent at any meeting by Buyer with a tenant. Buyer shall maintain  publicliability and property damage insurance in amounts and in form and substanceadequate to insure against all liability of Buyer and its agents or employeesarising out of any entry to the Property pursuant to the provisions hereof, andBuyer shall provide Seller with evidence of such insurance coverage uponrequest by Seller.  Buyer shall indemnifyand hold Seller harmless from and against any costs, damages, liabilities,losses, expenses, liens or claims (including, without limitation, court costsand reasonable attorneys’ fees and disbursements) arising out of or relating toany entry on the Property by Buyer, its agents or employees.  The provisions of this Section 9.3 shallbe in addition to any access or indemnity agreement previously executed byBuyer in connection with the Property; provided that in the event of anyinconsistency between this Section 9.3 and such other agreement, theprovisions of this Section 9.3 shall govern. The foregoing indemnity shallsurvive beyond the

 

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Closing, or,if the sale is not consummated, beyond the termination of this Agreement.  Buyer’s right of entry, as provided in this Section 9.3,shall continue up through the date of Closing.

 

**Section 9.4****                                   Time.**

 

Time is of the essence in the performance of each of the parties’respective obligations contained herein.

 

**Section 9.5****                                   Attorneys’Fees.**

 

If either party hereto fails to perform any of its obligations underthis Agreement or if any dispute arises between the parties hereto concerningthe meaning or interpretation of any provision of this Agreement, whether priorto or after Closing, or if any party defaults in payment of its post-Closingfinancial obligations under this Agreement, then the defaulting party or theparty not prevailing in such dispute, as the case may be, shall pay any and allcosts and expenses incurred by the other party on account of such defaultand/or in enforcing or establishing its rights hereunder, including, withoutlimitation, court costs and reasonable attorneys’ fees and disbursements.

 

**Section 9.6****                                   Assignment.**

 

Except as provided herein, Buyer’s rights and obligations hereundershall not be assignable without the prior written consent of Seller in Seller’ssole discretion.  Notwithstanding theforegoing, Buyer shall have the right, without the necessity of obtainingSeller’s consent but with prior written notice to Seller, to assign its right,title and interest in and to this Agreement to a separate account, or an entityowned by a separate account, of Buyer, or to a single purpose entity, whetherexisting or not as of the Effective Date, at any time before the ClosingDate.   Without limiting andnotwithstanding the above, in no event shall Buyer have the right to assign itsrights or obligations hereunder to any party which could not make therepresentation and warranty contained in subsection 3.5(e) above, andin connection with any assignment pursuant to the terms hereof, the assigneeshall reconfirm in a written instrument acceptable to Seller and delivered toSeller prior to the effective date of the assignment said representation andwarranty as applied to the assignee and that all other terms and conditions ofthis Agreement shall apply to such assignee. Subject to the provisions of this Section, this Agreement shall inure tothe benefit of and be binding upon the parties hereto and their respectivesuccessors and assigns.

 

**Section 9.7****                                   Counterparts.**

 

This Agreement may be executed in two or more counterparts, each ofwhich shall be deemed an original, but all of which taken together shallconstitute one and the same instrument.

 

**Section 9.8****                                   GoverningLaw.**

 

This Agreement shall be governed by and construed in accordance withthe laws of the State in which the Real Property is located.

 

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**Section 9.9****                                   Confidentialityand Return of Documents.**

 

Buyer and Seller shall each maintain as confidential any and allmaterial obtained about the other or, in the case of Buyer, about the Property,this Agreement or the transactions contemplated hereby, and shall not disclosesuch information to any third party. Except as may be required by law, Buyer will not divulge any suchinformation to other persons or entities including, without limitation,appraisers, real estate brokers, or competitors of Seller.  Notwithstanding the foregoing, Buyer shallhave the right to disclose information with respect to the Property to itsofficers, directors, employees, attorneys, accountants, environmental auditors,engineers, potential lenders, and permitted assignees under this Agreement andother consultants to the extent necessary for Buyer to evaluate its acquisitionof the Property provided that all such persons are told that such informationis confidential and agree (in writing for any third party engineers,environmental auditors or other consultants) to keep such informationconfidential.  If Buyer acquires theProperty from Seller,  Seller shall havethe right, subsequent to the Closing of such acquisition, to publicize thetransaction (other than the parties to or the specific economics of thetransaction) in whatever manner it deems appropriate; provided that any pressrelease or other public disclosure regarding this Agreement or the transactionscontemplated herein, and the wording of same, must be approved in advance byboth parties.  The provisions of thisparagraph shall survive the Closing or any termination of this Agreement. Inthe event the transaction contemplated by this Agreement does not close asprovided herein, upon the request of Seller, Buyer shall promptly return toSeller all Due Diligence Materials and other documents and copies obtained byBuyer from Seller or Seller’s agents in connection with the purchase of theProperty hereunder.

 

**Section 9.10****                            Interpretationof Agreement.**

 

The article, section and other headings of this Agreement are forconvenience of reference only and shall not be construed to affect the meaningof any provision contained herein.  Wherethe context so requires, the use of the singular shall include the plural andvice versa and the use of the masculine shall include the feminine and theneuter.  The term “**person**” shall include any individual,partnership, joint venture, corporation, trust, unincorporated association, anyother entity and any government or any department or agency thereof, whetheracting in an individual, fiduciary or other capacity.

 

**Section 9.11****                            LimitedLiability.**

 

The obligations of Seller under this Agreement and under all of theOther Documents are intended to be binding only on the property of Seller andshall not be personally binding upon, nor shall any resort be had to, theprivate properties of any Seller Related Parties.

 

**Section 9.12****                            Amendments.**

 

This Agreement may be amended or modified only by a written instrumentsigned by Buyer and Seller.

 

**Section 9.13****                            NoRecording.**

 

Neither this Agreement or any memorandum or short form thereof may berecorded by Buyer.

 

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**Section 9.14****                            DraftsNot an Offer to Enter into a Legally Binding Contract.**

 

The parties hereto agree that the submission of a draft of thisAgreement by one party to another is not intended by either party to be anoffer to enter into a legally binding contract with respect to the purchase andsale of the Property.  The parties shallbe legally bound with respect to the purchase and sale of the Property pursuantto the terms of this Agreement only if and when the parties have been able tonegotiate all of the terms and provisions of this Agreement in a manneracceptable to each of the parties in their respective sole discretion, and bothSeller and Buyer have fully executed and delivered to each other a counterpartof this Agreement (or a copy by facsimile transmission). The last date uponwhich either Seller or Buyer executes and delivers a counterpart of thisAgreement to the other shall be the “**EffectiveDate**” of this Agreement, and such date shall be inserted in thefirst paragraph of this Agreement.

 

**Section 9.15****                            ERISA.**

 

Without limiting Buyer’s representation and warranty in Section 3.5(e) above,within ten (10) days after the Effective Date, Buyer shall furnish toSeller all information regarding Buyer, its affiliates and the shareholders,members, investors or partners of each of them and any permitted assignees ofBuyer hereunder (collectively, the “**BuyerRelated Parties**”) as Seller requests in order to enable Seller todetermine to Seller’s sole satisfaction that Buyer’s representation andwarranty contained in Section 3.5(e) of this Agreement is true andcorrect.  Buyer represents and warrantsand covenants to Seller that there will not be any change in any suchinformation regarding Buyer or the Buyer Related Parties prior to or on the Closing.  In the event any such information or changein Seller’s reasonable judgment makes this transaction a sale to aparty-in-interest, Seller may terminate this Agreement without liability on thepart of Seller or Buyer (provided such change did not occur as a result of adefault by Buyer), other than Buyer’s indemnity contained in Section 9.3hereof and the obligations of Buyer contained in Sections 6.1 and 9.9 hereof,and the Deposit will be returned to Buyer.

 

**Section 9.16****                            NoPartnership.**

 

The relationship of the parties hereto is solely that of Seller andBuyer with respect to the Property and no joint venture or other partnershipexists between the parties hereto. Neither party has any fiduciary relationship hereunder to the other.

 

**Section 9.17****                            NoThird Party Beneficiary.**

 

The provisions of this Agreement are not intended to benefit any thirdparties.

 

**Section 9.18****                            Omitted.**

 

**Section 9.19****                            Limitationon Liability.**

 

Notwithstanding anything to the contrary contained herein, after theClosing: (a) the maximum aggregate liability of Seller, and the maximumaggregate amount which may be awarded to and collected by Buyer (including,without limitation, for any breach of any

 

24

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representation,warranty and/or covenant by Seller) under this Agreement or any documentsexecuted pursuant hereto or in connection herewith, including, withoutlimitation, the Deed, the Bill of Sale, the Assignment of Leases and any Sellerestoppel certificate (collectively, the “**OtherDocuments**”, shall under no circumstances whatsoever exceed SevenHundred Fifty Thousand Dollars ($750,000); and (b) no claim by Buyeralleging a breach by Seller of any representation, warranty and/or covenant ofSeller contained herein or in any of the Other Documents may be made, andSeller shall not be liable for any judgment in any action based upon any suchclaim, unless and until such claim, either alone or together with any otherclaims by Buyer alleging a breach by Seller of any such representation, warrantyand/or covenant is for an aggregate amount in excess of Fifteen ThousandDollars ($15,000) (the “**Floor Amount**”),in which event Seller’s liability respecting any final judgment concerning suchclaim or claims shall be for the entire amount thereof, subject to thelimitation set forth in clause (a) above; provided, however, that if anysuch final judgment is for an amount that is less than or equal to the FloorAmount, then Seller shall have no liability with respect thereto.

 

**Section 9.20****                            FIN46 Language.**

 

Buyer hereby represents that it is subject to the requirements ofInterpretation No. 46 (“FIN 46”), *Consolidationof Variable Interest Entities,*an authoritative accountingpronouncement issued by the Financial Accounting Standards Board.  Seller agrees to timely cooperate in allmaterial respects with the Buyer’s obligation to comply with the financialreporting requirements of FIN 46, including providing Seller’s financialstatements (i.e., balance sheet, income statement and statement of cash flows) andcertain other information such as, but not limited to, asset values,development stage, and cost estimation, provided, however, that the foregoingobligations of Seller shall be limited to providing such information ordocumentation as may be in the possession of, or reasonably obtainable by,Seller, its property manager or accountants, at no cost to Seller, and in theformat that Seller (or its property manager or accountants) have maintainedsuch information..  Buyer agrees thatsuch information shall be used only to prepare financial statements inaccordance with generally accepted accounting principles to comply with Buyer’slegal financial reporting obligations to the Securities and Exchange Commissionand other legally mandated uses of Buyer’s audited financial statements.  Such information shall not be distributedindividually to any other third party nor used for any other purposes.  Financial information provided will beconsolidated with other information from multiple entities and will not be identifiedin any of Buyer’s public financial reports on an individual or specificattribution basis.  The Information willbe collected, controlled and kept confidential by the Buyer’s Chief AccountingOfficer, or his designee, and will not be shared of distributed to the Buyer’soperation personnel in any form, oral or written.

 

**Section 9.21****                            Survival.**

 

Except as expressly set forth to the contrary herein, norepresentations, warranties, covenants or agreements of Seller contained hereinshall survive the Closing.

 

**Section 9.22****                            Survivalof Article IX.**

 

25

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**Section 9.23****                           **Theprovisions of this Article IX shall survive the Closing.

 

**Section 9.24****                            StormWater Management Facility.**

 

It is acondition to Buyer’s obligation to proceed to Closing hereunder that Sellershall perform its obligations set forth in this Section 9.24.  Buyer and Seller acknowledge that thespillway that previously contained the storm water management facility locatedon the Property has been breached, that the governmental authorities withjurisdiction over the storm water management facility are aware of the breach,and that said breach could be construed by the governmental authorities as adefault under that certain Storm Water Detention Agreement dated December 7,1976 and recorded in the land records of Fairfax County, Virginia in Deed Book4539, page 378 (the “SWM Agreement”), as well as a violation of law.  Seller agrees, on or prior to July 29,2005, to obtain approval of the appropriate governmental authorities to permitthe creation of a landscaped wetlands area as a cure for any default under theSWM Agreement and as a remedy for any outstanding the violation of law as wellas approval of the scope of work to be performed.  Seller shall cooperate with Buyer to allowBuyer to review and comment on Seller’s plan to remedy the default and cure theviolation, and Seller shall allow Buyer to attend all meetings with theappropriate governmental authorities and to review all correspondence prior tobeing sent to the appropriate governmental authorities, provided that thenature and scope of the cure shall be in Seller’s sole discretion.  If such approval has not been obtained on orbefore July 29, 2005, either party may terminate this Agreement by writtennotice to the other, in which event neither party shall have any obligation tothe other except for those obligations contained herein which by their termssurvive contract termination, provided that upon notice from Seller of itsintention to terminate, Buyer may waive Seller’s requirement to obtain thenecessary governmental approvals. (In the event of such waiver, Seller agreesto permit Buyer to assume the lead role in working towards obtaining suchapprovals and completing the work, but neither obtaining such approvals norcompleting such work shall be a condition of Closing.  Furthermore, if such approvals have not beenobtained prior to Closing, Seller will provide Buyer with a credit against thePurchase Price of 110% of Seller’s cost to complete the scope of work lastproposed by Seller to the governmental authorities, provided that,notwithstanding anything herein to the contrary, Seller shall not beresponsible for the costs of survey, the design of the required planting area,engineering and agreed scope of work for the creation of a landscaped wetlandsarea, to the extent the costs thereof in the aggregate exceed $75,000.) Uponapproval by the appropriate governmental authorities, Seller shall cause theapproved work to be performed with due diligence and in a good and workmanlikemanner and shall pay for the same. Upon completion, Seller shall be responsibleto obtain all additional documentation required to evidence the curing of thedefault under the SWM Agreement and the remedying of the outstanding violationof law.  If required Seller will enterinto a written wetlands maintenance agreement with the appropriate governmentalauthorities for the area of the storm water management facility, whichagreement shall be subject to Buyer’s approval, such approval not to beunreasonably withheld, will record the same in the land records of FairfaxCounty.  Following Closing, Buyer shallassume all maintenance obligations under such wetlands maintenance agreement.To the extent the work is not completed as of Closing, Seller shall assign thecontracts for such work to Buyer, which will assume all

 

26

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responsibilitytherefor post-closing, and Buyer shall receive a credit for 110% of thecontract price for such work less amounts paid to date.

 

The parties hereto have executed this Agreement as of the date setforth in the first paragraph of this Agreement.

 
|   | ***Seller***: | ER  CARTER, L.L.C.,                                               |
|--------|---------------|-------------------------------------------------------------------|
|   |          | a Delaware limited liability company                              |
|   |          |                                                              |
|   |          | By:                                                               | RREEF America, L.L.C. |
|   |          | Its:                                                              | Managing Member |
|   |          |                                                              |
|   |          |                                                              |
|   |          | By:                                                               | /s/ Pamela Boneham |   |
|   |          | Pamela  Boneham, Director                                         |
|   |          |                                                              |
|   |          |                                                              |
|   | ***Buyer:***  | COMSTOCK CARTER LAKE, L.C., a Virginia  limited liability company |
|   |          |                                                              |
|   |          |                                                              |
|   |          | By:                                                               | Comstock Homebuilding Companies, Inc., a |
|   |          |                                                              | Delaware corporation, its manager |
|   |          |                                                              |   |
|   |          |                                                              |   |
|   |          |                                                              | By: | /s/ Christopher Clemente |   |
|   |          |                                                              |   | Christopher Clemente |
|   |          |                                                              |   | Chief Executive Officer |
|        |               |                                                                   |  |  |  |  |  |

 

27

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**LIST OF EXHIBITS AND SCHEDULES**

** **

**Exhibits**

** **
| Exhibit A |   | Real  Property Description                                                         |
|----------------|--------|------------------------------------------------------------------------------------|
|           |   |                                                                               |
| Exhibit B |   | List of  Tenant Leases                                                             |
|           |   |                                                                               |
| Exhibit C |   | Deed                                                                               |
|           |   |                                                                               |
| Exhibit D |   | Bill of Sale                                                                       |
|           |   |                                                                               |
| Exhibit E |   | Assignment  of Leases, Service Contracts, Warranties and Other Intangible Property |
|           |   |                                                                               |
| Exhibit F |   | Building  Lease Termination Dates                                                  |
|           |   |                                                                               |
| Exhibit G |   | List of  Service Contracts                                                         |
|           |   |                                                                               |
| Exhibit H |   | Intentionally  Omitted                                                             |

 

**Schedules**

** **
| Schedule 1 |   | Disclosure  Items |
|-----------------|--------|-------------------|

 

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**EXHIBIT A**

** **

**LegalDescription**

** **

Beginning at a point on the Northeasterly line of Beacontree Lane(Route 4787) marking the Southernmost corner of Block 13, Section 9,Reston; thence running with the Easterly lines of said Block 13 and continuingwith the Southerly lines of Block 17, Section 9, Reston and the FairfaxCounty Park Authority the following courses: N 44°48’01” E, 6.26 feet; N 40°38’42” E, 124.61 feet; N 32°20’30” E,124.73 feet; N 28°07’04” E, 196.93 feet; S 64°45’14” E, 575.83 feet to a stonefound; S 43°44’07” E, 841.52 feet to a concrete monument found; S 02°52’55” E,920.86 feet to a concrete monument found; N 79°17’03” W, 900.68 feet to aconcrete monument found and N 79°15’05” W, 1,054.87 feet to an iron pipe foundon the Easterly line of Block 2, Section 29, Reston; thence running withthe Easterly lines of the said Block 2 and continuing with Block 14, Section 9,Reston, the following courses:  N 37°08’10”E, 173.54 feet; N 28°51’25” E, 74.03 feet; N 22°14’36” E, 73.86 feet to an ironpipe found; N 14°07’29” E, 449.12 feet to an iron pipe found; N 21°46’59” E,98.11 feet to an iron pipe found; N 37°07’28” E, 97.71 feet to an iron pipefound and N 44°48’01” E, 167.93 feet, to a point on the Southwesterly line ofthe aforementioned Becontree Lane; thence running with the Southwesterly linesof Becontree Lane S 52°53’40” E, 26.26 feet and with a curve to the right whoseradius is 25.00 feet and whose chord is S 07°15’50” E, 35.75 feet, an arcdistance of 39.82 feet to a point on the Westerly line of Becontree Lake Drive(Route 6330); thence running with the lines of Becontree Lake Drive thefollowing courses:  S 38°22’00” W, 59.98feet; with a curve to the right whose radius is 25.00 feet and whose chord is S62°27’42” W, 20.41 feet, an arc distance of 21.03 feet; with a curve to theleft whose radius is 50.00 feet and whose chord is S 51°38’00” E, 66.67 feet,an arc distance of 241.19 feet; with a curve to the right whose radius is 25.00feet and whose chord is N 14°16’18” E, 20.41 feet, an arc distance of 21.03feet; N 38°22’00” E, 332.95 feet; with a curve to the right whose radius is190.00 feet and whose chord is N 75°33’03” E, 229.66 feet, an arc distance of246.61 feet; with a curve to the right whose radius is 25.00 feet and whosechord is S 43°10’14” E, 20.41 feet, an arc distance of 21.03 feet; with a curveto the left whose radius is 50.00 feet and whose chord is N 22°44’06” E, 66.67feet, an arc distance of 241.18 feet; with a curve to the right whose radius is25.00 feet and whose chord is S 88°38’26” W, 20.41 feet, an arc distance of21.03 feet; with a curve to the left whose radius is 240.00 feet and whosechord is S 75°33’03” W, 290.10 feet, an arc distance of 311.51 feet; S 38°22’01”W, 172.95 feet; with a curve to the right whose radius is 25.00 feet and whosechord is S 82°44’10” W, 34.96 feet, an arc distance of 38.72 feet and N 52°53’40”W, 21.71 feet to the point of beginning, containing 47.42571 acres of land,more or less.

 

A-1

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**EXHIBIT B**

** **

**List of Tenant Leases**

 

B-1

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**Exhibit C**

 

**SPECIALWARRANTY DEED**

 

THIS DEED, made this                     dayof                                           ,2005, by and between                                           havingan address at                                                                (“Grantor”),and                                         having an address at                                                            (“Grantee”).

 

**WITNESSETH:**

 

That the Grantor, in consideration of the sum of Ten ($10.00) in handpaid by Grantee and other good and valuable consideration, the receipt andsufficiency of which is hereby acknowledged, does hereby grant, bargain, selland convey unto Grantee, in fee simple and with SPECIAL WARRANTY, all thosecertain lots or parcels of land situate, lying and being in Fairfax County,Virginia, commonly known as Carter Lake Apartments, as such land is moreparticularly described as follows:

 

INSERT LEGAL

 

TOGETHER with all of the ways, easements, rights, covenants, benefits,rights of ways, agreements, privileges, and appurtenances to the samebelonging, enjoyed by, or in any way benefiting or appertaining; all right ofthe Grantor in and to any and all adjoining public and private streets,roadways, and rights of way, and any privately owned water and sewer linesserving the Property; and all of the estate, right, title, interest and claim,either at law or in equity, or otherwise however, of Grantor of, in, to or outof the Property.

 

TO HAVE AND TO HOLD the aforesaid lot or parcel of land and allprivileges and appurtenances thereto unto the Grantee in fee simple.  Grantor covenants that it has the right toconvey the lot or parcel of land to Grantee; that it has done no act toencumber the same; and that it will execute such further assurances of the lotor parcel of land as may be requisite.

 

IN WITNESS WHEREOF, the Grantor has executed this Deed, as of the dayand year first above written.

 

C-1

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|   |   |   |
|--------|--------|--------|
|   |   |   |
|   | By:    |   |
|        |        |        |  |

 

 
| STATE OF  | ) |
|-----------|---|
|      | ) |
| COUNTY OF | ) |

 

The undersigned, a Notary Public in and for the jurisdiction aforesaid,do hereby certify that                                             ,of                                                         ,whose name is signed to the foregoing Deed, being personally well known to me,did personally appear before me and acknowledged that she/he executed said deedas the free act and deed of                                             .

 

GIVEN under my hand and seal this           dayof                                                             ,2005.

 

 
|   |          | (SEAL) |
|--------|---------------|--------|
|   | Notary Public |

 

 

My commission expires:

 

F-2

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**Exhibit D**

 

**BILL OF SALE**

** **

This Bill of Sale (the “**Bill of Sale**”)is made and entered into                            ,2004 by and between SELLERNAME, SELLERENTITY (“Assignor”), and ASSIGNEENAME,ASSIGNEEENTITY (“**Assignee**”).

 

In consideration of the sum of Ten and No/100 Dollars ($10.00) andother good and valuable consideration paid by Assignee to Assignor, the receiptand sufficiency of which are hereby acknowledged, Assignor does hereby assign,transfer, convey and deliver to Assignee free and clear of all liens or claimswith special warranty of title and covenant of further assurances, itssuccessors and assigns, all items of Tangible Personal Property (as defined inthe Agreement referred to below and listed on **Exhibit      ** attachedhereto **[ATTACH AS A LIST]**), ifany, owned by Assignor and situated upon and used exclusively in connectionwith the Real Property (as defined in the Agreement) and more particularly describedon **Exhibit A** attachedhereto and made a part hereof for all purposes, including, without limitation,the Tangible Personal Property identified in **Exhibit B**, if any, attached hereto and made a parthereof for all purposes (the “**PersonalProperty**”).

 

This Bill of Sale is made subject, subordinate and inferior to theeasements, covenants and other matters and exceptions set forth on **Exhibit C**, if any, attached heretoand made a part hereof for all purposes.

 

Assignee acknowledges and agrees that, except as expressly provided in,and subject to the limitations contained in, that certain Agreement of Purchaseand Sale dated CONTRACTDATE, by and between Assignor and BUYERNAME (as amended,the “**Agreement**”), Assignor has notmade, does not make and specifically disclaims any representations, warranties,promises, covenants, agreements or guaranties of any kind or characterwhatsoever, whether express or implied, oral or written, past, present orfuture, of, as to, concerning or with respect to (a) the nature, qualityor conditions of the Personal Property, (b) the income to be derived fromthe Personal Property, (c) the suitability of the Personal Property forany and all activities and uses which Assignee may conduct thereon, (d) thecompliance of or by the Personal Property or its operation with any laws,rules, ordinances or regulations of any applicable governmental authority orbody, (e) the quality, habitability, merchantability or fitness for aparticular purpose of any of the Personal Property, or (f) any othermatter with respect to the Personal Property. Assignee further acknowledges and agrees that, having been given theopportunity to inspect the Personal Property, Assignee is relying solely on itsown investigation of the Personal Property and not on any information providedor to be provided by Assignor, except as specifically provided in theAgreement.  Assignee further acknowledgesand agrees that any information provided or to be provided with respect to thePersonal Property was obtained from a variety of sources and that Assignor hasnot made any independent investigation or verification of suchinformation.  Assignee furtheracknowledges and agrees that the sale of the Personal Property as provided forherein is made on an “as is, where is” condition and basis

 

D-1

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“with allfaults,” except as specifically provided in, and subject to the limitationscontained in, the Agreement.

 

The obligations of Assignor are intended to be binding only on theproperty of Assignor and shall not be personally binding upon, nor shall anyresort be had to, the private properties of any Seller Related Parties (asdefined in the Agreement).

 

IN WITNESSWHEREOF, Assignor and Assignee have caused this Bill of Sale to be executed onthe date and year first above written.

 
| ** ** | **ASSIGNOR:**                 |
|------------|-------------------------------|
| ** ** | ** **                    |
|       | SELLERNAME,  SELLERENTITY     |
|       |                          |
|       |                          |
|       | BY:                           | ** ** | ** ** |
|       | Name:                         | ** ** | ** ** |
|       | Its:                          | ** ** | ** ** |
| ** ** | ** **                    |
| ** ** | ** **                    |
| ** ** | **ASSIGNEE:**                 |
| ** ** | ** **                    |
|       | ASSIGNEENAME,  ASSIGNEEENTITY |
|       |                          |
|       |                          |
|       | By:                           | ** ** | ** ** |
|       | Name:                         | ** ** | ** ** |
|       | Its:                          | ** ** | ** ** |
|       | ** **                    |
|       | ** **                    |
|       | ** **                    |
|            |                               |  |  |  |

 

D-2

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**Exhibit E**

 

**Assignment ofLeases, Service Contracts,Warranties and Other Intangible Property**

** **

This Assignment of Leases, Service Contracts, Warranties and OtherIntangible Property (this “**Assignment**”)is made and entered into                                   ,2004 by and between SELLERNAME, SELLERENTITY (“**Assignor**”), ASSIGNEENAME, ASSIGNEEENTITY (“**Assignee**”).

 

For good and valuable consideration paid by Assignee to Assignor, thereceipt and sufficiency of which are hereby acknowledged, Assignor does herebyassign, transfer, set over and deliver unto Assignee all of Assignor’s right,title, and interest in and to the following (collectively, the “**Assigned Items**”): (i) those certainleases (the “**Leases**”) listed on **Exhibit A** attached hereto and madea part hereof for all purposes except for Seller’s right to collect delinquentrent and other delinquent sums owing under such Leases for the period prior tothe date hereof in accordance with the Agreement (as defined below), (ii) thosecertain service contracts, equipment leases, tenant improvement agreements andleasing agreements (the “**Service Contracts**”)listed on **Exhibit B**,if any, attached hereto and made a part hereof for all purposes, and (iii) thosecertain warranties held by Assignor (the “**Warranties**”)listed on **Exhibit C**,if any, attached hereto and made a part hereof for all purposes, and (iv) allzoning, use, occupancy and operating permits, and other permits, licenses,approvals and certificates, maps, plans, specifications, and all otherIntangible Personal Property (as defined in the Agreement) owned by Assignorand used exclusively in the use or operation of the Real Property and PersonalProperty (each as defined in the Agreement), including, without limitation, anyright of Assignor to use the name “Carter Lake Apartments” and any other mark,logo, name or trade name owned by Assignor now used exclusively in connectionwith the Real Property and any utility contracts or other agreements or rightsrelating to the use and operation of the Real Property and Personal Propertybut excluding the names “RREEF” and any derivatives thereof (collectively, the “**Other Intangible Property**”).

 

This Assignment is made subject, subordinate and inferior to theeasements, covenants and other matters and exceptions set forth on **Exhibit D**, if any, attached heretoand made a part hereof for all purposes.

 

ASSIGNEE ACKNOWLEDGES AND AGREES, BY ITS ACCEPTANCE HEREOF, THAT,EXCEPT AS EXPRESSLY PROVIDED IN, AND SUBJECT TO THE LIMITATIONS CONTAINED IN,THAT CERTAIN AGREEMENT OF PURCHASE AND SALE, DATED AS OF CONTRACTDATE, BY ANDBETWEEN ASSIGNOR AND BUYERNAME (AS AMENDED, THE “**AGREEMENT**”), THE ASSIGNED ITEMS ARE CONVEYED “AS IS, WHERE IS”AND IN THEIR PRESENT CONDITION WITH ALL FAULTS, AND THAT ASSIGNOR HAS NOT MADE,DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES,PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTERWHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT ORFUTURE, OF, AS TO,

 

E-1

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CONCERNING ORWITH RESPECT TO THE NATURE, QUALITY OR CONDITION OF THE ASSIGNED ITEMS, THEINCOME TO BE DERIVED THEREFROM, OR THE ENFORCEABILITY, MERCHANTABILITY ORFITNESS FOR ANY PARTICULAR PURPOSE OF THE ASSIGNED ITEMS.

 

Except as otherwise expressly provided in Article VII of theAgreement, by accepting this Assignment and by its execution hereof, Assigneeassumes the payment and performance of, and agrees to pay, perform anddischarge, all the debts, duties and obligations to be paid, performed ordischarged from and after the Closing Date (as defined in the Agreement) by (a) the“landlord” or the “lessor” under the terms, covenants and conditions of theLeases, including, without limitation, compliance with the terms of the Leasesrelating security deposits, and (b) the owner under the Service Contracts,the Warranties and/or the Other Intangible Property.  Assignee agrees to indemnify, hold harmlessand defend Assignor from and against any and all claims, losses, liabilities,damages, costs and expenses (including, without limitation, court costs andreasonable attorneys’ fees and disbursements) resulting by reason of thefailure of Assignee to pay, perform or discharge any of the debts, duties orobligations assumed or agreed to be assumed by Assignee hereunder arising outof or relating to, directly or indirectly, in whole or in part, the AssignedItems, from and after the Closing Date. Except as otherwise expressly provided in Article VII and subject tothe provisions of Sections 3.2 and  9.19of the Agreement (which provisions are not modified in any way by the followingindemnity), Assignor agrees to protect, indemnify, defend and hold Assigneeharmless from and against all claims, losses, damages, costs, expenses,obligations and liabilities (including, without limitation, court costs andreasonable attorneys’ fees and disbursements) (collectively, “**Claims**”) arising out of or relating to,directly or indirectly, in whole or in part, the Assigned Items, the Leases orService Contracts prior to the Closing Date; provided, however, that theforegoing indemnity shall not apply to any Claims relating in any way to thephysical, environmental or other condition of the Property (as defined in theAgreement) or the compliance or non-compliance of the Property with any legalrequirements; and provided further that the foregoing indemnity shall applysolely to Claims first raised after the Closing Date and shall survive only fora period of six (6) months after the Closing Date.  Any such Claim which Assignee may have at anytime against Assignor, whether known or unknown, which is not specificallyasserted by written notice to Assignor within such six (6) month periodshall not be valid or effective, and neither Assignor nor any Seller RelatedParties (as defined in the Agreement) shall have any liability with respectthereto.

 

The obligations of Assignor are intended to be binding only on theproperty of Assignor and shall not be personally binding upon, nor shall anyresort be had to, the private properties of any Seller Related Parties.

 

All of the covenants, terms and conditions set forth herein shall bebinding upon and shall inure to the benefit of the parties hereto and theirrespective successors and assigns.

 

E-2

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IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignmentto be executed on the day and year first above written.
| ** ** | **ASSIGNOR:**                 |
|------------|-------------------------------|
| ** ** | ** **                    |
|       | SELLERNAME,  SELLERENTITY     |
|       |                          |
|       |                          |
|       | BY:                           |   |   |
| ** ** | ** **                    |
| ** ** | ** **                    |
| ** ** | **ASSIGNEE:**                 |
| ** ** | ** **                    |
|       | ASSIGNEENAME,  ASSIGNEEENTITY |
| ** ** | ** **                    |
|       | By:                           | ** ** | ** ** |
|       | Name:                         | ** ** | ** ** |
|       | Its:                          | ** ** | ** ** |
|            |                               |  |  |  |  |

 

E-3

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**Exhibit F**

** **

**BUILDING LEASETERMINATION DATES**

** **
| Building Address           |   | Lease Termination Date |
|----------------------------|--------|------------------------|
|                       |   |                   |
| 11023 Becontree Lake Drive |   | December 31, 2005 |
|                       |   |                   |
| 11027 Becontree Lake Drive |   | December 31, 2005 |
|                       |   |                   |
| 11019 Becontree Lake Drive |   | January 31, 2006  |
|                       |   |                   |
| 11017 Becontree Lake Drive |   | February 28, 2006 |
|                       |   |                   |
| 11015 Becontree Lake Drive |   | March 31, 2006    |
|                       |   |                   |
| 11013 Becontree Lake Drive |   | April 30, 2006    |
|                       |   |                   |
| 11011 Becontree Lake Drive |   | May 31, 2006      |

 

F-1

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**EXHIBIT G**

** **

**List ofService Contracts**

 

G-1

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**EXHIBIT H**

** **

**INTENTIONALLYOMITTED**

 

H-1

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**Schedule 1**

 

**DisclosureItems**

 

I-1

----

 
| AGREEMENT OF PURCHASE AND SALE                         |                                                                                               |
|--------------------------------------------------------|----------------------------------------------------------------------------------------------------|
|                                                   |                                                                                               |   |
| **ARTICLE I PURCHASE AND SALE OF PROPERTY**       |                                                                                               |
|                                                   |                                                                                               |   |
| **Section 1.1**                                   | Sale.                                                                                              |   |
|                                                   |                                                                                               |   |
| **Section 1.2**                                   | **Purchase Price.**                                                                                |   |
|                                                   |                                                                                               |   |
| **ARTICLE II CONDITIONS**                         |                                                                                               |
|                                                   |                                                                                               |   |
| **Section 2.1**                                   | **Buyer’s Conditions Precedent.**                                                             |   |
|                                                   |                                                                                               |   |
| **ARTICLE III BUYER’S EXAMINATION**          |                                                                                               |
|                                                   |                                                                                               |   |
| **Section 3.1**                                   | **Representations and Warranties of Seller.**                                                      |   |
|                                                   |                                                                                               |   |
| **Section 3.2**                                   | **No Liability for Exception Matters.**                                                            |   |
|                                                   |                                                                                               |   |
| **Section 3.3**                                   | **Survival of Seller’s Representations and  Warranties of Sale.**                             |   |
|                                                   |                                                                                               |   |
| **Section 3.4**                                   | **Seller’s Knowledge.**                                                                       |   |
|                                                   |                                                                                               |   |
| **Section 3.5**                                   | **Representations and Warranties of Buyer.**                                                       |   |
|                                                   |                                                                                               |   |
| **Section 3.6**                                   | **Buyer’s Independent Investigation.**                                                        |   |
|                                                   |                                                                                               |   |
| **Section 3.7**                                   | **Release.**                                                                                       |   |
|                                                   |                                                                                               |   |
| **Section 3.8**                                   | **Survival.**                                                                                      |   |
|                                                   |                                                                                               |   |
| **ARTICLE IV TITLE**                              |                                                                                               |
|                                                   |                                                                                               |   |
| **Section 4.1**                                   | **Conditions of Title.**                                                                           |   |
|                                                   |                                                                                               |   |
| **Section 4.2**                                   | **Evidence of Title.**                                                                             |   |
|                                                   |                                                                                               |   |
| **ARTICLE V RISK OF LOSS AND INSURANCE PROCEEDS** |                                                                                               |
|                                                   |                                                                                               |   |
| **Section 5.1**                                   | **Minor Loss.**                                                                                    |   |
|                                                   |                                                                                               |   |
| **Section 5.2**                                   | **Major Loss.**                                                                                    |   |
|                                                   |                                                                                               |   |
| **ARTICLE VI BROKERS AND EXPENSES**               |                                                                                               |
|                                                   |                                                                                               |   |
| **Section 6.1**                                   | **Brokers.**                                                                                       |   |
|                                                   |                                                                                               |   |
| **Section 6.2**                                   | **Expenses.**                                                                                      |   |
|                                                   |                                                                                               |   |
| **ARTICLE VII LEASES AND OTHER AGREEMENTS**       |                                                                                               |
|                                                   |                                                                                               |   |
| **Section 7.1**                                   | **Leasing.**                                                                                       |   |
|                                                   |                                                                                               |   |
| **Section 7.2**                                   | **Leasing Commissions and Concessions.**                                                           |   |
|                                                   |                                                                                               |   |
| **Section 7.3**                                   | **Tenant Notices.**                                                                                |   |
|                                                   |                                                                                               |   |
| **Section 7.4**                                   | **Maintenance of Improvements and Operation  of Property; Removal of Tangible Personal Property.** |   |
|                                                   |                                                                                               |   |
| **Section 7.5**                                   | **Service Contracts.**                                                                             |   |
|                                                   |                                                                                               |   |
| **ARTICLE VIII CLOSING AND ESCROW**               |                                                                                               |
|                                                   |                                                                                               |   |
| **Section 8.1**                                   | **Escrow Instructions.**                                                                           |   |

 

----

 
| **Section 8.2**              | **Closing.**                                                      |   |
|-----------------------------------|-------------------------------------------------------------------|--------|
|                              |                                                              |   |
| **Section 8.3**              | **Deposit of Documents.**                                         |   |
|                              |                                                              |   |
| **Section 8.4**              | **Omitted**                                                       |   |
|                              |                                                              |   |
| **Section 8.5**              | **Prorations.**                                                   |   |
|                              |                                                              |   |
| **ARTICLE IX MISCELLANEOUS** |                                                              |
|                              |                                                              |   |
| **Section 9.1**              | **Notices.**                                                      |   |
|                              |                                                              |   |
| **Section 9.2**              | **Entire Agreement.**                                             |   |
|                              |                                                              |   |
| **Section 9.3**              | **Entry and Indemnity.**                                          |   |
|                              |                                                              |   |
| **Section 9.4**              | **Time.**                                                         |   |
|                              |                                                              |   |
| **Section 9.5**              | **Attorneys’ Fees.**                                         |   |
|                              |                                                              |   |
| **Section 9.6**              | **Assignment.**                                                   |   |
|                              |                                                              |   |
| **Section 9.7**              | **Counterparts.**                                                 |   |
|                              |                                                              |   |
| **Section 9.8**              | **Governing Law.**                                                |   |
|                              |                                                              |   |
| **Section 9.9**              | **Confidentiality and Return of Documents.**                      |   |
|                              |                                                              |   |
| **Section 9.10**             | **Interpretation of Agreement.**                                  |   |
|                              |                                                              |   |
| **Section 9.11**             | **Limited Liability.**                                            |   |
|                              |                                                              |   |
| **Section 9.12**             | **Amendments.**                                                   |   |
|                              |                                                              |   |
| **Section 9.13**             | **No Recording.**                                                 |   |
|                              |                                                              |   |
| **Section 9.14**             | **Drafts Not an Offer to Enter into a Legally Binding Contract.** |   |
|                              |                                                              |   |
| **Section 9.15**             | **ERISA.**                                                        |   |
|                              |                                                              |   |
| **Section 9.16**             | **No Partnership.**                                               |   |
|                              |                                                              |   |
| **Section 9.17**             | **No Third Party Beneficiary.**                                   |   |
|                              |                                                              |   |
| **Section 9.18**             | **Omitted.**                                                      |   |
|                              |                                                              |   |
| **Section 9.19**             | **Limitation on Liability.**                                      |   |
|                              |                                                              |   |
| **Section 9.20**             | **FIN 46 Language.**                                              |   |
|                              |                                                              |   |
| **Section 9.21**             | **Survival.**                                                     |   |
|                              |                                                              |   |
| **Section 9.22**             | **Survival of Article IX.**                                  |   |
|                              |                                                              |   |
| LIST OF EXHIBITS AND SCHEDULES    |                                                              |
|                              |                                                              |   |
| EXHIBITS                          |                                                              |   |
|                              |                                                              |   |
| SCHEDULES                         |                                                              |   |

 

H-2

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