exv10w37



 





Exhibit 10.37




AGREEMENT OF PURCHASE AND SALE OF

MEMBERSHIP INTERESTS AND PROPERTIES

AND ESCROW INSTRUCTIONS




9631, 9633, 9635 and 9637 Liberty Road, Randallstown, Baltimore County, MD

115 and 125 Airport Place, and 1135 Business Parkway, Westminster, Carroll County, MD

6900 English Muffin Way, Frederick County, MD

4451 Georgia Pacific Boulevard, Frederick County, MD

15 Worman’s Mill Court, Frederick, Frederick County, MD

9315 Largo Drive West, Largo, Prince George’s County, MD

1291 Edwin Miller Boulevard, Martinsburg, Berkeley County, WV

7561 Lindbergh Drive, Gaithersburg, Montgomery County, MD

811 and 831 Russell Avenue, Gaithersburg, Montgomery County, MD

200 and 220 Girard Street, and 504 East Diamond Avenue,

Gaithersburg, Montgomery County, MD

602, 620, 630 and 640 East Diamond Avenue, Gaithersburg, Montgomery County, MD

20270 Goldenrod Lane, Germantown, Montgomery County, MD

1129 Business Parkway South, Westminster, Carroll County, MD

10 North Jefferson Street, Frederick, Frederick County, MD

30 West Patrick Street, Frederick, Frederick County, MD




     THIS AGREEMENT OF PURCHASE AND SALE OF MEMBERSHIP INTERESTS AND PROPERTIES
AND ESCROW INSTRUCTIONS (this “Agreement”) is made and entered into as of May
27, 2004, by and among the following person and entities:



     (A) for the “Deer Park Property”, the “Gateway West Property”, the
“Wedgewood Property”, the “Georgia Pacific Boulevard Property”, the “Radtech
Property”, and the “Woodlands Property” (all as hereinafter defined): (i)
Butera Properties, Inc., in its capacity as Manager and a member of, and Butera
Equity, LLC and Kimmel Equity, LLC, in their capacities as the members of,
Butera Properties, LLC (individually a “Butera Properties Member” and
collectively, the “Butera Properties Members”); and (ii) First Potomac Realty
Investment Limited Partnership, a Delaware limited partnership (“FP-LP”) and FP
Realty Investment Manager, Inc. (“FP Manager”) (FP-LP and FP Manager being
collectively referred to as the “FP LLC Buyers”); and



     (B) for the “Old Courthouse Square Property” and the “Lindbergh Property”
(both as hereinafter defined): (i) Butera Properties II, Inc., in its capacity
as Manager and a member of, and Butera Equity, LLC and Kimmel Equity, LLC, in
their capacities as the members of, Butera Properties II, LLC (individually a
“Butera Properties II Member” and collectively, the “Butera Properties II
Members”); and (ii) FP LLC Buyers; and



     (C) for the “Gateway Center Property” (as hereinafter defined): (i) Butera
Gateway Center, Inc, in its capacity as Manager and a member of, and Butera
Equity, LLC and Kimmel Equity, LLC, in their capacities as the members of,
Butera Gateway Center, LLC (individually a “Butera Gateway Center Member” and
collectively, the “Butera Gateway Center Members”); and (ii) FP LLC Buyers; and



 









 





     (D) for the “Girard Business Center Property” (as hereinafter defined):
(i) Butera Girard Business Center, Inc., in its capacity as Manager and a
member of, and Butera Equity, LLC and Kimmel Equity, LLC, in their capacities
as the members of, Butera Girard Business Center, LLC (individually a “Butera
Girard Business Center Member” and collectively, the “Butera Girard Business
Center Members”); and (ii) FP LLC Buyers; and



     (E) for the “Girard Place Property” (as hereinafter defined): (i) Butera
Girard Place, Inc, in its capacity as Manager and a member of, and Butera
Equity, LLC and Kimmel Equity, LLC, in their capacities as the members of,
Butera Girard Place, LLC (individually a “Butera Girard Place Member” and
collectively, the “Butera Girard Place Members”); and (ii) FP LLC Buyers; and



     (F) for the “Goldenrod Lane Property” (as hereinafter defined): (i) Butera
Goldenrod Lane, Inc, in its capacity as Manager and a member of, and Butera
Equity, LLC and Kimmel Equity, LLC, in their capacities as the members of,
Butera Goldenrod Lane, LLC (individually a “Butera Goldenrod Lane Member” and
collectively, the “Butera Goldenrod Lane Members”); and (ii) FP LLC Buyers; and



     (G) for the “Gateway West II Property” (as hereinafter defined): (i) T.
Richard Butera and RIP Investments LP, in their capacities as the members of
Butera Gateway West II, LLC (individually a “Butera Gateway West II Member” and
collectively, the “Butera Gateway West II Members”); and (ii) FP LLC Buyers;
and



     (H) for the “Westpark Property” (as hereinafter defined): (i) TRB, Inc., a
Colorado corporation (“TRB, Inc.”); and (ii) FP Westpark, LLC (“FP Westpark”);
and



     (I) for the “Patrick Center Property” (as hereinafter defined): (i) TRB,
Inc., Woodstone Associates, a Colorado general partnership (“Woodstone”), and
Thirty Pat, LLC, a Maryland limited liability company (“Thirty Pat”); and (ii)
FP Patrick Center, LLC (“FP Patrick Center”).


(FP LLC Buyers, FP Westpark and FP Patrick Center are referred to herein
collectively as “Buyer”. Butera Properties, LLC, Butera Properties II, LLC,
Butera Gateway Center, LLC, Butera Girard Business Center, LLC, Butera Girard
Place, LLC, Butera Goldenrod Lane, LLC, and Butera Gateway West II, LLC, are
referred to herein collectively as the “LLCs.” TRB, Inc., Woodstone and Thirty
Pat are referred to herein collectively as the “Patrick Center Sellers”.
Butera Properties, LLC, Butera Properties Members, Butera Properties II, LLC,
Butera Properties II Members, Butera Gateway Center, LLC, Butera Gateway Center
Members, Butera Girard Business Center LLC, Butera Girard Business Center
Members, Butera Girard Place, LLC, Butera Girard Place Members, Butera
Goldenrod Lane, LLC, Butera Goldenrod Lane Members, Butera Gateway West II,
LLC, Butera Gateway West II Members, TRB, Inc., and the Patrick Center Sellers,
are referred to herein collectively as “Seller” or “Seller Parties.”)




RECITALS:




     R-1. Butera Properties, LLC is the owner of (i) the Deer Park Property
located in



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Baltimore County, Maryland, as legally and more particularly described on
Exhibit A-1 attached hereto; (ii) the Gateway West Property located in
Carroll County, Maryland, as legally
and more particularly described on Exhibit A-2 attached hereto; (iii)
the Wedgewood Property located in Frederick County, Maryland, as legally and
more particularly described on Exhibit A-3 attached hereto; (iv) the
Georgia Pacific Boulevard Property located in Frederick County, Maryland, as
legally and more particularly described on Exhibit A-4 attached hereto;
(v) the Radtech Property located in Frederick County, Maryland, as legally and
more particularly described on Exhibit A-5 attached hereto; and (vi) the
Woodlands Property located in Prince George’s County, Maryland, as legally and
more particularly described on Exhibit A-6 attached hereto.




     R-2. FP LLC Buyers wish to purchase, and the Butera Properties Members
wish to sell, all of the membership interests in Butera Properties, LLC on the
terms and conditions set forth herein.



     R-3. Butera Properties II, LLC is the owner of (i) the Old Courthouse
Square Property located in Berkeley County, West Virginia, as legally and more
particularly described on Exhibit A-7 attached hereto; and (ii) the
Lindbergh Property located in Montgomery County, Maryland, as legally and more
particularly described on Exhibit A-8 attached hereto.



     R-4. FP LLC Buyers wish to purchase, and the Butera Properties II Members
wish to sell, all of the membership interests in Butera Properties II, LLC on
the terms and conditions set forth herein.



     R-5. Butera Gateway Center, LLC is the owner of the Gateway Center
Property located in Montgomery County, Maryland, as legally and more
particularly described on Exhibit A-9 attached hereto.



     R-6. FP LLC Buyers wish to purchase, and the Butera Gateway Center Members
wish to sell, all of the membership interests in Butera Gateway Center, LLC on
the terms and conditions set forth herein.



     R-7. Butera Girard Business Center, LLC is the owner of the Girard
Business Center Property located in Montgomery County, Maryland, as legally and
more particularly described on Exhibit A-10 attached hereto.



     R-8. FP LLC Buyers wish to purchase, and the Butera Girard Business Center
Members wish to sell, all of the membership interests in Butera Girard Business
Center, LLC on the terms and conditions set forth herein.



     R-9. Butera Girard Place, LLC is the owner of the Girard Place Property
located in Montgomery County, Maryland, as legally and more particularly
described on Exhibit A-11 attached hereto.



     R-10. FP LLC Buyers wish to purchase, and the Butera Girard Place Members
wish to sell, all of the membership interests in Butera Girard Place, LLC on
the terms and conditions set forth herein.



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     R-11. Butera Goldenrod Lane, LLC is the owner of the Goldenrod Lane
Property
located in Montgomery County, Maryland, as legally and more particularly
described on Exhibit A-12 attached hereto.



     R-12. FP LLC Buyers wish to purchase, and the Butera Goldenrod Lane
Members wish to sell, all of the membership interests in Butera Goldenrod Lane,
LLC on the terms and conditions set forth herein.



     R-13. Butera Gateway West II, LLC is the owner of the Butera Gateway West
II Property located in Carroll County, Maryland, as legally and more
particularly described on Exhibit A-13 attached hereto.



     R-14. FP LLC Buyers wish to purchase, and the Butera Gateway West II
Members wish to sell, all of the membership interests in Butera Gateway West
II, LLC on the terms and conditions set forth herein.



     R-15. TRB, Inc. is the owner of the Westpark Property located in Frederick
County, Maryland, as legally and more particularly described on Exhibit
A-14 attached hereto.



     R-16. FP Westpark wishes to purchase, and TRB, Inc. wishes to sell, the
Westpark Property on the terms and conditions set forth herein.



     R-17. The Patrick Center Sellers are the owners of the Patrick Center
Property located in Frederick County, Maryland, as legally and more
particularly described on Exhibit A-15 attached hereto.



     R-18. FP Patrick Center wishes to purchase, and the Patrick Center
Sellers wish to sell, the Patrick Center Property on the terms and conditions
set forth herein.



     NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, and good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Seller Parties and Buyer
hereby agree as follows:



     Article 1 of this Agreement consists of definitions for certain of the
defined terms that are used throughout this Agreement.



     Article 2 of this Agreement constitutes instructions to “Escrow Agent” (as
such term is defined below), as well as agreements between Buyer and the Seller
Parties.



     Article 3 of this Agreement consists of further agreements between Buyer
and the Seller Parties, with which Escrow Agent need not be concerned (except
as otherwise directed in Article 2). Escrow Agent may rely entirely on the
instructions contained in Article 2; however, as between Buyer and the Seller
Parties, the provisions of Article 3 shall control if there is any
inconsistency between those provisions and the instructions in Article 2.



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ARTICLE 1 DEFINITIONS




     The following terms, wherever used in this Agreement, shall have the
respective meanings set forth below:



     1.1. Actual Knowledge. “Actual Knowledge” means the actual (and
not the constructive) current knowledge of the person or entity making a
representation or warranty in this Agreement to his or its “Actual Knowledge”,
and does not imply any inspection, examination or other inquiry undertaken by
such person or entity to determine the accuracy of any representation, warranty
or other statement made to such person’s or entity’s “Actual Knowledge” in this
Agreement or in any of Seller’s Closing Documents or Buyer’s Closing Documents,
as applicable.



     1.2. Agreement. “Agreement” has the meaning set forth in the first
paragraph of the preamble.



     1.3. Assignment of Membership Interests. “Assignment of Membership
Interests” means an assignment of membership interests in form and substance
reasonably acceptable to the Parties to be executed and delivered by each of
the Selling Members at Closing, pursuant to which, each Selling Member shall
assign and transfer to Buyer the applicable Membership Interest in accordance
with the terms and conditions contained herein. The Assignment of Membership
Interests shall contain an express warranty from each Selling Member that such
Selling Member is the sole owner and holder of the entire legal and beneficial
interest in and to the Membership Interest transferred thereby, that the
Membership Interest is free and clear of any liens, pledges, claims or
encumbrances, that the Membership Interest has not been previously transferred,
conveyed or assigned, that such Selling Member has granted no options or rights
to purchase the Membership Interest, that no person or entity has an option or
right to acquire such Membership Interest, and that the Selling Member has full
power and authority to make such assignment without joinder by or consent or
approval of any other party, except the Existing Lender (as hereinafter
defined). Pursuant to each Assignment of Membership Interests, Buyer shall
assume all obligations of the Selling Member that is a party thereto to the
applicable LLC arising from and after the Closing Date.



     1.4. Broker. “Broker” means Matan Realty, LLLP.



     1.5. Butera Gateway Center, LLC Membership Interests. “Butera
Gateway Center, LLC Membership Interests” means one hundred percent (100%) of
the membership interests in Butera Gateway Center, LLC, as owned by the Butera
Gateway Center Members in the percentages reflected on Exhibit B-3
attached hereto.



     1.6. Butera Gateway Center Manager. “Butera Gateway Center
Manager” means Butera Gateway Center, Inc., manager of Butera Gateway Center,
LLC.



     1.7. Butera Gateway West II, LLC Membership Interests. “Butera
Gateway West II, LLC Membership Interests” means one hundred percent (100%) of
the membership interests in Butera Gateway West II, LLC, as owned by the Butera
Gateway West II Members in the



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percentages reflected on Exhibit B-7
attached hereto.




     1.8. Butera Gateway Center II Manager. “Butera Gateway Center II
Manager” means T. Richard Butera, manager of Butera Gateway West II,
LLC.



     1.9. Butera Girard Business Center, LLC Membership Interests.
“Butera
Girard Business Center, LLC Membership Interests” means one hundred
percent (100%) of the membership interests in Butera Girard Business Center,
LLC, as owned by the Butera Girard Business Center Members in the percentages
reflected on Exhibit B-4 attached hereto.



     1.10. Butera Girard Business Center Manager. “Butera Girard
Business Center Manager” means Butera Girard Business Center, Inc., manager of
Butera Girard Business Center, LLC.



     1.11. Butera Girard Place, LLC Membership Interests. “Butera
Girard Place, LLC Membership Interests” means one hundred percent (100%) of the
membership interests in Butera Girard Place, LLC, as owned by the Butera Girard
Place Members in the percentages reflected on Exhibit B-5 attached
hereto.



     1.12. Butera Girard Place Manager. “Butera Girard Place Manager”
means Butera Girard Place, Inc., manager of Butera Girard Place, LLC.



     1.13. Butera Goldenrod Lane, LLC Membership Interests. “Butera
Goldenrod Lane, LLC Membership Interests” means one hundred percent (100%) of
the membership interests in Butera Goldenrod Lane, LLC, as owned by the Butera
Goldenrod Lane Members in the percentages reflected on Exhibit B-6
attached hereto.



     1.14. Butera Goldenrod Lane Manager. “Butera Goldenrod Lane
Manager” means Butera Goldenrod Lane, Inc., manager of Butera Goldenrod Lane,
LLC.



     1.15. Butera Properties, LLC Membership Interests. “Butera
Properties, LLC Membership Interests” means one hundred percent (100%) of the
membership interests in Butera Properties, LLC, as owned by the Butera
Properties Members in the percentages reflected on Exhibit B-1 attached
hereto.



     1.16. Butera Properties Manager. “Butera Properties Manager” means
Butera Properties, Inc., manager of Butera Properties, LLC.



     1.17. Butera Properties II, LLC Membership Interests. “Butera
Properties II, LLC Membership Interests” means one hundred percent (100%) of
the membership interests in Butera Properties II, LLC, as owned by the Butera
Properties II Members in the percentages reflected on Exhibit B-2
attached hereto.



     1.18. Butera Properties II Manager. “Butera Properties II Manager”
means Butera Properties II, Inc., manager of Butera Properties II, LLC.



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     1.19. Buyer. “Buyer” means, collectively, the FP LLC Buyers (as
defined in clause (A) of the preamble), FP Westpark (as defined in clause (H)
of the preamble), and FP Patrick Center (as defined in clause (I) of the
preamble).



     1.20. Buyer’s Knowledge. “Buyer’s Knowledge” means the Actual
Knowledge of Nicholas R. Smith, an officer of each Buyer, and does not imply
any inspection, examination or other inquiry undertaken by Buyer or said
individual to determine the accuracy of any representation, warranty or other
statement made “to Buyer’s Knowledge” in this Agreement
or in any of Buyer’s Closing Documents.



     1.21. Buyer’s Closing Documents. “Buyer’s Closing Documents” has
the meaning specified in the last sentence of Section 2.2.2.



     1.22. Closing. “Closing” means the execution and delivery by the
Seller Parties of the Seller Closing Documents and by Buyer of the Buyer
Closing Documents, as applicable, concurrently with the disbursement by the
Title Company of the Purchase Price to the Seller Parties as at a “New
York-style” closing in conformity with the terms and provisions of this
Agreement.



     1.23. Closing Date. “Closing Date” means on or before the seventh
(7th) Business Day following the Parties’ receipt of the Existing Lender
Approvals (as defined in Section 3.3.6 below), but in no event later than June
25, 2004.



     1.24. Closing Indemnity Agreement. “Closing Indemnity Agreement”
has the meaning specified in Section 3.2.1.D(xi) and Section 3.2.2. (v), and
shall also mean a separate written indemnification agreement for the applicable
Manager on behalf of the applicable LLC and for TRB, Inc. and for the Patrick
Center Sellers and for the Buyer covering the respective indemnities set forth
in Section 2.5.2 and Section 3.5.2.



     1.25. Day and Business Day. The term “day” means a calendar day,
and the term “Business Day” means any day on which commercial banks are
generally open for business in the State of Maryland. Any period of time
specified in this Agreement that would otherwise end upon a non-Business Day
shall be extended to, and shall end upon, the next following Business Day.



     1.26. Deposit. “Deposit” has the meaning specified in Section
2.1.1.1.



     1.27. Effective Date. “Effective Date” means the last date on
which all of the Seller Parties and the Buyer have executed and delivered this
Agreement, as indicated by the later of the dates appearing next to their
respective signatures below.



     1.28. Environmental Law. “Environmental Law” shall mean any
environmental or health and safety-related law, regulation, rule, ordinance,
order or determination of any governmental or judicial authority at the
federal, state, or local level, to the extent applicable to the Properties,
including, but not limited to, the Comprehensive Response, Compensation and
Liability Act, as amended (“CERCLA”), the Resource Conservation and Recovery
Act, as



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amended (“RCRA”), the Federal Clean Water Act, as amended, the Toxic
Substances Control Act, as amended, and the Hazardous Materials Transportation
Act, as amended.




     1.29. Environmental Reports. “Environmental Reports” means,
collectively, the reports for the Properties that are identified in the
Schedule of Environmental Reports attached hereto as a part of Exhibit
M.



     1.30. Escrow Agent. “Escrow Agent” means Chicago Title Insurance
Company having an address at 19 East Fayette Street, Suite 300, Baltimore,
Maryland 21202,
Attn: Albert E. Sikorsky, III.



     1.31. Escrow. “Escrow” means the escrow established by and
pursuant to this Agreement, with Escrow Agent, as applicable, for purposes of
consummating the sale and purchase of the Membership Interests and the
Properties in accordance with this Agreement.



     1.32. Existing Title Policies. “Existing Title Policies” means,
collectively, the following:



     (a) That certain owner’s policy of title insurance for the Deer Park Real
Property (Policy No. 136-01-224353), dated March 31, 1998, issued to Butera
Properties, LLC by Philip D. Topper, Jr., LLC, as Agent for Lawyers Title
Insurance Corporation (“Deer Park Existing Title Policy”).



     (b) That certain owner’s policy of title insurance for the Gateway West
Real Property (Policy No. 136-01-002322), dated January 16, 1998, issued to
Butera Properties, LLC by Lawyers Title Insurance Corporation (“Gateway West
Existing Title Policy”).



     (c) That certain owner’s policy of title insurance for the Wedgewood Real
Property (Policy No. 136-01-224352), dated March 31, 1998, issued to Butera
Properties, LLC by Philip D. Topper, Jr., LLC, as Agent for Lawyers Title
Insurance Corporation (“Wedgewood Existing Title Policy”).



     (d) That certain owner’s policy of title insurance for the Georgia Pacific
Boulevard Real Property (Policy No. 1970457-L), dated November 17, 1997, issued
to Butera Properties, LLC by Commonwealth Land Title Insurance Company
(“Georgia Pacific Boulevard Existing Title Policy”).



     (e) That certain owner’s policy of title insurance for the Radtech Real
Property (Policy No. 136-01-002321), dated January 15, 1998, issued to Butera
Properties, LLC by Lawyers Title Insurance Corporation (“Radtech Existing Title
Policy”).



     (f) That certain owner’s policy of title insurance for the Woodlands Real
Property (Policy No. 136-01-224351), dated March 31, 1998, issued to Butera
Properties, LLC by Philip D. Topper, Jr., LLC, as Agent for Lawyers Title
Insurance Corporation (“Woodlands Existing Title Policy”).



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     (g) That certain owner’s policy of title insurance for the Old Courthouse
Square Real Property (Policy No. 136-00-771817), dated January 21, 1998, issued
to Butera Properties II, LLC by Lawyers Title Insurance Corporation (“Old
Courthouse Square Existing Title Policy”).



     (h) That certain owner’s policy of title insurance for the Lindbergh Real
Property (Policy No. 21 0288 106 00000016), dated April 24, 1998, issued to
Butera Properties II, LLC by Mark W. Kugler, Esquire, as Agent for Chicago
Title Insurance Company (“Lindbergh Existing Title Policy”).



     (i) That certain owner’s policy of title insurance for the Gateway Center
Real Property (Policy No. Z545165), dated September 28, 1998, issued to Butera
Gateway Center, LLC by Commercial Title Group, Ltd., as Agent for First American Title
Insurance Company (“Gateway Center Existing Title Policy”).



     (j) That certain owner’s policy of title insurance for the Girard Business
Center Real Property (Policy No. Z545166), dated September 23, 1998, issued to
Butera Girard Business Center, LLC by Commercial Title Group,. Ltd., as Agent
for First American Title Insurance Company (“Girard Business Center Existing
Title Policy”).



     (k) That certain owner’s policy of title insurance for the Girard Place
Real Property (Policy No. Z545164), dated September 23, 1998, issued to Butera
Girard Place, LLC by Commercial Title Group, Ltd., as Agent for First American
Title Insurance Company (“Girard Place Existing Title Policy”).



     (l) That certain owner’s policy of title insurance for the Goldenrod Lane
Real Property (Policy No. Z545163), dated September 23, 1998, issued to Butera
Goldenrod Lane, LLC by Commercial Title Group, Ltd., as Agent for First
American Title Insurance Company (“Goldenrod Lane Existing Title Policy”).



     (m) That certain owner’s policy of title insurance for the Gateway West II
Real Property (Policy No. 5312-758008), dated August 29, 2000, issued to Butera
Gateway West II, LLC by Record Title & Escrow, LLC, as Agent for Fidelity
National Title Insurance Company of New York (“Gateway West II Existing Title
Policy”).



     (n) That certain lender’s policy of title insurance for the Westpark Real
Property (Policy No. C291255), dated September 25, 1998, issued to Credit
Suisse First Boston Mortgage Capital LLC by Commercial Title Group, Ltd., as
Agent for First American Title Insurance Company (“Westpark Existing Title
Policy”).



     (o) That certain owner’s policy of title insurance for an eight percent
(8%) undivided interest in the Patrick Center Real Property (Policy No.
5312-758035), dated November 8, 2002, issued to Thirty Pat, LLC by Record Title
& Escrow, LLC, as Agent for Fidelity National Title Insurance Company of New
York (“Patrick Center Existing Title Policy”).


“Existing Title Policy” means any of the Deer Park Existing Title Policy,
the Gateway West Existing Title Policy, the Wedgewood Existing Title Policy,
the Georgia Pacific Boulevard




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Existing Title Policy, the Radtech Existing Title
Policy, the Woodlands Existing Title Policy, the Old Courthouse Square Existing
Title Policy, the Lindbergh Existing Title Policy, the Gateway Center Existing
Title Policy, the Girard Business Center Existing Title Policy, the Girard
Place Existing Title Policy, the Goldenrod Lane Existing Title Policy, the
Gateway West II Existing Title Policy, the Westpark Existing Title Policy, and
the Patrick Center Existing Title Policy, as the case may be.




     1.33. Feasibility Period. “Feasibility Period” means the period
that commenced on March 30, 2004 and that expires on May 28, 2004.



     1.34. Feasibility Period Expiration Date. “Feasibility Period
Expiration Date” means May 28, 2004.



     1.35. Hazardous Substance. “Hazardous Substance” means any
pollutant, contaminant, toxic substance, hazardous waste, hazardous material,
hazardous substance, petroleum or petroleum product, asbestos, polychlorinated
biphenyls, underground or aboveground storage tanks and the contents thereof
including, without limitation, any such materials defined in or regulated
pursuant to any Environmental Law.



     1.36. Improvements. “Improvements” means, collectively, all of the
following:



     (a) All of the buildings, improvements, fixtures, structures, utilities
and amenities on the Deer Park Land (“Deer Park Property Improvements”).



     (b) All of the buildings, improvements, fixtures, structures, utilities
and amenities on the Gateway West Land (“Gateway West Property Improvements”).



     (c) All of the buildings, improvements, fixtures, structures, utilities
and amenities on the Wedgewood Land (“Wedgewood Property Improvements”).



     (d) All of the buildings, improvements, fixtures, structures, utilities
and amenities on the Georgia Pacific Boulevard Land (“Georgia Pacific Boulevard
Property Improvements”).



     (e) All of the buildings, improvements, fixtures, structures, utilities
and amenities on the Radtech Land (“Radtech Property Improvements”).



     (f) All of the buildings, improvements, fixtures, structures, utilities
and amenities on the Woodlands Land (“Woodlands Property Improvements”).



     (g) All of the buildings, improvements, fixtures, structures, utilities
and amenities on the Old Courthouse Square Land (“Old Courthouse Square
Property Improvements”).



     (h) All of the buildings, improvements, fixtures, structures, utilities
and amenities on the Lindbergh Land (“Lindbergh Property Improvements”).



     (i) All of the buildings, improvements, fixtures, structures, utilities
and amenities on



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the Gateway Center Land (“Gateway Center Property
Improvements”).




     (j) All of the buildings, improvements, fixtures, structures, utilities
and amenities on the Girard Business Center Land (“Girard Business Center
Property Improvements”).



     (k) All of the buildings, improvements, fixtures, structures, utilities
and amenities on the Girard Place Land (“Girard Place Property Improvements”).



     (l) All of the buildings, improvements, fixtures, structures, utilities
and amenities on the Goldenrod Lane Land (“Goldenrod Lane Property
Improvements”).



     (m) All of the buildings, improvements, fixtures, structures, utilities
and amenities on the Gateway West II Land (“Gateway West II Property
Improvements”).



     (n) All of the buildings, improvements, fixtures, structures, utilities
and amenities on the Westpark Land (“Westpark Property Improvements”).



     (o) All of the buildings, improvements, fixtures, structures, utilities
and amenities on the Patrick Center Land (“Patrick Center Property
Improvements”).



     1.37. Land. “Land” means, collectively, all of the following:



     (a) That certain parcel of land that is legally and more particularly
described on Exhibit A-1 attached hereto, together with all easements,
benefits, rights, privileges and other rights appurtenant thereto (“Deer Park
Land”).



     (b) That certain parcel of land that is legally and more particularly
described on Exhibit A-2 attached hereto, together with all easements,
benefits, rights, privileges and other rights appurtenant thereto (“Gateway
West Land”).



     (c) That certain parcel of land that is legally and more particularly
described on Exhibit A-3 attached hereto, together with all easements,
benefits, rights, privileges and other rights appurtenant thereto (“Wedgewood
Land”).



     (d) That certain parcel of land that is legally and more particularly
described on Exhibit A-4 attached hereto, together with all easements,
benefits, rights, privileges and other rights appurtenant thereto (“Georgia
Pacific Boulevard Land”).



     (e) That certain parcel of land that is legally and more particularly
described on Exhibit A-5 attached hereto, together with all easements,
benefits, rights, privileges and other rights appurtenant thereto (“Radtech
Land”).



     (f) That certain parcel of land that is legally and more particularly
described on Exhibit A-6 attached hereto, together with all easements,
benefits, rights, privileges and other rights appurtenant thereto (“Woodlands
Land”).



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     (g) That certain parcel of land that is legally and more particularly
described on Exhibit A-7 attached hereto, together with all easements,
benefits, rights, privileges and other rights appurtenant thereto (“Old
Courthouse Square Land”).



     (h) That certain parcel of land that is legally and more particularly
described on Exhibit A-8 attached hereto, together with all easements,
benefits, rights, privileges and other rights appurtenant thereto (“Lindbergh
Land”).



     (i) Those certain parcels of land that are legally and more particularly
described on Exhibit A-9 attached hereto, together with all easements,
benefits, rights, privileges and other rights appurtenant thereto (“Gateway
Center Land”).



     (j) Those certain parcels of land that are legally and more particularly
described on Exhibit A-10 attached hereto, together with all easements,
benefits, rights, privileges and other rights appurtenant thereto (“Girard
Business Center Land”).



     (k) Those certain parcels of land that are legally and more particularly
described on Exhibit A-11 attached hereto, together with all easements,
benefits, rights, privileges and other rights appurtenant thereto (“Girard
Place Land”).



     (l) That certain parcel of land that is legally and more particularly
described on Exhibit A-12 attached hereto, together with all easements,
benefits, rights, privileges and other rights appurtenant thereto (“Goldenrod
Lane Land”.)



     (m) That certain parcel of land that is legally and more particularly
described on Exhibit A-13 attached hereto, together with all easements,
benefits, rights, privileges and other rights appurtenant thereto (“Gateway
West II Land”.)



     (n) That certain parcel of land that is legally and more particularly
described on Exhibit A-14 attached hereto, together with all easements,
benefits, rights, privileges and other rights appurtenant thereto (“Westpark
Land”).



     (o) That certain parcel of land that is legally and more particularly
described on Exhibit A-15 attached hereto, together with all easements,
benefits, rights, privileges and other rights appurtenant thereto (“Patrick
Center Land”).



     1.38. Laws. “Laws” means any and all constitutions, statutes,
ordinances, rules, regulations, orders, rulings or decrees of the United
States, or of the state, county, city, other municipality, political
subdivision, or governmental or quasi-governmental authority having
jurisdiction or otherwise operating where the Properties are located, or any
agency, division, district, court or other authority thereof.



     1.39. Lease. “Lease” means any of the following:



     (a) “Deer Park Property Lease” means (1) any of the leases of commercial
space within the Deer Park Property Improvements identified in the Schedule of
Leases (Rent Roll)



12









 




attached hereto as Exhibit D-1; and (2) any lease of space
within the Deer Park Property Improvements entered into after the Effective
Date subject to and in conformity with the provisions set forth in Section
3.2.1.A(xvii). “Deer Park Property Leases” mean, collectively, every Deer Park
Property Lease.




     (b) “Gateway West Property Lease” means (1) any of the leases of
commercial space within the Gateway West Property Improvements identified in
the Schedule of Leases (Rent Roll) attached hereto as Exhibit D-2; and (2) any
lease of space within the Gateway West Property Improvements entered into after
the Effective Date subject to and in conformity with the provisions set forth
in Section 3.2.1.A(xvii). “Gateway West Property Leases” mean, collectively,
every Gateway West Property Lease.



     (c) “Wedgewood Property Lease” means (1) any of the leases of commercial
space within the Wedgewood Property Improvements identified in the Schedule of
Leases (Rent Roll) attached hereto as Exhibit D-3; and (2) any lease of space
within the Wedgewood Property Improvements entered into after the Effective
Date subject to and in conformity with the provisions set forth in Section
3.2.1.A(xvii). “Wedgewood Property Leases” mean, collectively, every Wedgewood
Property Lease.



     (d) “Georgia Pacific Boulevard Property Lease” means (1) any of the leases
of commercial space within the Georgia Pacific Boulevard Property Improvements
identified in the Schedule of Leases (Rent Roll) attached hereto as Exhibit
D-4; and (2) any lease of space within the Georgia Pacific Boulevard Property
Improvements entered into after the Effective Date subject to and in conformity
with the provisions set forth in Section 3.2.1.A(xvii). “Georgia Pacific
Boulevard Property Leases” mean, collectively, every Georgia Pacific Boulevard
Property Lease.



     (e) “Radtech Property Lease” means (1) any of the leases of commercial
space within the Radtech Property Improvements identified in the Schedule of
Leases (Rent Roll) attached hereto as Exhibit D-5; and (2) any lease of space
within the Radtech Property Improvements entered into after the Effective Date
subject to and in conformity with the provisions set forth in Section
3.2.1.A(xvii). “Radtech Property Leases” mean, collectively, every Radtech
Property Lease.



     (f) “Woodlands Property Lease” means (1) any of the leases of commercial
space within the Woodlands Property Improvements identified in the Schedule of
Leases (Rent Roll) attached hereto as Exhibit D-6; and (2) any lease of space
within the Woodlands Property Improvements entered into after the Effective
Date subject to and in conformity with the provisions set forth in Section
3.2.1.A(xvii). “Woodlands Property Leases” mean, collectively, every Woodlands
Property Lease.



     (g) “Old Courthouse Square Property Lease” means (1) any of the leases of
commercial space within the Old Courthouse Square Property Improvements
identified in the Schedule of Leases (Rent Roll) attached hereto as Exhibit
D-7; and (2) any lease of space within the Old Courthouse Square Property
Improvements entered into after the Effective Date subject to and in conformity
with the provisions set forth in Section 3.2.1.A(xvii). “Old Courthouse



13









 




Square
Property Leases” mean, collectively, every Old Courthouse Square Property
Lease.




     (h) “Lindbergh Property Lease” means (1) any of the leases of commercial
space within the Lindbergh Property Improvements identified in the Schedule of
Leases (Rent Roll) attached hereto as Exhibit D-8; and (2) any lease of space
within the Lindbergh Property Improvements entered into after the Effective
Date subject to and in conformity with the provisions set forth in Section
3.2.1.A(xvii). “Lindbergh Property Leases” mean, collectively, every Lindbergh
Property Lease.



     (i) “Gateway Center Property Lease” means (1) any of the leases of
commercial space within the Gateway Center Property Improvements identified in
the Schedule of Leases (Rent Roll) attached hereto as Exhibit D-9; and (2) any
lease of space within the Gateway Center Property Improvements entered into
after the Effective Date subject to and in conformity with the provisions set
forth in Section 3.2.1.A(xvii). “Gateway Center Property Leases” mean,
collectively, every Gateway Center Property Lease.



     (j) “Girard Business Center Property Lease” means (1) any of the leases of
commercial space within the Girard Business Center Property Improvements
identified in the Schedule of Leases (Rent Roll) attached hereto as Exhibit
D-10; and (2) any lease of space within the Girard Business Center Property
Improvements entered into after the Effective Date
subject to and in conformity with the provisions set forth in Section
3.2.1.A(xvii). “Girard Business Center Property Leases” mean, collectively,
every Girard Business Center Property Lease.



     (k) “Girard Place Property Lease. “Girard Place Property Lease” means (1)
any of the leases of commercial space within the Girard Place Property
Improvements identified in the Schedule of Leases (Rent Roll) attached hereto
as Exhibit D-11; and (2) any lease of space within the Girard Place Property
Improvements entered into after the Effective Date subject to and in conformity
with the provisions set forth in Section 3.2.1.A(xvii). “Girard Place Property
Leases” mean, collectively, every Girard Place Property Lease.



     (l) “Goldenrod Lane Property Lease” means (1) any of the leases of
commercial space within the Goldenrod Lane Property Improvements identified in
the Schedule of Leases (Rent Roll) attached hereto as Exhibit D-12; and (2) any
lease of space within the Goldenrod Lane Property Improvements entered into
after the Effective Date subject to and in conformity with the provisions set
forth in Section 3.2.1.A(xvii). “Goldenrod Lane Property Leases” mean,
collectively, every Goldenrod Lane Property Lease.



     (m) “Gateway West II Property Lease” means (1) any of the leases of
commercial space within the Gateway West II Property Improvements identified
in the Schedule of Leases (Rent Roll) attached hereto as Exhibit D-13; and (2)
any lease of space within the Gateway West II Property Improvements entered
into after the Effective Date subject to and in conformity with the provisions
set forth in Section 3.2.1.A(xvii). “Gateway West II Property Leases” mean,
collectively, every Gateway West II Property Lease.



     (n) “Westpark Property Lease” means (1) any of the leases of commercial
space



14









 




within the Westpark Property Improvements identified in the Schedule of
Leases (Rent Roll) attached hereto as Exhibit D-14; and (2) any lease of space
within the Westpark Property Improvements entered into after the Effective Date
subject to and in conformity with the provisions set forth in Section
3.2.1.B(xvii). “Westpark Property Leases” mean, collectively, every Westpark
Property Lease.




     (o) “Patrick Center Property Lease” means (1) any of the leases of
commercial space within the Patrick Center Property Improvements identified in
the Schedule of Leases (Rent Roll) attached hereto as Exhibit D-15; and (2) any
lease of space within the Patrick Center Property Improvements entered into
after the Effective Date subject to and in conformity with the provisions set
forth in Section 3.2.1.C(xvii). “Patrick Center Property Leases” mean,
collectively, every Patrick Center Property Lease.


“Leases” mean, collectively, every Lease.




     1.40. LLCs. “LLCs” has the meaning set forth in the last paragraph
of the preamble, and “LLC” means any of the LLCs.



     1.41. LLC Instruments. “LLC Instruments” has the meaning specified
in Section 3.2.1.D(ii).



     1.42. LLC Instrument Amendments. “LLC Instrument Amendments” means
the amendments to the LLC Instruments in form and substance reasonably
acceptable to the Parties to be executed and delivered by each of the Selling
Members and the FP LLC Buyers at Closing, pursuant to which the LLC Instruments
shall be amended to reflect the transfer and conveyance of the LLC Interests,
the withdrawal from each of the LLCs by each of the Selling Members and the
admission to the LLC of the FP LLC Buyers in accordance with the terms and
conditions contained herein. To the extent required, the LLC Instrument
Amendments shall be in proper form for recording among the applicable records
of the MSDAT.



     1.43. Membership Interests. “Membership Interests” means,
collectively, one hundred percent (100%) of the membership interests in each of
the LLCs.



     1.44. Parties and Party. “Parties” means, collectively, the Buyer
and the Seller Parties and “Party” means any of the Buyer or the Seller
Parties, as the case may be.



     1.45. Permit. “Permit” means any permit, certificate, license or
other form of authorization or approval issued by a government agency or
authority and legally required for the occupancy and use of the applicable
Property or any component thereof (including, without limitation, any
certificates of occupancy with respect to the improvements on any Property) in
Seller’s possession on Effective Date. “Permits” means, collectively, every
Permit.



     1.46. Permitted Exceptions. “Permitted Exceptions” means,
collectively, all of the following:



     (a) “Deer Park Property Permitted Exceptions” means with respect to the
Deer Park



15









 




Real Property (i) liens for all real property taxes and general and
special assessments for the current year that are not yet due and payable, (ii)
liens or encumbrances arising out of any activity of Buyer with respect to the
Deer Park Real Property, (iii) the Deer Park Property Leases and the lien
securing the Existing Financing, (iv) title exceptions reflected in the Deer
Park Title Commitment and matters reflected on the Deer Park Survey as updated
by a Buyer’s Survey Update, if applicable, that are not objected to by Buyer or
are otherwise deemed to be “Deer Park Property Permitted Exceptions” pursuant
to the title review process set forth in Section 2.3.2, expressly including all
standard “printed form” exceptions and exclusions from coverage customarily
included within the form of a policy for owner’s title insurance.
Notwithstanding anything to the contrary set forth in this Agreement, the term
Deer Park Property Permitted Exceptions expressly excludes any liens, monetary
encumbrances or judgments affecting title to the Deer Park Property, all of
which, subject to the conditions and limitations set forth in Section 2.3.4,
shall be released of record by Butera Properties, LLC at its sole cost and
expense on or before Closing pursuant to Section 2.3.4, except for the lien
securing the Existing Financing and except for any liens or encumbrances
referenced in clause (ii) above.




     (b) “Gateway West Property Permitted Exceptions” means with respect to the
Gateway West Real Property (i) liens for all real property taxes and general
and special assessments for the current year that are not yet due and payable,
(ii) liens or encumbrances arising out of any activity of Buyer with respect to
the Gateway West Real Property, (iii) the Gateway West Property Leases and the
lien securing the Existing Financing, (iv) title exceptions reflected in the
Gateway West Title Commitment and matters reflected on the Gateway West Survey
as updated by a Buyer’s Survey Update, if applicable, that are not objected to
by Buyer or are otherwise deemed to be “Gateway West Property Permitted
Exceptions” pursuant to the title review process set forth in Section 2.3.2, expressly including all
standard “printed form” exceptions and exclusions from coverage customarily
included within the form of a policy for owner’s title insurance.
Notwithstanding anything to the contrary set forth in this Agreement, the term
Gateway West Property Permitted Exceptions expressly excludes any liens,
monetary encumbrances or judgments affecting title to the Gateway West
Property, all of which, subject to the conditions and limitations set forth in
Section 2.3.4, shall be released of record by Butera Properties, LLC at its
sole cost and expense on or before Closing pursuant to Section 2.3.4, except
for the lien securing the Existing Financing and except for any liens or
encumbrances referenced in clause (ii) above.



     (c) “Wedgewood Property Permitted Exceptions” means with respect to the
Wedgewood Real Property (i) liens for all real property taxes and general and
special assessments for the current year that are not yet due and payable, (ii)
liens or encumbrances arising out of any activity of Buyer with respect to the
Wedgewood Real Property, (iii) the Wedgewood Property Leases and the lien
securing the Existing Financing, (iv) title exceptions reflected in the
Wedgewood Title Commitment and matters reflected on the Wedgewood Survey as
updated by a Buyer’s Survey Update, if applicable, that are not objected to by
Buyer or are otherwise deemed to be “Wedgewood Property Permitted Exceptions”
pursuant to the title review process set forth in Section 2.3.2, expressly
including all standard “printed form” exceptions and exclusions from coverage
customarily included within the form of a policy for owner’s title insurance.
Notwithstanding anything to the contrary set forth in this Agreement, the term
Wedgewood Property Permitted Exceptions expressly excludes any liens, monetary



16









 




encumbrances or judgments affecting title to the Wedgewood Property, all of
which, subject to the conditions and limitations set forth in Section 2.3.4,
shall be released of record by Butera Properties, LLC at its sole cost and
expense on or before Closing pursuant to Section 2.3.4, except for the lien
securing the Existing Financing and except for any liens or encumbrances
referenced in clause (ii) above.




     (d) “Georgia Pacific Boulevard Property Permitted Exceptions” means with
respect to the Georgia Pacific Boulevard Real Property (i) liens for all real
property taxes and general and special assessments for the current year that
are not yet due and payable, (ii) liens or encumbrances arising out of any
activity of Buyer with respect to the Georgia Pacific Boulevard Real Property,
(iii) the Georgia Pacific Boulevard Property Leases and the lien securing the
Existing Financing, (iv) title exceptions reflected in the Georgia Pacific
Boulevard Title Commitment and matters reflected on the Georgia Pacific
Boulevard Survey as updated by a Buyer’s Survey Update, if applicable, that are
not objected to by Buyer or are otherwise deemed to be “Georgia Pacific
Boulevard Property Permitted Exceptions” pursuant to the title review process
set forth in Section 2.3.2, expressly including all standard “printed form”
exceptions and exclusions from coverage customarily included within the form of
a policy for owner’s title insurance. Notwithstanding anything to the contrary
set forth in this Agreement, the term Georgia Pacific Boulevard Property
Permitted Exceptions expressly excludes any liens, monetary encumbrances or
judgments affecting title to the Georgia Pacific Boulevard Property, all of
which, subject to the conditions and limitations set forth in Section 2.3.4,
shall be released of record by Butera Properties, LLC at its sole cost and
expense on or before Closing pursuant to Section 2.3.4, except for the lien
securing the Existing Financing and except for any liens or encumbrances
referenced in clause (ii) above.



     (e) “Radtech Property Permitted Exceptions” means with respect to the
Radtech Real Property (i) liens for all real property taxes and general and special
assessments for the current year that are not yet due and payable, (ii) liens
or encumbrances arising out of any activity of Buyer with respect to the
Radtech Real Property, (iii) the Radtech Property Leases and the lien securing
the Existing Financing, (iv) title exceptions reflected in the Radtech Title
Commitment and matters reflected on the Radtech Survey as updated by a Buyer’s
Survey Update, if applicable, that are not objected to by Buyer or are
otherwise deemed to be “Radtech Property Permitted Exceptions” pursuant to the
title review process set forth in Section 2.3.2, expressly including all
standard “printed form” exceptions and exclusions from coverage customarily
included within the form of a policy for owner’s title insurance.
Notwithstanding anything to the contrary set forth in this Agreement, the term
Radtech Property Permitted Exceptions expressly excludes any liens, monetary
encumbrances or judgments affecting title to the Radtech Property, all of
which, subject to the conditions and limitations set forth in Section 2.3.4,
shall be released of record by Butera Properties, LLC at its sole cost and
expense on or before Closing pursuant to Section 2.3.4, except for the lien
securing the Existing Financing and except for any liens or encumbrances
referenced in clause (ii) above.



     (f) “Woodlands Property Permitted Exceptions” means with respect to the
Woodlands Real Property (i) liens for all real property taxes and general and
special assessments for the current year that are not yet due and payable, (ii)
liens or encumbrances arising out of any activity of Buyer with respect to the
Woodlands Real Property, (iii) the Woodlands Property



17









 




Leases and the lien
securing the Existing Financing, (iv) title exceptions reflected in the
Woodlands Title Commitment and matters reflected on the Woodlands Survey as
updated by a Buyer’s Survey Update, if applicable, that are not objected to by
Buyer or are otherwise deemed to be “Woodlands Property Permitted Exceptions”
pursuant to the title review process set forth in Section 2.3.2, expressly
including all standard “printed form” exceptions and exclusions from coverage
customarily included within the form of a policy for owner’s title insurance.
Notwithstanding anything to the contrary set forth in this Agreement, the term
Woodlands Property Permitted Exceptions expressly excludes any liens, monetary
encumbrances or judgments affecting title to the Woodlands Property, all of
which, subject to the conditions and limitations set forth in Section 2.3.4,
shall be released of record by Butera Properties, LLC at its sole cost and
expense on or before Closing pursuant to Section 2.3.4, except for the lien
securing the Existing Financing and except for any liens or encumbrances
referenced in clause (ii) above.




     (g) “Old Courthouse Square Property Permitted Exceptions” means with
respect to the Old Courthouse Square Real Property (i) liens for all real
property taxes and general and special assessments for the current year that
are not yet due and payable, (ii) liens or encumbrances arising out of any
activity of Buyer with respect to the Old Courthouse Square Real Property,
(iii) the Old Courthouse Square Property Leases and the lien securing the
Existing Financing, (iv) title exceptions reflected in the Old Courthouse
Square Title Commitment and matters reflected on the Old Courthouse Square
Survey as updated by a Buyer’s Survey Update, if applicable, that are not
objected to by Buyer or are otherwise deemed to be “Old Courthouse Square
Property Permitted Exceptions” pursuant to the title review process set forth
in Section 2.3.2, expressly including all standard “printed form” exceptions
and exclusions from coverage customarily included within the form of a policy
for owner’s title insurance. Notwithstanding anything to the contrary set
forth in this Agreement, the term Old Courthouse Square Property Permitted
Exceptions expressly excludes any liens, monetary encumbrances or judgments
affecting title to the Old Courthouse Square Property, all of which, subject to
the conditions and limitations set forth in Section 2.3.4, shall be released of
record by Butera Properties II, LLC at its sole cost and expense on or before Closing pursuant to Section 2.3.4,
except for the lien securing the Existing Financing and except for any liens or
encumbrances referenced in clause (ii) above.



     (h) “Lindbergh Property Permitted Exceptions” means with respect to the
Lindbergh Real Property (i) liens for all real property taxes and general and
special assessments for the current year that are not yet due and payable, (ii)
liens or encumbrances arising out of any activity of Buyer with respect to the
Lindbergh Real Property, (iii) the Lindbergh Property Leases and the lien
securing the Existing Financing, (iv) title exceptions reflected in the
Lindbergh Title Commitment and matters reflected on the Lindbergh Survey as
updated by a Buyer’s Survey Update, if applicable, that are not objected to by
Buyer or are otherwise deemed to be “Lindbergh Property Permitted Exceptions”
pursuant to the title review process set forth in Section 2.3.2, expressly
including all standard “printed form” exceptions and exclusions from coverage
customarily included within the form of a policy for owner’s title insurance.
Notwithstanding anything to the contrary set forth in this Agreement, the term
Lindbergh Property Permitted Exceptions expressly excludes any liens, monetary
encumbrances or judgments affecting title to the Lindbergh Property, all of
which, subject to the conditions and limitations set forth in Section 2.3.4,
shall be released of record by Butera Properties II, LLC at



18









 




its sole cost and
expense on or before Closing pursuant to Section 2.3.4, except for the lien
securing the Existing Financing and except for any liens or encumbrances
referenced in clause (ii) above.




     (i) “Gateway Center Property Permitted Exceptions” means with respect to
the Gateway Center Real Property (i) liens for all real property taxes and
general and special assessments for the current year that are not yet due and
payable, (ii) liens or encumbrances arising out of any activity of Buyer with
respect to the Gateway Center Real Property, (iii) the Gateway Center Property
Leases and the lien securing the Existing Financing, (iv) title exceptions
reflected in the Gateway Center Title Commitment and matters reflected on the
Gateway Center Survey as updated by a Buyer’s Survey Update, if applicable,
that are not objected to by Buyer or are otherwise deemed to be “Gateway Center
Property Permitted Exceptions” pursuant to the title review process set forth
in Section 2.3.2, expressly including all standard “printed form” exceptions
and exclusions from coverage customarily included within the form of a policy
for owner’s title insurance. Notwithstanding anything to the contrary set
forth in this Agreement, the term Gateway Center Property Permitted Exceptions
expressly excludes any liens, monetary encumbrances or judgments affecting
title to the Gateway Center Property, all of which, subject to the conditions
and limitations set forth in Section 2.3.4, shall be released of record by
Butera Gateway Center, LLC at its sole cost and expense on or before Closing
pursuant to Section 2.3.4, except for the lien securing the Existing Financing
and except for any liens or encumbrances referenced in clause (ii) above.



     (j) “Girard Business Center Property Permitted Exceptions” means with
respect to the Girard Business Center Real Property (i) liens for all real
property taxes and general and special assessments for the current year that
are not yet due and payable, (ii) liens or encumbrances arising out of any
activity of Buyer with respect to the Girard Business Center Real Property,
(iii) the Girard Business Center Property Leases and the lien securing the
Existing Financing, (iv) title exceptions reflected in the Girard Business
Center Title Commitment and matters reflected on the Girard Business Center
Survey as updated by a Buyer’s Survey Update, if applicable, that are not
objected to by Buyer or are otherwise deemed to be “Girard Business
Center Property Permitted Exceptions” pursuant to the title review process
set forth in Section 2.3.2, expressly including all standard “printed form”
exceptions and exclusions from coverage customarily included within the form of
a policy for owner’s title insurance. Notwithstanding anything to the contrary
set forth in this Agreement, the term Girard Business Center Property Permitted
Exceptions expressly excludes any liens, monetary encumbrances or judgments
affecting title to the Girard Business Center Property, all of which, subject
to the conditions and limitations set forth in Section 2.3.4, shall be released
of record by Butera Girard Business Center, LLC at its sole cost and expense on
or before Closing pursuant to Section 2.3.4, except for the lien securing the
Existing Financing and except for any liens or encumbrances referenced in
clause (ii) above.



     (k) “Girard Place Property Permitted Exceptions” means with respect to the
Girard Place Real Property (i) liens for all real property taxes and general
and special assessments for the current year that are not yet due and payable,
(ii) liens or encumbrances arising out of any activity of Buyer with respect to
the Girard Place Real Property, (iii) the Girard Place Property Leases and the
lien securing the Existing Financing, (iv) title exceptions reflected in the
Girard



19









 




Place Title Commitment and matters reflected on the Girard Place Survey
as updated by a Buyer’s Survey Update, if applicable, that are not objected to
by Buyer or are otherwise deemed to be “Girard Place Property Permitted
Exceptions” pursuant to the title review process set forth in Section 2.3.2,
expressly including all standard “printed form” exceptions and exclusions from
coverage customarily included within the form of a policy for owner’s title
insurance. Notwithstanding anything to the contrary set forth in this
Agreement, the term Girard Place Property Permitted Exceptions expressly
excludes any liens, monetary encumbrances or judgments affecting title to the
Girard Place Property, all of which, subject to the conditions and limitations
set forth in Section 2.3.4, shall be released of record by Butera Girard Place,
LLC at its sole cost and expense on or before Closing pursuant to Section
2.3.4, except for the lien securing the Existing Financing and except for any
liens or encumbrances referenced in clause (ii) above.




     (l) “Goldenrod Lane Property Permitted Exceptions” means with respect to
the Goldenrod Lane Real Property (i) liens for all real property taxes and
general and special assessments for the current year that are not yet due and
payable, (ii) liens or encumbrances arising out of any activity of Buyer with
respect to the Goldenrod Lane Real Property, (iii) the Goldenrod Lane Property
Leases and the lien securing the Existing Financing, (iv) title exceptions
reflected in the Goldenrod Lane Title Commitment and matters reflected on the
Goldenrod Lane Survey as updated by a Buyer’s Survey Update, if applicable,
that are not objected to by Buyer or are otherwise deemed to be “Goldenrod Lane
Property Permitted Exceptions” pursuant to the title review process set forth
in Section 2.3.2, expressly including all standard “printed form” exceptions
and exclusions from coverage customarily included within the form of a policy
for owner’s title insurance. Notwithstanding anything to the contrary set
forth in this Agreement, the term Goldenrod Lane Property Permitted Exceptions
expressly excludes any liens, monetary encumbrances or judgments affecting
title to the Goldenrod Lane Property, all of which, subject to the conditions
and limitations set forth in Section 2.3.4, shall be released of record by
Butera Goldenrod Lane, LLC at its sole cost and expense on or before Closing
pursuant to Section 2.3.4, except for the lien securing the Existing Financing
and except for any liens or encumbrances referenced in clause (ii) above.



     (m) “Gateway West II Property Permitted Exceptions” means with respect to
the Gateway West II Real Property (i) liens for all real property taxes and
general and special assessments for the current year that are not yet due and
payable, (ii) liens or encumbrances arising out of any activity of Buyer with
respect to the Gateway West II Real Property, (iii) the Gateway West II
Property Leases, (iv) title exceptions reflected in the Gateway West II Title
Commitment and matters reflected on the Gateway West II Survey as updated by a
Buyer’s Survey Update, if applicable, that are not objected to by Buyer or are
otherwise deemed to be “Gateway West II Property Permitted Exceptions” pursuant
to the title review process set forth in Section 2.3.2, expressly including all
standard “printed form” exceptions and exclusions from coverage customarily
included within the form of a policy for owner’s title insurance.
Notwithstanding anything to the contrary set forth in this Agreement, the term
Gateway West II Property Permitted Exceptions expressly excludes any liens,
monetary encumbrances or judgments affecting title to the Gateway West II
Property, all of which, subject to the conditions and limitations set forth in
Section 2.3.4, shall be released of record by Butera Gateway West II, LLC at
its sole cost and expense on or before Closing pursuant to Section 2.3.4,
except for any



20









 




liens or encumbrances referenced in clause (ii) above.




     (n) “Westpark Property Permitted Exceptions” means with respect to the
Westpark Real Property (i) liens for all real property taxes and general and
special assessments for the current year that are not yet due and payable, (ii)
liens or encumbrances arising out of any activity of Buyer with respect to the
Westpark Real Property, (iii) the Westpark Property Leases and the lien
securing the Existing Financing, (iv) title exceptions reflected in the
Westpark Title Commitment and matters reflected on the Westpark Survey as
updated by a Buyer’s Survey Update, if applicable, that are not objected to by
Buyer or are otherwise deemed to be “Westpark Property Permitted Exceptions”
pursuant to the title review process set forth in Section 2.3.2, expressly
including all standard “printed form” exceptions and exclusions from coverage
customarily included within the form of a policy for owner’s title insurance.
Notwithstanding anything to the contrary set forth in this Agreement, the term
Westpark Property Permitted Exceptions expressly excludes any liens, monetary
encumbrances or judgments affecting title to the Westpark Property, all of
which, subject to the conditions and limitations set forth in Section 2.3.4,
shall be released of record by TRB, Inc. at its sole cost and expense on or
before Closing pursuant to Section 2.3.4, except for the lien securing the
Existing Financing and except for any liens or encumbrances referenced in
clause (ii) above.



     (o) “Patrick Center Property Permitted Exceptions” means with respect to
the Patrick Center Real Property (i) liens for all real property taxes and
general and special assessments for the current year that are not yet due and
payable, (ii) liens or encumbrances arising out of any activity of Buyer with
respect to the Patrick Center Real Property, (iii) the Patrick Center Property
Leases and the lien securing the Existing Financing, (iv) title exceptions
reflected in the Patrick Center Title Commitment and matters reflected on the
Patrick Center Survey as updated by a Buyer’s Survey Update, if applicable,
that are not objected to by Buyer or are otherwise deemed to be “Patrick Center
Property Permitted Exceptions” pursuant to the title review process set forth
in Section 2.3.2, expressly including all standard “printed form” exceptions
and exclusions from coverage customarily included within the form of a policy
for owner’s title insurance. Notwithstanding anything to the contrary set
forth in this Agreement, the term Patrick Center Property Permitted Exceptions
expressly excludes any liens, monetary encumbrances or judgments affecting
title to the Patrick Center Property, all of which, subject to the conditions
and limitations set forth in Section 2.3.4, shall be released of record by the
Patrick Center Sellers at its sole cost and expense on or before Closing
pursuant to Section 2.3.4, except for the lien securing the Existing Financing and except for any liens or encumbrances
referenced in clause (ii) above.


“Permitted Exception” means any of the Deer Park Property Permitted
Exceptions, the Gateway West Property Permitted Exceptions, the Wedgewood
Property Permitted Exceptions, the Georgia Pacific Boulevard Property Permitted
Exceptions, the Radtech Property Permitted Exceptions, the Woodlands Property
Permitted Exceptions, the Old Courthouse Square Property Permitted Exceptions,
the Lindbergh Property Permitted Exceptions, the Gateway Center Property
Permitted Exceptions, the Girard Business Center Property Permitted Exceptions,
the Girard Place Property Permitted Exceptions, the Goldenrod Lane Property
Permitted Exceptions, the Gateway West II Property Permitted Exceptions, the
Westpark Property Permitted Exceptions, and the Patrick Center Property
Permitted Exceptions, as the case may be.





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     1.47. Personal Property. “Personal Property” means, collectively,
all of the following:



     (a) All of the non-affixed equipment, trade fixtures, furnishings,
furniture, appliances, equipment, decorative items, inventory, supplies, tools
and other tangible personal property owned by Butera Properties, LLC and used
or held for use in operation of the Deer Park Real Property, including, without
limitation, the personal property listed on Exhibit C-1 hereto (“Deer Park
Personal Property”).



     (b) All of the non-affixed equipment, trade fixtures, furnishings,
furniture, appliances, equipment, decorative items, inventory, supplies, tools
and other tangible personal property owned by Butera Properties, LLC and used
or held for use in operation of the Gateway West Real Property, including,
without limitation, the personal property listed on Exhibit C-2 hereto
(“Gateway West Personal Property”).



     (c) All of the non-affixed equipment, trade fixtures, furnishings,
furniture, appliances, equipment, decorative items, inventory, supplies, tools
and other tangible personal property owned by Butera Properties, LLC and used
or held for use in operation of the Wedgewood Real Property, including, without
limitation, the personal property listed on Exhibit C-3 hereto (“Wedgewood
Personal Property”).



     (d) All of the non-affixed equipment, trade fixtures, furnishings,
furniture, appliances, equipment, decorative items, inventory, supplies, tools
and other tangible personal property owned by Butera Properties, LLC and used
or held for use in operation of the Georgia Pacific Boulevard Real Property,
including, without limitation, the personal property listed on Exhibit C-4
hereto (“Georgia Pacific Boulevard Personal Property”).



     (e) All of the non-affixed equipment, trade fixtures, furnishings,
furniture, appliances, equipment, decorative items, inventory, supplies, tools
and other tangible personal property owned by Butera Properties, LLC and used
or held for use in operation of the Radtech Real Property, including, without
limitation, the personal property listed on Exhibit C-5 hereto (“Radtech
Personal Property”).



     (f) All of the non-affixed equipment, trade fixtures, furnishings,
furniture, appliances, equipment, decorative items, inventory, supplies, tools
and other tangible personal property owned by Butera Properties, LLC and used
or held for use in operation of the Woodlands Real Property, including, without
limitation, the personal property listed on Exhibit C-6 hereto
(“Woodlands Personal Property”).



     (g) All of the non-affixed equipment, trade fixtures, furnishings,
furniture, appliances, equipment, decorative items, inventory, supplies, tools
and other tangible personal property owned by Butera Properties II, LLC and
used or held for use in operation of the Old Courthouse Square Real Property,
including, without limitation, the personal property listed on Exhibit
C-7 hereto (“Old Courthouse Square Personal Property”).



22









 





     (h) All of the non-affixed equipment, trade fixtures, furnishings,
furniture, appliances, equipment, decorative items, inventory, supplies, tools
and other tangible personal property owned by Butera Properties II, LLC and
used or held for use in operation of the Lindbergh Real Property, including,
without limitation, the personal property listed on Exhibit C-8 hereto
(“Lindbergh Personal Property”).



     (i) All of the non-affixed equipment, trade fixtures, furnishings,
furniture, appliances, equipment, decorative items, inventory, supplies, tools
and other tangible personal property owned by Butera Gateway Center, LLC and
used or held for use in operation of the Gateway Center Real Property,
including, without limitation, the personal property listed on Exhibit
C-9 hereto (“Gateway Center Personal Property”).



     (j) All of the non-affixed equipment, trade fixtures, furnishings,
furniture, appliances, equipment, decorative items, inventory, supplies, tools
and other tangible personal property owned by Butera Girard Business Center,
LLC and used or held for use in operation of the Girard Business Center Real
Property, including, without limitation, the personal property listed on
Exhibit C-10 hereto (“Girard Business Center Personal Property”).



     (k) All of the non-affixed equipment, trade fixtures, furnishings,
furniture, appliances, equipment, decorative items, inventory, supplies, tools
and other tangible personal property owned by Butera Girard Place, LLC and used
or held for use in operation of the Girard Place Real Property, including,
without limitation, the personal property listed on Exhibit C-11 hereto
(“Girard Place Personal Property”).



     (l) All of the non-affixed equipment, trade fixtures, furnishings,
furniture, appliances, equipment, decorative items, inventory, supplies, tools
and other tangible personal property owned by Butera Goldenrod Lane, LLC and
used or held for use in operation of the Goldenrod Lane Real Property,
including, without limitation, the personal property listed on Exhibit
C-12 hereto (“Goldenrod Lane Personal Property”).



     (m) All of the non-affixed equipment, trade fixtures, furnishings,
furniture, appliances, equipment, decorative items, inventory, supplies, tools
and other tangible personal property owned by Butera Gateway West II, LLC and
used or held for use in operation of the Gateway West II Real Property,
including, without limitation, the personal property listed on Exhibit
C-13 hereto (“Gateway West II Personal Property”).



     (n) All of the non-affixed equipment, trade fixtures, furnishings,
furniture, appliances, equipment, decorative items, inventory, supplies, tools
and other tangible personal property owned by TRB, Inc. and used or held for
use in operation of the Westpark Real Property, including, without limitation,
the personal property listed on Exhibit C-14 hereto (“Westpark Personal
Property”).



     (o) All of the non-affixed equipment, trade fixtures, furnishings,
furniture, appliances, equipment, decorative items, inventory, supplies, tools
and other tangible personal property owned by the Patrick Center Sellers and
used or held for use in operation of the Patrick Center Real Property,
including, without limitation, the personal property listed on Exhibit
C-15 hereto



23









 





(“Patrick Center Personal Property”).



“Real Property” means any of the Deer Park Real Property, the Gateway West Real
Property, the Wedgewood Real Property, the Georgia Pacific Boulevard Real
Property, the Radtech Real Property, the Woodlands Real Property, the Old
Courthouse Square Real Property, the Lindbergh Real Property, the Gateway
Center Real Property, the Girard Business Center Real Property, the Girard
Place Real Property, the Goldenrod Lane Real Property, the Gateway West II Real
Property, the Westpark Real Property, and the Patrick Center Real Property, as
the case may be.



     1.48. Plans. “Plans” means the plans and specifications for the
original construction of the applicable Improvements, together with any
subsequent material modifications thereof, to the extent such items are in the
applicable Seller’s possession on the Effective Date.



     1.49. Properties. “Properties” means, collectively, all of the
following:



     (a) “Deer Park Property” means, collectively, (i) the Deer Park Real
Property; (ii) the Deer Park Personal Property, (iii) the Deer Park Service
Contracts; (iv) all of Butera Properties, LLC’s rights in or to condemnation
awards and insurance proceeds (to the extent not applied to restoration)
relating to the Deer Park Real Property, subject to the terms set forth
herein; (v) all assignable warranties, guaranties, bonds, claims and rights, if
any, in favor of Butera Properties, LLC relating to the construction,
maintenance, operation or repair of the Deer Park Real Property or any
component thereof, if any; (vi) all of Butera Properties, LLC’s right, title
and interest in and to any assignable drawings, plans, specifications, surveys,
manuals and contracts relating to construction, maintenance and operation of
the Deer Park Real Property or the Deer Park Personal Property that are in
Butera Properties, LLC’s possession on the Effective Date; (vii) all Permits
applicable to the Deer Park Real Property; (viii) all of Butera Properties,
LLC’s interest in and under all of the Deer Park Leases including unapplied
security deposits held by Butera Properties, LLC in connection therewith, which
shall be credited against the Purchase Price payable by Buyer at Closing
hereunder, as allocated to the Deer Park Property pursuant to Exhibit P; and
(ix) all other tangible and intangible property or rights which Butera
Properties, LLC owns or in which Butera Properties, LLC has an interest in
connection with its ownership and operation of the Deer Park Real Property, to
the extent the same are assignable.



     (b) “Gateway West Property” means, collectively, (i) the Gateway West Real
Property; (ii) the Gateway West Personal Property, (iii) the Gateway West
Service Contracts; (iv) all of Butera Properties, LLC’s rights in or to
condemnation awards and insurance proceeds (to the extent not applied to
restoration) relating to the Gateway West Real Property, subject to the terms
set forth herein; (v) all assignable warranties, guaranties, bonds, claims and
rights, if any, in favor of Butera Properties, LLC relating to the
construction, maintenance, operation or repair of the Gateway West Real
Property or any component thereof, if any; (vi) all of Butera Properties, LLC’s
right, title and interest in and to any assignable drawings, plans,
specifications, surveys, manuals and contracts relating to construction,
maintenance and operation of the Gateway West Real Property or the Gateway West
Personal Property that are in Butera Properties, LLC’s possession on the Effective Date; (vii) all Permits
applicable to the Gateway West Real Property; (viii) all of Butera Properties,
LLC’s interest in and under all of the Gateway



24









 





West Leases including unapplied
security deposits held by Butera Properties, LLC in connection therewith, which
shall be credited against the Purchase Price payable by Buyer at Closing
hereunder, as allocated to the Gateway West Property pursuant to Exhibit P; and
(ix) all other tangible and intangible property or rights which Butera
Properties, LLC owns or in which Butera Properties, LLC has an interest in
connection with its ownership and operation of the Gateway West Real Property,
to the extent the same are assignable.



     (c) “Wedgewood Property” means, collectively, (i) the Wedgewood Real
Property; (ii) the Wedgewood Personal Property, (iii) the Wedgewood Service
Contracts; (iv) all of Butera Properties, LLC’s rights in or to condemnation
awards and insurance proceeds (to the extent not applied to restoration)
relating to the Wedgewood Real Property, subject to the terms set forth
herein; (v) all assignable warranties, guaranties, bonds, claims and rights, if
any, in favor of Butera Properties, LLC relating to the construction,
maintenance, operation or repair of the Wedgewood Real Property or any
component thereof, if any; (vi) all of Butera Properties, LLC’s right, title
and interest in and to any assignable drawings, plans, specifications, surveys,
manuals and contracts relating to construction, maintenance and operation of
the Wedgewood Real Property or the Wedgewood Personal Property that are in
Butera Properties, LLC’s possession on the Effective Date; (vii) all Permits
applicable to the Wedgewood Real Property; (viii) all of Butera Properties,
LLC’s interest in and under all of the Wedgewood Leases including unapplied
security deposits held by Butera Properties, LLC in connection therewith, which
shall be credited against the Purchase Price payable by Buyer at Closing
hereunder, as allocated to the Wedgewood Property pursuant to Exhibit P; and
(ix) all other tangible and intangible property or rights which Butera
Properties, LLC owns or in which Butera Properties, LLC has an interest in
connection with its ownership and operation of the Wedgewood Real Property, to
the extent the same are assignable.



     (d) “Georgia Pacific Boulevard Property” means, collectively, (i) the
Georgia Pacific Boulevard Real Property; (ii) the Georgia Pacific Boulevard
Personal Property, (iii) the Georgia Pacific Boulevard Service Contracts; (iv)
all of Butera Properties, LLC’s rights in or to condemnation awards and
insurance proceeds (to the extent not applied to restoration) relating to the
Georgia Pacific Boulevard Real Property, subject to the terms set forth herein;
(v) all assignable warranties, guaranties, bonds, claims and rights, if any, in
favor of Butera Properties, LLC relating to the construction, maintenance,
operation or repair of the Georgia Pacific Boulevard Real Property or any
component thereof, if any; (vi) all of Butera Properties, LLC’s right, title
and interest in and to any assignable drawings, plans, specifications, surveys,
manuals and contracts relating to construction, maintenance and operation of
the Georgia Pacific Boulevard Real Property or the Georgia Pacific Boulevard
Personal Property that are in Butera Properties, LLC’s possession on the
Effective Date; (vii) all Permits applicable to the Georgia Pacific Boulevard
Real Property; (viii) all of Butera Properties, LLC’s interest in and under all
of the Georgia Pacific Boulevard Leases including unapplied security deposits
held by Butera Properties, LLC in connection therewith, which shall be credited
against the Purchase Price payable by Buyer at Closing hereunder, as allocated
to the Georgia Pacific Boulevard Property pursuant to Exhibit P; and (ix) all
other tangible and intangible property or rights which Butera Properties, LLC
owns or in which Butera Properties, LLC has an interest in connection with its
ownership and operation of the Georgia Pacific Boulevard Real Property, to the
extent the same are assignable.



25









 





     (e) “Radtech Property” means, collectively, (i) the Radtech Real Property;
(ii) the Radtech Personal Property, (iii) the Radtech Service Contracts; (iv)
all of Butera Properties, LLC’s rights in or to condemnation awards and
insurance proceeds (to the extent not applied to restoration) relating to the
Radtech Real Property, subject to the terms set forth herein; (v) all
assignable warranties, guaranties, bonds, claims and rights, if any, in favor
of Butera Properties, LLC relating to the construction, maintenance, operation
or repair of the Radtech Real Property or any component thereof, if any; (vi)
all of Butera Properties, LLC’s right, title and interest in and to any
assignable drawings, plans, specifications, surveys, manuals and contracts
relating to construction, maintenance and operation of the Radtech Real
Property or the Radtech Personal Property that are in Butera Properties, LLC’s
possession on the Effective Date; (vii) all Permits applicable to the Radtech
Real Property; (viii) all of Butera Properties, LLC’s interest in and under all
of the Radtech Leases including unapplied security deposits held by Butera
Properties, LLC in connection therewith, which shall be credited against the
Purchase Price payable by Buyer at Closing hereunder, as allocated to the
Radtech Property pursuant to Exhibit P; and (ix) all other tangible and
intangible property or rights which Butera Properties, LLC owns or in which
Butera Properties, LLC has an interest in connection with its ownership and
operation of the Radtech Real Property, to the extent the same are assignable.



     (f) “Woodlands Property” means, collectively, (i) the Woodlands Real
Property; (ii) the Woodlands Personal Property, (iii) the Woodlands Service
Contracts; (iv) all of Butera Properties, LLC’s rights in or to condemnation
awards and insurance proceeds (to the extent not applied to restoration)
relating to the Woodlands Real Property, subject to the terms set forth
herein; (v) all assignable warranties, guaranties, bonds, claims and rights, if
any, in favor of Butera Properties, LLC relating to the construction,
maintenance, operation or repair of the Woodlands Real Property or any
component thereof, if any; (vi) all of Butera Properties, LLC’s right, title
and interest in and to any assignable drawings, plans, specifications, surveys,
manuals and contracts relating to construction, maintenance and operation of
the Woodlands Real Property or the Woodlands Personal Property that are in
Butera Properties, LLC’s possession on the Effective Date; (vii) all Permits
applicable to the Woodlands Real Property; (viii) all of Butera Properties,
LLC’s interest in and under all of the Woodlands Leases including unapplied
security deposits held by Butera Properties, LLC in connection therewith, which
shall be credited against the Purchase Price payable by Buyer at Closing
hereunder, as allocated to the Woodlands Property pursuant to Exhibit P; and
(ix) all other tangible and intangible property or rights which Butera
Properties, LLC owns or in which Butera Properties, LLC has an interest in
connection with its ownership and operation of the Woodlands Real Property, to
the extent the same are assignable.



     (g) “Old Courthouse Square Property” means, collectively, (i) the Old
Courthouse Square Real Property; (ii) the Old Courthouse Square Personal
Property, (iii) the Old Courthouse Square Service Contracts; (iv) all of
Butera Properties II, LLC’s rights in or to condemnation awards and insurance
proceeds (to the extent not applied to restoration) relating to the Old
Courthouse Square Real Property, subject to the terms set forth herein; (v) all
assignable warranties, guaranties, bonds, claims and rights, if any, in favor
of Butera Properties II, LLC relating to the construction, maintenance,
operation or repair of the Old Courthouse Square Real Property or any component
thereof, if any; (vi) all of Butera Properties II, LLC’s right, title and



26









 






interest in and to any assignable drawings, plans, specifications, surveys,
manuals and contracts relating to construction, maintenance and operation of
the Old Courthouse Square Real Property
or the Old Courthouse Square Personal Property that are in Butera
Properties II, LLC’s possession on the Effective Date; (vii) all Permits
applicable to the Old Courthouse Square Real Property; (viii) all of Butera
Properties II, LLC’s interest in and under all of the Old Courthouse Square
Leases including unapplied security deposits held by Butera Properties II, LLC
in connection therewith, which shall be credited against the Purchase Price
payable by Buyer at Closing hereunder, as allocated to the Old Courthouse
Square Property pursuant to Exhibit P; and (ix) all other tangible and
intangible property or rights which Butera Properties II, LLC owns or in which
Butera Properties II, LLC has an interest in connection with its ownership and
operation of the Old Courthouse Square Real Property, to the extent the same
are assignable.



     (h) “Lindbergh Property” means, collectively, (i) the Lindbergh Real
Property; (ii) the Lindbergh Personal Property, (iii) the Lindbergh Service
Contracts; (iv) all of Butera Properties II, LLC’s rights in or to condemnation
awards and insurance proceeds (to the extent not applied to restoration)
relating to the Lindbergh Real Property, subject to the terms set forth
herein; (v) all assignable warranties, guaranties, bonds, claims and rights, if
any, in favor of Butera Properties II, LLC relating to the construction,
maintenance, operation or repair of the Lindbergh Real Property or any
component thereof, if any; (vi) all of Butera Properties II, LLC’s right, title
and interest in and to any assignable drawings, plans, specifications, surveys,
manuals and contracts relating to construction, maintenance and operation of
the Lindbergh Real Property or the Lindbergh Personal Property that are in
Butera Properties II, LLC’s possession on the Effective Date; (vii) all Permits
applicable to the Lindbergh Real Property; (viii) all of Butera Properties II,
LLC’s interest in and under all of the Lindbergh Leases including unapplied
security deposits held by Butera Properties II, LLC in connection therewith,
which shall be credited against the Purchase Price payable by Buyer at Closing
hereunder, as allocated to the Lindbergh Property pursuant to Exhibit P; and
(ix) all other tangible and intangible property or rights which Butera
Properties II, LLC owns or in which Butera Properties II, LLC has an interest
in connection with its ownership and operation of the Lindbergh Real Property,
to the extent the same are assignable.



     (i) “Gateway Center Property” means, collectively, (i) the Gateway Center
Real Property; (ii) the Gateway Center Personal Property, (iii) the Gateway
Center Service Contracts; (iv) all of Butera Gateway Center, LLC’s rights in or
to condemnation awards and insurance proceeds (to the extent not applied to
restoration) relating to the Gateway Center Real Property, subject to the
terms set forth herein; (v) all assignable warranties, guaranties, bonds,
claims and rights, if any, in favor of Butera Gateway Center, LLC relating to
the construction, maintenance, operation or repair of the Gateway Center Real
Property or any component thereof, if any; (vi) all of Butera Gateway Center,
LLC’s right, title and interest in and to any assignable drawings, plans,
specifications, surveys, manuals and contracts relating to construction,
maintenance and operation of the Gateway Center Real Property or the Gateway
Center Personal Property that are in Butera Gateway Center, LLC’s possession on
the Effective Date; (vii) all Permits applicable to the Gateway Center Real
Property; (viii) all of Butera Gateway Center, LLC’s interest in and under all
of the Gateway Center Leases including unapplied security deposits held by
Butera Gateway Center, LLC in connection therewith, which shall be credited
against the Purchase Price payable by Buyer at Closing hereunder, as allocated
to the Gateway



27









 





Center Property pursuant to Exhibit P; and (ix) all other
tangible and intangible property or rights which Butera Gateway Center, LLC
owns or in which Butera Gateway Center, LLC has an interest in connection with
its ownership and operation of the Gateway Center Real Property, to the extent
the same are assignable.



     (j) “Girard Business Center Property” means, collectively, (i) the Girard
Business Center Real Property; (ii) the Girard Business Center Personal
Property, (iii) the Girard Business Center Service Contracts; (iv) all of
Butera Girard Business Center, LLC’s rights in or to condemnation awards and
insurance proceeds (to the extent not applied to restoration) relating to the
Girard Business Center Real Property, subject to the terms set forth herein;
(v) all assignable warranties, guaranties, bonds, claims and rights, if any, in
favor of Butera Girard Business Center, LLC relating to the construction,
maintenance, operation or repair of the Girard Business Center Real Property or
any component thereof, if any; (vi) all of Butera Girard Business Center, LLC’s
right, title and interest in and to any assignable drawings, plans,
specifications, surveys, manuals and contracts relating to construction,
maintenance and operation of the Girard Business Center Real Property or the
Girard Business Center Personal Property that are in Butera Girard Business
Center, LLC’s possession on the Effective Date; (vii) all Permits applicable to
the Girard Business Center Real Property; (viii) all of Butera Girard Business
Center, LLC’s interest in and under all of the Girard Business Center Leases
including unapplied security deposits held by Butera Girard Business Center,
LLC in connection therewith, which shall be credited against the Purchase Price
payable by Buyer at Closing hereunder, as allocated to the Girard Business
Center Property pursuant to Exhibit P; and (ix) all other tangible and
intangible property or rights which Butera Girard Business Center, LLC owns or
in which Butera Girard Business Center, LLC has an interest in connection with
its ownership and operation of the Girard Business Center Real Property, to
the extent the same are assignable.



     (k) “Girard Place Property” means, collectively, (i) the Girard Place Real
Property; (ii) the Girard Place Personal Property, (iii) the Girard Place
Service Contracts; (iv) all of Butera Girard Place, LLC’s rights in or to
condemnation awards and insurance proceeds (to the extent not applied to
restoration) relating to the Girard Place Real Property, subject to the terms
set forth herein; (v) all assignable warranties, guaranties, bonds, claims and
rights, if any, in favor of Butera Girard Place, LLC relating to the
construction, maintenance, operation or repair of the Girard Place Real
Property or any component thereof, if any; (vi) all of Butera Girard Place,
LLC’s right, title and interest in and to any assignable drawings, plans,
specifications, surveys, manuals and contracts relating to construction,
maintenance and operation of the Girard Place Real Property or the Girard Place
Personal Property that are in Butera Girard Place, LLC’s possession on the
Effective Date; (vii) all Permits applicable to the Girard Place Real Property;
(viii) all of Butera Girard Place, LLC’s interest in and under all of the
Girard Place Leases including unapplied security deposits held by Butera Girard
Place, LLC in connection therewith, which shall be credited against the
Purchase Price payable by Buyer at Closing hereunder, as allocated to the
Girard Place Property pursuant to Exhibit P; and (ix) all other tangible
and intangible property or rights which Butera Girard Place, LLC owns or in
which Butera Girard Place, LLC has an interest in connection with its ownership
and operation of the Girard Place Real Property, to the extent the same are
assignable.



     (l) “Goldenrod Lane Property” means, collectively, (i) the Goldenrod Lane
Real



28









 





Property; (ii) the Goldenrod Lane Personal Property, (iii) the Goldenrod
Lane Service Contracts; (iv) all of Butera Goldenrod Lane, LLC’s rights in or
to condemnation awards and insurance proceeds (to the extent not applied to
restoration) relating to the Goldenrod Lane Real Property, subject to the
terms set forth herein; (v) all assignable warranties, guaranties, bonds,
claims and rights, if any, in favor of Butera Goldenrod Lane, LLC relating to
the construction, maintenance, operation or repair of the Goldenrod Lane Real
Property or any component thereof, if any; (vi) all of Butera Goldenrod Lane, LLC’s right, title and interest
in and to any assignable drawings, plans, specifications, surveys, manuals and
contracts relating to construction, maintenance and operation of the Goldenrod
Lane Real Property or the Goldenrod Lane Personal Property that are in Butera
Goldenrod Lane, LLC’s possession on the Effective Date; (vii) all Permits
applicable to the Goldenrod Lane Real Property; (viii) all of Butera Goldenrod
Lane, LLC’s interest in and under all of the Goldenrod Lane Leases including
unapplied security deposits held by Butera Goldenrod Lane, LLC in connection
therewith, which shall be credited against the Purchase Price payable by Buyer
at Closing hereunder, as allocated to the Goldenrod Lane Property pursuant to
Exhibit P; and (ix) all other tangible and intangible property or rights
which Butera Goldenrod Lane, LLC owns or in which Butera Goldenrod Lane, LLC
has an interest in connection with its ownership and operation of the
Goldenrod Lane Real Property, to the extent the same are assignable.



     (m) “Gateway West II Property” means, collectively, (i) the Gateway West
II Real Property; (ii) the Gateway West II Personal Property, (iii) the
Gateway West II Service Contracts; (iv) all of Butera Gateway West II, LLC’s
rights in or to condemnation awards and insurance proceeds (to the extent not
applied to restoration) relating to the Gateway West II Real Property, subject
to the terms set forth herein; (v) all assignable warranties, guaranties,
bonds, claims and rights, if any, in favor of Butera Gateway West II, LLC
relating to the construction, maintenance, operation or repair of the Gateway
West II Real Property or any component thereof, if any; (vi) all of Butera
Gateway West II, LLC’s right, title and interest in and to any assignable
drawings, plans, specifications, surveys, manuals and contracts relating to
construction, maintenance and operation of the Gateway West II Real Property or
the Gateway West II Personal Property that are in Butera Gateway West II, LLC’s
possession on the Effective Date; (vii) all Permits applicable to the Gateway
West II Real Property; (viii) all of Butera Gateway West II, LLC’s interest in
and under all of the Gateway West II Leases including unapplied security
deposits held by Butera Gateway West II, LLC in connection therewith, which
shall be credited against the Purchase Price payable by Buyer at Closing
hereunder, as allocated to the Gateway West II Property pursuant to Exhibit
P; and (ix) all other tangible and intangible property or rights which
Butera Gateway West II, LLC owns or in which Butera Gateway West II, LLC has an
interest in connection with its ownership and operation of the Gateway West II
Real Property, to the extent the same are assignable.



     (n) “Westpark Property” means, collectively, (i) the Westpark Real
Property; (ii) the Westpark Personal Property, (iii) the Westpark Service
Contracts; (iv) all of TRB, Inc.’s rights in or to condemnation awards and
insurance proceeds (to the extent not applied to restoration) relating to the
Westpark Real Property, subject to the terms set forth herein; (v) all
assignable warranties, guaranties, bonds, claims and rights, if any, in favor
of TRB, Inc. relating to the construction, maintenance, operation or repair of
the Westpark Real Property or any component thereof, if any; (vi) all of TRB,
Inc.’s right, title and interest in and to any assignable drawings,



29









 





plans,
specifications, surveys, manuals and contracts relating to construction,
maintenance and operation of the Westpark Real Property or the Westpark
Personal Property that are in TRB, Inc.’s possession on the Effective Date;
(vii) all Permits applicable to the Westpark Real Property; (viii) all of TRB,
Inc.’s interest in and under all of the Westpark Leases including unapplied
security deposits held by TRB, Inc. in connection therewith, which shall be
credited against the Purchase Price payable by Buyer at Closing hereunder, as
allocated to the Westpark Property pursuant to Exhibit P; and (ix) all
other tangible and intangible property or rights which TRB, Inc. owns or in
which TRB, Inc. has an interest in connection with its ownership and
operation of the Westpark Real Property, to the extent the same are
assignable.



     (o) “Patrick Center Property” means, collectively, (i) the Patrick Center
Real Property; (ii) the Patrick Center Personal Property, (iii) the Patrick
Center Service Contracts; (iv) all of the Patrick Center Sellers’ rights in or
to condemnation awards and insurance proceeds (to the extent not applied to
restoration) relating to the Patrick Center Real Property, subject to the
terms set forth herein; (v) all assignable warranties, guaranties, bonds,
claims and rights, if any, in favor of the Patrick Center Sellers relating to
the construction, maintenance, operation or repair of the Patrick Center Real
Property or any component thereof, if any; (vi) all of the Patrick Center
Sellers’ right, title and interest in and to any assignable drawings, plans,
specifications, surveys, manuals and contracts relating to construction,
maintenance and operation of the Patrick Center Real Property or the Patrick
Center Personal Property that are in the Patrick Center Sellers’ possession on
the Effective Date; (vii) all Permits applicable to the Patrick Center Real
Property; (viii) all of the Patrick Center Sellers’ interest in and under all
of the Patrick Center Leases including unapplied security deposits held by the
Patrick Center Sellers in connection therewith, which shall be credited against
the Purchase Price payable by Buyer at Closing hereunder, as allocated to the
Patrick Center Property pursuant to Exhibit P; and (ix) all other
tangible and intangible property or rights which the Patrick Center Sellers
owns or in which the Patrick Center Sellers has an interest in connection with
its ownership and operation of the Patrick Center Real Property, to the extent
the same are assignable.



“Property” means any of the Deer Park Property, the Gateway West Property, the
Wedgewood Property, the Georgia Pacific Boulevard Property, the Radtech
Property, the Woodlands Property, the Old Courthouse Square Property, the
Lindbergh Property, the Gateway Center Property, the Girard Business Center
Property, the Girard Place Property, the Goldenrod Lane Property, the Gateway
West II Property, the Westpark Property, and the Patrick Center Property, as
the case may be.



     1.50. Purchase Price. “Purchase Price” means the purchase price
being paid by Buyer to the Seller Parties for the Membership Interests and the
Westpark Property and the Patrick Center Property, as specified in Section 2.1.



     1.51. Real Properties. “Real Properties” means, collectively, all
of the following:



     (a) “Deer Park Real Property” means, collectively, the Deer Park Land and
the Deer Park Improvements.



     (b) “Gateway West Real Property” means, collectively, the Gateway West
Land and



30









 





the Gateway West Improvements.



     (c) “Wedgewood Real Property” means, collectively, the Wedgewood Land and
the Wedgewood Improvements.



     (d) “Georgia Pacific Boulevard Real Property” means, collectively, the
Georgia Pacific Boulevard Land and the Georgia Pacific Boulevard Improvements.



     (e) “Radtech Real Property” means, collectively, the Radtech Land and the
Radtech Improvements.



     (f) “Woodlands Real Property” means, collectively, the Woodlands Land and
the Woodlands Improvements.



     (g) “Old Courthouse Square Real Property” means, collectively, the Old
Courthouse Square Land and the Old Courthouse Square Improvements.



     (h) “Lindbergh Real Property” means, collectively, the Lindbergh Land and
the Lindbergh Improvements.



     (i) “Gateway Center Real Property” means, collectively, the Gateway Center
Land and the Gateway Center Improvements.



     (j) “Girard Business Center Real Property” means, collectively, the Girard
Business Center Land and the Girard Business Center Improvements.



     (k) “Girard Place Real Property” means, collectively, the Girard Place
Land and the Girard Place Improvements.



     (l) “Goldenrod Lane Real Property” means, collectively, the Goldenrod Lane
Land and the Goldenrod Lane Improvements.



     (m) “Gateway West II Real Property” means, collectively, the Gateway West
II Land and the Gateway West II Improvements.



     (n) “Westpark Real Property” means, collectively, the Westpark Land and
the Westpark Improvements.



     (o) “Patrick Center Real Property” means, collectively, the Patrick Center
Land and the Patrick Center Improvements.



“Real Property” means any of the Deer Park Real Property, the Gateway West Real
Property, the Wedgewood Real Property, the Georgia Pacific Boulevard Real
Property, the Radtech Real Property, the Woodlands Real Property, the Old
Courthouse Square Real Property, the Lindbergh Real Property, the Gateway
Center Real Property, the Girard Business Center Real Property, the Girard
Place Real Property, the Goldenrod Lane Real Property, the Gateway West



31









 








II Real
Property, the Westpark Real Property, and the Patrick Center Real Property, as
the case may be.



     1.52. Seller. “Seller” has the meaning set forth in the last
paragraph of the preamble.



     1.53. Seller’s Knowledge. “Seller’s Knowledge” means, as to the
applicable Seller or the applicable Manager, as the context of this Agreement
may require, the Actual Knowledge of T. Richard Butera or Mark C. Matan, and
does not imply or require any inspection, examination or other inquiry
undertaken by any Seller or either of said individuals to determine the
accuracy of any representation, warranty or other statement made “to Seller’s
Knowledge” in this Agreement or in any of Seller’s Closing Documents. Seller
represents, however, that T. Richard Butera and Mark C. Matan are individuals
to whom material facts relevant to the matters covered
by the representations and warranties of Seller that are set forth in this
Agreement would be reported in the ordinary course of business.
Notwithstanding the foregoing, or anything else set forth in this Agreement to
the contrary, (i) T. Richard Butera shall not have any personal liability under
this Agreement, except as set forth in Section 3.2.7; (ii) Mark C. Matan shall
not have any personal liability whatsoever under this Agreement; (iii) except
for T. Richard Butera as provided in clause (i) above, none of the officers,
directors, stockholders, employees, agents, principals, members, partners or
affiliates of the Selling Members, or TRB, Inc. , or the Patrick Center Sellers
shall have any personal liability whatsoever under this Agreement; and (iv)
Buyer and Buyer’s officers, directors, employees, principals and affiliates
hereby expressly disclaim and waive any and all rights they may have to bring
any actions or claims against T. Richard Butera, except as set forth in Section
3.2.7, or Mark C. Matan, or any of the officers, directors, stockholders,
employees, agents, principals, members, partners or affiliates of the Selling
Members, or TRB, Inc., or the Patrick Center Sellers (except for T. Richard
Butera as provided in clause (i) above), for or in connection with the
provisions of this paragraph or in connection with any representations and/or
warranties that are made throughout this Agreement to the applicable “Seller’s
Knowledge”, or the applicable “Manager’s Knowledge”, as herein defined.



     1.54. Seller Representative. “Seller Representative” means T.
Richard Butera.



     1.55. Seller Parties. “Seller Parties” has the meaning set forth
in the last paragraph of the preamble.



     1.56. Seller’s Closing Documents. “Seller’s Closing Documents” has
the meaning specified in the last sentence of Section 2.2.1.



     1.57. Selling Members. “Selling Members” means, collectively, the
Butera Properties Manager, the Butera Properties Members, Butera Properties II
Manager, Butera Properties II Members, Butera Gateway Center Manager, Butera
Gateway Center Members, Butera Girard Business Center Manager, Butera Girard
Business Center Members, Butera Girard Place Manager, Butera Girard Place
Members, Butera Goldenrod Lane Manager, Butera Goldenrod Lane Members and
Butera Gateway West II Members, and “Selling Member” means any of the Butera
Properties Manager, the Butera Properties Members, Butera Properties II
Manager, Butera Properties II Members, Butera Gateway Center Manager, Butera
Gateway Center Members, Butera Girard Business Center Manager, Butera Girard
Business Center Members,



32









 





Butera Girard Place Manager, Butera Girard Place
Members, Butera Goldenrod Lane Manager, Butera Goldenrod Lane Members, and the
Butera Gateway West II Members, as the case may be.



     1.58. Service Contracts. “Service Contracts” mean, collectively,
all of the following:



     (a) “Deer Park Service Contract” means any written contract or other
arrangement for the provision of services relating to the construction,
maintenance, repair or operation of the Deer Park Property; excluding, however,
any property management contract or arrangement. “Deer Park Service Contracts”
mean, collectively, every Deer Park Service Contract.



     (b) “Gateway West Service Contract” means any written contract or other
arrangement for the provision of services relating to the construction,
maintenance, repair or operation of the Gateway West Property; excluding,
however any property management contract or arrangement.
“Gateway West Service Contracts” mean, collectively,
every Gateway West Service Contract.



     (c) “Wedgewood Service Contract” means any written contract or other
arrangement for the provision of services relating to the construction,
maintenance, repair or operation of the Wedgewood Property; excluding, however,
any property management contract or arrangement. “Wedgewood Service Contracts”
mean, collectively, every Wedgewood Service Contract.



     (d) “Georgia Pacific Boulevard Service Contract” means any written
contract or other arrangement for the provision of services relating to the
construction, maintenance, repair or operation of the Georgia Pacific Boulevard
Property; excluding, however, any property management contract or arrangement.
“Georgia Pacific Boulevard Service Contracts” mean, collectively, every Georgia
Pacific Boulevard Service Contract.



     (e) “Radtech Service Contract” means any written contract or other
arrangement for the provision of services relating to the construction,
maintenance, repair or operation of the Radtech Property; excluding, however
any property management contract or arrangement. “Radtech Service Contracts”
mean, collectively, every Radtech Service Contract.



     (f) “Woodlands Service Contract” means any contract or other arrangement
for the provision of services relating to the construction, maintenance, repair
or operation of the Woodlands Property; excluding, however any property
management contract or arrangement. “Woodlands Service Contracts” mean,
collectively, every Woodlands Service Contract.



     (g) “Old Courthouse Square Service Contract” means any contract or other
arrangement for the provision of services relating to the construction,
maintenance, repair or operation of the Old Courthouse Square Property;
excluding, however any property management contract or arrangement. “Old
Courthouse Square Service Contracts” mean, collectively, every Old Courthouse
Square Service Contract.



     (h) “Lindbergh Service Contract” means any contract or other arrangement
for the provision of services relating to the construction, maintenance, repair
or operation of the



33









 





Lindbergh Property; excluding, however any property
management contract or arrangement. “Lindbergh Service Contracts” mean,
collectively, every Lindbergh Service Contract.



     (i) “Gateway Center Service Contract” means any contract or other
arrangement for the provision of services relating to the construction,
maintenance, repair or operation of the Gateway Center Property; excluding,
however any property management contract or arrangement. “Gateway Center
Service Contracts” mean, collectively, every Gateway Center Service Contract.



     (j) “Girard Business Center Service Contract” means any contract or other
arrangement for the provision of services relating to the construction,
maintenance, repair or operation of the Girard Business Center Property;
excluding, however any property management contract or arrangement. “Girard
Business Center Service Contracts” mean, collectively, every Girard Business
Center Service Contract.



     (k) “Girard Place Service Contract” means any contract or other
arrangement for the provision of services relating to the construction, maintenance, repair or
operation of the Girard Place Property; excluding, however any property
management contract or arrangement. “Girard Place Service Contracts” mean,
collectively, every Girard Place Service Contract.



     (l) “Goldenrod Lane Service Contract” means any contract or other
arrangement for the provision of services relating to the construction,
maintenance, repair or operation of the Goldenrod Lane Property; excluding,
however any property management contract or arrangement. “Goldenrod Lane
Service Contracts” mean, collectively, every Goldenrod Lane Service Contract.



     (m) “Gateway West II Service Contract” means any contract or other
arrangement for the provision of services relating to the construction,
maintenance, repair or operation of the Gateway West II Property; excluding,
however any property management contract or arrangement. “Gateway West II
Service Contracts” mean, collectively, every Gateway West II Service Contract.



     (n) “Westpark Service Contract” means any contract or other arrangement
for the provision of services relating to the construction, maintenance, repair
or operation of the Westpark Property; excluding, however any property
management contract or arrangement. “Westpark Service Contracts” mean,
collectively, every Westpark Service Contract.



     (o) “Patrick Center Service Contract” means any contract or other
arrangement for the provision of services relating to the construction,
maintenance, repair or operation of the Patrick Center Property; excluding,
however any property management contract or arrangement. “Patrick Center
Service Contracts” mean, collectively, every Patrick Center Service Contract.



“Service Contract” means any of the Deer Park Service Contracts, the Gateway
West Service Contracts, the Wedgewood Service Contracts, the Georgia Pacific
Boulevard Service Contracts, the Radtech Service Contracts, the Woodlands
Service Contracts, the Old Courthouse Square Service Contracts, the Lindbergh
Service Contracts, the Gateway Center Service Contracts, the



34









 








Girard Business
Center Service Contracts, the Girard Place Service Contracts, the Goldenrod
Lane Service Contracts, the Gateway West II Service Contracts, the Westpark
Service Contracts, and the Patrick Center Service Contracts, as the case may
be.



     1.59. Surveyor. “Surveyor” means Lavelle & Associates, Inc.



     1.60. Surveys. “Surveys” mean, collectively, all of the following:



     (a) That certain ALTA/ACSM Survey of the Deer Park Real Property prepared
by and most recently certified by the Surveyor (“Deer Park Survey”).



     (b) That certain ALTA/ACSM Survey of the Gateway West Real Property
prepared by and most recently certified by the Surveyor (“Gateway West
Survey”).



     (c) That certain ALTA/ACSM Survey of the Wedgewood Real Property prepared
by and most recently certified by the Surveyor (“Wedgewood Survey”).



     (d) That certain ALTA/ACSM Survey of the Georgia Pacific Boulevard Real
Property prepared by and most recently certified by the Surveyor (“Georgia
Pacific Boulevard Survey”).



     (e) That certain ALTA/ACSM Survey of the Radtech Real Property prepared by
and most recently certified by the Surveyor (“Radtech Survey”).



     (f) That certain ALTA/ACSM Survey of the Woodlands Real Property prepared
by and most recently certified by the Surveyor (“Woodlands Survey”).



     (g) That certain ALTA/ACSM Survey of the Old Courthouse Square Real
Property prepared by and most recently certified by the Surveyor (“Old
Courthouse Square Survey”).



     (h) That certain ALTA/ACSM Survey of the Lindbergh Real Property prepared
by and most recently certified by the Surveyor (“Lindbergh Survey”).



     (i) That certain ALTA/ACSM Survey of the Gateway Center Real Property
prepared by and most recently certified by the Surveyor (“Gateway Center
Survey”).



     (j) That certain ALTA/ACSM Survey of the Girard Business Center Real
Property prepared by and most recently certified by the Surveyor (“Girard
Business Center Survey”).



     (k) That certain ALTA/ACSM Survey of the Girard Place Real Property
prepared by and most recently certified by the Surveyor (“Girard Place
Survey”).



     (l) That certain ALTA/ACSM Survey of the Goldenrod Lane Real Property
prepared by and most recently certified by the Surveyor (“Goldenrod Lane
Survey”).



     (m) That certain ALTA/ACSM Survey of the Gateway West II Real Property



35









 





prepared by and most recently certified by the Surveyor (“Gateway West II
Survey”).



     (n) That certain ALTA/ACSM Survey of the Westpark Real Property prepared
by and most recently certified by the Surveyor (“Westpark Survey”).



     (o) That certain ALTA/ACSM Survey of the Patrick Center Real Property
prepared by and most recently certified by the Surveyor (“Patrick Center
Survey”).



     1.61. Tenant. “Tenant” means any tenant or lessee under a Lease.



     1.62. Title Commitments. “Title Commitments” means, collectively,
all of the following:



     (a) A commitment for title insurance acquired by Buyer at its cost from
the Title Company in connection with its proposed acquisition of the Deer Park
Real Property and the issuance of the Deer Park Title Policy (“Deer Park Title
Commitment”).



     (b) A commitment for title insurance acquired by Buyer at its cost from
the Title Company in connection with its proposed acquisition of the Gateway
West Real Property and the issuance of the Gateway West Title Policy ( “Gateway
West Title Commitment”).



     (c) A commitment for title insurance acquired by Buyer at its cost from
the Title Company in connection with its proposed acquisition of the Wedgewood
Real Property and the issuance of the Wedgewood Title Policy ( “Wedgewood Title
Commitment”).



     (d) A commitment for title insurance acquired by Buyer at its cost from
the Title Company in connection with its proposed acquisition of the Georgia
Pacific Boulevard Real Property and the issuance of the Georgia Pacific
Boulevard Title Policy ( “Georgia Pacific Boulevard Title Commitment”).



     (e) A commitment for title insurance acquired by Buyer at its cost from
the Title Company in connection with its proposed acquisition of the Radtech
Real Property and the issuance of the Radtech Title Policy (“Radtech Title
Commitment”).



     (f) A commitment for title insurance acquired by Buyer at its cost from
the Title Company in connection with its proposed acquisition of the Woodlands
Real Property and the issuance of the Woodlands Title Policy (“Woodlands Title
Commitment”).



     (g) A commitment for title insurance acquired by Buyer at its cost from
the Title Company in connection with its proposed acquisition of the Old
Courthouse Square Real Property and the issuance of the Old Courthouse Square
Title Policy (“Old Courthouse Square Title Commitment”).



     (h) A commitment for title insurance acquired by Buyer at its cost from
the Title Company in connection with its proposed acquisition of the Lindbergh
Real Property and the issuance of the Lindbergh Title Policy (“Lindbergh Title
Commitment”).



36









 





     (i) A commitment for title insurance acquired by Buyer at its cost from
the Title Company in connection with its proposed acquisition of the Gateway
Center Real Property and the issuance of the Gateway Center Title Policy
(“Gateway Center Title Commitment”).



     (j) A commitment for title insurance acquired by Buyer at its cost from
the Title Company in connection with its proposed acquisition of the Girard
Business Center Real Property and the issuance of the Girard Business Center
Title Policy (“Girard Business Center Title Commitment”).



     (k) A commitment for title insurance acquired by Buyer at its cost from
the Title Company in connection with its proposed acquisition of the Girard
Place Real Property and the issuance of the Girard Place Title Policy (“Girard
Place Title Commitment”).



     (l) A commitment for title insurance acquired by Buyer at its cost from
the Title Company in connection with its proposed acquisition of the Goldenrod
Lane Real Property and the issuance of the Goldenrod Lane Title Policy
(“Goldenrod Lane Title Commitment”).



     (m) A commitment for title insurance acquired by Buyer at its cost from
the Title Company in connection with its proposed acquisition of the Gateway
West II Real Property and the issuance of the Gateway West II Title Policy
(“Gateway West II Title Commitment”).



     (n) A commitment for title insurance acquired by Buyer at its cost from
the Title Company in connection with its proposed acquisition of the Westpark
Real Property and the issuance of the Westpark Title Policy (“Westpark Title
Commitment”).



     (o) A commitment for title insurance acquired by Buyer at its cost from
the Title Company in connection with its proposed acquisition of the Patrick
Center Real Property and the issuance of the Patrick Center Title Policy
(“Patrick Center Title Commitment”).



     1.63. Title Company. “Title Company” means Chicago Title Insurance
Company.



     1.64. Title Policies. “Title Policies” means, collectively, all of
the following:



     (a) “Deer Park Title Policy” means an ALTA owner’s policy of title
insurance, in the amount of the Purchase Price that has been allocated to the
Deer Park Property, as reflected on Exhibit P attached hereto, insuring, at
standard rates (excluding endorsement premiums), fee simple title to the Deer
Park Real Property pursuant to the Deer Park Title Commitment, under the latest
ALTA standard full coverage owner’s title insurance policy form, which shall
contain no exceptions except for the Deer Park Permitted Exceptions and shall
be dated as of the Closing Date, as more fully described below in Section
2.3.3.



     (b) “Gateway West Title Policy” means an ALTA owner’s policy of title
insurance, in the amount of the Purchase Price that has been allocated to the
Gateway West Property, as reflected on Exhibit P attached hereto, insuring, at
standard rates (excluding endorsement premiums), fee simple title to the
Gateway West Real Property pursuant to the Gateway West



37









 





Title Commitment, under
the latest ALTA standard full coverage owner’s title insurance policy form,
which shall contain no exceptions except for the Gateway West Permitted
Exceptions and shall be dated as of the Closing Date, as more fully described
below in Section 2.3.3.



     (c) “Wedgewood Title Policy” means an ALTA owner’s policy of title
insurance, in the amount of the Purchase Price that has been allocated to the
Wedgewood Property, as reflected on Exhibit P attached hereto, insuring, at
standard rates (excluding endorsement premiums), fee simple title to the
Wedgewood Real Property pursuant to the Wedgewood Title Commitment, under the
latest ALTA standard full coverage owner’s title insurance policy form, which
shall contain no exceptions except for the Wedgewood Permitted Exceptions and
shall be dated as of the Closing Date, as more fully described below in Section
2.3.3.



     (d) “Georgia Pacific Boulevard Title Policy” means an ALTA owner’s policy
of title insurance, in the amount of the Purchase Price that has been allocated
to the Georgia Pacific Boulevard Property, as reflected on Exhibit P attached
hereto, insuring, at standard rates (excluding endorsement premiums), fee
simple title to the Georgia Pacific Boulevard Real Property pursuant to the
Georgia Pacific Boulevard Title Commitment, under the latest ALTA standard full
coverage owner’s title insurance policy form, which shall contain no exceptions
except for the Georgia Pacific Boulevard Permitted Exceptions and shall be
dated as of the Closing Date, as more fully described below in Section 2.3.3.



     (e) “Radtech Title Policy” means an ALTA owner’s policy of title
insurance, in the amount of the Purchase Price that has been allocated to the
Radtech Property, as reflected on Exhibit P attached hereto, insuring, at
standard rates (excluding endorsement premiums), fee
simple title to the Radtech Real Property pursuant to the Radtech Title
Commitment, under the latest ALTA standard full coverage owner’s title
insurance policy form, which shall contain no exceptions except for the Radtech
Permitted Exceptions and shall be dated as of the Closing Date, as more fully
described below in Section 2.3.3.



     (f) “Woodlands Title Policy” means an ALTA owner’s policy of title
insurance, in the amount of the Purchase Price that has been allocated to the
Woodlands Property, as reflected on Exhibit P attached hereto, insuring, at
standard rates (excluding endorsement premiums), fee simple title to the
Woodlands Real Property pursuant to the Woodlands Title Commitment, under the
latest ALTA standard full coverage owner’s title insurance policy form, which
shall contain no exceptions except for the Woodlands Permitted Exceptions and
shall be dated as of the Closing Date, as more fully described below in Section
2.3.3.



     (g) “Old Courthouse Square Title Policy” means an ALTA owner’s policy of
title insurance, in the amount of the Purchase Price that has been allocated to
the Old Courthouse Square Property, as reflected on Exhibit P attached hereto,
insuring, at standard rates (excluding endorsement premiums), fee simple title
to the Old Courthouse Square Real Property pursuant to the Old Courthouse
Square Title Commitment, under the latest ALTA standard full coverage owner’s
title insurance policy form, which shall contain no exceptions except for the
Old Courthouse Square Permitted Exceptions and shall be dated as of the Closing
Date, as more fully described below in Section 2.3.3.



38









 





     (h) “Lindbergh Title Policy” means an ALTA owner’s policy of title
insurance, in the amount of the Purchase Price that has been allocated to the
Lindbergh Property, as reflected on Exhibit P attached hereto, insuring, at
standard rates (excluding endorsement premiums), fee simple title to the
Lindbergh Real Property pursuant to the Lindbergh Title Commitment, under the
latest ALTA standard full coverage owner’s title insurance policy form, which
shall contain no exceptions except for the Lindbergh Permitted Exceptions and
shall be dated as of the Closing Date, as more fully described below in Section
2.3.3.



     (i) “Gateway Center Title Policy” means an ALTA owner’s policy of title
insurance, in the amount of the Purchase Price that has been allocated to the
Gateway Center Property, as reflected on Exhibit P attached hereto, insuring,
at standard rates (excluding endorsement premiums), fee simple title to the
Gateway Center Real Property pursuant to the Gateway Center Title Commitment,
under the latest ALTA standard full coverage owner’s title insurance policy
form, which shall contain no exceptions except for the Gateway Center Permitted
Exceptions and shall be dated as of the Closing Date, as more fully described
below in Section 2.3.3.



     (j) “Girard Business Center Title Policy” means an ALTA owner’s policy of
title insurance, in the amount of the Purchase Price that has been allocated to
the Girard Business Center Property, as reflected on Exhibit P attached
hereto, insuring, at standard rates (excluding endorsement premiums), fee
simple title to the Girard Business Center Real Property pursuant to the Girard
Business Center Title Commitment, under the latest ALTA standard full coverage
owner’s title insurance policy form, which shall contain no exceptions except
for the Girard Business Center Permitted Exceptions and shall be dated as of
the Closing Date, as more fully described below in Section 2.3.3.



     (k) “Girard Place Title Policy” means an ALTA owner’s policy of title
insurance, in the amount of the Purchase Price that has been allocated to the Girard
Place Property, as reflected on Exhibit P attached hereto, insuring, at
standard rates (excluding endorsement premiums), fee simple title to the Girard
Place Real Property pursuant to the Girard Place Title Commitment, under the
latest ALTA standard full coverage owner’s title insurance policy form, which
shall contain no exceptions except for the Girard Place Permitted Exceptions
and shall be dated as of the Closing Date, as more fully described below in
Section 2.3.3.



     (l) “Goldenrod Lane Title Policy” means an ALTA owner’s policy of title
insurance, in the amount of the Purchase Price that has been allocated to the
Goldenrod Lane Property, as reflected on Exhibit P attached hereto,
insuring, at standard rates (excluding endorsement premiums), fee simple title
to the Goldenrod Lane Real Property pursuant to the Goldenrod Lane Title
Commitment, under the latest ALTA standard full coverage owner’s title
insurance policy form, which shall contain no exceptions except for the
Goldenrod Lane Permitted Exceptions and shall be dated as of the Closing Date,
as more fully described below in Section 2.3.3.



     (m) “Gateway West II Title Policy” means an ALTA owner’s policy of title
insurance, in the amount of the Purchase Price that has been allocated to the
Gateway West II Property, as reflected on Exhibit P attached hereto,
insuring, at standard rates (excluding endorsement premiums), fee simple title
to the Gateway West II Real Property pursuant to the Gateway West II Title
Commitment, under the latest ALTA standard full coverage owner’s title
insurance



39









 





policy form, which shall contain no exceptions except for the Gateway
West II Permitted Exceptions and shall be dated as of the Closing Date, as more
fully described below in Section 2.3.3.



     (n) “Westpark Title Policy” means an ALTA owner’s policy of title
insurance, in the amount of the Purchase Price that has been allocated to the
Westpark Property, as reflected on Exhibit P attached hereto, insuring,
at standard rates (excluding endorsement premiums), fee simple title to the
Westpark Real Property pursuant to the Westpark Title Commitment, under the
latest ALTA standard full coverage owner’s title insurance policy form, which
shall contain no exceptions except for the Westpark Permitted Exceptions and
shall be dated as of the Closing Date, as more fully described below in Section
2.3.3.



     (o) “Patrick Center Title Policy” means an ALTA owner’s policy of title
insurance, in the amount of the Purchase Price that has been allocated to the
Patrick Center Property, as reflected on Exhibit P attached hereto,
insuring, at standard rates (excluding endorsement premiums), fee simple title
to the Patrick Center Real Property pursuant to the Patrick Center Title
Commitment, under the latest ALTA standard full coverage owner’s title
insurance policy form, which shall contain no exceptions except for the Patrick
Center Permitted Exceptions and shall be dated as of the Closing Date, as more
fully described below in Section 2.3.3.



     1.65. Waiver of Claims. “Waiver of Claims” means a written waiver
of any claims against (A) the applicable LLC to be executed by the applicable
Selling Members pursuant to Section 3.2.1.D(x); and (B) the applicable Selling
Members to be executed by the applicable LLC pursuant to Section 3.2.1.D(x).



     1.66. Other Definitions. Terms defined in any other part of this
Agreement shall have the defined meanings wherever capitalized herein. As used
in this Agreement, the terms “herein,” “hereof” and “hereunder” refer to this
Agreement in its entirety and are not limited to
any specific sections; and the term “person” means any natural person,
other legal entity, or combination of natural persons and/or other legal
entities acting as a unit. Wherever appropriate in this Agreement, the
singular shall be deemed to refer to the plural and the plural to the singular,
and pronouns of certain genders shall be deemed to comprehend either or both of
the other genders.



ARTICLE 2

COVENANT OF PURCHASE AND SALE AND INSTRUCTIONS TO ESCROW AGENT




     In accordance with and subject to the terms and conditions of this
Agreement, for and in consideration of the Purchase Price, each of the Selling
Members shall sell to Buyer, and Buyer shall purchase from each of the Selling
Members, one hundred percent (100%) of the Membership Interests in each of the
LLCs, and TRB, Inc. shall sell to Buyer, and Buyer shall purchase from TRB,
Inc., the Westpark Property, and the Patrick Center Sellers shall sell to
Buyer, and Buyer shall purchase from the Patrick Center Sellers, the Patrick
Center Property. No later than two (2) Business Days after the Effective Date,
Buyer shall deliver a copy of this Agreement to Escrow Agent, and Escrow Agent
shall promptly notify Seller Representative on behalf of all of the Seller
Parties, of such delivery and shall evidence its agreement to act as



40









 





Escrow
Agent hereunder by countersigning and delivering to Buyer and Seller
Representative, on behalf of all of the Seller Parties, a copy of this
Agreement.



     On the Closing Date, Seller Representative shall, in coordination with the
Buyer, cause its accountants to close the books of the LLCs. Seller
Representative shall, under its direction and control, cause a tax return to be
prepared and filed for each of the LLCs for the period from January 1, 2004
through the Closing Date. Further, Buyer shall not, and shall require that the
LLCs shall not, amend any tax returns filed by such LLCs with respect to any
periods ending on or prior to the Closing Date. The terms and conditions of
this paragraph shall not be applicable to (i) TRB, Inc. with respect to the
Westpark Property, and (ii) the Patrick Center Sellers with respect to the
Patrick Center Property.



     In connection with the administration of Escrow and Closing, Buyer and the
Seller Parties hereby agree, and advise and instruct Escrow Agent, as follows:



     2.1 Purchase Price. The aggregate Purchase Price for the
Membership Interests and the Westpark Property and Patrick Center Property
(hereinafter referred to as collectively, the “Westpark and Patrick Center
Properties”) shall be One Hundred Twenty Three Million Dollars
($123,000,000.00) (the “Purchase Price”), which shall be payable as provided
below. The Purchase Price shall be allocated among the Properties in
accordance with Exhibit P attached hereto (the “Purchase Price
Allocation”).



     2.1.1 Buyer’s Deposit.




2.1.1.1 Buyer’s Deposit. Within two (2) business days after
full execution of this Agreement by the Buyer and Seller Parties,
Buyer shall deliver to Escrow Agent a deposit (the “Deposit”)
either, at Buyer’s election, (i) in the form of cash or immediately
available federal funds in the amount of Five Million Dollars
($5,000,000.00), to be held in escrow in an interest bearing
account; or (ii) in the form of an irrevocable commercial letter of
credit (collectively with any additional letters of credit or replacements therefor or extensions
thereof being referred to herein as the “Credit”), having an
expiration date no earlier than six (6) months after the Effective
Date of this Agreement, and issued by a bank or other financial
institution that is acceptable to Seller in its reasonable
discretion and capable of being drawn in person at a financial
institution located in the Washington, DC metropolitan area. The
Deposit whether in the form of cash or Credit, shall be dealt with
by the Escrow Agent in conformity with the terms of this Agreement.
All interest earned on the Deposit shall be paid to the Party
entitled to receive the Deposit pursuant to the terms of this
Agreement. The term “Deposit”, as used in this Agreement, shall
include any interest that may accrue on any cash Deposit. Any
Credit given as the Deposit shall be issued to the Seller and
Escrow Agent, as their interests may appear, by a commercial
banking institution reasonably acceptable to Seller, shall be
delivered to Escrow Agent, and shall be in substantially the form
of Exhibit R attached hereto and incorporated herein by this
reference. Any Credit may be drawn upon: (1) by any Seller, if
Buyer is in default of its obligations under this Agreement beyond
any



41









 






applicable notice and cure period specified herein; or (2) by
Escrow Agent, if the Credit is due to expire within thirty (30)
days and the expiration date of the Credit has not been extended as
required by the terms of this Section 2.1.1. In the event that the
Credit shall be due to expire prior to the Closing Date, Buyer
shall, at least thirty (30) days prior to the expiration of the
Credit or each subsequent Credit, substitute a replacement Credit
or cause the issuer to extend the expiration date of the Credit in
such intervals of up to six (6) months each from time to time as
may be necessary to cause the expiration date of the Credit to be
at least thirty (30) days after the reasonably anticipated date of
Closing. If the Credit has not been extended or a replacement
Credit substituted therefor as hereinabove required, Escrow Agent
shall, upon the written direction of Seller, draw upon the Credit,
in which event the funds received upon such draw shall be deemed to
constitute the Deposit and shall be deposited in conformity with
the provisions of Section 2.1.1.2, and otherwise shall be held and
dealt with as provided in this Agreement for a cash Deposit.
Whenever Seller is entitled to the Deposit as provided in this
Agreement, Escrow Agent shall, upon the written direction of
Seller, immediately deliver the Credit to Seller. Whenever Escrow
Agent is required to draw against the Credit as provided in this
Agreement, Escrow Agent shall promptly do so and hold the proceeds
thereof in escrow as provided in this Agreement for a cash Deposit.
If a dispute shall arise with respect to the Deposit, Escrow Agent
shall continue to hold any Credit or other Deposit pursuant to the
terms of this Section 2.1.1, and Buyer shall extend the maturity of
the Credit for periods of up to six (6) months each as necessary
from time to time to permit resolution of such dispute prior to the
expiration of the Credit, and the provisions of this Section 2.1.1
permitting the Credit to be drawn shall apply in the event Buyer
shall fail to extend the Credit as required at any time. The
obligations of the Escrow Agent with respect to the Deposit shall
be governed by the terms and conditions set forth below in this
Article 2.




2.1.1.2 Investment of Cash Deposit. Any cash Deposit,
while held in Escrow, shall be held by the Escrow Agent in escrow
and invested in an interest bearing money market account that is
mutually approved by Seller Representative, on
behalf of the Seller Parties, and Buyer, such approval not to be
unreasonably withheld, conditioned or delayed. All interest earned
on any cash Deposit while in Escrow shall be added to, and become
part of, the Deposit.




2.1.1.3 Application of Deposit. In the event that Buyer
terminates this Agreement after the Effective Date in conformity
with Buyer’s rights hereunder, Escrow Agent shall, immediately upon
receipt of written notice thereof from both Buyer and Seller
Representative, on behalf of the Seller Parties, to Escrow Agent
deliver the Deposit to Buyer; provided, however, that if Buyer
terminates this Agreement pursuant to the terms and conditions of
Section 2.4 hereof on or before the Feasibility Period Expiration
Date, then Escrow Agent shall return the Deposit to Buyer upon its
receipt of such Buyer’s written request and without authorization
from any of the Seller Parties or the Seller Representative. If
Buyer, in breach of its obligations under this Agreement, defaults
in its obligations to



42









 






purchase the Membership Interests and the
Westpark and Patrick Center Properties subject to and in conformity
with the terms and conditions of this Agreement, the Seller
Parties, as their sole and exclusive remedy hereunder, shall be
entitled to receive the Deposit as liquidated damages (and not as a
penalty), as more fully provided in Section 3.22. At Closing,
Escrow Agent shall apply any cash Deposit against the Purchase
Price, or if the Deposit is in the form of a Credit, Escrow Agent
shall return the Credit to Buyer. Following the Feasibility Period
Expiration Date, the Deposit shall be non-refundable to the Buyer
except in the event of a failed condition precedent to the
obligation of the Buyer to close hereunder as set forth in Section
3.3 or in the event of a default by any of the Seller Parties under
this Agreement which remains uncured beyond any applicable notice
and cure period provided in this Agreement.




2.1.1.4 Duties and Liabilities of Escrow Agent. Escrow
Agent shall not be liable to any of the Parties in connection with
the performance of any duty imposed upon Escrow Agent hereunder for
any action taken by Escrow Agent in good faith in conformity with
the provisions of this Agreement in holding or dealing with the
Deposit, except for the negligence or misconduct of Escrow Agent.
Escrow Agent may act upon any instrument or other writing believed
by Escrow Agent in good faith to be genuine and to be executed and
presented by the proper person. Escrow Agent shall have no duties
or responsibilities other than as expressly set forth herein. In
the event that (i) Escrow Agent shall be uncertain as to its rights
or duties hereunder, (ii) Escrow Agent shall receive instructions
from the Buyer or Seller Representative on behalf of the Seller
Parties or the issuer of the Credit (if applicable) which, in the
reasonable opinion of Escrow Agent, are in conflict with any of the
provisions hereof, or (iii) Escrow Agent shall receive conflicting
demands from the Buyer or Seller Representative on behalf of the
Seller Parties or the issuer of the Credit (if applicable) with
respect to the Deposit or directing Escrow Agent to take any action
with respect to the Deposit, Escrow Agent may take affirmative
steps in order to terminate its duties hereunder by depositing the
Deposit with the clerk of court for the Circuit Court for
Montgomery County, Maryland in an action for interpleader, naming
the conflicting claimants as parties in such action. The
reasonable costs and expenses of Escrow Agent in connection with
filing such an interpleader action, not to exceed a total of $1,000, shall be divided equally between the
Buyer and the Seller Parties.




2.1.1.5 EINs. For the information of Escrow Agent, the
Employer Identification Number of the FP-LP is 52-2057842 and the
Employer Identification Number of Butera Properties, LLC (on behalf
of the Seller Parties) is 84-1417951.



     2.1.2 Balance of the Purchase Price (and Other Funds Required for
Closing). On the Closing Date, the FP LLC Buyers shall take title to
the Membership Interests, FP Westpark shall take title to the Westpark
Property, and FP Patrick Center shall take title to the Patrick Center
Property, with all of the Properties, except for the Gateway West II
Property, remaining subject to the lien of the “Existing Deed of Trust”
(as defined on



43









 





Exhibit Q hereto) and the terms and conditions of
the other “Existing Financing Documents” (as defined below in Section
2.3.5.1), and Buyer shall deposit in Escrow with Escrow Agent immediately
available federal funds in an amount equal to the difference between the
Purchase Price and the outstanding principal balance under the “Existing
Notes” (as defined below in Section 2.3.5.1) on the Closing Date,
plus Buyer’s share of Closing costs under Section 2.6, plus
the balance as of the Closing Date of the “Existing Lender Escrows” (as
defined below in Section 3.2.1.A(xxiv)(B)) held by the “Existing Lender”
(as defined below in Section 2.3.5.1), plus cash held in any
lockbox account, or any cash management account, or any “sweep” account,
or any other type of controlled account, with the Existing Lender not
delivered to the Seller Parties prior to Closing, minus the amount
of any cash Deposit (if applicable), and plus or minus (as
the case may be) the net amount of prorations and other credits under
Section 2.5.



     2.2 Escrow Deposits.



     2.2.1 By the Seller Parties. On the Closing Date, the Seller
Parties, as applicable, shall deposit or cause to be deposited in Escrow:




	 	(A)	 	For each applicable LLC in which the Selling
Members are selling their respective Membership Interests in
that LLC and that LLC’s respective Property or Properties:






(i) An Assignment of Membership Interests duly executed by
each of the applicable Selling Members for all of the
applicable LLC Membership Interests.




(ii) The applicable LLC Instrument Amendments for the
applicable LLC duly executed by applicable LLC and each of
the applicable Selling Members.




(iii) The Closing Indemnity Agreement for the applicable LLC
duly executed by the applicable Selling Members.




(iv) The Waiver of Claims for the applicable LLC duly
executed by the applicable Selling Members.




(v) A FIRPTA Certificate duly executed by the applicable
Manager on behalf of the applicable LLC with respect to that
LLC’s Property or Properties subject to and in conformity
with the terms and provisions of this Agreement.




(vi) The applicable Seller’s Closing Certificate, dated as of
Closing, duly executed by the applicable Manager on behalf of
the applicable LLC, subject to and in conformity with the
terms and provisions of this Agreement, that all of the
warranties and representations contained in Section
3.2.1.(A), relating to the applicable LLC’s Property or
Properties,



44









 






or the applicable LLC or the applicable LLC
Membership Interests or the applicable Selling Members, are
true and correct in all material respects as of the Closing
Date, except for matters specified in such Seller’s Closing
Certificate, which matters must be reasonably satisfactory to
Buyer.




(vii) The original (or, where an original is not available, a
copy) of each applicable Lease and Service Contract, and all
applicable Plans, Environmental Reports and Property Document
Deliveries for the applicable Properties (the “LLC
Originals”); provided, however, that, instead of delivering
the LLC Originals and other documents and materials
identified above to Buyer through Escrow, each applicable LLC
may deliver any or all of the LLC Originals directly to
Buyer.




(viii) All tenant files pertaining to the operation of the
applicable LLC’s Property or Properties not theretofore
delivered, subject to the applicable Seller Parties’
continued right of access thereto for a reasonable period
after Closing for proper purposes.




(ix) An Owner’s Affidavit from the applicable Manager for the
applicable LLC subject to and in conformity with the terms
and provisions of this Agreement.




(x) A “gap” indemnity agreement from the applicable Manager
for the applicable LLC subject to and in conformity with the
terms and provisions of this Agreement and as is customarily
required by the Title Company in connection with conducting a
“New York style” closing.




(xi) Such other documents as the Title Company may reasonably
require to effect Closing on the purchase and sale of the
applicable LLC Membership Interest, on terms and conditions
reasonably acceptable to the applicable Seller, including,
but not limited to, such documents that apply to the
applicable LLC as reflected on Schedule B-1 to the
applicable Title Commitment, as the same may be amended to
reflect the acquisition of the applicable LLC Membership
Interests.




(xii) The Final Certified Rent Roll for the applicable LLC’s
Property or Properties (as defined in Section 3.3.5).




(xiii) The Affidavit for Non-Imputation Endorsement from the
applicable Selling Members subject to and in conformity with
the terms and provisions of this Agreement.




(xiv) Such documents as may be reasonably required to permit
Buyer to take title to the applicable LLC Membership
Interests with all of the Properties remaining subject to the
lien of the Existing Deed of Trust and the other Existing
Financing Documents, on terms and conditions


45









 





reasonably
acceptable to Seller.




(xv) The Updated Balance Sheet for the applicable LLC (as
defined in Section 3.3.7(iv)).




(xvi) Such other documents and instruments as may be
reasonably required from the applicable LLC and/or the
applicable Selling Members to consummate the transaction
contemplated by this Agreement with respect to the applicable
LLC Membership Interests subject to and in conformity with
the terms and provisions hereof and on terms and conditions


reasonably acceptable to Seller.




	 	(B)	 	For TRB, Inc. and the Westpark Property:






(i) A special warranty deed duly executed by TRB, Inc.,
conveying fee simple title in and to the Westpark Property
subject to the Westpark Property Permitted Exceptions (the
“Westpark Deed”).




(ii) An Assignment and Assumption of Leases and Security
Deposits duly executed by TRB, Inc. assigning to Buyer all
Westpark Leases and unapplied Security Deposits, with Buyer
assuming all of the obligations of TRB, Inc. under the
Westpark Leases which accrue after the Closing Date (the
“Westpark Lease Assignment”).




(iii) An Assignment and Assumption of Service Contracts duly
executed by TRB, Inc. assigning to Buyer all Westpark Service
Contracts, with Buyer assuming all of the obligations of TRB,
Inc. under the Westpark Service Contracts which accrue after
the Closing Date (the “Westpark Service Contract
Assignment”).




(iv) A Bill of Sale duly executed by TRB, Inc. conveying to
Buyer all of the Westpark Personal Property (the “Westpark
Bill of Sale”).




(v) The Closing Indemnity Agreement for the Westpark Property
duly executed by the TRB, Inc.




(vi) A FIRPTA Certificate duly executed by TRB, Inc. with
respect to -the Westpark Property subject to and in
conformity with the terms and provisions of this Agreement.




(vii) A Seller’s Closing Certificate, dated as of Closing,
duly executed by TRB, Inc., subject to and in conformity with
the terms and provisions of this Agreement, that all of the
warranties and representations contained in Section 3.2.1,
relating to the Westpark Property or TRB, Inc. are true and
correct in all material respects as of the Closing Date,
except for matters specified in such Seller’s Closing
Certificate, which matters must



46









 






be reasonably satisfactory to Buyer.




(viii) The original (or, where an original is not available,
a copy) of each Westpark Lease, and Westpark Service
Contract, all Plans for the Westpark Property, all
Environmental Reports for the Westpark Property and all
Property Document Deliveries for the Westpark Property (the
“TRB, Inc./Westpark Originals”); provided, however, that,
instead of delivering the TRB, Inc./Westpark Originals and
other documents and materials identified above to Buyer
through Escrow, TRB, Inc. may deliver any or all of the TRB,
Inc./Westpark Originals directly to Buyer.




(ix) All tenant files pertaining to the operation of the
Westpark Property not theretofore delivered, subject to TRB,
Inc.’s continued right of access thereto for a reasonable
period after Closing for proper purposes.




(x) An Owner’s Affidavit from TRB, Inc. for the Westpark
Property subject to and in conformity with the terms and
provisions of this Agreement.




(xi) A “gap” indemnity agreement from TRB, Inc. for the
Westpark Property subject to and in conformity with the terms
and provisions of this Agreement and as is customarily
required by the Title Company in connection with conducting a
“New York style” closing.




(xii) Such other documents as the Title Company may
reasonably require to effect Closing on the purchase and sale
of the Westpark Property, on terms and conditions reasonably
acceptable to Seller, including, but not limited to, such
documents that are applicable to TRB, Inc. as reflected on
Schedule B-1 to the Westpark Title Commitment.




(xiii) The Final Certified Rent Roll for the Westpark
Property (as defined in Section 3.3.5).




(xiv) A General Assignment and Assumption Agreement duly
executed by TRB, Inc. assigning to Buyer all assignable
Permits and Plans with respect to the Westpark Property, with
Buyer assuming all of the obligations of TRB, Inc. in
connection with such assignable Permits and Plans which
accrue after the Closing Date (the “Westpark General
Assignment”).




(xv) Such documents as may be reasonably required to permit
Buyer to take title to the Westpark Property subject to the
lien of the Existing Deed
of Trust and the other Existing Financing Documents, on terms
and conditions reasonably acceptable to Seller.




(xvi) Such other documents and instruments as may be
reasonably



47









 






required from TRB, Inc. to consummate the
transaction contemplated by this Agreement with respect to
the Westpark Property subject to and in conformity with the
terms and provisions hereof on terms and conditions
reasonably acceptable to Seller.




	 	(C)	 	For Patrick Center Sellers and the Patrick Center
Property:






(i) A special warranty deed duly executed by each of the
Patrick Center Sellers, conveying fee simple title in and to
the Patrick Center subject to the Patrick Center Permitted
Exceptions (the “Patrick Center Deed”).




(ii) An Assignment and Assumption of Leases and Security
Deposits duly executed by each of the Patrick Center Sellers
assigning to Buyer all Patrick Center Leases and unapplied
Security Deposits, with Buyer assuming all of the obligations
of the Patrick Center Sellers under the Patrick Center Leases
which accrue after the Closing Date (the “Patrick Center
Lease Assignment”).




(iii) An Assignment and Assumption of Service Contracts duly
executed by each of the Patrick Center Sellers assigning to
Buyer all Patrick Center Service Contracts, with Buyer
assuming all of the obligations of the Patrick Center Sellers
under the Patrick Center Service Contracts which accrue after
the Closing Date (the “Patrick Center Service Contract
Assignment”).




(iv) A Bill of Sale duly executed by each of the Patrick
Center Sellers conveying to Buyer all of the Patrick Center
Personal Property (the “Patrick Center Personal Property”).




(v) The Closing Indemnity Agreement for the Patrick Center
Property duly executed by each of the Patrick Center Sellers.




(vi) A FIRPTA Certificate duly executed by each of the
Patrick Center Sellers with respect to the Patrick Center
Property subject to and in conformity with the terms and
provisions of this Agreement.




(vii) A Seller’s Closing Certificate, dated as of Closing,
duly executed by each of the Patrick Center Sellers, subject
to and in conformity with the terms and provisions of this
Agreement, that all of the warranties and representations
contained in Section 3.2.1, relating to the Patrick Center
Property or the applicable Patrick Center Seller are true and
correct in all material respects as of the Closing Date,
except for matters specified in such Seller’s Closing
Certificate, which matters must be reasonably satisfactory to Buyer.



48









 






(viii) The original (or, where an original is not available,
a copy) of each Patrick Center Lease and Patrick Center
Service Contract, all Plans for the Patrick Center Property,
all Environmental Reports for the Patrick Center Property and
all Property Document Deliveries for the Patrick Center
Property (the “Patrick Center Originals”); provided, however,
that, instead of delivering the Patrick Center Originals and
other documents and materials identified above to Buyer
through Escrow, the Patrick Center Sellers may deliver any or
all of the Patrick Center Originals directly to Buyer.




(ix) All tenant files pertaining to the operation of the
Patrick Center Property not theretofore delivered, subject to
the Patrick Center Sellers’ continued right of access thereto
for a reasonable period after Closing for proper purposes.




(x) An Owner’s Affidavit from each of the Patrick Center
Sellers subject to and in conformity with the terms and
provisions of this Agreement.




(xi) A “gap” indemnity agreement from the Patrick Center
Sellers for the Patrick Center Property subject to and in
conformity with the terms and provisions of this Agreement,
as is customarily required by the Title Company in connection
with conducting a “New York style” closing.




(xii) Such other documents as the Title Company may
reasonably require to effect Closing on the purchase and sale
of the Patrick Center Property, on terms and conditions
reasonably acceptable to Seller, including, but not limited
to, such documents that are applicable to each of the Patrick
Center Sellers as reflected on Schedule B-1 to the Patrick
Center Title Commitment.




(xiii) The Final Certified Rent Roll for the Patrick Center
Property (as defined in Section 3.3.5).




(xiv) A General Assignment and Assumption Agreement duly
executed by each of the Patrick Center Sellers assigning to
Buyer all assignable Permits and Plans with respect to the
Patrick Center Property, with Buyer assuming all of the
obligations of the Patrick Center Sellers in connection with
such assignable Permits and Plans which accrue after the
Closing Date (the “Patrick Center General Assignment”).




(xv) Such documents as may be reasonably required to permit
Buyer to take title to the Patrick Center Property subject to
the lien of the Existing Deed of Trust and the other Existing
Financing Documents, on terms and conditions reasonably
acceptable to Seller.




49










 





(xvi) Such other documents and instruments as may be reasonably
required from each of the Patrick Center Sellers to
consummate the transaction contemplated by this Agreement
with respect to the Patrick Center Property subject to and in
conformity with the terms and provisions hereof on terms and
conditions reasonably acceptable to Seller.



Each of the documents specified in this Section 2.2.1 (collectively,
“Seller’s Closing Documents”) shall, as applicable, have been duly
executed and, if appropriate, acknowledged, by the applicable Seller
Parties and shall be subject to and in conformity with the terms and
provisions hereof, and otherwise in form and content reasonably
acceptable to both Seller and Buyer (to extent that the form of any such
document is not attached to this Agreement).



     2.2.2 By Buyer. In addition to the deposit of funds under Section
2.1.2, on the Closing Date, the Buyer shall duly execute, deliver and
deposit or cause to be deposited in Escrow:




	(A)	 	For each applicable LLC in which the Selling
Members are selling their respective Membership Interests in
the LLC and that LLC’s respective Property or Properties:





(i) A counterpart of the Assignment of Membership Interests
for all of the applicable LLC Membership Interests.



(ii) Counterparts of the applicable LLC Instrument Amendments
for each applicable LLC.



(iii) Counterparts of the Waiver of Claims duly executed by
the applicable Selling Members pursuant to Section
3.2.1.D(x).



(iv) Counterparts of the Closing Indemnity Agreement duly
executed by the applicable Selling Members.



(v) Buyer’s Closing Certificate, dated as of Closing, duly
executed by Buyer, subject to and in conformity with the
terms and provisions of this Agreement, that all of the
warranties and representations contained in Section 3.2.2 are
true and correct in all material respects as of the Closing
Date, except for matters specified in such Buyer’s Closing
Certificate, which matters are reasonably satisfactory to
Seller.



(vi) Such other documents as the Title Company may reasonably
require to effect Closing on the purchase and sale of the
applicable LLC Membership Interests, on terms and conditions
reasonably acceptable to Buyer, including, but not limited
to, such documents that apply to Buyer as reflected on
Schedule B-1 to each applicable Title Commitment, as
the same may be amended to reflect the acquisition of the
applicable LLC


50









 








Membership Interests.



(vii) Such documents as may be reasonably required to permit
Buyer to take title to the applicable LLC Membership
Interests with all of the Properties remaining subject to the
lien of the Existing Deed of Trust and the other Existing
Financing Documents, on terms and conditions reasonably
acceptable to Buyer, including, without limitation, all
guaranties that the Existing Lender requires to approve the
assumption of the Existing Financing by Buyer consistent with
the requirements, terms and conditions of the Existing
Financing Documents.



(viii) Such other documents and instruments as may be
reasonably required from Buyer to consummate the transaction
contemplated by this Agreement with respect to the applicable
LLC Membership Interests subject to and in conformity with
the terms and provisions hereof and on terms and conditions
reasonably acceptable to Buyer.




	(B)	 	For TRB, Inc. and the Westpark Property:





(i) Counterparts of the Westpark Lease Assignment.



(ii) Counterparts of the Westpark Service Contract Assignment.



(iii) Counterparts of the Westpark Bill of Sale.



(iv) Counterparts of the Westpark General Assignment.



(v) Counterparts of the Closing Indemnity Agreement for the
Westpark Property duly executed by TRB, Inc.



(vi) Buyer’s Closing Certificate, dated as of Closing, duly
executed by Buyer, subject to and in conformity with the
terms and provisions of this Agreement, that all of the
warranties and representations contained in Section 3.2.2 are
true and correct in all material respects as of the Closing
Date, except for matters specified in such Buyer’s Closing
Certificate, which matters are reasonably satisfactory to
TRB, Inc.



(vii) Such other documents as the Title Company may
reasonably require to effect Closing on the purchase and sale
of the Westpark Property, on terms and conditions reasonably
acceptable to Buyer, including, but not limited to, such
documents that apply to Buyer as reflected on Schedule
B-1 to the Westpark Title Commitment.



(viii) Such documents as may be reasonably required to permit
Buyer to take title to the Westpark Property subject to the
lien of the Existing Deed of Trust and the other Existing
Financing Documents, on terms and


51









 








conditions reasonably
acceptable to Buyer, including, without limitation, all
guaranties that the Existing Lender requires to approve the
assumption of the Existing Financing by Buyer consistent with
the requirements, terms and conditions of the Existing
Financing Documents.



(ix) Such other documents and instruments as may be
reasonably required from Buyer to consummate the transaction
contemplated by this Agreement with respect to the Westpark
Property subject to and in conformity with the terms and
provisions hereof and on terms and conditions reasonably
acceptable to Buyer.




	(C)	 	For the Patrick Center Sellers and the Patrick
Center Property:





(i) Counterparts of the Patrick Center Lease Assignment.



(ii) Counterparts of the Patrick Center Service Contract Assignment.



(iii) Counterparts of the Patrick Center Bill of Sale.



(iv) Counterparts of the Patrick Center General Assignment.



(v) Counterparts of the Closing Indemnity Agreement for the
Patrick Center Property duly executed by each of the Patrick
Center Sellers.



(vi) Buyer’s Closing Certificate, dated as of Closing, duly
executed by the Buyer, subject to and in conformity with the
terms and provisions of this Agreement, that all of the
warranties and representations contained in Section 3.2.2 are
true and correct in all material respects as of the Closing
Date, except for matters specified in such Buyer’s Closing
Certificate, which matters are reasonably satisfactory to the
Patrick Center Sellers.



(vii) Such other documents as the Title Company may
reasonably require to effect Closing on the purchase and sale
of the Patrick Center Property, on terms and conditions
reasonably acceptable to Buyer, including, but not limited
to, such documents that apply to Buyer as reflected on
Schedule B-1 to the Westpark Title Commitment.



(viii) Such documents as may be reasonably required to permit
Buyer to take title to the Patrick Center Property subject to
the lien of the Existing Deed of Trust and the other Existing
Financing Documents, on terms and conditions reasonably
acceptable to Buyer, including, without limitation, all
guaranties that the Existing Lender requires to approve the
assumption of the Existing Financing by Buyer consistent with
the requirements, terms and conditions of the Existing
Financing Documents.



(ix) Such other documents and instruments as may be
reasonably



52









 








required from Buyer to consummate the transaction
contemplated by this Agreement with respect to the Patrick
Center Property subject to and in conformity with the terms
and provisions hereof and on terms and conditions reasonably
acceptable to Buyer.



Each of the documents specified in this Section 2.2.2 (“Buyer’s Closing
Documents”)
shall have been duly executed and, if appropriate, acknowledged by Buyer,
and shall be subject to and in conformity with the terms and provisions
hereof, and otherwise in form and content reasonably acceptable to both
Seller and Buyer (to extent that the form of any such document is not
attached to this Agreement).



2.3 Due Diligence; Title Insurance; Existing Financing.



2.3.1 Buyer shall have the right at any time to examine title to, and the
operation and condition of, the Properties and receive copies of any and
all documents relating to title to, or the operation or condition of, the
Properties, and, subject to the rights of Tenants at the Properties, to
enter upon, test, study, survey, inspect, and conduct engineering,
architectural, environmental, soil, economic and other tests on the
Properties as Buyer deems necessary or desirable in order to evaluate the
Properties; provided, however, that Buyer shall (i) give Seller
reasonable prior written notice of the time and place of such entry, in
order to permit a representative of Seller to accompany Buyer; (ii) use
its best efforts not to interfere with the operations of the Properties
or any Tenant thereof; (iii) restore any damage to the Properties or any
adjacent property caused by such actions; (iv) not enter into any
Tenant’s leased premises or communicate with any Tenant unless
accompanied by Seller or a Seller’s representative in each instance; (v)
prior to entry onto the Properties, furnish Seller with a certificate of
general liability and property damage insurance maintained by Buyer with
single occurrence coverage of at least $1,000,000 (and aggregate coverage
of $2,000,000) and naming Seller and its property manager as additional
insureds; and (vi) not conduct any environmental investigations or
testing other than a standard “Phase I” investigation, without the prior
written approval of Seller in its sole and absolute discretion. The LLCs
shall reasonably cooperate with Buyer (at no cost, liability or expense
to the LLCs) in Buyer’s conducting such due diligence, and each of the
LLCs hereby grants to Buyer access to the Properties to conduct such due
diligence subject to the terms and provisions of this Agreement. Seller
Representative shall also permit Buyer and its accountant’s full access
to the books and records of the LLCs upon reasonable prior telephonic
notice so as to permit Buyer to review, verify, and/or audit the
financial data furnished to Buyer by the LLCs pursuant to the terms of
this Agreement.



2.3.2 Prior to the Effective Date, the LLCs have delivered to Buyer, and
Buyer hereby acknowledges receipt of, the Existing Title Policies and the
Surveys. Promptly following the Effective Date, (i) Buyer shall order
the Title Commitments from the Title Company; and (ii) Buyer may order an
update of the Surveys from an engineering firm selected by Buyer (the
“Buyer’s Survey Update(s)”). Within seven (7) days after the Feasibility
Period Expiration Date (the “Title/Survey Objection Date”), Buyer shall
advise the Seller by written notice (the “Buyer’s Title Objection
Notice”) of any objections that Buyer may



53









 








have to (1) the title
exceptions reflected in the Title Commitments; (2) any matters reflected
on the Surveys, as updated by the Buyer’s Survey Updates, if applicable;
and (3) any zoning matters affecting any of the Properties. Any title
exceptions reflected in the Title Commitments or matters reflected on the
Surveys, as updated by the Buyer’s Survey Updates, if applicable, or
zoning matters affecting any of the Properties, as to which Buyer does
not object in the Buyer’s Title Objection Notice shall be included within
the meaning of the term “Deer Park Property Permitted Exceptions,”
“Gateway West Property Permitted Exceptions,” “Wedgewood Property
Permitted Exceptions”, “Georgia
Pacific Boulevard Property Permitted Exceptions”, “Radtech Property
Permitted Exceptions”, “Woodlands Property Permitted Exceptions”, “Old
Courthouse Square Property Permitted Exceptions”, “Lindbergh Property
Permitted Exceptions”, “Gateway Center Property Permitted Exceptions”,
“Girard Business Center Property Permitted Exceptions”, “Girard Place
Property Permitted Exceptions”, “Goldenrod Lane Property Permitted
Exceptions”, “Gateway West II Property Permitted Exceptions”, “Westpark
Property Permitted Exceptions”, and/or “Patrick Center Property Permitted
Exceptions”, as applicable. By no later than five (5) Business Days
after the Title/Survey Objection Date, the applicable Seller Parties
shall advise Buyer by written notice (the “Seller’s Title Notice”) as to
whether the applicable Seller Parties intend to correct the objectionable
matters reflected in the Buyer’s Title Objection Notice. Seller shall
have no obligation whatsoever to correct any objectionable matters
reflected in the Buyer’s Title Objection Notice, subject to Section 2.3.4
below. In the event that Purchaser does not receive a Seller’s Title
Notice or Seller’s Title Notice does not address any of the objectionable
matters raised by Buyer in Buyer’s Title Objection Notice, Seller shall
be deemed to have elected not to cure any such objectionable items raised
in Buyer’s Title Objection Notice. Any objectionable matters that the
applicable Seller agrees to correct in its sole and absolute discretion
shall be corrected by the applicable Seller prior to Closing and the
correction of such objectionable matters by the applicable Seller shall
be a condition precedent to Buyer’s obligations to proceed to Closing
hereunder. Notwithstanding the foregoing provision, any objectionable
matter(s) that the applicable Seller agrees to correct, but is unable to
correct prior to Closing, shall not constitute a default on the part of
any of the Seller Parties, but shall simply be a failed condition
precedent to the obligation of the Buyer to close hereunder. In addition
to (and not in limitation of) Buyer’s other termination rights specified
in Section 2.4, if the Seller’s Title Notice reflects that any of the
Seller Parties does not intend to correct some or all of the
objectionable matters specified in the Buyer’s Title Objection Notice or
if Seller is deemed to have elected not to cure such items, Buyer shall
have the right, exercisable by written notice to the Seller given on or
before the earlier to occur of (i) the fifth (5th) Business Day following
Buyer’s receipt of Seller’s Title Notice, or (ii) the
tenth (10th)
business day following Buyer’s delivery of Buyer’s Title Objection
Notice, in the event that Buyer does not receive a Seller’s Title Notice
addressing all items raised in Buyer’s Title Objection Notice, to
terminate this Agreement. Buyer’s failure to timely respond shall be
deemed Buyer’s option to terminate this Agreement. In the
 event that
Buyer elects not to terminate this Agreement and to proceed to Closing
hereunder, the matters reflected in Buyer’s Title Objection Notice that
any of the Seller Parties elects not to correct (as reflected in the
Seller’s Title Notice) shall be deemed “Permitted Exceptions” hereunder.



54









 








2.3.3 Issuance of Title Policies. Buyer shall have the right to
cause the Title Company to issue to Buyer as soon as practicable after
Closing the Title Policies pursuant to the Title Commitments in the
applicable amount of the Purchase Price as reflected on the Purchase
Price Allocation attached hereto as Exhibit P insuring good of
record and in fact and marketable fee simple title to each of the
Properties.



2.3.4 Satisfaction and Removal of Liens, Monetary Encumbrances and
Judgments. Notwithstanding any other provision hereof, on or before
Closing (or from proceeds of Closing), the Seller Parties shall be
obligated at their sole cost and
expense to satisfy and release of record: (i) any mechanics’, materialman
or similar liens, and any monetary liens evidencing a claim against any
of the Seller Parties for the satisfaction of any monetary obligations in
a liquidated amount (including any tax and/or judgment liens other than
real estate tax liens and assessments which are a lien but not yet
billed, or not yet due and payable) for an aggregate liquidated sum of up
to $500,000 filed against the Properties and affecting title to the
Properties or the Membership Interests, as applicable, and the Selling
Members shall convey the Membership Interests to the FP LLC Buyers free
and clear of all such liens, encumbrances and judgments, with the
applicable LLC Properties free and clear of all such liens, encumbrances
and judgments, and TRB, Inc. and the Patrick Center Sellers,
respectively, shall convey the Westpark and Patrick Center Properties
free and clear of all such liens, encumbrances and judgments; and (ii)
all liens securing any financing obtained by any of the Seller Parties,
except for the lien of the Existing Deed of Trust and other Existing
Financing Documents. The Parties hereto acknowledge that the lien of the
Existing Deed of Trust and other Existing Financing Documents does not
encumber the Gateway West II Property.



2.3.5. Existing Financing.



2.3.5.1 The Properties are currently encumbered by and subject to
the liens of the Existing Deeds of Trust securing two (2) loans
previously advanced by Credit Suisse First Boston Mortgage Capital
LLC, with one (1) Existing Deed of Trust being in the original
principal amount of Seventy Five Million Four Hundred Two Thousand
Five Hundred Ninety Nine Dollars ($75,402,599.00), with a current
outstanding principal balance of approximately Seventy Million Four
Hundred Eighty Seven Thousand Five Hundred Thirty Dollars and
Twenty-One Cents ($70,487,530.21), and with the other Existing Deed
of Trust being in the original principal amount of Seven Million
Five Hundred Ninety Seven Thousand Four Hundred Forty One Dollars
($7,597,441.00), with a current outstanding principal balance of
approximately Seven Million One Hundred Two Thousand Two Hundred
Ten Dollars and Fifty-Eight Cents ($7,102,210.58) (collectively the
“Existing Financing”), which Existing Financing is currently held
by JP Morgan Chase Bank, as Trustee (the “Existing Lender”). The
Existing Financing is evidenced by two (2) promissory notes: (i) a
consolidated promissory note dated August 28, 1998 in the original
face amount of Seventy Five Million Four Hundred Two Thousand Five
Hundred Ninety Nine Dollars ($75,402,599.00), bearing interest at
the rate of six and 71/100 percent (6.71%) per annum, payable



55









 








in
monthly installments of principal and interest in the amount of Four
Hundred Eighty Seven Thousand Fifty Six Dollars and Thirty-Eight
Cents ($487,056.38); and (ii) a promissory note dated August 28, 1998
in the original face amount of Seven Million Five Hundred Ninety
Seven Thousand Four Hundred Forty One Dollars ($7,597,441.00),
bearing interest at the rate of six and 71/100 percent (6.71%) per
annum, payable in monthly installments of
principal and interest in the amount of Forty Nine Thousand Seventy
Five Dollars and Two Cents ($49,075.02) (collectively referred to
herein as the “Existing Note”). The Existing Lender is the current
holder of the Existing Note and the beneficiary of the Existing
Deeds of Trust (collectively referred to herein as the “Existing
Deed of Trust”). A list of all of the documents evidencing and
securing the Existing
Financing (collectively, the “Existing Financing Documents”) is
attached hereto as Exhibit Q.



2.3.5.2 Subject to the terms and conditions of this Agreement, at
Closing, Buyer shall take title to the Membership Interests and the
Westpark and Patrick Center Properties, as applicable, with all of
the Properties, except for the Gateway West II Property, remaining
subject to the lien of the Existing Deed of Trust and the terms and
conditions of the other Existing Financing Documents. During the
period from the Effective Date and until Closing hereunder, the
Seller Parties and the Buyer shall use diligent, commercially
reasonable, good faith efforts to obtain the approval of the
Existing Lender to the transactions contemplated by this Agreement
and a written release executed by the Existing Lender of all
obligations of T. Richard Butera under or in connection with the
Existing Financing in form and content reasonably acceptable to T.
Richard Butera, the Seller Representative named herein (the
“Existing Financing Release”). The obligations of the Seller
Parties to proceed to Closing hereunder shall be conditioned upon
the Seller Representative receiving at Closing the Existing
Financing Release.



2.3.5.3 Each of the LLCs covenants, agrees and warrants to the
Buyer as follows with respect to the Existing Financing: (i) the
list of the Existing Financing Documents attached hereto as
Exhibit Q constitutes all of the documents or instruments
evidencing or securing the Existing Financing, there being no
amendments or modifications thereto except as noted on Exhibit
Q hereto; (ii) if not previously delivered, within five (5)
Business Days after the Effective Date hereof, the LLCs shall
deliver to Buyer, true, correct and complete copies of each the
Existing Financing Documents listed on Exhibit Q hereto; and
(iii) each of the LLCs, TRB, Inc., Thirty Pat and Woodstone shall
until Closing (A) fully and timely perform all of their respective
payment and other material obligations under the Existing Financing
Documents; (B) not make any voluntary principal prepayments of the
Existing Note (i.e., no principal payments greater than those
mandatory principal payments presently required by the terms of the
Existing Note); and (C) not join in or consent to any modifications
of the Existing Financing Documents without Buyer’s prior written
consent thereto in each instance which consent may be granted or
withheld in Buyer’s reasonable



56









 








discretion.



2.3.5.4 The obligations of the Buyer to proceed to Closing
hereunder shall be conditioned upon Buyer receiving at Closing
evidence that the LLCs have paid the mortgage payment due and
payable for the month in which Closing occurs and a statement
(which may be included as a part of any loan assignment and/or
assumption agreement) from the Existing Lender (the “Existing
Lender Statement”), dated no more than ten (10) Business Days prior
to Closing, setting forth the following with respect to the
Existing Financing: (i) the outstanding principal balance of the
Existing Note; (ii) the interest rate payable on the Existing Note
and the latest date to which interest has been paid thereon; (iii)
the current balance of the escrow accounts for real property taxes
and insurance premiums, the current balance of the replacement
reserves, the current balance of
the tenant improvement and/or leasing commission reserves, and any
other reserve or escrow accounts required to be maintained pursuant
to the terms of the Existing Financing Documents; and (iv) the
amount of the required monthly payment to each such escrow or
reserve and the latest date to which such payments have been made.
The LLCs agree to reasonably cooperate with Buyer, at no cost to
the LLCs (other than their own legal fees), in obtaining the
Existing Lender Statement and otherwise causing the Existing Lender
to permit the FP LLC Buyers to take title to the Membership
Interests and FP Westpark to take title to the Westpark Property
and FP Patrick Center to take title to Patrick Center Property at
Closing, with all of the Properties, except for the Gateway West II
Property, remaining subject to the lien of the Existing Deed of
Trust. Buyer shall pay the costs associated with the assumption of
the Existing Financing as and when required, including, without
limitation, all assumption fees, application fees, non-refundable
deposit fees or retainers, and all other charges required to be
paid to the Existing Lender and all of the Existing Lender’s legal
fees and other consultant fees, which obligations shall survive
Closing or other termination of this Agreement.



          2.4 Termination Prior to Feasibility Period Expiration Date. Buyer
shall have the right, in its sole and absolute discretion, to either proceed to
Closing hereunder in accordance with the terms hereof following the Feasibility
Period Expiration Date or to terminate this Agreement on or before the
Feasibility Period Expiration Date. In the event that Buyer has not given
Seller Representative, on behalf of the Seller Parties, written notice that
Buyer intends to proceed under this Agreement following the Feasibility Period
Expiration Date on or before 5:00 p.m., Eastern Standard Time (the “Notice to
Proceed”), on the Feasibility Period Expiration Date, Buyer shall be deemed to
have terminated this Agreement, in which event, the Parties shall have no
further liabilities or obligations hereunder, except for such liabilities and
obligations that expressly survive the termination of this Agreement, and the
Deposit, together with all accrued interest thereon, shall be refunded in full
to Buyer by Escrow Agent. In the event that Buyer timely issues the Notice to
Proceed to Seller in conformity with this Section 2.4, the Buyer and the Seller
Parties shall proceed to Closing under this Agreement subject to and upon the
terms and conditions hereof, and the Deposit shall be non-refundable except in
the event of a failed condition precedent to Buyer’s obligations to close
hereunder or in the event of a default



57









 





hereunder by any of the Seller Parties,
which continues beyond the expiration of any applicable notice or cure
period.



     2.5 Prorations and Credits.




2.5.1 Prorated Items. The following items (on an accrual basis)
shall be prorated between the applicable Seller Parties and the Buyer
with respect to each of the applicable Properties as of 12:00:01 a.m.,
local time, on the Closing Date:




2.5.1.1 Rents. Rents and other fixed periodic payments
under each Lease. No proration shall be made of any such rents or
other payments that have not been actually received from Tenants as
of the Closing Date. 




2.5.1.2 Taxes. All real estate taxes and assessments,
general and special (including, without limitation, the current
year’s installment of any bond
assessments) and all personal property taxes with respect to the
Properties.




2.5.1.3 Operating Expenses. For purposes hereof,
“Operating Expenses” shall mean all costs, expenses, charges and
fees relating to the ownership, management, operation, maintenance
and repair of the Properties, including, without limitation, all
assessments and charges imposed with respect to the Properties
pursuant to any declaration of covenants, conditions and
restrictions, water and sewer charges, public telephone and other
public utilities, common area maintenance and utility charges,
vault charges, personal property taxes, and periodic charges
payable under the Service Contracts, but not including any costs,
expenses, charges or fees that are the direct responsibility of a
Tenant under a Lease. All Operating Expenses shall be prorated
between Seller and Buyer as of the Closing Date based on the actual
number of days in the month during which the Closing Date occurs
for monthly expenses, and based on a 365-day year for annual
expenses. Seller shall be responsible for all Operating Expenses
attributable to the period before the Closing Date and Buyer shall
be responsible for all Operating Expenses attributable to the
period on and after the Closing Date. To the extent commercially
reasonable and practicable, Seller and Buyer shall obtain billings
and meter readings as of the Business Day preceding the Closing
Date to aid in the proration of charges for gas, electricity and
other utility services that are not the direct responsibility of
Tenants. If billings or meter readings as of the Business Day
preceding the Closing Date are obtained, adjustments of any costs,
expenses, charges or fees shown thereon shall be made in accordance
with such billings or meter readings. If billings or meter
readings as of the Business Day preceding the Closing Date are not
available for any utility service, the charges therefor shall be
adjusted at the Closing on the basis of the per diem charges for
the most recent prior period for which bills were issued.




2.5.1.4 Other Revenue and Expenses. All other recurring
operating receipts, recurring revenues and recurring expenses or
charges attributable to the Properties, including (without
limitation) recurring charges under each of the



58









 






Service Contracts,
electric utility charges paid by Tenants of the Properties to the
applicable Seller Parties, utility expenses, water and sewer rents,
or similar charges or fees, inventories of supplies and fuel oil
and gas (if applicable), and accrued but unpaid interest on the
Existing Financing, but excluding insurance premiums. The
applicable Seller’s insurance with respect to its respective
Properties shall terminate as of Closing and shall not be assigned
to Buyer.



2.5.2 Credits. At Closing, the applicable Seller Parties shall
deliver to Buyer, or make appropriate adjustments for, all unapplied
Tenant security deposits and the like, together with contractual interest
(if any) owed to Tenants, held by each of the LLCs, or TRB, Inc., or the
Patrick Center Sellers. Pursuant to the applicable Closing Indemnity
Agreement, the applicable LLC and the Buyer shall indemnify, defend and
save harmless the applicable Manager, TRB, Inc. and the Patrick Center
Sellers, as applicable, from and against any claims relating to the
applicable LLC’s or the Buyer’s application or holding of such deposits
and interest, which the Buyer has received or for which an adjustment has
been made at Closing, from and after Closing, but the Buyer shall not
indemnify any of the Seller Parties for any amount in excess of the sums
so delivered or the amount of such adjustment. Pursuant to the
applicable Closing Indemnity Agreement, the applicable Manager of the
applicable LLC, TRB, Inc. and the Patrick Center Sellers, as applicable,
shall indemnify, defend and save harmless the applicable LLC and the
Buyer from and against any claims relating to the application or holding
of such deposits and interest by the applicable LLCs or TRB, Inc., or the
Patrick Center Sellers, as applicable, prior to Closing or for any claims
for deposits that are not delivered to Buyer or for which an adjustment
is not made in favor of the Buyer at Closing. 



2.5.3 Determination of Prorations and Credits. The prorations and
credits provided for in this Section 2.5 shall be effected through
Escrow, based upon:




	(i)	 	In the case of real estate taxes and assessments, the
most recent available tax bill for the applicable Real
Property.
	 
	(ii)	 	In the case of all other prorations and credits, a
proration statement which Buyer and the Seller Parties shall
jointly prepare and deliver to Escrow Agent on or before the
Closing Date.





After taking all such prorations and credits into account, the net amount
owing to the Seller Parties or the Buyer (as the case may be) shall be
added to or deducted from the proceeds of the Purchase Price payable to
the Seller Parties at Closing.



2.5.4 Utility Deposits. At Closing, the FP LLC Buyers shall pay
to Seller all utility deposits and all interest accrued thereon. TRB,
Inc. and the Patrick Center Sellers shall be entitled to the refund and
retention of any or all utility deposits and all interest accrued
thereon. If any of the utility deposits is not refundable to TRB, Inc.
or the Patrick Center Sellers without replacement by FP Westpark or FP
Patrick Center, then FP Westpark or FP Patrick Center shall deliver the
requisite replacement utility deposit to the utility company on or before
the Closing Date. 




59










 




2.5.5 Closing Escrow. At Closing, (1) all operating adjustments
between Buyer and the Seller Parties provided for pursuant to the terms
of this Agreement shall be made on the basis of estimates (except as
otherwise set forth above in 2.5.3) using the most current information
available as of the Closing Date; and (2) a suitable escrow (the “Closing
Escrow”), the amount and terms of which shall be reasonably satisfactory
to Buyer and the Seller Parties, shall be established by the Seller
Parties and held by the Escrow Agent to provide for payment of utility
charges, operating expenses, contract liabilities accrued, and/or work on
the Properties contracted for by or on behalf of the applicable Seller
Parties, that are due and payable by the Seller Parties pursuant to the
terms of this Agreement, but for which final bills are not available at
Closing. Buyer and the Seller Parties agree that within sixty (60) days
after the completion of Closing hereunder, Buyer and the Seller Parties
shall make a final settlement of all operating adjustments to be made
pursuant to the terms of this Agreement, and following such final
settlement of Closing adjustments, any sums remaining in the Closing
Escrow shall be paid by Escrow Agent to the Seller Parties.



2.5.6. Tenant Related Expenses. With respect to all leasing or
tenant-related expenses at the Properties, and provided that Closing
occurs, Seller and Buyer intend that, from and after the Effective Date,
Buyer shall solely be responsible for such costs (including, without
limitation, brokerage commissions, tenant improvements, and reasonable
legal fees for in-house or outside counsel), provided that such expenses
were not due and owing before the Effective Date. Buyer shall provide
Seller with a credit at Closing for any such post-Effective Date expenses
that are actually paid by Seller.
Notwithstanding the foregoing provisions to the contrary, (i) the
applicable Seller Parties shall be responsible for the leasing and
tenant-related expenses to be paid by the applicable Seller Parties as
provided on Exhibit T attached hereto and made a part hereof,
which shall be paid or accounted for at Closing; and (ii) Buyer shall be
responsible for the leasing and tenant-related expenses to be paid by the
Buyer as provided on Exhibit T, which shall be paid or accounted
for at Closing.



2.6 Closing Costs.



2.6.1 Allocation of Closing Costs. Closing costs shall be
allocated between Buyer and the Seller Parties as follows:





(i) The Seller Parties shall pay:




(A) One-half
(1⁄2) of the fees and expenses of Escrow
Agent for administering Escrow;




(B) The commission due to Broker on the Closing of the
Membership Interests and the Westpark and Patrick
Center Properties, in accordance with a separate
written agreement between the Seller Parties and the
Broker;




60









 









(C) All costs to satisfy and release of record all
liens, monetary encumbrances and judgments affecting
title to the Properties or the Membership Interests and
to convey the Properties and the Membership Interests
to the Buyer free and clear thereof, except for the
lien of the Existing Deed of Trust and the other
Existing Financing Documents, and subject to the
conditions and limitations set forth in Section 2.3.4;




(D) All legal fees and consulting fees, if any,
incurred by the Seller Parties in connection with the
transaction contemplated by this Agreement; and




(E) One-half
(1⁄2) of the State and County transfer
taxes, recordation taxes and recording charges based on
the Purchase Price allocated to the Westpark and
Patrick Center Properties pursuant to Exhibit P
and payable in connection with the recording of the
Deeds (as defined below) for the Westpark and Patrick
Center Properties. 




(ii) Buyer shall pay:




(A) All costs associated with the issuance of the Title
Commitments and the Title Policies, and the cost of
acquiring the Buyer’s Survey Updates (if acquired by
Buyer);




(B) One-half
(1⁄2) of the fees and expenses of Escrow
Agent for administering Escrow;




(C) All fees, charges and expenses related to (1)
Buyer’s financing (if any) for the purchase of the
Membership Interests and the Westpark and Patrick
Center Properties; and (2) the assumption of the
Existing Financing (other than the legal fees of the
Seller Parties);




(D) All of the fees and costs (other than legal fees of
the Seller Parties) specified in Section 2.3.5 relating
to Buyer’s purchase of the Membership Interests and the
Westpark and Patrick Center Properties, with all of the
Properties, except for the Gateway West II Property,
remaining subject to the lien of the Existing Deed of
Trust and the other Existing Financing Documents;




(E) All costs incurred in connection with Buyer’s
review of the Existing Title Policies, Surveys, and
Property Document Deliveries, and with Buyer’s due
diligence investigations of the Properties;



61









 






(F) All legal and consulting fees, if any, incurred by
Buyer in connection with the transaction contemplated
by this Agreement;




(G) One-half (1/2) of the State and County transfer
taxes, recordation taxes and recording charges based on
the Purchase Price allocated to the Westpark Property
and Patrick Center Property pursuant to Exhibit
P and payable in connection with the recording of
the Deeds (as defined below) for the Westpark and
Patrick Center Properties; and




(H) All the State and County transfer taxes (if any),
recordation taxes and recording charges payable in
connection with the recording of any financing
documents for Buyer’s financing (if any) for the
purchase of the Westpark and Patrick Center Properties.


2.6.2 Preliminary Closing Statement. At least three (3) Business
Days prior to the Closing Date, Escrow Agent shall prepare and submit to
each of Buyer and the Seller Parties preliminary Closing statements,
showing the Parties’ respective amounts of Closing costs, the Deposit,
the net credit due to the Seller Parties or Buyer under Section 2.5 and
the net amount of funds required to be deposited by Buyer in order to
effect Closing hereunder.



2.7 Closing.



2.7.1 Time and Place. Closing shall take place at the Escrow
Agent’s offices (or at another location in the Washington, D.C.
metropolitan area mutually agreed upon by Buyer and the Seller Parties)
on or before the Closing Date, provided that all of the conditions
specified in Section 2.7.2 and Sections 3.3 and 3.4 are satisfied. If
Escrow Agent is unable to close Escrow by the Closing Date in compliance
with Section 2.7.2, Escrow Agent shall hold Escrow open and effect
Closing as soon as it is able to do so in compliance with such provision,
unless Escrow Agent receives written demand from either Buyer or the
Seller Representative, on behalf of the Seller Parties, for cancellation
of Escrow (in which event, Escrow Agent shall proceed in accordance with
Section 2.8). Neither Party shall be required to attend Closing in
person.



2.7.2 Closing Instructions. On the Closing Date, as soon as:





(i) The Seller Parties have delivered into Escrow Seller’s
Closing Documents, and Buyer has approved Seller’s Closing
Documents as satisfying the requirements of this Agreement;
and




(ii) Buyer has delivered into Escrow the funds required to
effect Closing hereunder as reflected on the final closing
statement that has been approved by the Parties and Buyer’s
Closing Documents, and Seller has approved Buyer’s Closing
Documents as satisfying the requirements of



62









 






this Agreement;



     Escrow Agent shall close Escrow by:




(iii) Disbursing the funds in Escrow as follows and otherwise
in accordance with the final approved closing statement:




(A) To Seller by wire transfer of immediately available
federal funds, the net proceeds payable to Seller
pursuant the final approved closing statement; and




(B) To Buyer, any funds remaining in Escrow after the
foregoing disbursement to Seller and payment of all of
the Closing costs; and




(iv) Causing the Title Company to record the Westpark Deed
and the Patrick Center Deed (collectively the “Deeds”);




(v) Delivering to Buyer the originals (if and to the extent
deposited with Escrow Agent) and the rest of Seller’s Closing
Documents; and




(vi) Delivering to Seller the originals (if and to the extent
deposited with Escrow Agent) and the rest of the Buyer’s
Closing Documents, together with a copy of the Deeds as
recorded, showing the recording data
thereon; and




(vii) Delivering to Buyer the executed Title Policies for
each of the Properties (or marked up Title Commitments in a
form so that such documents constitute owner’s title
insurance policies binding upon the Title Company for the
benefit of Buyer for each of the Properties).


Nothing set forth in this Section 2.7.2 shall negate or modify the obligations
of the Parties and the Title Company to conduct the Closing as a “New
York-style” closing, subject to and in conformity with the terms and conditions
of this Agreement.




     2.8 Cancellation of Escrow Without Closing. After the Closing
Date, if Closing has still not occurred, upon receiving a written demand from
either Party for cancellation of Escrow, Escrow Agent shall promptly deliver a
copy of such demand to the other Party and shall then proceed as follows:




(i) If,
by close of business on the fifth (5th) Business Day
after Escrow Agent gives the other Party a copy of such
demand for cancellation, Escrow Agent has not received from
such other Party written instructions which conflict in any
way with such demand, Escrow Agent shall cancel Escrow,
disburse the Deposit as directed in such demand and return
every other item deposited in Escrow to the Party which
deposited the same; or



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(ii) If,
by close of business on the fifth (5th) Business Day
after Escrow Agent gives the other Party a copy of such
demand for cancellation, Escrow Agent has received
conflicting written instructions from such other Party,
Escrow Agent shall take no further actions with respect to
Escrow (other than to continue to invest and reinvest the
Deposit as provided in Section 2.1.1) except (A) in
accordance with joint written instructions of the Seller
Representative, acting on behalf of the Seller Parties, and
Buyer, or (B) upon advice of Escrow Agent’s legal counsel, in
accordance with a certified copy of the order or judgment of
any court; provided, however, that if the Seller
Representative and Buyer have not provided Escrow Agent with
joint written instructions as to the disposition of Escrow
(and all items deposited therein) within 60 days after Escrow
Agent’s receipt of such demand for cancellation, Escrow Agent
shall have the right (at any time thereafter) to commence an
action in interpleader in the Circuit Court for Montgomery
County, Maryland against the Seller Parties and Buyer and, in
connection therewith, to deposit all funds and other items
held in Escrow with the court hearing such action, whereupon
Escrow Agent shall be relieved of all further obligations and
duties with respect to Escrow.


Each of Buyer and the LLCs shall share equally, and Buyer and the LLCs,
jointly, shall hold harmless and indemnify Escrow Agent from and against, any
costs and expenses incurred by it in connection with any interpleader action
commenced pursuant to clause (ii) above, not to exceed
a total of $5,000.00 in the aggregate. Upon cancellation of Escrow, either
pursuant to this Section or other joint written instructions of the Seller
Representative and Buyer, the LLCs and Buyer shall each pay one-half of Escrow
Agent’s reasonable and customary cancellation fees. All notices and other
communications by Escrow Agent under this Section 2.8 shall be given and
delivered in accordance with Section 3.12.




     2.9 Supplemental Escrow Agreement. Buyer and the Seller Parties
shall execute such supplemental escrow instructions or supplemental escrow
agreement as Escrow Agent may reasonably request, provided the provisions of
such supplemental instructions or agreement do not materially conflict with the
provisions of this Agreement. In the event of any conflict between this
Agreement and such supplemental instructions, this Agreement shall control.



ARTICLE 3

FURTHER AGREEMENTS BETWEEN BUYER AND THE SELLER PARTIES

(OF NO CONCERN TO ESCROW AGENT

EXCEPT AS EXPRESSLY REFERENCED IN ARTICLES 1 OR 2)





3.1 Items to be Delivered Outside of Escrow.




3.1.1 Property Document Deliveries. Prior to the Effective Date,
each of the LLCs has either delivered to Buyer, or made available to
Buyer at the LLCs’ business/management offices located in Frederick and
Germantown, Maryland, each of



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the items generally specified in the
schedule of documents (“Property Document Deliveries”) attached hereto as
Exhibit L, to the extent such items exist and are within the
Seller Parties’ possession. Buyer hereby acknowledges that it has
already received the Property Document Deliveries.




3.1.2 Return of Documents; Copies of Buyer Reports. If this
Agreement terminates without Closing for any reason, Buyer shall promptly
return to the LLCs each item provided pursuant to this Section 3.1 and
shall diligently undertake either to have delivered to the LLCs or
destroyed every copy, digest or summary made of any such item so
delivered by the LLCs. In addition, if this Agreement terminates without
Closing for reasons other than default by the Seller Parties, Buyer shall
deliver to the LLCs copies of all feasibility reports and studies, to the
extent that the same are in Buyer’s possession or control, that have been
prepared by Buyer’s third party professional consultants regarding the
Properties. The obligation of Buyer set forth in this Section 3.1.2 shall
survive the termination of this Agreement.




3.2 Warranties, Representations and Covenants.




3.2.1 By the Seller Parties.




A. Each of the Managers (as to itself only and for or in respect of
matters relating to that Manager’s applicable LLC or that LLC’s
respective Property or Properties only) hereby warrants, represents
and/or covenants to the Buyer as follows (the representations
and warranties of each of the Managers, in their respective capacities as
the Managers of their respective LLCs, that are set forth in this Section
3.2.1.A being referred to herein collectively as the “Manager’s Property
Representations”):



          (i) The applicable LLC is a limited liability company validly
existing and in good standing under the laws of the state of its
formation; is in good standing and qualified to do business in the
jurisdiction where the Property or Properties owned by such LLC is
located. The applicable LLC and its respective Manager has full
authority, right and power to enter into this Agreement, to perform each
of their respective obligations hereunder and to consummate the
transactions contemplated hereby applicable to it. The applicable LLC
and its respective Manager has full authority, right and power to enter
into this Agreement and has caused this Agreement to be duly executed and
delivered to Buyer by an individual who is duly authorized and empowered
to do so. This Agreement and the applicable Seller’s Closing Documents
will constitute valid and legally binding obligations of the Seller,
enforceable in accordance with their respective terms, subject to: (i)
judicial principles limiting the availability of specific performance,
injunctive relief, and other equitable remedies, and (ii) bankruptcy,
insolvency, reorganization, moratorium or other laws now or hereafter in
effect generally relating to or affecting creditors’ rights.



          (ii) The applicable LLC and its respective Manager has obtained all
government or third-party consents and approvals, except for the consent
of the Existing Lender, necessary for the execution and delivery of this
Agreement by the applicable



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LLC and its respective Manager, to make this
Agreement binding upon the applicable LLC and its respective Manager, and
to permit consummation of the transactions contemplated herein in
accordance with the terms of this Agreement. The execution and
performance of this Agreement by the applicable LLC and its respective
Manager do not and will not violate, and are not restricted by, the terms
of any other contract or instrument to which the applicable LLC or its
respective Manager is a party, except for the Existing Financing
Documents, or any Law by which the applicable LLC, its respective Manager
or any of the applicable LLC’s Property or Properties is bound.




          (iii) Within the twelve (12) month period prior to the Effective
Date hereof, the applicable LLC or its respective Manager has not
received any written notice from any government authority, agency,
officer or insurance company that the current condition, occupancy or use
of any of the applicable LLC’s Properties is not in material compliance
with applicable Law or that any condition or situation exists which
requires work to be done to cure a noted violation with respect to the
applicable LLC’s Properties, except as otherwise set forth on Exhibit
U attached hereto with respect to the Woodlands Property, and except
for failures to comply (if any) which have been remedied or will be
remedied on or before the Closing Date at the sole cost and expense of
the applicable LLC, subject to the conditions and limitations set forth
in Section 3.3.4. The Managers shall promptly provide Buyer with copies
of any such written notice received by any of the LLCs or the Managers
prior to the Closing Date. 



          (iv) Exhibit D-1, Exhibit D-2, Exhibit D-3,
Exhibit D-4, Exhibit D-5, Exhibit D-6, Exhibit
D-7, Exhibit D-8, Exhibit D-9, Exhibit D-10,
Exhibit D-11, Exhibit D-12, and Exhibit D-13 is a
rent roll which identifies for the Deer Park Property, the Gateway West
Property, the Wedgewood Property, the Georgia Pacific Boulevard Property,
the Radtech Property, the Woodlands Property, the Old Courthouse Square
Property, the Lindbergh Property, the Gateway Center Property, the Girard
Business Center Property, the Girard Place Property, the Goldenrod Lane
Property, and the Gateway West II Property, respectively, each existing
Lease, indicating security and other deposits. To the applicable LLC’s
Knowledge and the applicable Manager’s Actual Knowledge, but upon
commercially reasonable investigation and inquiry by the applicable LLC
and the applicable Manager, Exhibit D-1, Exhibit D-2,
Exhibit D-3, Exhibit D-4, Exhibit D-5, Exhibit
D-6, Exhibit D-7, Exhibit D-8, Exhibit D-9,
Exhibit D-10, Exhibit D-11, Exhibit D-12, and
Exhibit D-13, is true, accurate and complete as of the date of
said rent roll. To the applicable LLC’s Actual Knowledge and the
applicable Manager’s Actual Knowledge, (i) no material default or breach
exists under any Lease on the part of the applicable LLC, as landlord,
and no event has occurred or has failed to occur which, with the passage
of time, or the giving of notice, or both, would constitute a default on
the part of the applicable LLC under any of
said Leases; and (ii) no
monetary default exists under any Lease on the part of a Tenant, except
as otherwise listed on the Aged Delinquencies Report attached hereto as
Exhibit S. To the applicable LLC’s Actual Knowledge and the
applicable Manager’s Actual Knowledge, but upon commercially reasonable
investigation and inquiry by the applicable LLC and the applicable
Manager, (i) the applicable LLC and the applicable Manager has not
received written notice of any material default by such LLC, as landlord,
under any of


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said Leases that has not been cured; and (ii) the applicable
LLC has not made any commitment to any Tenants to provide any benefits,
services, facilities, or amenities, or to perform repairs or renovations
not specified in the applicable Leases with such Tenants. Except as
shown on the applicable Rent Roll, no Tenant at the applicable Property
or Properties has paid any rent in advance except for the then-current
month. Except as provided in Exhibit D-1, Exhibit D-2,
Exhibit D-3, Exhibit D-4, Exhibit D-5, Exhibit
D-6, Exhibit D-7, Exhibit D-8, Exhibit D-9,
Exhibit D-10, Exhibit D-11, Exhibit D-12, or
Exhibit D-13, or as reflected in the applicable Leases, no Tenant
of the applicable Properties has received or is entitled to any rebate,
concession, “free rent”, abated rent (in the nature of an incentive), or
other benefit. The LLCs shall not execute new leases with any new tenant
with respect to any vacant space at the Properties except in accordance
with the provisions of Section 3.2.1.A(xvii) hereof. The applicable
Manager shall update the rent rolls for each of the applicable Properties
on a monthly basis and shall promptly provide a copy of such updates to
Buyer for each month after the Effective Date until Closing. 





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          (v) Exhibit G-1, Exhibit G-2, Exhibit G-3,
Exhibit G-4, Exhibit G-5, Exhibit G-6, Exhibit
G-7, Exhibit G-8, Exhibit G-9, Exhibit G-10,
Exhibit G-11, Exhibit G-12, and Exhibit G-13,
correctly identifies each existing Service Contract in effect on the
Effective Date and that may be in effect on the Closing Date for the Deer
Park Property, the Gateway West Property, the Wedgewood Property, the
Georgia Pacific Boulevard Property, the Radtech Property, the Woodlands
Property, the Old Courthouse Square Property, the Lindbergh Property, the
Gateway Center Property, the Girard Business Center Property, the Girard
Place Property, the Goldenrod Lane Property, and the Gateway West II
Property, respectively, and except as disclosed on Exhibit G-1,
Exhibit G-2, Exhibit G-3, Exhibit G-4, Exhibit
G-5, Exhibit G-6, Exhibit G-7, Exhibit G-8,
Exhibit G-9, Exhibit G-10, Exhibit G-11,
Exhibit G-12, or Exhibit G-13, and except for utilities, no
other service contract or management, service, leasing, employment or
supply commitments or contracts of any kind or description are in
existence with respect to the applicable Properties (or will be in
existence with respect to the applicable Properties on the Closing Date).
The Service Contracts available for review by Buyer are true and correct
copies of the actual Service Contracts in the applicable LLC’s possession
and, to the applicable LLC’s Actual Knowledge and the applicable
Manager’s Actual Knowledge, are the complete written documentation of all
of the agreements between the applicable LLC and third party vendors.



          (vi) Within the twelve (12) month period prior to the Effective Date
hereof, the applicable LLC or its respective Manager has not received (i)
any written notice from any governmental agency having jurisdiction that
any of the applicable Real Properties (including land, surface and
subsurface soil, surface water, ground water and improvements) or any
part thereof is not presently in compliance in any material respect with
any applicable Environmental Laws, except as reflected in the
Environmental Reports or in the Buyer’s environmental reports previously
delivered to Seller prior to the Effective Date hereof or to be delivered
to the Seller following the Effective Date hereof; and (ii) any written
notice from any adjoining property owners that its respective real
property (including land, surface and subsurface soil, surface water,
ground water and improvements) or any part thereof is not presently in
compliance in any material respect with any applicable Environmental
Laws, except as reflected in the Environmental Reports or in the Buyer’s
environmental reports previously delivered to Seller prior to the
Effective Date hereof or to be delivered to the Seller following the
Effective Date hereof. The applicable LLC and the applicable Manager have
no Actual Knowledge of any adverse environmental conditions existing on
the applicable LLC’s Property or Properties as of the Effective Date,
except for those conditions reflected in the applicable Environmental
Report(s) and except for those conditions reflected in Buyer’s
environmental reports previously delivered to the Seller prior to the
Effective Date hereof or to be delivered to the Seller following the
Effective Date hereof.



          (vii) There are no lawsuits, governmental proceedings, notices of
action required to be taken, judgments, causes of action or special
assessments, pending or, to
the applicable LLC’s Actual Knowledge and the applicable Manager’s
Actual Knowledge, threatened, against the applicable LLC, whose outcome
could adversely affect the operation of the applicable Properties
(including, without limitation, actions



68









 




for condemnation), except as
otherwise set forth on Exhibit U attached hereto with respect to
the Woodlands Property. There are no bankruptcy, insolvency,
rearrangement or similar actions or proceedings, whether voluntary or
involuntary, pending or, to the applicable LLC’s Actual Knowledge and the
applicable Manager’s Actual Knowledge, threatened, against the applicable
LLC.




          (viii) Except as disclosed in the applicable Existing Title Policies
and/or in the applicable Title Commitments and/or in the applicable
Leases and/or in the Existing Financing Documents, (i) the applicable LLC
has not entered into any agreement granting or creating any option or
other right to acquire any legal or beneficial ownership interest in the
applicable Property or Properties or any part thereof; and (ii) no person
or entity has a legal or beneficial ownership interest in, or has an
option to acquire any legal or beneficial ownership interest in, the
applicable Property or Properties or any part thereof, the basis for
which arises out of an event or circumstance that occurred during the
applicable LLC’s period of ownership of its respective Property and that
is not of record among the appropriate land records as of the Effective
Date. The applicable LLC has not owned any interest in any real property
since the date of its formation other than its respective Real Property
or Real Properties owned by it as of the Effective Date.



          (ix) Except for Broker, the applicable LLC and the applicable
Manager has not engaged or dealt with any broker, finder or similar agent
in connection with the transaction contemplated by this Agreement.



          (x) All bills, accounts, invoices and/or claims for labor performed
and services and materials furnished to or for the benefit of the
applicable Properties prior to the Closing Date, including all utility
bills, have been or will be paid in full (or for any such unpaid items an
escrow shall be established at Closing); and there are no mechanic’s
liens or materialman’s liens filed or, to the applicable LLC’s Actual
Knowledge and the applicable Manager’s Actual Knowledge, threatened, or
past due utility bills on or affecting the applicable Properties. To the
applicable LLC’s Actual Knowledge and the applicable Manager’s Actual
Knowledge, but upon commercially reasonable investigation and inquiry by
the applicable LLC and the applicable Manager, the applicable LLC has
filed all federal, state and local tax returns required by applicable law
to be filed by such LLC, including income tax returns and information
returns, and has paid all taxes required to be paid by applicable law in
respect of the periods covered by such tax returns, and all such federal,
state and local tax returns filed by the applicable LLC are complete and
accurate in all material respects. To the applicable LLC’s Actual
Knowledge and the applicable Manager’s Actual Knowledge, but upon
commercially reasonable investigation and inquiry by the applicable LLC
and the applicable Manager, (i) the balance sheet for the applicable LLC
previously delivered to Buyer by the applicable Manager prior to the
Effective Date hereof (each, an “Initial Balance Sheet”) presents, in all
material respects, the assets and liabilities of the
applicable LLC as of the date of such Initial Balance Sheet; and
(ii) the applicable LLC has no liabilities which are not reflected, or
reserved against, on such Initial Balance Sheet.



69









 





          (xi) All items of personal property, if any, which are included in
the applicable Properties and listed on Exhibit C-1 (for the Deer
Park Property), on Exhibit C-2 (for the Gateway West Property), on
Exhibit C-3 (for the Wedgewood Property), on Exhibit C-4
(for the Georgia Pacific Boulevard Property), on Exhibit C-5 (for
the Radtech Property), on Exhibit C-6 (for the Woodlands
Property), on Exhibit C-7 (for the Old Courthouse Square
Property), on Exhibit C-8 (for the Lindbergh Property), on
Exhibit C-9 (for the Gateway Center Property), on Exhibit
C-10 (for the Girard Business Center Property), on Exhibit
C-11 (for the Girard Place Property), and on Exhibit C-12 (for
the Goldenrod Lane Property), and on Exhibit C-12 (for the Gateway
West II Property), are owned by the applicable LLC and shall be owned by
the applicable LLC on the date of Closing, free and clear of all liens,
debts, charges, and encumbrances of every nature, kind, and description,
except for the lien securing the Existing Financing, and subject to the
replacement rights relating to such personal property as are set forth
herein.



          (xii) To the applicable LLC’s Actual Knowledge and the applicable
Manager’s Actual Knowledge, the applicable LLC holds, and is in
compliance in all material respects with, all Permits, except as
otherwise set forth on Exhibit U attached hereto with respect to
the Woodlands Property. 



          (xiii) The applicable LLC has no employees for or with respect to
the applicable Properties and all employees providing services to or for
the benefit of the applicable Properties are employees of the applicable
LLC’s property management company. The applicable LLC is not a party to
or bound by any currently effective employment contract, deferred
compensation agreement, bonus plan, incentive plan, profit sharing plan,
retirement agreement or other employee compensation agreement or employee
benefit plan as defined in the Employee Retirement Income Security Act of
1974, as amended.



          (xiv) Neither the applicable LLC nor the applicable Manager is a
“foreign person” within the meaning of the Internal Revenue Code of 1986,
as amended to date (the “Code”), and the transaction contemplated hereby
does not constitute a disposition of a U.S. real property interest by a
foreign person.



          (xv) During the period from the Effective Date to the Closing Date,
the applicable LLC shall:



               (A) Maintain its respective Property or Properties in its or their
present condition and state of repair and maintenance (subject to
casualty damage and to normal wear and tear and damages by the elements);



               (B) Subject to the terms of Section 3.2.1.A(xvii) below, continue
implementation of its leasing program for space in its respective
Improvements, and use commercially reasonable efforts to preserve
relations with each Tenant; and



70









 





               (C) Take commercially reasonable measures consistent with the
applicable LLC’s past practices to preserve and enforce all of its rights
and remedies with respect to its respective Property or Properties and
each respective Lease, Service Contract and Permit.



               (D) Not incur or agree to incur any obligations or liabilities,
except for the Existing Financing and obligations or liabilities in the
ordinary course of business and/or contained in the Existing Financing
Documents, or incur or agree to incur any debt, except for debt or
liabilities in the ordinary course of business which such liabilities
and/or debt will be fully paid or discharged, as applicable, on or before
the Closing Date, and except for the Existing Financing which will not be
discharged on or before the Closing Date, but will be assumed by Buyer as
provided elsewhere in this Agreement;



               (E) Not declare or effect any repurchase or redemption or other
acquisition of the Membership Interests in the applicable LLC;



               (F) Not mortgage, pledge or subject to a lien or other encumbrance
any of the applicable LLC’s Property or Properties;



               (G) Not sell or transfer its respective Property or Properties; and



               (H) Not waive any rights of material value relating to the period
after the Closing Date.



          (xvi) During the period from the Effective Date to the Closing
Date, the applicable LLC shall comply in all material respects with the
terms and conditions of all applicable Service Contracts and other
agreements pertaining to the operation, management, leasing, and
maintenance of the applicable Properties. Without the prior written
consent of Buyer in each case, which consent will not be unreasonably
withheld, delayed or conditioned, the applicable LLC shall not at any
point during the period from the Effective Date to the Closing Date (i)
enter into any new contracts concerning the operation, management,
leasing or maintenance of the applicable Properties or services thereto
which are not cancelable without premium or penalty on thirty (30) days’
notice, or (ii) make or contract for any maintenance item or capital
repair exceeding a cost of $10,000.00, except in the event of an
emergency (in which event, the applicable LLC shall provide Buyer with
prompt notice of any emergency), unless the same is paid for in full
before or at Closing. The applicable LLC shall not modify or terminate
an existing applicable Service Contract other than in a manner
consistent with the following restrictions: After the Effective Date,
the applicable LLC may not modify or terminate any applicable Service
Contract with respect to any applicable Property without Buyer’s prior
written consent, which Buyer shall not unreasonably withhold or delay or
condition. No approval by Buyer shall be required for any Service
Contract entered into by any of the applicable LLC prior to Closing to
the extent the same will be fully performed and paid for by the
applicable LLC before



71









 





Closing.




          (xvii) From and after the Effective Date, the applicable LLC shall
not enter into any new lease or commitment to lease with respect to any
portion of the applicable Properties exceeding 5,000 square feet, without
Buyer’s prior written consent, which consent will not be unreasonably
withheld, delayed or conditioned, and with respect to any new lease or
commitment to lease any portion of the applicable Properties equal to or
less than 5,000 square feet, which does not require the approval of
Buyer, such leases or commitments to lease, shall be at customary market
rates and on customary terms and conditions. All leases referenced in
Exhibit D-1, Exhibit D-2, Exhibit D-3, Exhibit
D-4, Exhibit D-5, Exhibit D-6, Exhibit D-7,
Exhibit D-8, Exhibit D-9, Exhibit D-10,
Exhibit D-11, Exhibit D-12, and Exhibit D-13, and
any new lease or amendment entered into from and after the Effective Date
conforming to the terms of this Section 3.2.1.A(xvii) or with Buyer’s
prior written consent shall be deemed included within the term “Leases”
as used herein and the tenants under any such new leases and/or
amendments shall be deemed included within the term “Tenants” as used
herein. The applicable LLC shall comply with the terms and conditions of
all applicable Leases in effect at its respective Property or
Properties.



          (xviii) Each of the representations and warranties given and
covenants undertaken by the applicable LLC and the applicable Manager in
Section 2.3.5 above with respect to the Existing Financing are
incorporated into this Section 3.2.1.A(xviii) by this reference. The
LLCs shall keep the Existing Financing current at all times until
Closing. The applicable LLC will not further encumber its respective
Properties, grant any easements or rights-of-way with respect to its
Properties or in any way affect or alter the title to its Properties, and
shall not engage in any activity or effect any transaction with respect
to its Properties, including, but not limited to, the disposal of any
items of personal property or fixtures which are attached to the realty
and are part of its Properties, which is outside the normal and ordinary
course of business of its Properties, without the Buyer’s prior written
consent, which consent may be withheld in Buyer’s reasonable discretion.
After the Effective Date hereof, the applicable LLC shall not remove any
fixtures, equipment, furnishings, and other personalty from the
applicable Improvements without replacing them with items of like kind
and quality.



          (xix) During the period from the Effective Date to the Closing Date,
the applicable LLC and the applicable Manager shall provide Buyer, its
agents, consultants, accountants and counsel upon reasonable prior
notice, (A) access at all reasonable times to all of the LLC’s contracts,
books and records and other documents relating to the acquisition,
construction, occupancy, operation, leasing, maintenance and repair of
the applicable Properties (including, without limitation, such records
maintained by or otherwise in the possession of the applicable LLC’s
property manager, but excluding any appraisals, budgets, internal
valuations or attorney-client privileged materials), with the right to
make photocopies thereof at Buyer’s expense, (B) subject to the foregoing
exclusions, access to all such other information regarding the
applicable Properties and in the applicable LLC’s or the applicable
Manager’s possession (including copies of such contracts, books and
records and other documents) as Buyer may reasonably



72









 




request, and (C)
subject to the rights of Tenants to the quiet enjoyment and exclusive
possession of their leased premises, access to the applicable Properties
at all reasonable times for purposes of conducting (at Buyer’s expense
and liability) any examinations, surveys and tests as Buyer may
reasonably require pursuant to the terms of this Agreement.




          (xx) The applicable Manager shall promptly furnish to Buyer copies
of any and all written notices that the applicable LLC receives from
federal, state or local governmental authorities having jurisdiction over
the applicable Properties, any Board of Fire Underwriters and from any
other body having jurisdiction with respect to the use and occupancy or
physical condition of the applicable Properties.



          (xxi) The applicable Manager shall deliver to Buyer the following
additional materials from time to time while this Agreement is in effect
promptly upon the receipt thereof by the applicable LLC: (a) copies of
any notices of violation of law received by the applicable LLC that are
issued with respect to the applicable Properties; (b) copies of any
additional applicable Service Contracts or amendments to applicable
Service Contracts; and (c) any assessment or reassessment notices
received for the applicable Properties.



          (xxii) During the period from the Effective Date to the Closing
Date, the applicable LLC shall maintain in force any currently existing
policy or policies of fire and extended coverage, hazard insurance and a
liability insurance policy with respect to the applicable Properties in
an amount not less than is presently in force. The applicable LLC and
the applicable Manager has not received any written notice from the
Existing Lender indicating that the currently existing insurance policy
or policies for the applicable Properties do not comply with the
insurance requirements of the Existing Lender.



          (xxiii) During the period from the Effective Date to the Closing
Date, the applicable LLC shall not, and the applicable Manager shall not
and shall cause the applicable LLC not to, knowingly commit any act or
fail to take any required action, other than as required or permitted
hereunder, which would result in any of the warranties or representations
contained in this Section not being materially true or correct as of
Closing.



          (xxiv) The assets of the applicable LLC at Closing shall consist
only of the following (collectively, the “LLC Assets”):



               (A) As to the applicable LLC, its respective Property or Properties
(as defined herein), subject to the applicable Permitted Exceptions; and



               (B) All real estate tax escrows, fire and casualty insurance
escrows, all operating and replacement reserves and the like, and
all other escrows and reserves as may be required by the Existing Lender
(collectively, the “Existing Lender Escrows”), subject to payment and
reimbursement by Buyer to the applicable Seller



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Parties for the same, as
provided elsewhere in this Agreement.




          (xxv) The liabilities of the applicable LLC at Closing shall consist
only of the following (collectively, the “LLC Liabilities”):



               (A) Obligations of the applicable LLC under the applicable Service
Contracts, and as landlord under the Leases applicable to such LLC’s
Property or Properties, and liabilities shown on the Initial Balance
Sheet delivered to the Buyer by the applicable Manager for the applicable
LLC, including, but not limited to, utilities, accrued real estate taxes,
prepaid rents and Tenant security deposits, subject to the adjustments
and prorations between the parties, as provided elsewhere in this
Agreement; and



               (B) Obligations of the applicable LLC under the Existing Financing,
the Permitted Exceptions and the Permits.



          (xxvi) The applicable LLC will not, as of the Closing Date, own,
manage or control, directly or indirectly, any interest in any
corporation, partnership, limited liability company, association, or
other business entity, and the Applicable LLC will not, as of the Closing
Date, be a general partner, limited partner, member, manager or
participant in any joint venture, partnership, or similar arrangement.



          (xxvii) At Closing, the applicable LLC and the applicable Manager
shall remake and rewarrant to Buyer each of the representations and
warranties given by the applicable LLC and the applicable Manager
pursuant to the terms of this Section 3.2.1.A (subject to any
modifications thereof made pursuant to Section 3.2.3) pursuant to the
applicable Seller’s Closing Certificate.


B. TRB, Inc. (as to itself only and for or in respect of matters relating
to the Westpark Property only) hereby warrants, represents and/or
covenants to the Buyer as follows (the representations and warranties of
TRB, Inc. that are set forth in this Section 3.2.1.B being referred to
herein collectively as the “TRB, Inc.’s Property Representations”):




          (i) TRB, Inc. is a corporation validly existing and in good standing
under the laws of the state of its formation; is in good standing and
qualified to do business in the jurisdiction where the Westpark Property
is located. TRB, Inc. has full authority, right and power to enter into
this Agreement, to perform each of their respective obligations hereunder
and to consummate the transactions contemplated hereby applicable to it.
TRB, Inc. has full authority, right and power to enter into this
Agreement and has caused this Agreement to be duly executed and delivered
to Buyer by an individual who is duly authorized and empowered to do so.
This Agreement and
the applicable Seller’s Closing Documents will constitute valid and
legally binding obligations of TRB, Inc., enforceable in accordance with
their respective terms, subject to: (i) judicial principles limiting the
availability of specific performance, injunctive



74









 




relief, and other
equitable remedies, and (ii) bankruptcy, insolvency, reorganization,
moratorium or other laws now or hereafter in effect generally relating to
or affecting creditors’ rights.




          (ii) TRB, Inc. has obtained all government or third-party consents
and approvals, except for the consent of the Existing Lender necessary
for the execution and delivery of this Agreement by TRB, Inc. to make
this Agreement binding upon TRB, Inc. and to permit consummation of the
transactions contemplated herein in accordance with the terms of this
Agreement. The execution and performance of this Agreement by TRB, Inc.
does not and will not violate, and are not restricted by, the terms of
any other contract or instrument to which TRB, Inc. is a party, except
for the Existing Financing Documents, or any Law by which TRB, Inc.
and/or the Westpark Property is bound.



          (iii) Within the twelve (12) month period prior to the Effective
Date hereof, TRB, Inc. has not received any written notice from any
government authority, agency, officer or insurance company that the
current condition, occupancy or use of the Westpark Property is not in
material compliance with applicable Law or that any condition or
situation exists which requires work to be done to cure a noted violation
with respect to the Westpark Property, except for failures to comply (if
any) which have been remedied or will be remedied on or before the
Closing Date at the sole cost and expense of TRB, Inc., subject to the
conditions and limitations set forth in Section 3.3.4. TRB, Inc. shall
promptly provide Buyer with copies of any such written notice received by
TRB, Inc. prior to the Closing Date.



          (iv) Exhibit D-14 is a rent roll which identifies for the
Westpark Property, each existing Westpark Lease, indicating security and
other deposits. To TRB, Inc.’s Actual Knowledge, but upon commercially
reasonable investigation and inquiry by TRB, Inc., Exhibit D-14 is
true, accurate and complete as of the date of said rent roll. To TRB,
Inc.’s Actual Knowledge, (i) no material default or breach exists under
any Westpark Lease on the part of TRB, Inc., as landlord, and no event
has occurred or has failed to occur which, with the passage of time, or
the giving of notice, or both, would constitute a default on the part of
TRB, Inc. under any of the Westpark Leases; and (ii) no monetary default
exists under any Westpark Lease on the part of a Tenant, except as
otherwise listed on the Aged Delinquencies Report attached hereto as
Exhibit S. To TRB, Inc.’s Actual Knowledge, but upon commercially
reasonable investigation and inquiry by TRB, Inc., (i) TRB, Inc. has not
received written notice of any material default by TRB, Inc., as
landlord, under any of the Westpark Leases that has not been cured; and
(ii) TRB, Inc. has not made any commitment to any Tenants to provide any
benefits, services, facilities, or amenities, or to perform repairs or
renovations not specified in the the Westpark Leases with such Tenants.
Except as shown on the Westpark Rent Roll, no Tenant at the Westpark
Property has paid any rent in advance except for the then-current month.
Except as provided in Exhibit D-14 or as reflected in the Westpark
Leases, no Tenant of the Westpark Property has received or is
entitled to any rebate, concession, “free rent”, abated rent (in the
nature of an incentive), or other benefit. TRB, Inc. shall not execute
new leases with any new tenant with respect to any vacant space at the
Westpark Property except in accordance with the provisions of



75









 




Section
3.2.1.B(xvii) hereof. TRB, Inc. shall update the rent roll for the
Westpark Property on a monthly basis and shall promptly provide a copy of
such updates to Buyer for each month after the Effective Date until
Closing. 




          (v) Exhibit G-14 correctly identifies each existing Westpark
Service Contract in effect on the Effective Date and that may be in
effect on the Closing Date for the Westpark Property and except as
disclosed on Exhibit G-14, and except for utilities, no other
service contract or management, service, leasing, employment or supply
commitments or contracts of any kind or description are in existence with
respect to the Westpark Property (or will be in existence with respect to
the Westpark Property on the Closing Date). The Westpark Service
Contracts available for review by Buyer are true and correct copies of
the actual Westpark Service Contracts in TRB, Inc.’s possession and, to
TRB, Inc.’s Actual Knowledge are the complete written documentation of
all of the agreements between TRB, Inc. and third party vendors, with
respect to the Westpark Property.



          (vi) Within the twelve (12) month period prior to the Effective
Date, TRB, Inc. has not received (i) any written notice from any
governmental agency having jurisdiction that the Westpark Real Property
(including land, surface and subsurface soil, surface water, ground water
and improvements) or any part thereof is not presently in compliance in
any material respect with any applicable Environmental Laws, except as
reflected in the Environmental Report(s) for the Westpark Property or in
the Buyer’s environmental reports for the Westpark Property previously
delivered to TRB, Inc. prior to the Effective Date hereof or to be
delivered to TRB, Inc. following the Effective Date hereof; and (ii) any
written notice from any adjoining property owners that its respective
real property (including land, surface and subsurface soil, surface
water, ground water and improvements) or any part thereof is not
presently in compliance in any material respect with any applicable
Environmental Laws, except as reflected in the Environmental Report(s)
for the Westpark Property or in the Buyer’s environmental reports for the
Westpark Property previously delivered to TRB, Inc. prior to the
Effective Date hereof or to be delivered to TRB, Inc. following the
Effective Date hereof. TRB, Inc. has no Actual Knowledge of any adverse
environmental conditions existing on the Westpark Property as of the
Effective Date, except for those conditions reflected in the applicable
Environmental Report(s) for the Westpark Property and except for those
conditions reflected in Buyer’s environmental reports previously
delivered to the Seller prior to the Effective Date hereof or to be
delivered to TRB, Inc. following the Effective Date hereof.



          (vii) There are no lawsuits, governmental proceedings, notices of
action required to be taken, judgments, causes of action or special
assessments, pending or, to TRB, Inc.’s Actual Knowledge, threatened,
against TRB, Inc., whose outcome could adversely affect the operation of
the Westpark Property (including, without limitation,
actions for condemnation). There are no bankruptcy, insolvency,
rearrangement or similar actions or proceedings, whether voluntary or
involuntary, pending or, to the TRB, Inc.’s Actual Knowledge, threatened,
against TRB, Inc.



76









 





          (viii) Except as disclosed in the Westpark Existing Title Policy
and/or in the Westpark Title Commitment and/or in the Westpark Leases
and/or in the Existing Financing Documents, (i) TRB, Inc. has not entered
into any agreement granting or creating any option or other right to
acquire any legal or beneficial ownership interest in the Westpark
Property or any part thereof; and (ii) no person or entity has a legal or
beneficial ownership interest in, or has an option to acquire any legal
or beneficial ownership interest in, the Westpark Property or any part
thereof, the basis for which arises out of an event or circumstance that
occurred during TRB, Inc.’s period of ownership of the Westpark Property
and that is not of record among the appropriate land records as of the
Effective Date.



          (ix) Except for Broker, TRB, Inc. has not engaged or dealt with any
broker, finder or similar agent in connection with the transaction
contemplated by this Agreement.



          (x) All bills, accounts, invoices and/or claims for labor performed
and services and materials furnished to or for the benefit of the
Westpark Property prior to the Closing Date, including all utility bills,
have been or will be paid in full (or for any such unpaid items an escrow
shall be established at Closing); and there are no mechanic’s liens or
materialman’s liens filed or, to TRB, Inc.’s Actual Knowledge,
threatened, or past due utility bills on or affecting the Westpark
Property.



          (xi) All items of personal property, if any, which are included in
the Westpark Property and listed on Exhibit C-14 are owned by TRB,
Inc. and shall be owned by TRB, Inc. on the date of Closing, free and
clear of all liens, debts, charges, and encumbrances of every nature,
kind, and description, except for the lien securing the Existing
Financing, and subject to the replacement rights relating to such
personal property as are set forth herein.



          (xii) To TRB, Inc.’s Actual Knowledge, TRB, Inc. holds, and is in
compliance in all material respects with, the Westpark Permits.



          (xiii) TRB, Inc. has no employees for or with respect to the
Westpark Property and all employees providing services to or for the
benefit of the Westpark Property are employees of TRB, Inc.’s property
management company.



          (xiv) TRB, Inc. is not a “foreign person” within the meaning of the
Internal Revenue Code of 1986, as amended to date (the “Code”), and the
transaction contemplated hereby does not constitute a disposition of a
U.S. real property interest by a foreign person.



          (xv) During the period from the Effective Date to the Closing Date,
TRB, Inc. shall:



               (A) Maintain the Westpark Property in its present condition and
state of repair and maintenance (subject to casualty damage and to normal
wear and tear



77









 




and damages by the elements);




               (B) Subject to the terms of Section 3.2.1.B(xvii) below, continue
implementation of its leasing program for space in the Westpark
Improvements, and use commercially reasonable efforts to preserve
relations with each Westpark Tenant;



               (C) Take commercially reasonable measures consistent with TRB,
Inc.’s past practices to preserve and enforce all of its rights and
remedies with respect to the Westpark Property and the Westpark Leases,
Service Contracts and Permits;



               (D) Not mortgage or subject to a lien or other encumbrance of the
Westpark Property; and



               (E) Not sell or transfer the Westpark Property.



          (xvi) During the period from the Effective Date to the Closing
Date, TRB, Inc. shall comply in all material respects with the terms and
conditions of the Westpark Service Contracts and other agreements
pertaining to the operation, management, leasing, and maintenance of the
Westpark Property. Without the prior written consent of Buyer in each
case, which consent will not be unreasonably withheld, delayed or
conditioned, TRB, Inc. shall not at any point during the period from the
Effective Date to the Closing Date (i) enter into any new contracts
concerning the operation, management, leasing or maintenance of the
Westpark Property or services thereto which are not cancelable without
premium or penalty on thirty (30) days’ notice, or (ii) make or contract
for any maintenance item or capital repair exceeding a cost of
$10,000.00, except in the event of an emergency (in which event, TRB,
Inc. shall provide Buyer with prompt notice of any emergency), unless
the same is paid for in full before or at Closing. TRB, Inc. shall not
modify or terminate a Westpark Service Contract other than in a manner
consistent with the following restrictions: After the Effective Date,
TRB, Inc. may not modify or terminate any Westpark Service Contract
without Buyer’s prior written consent, which Buyer shall not
unreasonably withhold or delay or condition. No approval by Buyer shall
be required for any Westpark Service Contract entered into by TRB, Inc.
prior to Closing to the extent the same will be fully performed and paid
for by TRB, Inc. before Closing.



          (xvii) From and after the Effective Date, TRB, Inc. shall not enter
into any new lease or commitment to lease with respect to any portion of
the Westpark Property exceeding 5,000 square feet, without Buyer’s prior
written consent, which consent will not be unreasonably withheld, delayed
or conditioned, and with respect to any new lease or commitment to lease
any portion of the Westpark Property equal to or
less than 5,000 square feet, which does not require the approval of
Buyer, such leases or commitments to lease shall be at customary market
rates and on customary terms and conditions. All leases referenced in
Exhibit D-14 and any new lease or amendment entered into from and
after the Effective Date conforming to the terms of this Section




78










 






3.2.1.B(xvii) or with Buyer’s
prior written consent shall be deemed included within the term “Westpark
Leases” as used herein and the tenants under any such new leases and/or
amendments shall be deemed included within the term “Westpark Tenants” as
used herein. TRB, Inc. shall comply with the terms and conditions of the
Westpark Leases in effect.




     (xviii) Each of the representations and warranties given and
covenants undertaken by TRB, Inc. in Section 2.3.5 above with respect to
the Existing Financing are incorporated into this Section 3.2.1.B(xviii)
by this reference. TRB, Inc. shall keep the Existing Financing current
at all times until Closing. TRB, Inc. will not further encumber the
Westpark Property, grant any easements or rights-of-way with respect to
the Westpark Property or in any way affect or alter the title to the
Westpark Property, and shall not engage in any activity or effect any
transaction with respect to the Westpark Property, including, but not
limited to, the disposal of any items of personal property or fixtures
which are attached to the realty and are part of the Westpark Property,
which is outside the normal and ordinary course of business of the
Westpark Property, without the Buyer’s prior written consent, which
consent may be withheld in Buyer’s reasonable discretion. After the
Effective Date hereof, TRB, Inc. shall not
remove any fixtures, equipment, furnishings, and other personalty
from the Westpark Improvements without replacing them with items of like
kind and quality.




     (xix) During the period from the Effective Date to the Closing Date,
TRB, Inc. shall provide Buyer, its agents, consultants, accountants and
counsel upon reasonable prior notice, (A) access at all reasonable times
to all of TRB, Inc.’s contracts, books and records and other documents
relating to the acquisition, construction, occupancy, operation, leasing,
maintenance and repair of the Westpark Property (including, without
limitation, such records maintained by or otherwise in the possession of
TRB, Inc.’s property manager, but excluding any appraisals, budgets,
internal valuations or attorney-client privileged materials), with the
right to make photocopies thereof at Buyer’s expense, (B) subject to the
foregoing exclusions, access to all such other information regarding the
Westpark Property and in TRB, Inc.’s possession (including copies of such
contracts, books and records and other documents) as Buyer may reasonably
request, and (C) subject to the rights of the Westpark Tenants to the
quiet enjoyment and exclusive possession of their leased premises, access
to the Westpark Property at all reasonable times for purposes of
conducting (at Buyer’s expense and liability) any examinations, surveys
and tests as Buyer may reasonably require pursuant to the terms of this
Agreement.




     (xx) TRB, Inc. shall promptly furnish to Buyer copies of any and all
written notices that TRB, Inc. receives from federal, state or local
governmental authorities having jurisdiction over the Westpark Property,
any Board of Fire Underwriters and from any other body having
jurisdiction with respect to the use and occupancy or physical condition
of the Westpark Property.




     (xxi) TRB, Inc. shall deliver to Buyer the following additional
materials from time to time while this Agreement is in effect promptly
upon the receipt thereof by



79









 






TRB, Inc.: (a) copies of any notices of
violation of law received by TRB, Inc. that are issued with respect to
the Westpark Property; (b) copies of any additional Westpark Service
Contracts or amendments to the Westpark Service Contracts; and (c) any
assessment or reassessment notices received for the Westpark Property.




     (xxii) During the period from the Effective Date to the Closing
Date, TRB, Inc. shall maintain in force any currently existing policy or
policies of fire and extended coverage, hazard insurance and a liability
insurance policy with respect to the Westpark Property in an amount not
less than is presently in force. TRB, Inc. has not received any written
notice from the Existing Lender indicating that the currently existing
insurance policy or policies for the Westpark Property do not comply with
the insurance requirements of the Existing Lender.




     (xxiii) During the period from the Effective Date to the Closing
Date, TRB, Inc. shall not knowingly commit any act or fail to take any
required action, other than as required or permitted hereunder, which
would result in any of the warranties or representations contained in
this Section not being materially true or correct as of Closing.




     (xxiv) At Closing, TRB, Inc. shall remake and rewarrant to Buyer
each of
the representations and warranties given by TRB, Inc. pursuant to
the terms of this Section 3.2.1.B (subject to any modifications thereof
made pursuant to Section 3.2.3) pursuant to TRB, Inc.’s Closing
Certificate.




C. TRB, Inc. (as to itself only and for or in respect of matters relating
to its tenant-in-common interest in and to the Patrick Center Property)
and Woodstone (as to itself only and for or in respect of matters
relating to its tenant-in-common interest in and to the Patrick Center
Property), and Thirty Pat (as to itself only and for or in respect of
matters relating to its tenant-in-common interest in and to the Patrick
Center Property), hereby warrants, represents and/or covenants to the
Buyer as follows (the representations and warranties of each of the
Patrick Center Sellers that are set forth in this Section 3.2.1.C being
referred to herein collectively as the “Patrick Center Sellers’ Property
Representations”):




     (i) The applicable Patrick Center Seller is an entity validly
existing and in good standing under the laws of the state of its
formation; is in good standing and qualified to do business in the
jurisdiction where the Patrick Center Property is located. The applicable
Patrick Center Seller has full authority, right and power to enter into
this Agreement, to perform its respective obligations hereunder and to
consummate the transactions contemplated hereby applicable to it. The
applicable Patrick Center Seller has full authority, right and power to
enter into this Agreement and has caused this Agreement to be duly
executed and delivered to Buyer by an individual who is duly authorized
and empowered to do so. This Agreement and the applicable Seller’s
Closing Documents will constitute valid and legally binding obligations
of the applicable Patrick Center Seller, enforceable in accordance with
their respective terms, subject to: (i) judicial principles limiting the
availability of specific performance, injunctive relief, and



80









 






other
equitable remedies, and (ii) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect generally
relating to or affecting creditors’ rights.




     (ii) The applicable Patrick Center Seller has obtained all
government or third-party consents and approvals, except for the consent
of the Existing Lender, necessary for the execution and delivery of this
Agreement by the applicable Patrick Center Seller to make this Agreement
binding upon the applicable Patrick Center Seller and to permit
consummation of the transactions contemplated herein in accordance with
the terms of this Agreement. The execution and performance of this
Agreement by the applicable Patrick Center Seller does not and will not
violate, and are not restricted by, the terms of any other contract or
instrument to which the applicable Patrick Center Seller is a party,
except for the Existing Financing Documents, or any Law by which the
applicable Patrick Center Seller or the Patrick Center Property is bound.




     (iii) Within the twelve (12) month period prior to the Effective
Date hereof, the applicable Patrick Center Seller’s Knowledge, the
applicable Patrick Center Seller has not received any written notice from
any government authority, agency, officer or insurance company that the
current condition, occupancy or use of the Patrick Center Property is not
in material compliance with applicable Law or that any condition or
situation exists which requires work to be done to cure a noted violation
with respect to the Patrick Center Property, except for failures to
comply (if any) which have been
remedied or will be remedied on or before the Closing Date at the
sole cost and expense of the applicable Patrick Center Seller, subject to
the conditions and limitations set forth in Section 3.3.4. The Patrick
Center Sellers shall promptly provide Buyer with copies of any such
written notice received by any of the Patrick Center Sellers prior to the
Closing Date.




     (iv) Exhibit D-15 is a rent roll which identifies for the Patrick
Center Property, each existing Patrick Center Lease, indicating security
and other deposits. To the applicable Patrick Center Seller’s Actual
Knowledge, but upon commercially reasonable investigation and inquiry by
the applicable Patrick Center Seller, Exhibit D-15 is true, accurate and
complete as of the date of said rent roll. To the applicable Patrick
Center Seller’s Actual Knowledge, (i) no material default or breach
exists under any Patrick Center Lease on the part of the applicable
Patrick Center Seller, as landlord, and no event has occurred or has
failed to occur which, with the passage of time, or the giving of notice,
or both, would constitute a default on the part of the applicable Patrick
Center Seller under any of the Patrick Center Leases; and (ii) no
monetary default exists under any Patrick Center Lease on the part of a
Tenant, except as otherwise listed on the Aged Delinquencies Report
attached hereto as Exhibit S. To the applicable Patrick Center Seller’s
Actual Knowledge, but upon commercially reasonable investigation and
inquiry by the applicable Patrick Center Seller, (i) the applicable
Patrick Center Seller has not received written notice of any material
default by a Patrick Center Seller, as landlord, under any of the Patrick
Center Leases that has not been cured; and (ii) the applicable Patrick
Center Seller has not made any commitment to any Tenants to provide any
benefits, services, facilities, or amenities, or to perform repairs or



81









 






renovations not specified in the Patrick Center Leases with such Tenants.
Except as shown on the Patrick Center Rent Roll, no Tenant at the
Patrick Center Property has paid any rent in advance except for the
then-current month. Except as provided in Exhibit D-15 or as reflected
in the Patrick Center Leases, no Tenant of the Patrick Center Property
has received or is entitled to any rebate, concession, “free rent”,
abated rent (in the nature of an incentive), or other benefit. The
Patrick Center Sellers shall not execute new leases with any new tenant
with respect to any vacant space at the Patrick Center Property except in
accordance with the provisions of Section 3.2.1.(C)(xvii) hereof. The
Patrick Center Sellers shall update the rent roll for the Patrick Center
Property on a monthly basis and shall promptly provide a copy of such
updates to Buyer for each month after the Effective Date until Closing.




     (v) Exhibit G-15 correctly identifies each existing Patrick Center
Service Contract in effect on the Effective Date and that may be in
effect on the Closing Date for the Patrick Center Property and except as
disclosed on Exhibit G-14, and except for utilities, no other service
contract or management, service, leasing, employment or supply
commitments or contracts of any kind or description are in existence with
respect to the Patrick Center Property (or will be in existence with
respect to the Patrick Center Property on the Closing Date). The Patrick
Center Service Contracts available for review by Buyer are true and
correct copies of the actual Patrick Center Service Contracts in the
Patrick Center Sellers’ possession and, to the applicable Patrick Center
Seller’s Actual Knowledge are the complete written documentation of all
of the agreements between the Patrick Center Sellers and third party
vendors, with respect to the Patrick Center Property.




     (vi) Within the twelve (12) month period prior to the Effective
Date, the Patrick Center Sellers have not received (i) any written notice
from any governmental agency having jurisdiction that the Patrick Center
Real Property (including land, surface and subsurface soil, surface
water, ground water and improvements) or any part thereof is not
presently in compliance in any material respect with any applicable
Environmental Laws, except as reflected in the Environmental Report(s)
for the Patrick Center Property or in the Buyer’s environmental reports
for the Patrick Center Property previously delivered to the Patrick
Center Sellers prior to the Effective Date hereof or to be delivered to
the Patrick Center Sellers following the Effective Date hereof; and (ii)
any written notice from any adjoining property owners that its respective
real property (including land, surface and subsurface soil, surface
water, ground water and improvements) or any part thereof is not
presently in compliance in any material respect with any applicable
Environmental Laws, except as reflected in the Environmental Report(s)
for the Patrick Center Property or in the Buyer’s environmental reports
for the Patrick Center Property previously delivered to the Patrick
Center Sellers prior to the Effective Date hereof or to be delivered to
the Patrick Center Sellers following the Effective Date hereof. The
Patrick Center Sellers have no Actual Knowledge of any adverse
environmental conditions existing on the Patrick Center Property as of
the Effective Date, except for those conditions reflected in the
applicable Environmental Report(s) for the Patrick Center Property and
except for those conditions reflected in Buyer’s environmental reports
previously delivered to the Patrick



82









 






Center Sellers prior to the Effective
Date hereof or to be delivered to the Patrick Center Sellers following
the Effective Date hereof.




     (vii) There are no lawsuits, governmental proceedings, notices of
action required to be taken, judgments, causes of action or special
assessments, pending or, to the applicable Patrick Center Seller’s Actual
Knowledge, threatened, against the applicable Patrick Center Seller,
whose outcome could adversely affect the operation of the Patrick Center
Property (including, without limitation, actions for condemnation).
There are no bankruptcy, insolvency, rearrangement or similar actions or
proceedings, whether voluntary or involuntary, pending or, to the
applicable Patrick Center Seller’s Actual Knowledge, threatened, against
the applicable Patrick Center Seller.




     (viii) Except as disclosed in the Patrick Center Existing Title
Policy and/or in the Patrick Center Title Commitment and/or in the
Patrick Center Leases and/or in the Existing Financing Documents, (i) the
applicable Patrick Center Seller has not entered into any agreement
granting or creating any option or other right to acquire any legal or
beneficial ownership interest in the Patrick Center Property or any part
thereof; and (ii) no person or entity has a legal or beneficial ownership
interest in, or has an option to acquire any legal or beneficial
ownership interest in, the Patrick Center or any part thereof, the basis
for which arises out of an event or circumstance that occurred during a
Patrick Center Seller’s period of ownership of the Patrick Center
Property and that is not of record among the appropriate land records as
of the Effective Date.




     (ix) Except for Broker, the applicable Patrick Center Seller has not
engaged or dealt with any broker, finder or similar agent in connection
with the transaction contemplated by this Agreement.




     (x) All bills, accounts, invoices and/or claims for labor performed
and services and materials furnished to or for the benefit of the Patrick
Center Property prior to the Closing Date, including all utility bills,
have been or will be paid in full (or for any such unpaid items an escrow
shall be established at Closing); and there are no mechanic’s liens or
materialman’s liens filed or, to the applicable Patrick Center Seller’s
Actual Knowledge, threatened, or past due utility bills on or affecting
the Patrick Center Property.




     (xi) All items of personal property, if any, which are included in
the Patrick Center Property and listed on Exhibit C-15 are owned by the
Patrick Center Sellers and shall be owned by the Patrick Center Sellers
on the date of Closing, free and clear of all liens, debts, charges, and
encumbrances of every nature, kind, and description, except for the lien
securing the Existing Financing, and subject to the replacement rights
relating to such personal property as are set forth herein.




     (xii) To the applicable Patrick Center Seller’s Actual Knowledge,
the Patrick Center Sellers hold, and are in compliance in all material
respects with, the Patrick Center Permits.



83









 






     (xiii) The applicable Patrick Center Seller has no employees for or
with respect to the Patrick Center Property and all employees providing
services to or for the benefit of the Patrick Center Property are
employees of the applicable Patrick Center Seller’s property management
company.




     (xiv) None of the Patrick Center Sellers is a “foreign person”
within the meaning of the Internal Revenue Code of 1986, as amended to
date (the “Code”), and the transaction contemplated hereby does not
constitute a disposition of a U.S. real property interest by a foreign
person.




     (xv) During the period from the Effective Date to the Closing Date,
the applicable Patrick Center Seller shall:




          (A) Maintain the Patrick Center Property in its present condition
and state of repair and maintenance (subject to casualty damage and to
normal wear and tear and damages by the elements);




          (B) Subject to the terms of Section 3.2.1.C(xvii) below, continue
implementation of its leasing program for space in the Patrick Center
Improvements, and use commercially reasonable efforts to preserve
relations with each Patrick Center Tenant;




          (C) Take commercially reasonable measures consistent with the
Patrick Center Sellers’ past practices to preserve and enforce all of its
rights and remedies with respect to the Patrick Center Property and the
Patrick Center Leases, Service Contracts and Permits;




          (D) Not mortgage or subject to a lien or other encumbrance of
the Patrick Center Property; and




          (E) Not sell or transfer the Patrick Center Property.




     (xvi) During the period from the Effective Date to the Closing
Date, each applicable Patrick Center Seller shall comply in all material
respects with the terms and conditions of the Patrick Center Service
Contracts and other agreements pertaining to the operation, management,
leasing, and maintenance of the Patrick Center Property. Without the
prior written consent of Buyer in each case, which consent will not be
unreasonably withheld, delayed or conditioned, the applicable Patrick
Center Seller shall not at any point during the period from the
Effective Date to the Closing Date (i) enter into any new contracts
concerning the operation, management, leasing or maintenance of the
Patrick Center Property or services thereto which are not cancelable
without premium or penalty on thirty (30) days’ notice, or (ii) make or
contract for any maintenance item or capital repair exceeding a cost of
$10,000.00, except in the event of an emergency (in which event, the
applicable Patrick Center Seller shall provide Buyer with prompt notice
of any emergency), unless the same is paid for in full before or at
Closing. The applicable Patrick Center Seller shall



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not modify or
terminate a Patrick Center Service Contract other than in a manner
consistent with the following restrictions: After the Effective Date,
the applicable Patrick Center Seller may not modify or terminate any
Patrick Center Service Contract without Buyer’s prior written consent,
which Buyer shall not unreasonably withhold or delay or condition. No
approval by Buyer shall be required for any Patrick Center Service
Contract entered into by any of the Patrick Center Sellers prior to
Closing to the extent the same will be fully performed and paid for by
the applicable Patrick Center Seller before Closing.




     (xvii) From and after the Effective Date, the applicable Patrick
Center Seller shall not enter into any new lease or commitment to lease
with respect to any portion of the Patrick Center Property exceeding
5,000 square feet, without Buyer’s prior written consent, which consent
will not be unreasonably withheld, delayed or conditioned, and with
respect to any new lease or commitment to lease any portion of the
Patrick Center Property equal to or less than 5,000 square feet, which
does not require the approval of Buyer, such leases or commitments to
lease, shall be at customary market rates and on customary terms and
conditions. All leases referenced in Exhibit D-15 and any new lease or
amendment entered into from and after the Effective Date conforming to
the terms of this Section 3.2.1.C(xvii) or with Buyer’s prior written
consent shall be deemed included within the term “Patrick Center Leases”
as used herein and the tenants under any such new leases and/or
amendments shall be deemed included within the term “Patrick Center
Tenants” as used herein. The applicable Patrick Center Seller shall
comply with the terms and conditions of the Patrick Center Leases in
effect.




     (xviii) Each of the representations and warranties given and
covenants undertaken by the applicable Patrick Center Seller in Section
2.3.5 above with respect to the Existing Financing are incorporated into
this Section 3.2.1.C(xviii) by this reference. The Patrick Center
Sellers shall keep the Existing Financing current at all times until
Closing. Each applicable Patrick Center Seller will not further encumber
the Patrick Center Property, grant any easements or rights-of-way with
respect to the Patrick Center
Property or in any way affect or alter the title to the Patrick
Center Property, and shall not engage in any activity or effect any
transaction with respect to the Patrick Center Property, including, but
not limited to, the disposal of any items of personal property or
fixtures which are attached to the realty and are part of the Patrick
Center Property, which is outside the normal and ordinary course of
business of the Patrick Center Property, without the Buyer’s prior
written consent, which consent may be withheld, in Buyer’s reasonable
discretion. After the Effective Date hereof, the applicable Patrick
Center Seller shall not remove any fixtures, equipment, furnishings, and
other personalty from the Patrick Center Improvements without replacing
them with items of like kind and quality.




     (xix) During the period from the Effective Date to the Closing Date,
the applicable Patrick Center Seller shall provide Buyer, its agents,
consultants, accountants and counsel upon reasonable prior notice, (A)
access at all reasonable times to all of Patrick Center Sellers’
contracts, books and records and other documents relating to the
acquisition, construction, occupancy, operation, leasing, maintenance and
repair of the



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Patrick Center Property (including, without limitation,
such records maintained by or otherwise in the possession of Patrick
Center Seller’s property manager, but excluding any appraisals, budgets,
internal valuations or attorney-client privileged materials), with the
right to make photocopies thereof at Buyer’s expense, (B) subject to the
foregoing exclusions, access to all such other information regarding the
Patrick Center Property and in Patrick Center Seller’s possession
(including copies of such contracts, books and records and other
documents) as Buyer may reasonably request, and (C) subject to the rights
of the Patrick Center Tenants to the quiet enjoyment and exclusive
possession of their leased premises, access to the Patrick Center
Property at all reasonable times for purposes of conducting (at Buyer’s
expense and liability) any examinations, surveys and tests as Buyer may
reasonably require pursuant to the terms of this Agreement.




     (xx) The applicable Patrick Center Seller shall promptly furnish to
Buyer copies of any and all written notices that the applicable Patrick
Center Seller receives from federal, state or local governmental
authorities having jurisdiction over the Patrick Center Property, any
Board of Fire Underwriters and from any other body having jurisdiction
with respect to the use and occupancy or physical condition of the
Patrick Center Property.




     (xxi) The applicable Patrick Center Seller shall deliver to Buyer
the following additional materials from time to time while this Agreement
is in effect promptly upon the receipt thereof by the applicable Patrick
Center Seller: (a) copies of any notices of violation of law received by
the applicable Patrick Center Seller that are issued with respect to the
Patrick Center Property; (b) copies of any additional Patrick Center
Service Contracts or amendments to the Patrick Center Service Contracts;
and (c) any assessment or reassessment notices received for the Patrick
Center Property.




     (xxii) During the period from the Effective Date to the Closing
Date, the Patrick Center Sellers shall maintain in force any currently
existing policy or policies of fire and extended coverage, hazard
insurance and a liability insurance policy with respect to the Patrick
Center Property in an amount not less than is presently in force. The
applicable Patrick Center Seller has not received any written notice from
the
Existing Lender indicating that the currently existing insurance
policy or policies for the Patrick Center Property do not comply with the
insurance requirements of the Existing Lender.




     (xxiii) During the period from the Effective Date to the Closing
Date, the applicable Patrick Center Seller shall not knowingly commit any
act or fail to take any required action, other than as required or
permitted hereunder, which would result in any of the warranties or
representations contained in this Section not being materially true or
correct as of Closing.




     (xxiv) At Closing, the Patrick Center Sellers shall remake and
rewarrant to Buyer each of the representations and warranties given by
the Patrick Center Sellers pursuant to the terms of this Section 3.2.1.C
(subject to any modifications thereof made pursuant to Section 3.2.3)
pursuant to the Patrick Center Sellers’ Closing Certificate.



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D. Each of the Selling Members hereby warrants, represents and/or
covenants to Buyer (as to only itself, and as to only the LLC or LLCs in
which the Selling Member is a member, as applicable), as follows (the
representations and warranties of each of the Selling Members set forth
in this Section 3.2.1.D being referred to herein collectively as the
“Selling Member Representations”):




     (i) The applicable Selling Member (other than T. Richard Butera with
respect to Butera Gateway West II, LLC) is an entity validly existing and
in good standing under the laws of the state of its formation. The
applicable Selling Member owns good and marketable title to its
respective Membership Interests free and clear of all liens, pledges,
claims and encumbrances. No Selling Member has pledged, encumbered,
granted an option or right to acquire, assigned, or transferred the
Membership Interests owned by such Selling Member. Except as provided in
the LLC Instruments, (i) no person or entity has an option to acquire
such Membership Interests, and (ii) there are no outstanding rights,
options, rights of first refusal or similar rights for the purchase or
acquisition of the Membership Interests owned by the applicable Selling
Member in the LLCs.




     (ii) Attached hereto as
 Exhibit H-1, Exhibit H-2, Exhibit H-3, Exhibit H-4, Exhibit H-5, Exhibit H-6, and  Exhibit H-7, is a list of each
of the LLC instruments and amendments for Butera Properties, LLC, Butera
Properties II, LLC, Butera Gateway Center, LLC, Butera Girard Business
Center, LLC, Butera Girard Place, LLC, Butera Goldenrod Lane, LLC, and
Butera Gateway West II, LLC, respectively, comprising the applicable LLC
operating agreement and articles of organization since the formation of
such LLC (which are referred to herein individually as the “Butera
Properties, LLC Instruments”, the Butera Properties II, LLC Instruments,
the Butera Gateway Center, LLC Instruments, the Butera Girard Business
Center, LLC Instruments, the Butera Girard Place, LLC Instruments, the
Butera Goldenrod Lane, LLC Instruments, the Butera Gateway West II, LLC
Instruments, respectively, and collectively as the “LLC Instruments”).
The LLC Instruments have not been modified or amended in any respect
except as listed on  Exhibit H-1, Exhibit H-2, Exhibit H-3, Exhibit H-4,
 Exhibit H-5, Exhibit H-6, and  Exhibit H-7, as applicable. Prior to the
Effective Date, the applicable Selling Members have delivered to the
Buyer true, accurate and complete copies of the
applicable LLC Instruments.




     (iii) Attached hereto as  Exhibit B-1,
 Exhibit B-2, Exhibit B-3,
 Exhibit B-4, Exhibit B-5, Exhibit B-6, and  Exhibit B-7, is a true,
accurate and complete list of all current managers and members of the
applicable LLC, and the respective percentage of Membership Interests
owned by each such manager and member.




     (iv) The applicable Selling Member has the power and authority to
enter into this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby, including, without
limitation, to convey the Membership Interests owned by such Selling
Member to the Buyer in accordance with this Agreement. Except for the
consent of the Existing Lender, no consents or approvals



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of any other
third parties are necessary for the applicable Selling Member to enter
into and consummate Closing under this Agreement. This Agreement and the
applicable Seller’s Closing Documents will constitute valid and legally
binding obligations of the applicable Selling Member, enforceable in
accordance with their respective terms, subject to: (i) judicial
principles limiting the availability of specific performance, injunctive
relief, and other equitable remedies, and (ii) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect generally relating to or affecting creditors’ rights.




     (v) The applicable Selling Member is not a party to any pending or,
to the applicable Selling Member’s Actual Knowledge, threatened,
litigation or proceedings relating to any of the applicable LLC’s
Properties, the operation of any of the applicable LLC’s Properties or
the activities of the applicable LLC, except as otherwise set forth on
 Exhibit U attached hereto with respect to the Woodlands Property. There
are no bankruptcy, insolvency, rearrangement or similar actions or
proceedings, whether voluntary or involuntary, pending or, to the
applicable Selling Member’s Actual Knowledge, threatened, against such
Selling Member.




     (vi) There are no lawsuits, governmental proceedings, notices of
action required to be taken, judgments, causes of action or special
assessments, pending or, to the applicable Selling Member’s Actual
Knowledge, threatened, against the applicable Selling Member whose
outcome could adversely affect the ability of the applicable Selling
Member to convey its Membership Interests to the Buyer under this
Agreement.




     (vii) The execution and performance of this Agreement by the
applicable Selling Member (i) does not and will not violate the
applicable LLC Instruments or the terms of any other contract or
instrument to which the applicable Selling Member is a party or successor
party or any Law by which the applicable Selling Member is bound, other
than the Existing Financing Documents, until the required approvals from
the Existing Lender are obtained; and (ii) are not or will not be
restricted by the applicable LLC Instruments once the applicable LLC
Instrument Amendments are executed and delivered by the applicable
Selling Member and the FP LLC Buyers.




     (viii) At Closing, the applicable Selling Member shall assign and
transfer to the Buyer all Membership Interests in each applicable LLC
owned by such Selling Member pursuant to an Assignment of Membership
Interests. As of the Closing
Date, the applicable Selling Member will hold its respective
Membership Interests in the LLCs, as the record owner thereof, free and
clear of all liens, pledges, claims and encumbrances whatsoever, and the
respective Membership Interests sold by the applicable Selling Member
will constitute all of the Membership Interests owned by the applicable
Selling Member in the LLCs. The Membership Interests, when sold,
assigned and transferred to Buyer at Closing in accordance with the terms
of this Agreement will be free of restrictions on transfer created by the
applicable Selling Member or the applicable LLC, except for any
restrictions on transfer provided in the applicable LLC Instruments
and/or the Existing Financing Documents.



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     (ix) At Closing, the applicable Selling Member shall remake and
rewarrant to Buyer each of the representations and warranties given by
such Selling Member pursuant to the terms of this Section 3.2.1.D.
(subject to any modifications thereof made pursuant to Section 3.2.3)
pursuant to the applicable Seller’s Closing Certificate.




     (x) At Closing, (1) the applicable Selling Member shall irrevocably
waive in writing any claims or causes of action that such Selling Member
may have against the LLCs in which such Selling Member is a member or any
of such LLCs’ assets as a result of events occurring prior to and
including the Closing Date; and (2) the applicable LLC shall irrevocably
waive in writing any claims or causes of action that such LLC may have
against the Selling Members or any of their assets as a result of events
occurring prior to and including the Closing Date.




     (xi) At Closing, the applicable Selling Member shall execute a
Closing Indemnity Agreement, pursuant to which the applicable Selling
Member shall indemnify, defend and save harmless the Buyer from and
against all loss, cost, damage, expense (including reasonable attorneys’
fees and litigation costs), liabilities, claims and causes of action
arising in respect of any liability of the applicable Selling Member
resulting from the intentional or negligent acts of the applicable
Selling Member or failures to act where the applicable Selling Member was
under a duty to act prior to the Closing Date or in connection with
Closing under this Agreement. In the event that any claim is made
against the Buyer after Closing on account of any such liabilities of the
applicable Selling Member, other than the LLC Liabilities, that are
covered by the foregoing indemnity, the applicable Selling Member shall
promptly pay or satisfy the same. The indemnity of the applicable
Selling Member set forth in this Section 3.2.1.D(xi) shall be contained
in a written indemnification agreement (a “Closing Indemnity Agreement”)
executed by the applicable Selling Member in favor of the Buyer at
Closing, which shall survive Closing for a period of twelve (12) months
following the Closing Date.




     (xii) During the period from the Effective Date to the Closing Date,
the applicable Selling Member shall not knowingly commit any act or fail
to take any required action, other than as required or permitted
hereunder, which would result in any of the warranties or representations
given by the applicable Selling Member as contained in this Section
3.2.1.D not being materially true or correct as of Closing. The
applicable Selling Member shall promptly provide Buyer with copies of any
written notices of the threat or institution of any litigation received
by such Selling Member prior to the Closing Date.




3.2.2 By Buyer. Buyer hereby warrants, represents and covenants to the
Seller Parties that:




     (i) FP-LP is a limited partnership validly existing and in good
standing under the laws of Delaware; has full power and authority to
enter into this Agreement and to fulfill its obligations hereunder; has
duly authorized this Agreement by all appropriate action; and has caused
this Agreement to be duly executed and delivered



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to the Seller Parties by
an individual who is duly authorized and empowered to do so. FP Manager
is or will be by Closing a corporation validly existing and in good
standing under the laws of Delaware; has full power and authority to
enter into this Agreement and to fulfill its obligations hereunder; has
duly authorized this Agreement by all appropriate action; and has caused
this Agreement to be duly executed and delivered to the Seller Parties by
an individual who is duly authorized and empowered to do so. FP Westpark
is or will be by Closing a limited liability company validly existing and
in good standing under the laws of Maryland; has full power and authority
to enter into this Agreement and to fulfill its obligations hereunder;
has duly authorized this Agreement by all appropriate action; and has
caused this Agreement to be duly executed and delivered to the Seller
Parties by an individual who is duly authorized and empowered to do so.
FP Patrick Center is or will be by Closing a limited liability company
validly existing and in good standing under the laws of Maryland; has
full power and authority to enter into this Agreement and to fulfill its
obligations hereunder; has duly authorized this Agreement by all
appropriate action; and has caused this Agreement to be duly executed and
delivered to the Seller Parties by an individual who is duly authorized
and empowered to do so. This Agreement and the Buyer’s Closing Documents
will constitute valid and legally binding obligations of the applicable
Buyer, enforceable in accordance with their respective terms, subject to:
(i) judicial principles limiting the availability of specific
performance, injunctive relief, and other equitable remedies, and (ii)
bankruptcy, insolvency, reorganization, moratorium or other laws now or
hereafter in effect generally relating to or affecting creditors’ rights.
There are no bankruptcy, insolvency, rearrangement or similar actions or
proceedings, whether voluntary or involuntary, pending or, to the Buyer’s
Actual Knowledge, threatened, against the Buyer.




     (ii) To Buyer’s Knowledge, no government or other third-party
approvals or consents are required for the execution and delivery of, or
performance of its obligations under, this Agreement by the Buyer. The
execution and performance of this Agreement by the Buyer do not and will
not violate, and are not restricted by, any the terms of any other
contract or instrument to which any of the Buyer is a party or any Law by
which any of the Buyer is otherwise bound.




     (iii) To Buyer’s Knowledge, there are no lawsuits pending and served
against the Buyer or threatened against the Buyer whose outcome could
adversely affect the ability of the Buyer to purchase the Membership
Interests and the Westpark and Patrick Center Properties under this
Agreement.




     (iv) The Buyer has not engaged or dealt with any broker, finder or
similar agent in connection with the transaction contemplated by this
Agreement.




     (v) At Closing, the Buyer and the applicable LLC shall execute a
Closing Indemnity Agreement, pursuant to which the Buyer and the
applicable LLC shall indemnify, defend and save harmless the applicable
Selling Members from and against all loss, cost, damage, expense
(including reasonable attorneys’ fees and litigation costs), claims,
liabilities and causes of action arising in respect of any liability of
the applicable LLC or the Buyer resulting from the intentional or
negligent acts of the applicable LLC or the Buyer, or failures to act
where the applicable LLC



90









 






or the Buyer was under a duty to act, on or
after the Closing Date or in connection with Closing under this
Agreement. In the event that any claim is made against the applicable
Selling Members after Closing on account of any such liabilities of the
applicable LLC or the Buyer that are covered by the foregoing indemnity,
the Buyer and the applicable LLC shall promptly pay or satisfy the same
in accordance with the terms of such Closing Indemnity Agreement. The
obligations of the Buyer and the applicable LLC under such Closing
Indemnity Agreement shall survive Closing for a period of twelve (12)
months following the Closing Date.




     (vi) EXCEPT FOR THE WARRANTIES, REPRESENTATIONS, COVENANTS AND
INDEMNITIES OF THE SELLER PARTIES EXPRESSLY SET FORTH IN THIS AGREEMENT
OR IN THE SELLER’S CLOSING DOCUMENTS, (1) BUYER’S PURCHASE OF THE
MEMBERSHIP INTERESTS AND THE PROPERTIES HEREUNDER WILL BE “AS-IS,
WHERE-IS, WITH ALL FAULTS”, AND (2) BUYER WILL BE CONCLUDING THE PURCHASE
OF THE MEMBERSHIP INTERESTS AND THE PROPERTIES HEREUNDER BASED SOLELY ON
ITS OWN INSPECTION AND INVESTIGATION OF THE PROPERTIES AND ON ALL
DOCUMENTS RELATED THERETO. WITHOUT LIMITING THE FOREGOING, BUYER
ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN
THE SELLER’S CLOSING DOCUMENTS, THE SELLER PARTIES HAVE NOT MADE ANY
REPRESENTATIONS, WARRANTIES OR INDEMNITIES ON WHICH BUYER IS RELYING AS
TO ANY MATTERS CONCERNING THE PROPERTIES OR THE MEMBERSHIP INTERESTS.
FURTHER, TO THE EXTENT THAT THE SELLER PARTIES OR ANY OF THEIR AGENTS OR
CONSULTANTS HAS PROVIDED TO BUYER ANY ENVIRONMENTAL REPORT OR ANY
INFORMATION FROM ANY OTHER INSPECTION, ENGINEERING OR ENVIRONMENTAL
REPORTS CONCERNING ASBESTOS, RADON OR ANY HAZARDOUS SUBSTANCE, NO
REPRESENTATIONS, WARRANTIES OR INDEMNITIES ARE MADE BY ANY OF THE SELLER
PARTIES WITH RESPECT TO THE ACCURACY OR COMPLETENESS, METHODOLOGY OF
PREPARATION OR OTHERWISE CONCERNING THE CONTENTS OF SUCH REPORTS.




     AS A MATERIAL PART OF THE CONSIDERATION TO THE SELLER PARTIES FOR
THE SALE OF THE MEMBERSHIP INTERESTS AND PROPERTIES, BUYER AND, UPON
CLOSING, THE LLCS, HEREBY WAIVE AND RELEASE THE SELLER PARTIES (AND THEIR
RESPECTIVE PARTNERS, MANAGERS, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES
AND AGENTS) FROM, ANY AND ALL CLAIMS (OTHER THAN THOSE RELATING TO BREACH
OF WARRANTIES, REPRESENTATIONS OR COVENANTS BY THE SELLER PARTIES OR FOR
INDEMNITIES OF THE SELLER PARTIES SET
FORTH IN THIS AGREEMENT OR IN THE SELLER’S CLOSING DOCUMENTS) THAT
ARE BASED DIRECTLY OR INDIRECTLY ON, ARISE FROM OR IN CONNECTION WITH, OR
ARE RELATED TO: (A) ANY PAST, PRESENT OR FUTURE CONDITION OF THE
PROPERTIES, INCLUDING, WITHOUT



91









 






LIMITATION, THE PRESENCE OF HAZARDOUS
SUBSTANCES AT THE PROPERTIES, (B) ANY AND ALL STATEMENTS,
REPRESENTATIONS, WARRANTIES, DETERMINATIONS, CONCLUSIONS, ASSESSMENTS,
ASSERTIONS OR ANY OTHER INFORMATION CONTAINED IN ANY OF THE PROPERTY
DOCUMENT DELIVERIES, OR (C) ANY DEFECT, INACCURACY OR INADEQUACY IN TITLE
OF THE PROPERTIES, LEGAL DESCRIPTION OF THE PROPERTIES, COVENANTS,
RESTRICTIONS, ENCUMBRANCES OR ENCROACHMENTS WHICH AFFECT THE PROPERTIES.




BUYER HEREBY ACKNOWLEDGES AND AGREES THAT (i) BUYER MAY HEREAFTER
DISCOVER FACTS DIFFERENT FROM OR IN ADDITION TO THOSE NOW (OR AS OF THE
CLOSING) KNOWN OR BELIEVED TO BE TRUE REGARDING THE PROPERTIES AND/OR
PROPERTY INFORMATION, AND (ii) UPON CLOSING, THE BUYER’S AGREEMENT TO
RELEASE, ACQUIT AND DISCHARGE THE SELLER PARTIES, SUBJECT TO AND UPON THE
TERMS AND PROVISIONS SET FORTH HEREIN, SHALL REMAIN IN FULL FORCE AND
EFFECT, NOTWITHSTANDING THE EXISTENCE OR DISCOVERY OF ANY SUCH DIFFERENT
OR ADDITIONAL FACTS; PROVIDED THAT SUCH DIFFERENT OR ADDITIONAL FACTS
WERE NOT INTENTIONALLY OR FRAUDULENTLY CONCEALED BY THE SELLER PARTIES.




3.2.3 Changes in Representations and Warranties. From and after full
execution hereof until Closing, each Party shall promptly notify the
other Parties in writing of any events or circumstances, of which the
notifying Party has Actual Knowledge which have occurred from and after
the Effective Date hereof or which were unknown to the notifying Party as
of such date and were subsequently discovered by the notifying Party,
which events or circumstances make any of the foregoing representations
and warranties untrue, incomplete or inaccurate in any material respect.




3.2.3.1 If at or prior to the Closing, (A) Buyer has Actual Knowledge
(whether through its own efforts, by notice from any Seller or otherwise)
that any of the representations or warranties made herein by any Seller
are untrue, inaccurate or incorrect and shall give the Seller
Representative notice thereof at or prior to the Closing, or (B) the
Seller Representative shall notify Buyer that a representation or
warranty made herein by any Seller is untrue, inaccurate or incorrect,
then either Party may, in its sole discretion, elect by notice to the
other Party to adjourn the Closing one or more times for up to sixty (60)
days in the aggregate in order to allow the applicable Seller to cure or
correct such untrue, inaccurate or incorrect representation or warranty.
If any such untrue, inaccurate or incorrect representation or warranty is
not cured or corrected by the applicable Seller on or before the Closing
Date (whether or not the Closing is adjourned as provided above), then
Buyer, as its sole and exclusive remedy for any and all such untrue,
inaccurate or incorrect representations or warranties, shall elect either
(x) to waive such misrepresentations or breaches of warranties and
consummate the transactions contemplated hereby without any reduction of
or credit against the Purchase Price, or
(y) to terminate this Agreement by notice given to the Seller
Representative on or before the Closing Date, in which event, this
Agreement shall be terminated and neither Party



92









 






shall have any further
rights, obligations or liabilities hereunder, except as otherwise
expressly set forth herein, and Escrow Agent shall refund the Deposit to
Buyer, and Seller shall reimburse Buyer for its actual third party due
diligence costs incurred in connection with this Agreement, but not to
exceed $100,000.00.




3.2.4 Seller Parties’ Liability for Representations, Warranties and
Covenants; Limitation on Actions for Seller Parties’ Breach of
Warranties. Except for the terms and conditions set forth in Section
3.2.3.1 above, notwithstanding anything to the contrary set forth herein,
but subject to the conditions and limitations set forth below in this
Section 3.2.4 and in Section 3.21, each applicable Seller Party shall be
liable for a breach by such Seller Party of its respective
representations and warranties set forth in Section 3.2.1 and for the
performance of the covenants undertaken by such Seller Party as set forth
in Section 3.2.1 or elsewhere in this Agreement, and for the performance
of its indemnity obligations set forth in this Agreement and the
applicable Seller’s Closing Documents; provided that the limitations set
forth in this paragraph shall not apply to any breach by a Selling Member
of its Selling Member Representations set forth in Section 3.2.1.D(i)
through (vii), inclusive, of this Agreement. The representations and
warranties in Section 3.2.1 will be deemed made on and as of the Closing
Date with the same force and effect as if made at that time and the
Seller Parties shall execute and deliver the applicable Seller Closing
Certificate as of the Closing Date confirming the representations and
warranties contained herein, subject to any modifications thereof made
pursuant to Section 3.2.3. Except for the terms and conditions set forth
in Section 3.2.3.1 above, notwithstanding any other provision of this
Agreement or Seller’s Closing Documents, any claim following the Closing
Date based on a breach of the representations, warranties and covenants
in Section 3.2.1 or in a Seller Closing Certificate shall be forever
barred, and Buyer shall bring no action thereon, unless:




3.2.4.1 Buyer has incurred actual losses as a result of such breach
in excess of Fifty Thousand Dollars ($50,000.00); provided that the
foregoing provisions of this Section 3.2.4.1 shall not apply to any
breach by a Selling Member of its Selling Member Representations
set forth in Section 3.2.1.D(i) through (vii), inclusive, of this
Agreement; and




3.2.4.2 Buyer gives the applicable Manager, TRB, Inc. or the
Patrick Center Sellers written notice of such claim within six (6)
months following the Closing Date with respect to any breach of the
applicable Manager’s Property Representations, TRB, Inc.’s Property
Representations or the Patrick Center Sellers’ Property
Representations; or Buyer gives the applicable Selling Member
written notice of such claim within twelve (12) months following
the Closing Date with respect to any breach of the applicable
Selling Member Representations. Each such written notice given
pursuant to this Section 3.2.4.2 shall describe with reasonable
particularity in such notice each representation and warranty of
the applicable Seller Parties which Buyer claims to have been
breached and the facts on which such claim is based; and




3.2.4.3 Buyer files an action on such claim in a court of
appropriate



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jurisdiction within (A) eight (8) months following the Closing Date
with respect to any breach of the applicable Manager’s Property
Representations, TRB, Inc.’s Property Representations or the
Patrick Center Property Representations; or (B) within fourteen
(14) months following the Closing Date with respect to any breach
of the applicable Selling Member Representations; and




3.2.4.4 (i) Buyer has no Actual Knowledge of the facts constituting
such breach prior to Closing; and (ii) such facts are not otherwise
contained or found within (A) the Property Document deliveries, the
Leases, the Service Contracts, the Environmental Reports, the
Existing Title Policies, the LLC Instruments, the Permits, the
Permitted Exceptions, the Plans, the Surveys and the Title
Commitments, but only to the extent that such items are actually
received by Buyer, or (B) any of the reports and studies that have
been prepared by Buyer’s third party professional consultants
regarding the Properties; and




3.2.4.5 Such claim is not covered by Buyer’s or the LLC’s insurance
policies in effect at the time of the claim, and if so covered, the
applicable Seller Party shall reimburse Buyer or the applicable LLC
for its deductible, not to exceed $10,000.00 per claim, or
$50,000.00 in the aggregate; and provided further, that in no event
shall Seller’s aggregate liability to Buyer for all breaches of the
representations set forth in Section 3.2.1 exceed Five Million
Dollars ($5,000,000.00), except as otherwise provided below in this
Section 3.2.4.5 with respect to a Selling Member, except that
nothing set forth herein shall limit Buyer’s rights and remedies
under Section 3.21 below. Notwithstanding anything to the contrary
set forth herein, a Selling Member’s aggregate liability to Buyer
for any breaches by a Selling Member of the Selling Member
Representations set forth in Section 3.2.1D(i) through (vii),
inclusive, of this Agreement shall not be limited pursuant to the
provisions of this paragraph; provided that in no event shall any
Selling Member be liable under this Section 3.2.4 for an amount in
excess of the total distributions such Selling Member would be
entitled to receive from the applicable LLC if its respective
Property or Properties were sold for the Purchase Price allocated
to such Property on  Exhibit P to this Agreement, or Properties and
the net proceeds of such sale were distributed to the Selling
Member in conformity with the terms of the LLC Instruments.




Notwithstanding the foregoing provisions to the contrary, the limitations
set forth above in this Section 3.2.4 and set forth below in Section 3.21
shall not apply to any of the applicable Seller’s indemnity obligations
set forth in this Agreement or in the Seller’s Closing Documents (but
such indemnity obligations shall be subject to the conditions and
limitations thereon as set forth elsewhere in this Agreement) and shall
not apply to the Seller’s breach of its covenants or obligations set
forth in Sections 3.9 and 3.25 hereof and shall not apply to the extent
that Seller has committed fraud.




3.2.5 Buyer’s Liability for Representations, Warranties and Covenants;
Limitation on Actions for Buyer’s Breach of Warranties. Notwithstanding
anything to the contrary contained herein, but subject to the conditions
and limitations set forth



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below in this Section 3.2.5 and in Section
3.22, the Buyer shall be liable for a breach by the Buyer of its
representations and warranties set forth in Section 3.2.2 and for the
performance of the covenants undertaken by the Buyer as set forth in
Section 3.2.2 or elsewhere in this Agreement, and the performance of
Buyer’s indemnity obligations set forth in this Agreement and the
applicable Seller’s Closing Documents. The representations and warranties
in Section 3.2.2 will be deemed made on and as of the Closing Date with
the same force and effect as if made at that time and Buyer shall execute
and deliver the Buyer’s Closing Certificate as of the Closing Date
confirming the representations and warranties contained herein, subject
to any modifications thereof made pursuant to Section 3.2.3.
Notwithstanding any other provision of this Agreement or Buyer’s Closing
Documents, any claim based on a breach of Buyer’s representations and
warranties in Section 3.2.2 or in Buyer’s Closing Certificate shall be
forever barred, and none of the Seller Parties shall bring any action
thereon, unless:




3.2.5.1 The Seller Parties have incurred actual losses as a result
of such breach in excess of Fifty Thousand Dollars ($50,000.00);
and




3.2.5.2 The Seller Parties give Buyer written notice of such claim
within six (6) months following the Closing Date, describing with
reasonable particularity in such notice, each representation and
warranty of Buyer which the Seller Parties claim to have been
breached and the facts on which such claim is based; and provided
further that in no event shall Buyer’s aggregate liability to the
Seller Parties for all breaches of its representations and
warranties exceed the actual damages incurred by the Seller Parties
for or in connection with such breach by Buyer; and




3.2.5.3 The Seller Parties file an action on such claim in a court
of appropriate jurisdiction within eight (8) months following the
Closing Date; and




3.2.5.4 The Seller Parties have no Actual Knowledge of the facts
constituting such breach prior to Closing; and provided further
that in no event shall Buyer’s aggregate liability to the Seller
Parties for all breaches of its representations and warranties
exceed an amount equal to the amount of the Deposit.




The limitations set forth above in this Section 3.2.5 and set forth
below in Section 3.22 shall not apply to any of Buyer’s indemnity
obligations set forth in this Agreement or in Buyer’s Closing
Documents (but such indemnity obligations shall be subject to the
conditions and limitations thereon as set forth elsewhere in this
Agreement) and shall not apply to the Buyer’s breach of its
covenants or obligations set forth in Sections 2.3.1, 3.1.2, 3.9
and 3.25 hereof and shall not apply to the extent that Buyer has
committed fraud.



     3.2.6 Overall Limitation on Liability of Selling Members. Notwithstanding
anything in this Agreement or in the Closing Documents to the contrary, the
aggregate liability of the Selling Members to Buyer and, after Closing, to the
LLCs, for any and all claims under this



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Agreement or any Closing Document
(including, but not limited to, any and all breaches of the Selling Member
Representations and covenants made by the Selling Members, and any
indemnification obligations of the Selling Members) shall be limited to the
total distributions the Selling Members would be entitled to receive in the
aggregate from the LLCs if the Properties
were sold for the Purchase Price and the net proceeds of such sale were
distributed to the Selling Members in conformity with the terms of the LLC
Instruments. Further, the aggregate liability of each Selling Member with
respect to such claims shall be limited to the total distribution such Selling
Member would be entitled to receive from the applicable LLC if its respective
Property or Properties were sold for the Purchase Price and the net proceeds of
such sale were distributed to such Selling Members in conformity with the terms
of the LLC Instruments.



     3.2.7 Subject to the terms and conditions set forth in this Section 3.2.7,
T. Richard Butera, personally agrees to indemnify and hold harmless Buyer from
and against all direct loss, cost, damage, expense (including reasonable
attorneys’ fees and litigation costs), liabilities, claims and causes of action
(collectively, the “Buyer Losses”) arising as a result of the breach by any
Selling Member of the Selling Member Representations set forth in Section
3.2.1.D (i) through (vii), inclusive, of this Agreement. The indemnification
set forth in this Section 3.2.7 shall be subject to the Buyer’s satisfaction of
each of the applicable conditions set forth in Sections 3.2.4.2, 3.2.4.3,
3.2.4.4(i) and 3.2.4.5 as well as the following limitations: (a) the Buyer
Losses that are the subject of the indemnification set forth in this Section
3.2.7 shall expressly exclude any and all indirect, consequential and punitive
damages that may be suffered or incurred by the Buyer; and (b) the aggregate
liability of T. Richard Butera under or pursuant to the indemnification set
forth in this Section 3.2.7 shall be expressly limited to the total
distributions T. Richard Butera would be entitled to receive in the aggregate
from Butera Equity, LLC if the applicable Properties were sold for the Purchase
Price allocated to such Property on  Exhibit P to this Agreement and the net
proceeds of such sale were distributed in conformity with the terms the Butera
Equity, LLC instruments. T. Richard Butera hereby represents and warrants to
Buyer that he personally owns all of the membership interests in Butera Equity,
LLC. T. RICHARD BUTERA HAS REVIEWED THE TERMS OF THIS AGREEMENT INCLUDING
WITHOUT LIMITATION THE TERMS OF THIS SECTION 3.2.7 WITH COUNSEL OF HIS OWN
CHOOSING AND HAS JOINED IN THE EXECUTION OF THIS AGREEMENT TO EVIDENCE HIS
ACKNOWLEDGEMENT AND CONSENT TO THE TERMS AND PROVISIONS OF THIS SECTION 3.2.7.



     3.3 Conditions Precedent to Buyer’s Obligation. The obligations of the
Buyer to close under this Agreement shall be expressly subject to satisfaction
of each of the following conditions precedent:




3.3.1 Performance of Seller Parties’ Obligations. Performance by the
Seller Parties in all material respects of their respective obligations
under this Agreement to be performed at or before Closing. The Seller
Parties shall have complied with and not be in material breach of any of
their respective covenants contained in Section 3.2.1.




3.3.2 Accuracy of Warranties and Representations; Compliance with
Covenants. Each of the warranties and representations of the Seller
Parties set forth in Section 3.2.1 shall be true and accurate in all
material respects as if made as of the date of Closing,



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subject only to
changes made in conformity with Section 3.2.3. To the extent that any
of such representations and warranties are expressly limited to the
applicable Seller’s Actual Knowledge, satisfaction of this condition
precedent shall require the actual truth of the underlying facts and
circumstances which are the subject of these representations and
warranties, without regard to the state of Seller’s Knowledge about such
facts and circumstances. The foregoing notwithstanding, such failure of
condition shall not be
deemed to be or create liability for a breach of the applicable Seller’s
representations and warranties contained herein or constitute any other
breach hereunder.



     3.3.3 Satisfactory Title. Title to the each of the Properties shall be
insurable pursuant to the Title Commitments, subject only to the
applicable Permitted Exceptions, and the Title Company shall be prepared
to issue Title Policies in the form of the pro-forma title policies
reasonably approved by Buyer on or before the Title/Survey Objection
Date.



     3.3.4 Compliance with any Governmental Violations. All written notices
of violations of governmental orders or requirements noted or issued by
any public authority having jurisdiction, and any action in any court
against or affecting the Properties which have been received by any of
the Seller Parties, the costs of complying with which exceed Fifty
Thousand Dollars ($50,000.00) and are less than One Hundred Fifty
Thousand Dollars ($150,000.00), as reasonably determined by the Seller
Parties and Buyer, shall have been complied with by the Seller Parties
and the Properties shall be free and clear thereof. No part of any of
the Properties shall be in violation, in any material respect, of any
governmental laws, ordinances, rules or regulations pertaining to zoning,
use, construction or operation of the Properties, including building,
fire and health or similar type ordinances, codes or regulations, the
costs of complying with which exceed Fifty Thousand Dollars ($50,000.00)
and are less than One Hundred Fifty Thousand Dollars ($150,000.00), as
reasonably determined by the Seller Parties and Buyer. The nature,
extent, methods and materials for any corrective work performed by the
Seller Parties, in their reasonable discretion, relating to any of such
notices of violation and the parties performing such work shall be
subject to Buyer’s prior approval, which approval shall not be
unreasonably withheld, delayed or conditioned.



     3.3.5 Performance of the LLCs’ Obligations under the Leases. The
applicable Manager, TRB, Inc. and the Patrick Center Sellers shall have
provided to Buyer an updated rent roll for their respective Properties
certified by the applicable Manager on behalf of the applicable LLC, TRB,
Inc. and the Patrick Center Sellers as of a date no more than five (5)
Business Days prior to the date of Closing in the form attached hereto as
 Exhibit D-1, Exhibit D-2, Exhibit D-3, Exhibit D-4,
  Exhibit D-5, Exhibit D-6, Exhibit D-7, Exhibit D-8,
 Exhibit D-9, Exhibit D-10, Exhibit D-11, Exhibit D-12,
  Exhibit D-13, Exhibit D-14, and  Exhibit D-15, as
applicable (the “Final Certified Rent Roll”), showing as of the date of
such rent roll all rebates, concessions, deductions or abatements of rent
to which any Tenant is entitled, which Final Certified Rent Roll shall
show no material adverse changes from the Rent Roll for the Properties
delivered to Buyer for the month prior to the month in which Closing
occurs.



     3.3.6 Approval of Existing Lender and Related Matters. (a) Buyer shall
have



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received all approvals from the Existing Lender that are required
for or in connection with the consummation of the transaction
contemplated by this Agreement, approving the assumption of the Existing
Financing by Buyer at Closing upon the existing terms and conditions as
set forth in the Existing Financing Documents, with no new terms and
conditions reasonably unacceptable to Buyer (collectively, the “Existing
Lender Approvals”); (b) Buyer shall have received the Existing Lender
Statement from the Existing Lender; (c) all other conditions precedent to
Buyer’s obligations to close
hereunder relating to the Existing Financing as set forth in Section
2.3.5 hereof shall be satisfied; and (d) Buyer shall have received copies
of (i) the Tenant Improvement and Leasing Commission Reserve Agreement
(the “Missing TI & LC Agreement”), (ii) exhibit D to the Existing Deed of
Trust, and (iii) exhibit A to the Mortgage Loan Contribution Agreement
(with the said exhibits D and A being collectively referred to as the
“Missing Exhibits”), all of which are referenced on  Exhibit Q attached
hereto, from either the Seller or the Existing Lender, and upon Buyer’s
receipt and review of the Missing TI & LC Agreement and the Missing
Exhibits, they shall be reasonably acceptable to Buyer, with Buyer
providing Seller written notice of their acceptability or not within
three (3) Business Days following Buyer’s receipt thereof. If the
aforesaid Missing TI & LC Agreement and Missing Exhibits cannot be
located, then the loan assumption documents for the Existing Financing
shall address this fact to the reasonable satisfaction of the Buyer,
which may include substituting new exhibits for the Missing Exhibits and
replacing the Missing TI & LC Agreement with a new agreement, all of
which shall be in form and substance reasonably acceptable to Buyer.



     3.3.7 LLCs Conditions.




(i) The assets of the LLCs at Closing shall consist only of
the LLC Assets. It is expressly understood and agreed that
all cash or liquid assets of the LLCs shall be retained by,
and shall remain the exclusive property of, the Selling
Members. The LLC Assets at Closing shall not include any
cash, securities, certificates of deposit, bank accounts, or
other similar assets, whether or not held by the Existing
Lender.




(ii) The LLC shall have no liabilities or obligations of any
kind or nature at Closing except for the LLC Liabilities. To
the extent that there are liabilities or obligations of the
LLC other than the LLC Liabilities, to the extent that Buyer
has expressly agreed in writing to the same, an adjustment
will be allowed at Closing pursuant to this Agreement;
provided, however, that if such adjustment exceeds Fifty
Thousand Dollars ($50,000.00), such adjustment shall be
approved by Seller in its sole discretion.




(iii) Good and marketable title to the Membership Interests
shall be vested in the Selling Members (in accordance with
the information contained on Exhibit B-1, Exhibit B-2,
 Exhibit B-3, Exhibit B-4, Exhibit B-5, Exhibit B-6, and
 Exhibit B-7, as applicable, attached hereto), free and clear
of all liens, pledges, claims, and encumbrances whatsoever
and




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restrictions on transfer, except for any restrictions on
transfer provided in the LLC Instrument Amendments and/or in
the Existing Financing Documents.




(iv) For each of the LLCs, the applicable Manager shall
provide to Buyer an unaudited updated balance sheet,
certified by the applicable Manager on behalf the applicable
LLC, in the same form as the applicable Initial Balance Sheet
dated no earlier than fifteen (15) days prior to the Closing
Date to be delivered to Buyer on or before the Closing Date
(each, an “Updated Balance Sheet”), which Updated Balance
Sheet shall show, as of such date, that there have been no
material changes from the assets and liabilities shown on the
Initial Balance Sheet for the applicable LLC other than (a)
in connection with expenses incurred by such LLC in the
normal and customary course of business, which LLC operations
shall at all times following the Effective Date of this
Agreement be in compliance with the requirements of this
Agreement, and (b) the amount of cash or liquid assets in the
applicable LLC, which Buyer agrees that such LLC shall be
entitled to distribute to the Selling Members prior to
Closing without adjustment to the Purchase Price.



     3.3.8 Tenant Estoppel Certificates. Estoppel certificates from Tenants
who lease space within the Improvements greater than 5,000 square feet, such
that Buyer receives estoppel certificates from such 5,000 square foot Tenants
totaling seventy percent (70%) of the square feet rented by such Tenants within
the Improvements prior to Closing, with no material adverse changes to the
estoppel certificates delivered to such Tenants and no material defaults by the
Landlord or no material monetary defaults by the Tenant being cited therein.



     3.3.9 Legal Opinions. Kimmel Equity, LLC and RIP Investments LP shall
provide the written opinions of their counsel, which may be conditioned upon a
certificate or certificates from them or their owners regarding factual
matters, and which may contain customary limitations and qualifications, dated
as of the Closing Date and addressed to the Buyer, stating that:



     (i) Kimmel Equity LLC and RIP Investments LP have the power and authority
to sell, assign, and transfer their respective Membership Interests to Buyer in
accordance with the terms and conditions of this Agreement.



     (ii) Kimmel Equity LLC and RIP Investments LP have the power and authority
to execute, acknowledge, seal and deliver this Agreement and to perform the
transactions contemplated by this Agreement to be performed by Kimmel Equity
LLC and RIP Investments LP. All actions have been taken by Kimmel Equity LLC
and RIP Investments LP necessary to deliver this Agreement and to perform the
transactions required to be performed by Kimmel Equity LLC and RIP Investments
LP. This Agreement constitutes the legal, valid and binding obligations of
Kimmel Equity LLC and RIP Investments LP and is fully enforceable against
Kimmel Equity LLC and RIP Investments LP in accordance with its terms, except
to the extent



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that the enforceability hereof may be limited by bankruptcy,
insolvency, reorganization,
moratorium or other laws affecting creditors’ rights generally or by
general principles of equity and subject to other customary qualifications and
limitations on enforceability opinions.




     (iii) Kimmel Equity LLC and RIP Investments LP are duly organized, validly
existing and in good standing under the laws of the State of Delaware. All
members of Kimmel Equity LLC and RIP Investments LP, other than individual
members, are duly organized, validly existing and in good standing under the
laws of the State of Delaware.



     (iv) The execution and delivery of this Agreement by Kimmel Equity LLC and
RIP Investments LP will not result in a breach or violation of any of the
provisions of Kimmel Equity LLC’s and RIP Investments LP’s organizational
documents or any other agreement or instrument to which Kimmel Equity LLC or
RIP Investments LP is a party, other than the Existing Financing Documents,
until the required approvals from the Existing Lender are obtained.



     (v) Based on the said Certificate(s), Kimmel Equity LLC and RIP
Investments LP are not parties to any pending, or to the actual knowledge of
counsel, threatened, litigation or legal proceedings related to the Selling
Members, or the Properties, or this Agreement, and Kimmel Equity, LLC and RIP
Investments LP are not subject to any governmental proceedings, judgments,
causes of action or special assessments pending, or to the actual knowledge of
counsel, threatened, against either of Kimmel Equity, LLC or RIP Investments
LP, the outcome of which could adversely affect the ability of Kimmel Equity,
LLC or RIP Investments LP to convey its respective Membership Interests under
this Agreement.



     3.3.10 Seller’s Closing Documents. Seller’s Closing Documents, to the
extent not attached as exhibits to this Agreement, shall be subject to and in
conformity with the terms and provisions of this Agreement, and otherwise in
form and content reasonably acceptable to Buyer and Seller.


If any one or more of the conditions specified in this Section 3.3. are not
satisfied as of the Closing Date, then Buyer shall have the option, in its sole
discretion, exercised by written notice to the Seller Representative, to either
(i) waive such condition and make full Closing under this Agreement in
accordance with the terms and conditions hereof; or (ii) terminate this
Agreement before Closing on the Closing Date, in which event, the Escrow Agent
shall refund the Deposit to Buyer and the Parties shall be released from all
further liability or obligation under this Agreement, except as otherwise
expressly set forth herein, or (iii) extend Closing for a period of not more
than sixty (60) days to allow Seller to utilize commercially reasonable efforts
to satisfy such failed condition; provided that, if Buyer elects to terminate
this Agreement pursuant to clause (ii) above, and the failed condition(s)
giving rise to such termination right is reasonably capable of being cured or
satisfied within sixty (60) days after the Closing Date set forth herein as
mutually and reasonably determined by the Seller Parties and Buyer, and an
extension of the Closing Date will not adversely impact in any respect any of
Buyer’s financing for the transaction contemplated by this Agreement, as
determined by Buyer in its sole discretion, then the Seller Parties shall have
the right, exercisable by written notice to Buyer, to utilize commercially
reasonable efforts to satisfy such failed condition and, in connection
therewith, to extend the Closing Date to the date that is sixty (60) days after
the Closing Date set forth herein




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(the “Extended Closing Date”), in which
event, if such failed condition(s) is not satisfied on or before the Extended
Closing Date, Buyer shall once again have the rights specified in clauses (i)
and (ii) above. Failure by Seller to satisfy any such failed condition on or
before the Extended
Closing Date shall not constitute a default or breach by Seller under this
Agreement. Buyer’s election under clauses (i) or (ii) of this Section 3.3 shall
be Buyer’s sole rights in the event any conditions to Closing are unable to be
satisfied unless the failure of such condition to be satisfied was caused by a
breach of this Agreement by Seller, in which event the provisions of Section
3.21 of this Agreement shall also apply. If Buyer elects to proceed to Closing
under clause (i) above, then once Closing has occurred, all of the foregoing
conditions, to the extent not satisfied at Closing, shall be deemed to have
been waived by Buyer.




     3.4 Conditions Precedent to the Seller Parties’ Obligation. The Seller
Parties’ obligation to close under this Agreement shall be expressly subject to
satisfaction of each of the following conditions precedent:




3.4.1 Performance of Buyer’s Obligations. Performance by the Buyer in
all material respects its respective obligations under this Agreement to
be performed at or before Closing. Buyer shall have complied with and not
be in material breach of any of the covenants contained in Section 3.2.2
hereof.




3.4.2 Accuracy of Warranties and Representations. Each of the warranties
and representations of Buyer set forth in Section 3.2.2 hereof shall be
true and accurate in all material respects as if made as of the date of
Closing, subject to only changes made pursuant to Section 3.2.3. To the
extent that any of such representations and warranties are expressly
limited to the Buyer’s Actual Knowledge, satisfaction of this condition
precedent shall require the actual truth of the underlying facts and
circumstances which are the subject of these representations and
warranties, without regard to the state of Buyer’s Knowledge about such
facts and circumstances. The foregoing notwithstanding, such failure of
condition shall not be deemed to be or create liability for a breach of
the applicable Buyer’s representations and warranties contained herein or
constitute any other breach hereunder.




3.4.3 Existing Financing Release. Seller shall have received the fully
executed and dated Existing Financing Release from the Existing Lender.




3.4.5 No Adverse Change in Buyer. As of the Closing Date, there shall be
no litigation or administrative agency or other governmental proceeding
pending or threatened, which would materially adversely affect the
ability of Buyer to fully comply in all material respects with all of
Buyer’s duties and obligations contained in this Agreement or in any of
the Buyer’s Closing Documents.



     3.4.6 Buyer’s Closing Documents. Buyer’s Closing Documents, to the extent
not attached as exhibits to this Agreement, shall be subject to and in
conformity with the terms and provisions of this Agreement, and otherwise in
form and content reasonably acceptable to Seller and Buyer.



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If any of the foregoing conditions is not satisfied (or waived by the Seller
Parties in writing), the Seller Parties shall have the right to terminate this
Agreement before Closing on the Closing Date by written notice of such
termination to Buyer and Escrow Agent given at any time prior to the
satisfaction of such condition, in which event, the Escrow Agent shall refund
the Deposit to Buyer and the Parties shall be released from all further
liability or obligations under this
Agreement, except as otherwise expressly set forth herein; but once Closing has
occurred, all of the foregoing conditions, to the extent not satisfied at
Closing, shall be deemed to have been waived by Seller.




     3.5 Indemnities.




3.5.1 Buyer’s Activities on the Real Property. Buyer shall hold
harmless, indemnify and defend the Seller Parties from and against any
and all claims, causes of action, liabilities and losses, and expenses
related thereto (including reasonable attorneys’ fees), which Seller
Parties incur by reason of any damage to the Properties (or any other
property owned by any other person regardless of whether it is located on
the Real Properties or elsewhere) caused by, or any third-person claim
against the Seller Parties arising or asserted to arise out of, any
activity of Buyer, or any of Buyer’s agents, conducted on the Real
Properties prior to Closing. Buyer shall, with reasonable promptness,
repair any damage caused to the Properties (or any other property owned
by any other person regardless of whether it is located on the Real
Properties or elsewhere) by Buyer or its agents as a result of any such
activity. The limitations on Buyer’s liability set forth in Section 3.2.5
above and Section 3.22 below shall not apply to the Buyer’s indemnity
obligations set forth in this Section 3.5.1.




3.5.2 Leases and Service Contracts and General Indemnity. Pursuant to
the applicable Closing Indemnity Agreement, each applicable Manager, TRB,
Inc. and the Patrick Center Sellers, as applicable, shall hold harmless,
indemnify and defend the applicable LLC and the Buyer from and against
any and all claims, causes of action, liabilities and losses, and
expenses related thereto (including reasonable attorneys’ fees and
costs), which the Buyer incurs by reason of (i) any alleged default or
failure to perform an obligation on the part of the landlord under an
applicable Lease or as vendee under an applicable Service Contract based
upon an event or condition occurring (or alleged to have occurred) prior
to the Closing Date; and (ii) any act or omission (where there is a duty
to act) by the applicable LLC or its respective Manager, or TRB, Inc., or
the Patrick Center Sellers, as applicable, occurring (or alleged to have
occurred) prior to the Closing Date. Pursuant to the applicable Closing
Indemnity Agreement, the applicable LLC and Buyer shall hold harmless,
indemnify and defend the applicable Manager, TRB, Inc. and the Patrick
Center Sellers, as applicable, from and against any and all claims,
causes of action, liabilities and losses, and expenses related thereto
(including reasonable attorneys’ fees and costs), which the applicable
Manager, TRB, Inc. and the Patrick Center Sellers, as applicable, incurs
by reason of (x) any alleged default or failure to perform an obligation
on the part of the landlord under an applicable Lease or as vendee under
an applicable Service Contract based upon an event or condition occurring
(or alleged to have occurred) on or after the Closing Date; and (y) any
act or omission (where there is a duty to act) by the applicable LLC or
the Buyer, as



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applicable, occurring (or alleged to have occurred) on or
after the Closing Date.




3.5.3 Survival. Notwithstanding any provisions of this Agreement to the
contrary, the provisions of, and the Buyer’s obligations under, Section
3.5.1 shall survive Closing or termination of this Agreement, as
applicable, for a period of three (3) years. Notwithstanding any
provisions of this Agreement to the contrary the provisions of, and the
Parties’ respective obligations under, Section 2.5.2 and Section 3.5.2
shall survive
Closing for a period of twelve (12) months following the Closing Date,
and any indemnity claim by a Party pursuant to Section 3.5.2 and Section
2.5.2 against the other Party shall be forever barred, and a Party shall
bring no action thereon, unless (i) a Party gives the other Party written
notice of such indemnity claim within twelve (12) months following the
Closing Date, and the said Party files an action on such indemnity claim
against the other Party in a court of appropriate jurisdiction within
fourteen (14) months following the Closing Date; and (ii) the event or
circumstance which gives rise to the indemnity claim is not covered by
such Party’s insurance policies, and if so covered, the indemnifying
Party shall reimburse the indemnified Party for its deductible, not to
exceed $10,000.00 per claim, or $50,000.00 in the aggregate. The
indemnifications contained in this Section 3.5 and Section 2.5.2 shall be
set forth in the applicable Closing Indemnity Agreement and shall run to
the benefit of the indemnified Parties.



     3.6 Damage, Destruction or Condemnation.




3.6.1 Risk of Loss. The risk of loss or damage to each of the Properties
by fire or other casualty prior to Closing is borne by the Seller
Parties. The Seller Representative shall give Buyer prompt notice of any
destruction of any part of the any of the Properties or any portion
thereof or the commencement of any condemnation proceedings against any
of the Properties or any portion thereof between the Effective Date and
the Closing Date.




3.6.2 Minor Casualty. If any of the Improvements are destroyed by fire
or other casualty prior to Closing and the estimated cost of repairs as
reasonably and mutually determined by Buyer and the Seller Representative
is less than or equal to One Million Dollars ($1,000,000.00) (a “Minor
Casualty”), Closing will occur and at Closing:




(a) The Buyer shall receive a credit against the Purchase Price in
an amount equal to the aggregate estimated cost of repair of any
damage to the Properties remaining unrepaired at Closing, and any
unpaid costs of repairs performed prior to Closing for which Buyer
will be responsible, and the future loss of rental income as a
result of the Minor Casualty as reasonably mutually determined by
the Seller Representative and Buyer;




(b) Buyer shall accept the Properties and the Membership Interests
with the Properties affected by such Minor Casualty in its damaged
state;




(c) The applicable Manager and Selling Members shall have no
obligation to repair or restore any damaged or destroyed portions
of the Properties affected by such Minor Casualty;



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(d) The applicable Manager and Selling Members shall maintain (and
at Closing the applicable LLC’s Assets will not include) all rights
to the applicable LLC’s interest in and to all proceeds of property
insurance awards relating to such Minor Casualty and the full right
to settle insurance claims relating thereto (and if such proceeds
are delivered to the applicable LLC after Closing, Buyer shall
promptly deliver the same to the Seller Representative, on behalf
of the applicable Manager and Selling Members, which obligation
shall survive Closing hereunder); and




(e) The Seller Parties shall be permitted reasonable access the
Property affected by the Minor Casualty after Closing in connection
with the completion by the applicable Manager, TRB, Inc. or the
Patrick Center Sellers, as applicable, of the claim process with
the applicable insurance company, having insurance coverage for
such Minor Casualty.




3.6.3 Major Casualty. If any of the Improvements are destroyed by fire
or other casualty and the estimated cost of repairs as reasonably
mutually determined by Buyer and the Seller Representative is more than
One Million Dollars ($1,000,000.00) (a “Major Casualty”), then Buyer or
Seller may, as its sole and exclusive remedy, waiving all other remedies,
terminate this Agreement by giving notice to the other Party within ten
(10) days after the Major Casualty occurs, in which event, the Escrow
Agent shall return the Deposit to Buyer, and the parties have no further
rights, liabilities, or obligations under this Agreement (other than
those that expressly survive termination). If neither Buyer nor Seller,
within ten (10) days after the Major Casualty, terminates this Agreement
as provided above, then both Seller and Buyer shall be deemed to have
elected to terminate this Agreement pursuant to clause (i) above. If
both Seller and Buyer elect to proceed to Closing, which election shall
be made within ten (10) days after the Major Casualty occurs, then
Closing will occur without reduction in the Purchase Price and:




(a) At Closing, the applicable Seller Parties shall assign to Buyer
all of their respective interests in all proceeds of property
insurance awards relating to such Major Casualty (and the
applicable Seller Parties shall execute all reasonably required
assignment or other instruments to confirm the foregoing), less any
reasonable amounts actually paid by the applicable Seller Parties
to repair, restore, or clean up the Properties affected by such
Major Casualty (and, the applicable LLC’s Assets will expressly
include all interests of such LLC and/or the applicable Seller
Parties in and to all such proceeds of property insurance awards);
and




(b) At Closing, the applicable Seller Parties shall assign to Buyer
all of their respective interests in all proceeds of rental loss
and business interruption insurance applicable to the period after
the Closing Date relating to such Major Casualty (and the
applicable Seller Parties shall execute all reasonably required
assignment or other instruments to confirm the foregoing), and the
applicable



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LLC’s Assets will expressly include all interests of
such LLC and/or the applicable Seller Parties in and to all such
proceeds of rental loss and business interruption insurance); and




(c) Buyer will pay and reimburse the applicable Seller the amount
of any deductible under the applicable LLC’s or Seller’s property
insurance policy and rental loss and business interruption
insurance, if any, paid by the applicable LLC or Seller before
Closing; and




(d) Buyer will accept title to the Membership Interests and the
Properties with the applicable Property or Properties affected by
such Major Casualty in its
damaged state; and




(e) The applicable Seller shall have no obligation to repair or
restore any damaged or destroyed portions of the Property affected
by such Major Casualty.




3.6.4 Condemnation. As a condition precedent to the obligations of the
Buyer and Seller to proceed to Closing hereunder, neither the whole nor
any “Significant Portion” (as hereinafter defined) of any of the
Properties shall have been acquired, or shall be about to be acquired, by
authority of any governmental agency or other authority in the exercise
of its power of eminent domain or by private purchase in lieu thereof (a
“Taking”). If such a Taking has occurred or if any of the Seller Parties
shall have received written notice of any such contemplated Taking, Buyer
or Seller may, at its sole option (i) terminate this Agreement and Buyer
shall receive a full refund of the Deposit; or (ii) continue this
Agreement, and Buyer shall pay the full Purchase Price without reduction
and accept an assignment of the Seller Parties’ rights in any
condemnation award (whether received prior to or after Closing), and the
Parties shall proceed to Closing; provided that, (A) none of the Seller
Parties shall consent to any Taking or agree to any condemnation award
without the prior written consent of Buyer (which consent shall not be
unreasonably withheld or delayed); (B) prior to Closing, the Seller
Parties shall provide Buyer with a reasonable opportunity to participate
with the Seller Parties in any negotiations relating to a Taking
affecting any portion of any of the Properties or any condemnation award
to be made in connection therewith; and (C) the Seller Parties shall
reasonably cooperate with Buyer after Closing in prosecuting any claim
for a condemnation award arising prior to Closing. As used herein, a
“Significant Portion” of any of the Properties shall be deemed to mean
such portion of any Property as, when taken, would leave remaining a
balance of such Property that is commercially unreasonable for Buyer to
use or that would not permit Buyer to realize a reasonable return from
the Property (because of the area so taken or the location of the part so
taken in relation to the part not so taken), as determined by Buyer in
its reasonable discretion.



     3.7 Assignment by Buyer. Buyer shall have the right to assign this
Agreement to such other entity in which Buyer has an ownership interest and
management control by delivering to the Seller Representative, on behalf of the
Seller Parties, a written assignment and assumption agreement (“Contract
Assignment”) under which the assignee assumes all of Buyer’s obligations under
this Agreement. The Seller Parties shall have the right to approve the form
and



105









 




substance of the Contract Assignment, which approval shall not be
unreasonably withheld, conditioned or delayed. Except as provided in the
foregoing two sentences, Buyer shall have no right to assign or transfer its
rights under this Agreement except with the prior written consent of the Seller
Parties, which the Seller Parties may withhold in their sole and absolute
discretion. The Seller Parties shall have no obligation to respect any
assignment in violation of this Section and such an assignment shall constitute
a material breach of this Agreement on the part of Buyer. No assignment shall
relieve or excuse Buyer of its obligations and liability hereunder. The Seller
Parties’ consent to any one assignment shall not be deemed consent to any other
assignment or a waiver of the requirement for its consent to any other
assignment.




     3.8 Termination. Intentionally Deleted.



     3.9 Brokerage Commission. The Seller Parties and Buyer acknowledge that
the Broker has acted as the broker in connection with the transaction
contemplated by this Agreement. The Seller Parties agree to pay the Broker as
the total commission for services rendered, the commission specified in
separate listing agreement between the Seller Parties and the Broker. In the
event that Closing shall fail to occur under this Agreement for any reason
whatsoever, none of Buyer or any of the Seller Parties shall have any liability
of obligation to the Broker for any commission or other payment in connection
with this Agreement, including payment to the Broker by Seller of any portion
of the Deposit retained by Seller. Except as specified in this Section 3.9,
the Seller Parties and Buyer represent and warrant to each other that no other
agent, broker, or finder has acted for the Seller Parties or Buyer, as
applicable, in connection with this Agreement. Each of the Seller Parties and
Buyer shall indemnify, defend and save the other party hereto harmless from and
against any claims for brokerage, commission or finders fees resulting from a
breach of the foregoing representations and warranties of the Seller Parties
and Buyer, which obligations of the Seller Parties and Buyer hereunder shall be
joint and several. Nothing contained herein shall be deemed to make Broker a
third-party beneficiary of this Agreement or to create any obligation on the
part of any Party to close the sale and purchase of the Membership Interests
and the Westpark and Patrick Center Properties for the Broker’s benefit.



     3.10 Post-Closing Prorations and Adjustments; Possession. The Parties
shall make the following additional prorations and settlements:




3.10.1 Delinquent Rents. Any and all rents which are past due at Closing
shall not be adjusted; Buyer shall have no obligation to collect such
past-due rents but for a period of twelve (12) months after Closing,
shall reimburse the applicable Seller Parties for such past-due rents
when, as and if collected, net of reasonable costs of collection;
provided that, there shall be no costs of collection for any past due
rents collected within sixty (60) days after Closing), it being
understood that Buyer shall not be deemed to have collected such
arrearage attributable to the period prior to Closing until such tenant
is current in the payment of rentals accruing on or after Closing and
Buyer shall have recovered all reasonable costs of collection. The
applicable Seller Party shall retain the right after Closing to sue for
and collect any rents or other amount due under a Lease for a period
ending before Closing (but in no event shall a Seller Party have the
right to sue any such



106









 






Tenant for eviction), and Buyer shall reasonably
cooperate with the applicable Seller Party, at no cost to Buyer, in its
efforts to collect any such amount. During the period of the first sixty
(60) calendar days after the Closing Date, the Seller Parties shall not
take any action to sue for or collect any rents or other amounts due and
owing under a Lease for a period prior to the Closing Date, but after the
expiration of said sixty (60) day period the applicable Seller Party may
at any time or times take such actions as are permitted by the terms of
this Section 3.10.1. The applicable Seller Party shall advise Buyer in
writing of the filing any law suit for the collection of rents or other
amount due under a Lease, as described in the immediately preceding
sentence, and shall keep Buyer reasonably informed of the status of the
proceedings in such a suit during the course thereof. After the twelve
(12) month period following the Closing Date, Buyer shall have no further
obligations to remit rents owed to Seller.




3.10.2 Real Estate Taxes and Assessments; Utility Charges. If Closing
prorations of real estate taxes and assessments are based on other than
the current year’s tax bill, within
thirty (30) days after such bill is issued to Buyer, Buyer shall
recompute such proration. If such recomputation results in a larger
proration credit to the Seller Parties, Buyer shall pay to the Seller
Parties the additional amount due the Seller Parties within such thirty
(30) days. If such recomputation results in a larger proration credit to
Buyer, the Seller Parties shall pay Buyer the additional amount due Buyer
within thirty (30) days after receiving Buyer’s written recomputation of
such proration, accompanied by a copy of such tax bill. Any utility
rebate received by Buyer after Closing for the period prior to the
Closing Date which has not already been paid or reimbursed by Buyer shall
be promptly paid over to the Seller Parties which obligation shall
survive Closing hereunder.




3.10.3 Remittal of Post-Closing Receipts to Buyer. The Seller Parties
shall immediately remit to Buyer each check or other payment which any of
the Seller Parties receives after Closing on account of rent or other
amounts due under any Lease for any period ending after Closing. The
Buyer shall immediately remit to the Seller Representative, on behalf of
the Seller Parties, each check or other payment which the Buyer receives
after Closing on account of rent or other amounts due under any Lease for
any period prior to Closing.




3.10.4 Determinations of Post-Closing Prorations and Adjustments. Except
where expressly provided otherwise, Buyer shall make the required
determinations and computations of all post-Closing prorations and other
adjustments under this Section 3.10 (the “Post-Closing Prorations”) and
shall provide the Seller Parties with a reasonably detailed written
summary of each Post-Closing Proration, concurrently with or prior to
making any payment to or requesting any payment from Seller under this
Section 3.10 with respect thereto. The Seller Parties shall have the
right after reasonable prior notice to Buyer to audit all of Buyer’s
books and records pertaining to the Post-Closing Prorations. For these
purposes, Buyer shall allow the Seller Parties’ designated
representatives access to such books and records, at the Properties or
Buyer’s principal place of business, as applicable, at any time during
normal business hours and after reasonable prior notice, and the Seller
Parties shall have the right to make copies of such books and records
(and the right to use Buyer’s photocopying equipment to make such



107









 






copies,
paying Buyer its actual out-of-pocket cost for such copying).




3.10.5 Possession. The Seller Parties agree to give possession and
occupancy of the Properties in their entirety to Buyer at the time of
Closing, free and clear of all leases, tenancies, and occupancies except
for the Leases and as otherwise herein permitted. In the event that the
Seller Parties shall fail so to do, the Seller Parties shall be and
become tenants by sufferance of Buyer, and the Seller Parties hereby
waive all notice to quit as provided by the applicable laws of the
governing jurisdictions.



     3.11 Section 1031 Exchange. Upon request of TRB, Inc. or any or all of
the Patrick Center Sellers (herein the “Exchangors”) to be made not later than
five (5) days prior to Closing, Buyer agrees to reasonably cooperate with the
Exchangors (at their sole cost and expense) in structuring the purchase and
sale of the Westpark Property and/or the Patrick Center Property as
contemplated by this Agreement as part of a like-kind exchange pursuant to
Section 1031 of the Code. Buyer agrees to take such steps and execute such
documents (at Exchangors’ sole cost and expense) as may be reasonably required
by Exchangors in order to substitute a qualified intermediary (within the
meaning of the Code) to act in the place of the Exchangors. Buyer shall
not be required to incur any expense, to assume any liability, to provide any
deposit or other security or to permit Exchangors to use the Deposit in
connection with such like-kind exchange, or to be in the chain of title of any
exchange property. The like-kind exchange shall not reduce, diminish or
adversely affect Exchangors’ rights or remedies under this Agreement in any
respect, nor shall the consummation of the exchange cause any delay in the
Closing. Buyer will have no responsibility or obligation for any tax incidents
or consequences in connection with the exchange.



     3.12 Notices. Except in the case (if any) where this Agreement expressly
provides for an alternate form of communication, any notice, consent, demand or
other communication to be delivered to a Party hereunder shall be deemed
delivered and received when made in writing and transmitted to the applicable
Party either by receipted courier service, recognized overnight courier
service, or by the United States Postal Service, first class registered or
certified mail, postage prepaid, return receipt requested, or by electronic
facsimile transmission (with a confirmatory copy currently transmitted by one
of the other permitted means of delivery as described herein) (“FAX”), at the
address or addresses indicated for such Party below (and/or to such other
address as such Party may from time to time by written notice given in
conformity with this Section 3.12 designate to the other):



	 	 	 
	If to any of
	 	 
	the Seller Parties:

	 	Butera Properties, LLC, et al
	

	 	c/o Matan Property Management, Inc.
	

	 	4600 Wedgewood Boulevard
	

	 	Suite A
	

	 	Frederick, Maryland 21703
	

	 	Attention: Mark C. Matan
	

	 	Fax No.: 301-694-9214
	

	 	Phone: 301-694-9200
	

	 	Email: MarkMatan@aol.com (for informational purposes only)







108









 






	 	 	 
	with a copy to:

	 	Philip D. Topper, Jr., LLC
	

	 	110 North Court Street
	

	 	Frederick, Maryland 21701
	

	 	Attention: Philip D. Topper, Jr., Esq.
	

	 	Fax No.: 301-696-0858
	

	 	Phone: 301-696-9780
	

	 	Email: PhilTopper@aol.com (for informational purposes only)
	 
	 	 
	If to Buyer:

	 	First Potomac Realty Trust
	

	 	7200 Wisconsin Avenue, Suite 310
	

	 	Bethesda, Maryland 20814
	

	 	Attention: Nicholas R. Smith
	

	 	Fax No.: 301-986-5554
	

	 	Phone: 301-986-9200
	

	 	Email: nsmith@first-potomac.com (for informational
purposes only)
	 
	 	 
	with a copy to:

	 	Linowes and Blocher, LLP
	

	 	7200 Wisconsin Avenue, Suite 800
	

	 	Bethesda, MD 20814
	

	 	Attention: Richard M. Zeidman, Esq.
	

	 	Fax No.: 301-654-2801
	

	 	Phone: 301-961-5136
	

	 	Email: rzeidman@linowes-law.com (for informational
purposes only)






Notices given in conformity with this Section 3.12 shall be deemed delivered
and received: (A) on the date of delivery, if delivery is made by commercial
courier or recognized overnight courier or by FAX transmission and is completed
before 5:00 pm recipient’s local time on a Business Day, as evidenced by
courier receipt or by the transmission log sheet generated by the sending FAX
machine; (B) if tendered for delivery by commercial courier or recognized
overnight courier between 9:00 am and 5:00 pm (recipient’s local time) on a
Business Day and refused, then on the date of such attempted delivery and
refusal, as evidenced by courier receipt; and (C) three (3) Business Days after
being deposited with the United States Postal Service by first class registered
or certified mail as required by this Section 3.12.




     3.13 Binding Effect. Except as otherwise expressly provided herein, this
Agreement shall bind and inure to the benefit of the Parties and their
respective heirs, successors and permitted assigns. Other than the Parties
hereto, nothing contained in this Agreement shall be deemed to make any person
or entity a third-party beneficiary of this Agreement.



     3.14 Entire Agreement; Modification; Severability. This Agreement
constitutes the entire agreement between the Parties pertaining to the subject
matter hereof and supersedes all prior agreements, understandings and
representations of the Parties with respect to the subject matter hereof
(including, without limitation, any letter of intent or other such written
proposal).



109









 




This Agreement may not be modified, amended, supplemented or
otherwise changed, except by a writing executed by both Parties. If any term,
covenant, condition, provision or agreement herein contained is held to be
invalid, void or otherwise unenforceable by any court of competent
jurisdiction, the fact that such term, covenant, condition, provision or
agreement is invalid, void or otherwise unenforceable shall in no way affect
the validity or enforceability of any other term, covenant, condition,
provision or agreement herein contained.




     3.15 Captions. Article and section headings used herein are for
convenience of reference only and shall not affect the construction of any
provision of this Agreement.



     3.16 Interpretation. Each Party acknowledges that it and its legal
counsel have participated substantially in the drafting of this Agreement and
agree that in the interpretation and construction of this Agreement, no
ambiguity, real or apparent, in any provision hereof shall be construed against
either Party by reason of the role of such Party or its counsel in the drafting
of such provision.



     3.17 Mutual Cooperation; Further Assurances. The Parties shall cooperate
with each other as reasonably necessary to effect the provisions of this
Agreement, shall use reasonable and good faith efforts to satisfy conditions to
Closing and, at and after Closing, shall each execute and deliver such
additional instruments or other documents as the other may reasonably request
to accomplish the purposes and intent of this Agreement; provided, however,
that nothing in this Section shall be deemed to enlarge the obligations of the
Parties hereunder or to require either Party to incur any material expense or
liability not otherwise required of it hereunder.



     3.18 Exhibits. Each of the exhibits attached hereto is hereby
incorporated herein to the same extent as if set forth herein in full.



     3.19 Counterparts; Facsimile Signatures. This Agreement, and any
amendment hereto, may be executed in any number of counterparts and by each
Party on separate counterparts, each of which when so executed and delivered
shall be deemed an original and all of which taken together shall constitute
but one and the same instrument. Any party may execute this Agreement by
delivery to the other party of a facsimile copy hereof evidencing such party’s
signature. In any such case the party executing by facsimile shall promptly
thereafter provide a signed original counterpart hereof to the other parties.
This Agreement shall not be binding until delivery of an original counterpart
but upon such delivery the Effective Date shall become the date of the delivery
of the facsimile.



     3.20 Governing Law. This Agreement shall be deemed to be an agreement
made under the laws of the State of Maryland and for all purposes shall be
governed by and construed in accordance with such laws.



     3.21 Remedies for Breach by Seller Parties. In the event that any of the
Seller Parties shall fail to perform their respective obligations hereunder,
including, but not limited to, to make full Closing in accordance with the
terms hereof, Buyer may (i) enforce specific performance by the Seller Parties
of their respective obligations hereunder, including, but not



110









 




limited to, to
convey the Membership Interests and the Westpark and Patrick Center Properties
to Buyer in accordance with this Agreement, and, in connection therewith,
enforce other non-monetary equitable remedies, including injunctive relief,
with the Deposit remaining in Escrow pending the resolution of such specific
performance action; or (ii) terminate this Agreement by giving notice to the
Seller Parties, in which event the Escrow Agent shall return the Deposit to
Buyer, and Seller shall reimburse Buyer for its actual third party due
diligence costs incurred in connection with this Agreement, but not to exceed
$100,000.00, and except as set forth in this Section 3.21, the parties shall
have no further rights, liabilities, or obligations under this Agreement (other
than those that expressly survive termination) of this Agreement; or (iii)
pursue the applicable Seller Parties for actual damages suffered or incurred by
Buyer as a result of such breach by the Seller Parties (expressly excluding
indirect, consequential and punitive damages); provided that, (1) Buyer shall
make an election of the remedies available to Buyer pursuant to this Section
3.21 within sixty (60) days after the date that Buyer obtains Actual Knowledge
of the breach of the obligations by the Seller Parties giving rise to such
election of remedies; (2) Buyer’s actual damage claim pursuant to this Section
3.21 shall in no event exceed (x) the total distributions the applicable
Selling Member would be entitled to receive from the applicable LLC if its
Property or Properties were sold for the Purchase Price allocated to such
Property or Properties as set forth on Exhibit P attached hereto and the net
proceeds of such sale were distributed to the Selling Member in conformity with
the terms of the applicable LLC Instruments, or (y) the total distributions
TRB, Inc. or the Patrick Center Sellers would be entitled to receive upon the
sale of the Westpark Property or the Patrick Center Property, respectively, if
either such Property were sold for the Purchase Price allocated to such
Property as set forth on Exhibit P attached hereto; and (3) Buyer may only
pursue the remedy of actual
damages pursuant to this Section 3.21 in the event that (A) in violation of
this Agreement, an LLC sells, pledges or encumbers any of its Properties, TRB,
Inc. or the Patrick Center Sellers sells, pledges or encumbers the Westpark
Property or the Patrick Center Property, as applicable, a Selling Member sells,
pledges or encumbers its Membership Interests, and the remedy of specific
performance is not available to Buyer, or (B) any of the Seller Parties has
committed fraud. The provisions of this 3.21 shall be Buyer’s sole and
exclusive remedies for any breach of the obligations by the Seller Parties of
the terms of this Agreement, and Buyer hereby waives all other remedies.
Notwithstanding any provision to the contrary set forth herein, but subject to
the conditions and limitations set forth in Section 3.2.3.1 and Section 3.2.4,
nothing set forth herein shall limit or impair any remedies that may be
available to Buyer for or in connection with a breach by any of the Seller
Parties of their respective representations and warranties set forth above in
Section 3.2 or in connection with any post-closing indemnities or other
post-closing obligations of the Seller Parties that are expressly set forth
herein or in any of the Seller’s Closing Documents.




     3.22 LIQUIDATED DAMAGES AND LIMITATION ON REMEDIES FOR BREACH BY BUYER.
IF THE BUYER IN BREACH OF THIS AGREEMENT FAILS TO CLOSE OR TO PERFORM ANY OTHER
OBLIGATION REQUIRED OF IT PURSUANT TO THE TERMS OF THIS AGREEMENT, EXCEPT AS
OTHERWISE EXPRESSLY SET FORTH HEREIN, THE SELLER PARTIES SHALL, AS THEIR SOLE
AND EXCLUSIVE REMEDY ON ACCOUNT OF SUCH FAILURE AND IN CONSIDERATION OF THEIR
WITHDRAWAL OF THE PROPERTIES FROM THE MARKET DURING THE TERM OF THIS AGREEMENT,
BE ENTITLED TO TERMINATE THIS AGREEMENT AND TO



111









 




RECEIVE AND RETAIN, AS
LIQUIDATED DAMAGES (AND NOT AS A PENALTY), THE ENTIRE DEPOSIT; AND THE SELLER
PARTIES SPECIFICALLY WAIVE ANY RIGHT SPECIFICALLY TO ENFORCE THE OBLIGATIONS OF
THE BUYER HEREUNDER TO PURCHASE THE MEMBERSHIP INTERESTS AND THE WESTPARK AND
PATRICK CENTER PROPERTIES OR FOR MONETARY DAMAGES. THE PARTIES ACKNOWLEDGE AND
AGREE THAT:





3.22.1 THE WRONGFUL FAILURE BY THE BUYER TO CLOSE OR TO PERFORM ANY OTHER
OBLIGATION REQUIRED OF IT PURSUANT TO THE TERMS OF THIS AGREEMENT WILL
CAUSE THE SELLER PARTIES TO INCUR LOSSES AND OTHER DAMAGES IN AN AMOUNT
THAT WOULD BE EXTREMELY DIFFICULT TO ASCERTAIN.




3.22.2 THE DEPOSIT BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES WHICH
THE PARTIES ESTIMATE THE SELLER PARTIES WILL SUFFER BY REASON OF THE
BUYER’S WRONGFUL FAILURE TO CLOSE AND IS NOT AN UNREASONABLE AMOUNT OF
LIQUIDATED DAMAGES UNDER THE CIRCUMSTANCES EXISTING AT THE TIME THIS
AGREEMENT IS MADE.




3.22.3 SUCH LIQUIDATED DAMAGES ARE ALSO REASONABLE CONSIDERATION FOR THE
SELLER PARTIES’ AGREEMENT TO LIMIT THEIR REMEDIES AGAINST THE BUYER FOR
SUCH A FAILURE TO CLOSE OR TO PERFORM ANY OTHER OBLIGATION REQUIRED OF IT
PURSUANT TO THE TERMS OF THIS AGREEMENT.




3.22.4 THE BUYER HAS FULLY CONSIDERED THE PROVISIONS OF THIS SECTION 3.22
AND HAS CONSULTED WITH ITS LEGAL COUNSEL WITH RESPECT THERETO.




3.22.5 THE FOREGOING SECTIONS SHALL NOT, HOWEVER, (i) APPLY IN THE EVENT
BUYER, OR ANYONE OF THEM, HAS COMMITTED FRAUD, OR (ii) LIMIT THE SELLER
PARTIES’ RIGHTS AND REMEDIES TO ENFORCE OBLIGATIONS OF BUYER UNDER
SECTIONS 3.1.2, 3.5.1, 3.9 AND/OR 3.25, OR OF THE BUYER AS MAY BE SET
FORTH ELSEWHERE IN THIS AGREEMENT OR IN THE BUYER’S CLOSING DOCUMENTS,
PROVIDED THAT IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE BUYER TO
THE SELLER PARTIES FOR ALL SUCH BREACHES EXCEED THE ACTUAL DAMAGES
INCURRED BY THE SELLER PARTIES FOR OR IN CONNECTION WITH SUCH BREACH BY
THE BUYER.


Any attendance or appearance at Closing by either party shall not nullify or
void this provision for payment of liquidated damages as Seller’s sole remedy.




     3.23 Recording. Neither this Agreement nor any notice or memorandum
hereof shall be recorded in any public record. A violation of this prohibition
shall constitute a material breach of this Agreement.




112










 





     3.24 TIME OF THE ESSENCE. TIME IS OF THE ESSENCE OF THIS AGREEMENT, AND
OF EACH COVENANT, AGREEMENT AND CONDITION REPRESENTED HEREOF THAT PROVIDES FOR
NOTICE TO BE GIVEN OR ACTION TAKEN ON A SPECIFIC DATE OR WITHIN A SPECIFIED
PERIOD OF TIME.



     3.25 Confidentiality. From and after the Effective Date, the Parties and
each of their respective representatives shall hold in strictest confidence the
terms of this transaction, the contents of all items delivered to Buyer
pursuant to Section 3.1.1, and all data and information obtained with respect
to the Properties, the Seller Parties or the Buyer or their respective
businesses, whether obtained before or after the Effective Date, and shall not
disclose the same to others; provided, however, that it is understood and
agreed that each of the Parties may disclose such data and information to
employees, consultants, accountants, attorneys, existing and potential,
members, partners, investors or lenders of the Parties and as otherwise
required to comply with applicable law or to enforce the terms and provisions
of this Agreement. In the event of a breach or threatened breach by any Party
or its respective agents or representatives of this Section 3.25, the
non-defaulting party hereunder shall be entitled to an injunction restraining
the defaulting party hereunder from disclosing, in whole or in part, such
confidential information. Nothing herein shall be construed as prohibiting the
Parties from pursuing any other available remedy at law or in equity for such
breach or threatened breach. Prior to Closing, Buyer and the Seller
Representative shall, at their option, confer and agree on a press release to
be issued jointly by Buyer and the Seller Parties disclosing the transaction
and the appropriate time for making such release. Neither Buyer nor the Seller
Parties shall issue any press releases with respect to the transaction
contemplated in this Agreement without the prior written approval of the other
Party. The provisions of this Section 3.25 shall survive Closing or the
earlier termination of this Agreement for a period of one (1) year. The
obligation of confidentiality by the Parties and their respective
representatives as set forth in this Section 3.25 shall not apply to any data
and information with respect to the Properties or the LLCs which is a matter of
public record or otherwise in the public domain.



     3.26.1 Terrorism/Patriot Act. Neither Buyer (nor any of Buyer’s
affiliates) is subject to sanctions of the United States government or in
violation of any federal, state, municipal or local laws, statutes, codes,
ordinances, orders, decrees, rules or regulations relating to terrorism or
money laundering, including, without limitation, Executive Order No. 13224 on
Terrorist Financing, effective September 24, 2001 (the “Executive Order”) and
the Uniting and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56, the
“Patriot Act”). Neither Buyer nor any Buyer affiliate is a “Prohibited
Person,” which term is defined as follows:




	(i)	 	a person or entity that is listed in the Annex to, or is
otherwise subject to the provisions of, the Executive Order;
	 
	(ii)	 	a person or entity owned or controlled by, or acting for or
on behalf of, any person or entity that is listed in the Annex to,
or is otherwise subject to the provisions of, the Executive Order;




113









 






	(iii)	 	a person or entity with whom Seller is prohibited from
dealing or otherwise engaging in any transaction by any terrorism or
anti-money laundering Law, including the Executive Order and the Patriot Act;
	 
	(iv)	 	a person or entity who commits, threatens or conspires to
commit or supports “terrorism” as defined in the Executive Order; or
	 
	(v)	 	a person or entity that is named as a “specially designated
national and blocked person” on the most current list published by
the U.S. Treasury Department Office of Foreign Asset Control at its
official website, http://www.treas.gov/ofac/tllsdn.pdf or any
replacement website or other replacement official publication of
such list.





     3.26.2 Neither Buyer nor any affiliate of Buyer is or will (i) conduct
any business or engage in making or receiving any contribution of funds, goods
or services to or for the benefit of any Prohibited Person, (ii) deal in, or
otherwise engage in, any transaction relating to any property or interest in
property blocked pursuant to the Executive Order, or (iii) engage in or
conspire to engage in any transaction that evades or avoids, or has the purpose
of evading or avoiding, or attempts to violate, any of the prohibitions set
forth in the Executive Order or the Patriot Act.



     3.26.3 Buyer shall deliver to Seller any certification or other evidence
reasonably requested from time to time by Seller confirming Buyer’s compliance
with the provisions this Section 3.26.



     3.26.4 The Buyer’s representations and warranties set forth in this
Section 3.26 shall survive the Closing or termination of this Agreement



     3.27 Montgomery County, Maryland Disclosures. The following
disclosures are made pursuant to applicable law in Montgomery County, Maryland,
with respect to those Properties which are located therein:



     3.27.1 By initialing this Agreement in the space provided below, Buyer
acknowledges that:




	(i)	 	Buyer has been given an opportunity to review the applicable
county master plan and municipal land use plan and any adopted
amendment(s) to each and approved official maps showing planned land
uses, roads and highways, parks and other public facilities

affecting the property contained in the plan;
	 
	(ii)	 	Seller has informed Buyer that amendments affecting the plan
may be pending before the planning board or the county council or a
municipal planning body;
	 
	(iii)	 	Buyer has reviewed each plan and adopted amendment, or Buyer
has waived the right to review each plan and adopted amendment; and
	 
	(iv)	 	Buyer understands that, to stay informed of future changes in
county and municipal land use plans, it should consult the planning
board and appropriate municipal




114









 






	 	 	planning body.




Buyer also acknowledges that, in accordance with applicable law, it has been
advised of the relative location of any airport or heliport that exists within
a five-mile radius of such Properties. Buyer acknowledges that it is aware
that the applicable plan or general plan for Montgomery County is available at
the Maryland National Capital Park and Planning Commission and that at no time
did Seller explain to Buyer the intent or meaning of such a plan, nor did Buyer
rely on any representations made by or on behalf of Seller or any of Seller’s
agents or affiliates pertaining to the applicable master plan or general plan.




     3.27.2 Notice and Disclosure of Availability of Sewage Disposal System
in Designated Areas.




	(i)	 	Buyer is hereby given notice, pursuant to the Montgomery
County Code, of the obligation of Seller, or Seller’s duly
authorized agent, to disclose to Buyer any information known to
Seller as to (i) whether any of such Properties is connected to, or
has been approved for connection to, a public water and sewer
system, and if not, the source, if any, for potable water for any of
such Properties, whether an individual sewage disposal system has
been constructed on any of such Properties, or approved for
construction; (ii) the water and sewer service area category or
categories that currently applies to any of such Properties and a
brief explanation of how each category affects the availability of
water and sewer service; (iii) any recommendations in the water and
sewer comprehensive plan amendments or service area category changes
that would apply to any of such Properties.
	 
	(ii)	 	Buyer hereby acknowledges that Seller has informed Buyer of
any of the foregoing information of which Seller has knowledge.
Buyer understands that, to stay informed of future changes in
Montgomery County and municipal water and sewer plans, Buyer should
consult the County Planning Board, the Washington Suburban Sanitary
Commission, the County Department of Environmental Protection, or
any appropriate municipal planning or water and sewer body.
	 
	(iii)	 	If an individual sewage disposal system has been or is to be
installed upon any of such Properties, and if the applicable
Property is located in a subdivision, Buyer acknowledges that it has
received a copy of the subdivision record plat, it has reviewed said
record plat, including any restrictions on the location of initial
and reserve wells, individual sewer disposal systems, and the
buildings to be served by the individual sewage disposal system.





[Signatures on Following Page]




115









 








     IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
and delivered by their respective representatives, thereunto duly authorized,
as their free act and deed for the uses and purposes herein contained as of the
date first above written.



	 	 	 
	WITNESS:

	 	SELLER PARTIES:
	 
	 	 
	

	 	BUTERA PROPERTIES, LLC,
	

	 	By: Butera Properties, Inc., Manager







	 	 	 	 	 
	

	 	By:
	 	   /s/ T. Richard Butera
	


	 	 	 	

	

	 	 	 	T. Richard Butera
	

	 	 	 	President







	 	 	 
	 

	 	BUTERA PROPERTIES II, LLC,
	

	 	By: Butera Properties II, Inc., Manager







	 	 	 	 	 
	

	 	By:
	 	   /s/ T. Richard Butera
	


	 	 	 	

	

	 	 	 	T. Richard Butera
	

	 	 	 	President







	 	 	 
	 

	 	BUTERA GIRARD BUSINESS CENTER, LLC,
	

	 	By: Butera Girard Business Center, Inc., Manager







	 	 	 	 	 
	

	 	By:
	 	/s/ T. Richard Butera
	


	 	 	 	

	

	 	 	 	T. Richard Butera
	

	 	 	 	President







	 	 	 
	 

	 	BUTERA GATEWAY CENTER, LLC,
	

	 	By: Butera Gateway Center, Inc., Manager







	 	 	 	 	 
	

	 	By:
	 	   /s/ T. Richard Butera
	


	 	 	 	

	

	 	 	 	T. Richard Butera
	

	 	 	 	President







	 	 	 
	 

	 	BUTERA GIRARD PLACE, LLC,
	

	 	By: Butera Girard Place, Inc., Manager







	 	 	 	 	 
	

	 	By:
	 	/s/ T. Richard Butera
	


	 	 	 	

	

	 	 	 	T. Richard Butera
	

	 	 	 	President







	 	 	 
	 

	 	BUTERA GOLDENROD LANE, LLC,
	

	 	By: Butera Goldenrod Lane, Inc., Manager







	 	 	 	 	 
	

	 	By:
	 	/s/ T. Richard Butera
	


	 	 	 	

	

	 	 	 	T. Richard Butera
	

	 	 	 	President








 









 








	 	 	 
	 

	 	TRB, INC.







	 	 	 	 	 
	

	 	By:
	 	/s/ T. Richard Butera
	


	 	 	 	

	

	 	 	 	T. Richard Butera
	

	 	 	 	President







	 	 	 
	 

	 	WOODSTONE ASSOCIATES,
	

	 	By: Butera Equity, LLC, Partner







	 	 	 	 	 
	

	 	By:
	 	/s/ T. Richard Butera
	


	 	 	 	

	

	 	 	 	T. Richard Butera
	

	 	 	 	Manager







	 	 	 
	 

	 	THIRTY PAT, LLC







	 	 	 	 	 
	

	 	By:
	 	/s/ Mark C. Matan
	


	 	 	 	

	

	 	 	 	Mark C. Matan
	

	 	 	 	Manager







	 	 	 
	 

	 	BUTERA EQUITY, LLC







	 	 	 	 	 
	

	 	By:
	 	/s/ T. Richard Butera
	


	 	 	 	

	

	 	 	 	T. Richard Butera
	

	 	 	 	Manager







	 	 	 
	 

	 	KIMMEL EQUITY, LLC,
	

	 	By: RIP Investments LP, Manager
	

	 	     By: Village Hook, LLC, General Partner







	 	 	 	 	 
	

	 	By:
	 	/s/ Matthew H. Kamens
	


	 	 	 	

	

	 	 	 	Matthew H. Kamens
	

	 	 	 	Manager







	 	 	 
	 

	 	BUTERA PROPERTIES, INC.







	 	 	 	 	 
	

	 	By:
	 	/s/ T. Richard Butera
	


	 	 	 	

	

	 	 	 	T. Richard Butera
	

	 	 	 	President







	 	 	 
	 

	 	BUTERA PROPERTIES II, INC.







	 	 	 	 	 
	

	 	By:
	 	/s/ T. Richard Butera
	


	 	 	 	

	

	 	 	 	T. Richard Butera
	

	 	 	 	President








 









 





	 	 	 	 	 
	 	 	BUTERA GIRARD BUSINESS CENTER, INC.
	 
	 	 	 	 
	

	 	By:
	 	     /s/ T. Richard Butera
	


	 	 	

	

	 	 	 	T. Richard Butera

President
	 
	 	 	 	 
	 	 	BUTERA GATEWAY CENTER, INC.
	 
	 	 	 	 
	

	 	By:
	 	     /s/ T. Richard Butera
	


	 	 	

	

	 	 	 	T. Richard Butera

President
	 
	 	 	 	 
	 	 	BUTERA GIRARD PLACE, INC.
	 
	 	 	 	 
	

	 	By:
	 	     /s/ T. Richard Butera
	


	 	 	

	

	 	 	 	T. Richard Butera

President
	 
	 	 	 	 
	 	 	BUTERA GOLDENROD LANE, INC.
	 
	 	 	 	 
	

	 	By:
	 	     /s/ T. Richard Butera
	


	 	 	

	

	 	 	 	T. Richard Butera

President
	 
	 	 	 	 
	 	 	RIP INVESTMENTS LP
	 	 	By: Village Hook, LLC, General Partner
	 
	 	 	 	 
	

	 	 	By:
	 /s/ Matthew H. Kamens
	


	 	 	 	

	

	 	 	 	 Matthew H. Kamens

 Manager
	 
	 	 	 	 
	

	 	 	 	     /s/ T. Richard Butera
	


	 	 	

	

	 	 	 	T. Richard Butera, an Individual







FURTHER JOINDER OF T.
RICHARD BUTERA




The undersigned, T. Richard Butera, has also joined in the execution of this
Agreement to evidence his acknowledgement and consent to the terms of Section
3.2.7 of this Agreement.




Witness:




	 	 	 
	

	 	     /s/ T. Richard Butera
	


	 	

	

	 	T. Richard Butera








 









 








	 	 	 	 	 
	 	 	BUTERA GATEWAY WEST II, LLC
	 
	 	 	 	 
	 

	 	By:
	 	      /s/ T. Richard Butera

	


	 	 	



	 

	 	 
	 	T. Richard Butera

Manager








 









 





	 	 	 
	WITNESS:

	 	BUYER:
	 
	 	 
	

	 	FIRST POTOMAC REALTY INVESTMENT
	

	 	
LIMITED PARTNERSHIP, a Delaware

	

	 	limited partnership

	 
	 	 
	

	 	By: First Potomac Realty Trust, a Maryland
	

	 	real estate investment trust,

	

	 	its general partner








	 	 	 	 	 
	 	 	 
	 	By:  	                               /s/ Nicholas R. Smith
 	 
	
	  	
	 
	 	Print Name:  	Nicholas R. Smith 	 
	 	Title:  	Executive Vice President 	 
	 



	 	 	 	 	 
	 	FP REALTY INVESTMENT MANAGER, INC.

 	 
	 	By:  	     /s/ Nicholas R. Smith
 	 
	
	  	
	 
	 	Print Name:  	 Nicholas R. Smith 	 
	 	Title:  	Executive Vice President 	 
	 



	 	 	 	 	 
	 	FP WESTPARK, LLC

 	 
	 	By:  	  First Potomac Realty
 	 
	 	 	Investment Limited Partnership, 	 
	 	 	a Delaware limited partnership,

its sole member/manager 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                    First Potomac Realty Trust, a
 	 
	 	 	Maryland real estate investment 	 
	 	 	trust, its general partner 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                   /s/ Nicholas R. Smith
 	 
	
	  	
	 
	 	Print Name:  	 Nicholas R. Smith 	 
	 	Title:  	Executive Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	FP PATRICK CENTER, LLC

 	 
	 	By:  	   First Potomac Realty
 	 
	 	 	Investment Limited Partnership, 	 
	 	 	a Delaware limited partnership,

its sole member/manager 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	     First Potomac Realty Trust, a Maryland
 	 
	 	 	real estate investment trust, 	 
	 	 	its general partner 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                 /s/ Nicholas R. Smith
 	 
	
	  	
	 
	 	Print Name:  	Nicholas R. Smith 	 
	 	Title:  	Executive Vice President 	 
	 



The undersigned agrees to serve as Escrow Agent in accordance with

the terms and conditions set forth under the foregoing Agreement:


	 	 	 	 	 
	 	Chicago Title Insurance Company

 	 
	 	By:  	
 	 
	 	 	 	 
	 	 	 	 
	 




	 	 	 	 	 
	Date of Escrow Agent’s Execution:

	 	 	 	 
	

	 	 	 	 
	

	 	, 2004