Agreement of Purchase and Sale


    
      

    

    Exhibit
      10.2

     

    AGREEMENT
      OF PURCHASE AND SALE

     

    THIS
      AGREEMENT (“Agreement”)
      dated
      as of September 14th,
      2006,
      is by and between HEADLANDS
      REALTY CORPORATION,
      a
      Maryland corporation (“Seller”),
      and
FORWARD
      AIR, INC.,
      a
      Tennessee corporation (“Buyer”).
      

     

    ARTICLE
      I

    PURCHASE
      AND SALE OF PROPERTY

     

    Section
      1.1   Agreement
      of Purchase and Sale.  Subject
      to Seller acquiring the Property (as defined below), Seller
      hereby
      agrees to sell and convey to Buyer, and Buyer hereby agrees to purchase from
      Seller, subject to the terms and conditions set forth herein, the following:
      

     

    (a)   that
      certain real property located in the City of Forest Park, County of Clayton,
      State of Georgia, and being more particularly described in Exhibit A
      attached
      hereto (the “Real
      Property”);

     

    (b)   all
      of
      Seller’s right title and interest in and to all rights, privileges and easements
      appurtenant to the Real Property, including, without limitation, all minerals,
      oil, gas and other hydrocarbon substances on and under the Real Property, as
      well as all development rights, air rights, water, water rights, riparian rights
      and water stock relating to the Real Property and any rights-of-way or other
      appurtenances used in connection with the beneficial use and enjoyment of the
      Real Property and all of Seller’s right, title and interest in and to all roads
      and alleys adjoining or servicing the Real Property (collectively, the
“Appurtenances”);
      

     

    (c)   all
      of
      Seller’s right, title and interest in and to the Improvements (as defined below)
      and fixtures to be constructed on the Real Property pursuant to Section 2.2
      below, including, without limitation, an approximately 142,000 square foot
      cross
      dock shipping and distribution center building containing approximately 12,000
      square feet of two (2) story office space (the “Building”),
      and
      all apparatus, equipment and appliances used in connection with the operation
      or
      occupancy of the Real Property, such as heating and air conditioning systems
      and
      facilities used to provide any utility, refrigeration, ventilation, garbage
      disposal, snow removal equipment, or other services on the Real Property, if
      any, which have been installed or constructed on the Real Property by Seller
      pursuant to Section 2.2 below; and

     

    (d)   any
      intangible personal property now or hereafter owned by Seller and used in the
      ownership, use or operation of the Real Property, including, without limitation,
      Seller’s rights and interests in any utility contracts (excluding any utility
      deposits made by Seller) or other agreements or rights relating to the
      ownership, use and operation of the Real Property (except that, (i) to the
      extent that any such contracts or other agreements are part of portfolio
      agreements, they shall not be assignable, and (ii) Seller hereby retains all
      rights to any and all copyrights, trademarks, logos, graphics and other rights
      with respect to the name “AMB”,
      including the name “AMB”),
      and
      any construction warranties relating to the Improvements (collectively, the
      “Intangible
      Property”).

     

    
      
        
        

      

      
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    All
      of
      the items referred to in subparagraphs (a) through (d) above are collectively
      referred to as the “Property.”
      

     

    Section
      1.2   Purchase
      Price.

     

    (a)   The
      purchase price of the Property is Fourteen Million Seven Hundred Seventy Six
      Thousand Two Hundred Fifteen Dollars ($14,776,215) (the “Purchase
      Price”).

     

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

     

    (i)   Within
      three (3) days after full execution of this Agreement, Buyer shall deposit
      in
      escrow with Chicago Title Company at 388 Market Street, San Francisco, CA 94111,
      Attn.: Michelle Viguie (the “Title
      Company”)
      an all
      cash payment, or wire transfer, in the amount of One Million Four Hundred
      Seventy-Seven Thousand Six Hundred Twenty-One Dollars ($1,477,621.00) (the
      “Deposit”).
      Except as otherwise provided in this Agreement, the Deposit shall not be
      refundable to Buyer. The Deposit shall be held in an interest bearing account
      and all interest thereon shall be deemed a part of the Deposit. At the Closing,
      as defined in Section 1.2(b)(iii) below, the Deposit shall be paid to Seller
      and
      credited against the Purchase Price.

     

    (ii)         IF
      THE SALE OF THE PROPERTY IS NOT CONSUMMATED DUE TO THE FAILURE OF ANY CONDITION
      PRECEDENT AND THE BUYER IS NOT THEN IN DEFAULT, THEN THE TITLE COMPANY SHALL
      RETURN THE DEPOSIT TO BUYER. IF
      THE SALE OF THE PROPERTY IS NOT CONSUMMATED SOLELY DUE TO THE SELLER’S DEFAULT
      HEREUNDER, THEN, AS BUYER’S SOLE AND EXCLUSIVE REMEDIES, BUYER MAY EITHER:
      (1) TERMINATE THIS AGREEMENT AND RECEIVE A REFUND OF THE DEPOSIT, IN WHICH
      EVENT NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER
      (EXCEPT AS PROVIDED IN SECTIONS
      7.1, 9.3 AND 9.12
      BELOW), OR (2) ENFORCE SPECIFIC PERFORMANCE OF THIS AGREEMENT; PROVIDED,
      HOWEVER, IF THE ACTIONS OF SELLER HAVE RENDERED SPECIFIC PERFORMANCE IMPOSSIBLE
      TO ACHIEVE, BUYER MAY SEEK TO RECOVER ITS ACTUAL DAMAGES DUE TO SELLER’S DEFAULT
      HEREUNDER. THE PARTIES HAVE AGREED THAT SELLER’S ACTUAL DAMAGES IN THE EVENT OF
      A FAILURE TO CONSUMMATE THE SALE DUE TO BUYER’S DEFAULT WOULD BE EXTREMELY
      DIFFICULT OR IMPRACTICABLE TO DETERMINE. AFTER NEGOTIATION, THE PARTIES HAVE
      AGREED THAT, CONSIDERING ALL THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS
      AGREEMENT, THE AMOUNT OF THE DEPOSIT IS A REASONABLE ESTIMATE OF THE DAMAGES
      THAT SELLER WOULD INCUR IN THE EVENT OF BUYER’S DEFAULT. IN THE EVENT BUYER
      FAILS, WITHOUT LEGAL EXCUSE, TO COMPLETE THE PURCHASE OF THE PROPERTY, THE
      DEPOSIT MADE BY BUYER SHALL BE FORFEITED TO SELLER AS THE SOLE AND EXCLUSIVE
      REMEDY AVAILABLE TO SELLER FOR SUCH FAILURE. BY
      PLACING THEIR INITIALS BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY
      OF THE
      STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL
      WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS
      LIQUIDATED DAMAGES PROVISION. THIS SECTION 1.2(b)(ii) IS NOT INTENDED TO LIMIT
      SELLER’S OR BUYER'S RIGHTS UNDER SECTIONS
      7.1, 9.3 AND 9.12 OF
      THIS AGREEMENT.
       

      INITIALS:
        SELLER   DS   
        BUYER  
        MJJ    

       

    

    
      
        
        

      

      
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    (iii)       
      The
      balance of the Purchase Price (plus the construction costs of the Improvements
      attributable to any Change Orders (as defined below) requested by Buyer pursuant
      to Section 2.2 below that has not already been paid to Seller under the terms
      of
      this Agreement) shall be paid to Seller in immediately available funds via
      wire
      transfer at the consummation of the purchase and sale contemplated hereunder
      (the “Closing”).
      

     

    ARTICLE
      II

    TITLE
      REVIEW; CONDITIONS

     

    Section
      2.1   Limited
      Title Review. 

     

    (a)   Buyer
      hereby acknowledges its receipt of the Pro Forma attached hereto as Schedule
      1
      (the
“Pro
      Forma”),
      including, without limitation, the title exceptions set forth in the Pro Forma,
      and a copy of a current survey of the Property (the “Survey”),
      and
      Buyer hereby approves of the matters set forth on the Pro Forma and Survey,
      with
      the exceptions noted on the Pro Forma and Survey in Schedule
      1,
      subject
      to the obligation of Seller to cure, correct or eliminate certain items as
      noted
      on Schedule
      1
      (the
“Title
      Items”).
      At
      any time during the course of construction of the Improvements (hereinafter
      defined) Buyer may request that the Title Company update the Pro Forma in the
      form of a title commitment (“Title
      Commitment”)
      and
      Buyer may obtain updates of the Survey, in order to verify that there have
      been
      no new title exceptions affecting the Property other than those approved by
      Buyer in the Pro Forma and Survey which it was initially provided or as
      otherwise permitted under this Agreement.

     

    (b)   Subject
      to the provisions of Section 2.1(c) below, Buyer may, at or prior to Closing,
      notify Seller in writing of any objections to title first raised by the Title
      Company or first disclosed in any updates to the Pro Forma in the Title
      Commitment or the Survey obtained by the Buyer between (a) the Effective Date,
      and (b) the Closing, and which: (1) are not the result of Buyer’s acts,
      (2) do not constitute exceptions which are disclosed in the Pro Forma or
      the Survey or any prior updates and (3) have a material adverse effect on the
      use or operation of the Property as a distribution facility. Buyer shall advise
      Seller of its additional title objections by written notice within three (3)
      business days of learning of any such additional title matters. Seller shall
      have until the earlier of (x) two (2) business days after receipt of
      Buyer’s objections, or (y) the Closing Date, to give Buyer notice that
      (i) Seller will remove such objectionable exceptions; or (ii) Seller
      elects not to cause such exceptions to be removed. If Seller gives Buyer notice
      under clause (ii), Buyer may elect within two (2) business days after
      receipt of Seller’s notice to (i) waive its objections to title exceptions that
      Seller has not agreed to remove and proceed with the purchase without offset
      or
      credit against the Purchase Price, or (ii) terminate this Agreement. If Seller
      fails to give Buyer notice within (x) two (2) business days after receipt
      of Buyer’s objections, or (y) the Closing Date, whichever is earlier, then
      Seller shall be deemed to have elected to give Buyer notice under
      clause (ii). If Seller gives Buyer notice under clause (ii), and Buyer
      fails to give Seller notice of its election within two (2) business days after
      receipt of Seller’s notice, then Buyer shall be deemed to have elected to
      terminate this Agreement, the Deposit shall be returned to Buyer and if the
      matter objected to by Buyer was the result of Seller’s voluntary act occurring
      after the Effective Date and was not otherwise permitted under this Agreement,
      Seller shall pay to Buyer its actual out-of-pocket expenses incurred in
      connection with this transaction in an amount up to Two Hundred Fifty Thousand
      Dollars ($250,000) in the aggregate, and neither party shall have any further
      rights or obligations hereunder except as provided in Sections 7.1, 9.3
      and 9.12 below. If Seller shall give notice pursuant to clause (i) and
      shall fail to remove any such objectionable exceptions, or if Seller shall
      fail
      to cure or eliminate any Title Items, then Buyer may elect to terminate this
      Agreement, the Deposit shall be returned to Buyer, Seller shall pay to Buyer
      for
      its actual out-of-pocket expenses incurred in connection with this transaction
      in an amount up to Two Hundred Fifty Thousand Dollars ($250,000) in the
      aggregate, and neither party shall have any further rights or obligations
      hereunder except as provided in Sections 7.1, 9.3 and 9.12 below. If Seller
      elects to attempt to cure any such additional title objections, the date for
      Closing shall be automatically extended until Seller completes the cure, but
      in
      no event shall the extension exceed thirty (30) days after the date for Closing
      set forth in Section 8.2 hereof unless a further extension is approved in
      writing by Buyer.

     

    
      
        
        

      

      
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    (c)   Notwithstanding
      the foregoing, Buyer acknowledges that prior to and after the Effective Date,
      with the prior written consent and approval of Buyer to any items which Seller
      determines may have a material adverse effect on Buyer’s use or operation of the
      Property as a distribution facility, Seller may impose certain easements,
      assessments, conditions, covenants and restrictions, and other encumbrances
      on
      the Property with respect to the construction of the Improvements, the
      development of adjoining parcels, the retention of certain rights and the
      imposition of certain obligations with respect to common areas between the
      Property and adjoining parcels (collectively, the “Development
      Encumbrances”).
      Seller shall provide Buyer with a copy of any Development Encumbrances at least
      three (3) business days prior to recording the same and, if such Development
      Encumbrances will have a material adverse effect, as reasonably determined
      by
      Buyer, then Buyer shall have the right to approve such Development Encumbrances
      prior to recordation. If Buyer’s approval is required, Buyer shall not
      unreasonably withhold, condition or delay its approval, and where Buyer does
      not
      provide notice of its approval or objection to a proposed Development
      Encumbrance within three (3) business days following notice of such proposed
      Development Encumbrance, it shall be deemed to have approved such Development
      Encumbrance. In addition, and notwithstanding the foregoing, the parties
      acknowledge that Seller shall pay all costs and expenses necessary to release
      any monetary lien secured by the Property prior to the Closing, and no such
      liens or claims shall be Conditions of Title (hereinafter defined) and Seller
      shall be entitled to use the Purchase Price proceeds to satisfy any such liens
      (provided that Seller shall be entitled to bond around any such liens if
      permitted under applicable law). All sums necessary to effectuate the release
      of
      any such monetary liens or claims may be paid by Buyer and offset against the
      Purchase Price. Notwithstanding the foregoing, as long as the Development
      Encumbrances do not have a material adverse effect on Buyer’s use or operation
      of the Property as a distribution facility, Buyer shall not object to any
      Development Encumbrances (and shall not have any right to do so), and Seller
      shall have no obligation to cure any such Development Encumbrances. As used
      herein, “material adverse effect” shall be defined as any item which would
      unreasonably restrict normal and customary operations of a third-party prudent
      operator of the Property who would be in the same business as that of the
      Buyer.

     

    
      
        
        

      

      
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    Section
      2.2   Improvements
      Work. 

     

    (a)   Seller
      has caused to be prepared, at Seller’s sole cost and expense, and Buyer has
      approved (i) that certain Base Building and Tenant Improvement Specifications
      dated April 21, 2006 ("Specifications")
      and
      attached hereto as Exhibit
      B-1,
      (ii)
      that certain Site Plan prepared by Centre Point Engineering and dated June
      14,
      2006 and attached hereto as Exhibit
      B-2 (“Site
      Plan”),
      (iii)
      those certain preliminary elevation drawings prepared by Realacorp America
      and
      dated August 11, 2006 and attached hereto as Exhibit
      B-3
      (“Elevation
      Plans”),
      and
      (iv) the preliminary floor plan prepared by Realacorp America and dated August
      11, 2006 attached hereto as Exhibit
      B-4
      (the
“Floor
      Plan”)
      (items
      (i) and (iv) as they pertain to the tenant improvements to be constructed in
      the
      interior of the Building, being herein collectively referred to as the
“Preliminary
      Tenant Improvement Plans”).
      The
      improvements to be constructed by Seller pursuant to the Submitted Building
      Shell Plans (as defined in subparagraph (b) below) (herein, the “Building
      Shell”)
      and
      pursuant to the Preliminary Tenant Improvement Plans (herein, the “Tenant
      Improvements”),
      are
      herein collectively referred to as the "Improvements".

     

    (b)   Seller
      has prepared, and Buyer has approved, plans and specifications which have been
      submitted to the City of Forest Park (“City”)
      in
      connection with the issuance of the building permit for the construction of
      the
      Building Shell, which such submitted plans and specifications are shown in
      Exhibit
      B-5
      (the
“Submitted
      Building Shell Plans”).
      If
      the City requires any material or substantial modifications to the Submitted
      Building Shell Plans, Seller shall provide written notice of such modifications
      to Buyer for its review, and with respect to any material modifications, for
      its
      consent and approval, which consent and approval shall not be unreasonably
      withheld or delayed. If Buyer does not approve any material modifications to
      the
      Submitted Building Shell Plans required by the City, Buyer may elect to
      terminate this Agreement, in which event the Deposit shall be returned to Buyer,
      and neither party shall have any further rights or obligations hereunder except
      as provided in Section 7.1, 9.3 and 9.12 below; provided, however, to the extent
      such modifications (i) are required as a result of Buyer Delays (as defined
      in
      Section 2.2(i) below) or (ii) are consistent with the Specifications, Buyer
      shall have no right to approve of such modifications or to terminate this
      Agreement. If Buyer fails to approve or disapprove any such material
      modifications within three (3) business days after its receipt thereof, then
      Buyer shall be deemed to have approved such material modifications. Upon review
      and approval of the Submitted Building Shell Plans, together with any
      amendments, by the City (as modified to incorporate any modifications to the
      Submitted Building Shell Plans which are required by the City), the Submitted
      Building Shell Plans shall be deemed the “Final
      Building Shell Plans”.
      For
      avoidance of doubt, the Building shall be built in accordance with the Final
      Building Shell Plans and the Specifications (and, in the event of a conflict
      between the Final Building Shell Plans and the Specifications, the
      Specifications shall control).

     

    
      
        
        

      

      
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    (c)   Any
      changes to the Final Building Shell Plans requested by Buyer (herein referred
      to
      as a "Change
      Order")
      shall
      be submitted only by Larry Teel, Mike Bauer, Chris Ruble or Matt Jewell to
      Seller in writing and shall be at Buyer's sole cost and expense and subject
      to
      Seller's written approval, which approval shall not be unreasonably withheld,
      conditioned or delayed. Any Change Order that increases the office square
      footage, increases the amount of Building equipment, or increases the scope
      of
      construction as specifically detailed in the Final Building Shell Plans, shall
      result in specific costs which shall be paid by Buyer to Seller at Closing
      or
      the earlier termination of this Agreement (other than as a result of Seller’s
      default). Buyer may by Change Order replace the materials called for in the
      Final Building Shell Plans with comparable materials, or with materials of
      a
      higher grade, but Buyer shall have no right to change the materials to materials
      which, in Seller’s reasonable opinion, are of an inferior grade or quality to
      those called for in the Final Building Shell Plans. Notwithstanding anything
      to
      the contrary contained herein, at Seller’s request, Buyer shall deposit ten
      percent (10%) of the cost of each Change Order up to the first Four Hundred
      Thousand Dollars ($400,000) of all such Change Orders and fifty percent (50%)
      of
      the cost of all Change Orders after the first Four Hundred Thousand Dollars
      ($400,000) of all such Change Orders, in escrow with the Title Company (the
      “Change
      Order Deposit”)
      within
      fifteen (15) days after Seller’s request therefor and as a condition to
      implementation of the applicable Change Order(s). Any such Change Order Deposit
      made as required hereunder shall be subject to escrow instructions reasonably
      satisfactory to Seller, Buyer and the Title Company, and shall provide that
      such
      Change Order Deposit shall be paid to Seller at Closing (and shall not be
      credited against the Purchase Price), or returned to Buyer if Buyer is entitled
      to a return of the Deposit hereunder.

     

    (d)   Within
      twenty-eight (28) days after the Effective Date, Seller shall prepare or cause
      to be prepared plans and specifications sufficient to cause a building permit
      to
      be issued for the construction of the Tenant Improvements along with a
      construction budget for such work, which plans and specifications shall be
      consistent and compatible with the Preliminary Tenant Improvement Plans (the
      “Submitted
      Tenant Improvement Plans”).
      Buyer
      shall have ten (10) business days after Seller has delivered (or caused the
      delivery of) such Submitted Tenant Improvement Plans to Buyer to approve the
      Submitted Tenant Improvement Plans. If Buyer fails to approve or request changes
      to the Submitted Tenant Improvement Plans within ten (10) business days after
      its receipt thereof, then Buyer shall be deemed to have approved the Submitted
      Tenant Improvement Plans and the same shall thereupon be the “Final
      Tenant Improvement Plans.”
If
      Buyer timely requests any changes ("Buyer
      Requested Change")
      to the
      Submitted Tenant Improvement Plans, Seller shall make those changes which are
      reasonably requested by Buyer and shall within ten (10) business days of its
      receipt of such request submit the revised portion of the Submitted Tenant
      Improvement Plans to Buyer. Buyer may not thereafter disapprove the revised
      portions of the Submitted Tenant Improvement Plans unless Seller has
      unreasonably failed to incorporate reasonable comments of Buyer and, subject
      to
      the foregoing, the Submitted Tenant Improvement Plans, as modified by said
      acceptable revisions, shall be deemed to be Final Tenant Improvement Plans
      upon
      the submission of said acceptable revisions to Buyer. This process shall be
      repeated until such time as all Buyer Requested Changes have been appropriately
      incorporated into the Submitted Tenant Improvement Plans. Buyer shall at all
      times in its review of the Submitted Tenant Improvement Plans, and of any
      revisions thereto, act reasonably and in good faith. The Final Tenant
      Improvement Plans and the Final Building Shell Plans, are collectively referred
      to herein as the “Final
      Plans.”

     

    
      
        
        

      

      
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    (e)   Seller
      shall cause the Building Shell to be constructed at Seller’s sole cost and
      expense (except as otherwise provided in this Agreement), in a good and
      workmanlike manner, in substantial and material compliance with the Final
      Building Shell Plans, and in compliance with all applicable building codes
      and
      regulations of the City. Seller shall complete the Building Shell in a timely
      manner in substantial accordance with the construction schedule for the Building
      Shell attached hereto as Exhibit
      B-6
      (“Construction
      Schedule”),
      subject only to Buyer Delays (hereinafter defined) and Unavoidable Delays
      (hereinafter defined) and in all events, on or before July 1, 2007 (the
“Outside
      Completion Date”).
      For
      each day elapsing between the Outside Completion Date (as such date may be
      extended pursuant to the provisions of Section 6.2) and the Substantial
      Completion of the Improvements, the Buyer shall receive a credit against the
      Purchase Price in an amount of Two Thousand Five Hundred Dollars ($2,500) per
      day, with the understanding, however, that there shall be no such credit to
      the
      Purchase Price for delays in Substantial Completion due to Buyer Delays or
      Unavoidable Delays. Any credit against the Purchase Price received by Buyer
      pursuant to the foregoing sentence shall in no event exceed Two Hundred Fifty
      Thousand Dollars ($250,000). At such time as Buyer’s credit pursuant to this
      Section 2.2(e) would exceed Two Hundred Fifty Thousand Dollars ($250,000) (but
      for the foregoing limitation), then Buyer may elect to terminate this Agreement
      upon written notice to Seller in which event this Agreement shall terminate
      and
      the Deposit shall be returned to Buyer (and neither party shall have any further
      liability to the other) unless Seller agrees within ten (10) days after receipt
      of such termination notice to allow the $2,500 per day credit to continue above
      $250,000 until Substantial Completion is actually achieved. Buyer shall have
      no
      obligation for construction costs attributable to the Building Shell except
      for
      any Change Orders. Seller shall cause the Tenant Improvements to be constructed
      in a good and workmanlike manner, in substantial accordance with the Final
      Tenant Improvement Plans, and in accordance with all applicable building codes
      and requirements of the City. Seller shall pay the first Six Hundred Thousand
      Dollars ($600,000) of the construction costs attributable to the Tenant
      Improvements (collectively, the “Tenant
      Improvements Construction Costs”)
      and
      Buyer shall be responsible for the balance of the Tenant Improvements
      Construction Cost; provided, however, prior to commencement of the Tenant
      Improvements, Seller shall provide to Buyer a cost estimate providing the
      maximum cost of the Tenant Improvements (the “Maximum
      Tenant Improvement Cost Estimate”)
      for
      its prior written approval. Seller shall be responsible for any costs of the
      Tenant Improvements in excess of the Maximum Tenant Improvement Cost Estimate,
      unless such increase(s) are due to (i) Change Orders required by the Buyer
      or
      documented due to Buyer Delay or (ii) Unavoidable Delays (as defined herein).
      The Improvements shall be designed by Realacorp and constructed by a general
      contractor selected by Seller, subject to the prior written approval of Buyer,
      which approval shall not be unreasonably withheld, conditioned or delayed.
      If
      Buyer fails to approve the general contractor selected by Seller within three
      (3) business days after its receipt of notice of the general contractor selected
      by Seller, then Buyer shall be deemed to have approved such general contractor.
      If required by Buyer, Seller shall submit the Improvements, or applicable
      portions thereof, for competitive bidding. Seller shall cause the Improvements
      to be constructed substantially in accordance with the Final Plans and in
      accordance with the terms and conditions of this Agreement. Seller shall make
      no
      changes to the Final Plans without Buyer's prior written consent, with the
      exception of immaterial details which will not affect Buyer's use and occupancy
      of the Building and the other Improvements. In the event Seller should make
      any
      modifications to the Final Plans without Buyer’s prior written consent in
      accordance with the preceding sentence, Seller shall promptly advise Buyer
      of
      the changes which were made. Seller shall have the Final Plans sealed by the
      architect, obtain all required building permits, certificates and licenses
      necessary to occupy the Building (other than business licenses attributable
      to
      Buyer’s business to be operated in the Building) and thereafter, in accordance
      with all applicable law and insurance requirements, cause the construction
      of
      the Improvements to be carried out in a diligent and good workmanlike manner,
      subject to any Buyer Delays. Seller shall pay and discharge all liens applicable
      to the construction of the Improvements, at its sole cost and expense, and
      payment of all such liens or lien claims shall be a condition to Buyer’s
      obligation to purchase the Property, and Buyer hereby acknowledges that Seller
      may use the Purchase Price proceeds to satisfy such liens and claims (provided
      that Seller shall be entitled to bond around any such liens if permitted under
      applicable law). As used herein, “Unavoidable Delays” shall mean an act of God,
      fire, earthquake, flood, explosion, war, insurrection, riot, mob violence,
      sabotage, inability to procure labor, equipment, facilities, materials or
      supplies, strikes, walk-outs, action of labor unions, condemnation, laws,
      litigation involving a party, inability to obtain governmental permits or
      approvals, unusually inclement weather, and other matters not within the control
      of the party in question.


    
      
        
          
          

        

        
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    (f)   “Substantial
      Completion”
of
      the
      Improvements shall occur upon (i) the completion of the Improvements in
      substantial compliance with the Final Plans (as determined by the architect
      of
      record) (subject only to Punch List Items (as defined below)), and (ii) the
      issuance by the appropriate governmental authority of a temporary certificate
      of
      occupancy (or its equivalent) for the Improvements, unless the temporary
      certificate of occupancy cannot be issued because Buyer has not completed work
      for which it is responsible that is required for issuance of the temporary
      certificate of occupancy, provided that (A) Seller has completed all work for
      which it is responsible that is required for issuance of the temporary
      certificate of occupancy as reasonably determined by the architect of record,
      and (B) if at Closing any work remains to be performed in order for a permanent
      certificate of occupancy (or its equivalent) to be issued, then with respect
      to
      any such work that is the responsibility of Seller under this Agreement (and
      not
      with respect to any work that is the responsibility of Buyer), an amount equal
      to 150% of the cost of such work (as reasonably estimated by the contractor(s)
      performing such work) shall be held back in escrow by the Title Company from
      the
      sale proceeds pursuant to mutually acceptable reasonable escrow instructions
      which shall provide that such funds shall be released to Seller upon completion
      of such work).

     

    (g)   No
      later
      than the date which is thirty (30) days prior to the estimated date of
      Substantial Completion, Seller shall give Buyer written notice that Seller
      estimates Substantial Completion will occur thirty (30) days thereafter. At
      any
      time after receipt of such notice, but subject to the provisions of Section
      9.3
      hereof, Buyer may commence construction and installation of Buyer's equipment
      and fixtures within the Building. Seller and Buyer shall cause their respective
      workmen to work in cooperation with each other.

     

    (h)   On
      or
      prior to the date of Substantial Completion, a representative of Seller and
      a
      representative of Buyer together shall inspect the Improvements and, within
      fifteen (15) days thereafter, generate a punchlist of defective or uncompleted
      items relating to the completion of construction of the Improvements (the
      "Punch
      List Items"),
      which
      Punch List Items shall indicate the estimation by the parties of the cost of
      each item. At the Closing, Seller shall escrow with the Title Company an amount
      equal to one hundred twenty-five percent (125%) of the estimated cost to
      complete the Punch List Items (the “Punch
      List Escrow”),
      subject to escrow instructions reasonably satisfactory to the Seller, the Buyer
      and the Title Company, which shall provide that Seller shall, within a
      reasonable time, but not later than sixty (60) days after the Closing Date,
      complete such incomplete work and remedy such defective work as are set forth
      on
      the Punch List Items, and if Seller fails to timely complete the Punch List
      Items, the parties shall agree upon the reasonable cost to complete any
      remaining Punch List Items, and such amount shall be delivered out of the Punch
      List Escrow to the Buyer, with the balance of the Punch List Escrow to be
      delivered to the Seller, and Seller shall have no further obligations with
      respect to the Punch List Items. 

     

    
      
        
        

      

      
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    (i)   For
      the
      purposes of this Agreement, “Buyer
      Delays”
shall
      mean any actual delay in the date of Substantial Completion of the Improvements
      due to Buyer’s required action or inaction, including, without limitation: (A)
      any written Change Order which was requested by Buyer and causes a delay in
      the
      Substantial Completion of the Improvements, (B) any grant of Buyer’s request to
      delay construction for consideration of potential or actual alterations to
      the
      construction of the Improvements, (C) Buyer’s failure to supply in a timely
      fashion information requested by Seller necessary for the timely construction
      of
      the Improvements, and (D) any request for non-standard building components
      (contrary to the Final Plans), which results in an actual delay in the
      Substantial Completion of the Improvements. For each day of documented Buyer
      Delay, the Purchase Price shall be increased by an amount equal to Two Thousand
      Five Hundred Dollars ($2,500.00) per day, with the understanding, however,
      that
      there shall be no adjustment to the Purchase Price if there are delays in
      Substantial Completion for causes other than Buyer Delays, including, without
      limitation, delays due to inclement weather, unavailability of services or
      materials (except where due to Buyer Delays), or delays due to failure to
      receive timely approvals from any applicable governmental authorities (except
      where due to Buyer Delays).

     

    ARTICLE
      III 

    BUYER’S
      EXAMINATION

     

    Section
      3.1   Buyer’s
      Independent Investigation. 

     

    (a)   Buyer
      acknowledges and agrees that it has been given a full opportunity to inspect
      and
      investigate each and every aspect of the Property (as it exists as of the
      Effective Date), either independently or through agents of Buyer’s choosing,
      including, without limitation:

     

    (i)   all
      the
      items described on Schedule 2
      hereto
      (the “Due
      Diligence Documentation”).
      Buyer
      hereby acknowledges receipt of the Due Diligence Documentation.

     

    (ii)   all
      matters relating to title, together with all governmental and other legal
      requirements such as taxes, assessments, zoning, use permit requirements and
      building codes, 


    
      
        
          
          

        

        
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    (iii)        
      the
      physical condition of the Property. Such examination of the physical condition
      of the Property shall include an examination for the presence or absence of
      hazardous or toxic materials, substances or wastes (collectively, “Hazardous
      Materials”),
      which
      shall be performed or arranged by Buyer at Buyer’s sole expense, 

     

    (iv)        
      any
      easements and/or access rights affecting the Property, 

     

    (v)         
      the
      service contracts and other contracts or agreements of significance to the
      Property (hereinafter collectively referred to as “Contracts”),
      and


     

    (vi)        
      all
      other
      matters of material significance affecting the Property. 

     

    (b)   BUYER
      SPECIFICALLY ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY PROVIDED IN
      SECTION 2.2 ABOVE AND IN SECTION 5.1 BELOW, SELLER IS SELLING AND BUYER IS
      PURCHASING THE PROPERTY ON AN “AS IS WITH ALL FAULTS” BASIS AND THAT BUYER IS
      NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS
      OR IMPLIED, FROM SELLER, ITS AGENTS, OR BROKERS AS TO ANY MATTERS CONCERNING
      THE
      PROPERTY, INCLUDING, WITHOUT LIMITATION: (i) the quality, nature, adequacy
      and physical condition of the Property, (ii) the quality, nature, adequacy,
      and physical condition of soils, geology and any groundwater, (iii) the
      existence, quality, nature, adequacy and physical condition of utilities serving
      the Property, (iv) the development potential of the Property, and the
      Property’s use, habitability, merchantability, or fitness, suitability, value or
      adequacy of the Property for any particular purpose, (v) the zoning or
      other legal status of the Property or any other public or private restrictions
      on use of the Property, (vi) the compliance of the Property or its
      operation with any applicable codes, laws, regulations, statutes, ordinances,
      covenants, conditions and restrictions of any governmental or quasi-governmental
      entity or of any other person or entity, (vii) the presence of Hazardous
      Materials on, under or about the Property or the adjoining or neighboring
      property, (viii) the condition of title to the Property, (ix) the
      Contracts (x) the economics of the operation of the Property and (xi) the
      type, quality or nature of any use or business conducted on any neighboring
      property. 

     

    Section
      3.2   Release. 

     

    (a)   Without
      limiting the above, except with respect to a breach by Seller of any of the
      representations and warranties contained in Section 5.1 hereof or Seller’s
      fraud, or a breach by Seller of its duties and obligations in Section 2.2.
      hereof, Buyer on behalf of itself and its successors and assigns waives its
      right to recover from, and forever releases and discharges, Seller, Seller’s
      affiliates, Seller’s investment manager, the partners, trustees, shareholders,
      directors, officers, employees and agents of Seller, and its respective heirs,
      successors, personal representatives and assigns, from any and all demands,
      claims, legal or administrative proceedings, losses, liabilities, damages,
      penalties, fines, liens, judgments, costs or expenses whatsoever (including,
      without limitation, attorneys’ fees and costs), whether direct or indirect,
      known or unknown, foreseen or unforeseen, that may arise on account of or in
      any
      way be connected with the physical condition of the Property or any law or
      regulation applicable thereto, including, without limitation, the Comprehensive
      Environmental Response, Compensation and Liability Act of 1980, as amended
      (42 U.S.C. Section 9601 et seq.), the Resource Conservation and
      Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.), the Clean
      Water Act (33 U.S.C. Section 1251 et seq.), the Safe Drinking
      Water Act (42 U.S.C. Section 300f et seq.), the Hazardous
      Materials Transportation Act (49 U.S.C. Section 1801 et seq.),
      and the Toxic Substances Control Act (15 U.S.C. Section 2601
      et seq.). 


    
      
        
          
          

        

        
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    (b)   The
      provisions of this Section 3.2 shall survive the Closing.

     

    ARTICLE
      IV

    TITLE

     

    Section
      4.1   Conditions
      of Title. 

     

    (a)   At
      the
      Closing, Seller shall convey title to the Real Property to Buyer by good and
      sufficient limited warranty deed in the form of Exhibit C
      attached
      hereto (the “Deed”).

     

    (b)   At
      the
      Closing, Seller shall transfer title to the Personal Property by a bill of
      sale
      in the form attached hereto as Exhibit D
      (the
“Bill
      of Sale”).
      

     

    (c)   At
      the
      Closing, Seller shall transfer title to the Intangible Property by an assignment
      and assumption of Contracts, Warranties and Guaranties and other intangible
      property in the form attached hereto as Exhibit E,
      which
      shall provide that Seller’s
      construction warranties are assigned to Buyer on a non-exclusive basis in order
      that Seller may reserve the right to pursue any claims which it may have against
      the contractor pursuant to the construction warranties (the “Assignment
      and Assumption of Contracts”).
      

     

    Section
      4.2   Evidence
      of Title.
      As a
      condition to the Closing, delivery of title in accordance with the foregoing
      shall be evidenced by the willingness of the Title Company to issue, at Closing,
      its standard American Land Title Association Form B Owner’s Policy of Title
      Insurance (the “Title
      Policy”)
      in the
      amount of the Purchase Price showing good, marketable and insurable fee simple
      title to the Real Property and the Appurtenances vested in Buyer, subject to
      no
      exceptions other than the following:

     

    (i)   Non-delinquent
      liens for local real estate taxes and assessments; 

     

    (ii)         
      Any
      permitted Development Encumbrances pursuant to 2.1(c) above; and

     

    (iii)        
      Any
      exceptions disclosed by the Pro Forma as updated by the Title Commitment or
      which have been approved or waived pursuant to Section 2.1(b) above, and any
      exceptions to title which would be disclosed by an inspection and/or survey
      of
      the Property. 

     

    All
      of
      the foregoing exceptions shall be referred to collectively as the “Conditions
      of Title.”
      

     

    Section
      4.3   As-Built
      Survey.
      Within
      at least three (3) business days prior to the Closing, Seller, at its sole
      cost
      and expense, shall provide to Buyer a current “as built” survey of the Property
      (the “As-Built
      Survey”)
      which
      may be an update of the Survey provided in accordance with Section 2.1(a)
      hereof. The As-Built Survey shall meet all requirements of an ALTA/ACSM Land
      Title Survey which are necessary to obtain an extended coverage title insurance
      policy, and shall demonstrate that the Improvements do not encroach upon or
      violate (unless the Title Company insures against the forced removal of any
      such
      encroachments) with respect to: (i) any title exceptions, other than those
      approved by Buyer in the Title Commitment and Survey which it was initially
      provided pursuant to Section 2.1(a) hereof (provided that Buyer shall not be
      deemed to have approved any violation that was not actually depicted on such
      initial Survey and which is depicted on the As-Built Survey, such as a set-back
      violation where the set-back lines were depicted on the initial Survey but
      a
      violation of the set-back lines was only shown on the As-Built Survey) or as
      otherwise permitted under this Agreement, or (ii) the terms and conditions
      of
      any of the Development Encumbrances, other than those approved by Buyer pursuant
      to Section 2.1(c) hereof. The As-Built Survey shall also be provided by Seller
      to the Title Company, and if the legal description of the Property as shown
      on
      the As-Built Survey varies from the legal descriptions contained in the Title
      Commitment, the Title Commitment shall be updated to conform to the legal
      description of the Property contained on the As-Built Survey.


    
      
        
          
          

        

        
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    ARTICLE
      V

    SELLER’S
      REPRESENTATIONS AND WARRANTIES

     

    Section
      5.1   Representations
      and Warranties of Seller.
      Seller
      represents and warrants to Buyer that: 

     

    (a)   Seller
      is
      a corporation, duly organized, validly existing and in good standing under
      the
      laws of the State of Maryland. This Agreement (i) is and at the time of Closing
      will be duly authorized, executed and delivered by Seller, (ii) is and at the
      time of Closing will be legal, valid and binding obligations of Seller, and
      (iii) does not and at the time of Closing will not violate any provision of
      any
      agreement or judicial order to which Seller is a party or to which Seller or
      the
      Property are subject. All documents executed by Seller which are to be delivered
      to Buyer at Closing (i) are or at the time of Closing will be duly authorized,
      executed and delivered by Seller, (ii) are or at the time of Closing will be
      legal, valid and binding obligations of Seller, and (iii) do not and at the
      time
      of Closing will not violate any provision of any agreement or judicial order
      to
      which Seller is a party or to which Seller or the Property is subject.


     

    (b)   Seller
      is
      not a “foreign person” within the meaning of Section 1445(f)(3) of the
      Federal Code. 

     

    (c)   The
      list
      of service contracts in Schedule 3
      attached
      hereto is a complete list of all of the service contracts affecting the Property
      as of the date hereof. 

     

    (d)   Seller
      has not received written notice from any applicable governmental authority
      that
      the Property is in violation of any laws, ordinances or regulations of any
      applicable governmental authority having jurisdiction thereover or control
      thereof. 


    
      
        
          
          

        

        
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    (e)   Seller
      has not received written notice from any applicable governmental authority
      of
      any pending or threatened special assessments or condemnation actions with
      respect to the Property. 

     

    (f)   Seller
      has no actual knowledge, except as to matters disclosed in the Phase I
      Environmental Assessment conducted by Contour Environmental, LLC, dated June
      9,
      2006, and has received no written notice that the Property is in violation
      of
      any federal, state, local or administrative agency ordinance, law, rule,
      regulation, order or requirement relating to environmental conditions or
      Hazardous Material (“Environmental
      Laws”).
      For
      the purposes hereof, “Hazardous
      Material”
shall
      mean any substance, chemical, waste or other material which is listed, defined
      or otherwise identified as “hazardous” or “toxic” under any federal, state,
      local or administrative agency ordinance or law, including, without limitation,
      the Comprehensive Environmental Response, Compensation and Liability Act, 42
      U.S.C. §§ 9601 et seq.
      and the
      Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq.,
      or any
      regulation, order, rule or requirement adopted thereunder, as well as any
      formaldehyde, urea, polychlorinated biphenyls, petroleum, petroleum product
      or
      by-product, crude oil, natural gas, natural gas liquids, liquefied natural
      gas,
      or synthetic gas usable for fuel or mixture thereof, radon, asbestos, and
“source,” “special nuclear” and “by-product” material as defined in the Atomic
      Energy Act of 1985, 42 U.S.C. §§ 3011 et seq.
      

     

    (g)   Seller
      has not been the subject of any filing of a petition under the Federal
      Bankruptcy Law or any federal or state insolvency laws or laws for composition
      of indebtedness or for the reorganization of debtors. 

     

    (h)   Except
      as
      disclosed in Schedule 4
      attached
      hereto, there is no litigation filed against Seller that would adversely affect
      the current use or operation of the Property or the ability of Seller to perform
      their obligations under this Agreement.

     

    Section
      5.2   Certain
      Limitations on Seller’s Representations and
      Warranties. Notwithstanding
      anything to the contrary contained in this Agreement, no claim for a breach
      of a
      representation or warranty by Buyer shall be actionable if the breach in
      question results from or is based on a condition, state of facts or other matter
      with respect to which Buyer has actual knowledge on or prior to the Closing
      (such conditions, state of facts or other matters are herein referred to as
      “Exception
      Matters”).
      If
      Buyer obtains knowledge of any Exception Matters after the Effective Date and
      prior to Closing and such Exception Matters would have a material adverse effect
      on Buyer’s ability to use and operate its business at the Property as reasonably
      contemplated by Buyer, Buyer may elect to either (i) proceed with the purchase
      of the Property subject to such Exception Matters and without any adjustment
      to
      the Purchase Price, or (ii) upon written notice to Seller specifying the nature
      of the Exception Matters, Buyer may elect to terminate this Agreement and
      receive a refund of the Deposit; provided, that if Buyer so elects to terminate
      this Agreement, Seller shall have the right, but not the obligation, to cure
      such Exception Matters within the thirty (30) day period following delivery
      of
      such notice (and the Closing shall be delayed to the extent necessary to allow
      Seller the entire thirty (30) day period within which to effect such cure)
      and
      if Seller cures such Exception Matters, then Buyer’s right to terminate this
      Agreement as a result of such Exception Matters shall be null and void and
      this
      Agreement shall continue without termination (and, if the Closing Date is
      extended, Closing shall occur on the date that is five (5) business days after
      Seller cures such Exception Matters). If Buyer fails to make the election in
      (ii) within five (5) business days after obtaining knowledge of an Exception
      Matter, then Buyer shall be deemed to have made the election under (i) above.
      Upon a termination of this Agreement pursuant to this Section 5.2, the Deposit
      shall be refunded to Buyer, Seller shall pay to Buyer for its actual
      out-of-pocket expenses incurred in connection with this transaction up to a
      sum
      in the amount of Two Hundred Fifty Thousand Dollars ($250,000) in the aggregate,
      and neither party shall have any further rights or obligations hereunder except
      as provided in Sections 7.1, 9.3 and 9.12 below.


    
      
        
          
          

        

        
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    Section
      5.3   Survival;
      Limitation of Liability.
      All
      representations and warranties of Seller contained in this Agreement shall
      survive the Closing, provided that Buyer must give Seller written notice of
      any
      claim it may have against Seller for a breach of any such representation or
      warranty, or for breach of any covenants of Seller contained in this Agreement,
      within one (1) year following of the Closing Date. Any claim which Buyer may
      have at any time, whether known or unknown, which is not asserted within such
      one (1) year period shall not be valid or effective, and Seller shall have
      no
      liability with respect thereto. Without limiting the foregoing, Buyer may not
      bring any action against Seller for a breach of any representation, warranty
      or
      covenant of Seller contained in this Agreement or in any agreement delivered
      by
      Seller to Buyer at Closing unless and until the aggregate amount of all
      liability and losses arising out of any such breach exceeds Fifty Thousand
      Dollars ($50,000), it being Seller’s desire to curtail any frivolous lawsuits.
      In addition, in no event will Seller’s liability for all such breaches exceed,
      in the aggregate, Two Million Dollars ($2,000,000). The provisions of this
      Section 5.3 shall survive the Closing.

     


    ARTICLE
      VI

    CONDEMNATION

     

    Section
      6.1   Condemnation.
      Seller
      shall give Buyer notice of the commencement of condemnation proceedings
      affecting any portion of the Property, or receipt by Seller of any written
      threat of condemnation from a governmental authority with the power to condemn.
      In the event that either: (i) more than ten percent (10%) of the Property,
      or
      (ii) any portion of the Property that materially and adversely interferes with
      the use of the Property by Buyer as a distribution facility, is condemned or
      threatened in writing to be condemned prior to the Closing, then Buyer may,
      at
      its option to be exercised within ten (10) business days of Seller’s notice
      of the occurrence of the commencement of condemnation proceedings or receipt
      of
      a written threat of condemnation, either terminate this Agreement or agree
      to
      continue with this Agreement to consummate the purchase for the full Purchase
      Price as required by the terms hereof. If Buyer elects to terminate this
      Agreement or fails to give Seller notice within such ten (10) business day
      period that Buyer will proceed with the purchase, then this Agreement shall
      terminate at the end of such ten (10) business day period, the Deposit shall
      be
      returned to Buyer and neither party shall have any further rights or obligations
      hereunder except as provided in Sections 7.1, 9.3 and 9.12 below. If
      (a)  either: (i) ten percent (10%) or less of the Property is condemned
      prior to the Closing, or (ii) such condemnation does not materially interfere
      with Buyer’s operations of the Property as a distribution facility, or
      (b) Buyer elects within the aforesaid ten (10) business day period to
      proceed with the purchase, then this Agreement shall not terminate and upon
      the
      Closing, there shall be a credit against the Purchase Price due hereunder equal
      to the amount of any condemnation awards collected by Seller as a result of
      any
      such condemnation, or any payment received in lieu of condemnation (but in
      no
      event shall the amount of such credit exceed the Purchase Price). If the awards,
      or any payment in lieu thereof, have not been collected as of the Closing,
      then
      such awards, or any payment in lieu thereof, shall be assigned to Buyer, and
      Buyer shall not receive any credit against the Purchase Price with respect
      to
      such awards, or any payment in lieu thereof; provided, that if the amount of
      awards, or any payment in lieu thereof, subsequently received by Buyer exceeds
      the Purchase Price, then Buyer shall pay to Seller any such excess within ten
      (10) days after Buyer’s receipt of such awards, or any payment in lieu thereof.
      The provisions of this Section 6.1 shall survive the Closing. 


    
      
        
          
          

        

        
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    Section
      6.2   Casualty.
      All
      risk of loss with respect to the Property until Closing shall be borne by
      Seller. In the event that any damage or destruction of the Property, or any
      part
      thereof by fire or other casualty occurs prior to the actual Closing, the Seller
      shall provide written notice of such casualty to Buyer within ten (10) business
      days following the date of such casualty, which notice shall include an election
      by Seller of whether it will repair or restore the casualty damage to the
      Property, or elect to terminate this Agreement due to such casualty. If Seller
      elects to repair or restore the damage to the Property caused by such casualty,
      Seller shall repair and restore all such damage and complete the Improvements
      in
      accordance with the requirements of Section 2.2 hereof, and the Outside
      Completion Date shall be extended by the reasonable period necessary to repair
      and restore the Improvements due to such casualty, but in no event beyond
      October 15, 2007 without the prior consent of Buyer to a further extension
      beyond October 15, 2007. If Seller elects to terminate this Agreement due to
      such casualty, the Deposit shall be immediately refunded to the Buyer, and
      the
      parties shall have no further duties or obligations under this Agreement. If
      Seller elects to repair or restore all damage to the Improvements due to such
      casualty, but the time necessary to repair or restore the Improvements will
      extend beyond October 15, 2007, the Buyer shall elect, within ten (10) business
      days after it has received written notice from Seller of the existence of such
      casualty, and the time estimated by Seller as being necessary for completion
      of
      the Improvements, to either: (i) terminate this Agreement, in which event the
      Deposit shall be immediately refunded to Buyer and the parties shall have no
      further duties or obligations hereunder, or (ii) agree to the extension to
      the
      Outside Completion Date proposed by Seller. Notwithstanding the foregoing,
      in no
      event shall the Buyer be required to close this transaction at any time between
      August 1, 2007 and November 1, 2007 (“Closing
      Blackout Period”),
      unless Buyer specifically consents to a Closing Date within such period. Where
      there is Substantial Completion of the Improvements during the Closing Blackout
      Period, the Closing Date shall be November 2, 2007. If the Buyer does not
      provide any written notice to Seller within ten (10) business days following
      receipt of the written notice from Seller advising of the existence of the
      casualty, the election by Seller to proceed with repair and restoration of
      the
      Improvements and the time estimated for completion, the Buyer shall be deemed
      to
      have elected the option provided in subparagraph (ii) above.

     

    ARTICLE
      VII

    BROKERS
      AND EXPENSES

     

    Section
      7.1   Brokers.
      The
      parties represent and warrant to each other that except for Greg Herren of
      Seefried Properties, whose commissions shall be paid by Seller upon Closing
      in
      accordance with the provisions of a separate written agreement between Seller
      and such brokers, no other broker or finder was instrumental in arranging or
      bringing about this transaction and that there are no claims or rights for
      brokerage commissions or finder’s fees in connection with the transactions
      contemplated by this Agreement. If any person brings a claim for a commission
      or
      finder’s fee based upon any contact, dealings or communication with Buyer or
      Seller, then the party through whom such person makes his claim shall defend
      the
      other party (the “Indemnified
      Party”)
      from
      such claim, and shall indemnify the Indemnified Party and hold the Indemnified
      Party harmless from any and all costs, damages, claims, liabilities or expenses
      (including, without limitation, reasonable attorneys’ fees and disbursements)
      incurred by the Indemnified Party in defending against the claim. The provisions
      of this Section 7.1 shall survive the Closing or, if the purchase and sale
      is not consummated, any termination of this Agreement. 


    
      
        
          
          

        

        
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    Section
      7.2   Expenses.
      Except
      as provided in Section 2.1(b) and Section 5.2 above and in Section 8.4
      below, each party hereto shall pay its own expenses incurred in connection
      with
      this Agreement and the transactions contemplated hereby. 

     

    
      
        
        

      

      
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    ARTICLE
      VIII

    CLOSING
      AND ESCROW

     

    Section
      8.1   Escrow
      Instructions.
      Upon
      execution of this Agreement, the parties hereto shall deposit an executed
      counterpart of this Agreement with the Title Company, and this instrument shall
      serve as the instructions to the Title Company as the escrow holder for
      consummation of the purchase and sale contemplated hereby. Seller and Buyer
      agree to execute such reasonable additional and supplementary escrow
      instructions as may be appropriate to enable the Title Company to comply with
      the terms of this Agreement; provided, however, that in the event of any
      conflict between the provisions of this Agreement and any supplementary escrow
      instructions, the terms of this Agreement shall control. 

     

    Section
      8.2   Closing.
      The
      Closing hereunder shall be held and delivery of all items to be made at the
      Closing under the terms of this Agreement shall be made at the offices of the
      Title Company on the earlier of: (i) the date which is five (5) business days
      after the Substantial Completion of the Improvements (subject to the extension
      provided in Section 6.2 hereof), and (ii) the date which is five (5) days after
      Buyer occupies the Improvements for the purpose of conducting business therein
      (which occupancy shall be permitted at the sole discretion of Seller), or if
      such date is not a business day then upon the next ensuing business day, before
      1:00 p.m. local time (the “Closing
      Date”).
      Such
      date and time may not be extended without the prior written approval of both
      Seller and Buyer.

     

    Section
      8.3   Deposit
      of Documents. 

     

    (a)   At
      or
      before the Closing, Seller shall deposit into escrow the following items:


     

    (i)   the
      duly
      executed and acknowledged Deed, subject to the Conditions of Title;


     

    (ii)        
       two
      (2)
      duly executed counterparts of the Bill of Sale;

     

    (iii)        
      two
      (2)
      duly executed counterparts of the Assignment and Assumption of Contracts;


     

    (iv)        
      an
      affidavit pursuant to Section 1445(b)(2) of the United States Internal
      Revenue Code of 1986, as amended (the “Federal
      Code”)
      in the
      form attached hereto as Exhibit F,
      and on
      which Buyer is entitled to rely, that each Seller is not a “foreign person”
within the meaning of Section 1445(f)(3) of the Federal Code; and


     

    (v)        
      two
      (2)
      duly executed counterparts of a lease termination agreement, in the form
      attached hereto as Exhibit
      G,
      terminating that certain Commercial Lease Agreement dated December 20, 2002,
      as
      amended by that certain First Amendment to Lease on July 12, 2005, respectively,
      between AMB Partners II, L.P., a Delaware limited partnership, as landlord,
      and
      Buyer, as tenant, for premises located at 700 Airport South Parkway, Clayton
      County, Georgia and at 574 Airport South Parkway, Suite 100, Clayton County,
      Georgia, (“Lease
      Termination Agreement”);


    
      
        
          
          

        

        
          17

          
            

          

        

        
          
          

        

      

    

    


    (vi)        
      a
      duly
      executed and acknowledged Affidavit Regarding Commercial Real Estate Brokers
      (Seller), substantially in the form attached hereto as Exhibit
      H and
      described in Section 7.1;

     

    (vii)       
      a
      duly
      executed and acknowledged Affidavit of Seller’s Residence, substantially in the
      form attached hereto as Exhibit
      I;

     

    (viii)      
      a
      duly
      executed and acknowledged Commercial Real Estate Broker’s Affidavit,
      substantially in the form attached hereto as Exhibit
      J;
      and

     

    (ix)        
       as
      soon
      as possible, but in any event within thirty (30) days after the Substantial
      Completion of the Improvements (either prior to or after the Closing Date,
      as
      applicable), at no cost to Buyer and only to the extent available, a set of
      the
      Final Plans, any applicable warranties, operating manuals, a full and completed
      construction manual, and other printed materials provided to Seller by its
      contractors or by manufacturers or installers of any element or system in the
      Improvements including, to the extent included in the Final Plans, doors,
      heating, ventilation and air conditioning systems, lighting systems, and
      electrical systems.

     

    (b)   At
      or
      before Closing, Buyer shall deposit into escrow the following items:


     

    (i)   funds
      necessary to close this transaction; 

     

    (ii)         
      two
      (2)
      duly executed counterparts of the Bill of Sale;

     

    (iii)        
      two
      (2)
      duly executed counterparts of the Assignment and Assumption of
      Contracts;

     

    (iv)        
      two
      (2)
      duly executed counterparts of the Lease Termination Agreement; and

     

    (v)         
      a
      duly
      executed and acknowledged Affidavit Regarding Commercial Real Estate Brokers
      (Buyer) substantially in the form attached hereto as Exhibit
      K.

     

    (c)   Buyer
      and
      Seller shall each deposit such other instruments as are reasonably required
      by
      the Title Company or otherwise required to close the escrow and consummate
      the
      purchase and sale of the Property in accordance with the terms hereof. Buyer
      and
      Seller hereby designate Title Company as the “Reporting Person” for the
      transaction pursuant to Section 6045(e) of the Federal Code and the
      regulations promulgated thereunder. 


    
      
        
          
          

        

        
          18

          
            

          

        

        
          
          

        

      

    

    


    Section
      8.4   Prorations

     

    (a)   With
      respect to the Property, Seller shall be entitled to all income produced from
      the operation of the Property which is allocable to the period prior to Closing
      and shall be responsible for all expenses allocable to that period; and Buyer
      shall be entitled to all income and responsible for all expenses allocable
      to
      the period beginning at 12:01 A.M. on the day Closing occurs. At the Closing,
      all items of income and expense with respect to the Property listed below shall
      be prorated in accordance with the foregoing principles and the rules for the
      specific items set forth hereafter:

     

    (i)   Seller
      shall arrange for a billing under all those Service Contracts for which fees
      are
      based on usage and with utility companies for a billing for utilities, to
      include all utilities or service used up to the day Closing occurs, and Seller
      shall pay the resultant bills. In the event any of the Service Contracts set
      forth in Schedule 3
      extend
      over periods beyond the Closing the same shall be prorated on a per diem basis.
      Notwithstanding the foregoing, Seller shall receive the benefit of any future
      credits or refunds from any utility company in connection with the installation
      of such utility services.

     

    (ii)         
      Real
      estate taxes and assessments on the Property shall be prorated based upon the
      period (i.e., calendar or other tax fiscal year) to which same are attributable,
      regardless of whether or not any such taxes are then due and payable or are
      a
      lien. Seller shall pay at or prior to Closing (or Buyer shall receive credit
      for) any unpaid taxes attributable to periods prior to the date of Closing
      (whether or not then due and payable or a lien as aforesaid); provided, that
      with respect to any assessments which can be paid in installments, Seller shall
      only be required to pay installments which are payable on or before the Closing
      Date. Seller shall receive credit for any previously paid or prepaid taxes
      attributable to periods from and after the date of Closing. In the event that
      as
      of the date Closing occurs the actual tax bills for the tax year or years in
      question are not available and the amount of tax to be prorated as aforesaid
      cannot be ascertained, then rates, millages and assessed valuation of the
      previous year, with known changes, shall be used; and after the Closing occurs
      and when the actual amount of taxes of the year or years in question shall
      be
      determinable, such taxes will be re-prorated between the parties to reflect the
      actual amount to such taxes.

     

    (iii)         Gas,
      water, electricity, heat, fuel, sewer and other utilities charges the
      governmental licenses, permits and inspection fees relating to the Property,
      shall be prorated on a per diem basis.

     

    (b)   The
      Title
      Company shall determine the aforesaid prorations and deliver such prorations
      to
      Seller and Buyer on or before the date that is three (3) business days before
      the Closing Date; provided that (i) if any of the aforesaid prorations cannot
      be
      calculated accurately as of the date that is three (3) business days prior
      to
      the Closing Date or, (ii) if any of the aforesaid prorations were calculated
      inaccurately, then the same shall be recalculated by the parties as soon as
      reasonably practicable after the Closing Date and either party owing the other
      party a sum of money based on such subsequent proration(s) shall promptly pay
      said sum to the other party, pursuant to the terms of this Section
      8.4.


    
      
        
          
          

        

        
          19

          
            

          

        

        
          
          

        

      

    

    


    (c)   Seller
      shall deliver to Buyer the Survey referenced in Section 2.1(a) and the As-Built
      Survey referenced in Section 4.3. Seller shall pay all costs for such surveys
      and shall pay the cost of any title examination charges exceeding Two Thousand
      Dollars ($2,000). Buyer shall pay for the cost of any title examination charges
      up to Two Thousand Dollars ($2,000) and the cost of any endorsements to the
      Title Policy and any local transfer taxes applicable to the sale, and Seller
      shall pay the premium for the Title Policy and any state and county transfer
      taxes applicable to the sale. Seller and Buyer shall each pay fifty percent
      (50%) of any escrow fees and expenses. Seller and Buyer shall pay their
      respective attorneys’ fees. Any recording charges or other closing costs
      applicable to the sale shall be prorated between Buyer and Seller in accordance
      with customary practice for Clayton County, Georgia.

     

    (d)   The
      provisions of this Section 8.4 shall survive the Closing.

     

    ARTICLE
      IX 

    MISCELLANEOUS

     

    Section
      9.1   Notices.
      Any
      notices required or permitted to be given hereunder shall be given in writing
      and shall be delivered (a) in person, (b) by certified mail, postage
      prepaid, return receipt requested, (c) by a commercial overnight courier
      that guarantees next day delivery and provides a receipt, or (d) by
      telefacsimile or telecopy, and such notices shall be addressed as follows:
      

     

    
      	
              To
                Buyer:

            	
              Forward
                Air, Inc.

            
	 	
              430
                Airport Road

            
	 	
              Greenville,
                Tennessee 37745

            
	 	
              Phone
                No.: (423) 636-7008

            
	 	
              Fax
                No.: (423) 636-7274

            
	 	
              Att’n:
                Legal Department

            
	 	 
	
              With
                a copy to:

            	
              Clements,
                Allen, Woods & Margolis, P.C.

            
	 	
              15303
                Dallas Parkway, Suite 1050

            
	 	
              Addison,
                Texas 75001

            
	 	
              Phone
                No.: (972) 991-2600

            
	 	
              Fax
                No.: (972) 991-2601

            
	 	
              Att’n:
                Robert M. Allen, Esq.

            
	 	 
	
              To
                Seller:

            	
              c/o
                Headlands Realty Corporation

            
	 	
              60
                State Street, Suite 1200

            
	 	
              Boston,
                MA 02109

            
	 	
              Phone
                No.: (617) 619-9308

            
	 	
              Fax
                No.: (617) 619-9408

            
	 	
              Att’n:
                Steven Kros

            


    

    


    
      
        
        

      

      
        20

        
          

        

      

      
        
        

      

       

    

    
      	
              With
                a copy to:

            	
              c/o
                Headlands Realty Corporation

            
	 	
              Pier
                One, Bay One

            
	 	
              San
                Francisco, CA 94111

            
	 	
              Phone
                No.: (415) 733-9521

            
	 	
              Fax
                No.: (415) 477-2121

            
	 	
              Att’n:
                Mr. Drew Singer

            
	 	 
	
              With
                a copy to:

            	
              Morrison
                & Foerster LLP

            
	 	
              755
                Page Mill Road

            
	 	
              Palo
                Alto, CA 94304

            
	 	
              Phone
                No.: (650) 813-5613

            
	 	
              Fax
                No.: (650) 494-0792

            
	 	
              Att’n:
                Philip J. Levine, Esq.

            


    

    


    or
      to
      such other address as either party may from time to time specify in writing
      to
      the other party. Any notice shall be deemed delivered when actually delivered,
      if such delivery is in person, upon deposit with the U.S. Postal Service, if
      such delivery is by certified mail, upon deposit with the overnight courier
      service, if such delivery is by an overnight courier service, and upon
      transmission, if such delivery is by telefacsimile or telecopy. 

     

    Section
      9.2   Entire
      Agreement.
      This
      Agreement, together with the Exhibits attached hereto, contain all
      representations, warranties and covenants made by Buyer and Seller and
      constitute the entire understanding between the parties hereto with respect
      to
      the subject matter hereof. Any prior correspondence, memoranda or agreements
      are
      replaced in total by this Agreement together with the Exhibits hereto.


     

    Section
      9.3   Entry
      and Indemnity.
      In
      connection with any entry by Buyer, or its agents, employees or contractors
      onto
      the Property, Buyer shall give Seller reasonable advance notice of such entry
      and shall conduct such entry and any inspections in connection therewith so
      as
      to minimize, to the greatest extent possible, interference with Seller’s
      business and otherwise in a manner reasonably acceptable to Seller. Without
      limiting the foregoing, prior to any entry to perform any on-site testing,
      including any destructive or invasive testing, Buyer shall give Seller notice
      thereof, including the identity of the company or persons who will perform
      such
      testing and the proposed scope of the testing. In the event that Buyer proposed
      to perform any destructive or invasive testing, Seller shall approve or
      disapprove, which such approval shall not be unreasonably withheld. If Buyer
      or
      its agents, employees or contractors take any sample from the Property in
      connection with any such approved testing, at Seller’s request, Buyer shall
      provide to Seller a portion of such sample being tested to allow Seller, if
      it
      so chooses, to perform its own testing. Seller or their representative may
      be
      present to observe any testing or other inspection performed on the Property.
      Upon Seller’s request, Buyer shall promptly deliver to Seller copies of any
      reports relating to any testing or other inspection of the Property performed
      by
      Buyer or its agents, employees or contractors. Buyer shall maintain, and shall
      assure that its contractors maintain, public liability and property damage
      insurance in amounts (public liability in a combined single limit of not less
      than $2,000,000) and in form and substance adequate to insure against all
      liability of Buyer and its agents, employees or contractors, arising out of
      any
      entry or inspections of the Property pursuant to the provisions hereof, and
      Buyer shall provide Seller with evidence of such insurance coverage upon request
      by Seller. Buyer shall indemnify and hold Seller harmless from and against
      any
      costs, damages, liabilities, losses, expenses, liens or claims (including,
      without limitation, reasonable attorneys’ fees) arising out of or relating to
      any entry on the Property by Buyer, its agents, employees or contractors in
      the
      course of performing the inspections, testings or inquiries provided for in
      this
      Agreement, excluding, however, any expenses or claims due to Seller’s gross
      negligence or intentional misconduct. The foregoing indemnity shall survive
      beyond the Closing, or, if the sale is not consummated, beyond the termination
      of this Agreement. 


    
      
        
          
          

        

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

     

    Section
      9.5   1031
      Exchange. The
      parties acknowledge and agree that either party may elect to assign their
      interest in this Agreement to an exchange facilitator by means of one or more
      escrows for the purpose of completing an exchange of such Property in a
      transaction which will qualify for treatment as a tax deferred exchange pursuant
      to the provisions of Section 1031 of the Internal Revenue Code of 1986 and
      applicable state revenue and taxation code sections (a “1031
      Exchange”).
      Each
      party agrees to reasonably cooperate with any party so electing in implementing
      any such assignment and 1031 Exchange, provided that such cooperation shall
      not
      entail any additional expense to the non-electing party, cause such party to
      take title to any other property or cause such party exposure to any liability
      or loss of rights or benefits contemplated by this Agreement, and the electing
      party shall indemnify, defend and hold the non-electing party harmless from
      any
      liability, damage, loss, cost or other expense including, without limitation,
      reasonable attorneys’ fees and costs, resulting or arising from the
      implementation of any such assignment and 1031 Exchange. No such assignment
      by
      any party shall relieve such party from any of its obligations hereunder, nor
      shall such party’s ability to consummate a tax deferred exchange be a condition
      to the performance of such party’s obligations under this Agreement; provided,
      however, that Seller shall have the right, upon written notice to Buyer, to
      extend the Closing for a period of up to two (2) months to accommodate any
      such
      exchange by Seller.

     

    Section
      9.6   Attorneys’
      Fees.
      If
      either party hereto fails to perform any of its obligations under this Agreement
      or if any dispute arises between the parties hereto concerning the meaning
      or
      interpretation of any provision of this Agreement, then the defaulting party
      or
      the party not prevailing in such dispute, as the case may be, shall pay any
      and
      all costs and expenses incurred by the other party on account of such default
      and/or in enforcing or establishing its rights hereunder, including, without
      limitation, court costs and reasonable attorneys’ fees and disbursements. Any
      such attorneys’ fees and other expenses incurred by either party in enforcing a
      judgment in its favor under this Agreement shall be recoverable separately
      from
      and in addition to any other amount included in such judgment, and such
      attorneys’ fees obligation is intended to be severable from the other provisions
      of this Agreement and to survive and not be merged into any such judgment.
      


    
      
        
          
          

        

        
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    Section
      9.7   Jury
      Trial Waiver. The
      parties hereby agree to waive any right to trial by jury with respect to any
      action or proceeding (i) brought by either party or any other party, relating
      to
      (A) this Agreement and/or any understandings or prior dealings between the
      parties hereto, or (B) the Property or any part thereof, or (ii) to which Seller
      is a party. The parties hereby acknowledge and agree that this Agreement
      constitutes a written consent to waiver of trial by jury pursuant to any
      applicable state statutes.

     

    Section
      9.8   No
      Merger.
      The
      obligations contained herein shall not merge with the transfer of title to
      the
      Property but shall remain in effect until fulfilled. 

     

    Section
      9.9   Assignment.
      Buyer’s
      rights and obligations hereunder shall not be assignable without the prior
      written consent of Seller, in its sole discretion.
      In
      no
      event shall Buyer be released from any of its obligations or liabilities
      hereunder if Seller approves of any assignment of this Agreement. Subject to
      the
      foregoing, this Agreement shall inure to the benefit of and be binding upon
      the
      parties hereto and their respective successors and assigns.

     

    Section
      9.10       Counterparts
      and Facsimile.
      This
      Agreement may be executed in two or more counterparts, each of which shall
      be
      deemed an original, but all of which taken together shall constitute one and
      the
      same instrument. The parties contemplate that they may be executing counterparts
      of this Agreement transmitted by facsimile and agree and intend that a signature
      by facsimile machine shall bind the party so signing with the same effect as
      though the signature were an original signature.

     

    Section
      9.11        Governing
      Law.
      This
      Agreement shall be governed by and construed in accordance with the laws of
      the
      State of Georgia.

     

    Section
      9.12        Confidentiality.
      Buyer
      and Seller shall each maintain as confidential any and all material obtained
      about the other and, in the case of Buyer, about the Property, and shall not
      disclose such information to any third party except for disclosures required
      by
      court order or subpoena. In addition, neither party shall issue any press
      release or other public announcement regarding this transaction without first
      obtaining the other party’s written approval with respect to the release or
      announcement and the content thereof. Notwithstanding the foregoing, Buyer
      may
      disclose any information regarding the economic terms of this transaction to
      its
      lenders, accountants, attorneys and other consultants and advisors, without
      any
      consent or approval of Seller; provided, however, prior to receiving disclosed
      information, such parties shall in writing acknowledge the confidential nature
      of the material and agree to maintain as confidential all such material.
      Notwithstanding anything to the contrary provided in this Agreement, after
      the
      Closing, Seller and Buyer shall be permitted to make such disclosures regarding
      the Property and the subject transaction as are similar or consistent with
      Seller’s and Buyer’s general public disclosure policy, including disclosures
      made by Seller or Buyer in their quarterly supplemental analyst disclosure
      packages. This provision shall survive the Closing or any termination of this
      Agreement. 


    
      
        
          
          

        

        
          23

          
            

          

        

        
          
          

        

      

    

    


    Section
      9.13        General
      Rules of Construction.
      The
      parties acknowledge that this Agreement has been freely negotiated by both
      parties, that each party has had the opportunity to review and revise this
      Agreement, that each party has had the opportunity to consult with counsel
      with
      regard to this Agreement, and that the normal rule of construction to the effect
      that any ambiguities are to be resolved against the drafting party will not
      be
      employed in the interpretation of this Agreement or any amendments or exhibits
      to this Agreement.

     

    Section
      9.14        Insurance.
      Through
      the Closing Date, Seller shall maintain or cause to be maintained, at Seller’s
      sole cost and expense the following insurance: (a) workman’s compensation
      insurance for all persons carrying out any work required relating to the
      Property, in accordance with and to the extent required by the requirements
      of
      applicable laws relative to workman’s compensation insurance, (b) comprehensive
      or commercial and general liability insurance on an “occurrence” basis, and (c)
      a standard “all risk” builders risk policy of insurance in an amount of not less
      than the full replacement cost of the Improvements. All such insurance policies
      shall be issued by insurance carriers licensed and approved to do business
      in
      the State of Georgia, and, upon Buyer’s written request, Seller shall provide
      Buyer with certificates evidencing such policies. 

     

    Section
      9.15        Interpretation
      of Agreement.
      The
      article, section and other headings of this Agreement are for convenience of
      reference only and shall not be construed to affect the meaning of any provision
      contained herein. Where the context so requires, the use of the singular shall
      include the plural and vice versa and the use of the masculine shall include
      the
      feminine and the neuter. The term “person” shall include any individual,
      partnership, joint venture, corporation, trust, unincorporated association,
      any
      other entity and any government or any department or agency thereof, whether
      acting in an individual, fiduciary or other capacity. 

     

    Section
      9.16       Authority
      of Buyer.
      Buyer
      represents and warrants to Seller that Buyer is a corporation, duly organized,
      validly existing, and in good standing under the laws of the State of Tennessee.
      Buyer further represents and warrants to Seller that this Agreement and all
      documents executed by Buyer which are to be delivered to Seller at Closing
      (a) are or at the time of Closing will be duly authorized, executed and
      delivered by Buyer, (b) are or at the time of Closing will be legal, valid
      and binding obligations of Buyer, and (c) do not and at the time of Closing
      will not violate any provision of any agreement or judicial order to which
      Buyer
      is a party or to which Buyer is subject. The foregoing representation and
      warranty and any and all other representations and warranties of Buyer contained
      herein shall survive the Closing Date. 

     

    Section
      9.17        Limited
      Liability.
      The
      obligations of Seller are intended to be binding only on the Seller’s assets,
      subject to the limits of Section 5.3, and the obligations of Seller shall not
      be
      personally binding upon, nor shall any resort be had to, the private properties
      of any of its trustees, officers, directors or shareholders, the general
      partners, officers, directors or shareholders thereof, or any employees or
      agents of Seller.


    
      
        
          
          

        

        
          24

          
            

          

        

        
          
          

        

      

    

    


    Section
      9.18         Amendments.
      This
      Agreement may be amended or modified only by a written instrument signed by
      Buyer and Seller. 

     

    Section
      9.19         No
      Recording.
      Neither
      this Agreement or any memorandum or short form thereof may be recorded by Buyer.
      

     

    Section
      9.20         Effective Date.
      As used
      herein, the term “Effective Date” shall mean the first date on which both Seller
      and Buyer shall have executed this Agreement.

     

    Section
      9.21         Restrictions
      On Sale; Right of First Notice Regarding Sale of the
      Property.
      

     

    (a)   For
      a
      period ending two (2) years after the Closing Date (the “Restriction
      Period”),
      Buyer
      shall not engage in a sale, disposition or ground lease in excess of twenty-five
      (25) years (inclusive of any extension option periods contained in such ground
      lease) (a “Ground
      Lease”),
      of
      the Real Property without the prior written consent of the Seller, which may
      be
      withheld in Seller’s sole and absolute discretion. Buyer’s restriction to sell
      the Property under this Section 9.21(a) shall be evidenced in the Deed. The
      provisions of this Section 9.21(a) shall survive the Closing for a period which
      ends upon the expiration of the Restriction Period. The Buyer acknowledges
      that
      the Buyer’s agreement to this absolute restriction on sale during the
      Restriction Period was a material inducement to Seller selling the Property
      to
      Buyer and Seller would not have sold the Property to Buyer but for the inclusion
      of the restriction on sale contained in this Section 9.21.

     

    (b)   If,
      during the period commencing immediately after the end of the Restriction Period
      and continuing through and including the tenth (10th)
      year
      anniversary of the Closing Date, Buyer desires to sell all or any portion of
      the
      Property (it being understood that any such sale during the Restricted Period
      shall be subject to the provisions of Section 9.21(a) above), Buyer shall
      deliver a written notice to Seller, which notice shall set forth all of the
      material business terms of the proposed sale, including, without limitation,
      the
      purchase price, the allocation of closing costs and prorations, the amount
      of
      any deposit, the length of the due diligence period, the date on which closing
      is to occur, and the terms of any lease back arrangement proposed by Buyer
      (the
“Offer
      Notice”).
      The
      right of first notice under this Section 9.21(b) shall be evidenced in the
      Deed.
      Buyer hereby agrees that Buyer shall not try to circumvent or evade Seller’s
      right of first notice pursuant to this Section 9.21 by entering into a Ground
      Lease for the Property in lieu of selling the Property. The provisions of this
      Section 9.21(b) and Seller’s right of first notice pursuant to the terms of this
      Section 9.21(b) shall survive the Closing for a period of ten (10) years, after
      which Seller’s right of first notice shall expire and terminate and be of no
      further force and effect. Further, upon the termination of Seller’s right of
      first notice and if requested by Buyer, Seller shall execute a release of such
      right of first notice in form suitable for recording in the Real Property
      Records of Clayton County, Georgia.


    
      
        
          
          

        

        
          25

          
            

          

        

        
          
          

        

      

    

    


    Section
      9.22        Deadlines
      on Non-Business Days. In
      the
      event any deadline specified herein falls on a day which is not a regular
      business day (including, without limitation, any day where the banks in San
      Francisco, California or the offices of the Escrow Agent in San Francisco,
      California, are closed), then the deadline shall be extended to the end of
      the
      next following regular business day.

     

    Section
      9.23        Default.
      No
      party shall be deemed to be in default under this Agreement unless such party
      fails, for any reason other than the other party’s default hereunder or the
      failure of a condition precedent to such party’s obligation to perform
      hereunder, to meet, comply with or perform any covenant, agreement or obligation
      on such party’s part required within the time limits and in the manner required
      in this Agreement unless and until such party has received written notice from
      the other party of such default and the party receiving such written notice
      has
      failed to cure such default within five (5) business days after the receipt
      of
      such notice if a monetary default or a failure to make a delivery of any of
      the
      documents described in Section 8.3, and within thirty (30) days after receipt
      of
      such notice if any other default, or if the default is non-monetary, and the
      nature of the default is such that the same cannot reasonably be cured within
      such thirty (30) day period, such party shall not be deemed to be in default
      if
      it diligently commences to cure the default within such thirty (30) day period
      and thereafter diligently proceeds to rectify and cure the default as soon
      as
      possible.

     

    Section
      9.24        Seller’s
      Acquisition of the Property.
      Buyer
      hereby acknowledges and agrees that as of the Effective Date Seller does not
      own
      the Property, and that Seller’s obligation to close hereunder is conditioned
      upon Seller’s acquisition of the Property and that Seller shall not be in
      default hereunder if Seller fails to acquire all or any portion of the Property
      for any reason whatsoever.

     


    
      
        
        

      

      
        26

        
          

        

      

      
        
        

      

    


    The
      parties hereto have executed this Agreement as of the respective dates written
      below. 

     

    
      	 	
              SELLER:

            	 	
              HEADLANDS
                REALTY CORPORATION,

            
	 	
            	 	
              a
                Maryland corporation

            
	 	 	 	 
	
               

            	 	 	
              By:
                

            	
              /s/
                Drew Smith

            
	 	 	 	
              Name:
                

            	
              Drew
                Smith

            
	 	 	 	
              Its:
                

            	
              Vice
                President

            
	 	 	 	 	 
	Date:	
              9/14/06

            	 	 	 
	 	 	 	 	 
	 	 	 	 
	 	
              BUYER:

            	 	
              FORWARD
                AIR, INC.,

            
	 	
            	 	
              a
                Tennessee corporation

            
	 	 	 	 
	 	 	 	
              By:

            	
              /s/
                Matthew J. Jewell

            
	Date:	
              9/14/06

            	 	
              Name:

            	
              Matthew
                J. Jewell

            
	 	 	 	
              Its:

            	
              SVP
                & General Counsel

            


    

    


    [Parties
      must also initial Section 1.2(b)(ii)]

     

     

    27