Exhibit
10.40


 


PURCHASE
AND SALE AGREEMENT


 


 


between


 


 


PARK
CREST BUILDING 5 ASSOCIATES, LLC,


a
Virginia limited liability company

(as Seller)


 


 


and


 


BEHRINGER
HARVARD MULTIFAMILY OP I LP,


a
Delaware limited partnership


(as Buyer)


 


 


for


 


Commercial
Condominium Unit and Residential Condominium Unit in The Lofts at Park*Crest
Condominium located at 8210 Crestwood Heights Drive in McLean (Fairfax County)
Virginia


 

















 


	
  Section 1.

  	
   

  	
  The Transaction.

  	
   

  	
  4

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 2.

  	
   

  	
  Purchase Price and Earnest Money Deposit.

  	
   

  	
  4

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 3.

  	
   

  	
  The Closing.

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 4.

  	
   

  	
  Inspection and Condition of the Property.

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 5.

  	
   

  	
  Title Matters and Insurance.

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 6.

  	
   

  	
  Service Contracts and Special Declarant Rights.

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 7.

  	
   

  	
  Brokers.

  	
   

  	
  11

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 8.

  	
   

  	
  Conditions of Closing.

  	
   

  	
  11

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 9.

  	
   

  	
  Closing Costs and Proration Credits.

  	
   

  	
  13

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 10.

  	
   

  	
  Closing Deliveries.

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 11.

  	
   

  	
  Possession.

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 12.

  	
   

  	
  Damage or Appropriation of the Real Property.

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 13.

  	
   

  	
  Representations, Warranties and Covenants.

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 14.

  	
   

  	
  Voluntary Termination; Default; Remedies.

  	
   

  	
  26

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 15.

  	
   

  	
  As-Is Condition

  	
   

  	
  27

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 16.

  	
   

  	
  General and Miscellaneous Provisions.

  	
   

  	
  29

  



 


EXHIBITS


 


	
  Exhibit A

  	
  Description of
  the Real Property

  
	
  Exhibit B

  	
  List of Personal
  Property

  
	
  Exhibit C

  	
  Service
  Contracts

  
	
  Exhibit D

  	
  Special Warranty
  Deed

  
	
  Exhibit E

  	
  Bill of Sale

  
	
  Exhibit F

  	
  Assignment and
  Assumption of Service Contracts

  
	
  Exhibit G

  	
  Assignment of
  Warrantees, Licenses and Governmental Approvals

  
	
  Exhibit H

  	
  Assignment and
  Assumption of Leases

  
	
  Exhibit I

  	
  Operating
  Statements

  
	
  Exhibit J

  	
  Master
  Association Documents

  
	
  Exhibit K

  	
  The Lofts at
  Park*Crest Condominium Documents

  
	
  Exhibit L

  	
  Assignment of
  Special Declarant Rights

  
	
  Exhibit M

  	
  Rent Roll for
  Residential Condominium Units

  
	
  Exhibit N

  	
  Form of
  Tenant Notice

  
	
  Exhibit O

  	
  Escrow Agreement

  
	
  Exhibit P

  	
  FDP

  
	
  Exhibit Q

  	
  Form of
  Vendor Notice

  
	
  Exhibit R

  	
  Form of
  Condominium Estoppel

  
	
  Exhibit S

  	
  Form of
  Master Association Estoppel

  
	
  Exhibit T

  	
  Form of
  Harris Teeter Estoppel

  



 

















 


EXECUTION
COPY


 


PURCHASE
AND SALE AGREEMENT


 


As
of January 28, 2010


 


This
Purchase and Sale Agreement (“Agreement”)
is made by and between PARK CREST BUILDING 5
ASSOCIATES, LLC, a Virginia limited liability company (“Seller”) having an address of c/o The
Penrose Group, 8330 Boone Boulevard, Suite 460, Vienna, Virginia 22182,
and BEHRINGER HARVARD MULTIFAMILY OP I LP,
a Delaware limited partnership  (“Buyer”) having an address of 15601 Dallas
Parkway, Suite 600, Addison, Texas, 75001.


 


PRELIMINARY
STATEMENTS


 


A.                                                                                   Seller is the
owner of the following described property, which, taken together, is herein
collectively called the “Property”
including, without limitation:


 


(1)                                                                                                                                  That certain
Commercial Condominium Unit (“Commercial
Condominium Unit”) in The Lofts at
Park*Crest Condominium (“Condominium”),
created, pursuant to the provisions of Title 55, Section 55-79.39 et seq.
of the Code of Virginia, 1950 Edition, by the recordation of that certain
Declaration of The Lofts at Park*Crest Condominium and the exhibits thereto,
among the land records of Fairfax County, Virginia in Deed Book 20036 at Page 2035,
as amended (collectively the “Condominium
Instruments”), consisting of approximately 66,601 square feet of
rentable area currently leased to Harris Teeter, Inc., located at 8210
Crestwood Heights Drive in McLean (Fairfax County) Virginia, and more
particularly described on Exhibit A
attached hereto and made a part hereof;


 


(2)                                                                                                                                  That certain
Residential Convertible Space (“Residential
Condominium Unit”) in the
Condominium, which consists of 131 apartment units more particularly described
on Exhibit A attached
hereto.  The Commercial Condominium Unit
and the Residential Condominium Unit, being all of the condominium units of the
Condominium, shall hereinafter be collectively referred to as the “Condominium Units”;


 


(3)                                                                                                                                  All fixtures
and improvements and all mechanical systems and related equipment attached to
or located within the Condominium Units including, but not limited to, electrical
systems, plumbing systems, heating systems and air conditioning systems,
constructed, installed and made thereon (“Improvements”);


 


(4)                                                                                                                                  The rights and
interests established for the benefit of the owner of the Condominium Units
under the Condominium Instruments (“Condominium
Interests”);


 


(5)                                                                                                                                  The rights and
interests established for the benefit of the Condominium Units under the
Declaration for Park*Crest (“Master
Declaration”), which Master Declaration was recorded among the land
records of Fairfax County, Virginia in Deed Book 20036 at Page 1756, as
amended, and the rights and interests established for the benefit of the
Condominium Units under the Articles of Organization and other governing
documents of Park*Crest Master Association, LLC (“Master Association”) and which affects the Real Property and
the property commonly known as Park Crest. 
The Master Declaration, the Articles of Organization and the 


 


2

















 


other governing documents for the Master Association are hereafter
collectively referred to as the “Master
Association Governing Documents”. The Condominium Instruments and
the Master Association Governing Documents are hereafter collectively referred
to as the “Governing Documents”.  The rights and interests established for the
benefit of the Condominium Units under the Master Association Governing
Documents are hereinafter collectively referred to as the “Master Association Interests”.  The Condominium Units, the Improvements, the
Condominium Interests and the Master Association Interests are hereinafter
collectively referred to as the “Real
Property;”


 


(6)                                                                                                                                  All items of
personal property listed on Exhibit B
attached hereto and made a part hereof (“Personal
Property”);


 


(7)                                                                                                                                  All agreements
pursuant to which services or goods are provided solely to the Condominium
Units and the Improvements together with any addendum, amendments or
supplements thereto, including but not limited to all rights, title and
interests in that certain Management Agreement by and between Seller and
Kettler Management Corp. dated as of May 8, 2008, all as more particularly
described on Exhibit C
attached hereto and made a part hereof (collectively the “Service Contracts”), to the extent Buyer
elects to assume the same in accordance herewith;


 


(8)                                                                                                                                  Seller’s
Special Declarant Rights as described in Section 55-79.74:3 of the
Condominium Act or reserved to Seller in the Condominium Instruments (the “Special Declarant Rights”), to the extent
Buyer elects to assume such rights in accordance with Section 6(b) hereof;


 


(9)                                                                                                                                  To the extent
the following are assignable and are owned or controlled by Seller, (i) all
intangible property used solely in connection with the ownership or operation
of the Condominium Units, the Improvements and the Personal Property (“Intangible Property”), (ii) all
warranties and guaranties (whether express or implied) from contractors,
architects, engineers, design professionals, material and labor suppliers and
any other parties involved in the design or construction of the Property
(collectively, the “Construction Parties”),
(iii) any contract rights against any Construction Parties, and all causes
of action and choses in action against any Construction Parties (items (ii) and
(iii), shall collectively be referred to as the “Warranties”), (iv) all surveys, blue prints, drawings,
Plans and Specifications (hereafter defined) and other documentation for or
with respect to the construction or operation of the Property or any part
thereof, (v) all marketing artwork, construction drawings, soil tests,
environmental reports, (vi) all available tenant lists and data, all
correspondence with past, present and prospective tenants and all
correspondence with vendors, suppliers, utility companies and other third
parties that contains material information relating to the current operation of
the Property, (vii) all stationery, brochures, booklets, manuals and
promotional and advertising materials concerning the Property or any part
thereof, (viii) all other existing books, records and documents used in
connection with the operation of the Property or any part thereof and (ix) all
photographs and other images of the Property as are displayed on the website
for the Property as of the Effective Date;


 


(10)                                                                                                                            All of Seller’s
rights under any permits, licenses, certificates of occupancy, consents,
authorizations, variances or waivers issued by any governmental or quasi-


 


3

















 


governmental agency, department, board, commission, bureau or other
entity or instrumentality to the extent applicable to the Condominium Units,
the Improvements and the Personal Property (“Approvals”);


 


(11)                                                                                                                            All of Seller’s
rights under and interest in that certain Deed of Lease Agreement dated December 21,
2005 between Seller, as landlord, and Harris Teeter, Inc., as tenant (“Harris Teeter”), as supplemented by that
certain Cold Dark Shell Certification and Notice of Tenant’s Commencement of
Construction dated February 25, 2008 between Seller, as landlord, and
Harris Teeter, as tenant, as amended, (collectively, “Harris Teeter  Lease”), and all of Seller’s rights under and interest in any
and all residential tenant leases of the Real Property in effect at Closing,
including an assignment of all security deposits thereunder (“Residential Leases”) between Seller, as
landlord , and certain residential occupants, as tenants (“Tenants”). 
The Harris Teeter Lease and the Residential Leases shall collectively be
referred to as the “Leases”; and


 


(12)                                                                                                                            Rights to use
of name “The Lofts at Park*Crest Condominium”.


 


B.                                     Seller proposes
to sell and convey to Buyer, and Buyer proposes to purchase, pay for and
acquire from Seller, the Property for the Purchase Price (as hereinafter
defined) and on and subject to the other terms and conditions set forth in this
Agreement.


 


STATEMENT
OF THE AGREEMENT


 


NOW,
THEREFORE,  for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:


 


Section 1.      The Transaction.


 


Seller agrees to sell and convey to Buyer, and Buyer agrees to purchase
and acquire from Seller, the Property for the Purchase Price specified in Section 2
and on and subject to the other terms and conditions set forth in this
Agreement.


 


Section 2.      Purchase Price and
Earnest Money Deposit.


 


(a)                                                                                  Purchase Price and Payment.  Subject to adjustment for certain charges and
credits as provided in this Agreement, the purchase price to be paid to Seller
by Buyer for the Property is Sixty Seven Million, Five Hundred Thousand Dollars
and 00/100 Dollars ($67,500,000.00) (“Purchase
Price”).


 


(b)                                                                                 Payment Terms.  The
Purchase Price shall be paid as follows:


 


(i)                                                                                                                                     The sum of One
Million Five Hundred Thousand and 00/100 Dollars ($1,500,000.00) (the “Initial Deposit”) will be wired or paid in
good funds by Buyer to the Escrow Agent (as hereinafter defined) within two (2) business
days after receipt by Buyer of a fully executed Agreement (the “Effective Date”) pursuant to the escrow agreement attached
hereto as Exhibit O (the “Escrow
Agreement”).


 


4

















 


(ii)                                                                                                                                  Provided that
the Buyer has not terminated this Agreement prior to the Due Diligence
Expiration Date pursuant to Section 4(c), within two (2) business
days following the Due Diligence Expiration Date, Buyer shall deposit with
Escrow Agent an additional deposit in the amount of Two Million Five Hundred
Thousand and No/100 Dollars ($2,500,000.00) (the “Additional Deposit”). 
For purposes of this Agreement the term “Deposit”
shall mean collectively, the Initial Deposit, the Additional Deposit, if made,
and all interest or earnings accruing thereon.


 


(iii)                                                                                                                               The Initial
Deposit and the Additional Deposit, if made, shall be held by the Escrow Agent
and distributed as provided in Section 2(c).


 


(iv)                                                                                                                              The balance of
the Purchase Price (which shall be adjusted for certain charges and credits as
provided in this Agreement) shall be wired or paid in good funds by Buyer into
escrow with the Escrow Agent on or prior to the Closing (as hereinafter defined)
and upon Seller’s completion of the conditions precedent contained in Section 8(a),
Buyer shall cause the Purchase Price (as adjusted for certain charges and
credits as provided in this Agreement) to be paid by the Escrow Agent (as
hereinafter defined) to Seller by wire transfer on the Closing Date (as
hereinafter defined).


 


(c)                                                                                  Deposit.  The escrow
agent hereunder shall be Chicago Title Insurance Company, 2001 Bryan Street, Suite 1700,
Dallas, Texas 78213, Attn: Mr. Konrad Kaltenbach (“Escrow Agent”).  The Deposit paid to the Escrow Agent by Buyer
shall be held by the Escrow Agent in an interest bearing account, and except as
otherwise specifically provided in this Agreement, any interest accrued thereon
shall belong to Buyer and shall be applied and disposed of as follows:


 


(i)                                                                                                                                     Closing.  At Closing the Deposit and the balance of the
Purchase Price (as adjusted for certain charges and credits as provided in this
Agreement) shall immediately be paid, or caused to be paid, by Buyer to Seller
by wire transfer to an account specified by Seller.


 


(ii)                                                                                                                                  Failure to
Close.  If this Agreement is
terminated, then Escrow Agent shall pay the Deposit and all interest thereon,
to Buyer or Seller as provided in the Escrow Agreement


 


(iii)                                                                                                                               Survival.  The
provisions of this Agreement regarding the disposition of the Deposit following
a termination of this Agreement shall survive termination of this Agreement.


 


Section 3.      The Closing.


 


At the closing of the transaction contemplated herein (“Closing”), Seller shall deliver to the
Escrow Agent a special warranty deed (“Deed”)
for the Real Property together with all other Closing Deliveries (as
hereinafter defined) required to be delivered by Seller, and Buyer shall pay to
the Escrow Agent the amount necessary to close, and deliver to the Escrow Agent
all Closing Deliveries required to be delivered by Buyer.  Closing shall occur at or before 3:00 P.M.
Eastern Time on March 16, 2010 (“Closing
Date”), subject to extension as provided in this Agreement.  Any fees charged by the Escrow Agent for its
services hereunder shall be paid by Buyer. 
The parties may attend the Closing by making their Closing deliveries
into escrow with Escrow Agent pursuant to escrow instructions that do not conflict
with the terms of this Agreement.


 


5

















 


Section 4.      Inspection and
Condition of the Property.


 


(a)                                                                                  Access to and Inspection of the Property.  Buyer and its agents and consultants shall
have the right until 5:00 P.M. Eastern Time on February 26, 2010 (“Due Diligence Expiration Date”) to inspect
the Property (“Inspection Period”).


 


(i)                                                                                                                                     Buyer and its
agents shall have the right, subject to the rights of Harris Teeter under the
Harris Teeter Lease and to residential tenants under the Residential Leases, to
enter upon and have access to the Real Property, upon at least twenty-four (24)
hours’ prior notice to Seller (which may be oral), in order to conduct surveys,
tests, examinations, appraisals and inspections thereof.  Prior to entering upon the Condominium Units
pursuant to this Section 4(a), Buyer shall provide to Seller evidence of
Buyer’s liability insurance with policy limits of at least $5,000,000 (which amount
may be met in combination with umbrella or excess liability policies) naming Seller
as an additional insured.  At Seller’s
option, Seller or Seller’s agent may accompany and/or observe Buyer during
Buyer’s due diligence undertakings on the Real Property.  Seller shall endeavor to make itself or its
agent available to accompany Buyer; provided, however, that Buyer
shall provide Seller with not less than twenty-four (24) hours’ prior notice of
Buyer’s intention to enter upon the Real Property, and if notwithstanding such
notice, Seller or its agent are not available to accompany Buyer, then Buyer
shall have the right of entry upon, or access to, the Property to conduct such
undertakings without Seller.  Seller
shall use reasonable efforts to provide Buyer with access to the portions of
the Real Property occupied by Harris Teeter and the Residential Tenants.  After having conducted such inspections and
tests, Buyer shall promptly restore the Real Property to substantially the same
condition as existed prior to Buyer’s entry thereon.  To the extent that Buyer wishes to meet with
representatives of Harris Teeter, Buyer shall make any such arrangements
through Seller, and Seller shall have the right to attend any such meeting.


 


(ii)                                                                                                                                  Within three (3) days
after the Effective Date, Seller shall deliver to Buyer, or make available to
Buyer, either at Seller’s offices or the Real Property, copies in Seller’s
possession and control of all leases and correspondence files related thereto,
plans and specifications (“Plans and
Specifications”), permits, engineering data, title insurance
policies, surveys, insurance information, tax bills and assessments,
environmental tests, the name of the general contractor who has furnished
services in connection with the Property, the Governing Documents  and such other materials as may be
reasonably requested by Buyer to the extent the same relate to the Real
Property (“Seller Materials”), and
Buyer shall have the right to make copies, at Buyer’s expense, of such books,
files and records and to extract therefrom such information as it may desire,
and shall have the right to audit and have certified, thoroughly and
completely, all income and expenses, profits and losses, and operational
results of the Property.  Seller shall
direct and authorize all architects, engineers, surveyors, accountants and
employees of Seller having knowledge or possession of Seller Materials to
deliver such Seller Materials to, and cooperate with, Buyer in connection with
its due diligence investigation of the Property.


 


(iii)                                                                                                                               Buyer, its
prospective mortgagees, and their respective agents and consultants shall also
have the right, subsequent to the Due Diligence Expiration Date, subject to the
rights of Harris Teeter under the Harris Teeter Lease and the residential
tenants under the Residential Leases, to enter upon and have access to the Real
Property upon reasonable notice to Seller (which may be oral), in order to
conduct additional surveys, approvals, tests, 


 


6

















 


examinations, appraisals and inspections thereof and perform all other
due diligence that Buyer deems necessary; provided, however, that
except as otherwise provided in this Agreement, Buyer shall have no right to
terminate this Agreement subsequent to the Due Diligence Expiration Date.  To the extent that Buyer wishes to meet with
representatives of Harris Teeter, Buyer shall make any such arrangements
through Seller, and Seller shall have the right to attend any such meeting.


 


(b)                                                                                 Indemnification for Inspections.  Buyer shall indemnify, defend and hold Seller
and Seller’s members, managers, employees, officers, agents, contractors, and
representatives harmless from and against any lien, liability, loss, damage,
claim, cost or expense, including reasonable attorney’s fees, arising from such
inspections, tests and investigations and for physical damage to property or
bodily injury to persons which results from any such entry upon or inspection
or testing of the Real Property by Buyer, or by any employee, officer, agent,
contractor, representative or assignee of Buyer; provided, however,
that the foregoing indemnity shall not extend to any lien, liability, loss,
damage, claim, fee, or expense caused by or arising out of the negligence or
intentional misconduct of Seller or its agents or from the mere discovery of
adverse  pre-existing conditions.  This Section 4(b) shall survive the
termination of this Agreement or delivery of the Deed, as applicable, for a
period of two (2) years.


 


(c)                                                                                  Due Diligence Expiration. Buyer shall have the right
to terminate this Agreement for any reason or no reason whatsoever by
delivering a written termination notice to Seller on or before 5:00 P.M.
Eastern Time on the Due Diligence Expiration Date.  Upon delivery of such termination notice, the
Deposit and all interest thereon shall be immediately returned to Buyer, and
this Agreement shall be terminated and be of no further force and effect,
except as otherwise provided herein.  Any
such timely termination notice shall be sufficient notice to the Escrow Agent
to return the Deposit with interest accrued thereon to Buyer immediately.  If Buyer shall fail to provide a termination
notice to Seller in accordance with this Section 4(c), then Buyer shall be
deemed to have waived any right of termination pursuant to this Section 4(c),
and provided that Buyer shall have deposited with the Escrow Agent the
Additional Deposit as required pursuant to Section 2 (b) (ii), this
Agreement shall continue in full force and effect in accordance with and
subject to the other terms and conditions contained herein.


 


Section 5.      Title Matters and
Insurance.


 


(a)                                                                                  Title Commitment.  Buyer shall obtain, at its own expense, from
Chicago Title Insurance Company, 2001 Bryan Street, Suite 1700, Dallas,
Texas 78213 (“Title Company”), a
commitment for title insurance (“Commitment”)
together with legible, complete copies of the instruments referenced as
exceptions to title referenced in the Commitment (collectively, such
instruments and the Commitment, the “Title Binder”)
for the issuance of an owner’s policy of title insurance (“Policy”) on a standard ALTA form, with such
endorsements and affirmative coverage as Buyer or its mortgagee shall
reasonably require.


 


(b)                                                                                 Title Matters and Encumbrances on Title.  The Commitment shall evidence the Title
Company’s commitment to insure fee simple title to the Real Property.  For purposes hereof, the following are,
collectively, the “Permitted Encumbrances”:


 


(i)                                                                                                                                     the standard
exceptions to title insurance contained in the Title Company’s customary and
standard form of title commitment;


 


7

















 


(ii)                                                                                                                                  the lien for
real estate taxes and assessments and water and sewer charges not yet due and
payable as of the Closing Date;


 


(iii)                                                                                                                               all matters of
record existing as of the date of the Commitment (each, a “Title Encumbrance”), other than
(x) monetary liens and judgments (it being understood and agreed that the
proceeds of the Purchase Price shall be used to discharge any such monetary
liens and judgments at Closing; provided, however, that in no event shall this
section be deemed or interpreted to limit Seller’s covenant in Section 13(e)(xii)
or (xiii)) and (y) any title exception that is timely objected to by Buyer
in accordance with Section 5(c);


 


(iv)                                                                                                                              all matters
that would be disclosed by an accurate survey of the land on which the
Condominium Units are constructed, except any matter identified on the
survey that is timely objected to by Buyer in accordance with Section 5(e);


 


(v)                                                                                                                                 the terms and
conditions of all zoning regulations affecting the Real Property;


 


(vi)                                                                                                                              the terms and
provisions contained in the Condominium Instruments for the Condominium;


 


(vii)                                                                                                                           the terms and
provisions contained in the Master Association Governing Documents; and


 


(viii)                                                                                                                        any matters
specifically contemplated by this Agreement.


 


(c)                                                                                  Title Objection Notice.  On or before the date that is five (5) days
prior to the Due Diligence Expiration Date, Buyer may give to Seller written
notice (“Title Objection Notice”)
of any Title Encumbrance that is not acceptable to Buyer as a Permitted
Encumbrance on the title to the Real Property (“Title Objections”).  Any
Title Encumbrance affecting the Real Property not objected to in the Title
Objection Notice from Buyer to Seller shall be deemed to be approved or waived
by Buyer and shall be a Permitted Encumbrance. 
If Buyer fails to provide a Title Objection Notice timely to Seller,
Buyer shall be deemed to have accepted and approved all Title Encumbrances
disclosed in the Commitment, and all such Title Encumbrances disclosed in the
Commitment shall be deemed Permitted Encumbrances.


 


(d)                                                                                 Title Cure Notice.  If Buyer timely provides to Seller a written
Title Objection Notice, then, within three (3) business days after the
receipt of such Title Objection Notice, Seller shall give to Buyer a written
notice (“Title Cure Notice”)
stating that (i) Seller agrees to cure one or more of the Title Objections
identified in the Title Objection Notice on or before the Closing Date, or (ii) Seller
does not agree to, or cannot, cure one or more of the Title Objections
identified in the Title Objection Notice. 
It is understood and agreed that Seller shall not be obligated to cure
any defects other than Monetary Encumbrances (as hereinafter defined).  If Seller timely gives Buyer notice that
Seller will cure all of the Title Objections, then Seller shall by Closing,
provide evidence to Buyer that the Title Objections are so cured and, subject
to the other terms and conditions of this Agreement, this transaction shall be
closed on the Closing Date unless Seller notifies Buyer that it cannot effect
the cure before the scheduled Closing Date, in which event the Closing Date
shall be extended for up to fifteen (15) days to permit Seller to effect such
cure.  If Seller timely notifies Buyer
that Seller will not, or cannot, remove any Title 


 


8

















 


Objection, then Buyer shall have the right, at its option, to take
either of the following actions: (x) Buyer may terminate this Agreement by
written termination notice to Seller received by Seller within ten (10) days
after Buyer’s receipt of Seller’s Title Cure Notice, in which event the Deposit
and all interest thereon shall be immediately returned to Buyer and neither
party shall have any further liability hereunder except as expressly provided
herein, or (y) Buyer may waive Buyer’s Title Objections and, subject to
the terms and conditions of this Agreement, proceed to close this transaction,
in which event Buyer shall pay to Seller the full Purchase Price in accordance
with and subject to the terms hereof. 
Notwithstanding the foregoing provisions of this subsection, Seller
shall be obligated to eliminate all mortgages and assignments of leases and
rents, mechanic’s liens, tax liens, assessment liens, judgment liens, and other
similar exceptions to the title to the Real Property (“Monetary Encumbrances”).  Seller shall be entitled to use such portion
of the Purchase Price as is necessary to pay off all such Monetary
Encumbrances, in which event any instruments evidencing the release or
discharge of the Monetary Encumbrances shall be recorded at or after the
Closing; provided, however, that Seller’s obligation to cure Monetary
Encumbrances shall not be limited to the amount of the Purchase Price.


 


(e)                                                                                  Survey Objection Notice.  Seller agrees to provide to Buyer, without
cost or charge, a copy of its current survey. 
Buyer shall pay any charge to update or amend such survey, or to obtain
any additional survey that Buyer shall desire. 
On or before the date that is five (5) days prior to the Due
Diligence Expiration Date, Buyer may give to Seller written notice (“Survey Objection Notice”) of any survey
matter that is not acceptable to Buyer (“Survey
Objection”).  Any survey
matter affecting the Real Property that is shown on Buyer’s survey and not
objected to in the Survey Objection Notice shall be deemed approved or waived
by Buyer.  If Buyer fails to timely
provide a Survey Objection Notice to Seller, then Buyer’s right to object on
account of any survey matters shown on the Survey shall be deemed waived.


 


(f)                                                                                    Survey Cure Notice.  If Buyer timely provides to Seller a written
Survey Objection Notice, then, within three (3) business days after the
receipt of the Survey Objection Notice, Seller shall give to Buyer a written
notice (“Survey Cure Notice”)
stating that (i) Seller agrees to cure one or more of the Survey
Objections identified in the Survey Objection Notice on or before the Closing
Date, or (ii) Seller does not agree to, or cannot, cure one or more of the
Survey Objections identified in the Survey Objection Notice.  It is understood and agreed that Seller shall
not be obligated to cure any Survey Objections. 
If Seller gives Buyer notice that Seller will cure all of the Survey
Objections, then this transaction shall, subject to the other terms and conditions
of this Agreement, be closed on the Closing Date unless Seller notifies Buyer
that it cannot effect the cure before the scheduled Closing Date, in which
event the Closing Date shall be extended for up to fifteen (15) days to permit
Seller to effect such cure.  If Seller
notifies Buyer that Seller will not, or cannot, remove any Survey Objection,
then Buyer shall have the right, at its option, to take either of the following
actions: (x) Buyer may terminate this Agreement by delivering written
termination notice to Seller within ten (10) days after Buyer’s receipt of
the Survey Cure Notice, in which event the Deposit and all interest thereon
shall be immediately returned to Buyer and neither party shall have any further
liability hereunder except as expressly provided herein, or (y) Buyer may
waive Buyer’s Survey Objections and, subject to the terms and conditions of
this Agreement, proceed to close this transaction, in which event Buyer shall
pay to Seller the full Purchase Price in accordance with and subject to the
terms hereof.


 


9






 










 


(g)                           New
Encumbrances.  Buyer shall
have the right to object to any Title Encumbrances or survey matters first
occurring after the date of the Commitment or disclosed in any update of the
survey obtained by Buyer after the Due Diligence Expiration Date (each, a “New Encumbrance”).  Buyer may object to any New Encumbrance by
giving written notice of the New Encumbrance to which it is objecting at any
time prior to Closing, but not later than five (5) business days after
discovery of the same by Buyer.  If Buyer
does not object to any New Encumbrance as herein provided, such New Encumbrance
shall be a Permitted Encumbrance.  In the
event Buyer gives timely written notice of objection to any New Encumbrance as
herein provided, the provisions of Section 5(c) and 5(e) shall
apply with respect thereto as if set forth herein in full.  If any New Encumbrance is a Monetary
Encumbrance, Seller must remove the same on or before the Closing in accordance
with Section 5(d).  The foregoing
provisions of this section notwithstanding, Buyer agrees:  (i) that the Real Property is a part of
a larger development consisting of approximately 13.54 acres (“Park*Crest Development”), subject to the
terms of the Final Development Plan (“FDP”)
and proffers (“Proffers”) listed
on Exhibit P, (ii) that
Seller shall have right, from time to time, prior to and after Closing, to
establish such easements and other encumbrances as are customary or necessary,
in the reasonable opinion of Seller, for the development and operation of the
Park*Crest Development, (iii) that Seller shall have the right from time
to time, prior to and after Closing, to amend the FDP and Proffers affecting
the Park*Crest Development, provided, however, that any such
easement or any such amendment to the then-approved FDP or Proffers shall not
render the Real Property non-conforming, violate any law or agreement binding
on Buyer or the Property, have a materially adverse affect on the Property
(including but not limited to the use, operation, condition or value thereof, provided
that a change allowing a competing or different use of property other than the
Property shall not, by itself, be deemed an adverse change in the value of the
Property) or impose any other materially adverse obligations on Buyer without
Buyer’s prior written approval, which approval may be withheld in Buyer’s sole
and absolute discretion, (iv) to cooperate with Seller in connection with
the actions described in clauses (i) through (iii) of this sentence
at no cost to Buyer.  The provisions of
this Section 5(g) shall survive Closing and shall not be merged into
the Deed.


 


(h)                           Seller’s
Failure to Comply.  Seller’s
failure to timely deliver to Buyer a Title Cure Notice or a Survey Cure Notice
shall be deemed to be an election by Seller, made as of the last day on which
Seller was required to deliver either such notice, not to cure any Title
Objection or Survey Objection identified by Buyer.  Seller’s failure to cure any Title Objection
or Survey Objection or to provide evidence thereof on or prior to the Closing
Date (as the same may be extended pursuant to this Section 5) which Seller
has agreed in writing to cure, any New Encumbrance which Seller is required to
cure hereunder, or any Monetary Encumbrance, shall constitute a default by
Seller hereunder, in which event Buyer shall have the right to exercise the
remedies provided in Section 14 below.


 


Section 6.              Service
Contracts and Special Declarant Rights.


 


(a)                           Service
Contracts. During the Inspection Period, Buyer shall notify
Seller in writing those Service Contracts relating to the Property that Buyer
shall not assume at Closing (the “Rejected
Contracts”), and Seller shall terminate, as of the Closing Date, all
such Rejected Service Contracts.  If
Buyer does not provide Seller with the list of Rejected Contracts on or before
Closing, Buyer shall be deemed to have elected to assume all of the Service
Contracts.  


 


10

















 


Notwithstanding the
foregoing provisions of this section, for those Service Contracts that Buyer
does not want to assume, but that require a notice period beyond the Closing
Date, Seller shall deliver such termination notices as provided above, and
shall cause such contracts to be terminated as soon after the Closing Date as
permitted under the applicable contract, but Buyer shall be responsible for
paying any amounts required to be paid under such contracts after the Closing
Date.


 


(b)                           Declarant
Rights.  During the
Inspection Period, Buyer shall notify Seller in writing of its election to assume
some or all of Seller’s Special Declarant Rights.  In the event that Buyer elects to assume any
of the Special Declarant Rights, Buyer and Seller shall execute and deliver at
Closing the Assignment of Special Declarant Rights, substantially in the form
attached hereto as Exhibit L.  If Buyer does not provide Seller with its
election to assume some or all of the Special Declarant Rights on or before the
expiration of the Inspection Period, Buyer shall be deemed to have elected not
to assume any of the Special Declarant Rights.


 


Section 7.              Brokers.


 


Seller hereby acknowledges that it has not
dealt with a real estate broker in connection with this transaction.  Buyer hereby acknowledges that it has not
dealt with any real estate broker in connection with this transaction.  Each of Buyer and Seller hereby agrees to
indemnify, defend and hold harmless the other party from and against any
liability, cost or expense, plus all costs of collection, including litigation
expenses and attorneys’ fees, as a result of a claim for a commission, fee or
other compensation made by any real estate broker, finder or other person and
asserted against the other party by reason of an arrangement made or alleged to
have been made by the indemnifying party. 
This indemnity shall survive termination of this Agreement for any
reason or delivery of the Deed, as applicable.


 


Section 8.              Conditions
of Closing.


 


(a)                           Buyer’s
Conditions.  The
obligation of Buyer to consummate the Closing hereunder shall in all respects
be conditioned upon the satisfaction of each of the following conditions prior
to or simultaneously with the Closing, any of which may be waived by written
notice from Buyer to Seller.


 


(i)                                            All representations and
warranties of Seller as set forth in this Agreement shall be true and correct
in all materials respects when made and as of the date of Closing as though
such representations and warranties were made on and as of the Closing Date.


 


(ii)                                           Title Company shall be
irrevocably committed to issue the Policy at Closing in accordance with the
Commitment approved by Buyer during the Inspection Period, insuring Buyer as
fee owner of the Real Property, subject only to Permitted Encumbrances,
effective as of the date of recording of the Deed and in the amount of the
Purchase Price.


 


(iii)                                          The Harris Teeter Lease
shall be in full force and effect and shall not have been altered, amended,
modified, supplemented or terminated.


 


(iv)                                          Seller shall have delivered
the Condominium Association and Master Association estoppels to Buyer five (5) business
days prior to the Due Diligence Expiration Date.


 


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(v)                                           Seller shall have
satisfied the Seller covenants set forth in Section 13(e)(xii), and
(xiii).


 


(vi)                                          Seller shall have delivered
all of Seller’s Closing Deliveries specified in Section 10(a).


 


(vii)                                         The Governing Documents
shall be in full force and effect, and the terms of such Governing Documents
that are applicable to the Condominium Units and the Improvements, shall not
have been altered, amended, modified supplemented or terminated except to the
extent permitted pursuant to this Agreement.


 


(viii)                                        Seller
shall have performed and satisfied its obligations under this Agreement in all
material respects.


 


Notwithstanding anything to the contrary contained in this Agreement,
if any condition to Buyer’s obligation to proceed to Closing in this Section 8
is not satisfied as of the Closing Date, Buyer’s sole and exclusive right (to
be exercised not later than the Closing Date) shall be either (i) notwithstanding
such fact, to waive any and all rights or claims with respect to any such
unsatisfied obligation, and proceed to Closing; provided, however,
that if such failure of condition shall constitute a default under this
Agreement, Buyer shall also have the rights and remedies afforded to it in Section 14
for a default of this Agreement, or (ii) to terminate this Agreement, in
which event the Deposit shall be returned to Buyer, whereupon all parties shall
be released from any further liability or obligation under this Agreement
(except for any obligations that expressly survive termination of this
Agreement).


 


(b)                           Seller’s
Conditions.  The
obligation of Seller to consummate the Closing hereunder shall in all respects
be conditioned upon the satisfaction of each of the following conditions prior
to or simultaneously with the Closing, any of which may be waived by written
notice from Seller to Buyer.


 


(i)                                            All representations and
warranties of Buyer as set forth in this Agreement shall be true and correct in
all materials respects when made and as of the date of Closing as though such
representations and warranties were made on and as of the date of Closing.


 


(ii)                                           Buyer shall have delivered
all of Buyer’s Closing Deliveries specified in Section 10(b).


 


(iii)                                          Buyer shall have performed
and satisfied its obligations under this Agreement in all material respects.


 


Notwithstanding anything to the contrary contained in this Agreement,
if any condition to Seller’s obligation to proceed to Closing in this Section 8
is not satisfied as of the Closing Date, Seller’s sole and exclusive right (to
be exercised not later than the Closing Date) shall be either (i) notwithstanding
such fact, to waive any and all rights or claims with respect to any such
unsatisfied obligation, and proceed to Closing, or (ii) to terminate this
Agreement, in which event the Deposit shall be returned to Buyer, whereupon all
parties shall be released from any further liability or obligation under this
Agreement (except for any obligations that expressly survive termination of
this Agreement).


 


12

















 


Section 9.              Closing
Costs and Proration Credits.


 


It is the intent of Buyer and Seller that the economic benefit and
burden of the ownership of the Property shall pass from Seller to Buyer at
Closing.  A statement of prorations and
other adjustments (“Closing Statement”) shall be prepared by the Escrow Agent
with Seller’s and Buyer’s cooperation not less than one (1) business day
prior to the Closing Date.  At Closing,
the following items shall be adjusted between Seller and Buyer effective as of
11:59 P.M. on the day preceding the Closing Date (with Buyer being deemed
to own the Property on the Closing Date):


 


(a)                           Title
Insurance Costs.  Buyer
shall pay the cost of the title insurance premium and fees as provided in Section 5.


 


(b)                           Survey.  Buyer shall pay the cost for any new or
updated survey.


 


(c)                           Escrow
Fees.  Buyer shall pay all
fees for escrow services.


 


(d)                           Conveyance
and Recording Costs. 
Buyer shall pay the grantor’s tax in connection with the deed.  Buyer shall pay any grantee tax and all other
fees/costs, including the State and County recordation taxes in connection with
the deed and all fees related to the recording of any deed of trust placed on
the Property to secure any loan made by Buyer’s lender.  Recording fees in connection with the release
of any lien secured by the Property shall be paid by Seller.  Except as otherwise set forth in this
Agreement, Seller and Buyer shall each pay any fees or costs of its own
counsel, consultants and advisors.


 


(e)                           Taxes.  The amount of any assessment which is a lien
on the Real Property, and any real estate taxes (current and outstanding) will
be pro-rated between the parties, with Seller responsible for the period prior
to the Closing Date and Buyer responsible for the period commencing on and
after the Closing Date.  If the actual
amount of real estate taxes is not known at the time of the Closing, then the
parties shall adjust the taxes based on the actual amount of real estate taxes
for the prior tax year.  Such prorations
as described herein shall be re-adjusted by the parties as soon as the actual
amounts of taxes are known, upon presentation of reasonable evidence
thereof.  This provision shall survive
delivery of the Deed.  The foregoing provisions of this
section notwithstanding, Seller and Buyer acknowledge that real estate taxes
and assessments applicable to the Commercial Condominium Unit are to be paid
directly to the third party entitled thereto by Harris Teeter pursuant to
section 10 of the Harris Teeter Lease and to the extent that all such taxes and
assessments due as of the Closing Date have been paid, no adjustment between
Seller and Buyer on account of taxes and assessments will be made.


 


(f)                            Operating
Expense Charges.  The
amount of any gas, electric, water or other utility bill, the amount due on any
Service Contract, and any other operating expense relating to the Real Property
and allocable solely to the period prior to the Closing Date shall be paid by
Seller to the extent due prior to Closing or credited to Buyer to the extent
due from and after Closing, except to the extent that such utility or operating
costs are required by the terms of the Harris Teeter Lease to be paid by Harris
Teeter directly to the third party entitled thereto, to the extent such amounts
are due prior to Closing and have been paid, no adjustment between Buyer and
Seller on account of such amounts shall be made.


 


13

















 


(g)                           Rents
and Income.  All rents and
income from the Real Property will be pro-rated between the parties, with
Seller entitled to receive such amounts as are attributable to the period prior
to the Closing Date and Buyer entitled to receive such amounts as are
attributable to the period on or after the Closing Date.  All rentals collected or received by Seller
prior to Closing which are allocable to the period commencing on or after the
Closing Date shall be credited by Seller to Buyer.  Any rentals which have accrued to and remain
unpaid as of the Closing Date shall belong to Seller, and shall be remitted to
Seller as and when collected by Buyer; provided, however, that
any rentals collected by Buyer after Closing shall be applied first to current
rent then due and then to past due rent starting with the most recent
delinquency.  All rents collected prior
to Closing for taxes and expenses under applicable clauses in the Harris Teeter
Lease, if any, shall be paid over to Buyer at Closing if such taxes or expenses
remain unpaid as of Closing.  All rents
collected after Closing for taxes and expenses under applicable clauses, if
any, in the Harris Teeter Lease shall be paid over to Seller if Seller has paid
such taxes or expenses prior to Closing. 
For the purposes of this subparagraph, all rentals shall be apportioned
on a daily basis using the number of days in the month in which Closing occurs.


 


(h)                           Security
Deposits.  Buyer shall
receive a credit in the full amount of all refundable security deposits and any
refundable pet, cleaning or similar fees and deposits paid under the Leases,
together with interest thereon if required by law.


 


(i)                            Other
Expenses.  Except as may
otherwise be provided in this Agreement, each party shall be responsible for
all other fees, costs and expenses incurred by it in connection with this
transaction, including, without limitation, any such expenses for services
rendered by accountants, appraisers, architects, attorneys, consultants,
contractors and engineers.


 


(j)                            Governing
Documents.  Amounts due,
if any, under the Governing Documents shall be prorated as of the Closing Date


 


(k)                           Reprorations.  Except with respect to general real estate
and personal property taxes (which shall be reprorated upon the issuance of the
actual bills, if necessary), any proration which must be estimated at Closing
shall be reprorated and finally adjusted within ninety (90) days after the
Closing Date; otherwise all prorations shall be final.  The provisions of this section shall survive
the Closing.


 


(l)                            Utility
Transfer.  At least five (5) business
days prior to Closing, Seller will:  (i) instruct
all applicable utilities serving the Property and directly metered to Seller to
take final meter readings for their respective service to the Property as of the
Closing Date (which final bills should be charged to, and paid by, Seller); (ii) advise
said utilities, in writing, of the sale of the Property to Buyer and the
intended Closing Date.  Seller will take
no action which would cause any of said utility services to the Property to be
terminated.  Seller shall cooperate with
Buyer to effect the transfer, as of the Closing Date, of all said utility
services to Buyer.


 


(m)                          Employee
Expenses.  Notwithstanding
anything to the contrary contained in this Agreement, Seller shall be
responsible for and pay at or prior to Closing, all amounts due or accruing
through Closing for employees’ salaries, vacation pay, withholding and payroll
taxes, and other benefits, and any management fee through Closing affecting the
Property.


 


14

















 


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


 


Section 10.            Closing
Deliveries.


 


Not less than five (5) business days prior to Closing, Buyer shall
notify Seller of any assignment of Buyer’s interest in this Agreement (as
permitted by Section 16 (h) hereof) so that the Closing Deliveries
can be prepared to reflect such assignment. 
If Seller is not so notified, the Closing Deliveries shall name Buyer as
the purchaser.


 


(a)                           Instruments
to be Delivered by Seller. 
At the Closing, Seller shall execute and deliver, or shall cause to be executed
and delivered, to Escrow Agent, the following (“Closing Deliveries”):


 


(i)                                            the Deed in the form
attached hereto as Exhibit D
by which Seller grants and conveys good, clear, record and marketable title to
the Real Property to Buyer, subject to the Permitted Encumbrances;


 


(ii)                                           a Bill of Sale in the form
attached hereto as Exhibit E
by which Seller transfers to Buyer the Personal Property and Intangible
Property;


 


(iii)                                          an Assignment and
Assumption of Service Contracts in the form attached hereto as Exhibit F by which Seller shall
assign to Buyer and Buyer shall assume from Seller each existing Service
Contract other than the Rejected Contracts;


 


(iv)                                          an Assignment of
Warrantees, Licenses, Governmental Approvals and Intangible Property in the
form attached hereto as Exhibit G
by which Seller shall assign and transfer to Buyer (to the extent assignable)
all of Seller’s interest in any warranties (including, without limitation, any
warranties arising under the construction agreement with Crest LLC as well as
any warranties arising under any subcontracts), licenses, certificates of
occupancy or other governmental approvals to the extent the same relate solely
to the Condominium Units, the Improvements or the Personal Property and the
Intangible Property;


 


(v)                                           an Assignment and
Assumption of Leases and any tenant security deposits in the form attached
hereto as Exhibit H by
which Seller shall assign to Buyer and Buyer shall assume from Seller the
Leases together with, if applicable, duly assigned letters of credit and other
instruments being held by Seller as security deposits from commercial and
retail tenants of the Property;


 


(vi)                                          an Owner’s Affidavit on the
Title Company’s standard form given by Seller to the Title Company sufficient,
among other things, for the Title Company to issue the Policy to Buyer and its
lender and delete the gap exception and the standard exceptions, 


 


15

















 


including those for mechanic’s
liens, for parties in possession without any right or option to purchase the
Property or any portion thereof;


 


(vii)                                         evidence, acceptable to the
Title Company and reasonably acceptable to Buyer, authorizing the consummation
by Seller of the transaction contemplated hereby and the execution and delivery
of the Closing Deliveries on behalf of Seller;


 


(viii)                                        Grantor
tax forms or similar documents required to be executed in connection with the
recordation of the Deed and a Virginia Department of Taxation Nonresident Real
Property Owner Registration Form R-5.


 


(ix)                                           the Closing Statement and
any other document which is reasonably and customarily executed and delivered
by a seller at a real estate closing in the Commonwealth of Virginia or which
may be reasonably requested by Buyer or the Title Company;


 


(x)                                            an executed certificate
confirming Seller’s non-foreign status sufficient to comply with the
requirements of Section 1445 of the Code, commonly known as the Foreign
Investment in Real Property Tax Act of 1980, and regulations applicable
thereto;


 


(xi)                                           true, correct and complete
copies of the Plans and Specifications;


 


(xii)                                          true, correct and complete
originals of all Service Contracts which are the subject of the Assignment and
Assumption of Service Contracts or certified copies thereof to the extent any
originals are missing;


 


(xiii)                                         a
certificate (“Seller’s Bring Down Certificate”)
reaffirming the truth and accuracy, as if made on the Closing Date, of Seller’s
Representations and Warranties as set forth in Section 13(a) of this
Agreement;


 


(xiv)                                        true, correct and complete
copies of all Governing Documents, books, records, files and materials related
to the Property and the use, maintenance and operation thereof, together with
all keys and passcodes to locks at the Property (except with respect to keys in
possession of Harris Teeter);


 


(xv)                                         a notice, in the form of Exhibit Q to each of the vendors
under Service Contracts being assumed by Buyer advising such vendors of the
transfer of the Property, and including a direction to address future bills to
Buyer;


 


(xvi)                                        true, correct and complete
originals of the Harris Teeter Lease and of all Residential Leases;


 


(xvii)                                       the
Tenant Estoppel Certificate of Harris Teeter, as more particularly described in
Section 13(e)(xvi);


 


(xviii)                                      an
estoppel from the Condominium Association in the form attached hereto as Exhibit R;


 


16

















 


(xix)                                         an estoppel from the Master
Association in the form attached hereto as Exhibit S
(collectively, the estoppels listed in Sections 10(a)(xvii), (xviii), and
(xix) are the “Estoppels”);


 


(xx)                                          an updated Rent Roll
(including a listing of all delinquent and prepaid rents) certified by Seller
as being true, accurate and complete as of Closing;


 


(xxi)                                         a notice in the form
attached as Exhibit N
hereto notifying tenants under the Harris Teeter Lease and the Residential
Leases of the transfer of the Property; and


 


(xxii)                                        all
necessary instruments or documents required to name Buyer and/or its designee
as an additional insured under any existing environmental matters insurance
policies with respect to the Property.


 


(b)                           Instruments
and Purchase Price to be Delivered by Buyer.  At the Closing, Buyer shall execute and
deliver the following:


 


(i)                                            any of the Closing
Deliveries set forth in Section 10(a) where Buyer’s execution and
delivery is necessary or appropriate including, without limitation, the
Assignment and Assumption of Service Contracts and the Assignment and
Assumption of Leases;


 


(ii)                                           the Closing Statement and
any other document which is reasonably and customarily executed and delivered
by a buyer at a real estate closing in the Commonwealth of Virginia or which
may be reasonably requested by Seller;


 


(iii)                                          an appropriate certificate
of Buyer reasonably acceptable to the Title Company regarding the authorization
of the consummation by Buyer of the transaction contemplated hereby and the
execution and delivery of the Closing Deliveries on behalf of Buyer;


 


(iv)                                          a certificate (“Buyer’s Bring Down Certificate”)
reaffirming the truth and accuracy, as if made on the Closing Date, of Buyer’s
Representations and Warranties as set forth in Section 13(b) of this
Agreement; and


 


(v)                                           subject to the terms of Section 2(c) hereof,
the Purchase Price in immediately available funds, in United States currency.


 


Section 11.            Possession.


 


At Closing, Buyer shall be entitled to, and
Seller shall deliver to Buyer, possession of the Property subject only to the
Harris Teeter Lease and the Residential Leases.


 


Section 12.            Damage
or Appropriation of the Real Property.


 


(a)                           Damage
or Appropriation of the Real Property.


 


(i)                                            Damage. 
Seller shall promptly give to Buyer written notice of any fire or other
casualty causing loss or damage to the Property.  If, prior to the Closing Date, any loss or 


 


17

















 


damage to the Real Property
should occur as a result of a fire, or some other casualty, and if such loss or
damage would require an expenditure of a dollar amount in excess of Five
Hundred Thousand Dollars ($500,000.00) in order to restore the Property to
substantially the same condition it was in immediately prior to such damage,
then Buyer shall have the right, at its option, to terminate this Agreement by
written termination notice to Seller received within ten (10) business
days after Seller has given Buyer written notice of such loss or damage, in
which event the Deposit and all interest thereon shall be immediately returned
to Buyer and neither party shall have any further liability hereunder except as
expressly provided herein.  If Buyer
elects not to terminate this Agreement in accordance with the previous
sentence, or if the loss or damage would require an expenditure of less than
Five Hundred Thousand Dollars ($500,000.00), then the parties shall proceed to
close this transaction in accordance with the terms hereof, except that Buyer
shall receive an assignment of any casualty loss insurance proceeds
attributable to the loss or damage and Buyer shall receive a credit for the
amount of the deductible required under Seller’s policy and an amount equal to
the uninsured portion of such loss and the estimated amount of rent loss to be
incurred until restoration is completed.


 


(ii)                                           Appropriation.  If appropriation proceedings should be
commenced or threatened against the Real Property or if any governmental or
other authority should notify Seller of its intention to acquire the same
pursuant to the power of eminent domain prior to the Closing Date, then Seller
shall promptly thereafter give to Buyer written notice of such action.  If the estimated amount of the condemnation
award for such appropriation is more than Five Hundred Thousand Dollars
($500,000.00), or if access to or use or enjoyment of the Real Property
(including the parking areas) is materially impeded or affected as a result of such
appropriation, then Buyer shall have the right at its option to terminate this
Agreement by written termination notice to Seller received within ten (10) business
days after Seller has given Buyer written notice of such condemnation, in which
event the Deposit and all interest thereon shall be immediately returned to
Buyer and neither party shall have any further liability hereunder except as
expressly provided herein.  If Buyer
elects not to terminate this Agreement in accordance with the previous sentence
or the appropriation is not of a nature entitling Buyer to terminate this
Agreement, then the parties shall, subject to the terms and conditions of this
Agreement, proceed to close this transaction in accordance with the terms of
this Agreement, and in such event, Seller shall assign to Buyer any
condemnation proceeds and Buyer shall have the right to negotiate with such
governmental or other authority or to contest such appropriation in litigation
proceedings


 


(iii)                                          If and to the extent that
Seller is required in this Section 12 to assign and transfer to Buyer any
casualty loss insurance proceeds attributable to the loss or damage, (a) Seller
shall use commercially reasonable efforts to cause its insurance carriers pay
any unpaid insurance proceeds (including business interruption and rental loss
insurance of Seller that would be applicable to the period after the Closing)
to Buyer and for Buyer’s benefit, and (b) if Seller’s insurance carriers
do not permit assignment of such insurance proceeds to Buyer, then Seller shall
obtain from its insurance carriers a policy endorsement to each applicable
policy pursuant to which Buyer is added as a loss payee as of the Closing Date
under each applicable policy.  The
provisions of this Section 12(a)(iii) shall survive the Closing.


 


18

















 


Section 13.            Representations,
Warranties and Covenants.


 


(a)                           Representations
and Warranties of Seller. 
Seller hereby makes the following representations and warranties to
Buyer as of the date hereof:


 


(i)                                            Organization.  Seller is a limited liability company and has
been duly organized and is validly existing and in good standing under the laws
of the Commonwealth of Virginia and is duly authorized to transact business
therein.


 


(ii)                                           Authority.  Seller has the full right and authority to
enter into this Agreement and to transfer all of the Property and to consummate
or cause to be consummated the transaction contemplated by this Agreement and
to otherwise perform this Agreement on the terms contained herein.  The person signing this Agreement on behalf
of Seller is authorized to do so. 
Performance of this Agreement will not result in any breach of, or
constitute any default under, or result in the imposition of a lien or
encumbrance on the Property under any agreement or other instrument to which
Seller is a party or by which Seller or the Property might be bound.  No consent, approval, authorization, license,
order, registration, filing or other notice of or to any person is required
with respect to the execution and delivery of this Agreement or the Closing
Deliveries by Seller or the consummation by Seller of the transactions
contemplated hereby or the performance by Seller of its obligations
hereunder.  To the best of Seller’s
knowledge, all documents executed by Seller hereunder or in connection
herewith, each constitute the legal, valid and binding obligations of Seller,
enforceable in accordance with their respective terms, covenants and
conditions, subject to enforcement of creditor’s rights generally, and except
as may be limited by applicable laws, general equitable principles or judicial
decisions which may qualify, limit or include certain rights, remedies or
provisions contained in this Agreement and/or any documents executed by Seller
hereunder.


 


(iii)                                          Pending Actions.  To the best of Seller’s knowledge, there is
no action, suit, arbitration, unsatisfied order or judgment, government
investigation or proceeding pending against Seller or the Property.  Seller has not received any written notice
of, and has no knowledge of, any such threatened action, suit, arbitration,
government investigation or proceeding.


 


(iv)                                          Condemnation.  Seller has not received any written notice
and has no knowledge of any pending or threatened condemnation proceedings
relating to all or any portion of the Real Property, or the means of access
thereto.


 


(v)                                           Intentionally Omitted.


 


(vi)                                          Residential Leases.  Exhibit M
attached hereto describes, in all material respects, the following information
concerning the Residential Leases affecting the Property as of the date thereon
(“Rent Roll”): (a) unit
number, (b) name of tenant, (c) rental rate, (d) move in date, (e) expiration
date, and (f) amount of security deposit. 
Seller makes no representation with respect to any information provided
in Exhibit M that is
not described in the preceding sentence. 
Notwithstanding anything in this Agreement to the contrary, Seller does
not covenant or represent that tenants under Residential Leases will not be in
default under their respective


 


19














 


Residential
Leases, and the existence of any default by any tenant under any of the
Residential Leases shall not affect the obligations of Buyer hereunder.


 


(vii)                                         Service Contracts.  Exhibit C
lists all the Service Contracts affecting the Property.  The copies of the Service Contracts provided
(or to be provided during the Inspection Period) to Buyer are true, accurate
and complete.


 


(viii)                                        Leasing and Brokerage Commissions and Allowances.  There are no leasing or brokerage commissions
due or payable or which will become due or payable with respect to the
Residential Leases or any extension or renewal thereof, except for those due to
the management agent in connection with the leasing of residential apartments
which comprise the Residential Unit, which Seller shall pay in the ordinary
course of business at or prior to Closing. 
There are no leasing fees, commissions, tenant allowances or other
similar inducements of any kind that are due or which will become due and payable
under the Harris Teeter Lease or in connection with any extension or renewal
thereof.


 


(ix)                                           Bankruptcy.  To the best
of Seller’s knowledge, there is no threatened or pending case, proceeding or
other action seeking liquidation or dissolution of Seller under any law,
federal or state, relating to bankruptcy, insolvency, reorganization, or
seeking the appointment of a receiver, trustee, custodian or similar official
for Seller or the Property.


 


(x)                                            Violations of Law.  Seller has not received any written notice
from any authority alleging any existing fire, health, safety, building,
pollution, environmental or other violation of law, statute, code, ordinance or
regulation with respect to the Real Property that has not been remedied.


 


(xi)                                           Hazardous Materials.  To the best of Seller’s knowledge there are
no “Hazardous Wastes” or “Toxic Substances” on, in or under the Real Property
in amounts that would violate any Environmental Laws, nor has Seller used the
Condominium Units, nor to Seller’s best knowledge, have the Condominium Units
or Real Property been used, for the storage or disposal of “Hazardous Wastes” or “Toxic Substances”.  As used herein, “Hazardous Wastes” means all
waste materials subject to regulation under the Comprehensive Environmental
Response, Compensation, and Liability Act, 42 U.S.C. §§ 6901 et seq., the Resource Conservation and
Recovery Act, 42 U.S.C. §§6901 et seq.,
or any other applicable federal, state or local laws and their regulations now
in force or hereafter enacted relating to hazardous waste disposal; and “Toxic
Substances” means and includes any materials which have been shown to have
significant adverse effects on human health or which are subject to regulation
under the Toxic Substance Control Act, 15 U.S.C. §§2601 et seq., or any other applicable federal,
state or local laws now in force or hereafter enacted relating to materials
having adverse effects on human health, and includes, but is not limited to,
asbestos, polychlorinated biphenyls (PCBs), petroleum products and lead-based
paints.  All such laws relating to
hazardous waste disposal and toxic substances are collectively referred to
herein as “Environmental Laws.”


 


(xii)                                          Assessments.  To
the best of Seller’s knowledge, there are, at present, no outstanding unpaid
assessment notices against the Condominium Units or any of the 


 


20

















 


Improvements
and Seller has received no written notice of any such assessments that would be
payable by Buyer after the Closing.


 


(xiii)                                         Insurance Notices.  Seller has not received notice from its
insurance carrier canceling any insurance pertaining to the Condominium Units
or the Improvements or any notice from its insurance carrier or Board of Fire
Underwriters or comparable body requesting the performance of any repairs,
alterations or other work at the Condominium Units.  In the event any such notice is received by
Seller prior to Closing, Seller shall advise Buyer thereof and promptly shall
commence to cure the matters giving rise to such notice at Seller’s expense,
and if not completed as of the date of Closing, allowance therefor shall be
made at Closing.


 


(xiv)                                        No Employees.  On
the Closing Date, there shall be no employees of Seller at the Condominium
Units or Real Property nor will there be any accrued salary, vacation time or
other benefits payable to any employee or labor union who could make a claim
against the Condominium Units, Property or Buyer.


 


(xv)                                         Maintenance and Repairs.  Seller has no knowledge of, and Seller has
not received any notice of, any repair, improvement, or maintenance obligation
for which Seller is responsible as the owner of the Condominium Units or Real
Property or as landlord under the Leases. 
To Seller’s knowledge, all repairs, improvements, or maintenance
obligations required to be performed by landlord under the Leases as of the
date of this representation have been performed.


 


(xvi)                                        Executive Order. 
Seller is not a person or entity described in Section 1 of the
Executive Order (no. 13,224) Blocking Property and Prohibiting Transactions
With Persons Who Commit, Threaten to Commit, or Support Terrorism, 66 Fed. Reg.
49,079 (September 24, 2001);


 


(xvii)                                       Marketable Title.  To the best of Seller’s knowledge, Seller has
good and marketable title to the Personal Property, and such Personal Property
will be owned by Seller at Closing and transferred to Buyer free and clear of
any encumbrances, liens and security agreements 
To the best of Seller’s knowledge, all Personal Property owned by Seller
and used on the Property is listed on Exhibit B;


 


(xviii)                                      Purchase Options.  To Seller’s knowledge, no party has any right
of first refusal to purchase any of the Property in connection with any sale of
the Property.  To Seller’s knowledge, no
party other than Buyer, has any option or other right to purchase the Property.  Except for this Agreement, Seller has not
entered into any written agreement providing for a sale of the Property by
Seller to any party, other than Buyer, which agreement remains in effect on and
as of the Effective Date;


 


(xix)                                         Seller’s Materials.  Seller has delivered, or will deliver or make
available in accordance with the terms of this Agreement, to Buyer true,
correct and complete copies of Seller’s Materials;


 


(xx)                                          Zoning.  To Seller’s
knowledge, the Real Property and intended use and occupancy thereof is
permitted under the zoning classification applicable to the Real Property;


 


21

















 


(xxi)                                         Operating Statements.  That the most recent operating statements for
the Property attached as Exhibit I
are to the best of Seller’s knowledge true and accurate in all material
respects.


 


(xxii)                                        Master Association Governing Documents.  Attached hereto as Exhibit J is a true, correct and
complete list of all of the Master Association Governing Documents.  Seller has delivered to Buyer true, correct
and complete copies of the Master Association Governing Documents.


 


(xxiii)                                       Condominium Documents. Attached hereto as Exhibit K is a true, correct and
complete list of all of the Condominium Instruments for The Lofts at Park*Crest
Condominium which have been recorded among the Land Records of Fairfax County,
Virginia.  Seller has delivered to Buyer  true, correct and complete copies of the
Condominium Instruments for The Lofts at Park*Crest Condominium.


 


(xxiv)                                       Survival.  Seller
shall represent and warrant to Buyer that all such representations and
warranties of Seller in this Agreement remain true and correct in all material
respects as of the Closing Date, except for any changes in any such
representations or warranties that occur and are disclosed by Seller to Buyer
in writing at any time and from time to time prior to Closing upon their
occurrence, which disclosures shall thereafter be updated by Seller to the
Closing Date.  Notwithstanding the
foregoing, if any of Seller’s representations or warranties made as of the date
hereof are breached or become untrue after the Effective Date as a result of
any act or omission of Seller and such matter is not cured in accordance with Section 13(b) below,
such event shall constitute a default by Seller under this Agreement and Buyer
shall be permitted to pursue the remedies provided in Section 14(d) hereof.  Each and all of the express representations
and warranties made and given by Seller to Buyer in this Section 13(a) shall
survive the Closing Date for a period of one (1) year.


 


(b)                           Discovery of Seller Misrepresentations and Warranties.  Upon discovery of a misrepresentation or a
breach of a warranty by Seller, Buyer shall give written notice to Seller of
such misrepresentation or breach and Seller shall have fifteen (15) days from
receipt of such notice to cure such misrepresentation or breach.  Seller’s failure to so cure such
misrepresentation or breach shall be a default by Seller under this Agreement.


 


(c)                           Representations and Warranties of Buyer.  Buyer hereby makes the following
representations and warranties to Seller as of the date hereof:


 


(i)                                            Organization. 
Buyer has been duly organized and is a validly existing under the laws
of Delaware.


 


(ii)                                           Authority.  Buyer has
the full right and authority to enter into this Agreement and, as of the
Closing Date, will have the full right and authority to consummate or cause to
be consummated the transaction contemplated by this Agreement.  The person signing this Agreement on behalf
of Buyer is authorized to do so.  No
consent or approval of any person or entity is required with respect to the
execution and delivery of this Agreement by Buyer or, as of the Closing Date,
will be required with respect to the consummation by Buyer of the transactions
contemplated hereby or the performance by Buyer of its obligations hereunder.


 


22

















 


(iii)                                          Pending Actions. 
There is no action, suit, arbitration, unsatisfied order or judgment,
government investigation or proceeding pending against Buyer which, if
adversely determined, could individually or in the aggregate interfere with
Buyer’s ability or authority to consummate the transaction contemplated by this
Agreement.


 


(iv)                                          Bankruptcy.  To the best
of Buyer’s knowledge, there is not pending any case, proceeding or other action
seeking liquidation or dissolution of Buyer under any law relating to
bankruptcy, insolvency, reorganization, or seeking the appointment of a
receiver, trustee, custodian or similar official for Buyer.


 


(v)                                           Survival.  Buyer shall
represent and warrant to Seller that all such representations and warranties of
Buyer in this Agreement remain true and correct in all material respects as if
made on the Closing Date, except for any changes in any such representations or
warranties that occur and are disclosed by Buyer to Seller in writing at any
time and from time to time prior to Closing upon their occurrence, which
disclosures shall thereafter be updated by Buyer to the Closing Date.  Each and all of the express representations
and warranties made and given by Buyer to Seller in this Section 13(c) shall
survive the Closing Date for a period of one (1) year.


 


(d)                           Discovery of Buyer Misrepresentations.  Upon discovery of a misrepresentation or a
breach of a warranty by Buyer, Seller shall give written notice to Buyer of
such misrepresentation or breach and Buyer shall have fifteen (15) days from
receipt of such notice to cure such misrepresentation or breach.  Buyer’s failure to cure such misrepresentation
or breach shall be a default by Buyer under this Agreement.


 


(e)                           Seller’s Covenants.  From the Effective Date and through the
Closing Date, without the prior written approval of Buyer, which consent shall
not be unreasonably withheld, conditioned or delayed, Seller shall not:


 


(i)                                            enter into,
materially modify or alter, or extend any Service Contracts or other agreements
affecting all or any part of the Property; provided, however,
that Seller shall have the right to enter into any contracts or agreements that
are terminable by their terms prior to Closing;


 


(ii)                                           terminate any
of the Residential Leases, except for non-payment of rent;


 


(iii)                                          enter into any
Residential Leases or lease extensions or modifications which are inconsistent
with Seller’s current management of the Property or its normal and customary
leasing and billing practices or which contain terms and conditions materially
less favorable than Residential Leases existing as of the Effective Date of
this Agreement, provided that Seller shall be permitted to enter into no more
than twenty (20) leases with tenants that are in the business of providing
occupancy to third parties (such as corporate employees) to the extent
consistent with Seller’s ordinary course of operating the Property (provided
that no more than twenty (20) of such leases are on the Rent Roll as of the
Closing Date);


 


(iv)                                          enter into any
leases affecting all or any part of the Commercial Condominium Unit, or alter,
amend, modify, or terminate the Harris Teeter Lease;


 


23

















 


(v)                                           mortgage or
encumber any part of the Property; provided, however, that Seller
shall have the right to enter into any encumbrances or agreements that are
terminable or will be discharged prior to Closing;


 


(vi)                                          not make any
change in its management of the Property or in its normal and customary leasing
and billing practices;


 


(vii)                                         not terminate
or amend any Governing Document, except that Seller shall be permitted to amend
the Master Association Governing Documents, so long as any such amendment to
the Master Association Governing Documents does not render the Real Property
non-conforming under the terms thereof, violate any law or agreement binding on
Buyer or the Property, have a materially adverse affect on the Property
(including but not limited to the use, operation, condition or value thereof,
provided that a change allowing a competing or different use of property other
than the Property shall not, by itself, be deemed an adverse change in the value
of the Property) or impose any other obligations on Buyer without Buyer’s prior
written approval, which approval may be withheld in Buyer’s sole and absolute
discretion;


 


(viii)                                        Intentionally
omitted


 


(ix)                                           Intentionally
omitted; and


 


(x)                                            not take any
action with respect to zoning or any other governmental rules or
regulations presently applicable to all or any part of the Property, except as
expressly permitted hereunder.


 


In addition to the covenants set forth above in this
section, from the Effective Date and through the Closing Date, Seller covenants
and agrees that:


 


(xi)                                           Seller shall
comply in all material respects with (1) all laws, regulations and other
requirements affecting the Real Property and (2) all terms, covenants and
conditions or instruments of record or other agreements affecting the Real
Property.


 


(xii)                                          Seller shall
discharge and release of record all mechanics’ or materialmen’s liens, if any,
arising from any labor or materials furnished to the Property prior to Closing
to the extent any such lien is not insured over by the Title Company or bonded
over pursuant to applicable law.  If,
after Closing, a mechanics’ or materialmen’s lien is filed in connection with
any labor or materials furnished to the Real Property prior to Closing, Seller
shall discharge and have released of record or bonded such lien within thirty
(30) days from the date Seller receives notice that the lien was filed.  The provisions of this Section 13(e)(vii) shall
survive the Closing Date for a period of one (1) year.


 


(xiii)                                         Seller agrees
to discharge or cause to be discharged all Monetary Encumbrances affecting all
or any portion of the Property.


 


(xiv)                                        Seller will
maintain, or cause to be maintained, in full force and effect fire and extended
coverage insurance upon the Condominium Units and public liability insurance
with respect to damage or injury to persons or property occurring on or in the
Condominium Units in such amounts as is maintained on the date of this
Agreement.


 


24

















 


(xv)                                         Seller will
advise Buyer promptly of any litigation, arbitration or administrative hearing
concerning or affecting the Property to which Seller is a party and of which
Seller has actual knowledge or notice.


 


(xvi)                                        Seller shall
deliver to Buyer, prior to Closing hereunder, (a) an estoppel certificate
from Harris Teeter (“Tenant Estoppel
Certificate”) in the form attached hereto as Exhibit T,
certifying, inter  alia, (1) that neither the landlord nor
tenant is in default under the Harris Teeter Lease, (2) that the Harris
Teeter Lease is in full force and effect with no understandings or agreements
applicable thereto except as otherwise set forth in the Harris Teeter Lease, (3) that
no offset, deduction, claim, defense or counterclaim is available to Harris
Teeter against rent payable by tenant, or against any other performance or
obligation otherwise due under the Harris Teeter Lease, (4) that Harris
Teeter has accepted and is in possession of the Commercial Condominium Unit, (5) that
Harris Teeter is obligated to pay rent for the Commercial Condominium Unit in
accordance with the terms of the Harris Teeter Lease; and (b) the other
Estoppels.


 


(xvii)                                       Seller shall
manage and operate the Property in accordance with sound and prudent business
practices and in compliance with the terms and provisions of the Governing
Documents, keep the Real Property and Personal Property in good condition and
repair, ordinary wear and tear excepted.


 


(xviii)                                      Seller shall
put all unoccupied rental units at the Property that become vacant after the
Effective Date in rent-ready condition or Buyer shall be given a credit against
the Purchase Price at Closing in an amount required to put said units in
rent-ready condition.


 


(xix)                                         Seller shall
promptly give written notice to Buyer of the occurrence of any event of which
Seller has actual knowledge and which affects the truth or accuracy of any
representations or warranties made or to be made by Seller under or pursuant to
this Agreement and shall promptly provide Buyer with a copy of any written
notices given to or received from a tenant alleging a material default under
any of the Leases or any written notices of which Seller has knowledge that are
given to or received from a governmental authority or the Master Association
relating to any material or adverse condition affecting the use or operation of
the Property.


 


(xx)                                          Seller shall
furnish to Buyer financial statements (including, without limitation, operating
statements for the Property) on a monthly basis and rent rolls and leasing
status reports on a monthly basis, all represented by Seller as being true,
correct and complete to the best of Seller’s knowledge.


 


(f)                            Buyer’s Covenants.  From the Effective Date and through the
Closing Date:


 


(i)                                            Buyer covenants
that neither Buyer nor any of its representatives or agents shall contact any
state or local governmental officials or employees with respect to the Real
Property without Seller’s prior written approval, which approval shall not be
unreasonably withheld, conditioned or delayed. 
Seller hereby consents to Buyer ordering a zoning report relating to the
Property and to any contacts the provider of such report may need to make with 


 


25

















 


any
governmental entity to prepare such report.  
Seller shall have the right to require that a representative of Seller
be present at the time such contact is made.


 


(ii)                                           Buyer covenants
to cooperate with Seller in connection with the actions described in clauses (i) through
(iii) inclusive in Section 5(g), and in connection therewith, Buyer
agrees to join in any consents, applications, affidavits, disclosures and
proffers as may be reasonably required by Seller, provided the same do not
impose any additional obligations on the owner of the Property.  The provisions of this Section 13(f)(ii) shall
survive the Closing Date.


 


Section 14.            Voluntary
Termination; Default; Remedies.


 


(a)                           Voluntary Termination; Release of Liability.  If this Agreement is voluntarily terminated
by a party pursuant to a right of termination expressly provided herein, then
both parties shall, upon such voluntary termination, be automatically released
from all further obligations and liability under this Agreement, except as
otherwise provided herein, and the Deposit and interest accrued thereon shall
be returned to Buyer.


 


(b)                           Default.  The
occurrence of any one or more of the following events shall constitute a
default by a party under this Agreement: 
(i) failure to close at the time and in the manner required under this
Agreement, (ii) if any representation or warranty made by a party in this
agreement was not true, correct, complete and accurate in any material respect
as of the time it was made or restated and the same is not corrected by the
party having made the representation or warranty within fifteen (15) days after
receipt of notice from the party alleging the existence of such
misrepresentation, or (iii) if any other covenant or obligation to be
performed by a party under this Agreement has not been performed within the
time period specified in this Agreement, or if no such time period has been so
specified, within a period of fifteen (15) days after the other party has given
to the non-performing party written notice of such breach or failure.


 


(c)                           Seller’s Remedies.  If a default by Buyer has occurred as
provided in Section 14(b) and is not waived by Seller, then, in such
event, Seller shall have the right to terminate this Agreement by giving Buyer
written notice of such termination, and to retain the Deposit together with
interest thereon as Seller’s sole and exclusive right at law and in
equity.  It is agreed that the Deposit
shall be considered to be the equivalent of, and shall constitute, the payment
of liquidated damages, with the amount of the Deposit and its payment being
agreed upon by the parties as being a reasonable approximation of actual
damages, including compensation to Seller for removing the Property from the
market and reimbursement for the costs and expenses incurred by Seller.  It is further agreed that the application of
the Deposit on account of a default by Buyer shall constitute a complete
release of each party from its liability under this Agreement, except as
otherwise provided herein.


 


(d)                           Buyer’s Remedies.  If a default by Seller has occurred as
provided in Section 14(b), and is not waived by Buyer, then, in such
event, Buyer shall have the right, as its sole remedies under this Agreement,
to (i) seek a judgment or order for specific performance of this
Agreement, or (ii) terminate this Agreement by giving Seller written
notice of such termination, in which event the Deposit and all interest thereon
shall be returned to Buyer and in addition Seller shall reimburse Buyer for its
actual third party expenses incurred in connection with this 


 


26

















 


transaction to an aggregate
maximum of $100,000.  If the remedy of
specific performance is unavailable due to the willful act of Seller, Buyer may
seek any remedies at law or in equity.


 


Section 15.            As-Is
Condition.


 


(a)                           AS-IS CONDITION.  SUBJECT TO SELLER’S REPRESENTATIONS AND
WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT AND IN ANY DOCUMENTS DELIVERED
PURSUANT TO THE TERMS HEREOF BY SELLER TO BUYER AT CLOSING, AND ACKNOWLEDGING
THE PRIOR USE OF THE PROPERTY AND BUYER’S OPPORTUNITY TO INSPECT THE PROPERTY,
BUYER AGREES TO PURCHASE THE PROPERTY “AS IS”, “WHERE IS”, WITH ALL FAULTS AND
CONDITIONS THEREON.  ANY WRITTEN OR ORAL
INFORMATION, REPORTS, STATEMENTS, DOCUMENTS OR RECORDS CONCERNING THE PROPERTY
(“DISCLOSURES”) PROVIDED OR MADE AVAILABLE TO BUYER, ITS AGENTS OR CONSTITUENTS
BY SELLER, SELLER’S AGENTS, EMPLOYEES OR THIRD PARTIES REPRESENTING OR
PURPORTING TO REPRESENT SELLER, SHALL NOT BE REPRESENTATIONS OR WARRANTIES,
UNLESS SPECIFICALLY SET FORTH IN THIS AGREEMENT OR IN ANY DOCUMENTS DELIVERED
PURSUANT TO THE TERMS HEREOF BY SELLER TO BUYER AT CLOSING.  IN PURCHASING THE PROPERTY OR TAKING OTHER
ACTION HEREUNDER, BUYER HAS NOT AND SHALL NOT RELY ON ANY SUCH DISCLOSURES, BUT
RATHER, BUYER SHALL RELY ONLY ON BUYER’S OWN INSPECTION OF THE PROPERTY.  BUYER ACKNOWLEDGES THAT THE PURCHASE PRICE
REFLECTS AND TAKES INTO ACCOUNT THAT THE PROPERTY IS BEING SOLD “AS IS”.  SELLER WILL ADVISE BUYER OF ANY NOTIFICATION
RECEIVED FROM GOVERNMENTAL AUTHORITIES PRIOR TO CLOSING WITH RESPECT TO A
VIOLATION OF ANY LAW OR ORDINANCE REGULATING THE OPERATION OR USE OF THE
PROPERTY.


 


(b)                           NO ADDITIONAL REPRESENTATIONS.  BUYER ACKNOWLEDGES AND AGREES THAT EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT AND IN ANY DOCUMENTS DELIVERED PURSUANT
TO THE TERMS HEREOF BY SELLER TO BUYER AT CLOSING, SELLER HAS NOT MADE, DOES
NOT MAKE AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES,
COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER
EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO,
CONCERNING OR WITH RESPECT TO THE PROPERTY INCLUDING, WITHOUT LIMITATION, (A) THE
NATURE, QUALITY OR PHYSICAL CONDITION OF THE PROPERTY, (B) THE
CONSTRUCTION OF THE IMPROVEMENTS AND WHETHER THERE EXISTS ANY CONSTRUCTION
DEFECTS THEREIN, (C) THE WATER, SOIL AND GEOLOGY OF THE PROPERTY, (D) THE
INCOME TO BE DERIVED FROM THE PROPERTY, (E) THE SUITABILITY OF THE
PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH BUYER MAY CONDUCT
THEREON, (F) THE COMPLIANCE OF OR BY THE PROPERTY OR THE OPERATION THEREOF
WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY GOVERNMENTAL AUTHORITY
OR BODY HAVING JURISDICTION THEREOVER, (G) THE HABITABILITY OR 


 


27

















 


FITNESS OF
THE PROPERTY FOR A PARTICULAR PURPOSE, (H) THE MARKETABILITY OF THE
PROPERTY OR THE ABILITY TO LEASE OR SELL UNITS THEREIN, (I) THE STATUS OR
CONDITION OF ENTITLEMENTS PERTAINING TO THE PROPERTY, AND (J) ANY MATTER
REGARDING TERMITES OR WASTES, AS DEFINED BY THE U.S. ENVIRONMENTAL PROTECTION
AGENCY REGULATIONS AT 40 C.F.R., OR ANY HAZARDOUS MATERIALS, AS HEREINAFTER
DEFINED.  BUYER FURTHER ACKNOWLEDGES AND
AGREES THAT SELLER, UNLESS OTHERWISE REQUIRED BY LAW OR THIS AGREEMENT, IS
UNDER NO DUTY TO MAKE ANY AFFIRMATIVE DISCLOSURES REGARDING ANY MATTER WHICH MAY BE
KNOWN TO SELLER.


 


(c)                           RELEASE. 
BUYER REPRESENTS TO SELLER THAT BUYER HAS CONDUCTED, OR WILL CONDUCT
PRIOR TO CLOSING, SUCH INVESTIGATIONS OF THE PROPERTY, AS BUYER DEEMS NECESSARY
OR DESIRABLE TO SATISFY ITSELF AS TO ANY MATTER RELATING TO THE PROPERTY AND
WILL RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON
BEHALF OF SELLER, SELLER’S AGENTS, EMPLOYEES OR THIRD PARTIES REPRESENTING OR
PURPORTING TO REPRESENT SELLER, WITH RESPECT THERETO.  SUBJECT TO SELLER’S REPRESENTATIONS AND
WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT AND IN ANY DOCUMENTS DELIVERED
PURSUANT TO THE TERMS HEREOF BY SELLER TO BUYER AT CLOSING, UPON CLOSING, BUYER
SHALL ASSUME THE RISK THAT ADVERSE MATTERS REGARDING THE PROPERTY MAY NOT
HAVE BEEN REVEALED BY BUYER’S INVESTIGATIONS, AND BUYER, UPON CLOSING, SHALL BE
DEEMED, ON BEHALF OF ITSELF AND ON BEHALF OF ITS TRANSFEREES AND THEIR
RESPECTIVE SUCCESSORS AND ASSIGNS, TO WAIVE, RELINQUISH, RELEASE AND FOREVER
DISCHARGE SELLER AND SELLER’S AFFILIATES FROM AND AGAINST ANY AND ALL CLAIMS,
DEMANDS, CAUSES OF ACTION, LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES
(INCLUDING ATTORNEYS’ FEES) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR
UNKNOWN, BY REASON OF OR ARISING OUT OF THE PROPERTY, INCLUDING, WITHOUT
LIMITATION, BY REASON OF OR ARISING OUT OF ANY LATENT OR PATENT CONSTRUCTION
DEFECT OR OTHER PHYSICAL CONDITION (INCLUDING, WITHOUT LIMITATION, FUNGI, MOLD
OR MILDEW) WHETHER PURSUANT TO STATUTES IN EFFECT IN THE COMMONWEALTH OF
VIRGINIA AND  OR ANY OTHER
FEDERAL, STATE, OR LOCAL ENVIRONMENTAL OR HEALTH AND SAFETY LAW OR REGULATION,
THE EXISTENCE OF ANY HAZARDOUS MATERIAL WHATSOEVER, ON, AT, TO, IN, ABOVE,
ABOUT, UNDER, FROM OR IN THE VICINITY OF THE PROPERTY AND ANY AND ALL OTHER
ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS WHATSOEVER REGARDING THE
PROPERTY.  THIS RELEASE INCLUDES CLAIMS
OF WHICH BUYER IS PRESENTLY UNAWARE AND OF WHICH BUYER DOES NOT PRESENTLY
SUSPECT TO EXIST WHICH, IF KNOWN BY BUYER, WOULD MATERIALLY AFFECT BUYER’S
RELEASE OF SELLER.


 


IN THIS REGARD AND TO THE EXTENT PERMITTED BY LAW,
BUYER HEREBY AGREES, REPRESENTS AND WARRANTS THAT BUYER REALIZES AND 


 


28

















 


ACKNOWLEDGES THAT FACTUAL MATTERS NOW UNKNOWN TO BUYER
MAY HAVE GIVEN OR MAY HEREAFTER GIVE RISE TO CAUSES OF ACTION,
CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES
WHICH ARE PRESENTLY UNKNOWN, UNANTICIPATED AND UNSUSPECTED, AND BUYER FURTHER
AGREES, REPRESENTS AND WARRANTS THAT THE WAIVERS AND RELEASES CONTAINED HEREIN
HAVE BEEN NEGOTIATED AND AGREED UPON BY BUYER IN LIGHT OF THAT REALIZATION AND
THAT BUYER NEVERTHELESS HEREBY INTENDS TO RELEASE, DISCHARGE AND ACQUIT SELLER
AND SELLER’S AFFILIATES FROM ANY SUCH UNKNOWN CAUSES OF ACTION, CLAIMS,
DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES.


 


BUYER’S RELEASE OF SELLER AS SET FORTH IN THIS SECTION 15
(c) SHALL NOT PERTAIN TO ANY CLAIM OR CAUSE OF ACTION (I) BY BUYER
AGAINST SELLER FOR ANY BREACH BY SELLER OF A REPRESENTATION OR WARRANTY
EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY DOCUMENTS DELIVERED PURSUANT TO
THE TERMS HEREOF BY SELLER TO BUYER AT CLOSING, (II) BY BUYER AGAINST
SELLER WITH RESPECT TO ANY INDEMNIFICATION OBLIGATION OF SELLER EXPRESSLY SET
FORTH IN THIS AGREEMENT OR IN ANY DOCUMENTS DELIVERED PURSUANT TO THE TERMS
HEREOF BY SELLER TO BUYER AT CLOSING, OR (III) BY ANY THIRD PARTY AGAINST
BUYER RELATING TO THE PROPERTY AND APPLICABLE TO THE PERIOD PRIOR TO CLOSING.


 


Notwithstanding anything to the contrary herein, if Closing occurs,
Buyer shall hold harmless, indemnify and defend Seller from and against any and
all losses, costs, expenses, obligations, claims, demands, debts, liabilities
and damages (collectively, “Losses”) incurred by Seller in connection with
third party claims related to the Property and applicable to acts or omissions
occurring during or attributable to the period from and after the Closing Date,
to the extent such Losses are covered by Buyer’s insurance, and Seller shall
hold harmless, indemnify and defend Buyer from and against:  (i) any and all Losses incurred by Buyer
in connection with third party claims related to the Property or the ownership
or operation thereof and applicable to acts or omissions occurring during or
attributable to the period prior to the Closing Date, to the extent such Losses
are covered by Seller’s insurance; and (ii) any and all obligations and
other matters relative to any employees, whether or not rehired by Seller
applicable to the period prior to Closing.


 


Section 16.            General and
Miscellaneous Provisions.


 


(a)                           Notice.  Any notice
or other communication required or permitted to be given to a party under this
Agreement shall be in writing, unless otherwise specified in this Agreement,
and shall be given by one of the following methods to such party at the address
set forth at the end of this provision. 
The notice may be sent, and is deemed received as follows:


 


(i)                                            by registered
or certified United States mail, and deemed received when delivered or refused
at the address,


 


29














 


(ii)                                           by hand, and
deemed received when delivered at the address, whether or not the specific
person to whose attention it is directed is in at the time,


 


(iii)                                          by reputable
overnight delivery service, and deemed received when delivered to the address
whether or not the specific person to whose attention it is directed is in at
the time,


 


(iv)                                          when sent or
delivered by any other means for transmitting a written communication
(including e-mail), and deemed received upon receipt so long as the original of
such notice is delivered to the intended party pursuant to any of the other
means of delivery of notice specified above, on the next business day.


 


Notices delivered by legal counsel for, and on behalf of, any party
hereto, shall be deemed effective as if given directly by such party.  Either party may change its address for
notice by giving written notice thereof to the other party.  The address of each party for notice is as
follows:


 


	
  Seller:

  	
   

  	
  c/o The Penrose Group

  
	
   

  	
   

  	
  8330 Boone Boulevard,
  Suite 460

  
	
   

  	
   

  	
  Vienna, Virginia 22182

  
	
   

  	
   

  	
  Attention: Ole Kollevol

  
	
   

  	
   

  	
  Telephone: 703.847.5270

  
	
   

  	
   

  	
  Facsimile: 703.448.6059

  
	
   

  	
   

  	
  E-Mail:
  obk@penrosegroup.com

  
	
   

  	
   

  	
   

  
	
  Seller’s Counsel:

  	
   

  	
  Walsh, Colucci, Lubeley,
  Emrich & Walsh, P.C.

  
	
   

  	
   

  	
  2200 Clarendon Blvd.,
  Suite 1300

  
	
   

  	
   

  	
  Arlington, Virginia 22201

  
	
   

  	
   

  	
  Attention: Thomas J.
  Colucci, Esquire

  
	
   

  	
   

  	
  Telephone: 703.528.4700

  
	
   

  	
   

  	
  Facsimile: 703.528.6050

  
	
   

  	
   

  	
  E-Mail:
  tcolucci@arl.thelandlawyers.com

  
	
   

  	
   

  	
   

  
	
  Buyer:

  	
   

  	
  Behringer Harvard
  Multifamily OP I LP

  
	
   

  	
   

  	
  By: BHMF, Inc., its
  general partner

  
	
   

  	
   

  	
  15601 Dallas Parkway,
  Suite 600,

  
	
   

  	
   

  	
  Addison, Texas, 75001

  
	
   

  	
   

  	
  Attention: Mark T. Alfieri

  
	
   

  	
   

  	
  Telephone: 866.655.3600

  
	
   

  	
   

  	
  Facsimile: 866.655.3610

  
	
   

  	
   

  	
  E-Mail:malfieri@behringerharvard.com

  
	
   

  	
   

  	
   

  
	
  Buyer’s Counsel:

  	
   

  	
  Miller, Egan, Molter & Nelson LLP

  
	
   

  	
   

  	
  4514 Cole Avenue, Suite
  1250

  
	
   

  	
   

  	
  Dallas, Texas 75205

  
	
   

  	
   

  	
  Attention: Walter Miller

  
	
   

  	
   

  	
  Telephone: 214.628.9502

  



 


30

















 


	
   

  	
   

  	
  Facsimile: 214.628.9505

  
	
   

  	
   

  	
  E-Mail:
  walt.miller@MillerEgan.com

  
	
   

  	
   

  	
   

  
	
  Title Company/Escrow
  Agent:

  	
   

  	
  Chicago Title Insurance
  Company

  
	
   

  	
   

  	
  2001 Bryan Street,
  Suite 1700

  
	
   

  	
   

  	
  Dallas, Texas 78213

  
	
   

  	
   

  	
  Attention: Konrad
  Kaltenbach

  
	
   

  	
   

  	
  Telephone: 214.303.5300

  
	
   

  	
   

  	
  Facsimile: 214.965.1621

  
	
   

  	
   

  	
  E-Mail:
  kaltenbachk@ctt.com

  



 


(b)                           Complete Agreement.  This Agreement, including all attached
exhibits, constitutes the complete and integrated agreement between the parties
with respect to the subject matter hereof and supersedes all previous
negotiations and understandings, if any, between the parties.  No oral or implied understanding,
representation or warranty shall vary its terms.


 


(c)                           Amendment.  This
Agreement may not be amended other than by a written instrument executed by the
parties.


 


(d)                           Governing Law.  This
Agreement, the Closing Deliveries and any other applicable document, including
all of the rights, obligations and liabilities of the parties thereunder, shall
be governed, construed and enforced for all purposes in accordance with the
laws of the Commonwealth of Virginia without regard to its conflicts of laws
rules.


 


(e)                           Severability.  If any
provision of this Agreement, the Closing Deliveries or any other applicable
document should be held by a court to be invalid or unenforceable in any
particular respect, then the remaining provisions of such document (or the same
provision in any other respect) shall not be invalid, unenforceable, impaired
or otherwise affected, but shall continue to be in full force and effect; and
to this end, all such provisions are hereby declared to be severable.


 


(f)                            Section and Other Headings.  The headings contained in this Agreement are
for reference only and shall not in any way affect the meaning or
interpretation of this Agreement.


 


(g)                           Successors and Assigns.  This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors and
permitted assigns.


 


(h)                           Assignment.  Except as
otherwise provided herein, Buyer may not assign this Agreement without Seller’s
prior written consent, such consent to be given or denied in Seller’s
reasonable discretion.  Notwithstanding
the foregoing, Buyer may assign its rights under this Agreement, in whole or in
part, to (i) any affiliate or direct or indirect subsidiary of Buyer or (ii) any
entity in which Buyer, or the principals thereof, have control as defined
herein.  Upon any such assignment, the
assignor shall be released from its liabilities hereunder provided such
assignee assumes the same and provided such assignee
provides adequate proof of insurance in the amount of not less than $5,000,000 (which
amount may be met in combination with umbrella or excess liability policies) covering
the negligence of such assignee and contractual indemnity obligations of such
assignee under Section 4(b).  For purposes of this Agreement, “affiliate” 


 


31

















 


means, in respect of Buyer: (a) any
entity that controls, is controlled by, or is under common control, with the
entity in question, or (b) any entity or affiliate thereof that
participates in any investment program sponsored by Behringer Harvard Holdings,
LLC, or any of its direct or indirect affiliates or subsidiaries.  For purposes of this Agreement, the term “control” means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of an
entity, whether through the ownership of voting securities or otherwise.


 


(i)                            Survival.  Except as
otherwise expressly provided herein, no provision of this Agreement is intended
to survive delivery of the Deed.


 


(j)                            Time of Essence.  Time
is of the essence with respect to the performance of each provision of this
Agreement.


 


(k)                           Confidentiality. 
Buyer shall treat as confidential all information and materials
furnished or made available by Seller to Buyer in accordance with this
Agreement or obtained by Buyer in the course of its inspections, tests and
investigations (collectively, “Confidential Information”).  Buyer will not divulge and will use its
commercially reasonable diligence to prevent Buyer’s Representatives (as
hereinafter defined) from divulging such information except as required by law
or as reasonably necessary to third parties engaged by Buyer for the limited
purpose of analyzing and investigating such information for the purpose of
consummating the transaction, including Buyer’s agents, attorneys,
representatives, consultants, prospective lenders, current and prospective
investors and their advisors, current and prospective financial partners, and
engineers in this transaction (collectively “Buyer’s
Representatives”). 
Notwithstanding anything to the contrary in this Section 16(k) or
in any other agreement to which a party hereto is bound, the Confidential
Information shall exclude, and Buyer and Buyer’s Representatives may disclose,
any information or documentation that (i) is readily ascertainable by the
general public, (ii) was known to Buyer prior to the execution of this
Agreement, (iii) is deemed advisable by Buyer to disclose to its officers,
directors, members, managers, employees, agents, consultants, members of
professional firms serving it or potential lenders, investors, consultants and
brokers and others who need to know such information or review such
documentation for the purpose of assisting Buyer in connection with the
transaction contemplated by this Agreement so long as such persons are informed
by Buyer of the confidential nature of such information and are directed by
Buyer to treat such information confidentially, (iv) is required to be
disclosed by applicable law, or (v) is deemed advisable by Buyer or its
counsel to be disclosed in connection with financial reporting, securities
disclosures or other legal, tax or financial requirements or guidelines
applicable to Buyer or any affiliate thereof, including any disclosures to the
Securities and Exchange Commission.  The
foregoing shall not preclude Buyer, in the event that Closing hereunder occurs,
from issuing a press release concerning its purchase of the Property.


 


(l)                            Construction.  The
parties hereby acknowledge and agree that (i) each party hereto is of
equal bargaining strength, (ii) each party has actively participated in
the drafting, preparation and negotiation of this Agreement, (iii) each
party has consulted with such party’s own, independent counsel, and such other
professional advisors as such party has deemed appropriate, relative to any and
all matters contemplated under this Agreement, (iv) each party and it’s
counsel and advisors have reviewed this Agreement, (v) each party has
agreed to enter into this Agreement following such review and the rendering of
such advice, and (vi) any rule of 


 


32

















 


construction to the effect
that ambiguities are to be resolved against the drafting parties shall not
apply in the interpretation of this Agreement, or any portions hereof, or any
amendments hereto.


 


(m)                          Like-Kind Exchange.  Buyer and/or Seller may structure the
disposition of the Property as a like-kind exchange under Internal Revenue Code
Section 1031 at the electing party’s sole cost and expense.  The parties shall reasonably cooperate
therein, provided that the cooperating party shall incur no material costs,
expenses or liabilities in connection with the other party’s exchange, and the
Closing shall not be delayed.  Each party
shall indemnify, defend and hold the other harmless therefrom and Buyer and
Seller shall not be required to take title to or contract for purchase of any
other property.  If Buyer or Seller uses
a qualified intermediary to effectuate the exchange, any assignment of the
rights or obligations hereunder shall not relieve, release or absolve it of its
obligations to the other party.


 


(n)                           No Personal Liability.  Buyer acknowledges and agrees that no
officer, director, equity owner, employee, agent, manager or representative of
Seller (or any partner, member or manager of such a partner, member or manager)
shall have any personal liability under this Agreement.  Seller acknowledges and agrees that no
officer, director, shareholder, member, equity owner, agent, manager, employee
or representative of Buyer (or any partner, member or manager of such a
partner, member or manager), as applicable, shall have any personal liability
under this Agreement.


 


(o)                           No Obligations to Third Parties.  Except as expressly provided herein, the
execution and delivery of this Agreement shall not be deemed to confer any
rights upon, nor obligate any of the parties hereto, to any person or entity
other than the parties hereto.


 


(p)                           Waiver.  The waiver
or failure to enforce any provision of this Agreement shall not operate as a
waiver of any future breach of any such provision or any other provision
hereof.


 


(q)                           Fees and Other Expenses.  Except as expressly provided herein, each of
the parties hereto shall pay its own fees and expenses in connection with this
Agreement.


 


(r)                            Computation of Time Periods.  If the date upon which the Inspection Period
expires, the Closing Date or any other date or time period provided for in this
Agreement is or ends on a Saturday, Sunday or federal, or legal holiday, then
such date shall automatically be extended until 5:00 P.M. Eastern Time of
the next day which is not a Saturday, Sunday or federal, or legal holiday.


 


(s)                           Escrow Agent. 
Escrow Agent’s duties and rights are set forth in the Escrow Agreement.


 


(t)                            No Memorandum of Agreement.  This Agreement or any notice or memorandum
hereof shall not be recorded in any public record.  A violation of this prohibition shall
constitute a material breach by Buyer, entitling Seller to terminate this
Agreement.  Nothing herein shall prohibit
Buyer from filing a valid lis pendens notice in the event of a default by
Seller in connection with any lawsuit filed by Buyer for specific performance.


 


(u)                           No Finance Contingency.  Buyer acknowledges and agrees that Buyer’s
obligations under this Agreement are not in any manner contingent or
conditioned upon Buyer 


 


33

















 


obtaining financing in order
to purchase the Property.  It is
expressly understood that if Buyer is unable to close the transaction
contemplated by this Agreement as a result of Buyer’s failure to obtain
financing, Buyer shall be in default under this Agreement.  In no event shall Seller be obligated to
comply with any requirements of Buyer’s lender or otherwise incur any cost,
expense or liability in connection with Buyer’s financing of the Property.


 


(v)                           Designation of Escrowee as Reporting Person.  Seller and Buyer each hereby authorize Escrow
Agent to designate the investment depository of the Deposit to act as and
perform the duties and obligations of the “reporting person” with respect to
the transaction contemplated by this Agreement for purposes of 26 C.F.R. Section 1.6045-4(e)(5) relating
to the requirements for information reporting on real estate transaction closed
on or after January 1, 1991.


 


(w)                          Facsimile Signatures.  Handwritten signatures to this Agreement
transmitted by telecopy or electronic transmission (for example, through use of
a Portable Document Format or “PDF” file) shall be valid and effective to bind
the party so signing.  Each party agrees
to promptly deliver to the other party an executed original of this Agreement
with its actual signature, but a failure to do so shall not affect the
enforceability of this Agreement, it being expressly agreed that each party to
this Agreement shall be bound by its own telecopied or electronically
transmitted handwritten signature and shall accept the telecopied or
electronically transmitted handwritten signature of the other party to this
Agreement.


 


(x)                            Termination of Condominium Registration.  The parties acknowledge that Seller has
previously registered the Condominium with the Virginia Common Interest
Community Board (“VCICB”)
(Registration No. 05-266) (the “Registration”).  Seller agrees that within three (3) business
days following Closing, it shall terminate the registration of the
Condominium.  The parties further
acknowledge and agree that the assessment bond in the amount of $100,000
currently deposited with the VCICB shall be returned to Seller and shall remain
the property of Seller.


 


(y)                           Prevailing Party Attorney Fees.  If either Seller or Buyer files suit to
enforce the obligations of the other party under this Agreement, the prevailing
party shall be entitled to recover the reasonable fees and expenses of its
attorneys from the non-prevailing party.


 


(z)                            Assignment of Interest in Reports and Studies.  If for any reason Buyer does not consummate
the Closing other than a default by Seller, then Buyer shall, upon Seller’s
request and payment therefor, assign and transfer to Seller, without representation
or warranty, all of its right, title and interest in and to any and all
studies, reports, surveys and other information, data and/or documents relating
to the Property or any part thereof prepared by third parties at the request of
Buyer, and shall deliver to Seller copies of all of the foregoing.


 


(aa)                         Further Assurances.  Seller agrees that it will execute such
documents or instruments as Buyer may reasonably request for a transaction of
this nature to give further assurances and effect to intent of any of the
Closing Deliveries including, without limitation, further assurances of the
conveyance of the Real Property to Buyer as contemplated by the Deed.  Buyer agrees that it will execute such
documents or instruments as Seller may reasonably request 


 


34

















 


for a transaction of this
nature to give further assurances and effect to intent of any of the Closing
Deliveries.  This provision shall survive
Closing for a period of three (3) months.


 


(bb)                         Waiver of Trial by Jury.  IN ANY LAWSUIT OR OTHER PROCEEDING INITIATED
BY BUYER OR SELLER UNDER OR WITH RESPECT TO THIS AGREEMENT, BUYER AND SELLER
EACH WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY.


 


(cc)                         Cooperation of Parties.  The parties acknowledge that the Real
Property that is the subject matter of this Agreement is a part of the
Park*Crest Development, and that Seller, and/or entities affiliated with
Seller, own other parcels which, along with the Real Property, comprise the
Park* Crest Development.  Seller has
advised Buyer that it has previously filed with Fairfax County, Virginia, an
application for a Proffered Condition Amendment and Final Development Plan
Amendment (the “PCA/FDPA Application”) for the
Park*Crest Development which seeks, among other things, the reconfiguration of
building no. 1, or may, in Seller’s discretion affect any other building site
which is a part of the Park*Crest Development, and which may also include
changes in permitted uses on other building sites in the Park*Crest Development.  Buyer agrees that it shall, without cost to
Buyer, fully cooperate with Seller in Seller’s prosecution of the PCA/FDPA
Application and shall, to the extent required as a contract purchaser or owner
of the Real Property, promptly join in such applications, disclosures,
affidavits, proffers, development conditions or other documents as may be
required by Fairfax County, Virginia and requested by Seller, in connection
with Seller’s prosecution of the PCA/FDPA Application; provided, however, that
no such document executed by Buyer shall render the Real Property
non-conforming, have a materially adverse affect on the Property (including but
not limited to the use, operation, condition or value thereof, provided that a
change allowing a competing or different use of property other than the
Property shall not, by itself, be deemed an adverse change in the value of the
Property) or impose any other materially adverse obligations on Buyer without
Buyer’s prior written approval, which approval may be withheld in Buyer’s sole
and absolute discretion.  The provisions
of this Section 16(cc) shall survive closing and shall not be merged into
the deed of conveyance for the Real Property.


 


(dd)                         Required 3-14 Audit.  Seller
acknowledges that Buyer may cause to be prepared audited financial statements
with respect to the Property in compliance with the policies of Buyer and
certain laws, including applicable regulations promulgated by the Securities
and Exchange Commission.  Seller shall
use commercially reasonable efforts to cooperate with Buyer’s auditors in the
preparation of such audited financial statements (including making available
for interview by Buyer and Buyer’s auditors the management personnel of Seller’s
property manager who are responsible for the day-to-day operation of the
Property and the keeping of the books and records in respect of the operation
of the Property).  If Seller has audited
financial statements with respect to the Property, Seller shall promptly provide
Buyer’s auditors with a copy of such audited financial statements.  Seller acknowledges that any such audit may
require review of records existing for up to three years prior to the date of
Closing.  If, after the Closing Date, Seller obtains an audited
financial statement with respect to the Property for a fiscal period prior to
the Closing Date that was not completed as of the Closing Date, then Seller
shall promptly provide Buyer with a copy of such audited financial
statement.  The provisions of this Section 16(dd)
shall survive the Closing.


 


35

















 


(ee)                         Resignation from Board of Directors of the
Condominium Association.  As of the
Closing Date, Seller and all officers, employees or agents of Seller shall
resign from the Board of Directors of the Condominium Association.  The provisions of this Section 16(ee)
shall survive Closing and shall not be merged into the Deed.


 


[THE
REMAINDER OF THIS PAGE HAS INTENTIONALLY BEEN LEFT BLANK.

SIGNATURES ARE CONTAINED ON THE FOLLOWING PAGE.]


 


36

















 


EXECUTED under seal as of the date first-above written.


 


Seller:


 


	
  PARK
  CREST BUILDING 5 ASSOCIATES, LLC,

  	
   

  
	
  a Virginia limited
  liability company

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Olav B.
  Kollevoll, Jr.

  	
   

  
	
  Name:

  	
  Olav B. Kollevoll, Jr.

  	
   

  
	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Buyer:

  	
   

  
	
   

  	
   

  
	
  BEHRINGER HARVARD MULTIFAMILY
  OP I LP,

  	
   

  
	
  a Delaware limited
  partnership

  	
   

  
	
   

  	
   

  
	
  By:

  	
  BHMF, Inc.,

  	
   

  
	
   

  	
  a
  Delaware corporation,

  	
   

  
	
   

  	
  its
  general partner

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert T. Poynter

  	
   

  
	
   

  	
  Name:

  	
  Robert T. Poynter

  	
   

  
	
   

  	
  Title:

  	
  Vice President