Exhibit 10.1


 


AGREEMENT OF PURCHASE AND SALE


 


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


 


ARTICLE I



PURCHASE AND SALE OF PROPERTY


 


Section 1.1                                   Sale.


 


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


 


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


 


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


 


(c)                                  Tangible
Personal Property.  All of the
equipment, machinery, furniture, furnishings, supplies and other tangible
personal property, if any, owned by Seller and now or hereafter located on and
used exclusively in the operation, ownership or maintenance of the Real
Property (collectively, the “Tangible
Personal Property”), but specifically excluding from the Tangible
Personal Property, except to the extent sold or assigned to Buyer pursuant to
the provisions of this Agreement (1) any items of personal property owned
by tenants under the Leases, (2) any items of personal property in Seller’s
property management office, if any, located on the Real Property, (3) any
items of personal property owned by third parties and leased to Seller, and (4) proprietary
computer software, systems and equipment and related licenses used in
connection with the operation or management of the Property. Seller has
provided to Buyer all lists and inventories in Seller’s possession or control
of such Tangible Personal Property; and


 


(d)                                  Intangible
Personal Property.  To the extent
assignable at no cost to Seller, all intangible personal property, if any,
owned by Seller and related to the Real Property, including, without
limitation: any trade names and trademarks associated with the Real Property
(but specifically excluding the name “RREEF” and any derivatives thereof); any
plans and specifications and other architectural and engineering drawings for
the Improvements; any warranties; any Service Contracts (as defined in Section 2.1
below) and other contract rights


 





















 


related to the
Property (but only to the extent Seller’s obligations thereunder are expressly
assumed by Buyer pursuant to the Assignment of Leases as defined in Section 8.3(a)(3) below);
and any governmental permits, approvals and licenses (including any pending
applications) (collectively, the “Intangible
Personal Property”).  Seller
has provided to Buyer all lists and inventories in Seller’s possession or
control of such Intangible Personal Property.


 


Section 1.2                                   Purchase
Price.


 


(a)                                  The
purchase price of the Property is Thirty Six Million Two Hundred Fifty Thousand
and No/100 Dollars ($36,250,000.00) (the “Purchase
Price”).


 


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


 


(1)                                 Within
five (5) business days after delivery to Buyer of the necessary approvals
required by Section 9.23, Buyer shall deliver to Seller cash or other
immediately available funds in the amount of Four Million and No/100 Dollars
($4,000,000.00) (the “Deposit”).  Upon delivery the Deposit shall be fully
earned by Seller and shall be nonrefundable (except in the event of Seller’s
willful refusal to close after Buyer’s full performance hereunder or as
otherwise expressly provided in this Agreement) and shall not be subject to any
Buyer closing condition.


 


The full
amount of the Deposit paid to the Seller shall be credited against the Purchase
Price at the Closing (as defined in Section 1.2(b)(2) below).  IF THE SALE
OF THE PROPERTY IS NOT CONSUMMATED DUE TO SELLER’S WILLFUL FAILURE TO CONVEY
THE PROPERTY TO SELLER, THEN BUYER MAY ELECT, AS BUYER’S SOLE AND
EXCLUSIVE REMEDY, EITHER TO: (1) TERMINATE THIS AGREEMENT AND, WHERE
EXPRESSLY PROVIDED HEREUNDER, RECEIVE A REFUND OF THE DEPOSIT IN WHICH EVENT
NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER EXCEPT AS
PROVIDED IN SECTIONS 6.1, 9.3 AND 9.9 BELOW, OR (2) ENFORCE SPECIFIC
PERFORMANCE OF THIS AGREEMENT.  IF THE
SALE OF THE PROPERTY IS NOT CONSUMMATED DUE TO ANY OTHER DEFAULT BY SELLER THEN
BUYER MAY, AS BUYER’S SOLE AND EXCLUSIVE REMEDY, ENFORCE SPECIFIC PERFORMANCE
OF THIS AGREEMENT.  BUYER SHALL NOT HAVE
ANY OTHER RIGHTS OR REMEDIES HEREUNDER AS A RESULT OF ANY DEFAULT BY SELLER
PRIOR TO CLOSING, AND BUYER HEREBY WAIVES ANY OTHER SUCH REMEDY AS A RESULT OF
A DEFAULT HEREUNDER BY SELLER.  IF THE
SALE IS NOT CONSUMMATED DUE TO ANY DEFAULT BY BUYER HEREUNDER, AND BUYER FAILS
TO CURE SUCH DEFAULT WITHIN FIVE (5) DAYS AFTER NOTICE FROM SELLER, THEN
SELLER SHALL RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES, AS SELLER’S SOLE AND EXCLUSIVE
REMEDY IN CONNECTION WITH SUCH DEFAULT. 
THE PARTIES HAVE AGREED THAT SELLER’S ACTUAL DAMAGES, IN THE EVENT OF A
FAILURE TO CONSUMMATE THIS SALE DUE TO BUYER’S DEFAULT PRIOR TO CLOSING, WOULD
BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE.  AFTER NEGOTIATION, THE PARTIES HAVE AGREED
THAT, CONSIDERING ALL THE CIRCUMSTANCES


 


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EXISTING ON THE DATE OF THIS AGREEMENT, THE
AMOUNT OF THE DEPOSIT IS A REASONABLE ESTIMATE OF THE DAMAGES THAT SELLER WOULD
INCUR IN SUCH EVENT.  BY PLACING THEIR
INITIALS BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS
MADE ABOVE AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO
EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS
LIQUIDATED DAMAGES PROVISION.  THE
FOREGOING IS NOT INTENDED TO LIMIT BUYER’S OBLIGATIONS UNDER SECTIONS 6.1, 9.3
AND 9.9.


 


	
  INITIALS:

  	
   

  	
  SELLER

  	
   

  	
  BUYER

  



 


(2)                                 The
balance of the Purchase Price (plus or minus the prorations pursuant to Section 8.5
hereof) shall be paid to Seller in cash or by wire transfer of other
immediately available funds at the consummation of the purchase and sale
contemplated hereunder (the “Closing”).


 


ARTICLE II



CONDITIONS


 


Section 2.1                                   Buyer’s
Conditions Precedent.


 


Subject to the provisions of Section 9.3 hereof, Buyer
acknowledges that Seller has provided Buyer and its consultants and other
agents and representatives with access to the Property to perform Buyer’s
inspections and review and determine the present condition of the
Property.  Buyer acknowledges that Seller
has delivered or made available to Buyer at Seller’s offices or at the Real
Property copies of all “Due Diligence Materials” in Seller’s possession, except
as otherwise specifically provided herein. 
“Due Diligence Materials” shall include, but not be limited to, (i) tenant
leases, any guaranties thereof and any other occupancy agreements, and all
amendments and modifications thereof affecting the Property (collectively, the “Leases”), (ii) all contracts pertaining
to the operation of the Property, including all management, leasing, service
and maintenance agreements, and equipment leases (collectively, the “Service Contracts”), (iii) all other
contracts, agreements, reports and other items and materials related to the
Property, (iv) any environmental reports in Seller’s possession and
prepared by or on behalf of Seller, and (v) copies of building plans, if
any, at the Property.  Notwithstanding anything to the
contrary contained herein, the Due Diligence Materials shall expressly exclude (i) those
portions of the Due Diligence Materials that would disclose Seller’s cost of
acquisition of the Real Property, or cost of construction of the Improvements
and related soft costs, (ii) any reports, presentations, summaries and the
like prepared for any of Seller’s boards, committees, partners or investors in
connection with its consideration of the acquisition of the Real Property,
construction of the Improvements or sale of the Property, (iii) any
proposals, letters of intent, draft contracts or the like prepared by or for
other prospective purchasers of the Property or any part thereof, (iv) Seller’s
internal memoranda, attorney-client privileged materials, internal appraisals,
structural or physical inspection reports, and (v) any information which
is the subject of a confidentiality agreement between Seller and a third party


 


3





















 


(the items
described in clauses (i), (ii) (iii), (iv) and (v) being
collectively referred to as the “Confidential
Information”). Buyer’s obligation to purchase the Property is
conditioned upon title to the Property being conveyed in accordance with the
provisions of Section 4.1(e) below. 
Anything provided in this Agreement to the contrary notwithstanding, the
failure of the condition described in the preceding sentence, unless such
failure results from the intentional act or omission of Seller, shall not be
considered a default by Seller and shall not entitle Buyer to receive a return
of the Deposit. The failure of Seller to obtain the necessary approvals as
required by Section 9.23 below on or before July 29, 2005 shall
entitle either party to terminate this Agreement, unless upon notice from
Seller of its intention to terminate this Agreement, Buyer waives the approval
requirements contain in Section 9.24.


 


ARTICLE III



BUYER’S EXAMINATION


 


Section 3.1                                   Representations
and Warranties of Seller.


 


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


 


(a)                                  Seller
has not (i) made a general assignment for the benefit of creditors, (ii) filed
any voluntary petition in bankruptcy or suffered the filing of any involuntary
petition by Seller’s creditors, (iii) suffered the appointment of a
receiver to take possession of all, or substantially all, of Seller’s assets, (iv) suffered
the attachment or other judicial seizure of all, or substantially all, of
Seller’s assets, (v) admitted in writing its inability to pay its debts as
they come due, or (vi) made an offer of settlement, extension or
composition to its creditors generally.


 


(b)                                  Seller
is not a “foreign person” as defined in Section 1445 of the Internal
Revenue Code of 1986, as amended (the “Code”)
and any related regulations.


 


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


 


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


 


4





















 


no written
notice of any default by Seller with respect to such Leases which has not been
cured.  To the best of Seller’s
knowledge, the updated Rent Roll delivered at closing shall include all of the
Leases then in force for the Property.


 


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


 


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


 


(g)                                 To
the best of Seller’s knowledge, as of the Effective Date Seller has received no
written notice from any governmental authority of any violation of any law
applicable to the Property (including, without limitation, any Environmental
Law as defined in Section 3.6(a)(2) below) that has not been
corrected.


 


(h)                                 To
the best of Seller’s knowledge, all of the Due Diligence Materials delivered or
made available by Seller to Buyer in connection with the Property are complete
copies of such items in Seller’s possession which are used by Seller in the
operation of the Property.


 


(i)                                    Seller
has been, and as of the Closing Date shall be, duly organized, validly
existing, and in good standing in the state in which it was formed, and, if so
required to, qualified to do business in the state in which the Real Property
is located.


 


(j)                                    Other
than Seller’s Broker (as defined in Section 6.1 below), Seller has had no
contact with any broker or finder with respect to the sale of the Property.


 


(k)                                Seller
has not prepaid, more than thirty (30) days in advance, expenses for the
Property other than real estate taxes and payments under Service Contracts
which are not terminable without penalty or payment of a fee or other cost to
Seller.


 


Each of the
representations and warranties of Seller contained in this Section 3.1:  (1) shall be true in all material
respects as of the Effective Date or as of such other date as is expressly
provided in such representation or warranty, subject in each case to (A) any
Exception Matters (as defined below), (B) the Disclosure Items, and (C) other
matters expressly permitted in this Agreement or otherwise specifically
approved in writing; and (2) shall survive the Closing as provided in Section 3.3
below.


 


Section 3.2                                   No
Liability for Exception Matters.


 


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


 


5





















 


prior to the
Effective Date, or as of such other date as is expressly provided in such
representation or warranty, and which is disclosed to Buyer in the Due
Diligence Materials, the Disclosure Items, or otherwise, or is a matter of
public record, or is otherwise discovered by Buyer before the Closing,
including, without limitation, matters disclosed in any interviews with
tenants, property managers or any other person. 
If Buyer first obtains knowledge of any material Exception Matter after
the Effective Date and prior to the Closing Date and such Exception Matter was
not contained in the Due Diligence Materials, the Disclosure Items or is not a
matter of public record, Buyer’s sole remedy shall be to terminate this
Agreement on the basis thereof, upon written notice to Seller within the
earlier of (a) five (5) days following Buyer’s discovery of such
Exception Matter or (b) the Closing Date, which ever occurs first, in
which event the Deposit shall be returned to Buyer, unless within five (5) days
after receipt of such notice or by the Closing Date, as the case may be, Seller
notifies Buyer in writing that it elects to attempt to cure or remedy such
Exception Matter, in which event there shall be no return of the Deposit unless
and until Seller is unable to so cure or remedy prior to the Closing Date.  Buyer’s failure to give notice within five (5) days
after it has obtained knowledge of a material Exception Matter shall be deemed
a waiver by Buyer of such Exception Matter. 
Seller shall have no obligation to cure or remedy any Exception Matter
(other than monetary liens as provided in Section 4.1(c) below), even
if Seller has notified Buyer of Seller’s election to attempt to cure or remedy
any Exception Matter (except as specifically provided in Section 4.1(c) hereof),
and, subject to Buyer’s right to terminate this Agreement as set forth above,
Seller shall have no liability whatsoever to Buyer with respect to any
Exception Matters.  Upon any termination
of this Agreement, neither party shall have any further rights or obligations
hereunder, except as provided in Sections 6.1, 9.3 and 9.9 below. If Buyer
obtains knowledge of any Exception Matter, but nonetheless elects to proceed
with the acquisition of the Property, Seller shall have no liability with
respect to such Exception Matter, notwithstanding any contrary provision,
covenant, representation or warranty contained in this Agreement or in any
Other Documents (as defined in Section 9.19 below).


 


Section 3.3                                   Survival
of Seller’s Representations and Warranties of Sale.


 


The representations and warranties of Seller contained herein or in any
Other Documents shall survive for a period of nine (9) months after the
Closing.  Any claim which Buyer may have
against Seller for a breach of any such representation or warranty, whether
such breach is known or unknown, which is not specifically asserted by written
notice to Seller within such nine (9) month period shall not be valid or
effective, and Seller shall have no liability with respect thereto.


 


Section 3.4                                   Seller’s
Knowledge.


 


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


 


6





















 


having been
made or any implied duty to investigate, make any inquiries or review the Due
Diligence Materials.  Furthermore, it is
understood and agreed that such individual(s) shall have no personal liability
in any manner whatsoever hereunder or otherwise related to the transactions
contemplated hereby.


 


Section 3.5                                   Representations
and Warranties of Buyer.


 


Buyer represents and warrants to Seller as follows:


 


(a)                                  This
Agreement and all documents executed by Buyer which are to be delivered to
Seller at Closing do not and at the time of Closing will not violate any
provision of any agreement or judicial order to which Buyer is a party or to
which Buyer is subject.


 


(b)                                  Buyer
has not (i) made a general assignment for the benefit of creditors, (ii) filed
any voluntary petition in bankruptcy or suffered the filing of any involuntary
petition by Buyer’s creditors, (iii) suffered the appointment of a
receiver to take possession of all, or substantially all, of Buyer’s assets, (iv) suffered
the attachment or other judicial seizure of all, or substantially all, of Buyer’s
assets, (v) admitted in writing its inability to pay its debts as they
come due, or (vi) made an offer of settlement, extension or composition to
its creditors generally.


 


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


 


(d)                                  Omitted.


 


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


 


(f)                                    Other
than Seller’s Broker (as defined in Section 6.1 below), Buyer has had no
contact with any broker or finder with respect to the Property.


 


Each of the
representations and warranties of Buyer contained in this Section shall be
deemed remade by Buyer as of the Closing and shall survive the Closing.


 


Section 3.6                                   Buyer’s
Independent Investigation.


 


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


 


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


 


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


 


(3)                                 Any
easements and/or access rights affecting the Property.


 


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


 


(5)                                 The
Service Contracts and any other documents or agreements of significance
affecting the Property.


 


(6)                                 All
other matters of material significance affecting the Property, including, but
not limited to, the Due Diligence Materials.


 


(b)                                  Except
as expressly stated herein, Seller makes no representation or warranty as to
the truth, accuracy or completeness of any materials, data or information
delivered by Seller to Buyer in connection with the transaction contemplated
hereby.  Buyer acknowledges and agrees
that all materials, data and information delivered by Seller to Buyer in
connection with the transaction contemplated hereby are provided to Buyer as a
convenience only and that any reliance on or use of such materials, data or information
by Buyer shall be at the sole risk of Buyer, except as otherwise expressly
stated herein.  Without limiting the
generality of the foregoing provisions, Buyer acknowledges and agrees that (a) any
environmental or other report with respect to the Property which is delivered
by Seller to Buyer shall be for general informational purposes only, (b) Buyer
shall not have any right to rely on any such report delivered by Seller to
Buyer, but rather will rely on its own inspections and investigations of the
Property and any reports commissioned by Buyer with respect thereto, (c) neither
Seller, any


 


8





















 


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


 


(c)                                  EXCEPT
AS EXPRESSLY SET FORTH IN SECTION 3.1 ABOVE AND ELSEWHERE IN THIS
AGREEMENT, BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT SELLER IS SELLING
AND BUYER IS PURCHASING THE PROPERTY ON AN “AS IS WITH ALL FAULTS” BASIS AND
THAT BUYER IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND
WHATSOEVER, EXPRESS OR IMPLIED, FROM SELLER, ANY SELLER RELATED PARTIES, OR
THEIR AGENTS OR BROKERS, OR ANY OTHER PERSON ACTING OR PURPORTING TO ACT ON
BEHALF OF SELLER, AS TO ANY MATTERS CONCERNING THE PROPERTY, INCLUDING WITHOUT
LIMITATION:  (i) the quality,
nature, adequacy and physical condition and aspects of the Property, including,
but not limited to, the structural elements, seismic aspects of the Property,
foundation, roof, appurtenances, access, landscaping, parking facilities and
the electrical, mechanical, HVAC, plumbing, sewage, and utility systems,
facilities and appliances, the square footage within the Improvements and
within each tenant space therein, (ii) the quality, nature, adequacy, and
physical condition of soils, geology and any groundwater, (iii) the
existence, quality, nature, adequacy and physical condition of utilities
serving the Property, (iv) the development potential of the Property, and
the Property’s use, habitability, merchantability, or fitness, suitability,
value or adequacy of the Property for any particular purpose, (v) the
zoning or other legal status of the Property or any other public or private
restrictions on use of the Property, (vi) the compliance of the Property
or its operation with any applicable codes, laws, regulations, statutes,
ordinances, covenants, conditions and restrictions of any governmental or
quasi-governmental entity or of any other person or entity, (vii) the
presence of Hazardous Materials on, under or about the Property or the
adjoining or neighboring property, (viii) the quality of any labor and
materials used in any improvements on the Real Property, (ix) the condition
of title to the Property, (x) the value, economics of the operation or income
potential of the Property, or (xi) any other fact or condition which may affect
the Property, including without limitation, the physical condition, value,
economics of operation or income potential of the Property.  In addition, except as expressly provided
herein to the contrary, Seller shall have no legal obligation to apprise Buyer
regarding any event or other matter involving the Property which occurs after
the Effective Date or to otherwise update the Due Diligence Items.


 


Section 3.7                                   Release.


 


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


 


9





















 


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


 


Section 3.8                                   Survival.


 


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


 


ARTICLE IV



TITLE


 


Section 4.1                                   Conditions
of Title.


 


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


 


(b)                                  Within
one (1) business day after the Effective Date (the “Title Review Date”), Buyer shall furnish
Seller with a written statement of objections, if any, to conditions to the
title to the Property which were not disclosed in the title report and survey
previously delivered to Buyer by Seller, including, without limitation, any objections
to any matter first disclosed by the Survey (collectively, “Objections”).  In the event the Title Company amends or
updates the Title Report after the Title Review Date (each, a “Title Report Update”), Buyer shall furnish
Seller with a written statement of Objections to any matter first raised in a
Title Report Update within three (3) business days after its receipt of
such Title Report Update (each, a “Title
Update Review Period”). 
Should Buyer fail to notify Seller in writing of any Objections in the
Title Report prior to the Title Review Date, or to any matter first disclosed
in a Title Report Update prior to the Title Update Review Period, as
applicable, Buyer shall be


 


10





















 


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


 


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


 


(d)                                  If
Seller elects (or is deemed to have elected) not to attempt to cure any
Objections related to defects in title caused by the Seller and raised in any
Buyer’s Notice timely delivered by Buyer to Seller pursuant to Section 4.1(b),
or if Seller notifies Buyer that it elects to attempt to cure any such
Objection but then does not for any reason effect such cure on or before the
Closing Date as it may be extended hereunder, then Buyer, as its sole and
exclusive remedy, shall have the option of terminating this Agreement by
delivering written notice thereof to Seller within three (3) business days
after (as applicable) (i) its receipt of Seller’s Response stating that
Seller will not attempt to cure any such Objection or (ii) the expiration
of Seller’s Response Period if Seller does not deliver a Seller’s Response or (iii) Seller’s
failure to cure by the Closing Date (as it may be extended hereunder) any
Objection which Seller has previously elected to attempt to cure pursuant to a
Seller’s Response.  In the event of such
a termination, the Deposit shall be returned to Buyer, and neither party shall
have any further rights or obligations hereunder except as provided in Sections
6.1, 9.3 and 9.9 below.  If no such
termination notice is timely received by Seller hereunder, Buyer shall be
deemed to have waived all such Objections in which event those Objections shall
become “Conditions of Title” under
Section 4.1(e).  If the Closing is
not consummated for any reason other than Seller’s default hereunder, Buyer
shall be responsible for any title or escrow cancellation charges.


 


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


 


(i)                                     Interests of
tenants in possession under the Leases;


 


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


 


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


 


11





















 


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


 


All of the
foregoing exceptions shall be referred to collectively as the “Conditions of Title.”  Subject to the terms and conditions contained
elsewhere in this Agreement, by acceptance of the Deed and the Closing of the
purchase and sale of the Property, (x) Buyer agrees it is assuming for the
benefit of Seller all of the obligations of Seller with respect to the
Conditions of Title from and after the Closing, and (y) Buyer agrees that
Seller shall have conclusively satisfied its obligations with respect to title
to the Property.  The provisions of this Section shall
survive the Closing.


 


Section 4.2                                   Evidence
of Title.


 


Delivery of title in accordance with the foregoing shall be evidenced
by the willingness of the Title Company to issue, at Closing, its Owner’s ALTA
Policy of Title Insurance in the amount of the Purchase Price showing title to
the Real Property vested in Buyer, subject to the Conditions of Title (the “Title Policy”).  The Title Policy may contain such
endorsements as reasonably required by Buyer provided that the issuance of such
endorsements shall not be a condition to Buyer’s obligations hereunder.  Buyer shall pay the costs for all such
endorsements.  Seller shall have no
obligation to provide any indemnity or agreement to the Title Company or Buyer
to support the issuance of the Title Policy or any such endorsements other than
an affidavit as to the existing tenants of the Property and any ongoing
construction work at the Property.


 


ARTICLE V



RISK OF LOSS AND INSURANCE PROCEEDS


 


Section 5.1                                   Minor
Loss.


 


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


 


12





















 


Buyer, which
approval shall not be unreasonably withheld, conditioned or delayed).  If the proceeds or awards have not been
collected as of the Closing, then such proceeds or awards shall be assigned to
Buyer, except to the extent needed to reimburse Seller for sums expended to
collect such proceeds or awards or to repair or restore the Property (subject
to the approval of Buyer, not to be unreasonably withheld, conditioned or
delayed provided no such approval shall be required in the case of repairs
which the Seller must make in order to comply with applicable laws, resolve an
emergency condition, or avoid default under an agreement to which Seller is a
party), and Seller shall retain the rights to such proceeds and awards to such
extent.


 


Section 5.2                                   Major
Loss.


 


If the cost to repair the damage or destruction as specified above
exceeds Four Million Dollars ($4,000,000) in the estimate of an architect or
contractor selected by Seller and reasonably acceptable to Buyer or the
diminution in the value of the remaining Property as a result of a condemnation
is material (as hereinafter defined), then Buyer may, at its option to be
exercised within five (5) days of Seller’s notice of the occurrence of the
damage or destruction or the commencement of condemnation proceedings, either
terminate this Agreement or consummate the purchase for the full Purchase Price
as required by the terms hereof.  If
Buyer elects to terminate this Agreement by delivering written notice thereof
to Seller or fails to give Seller notice within such five (5) day period
that Buyer will proceed with the purchase, then this Agreement shall terminate,
the Deposit shall be returned to Buyer and neither party shall have any further
rights or obligations hereunder except as provided in Sections 6.1, 9.3 and 9.9
below.  If Buyer elects to proceed with
the purchase, then upon the Closing, there shall be a credit against the
Purchase Price due hereunder equal to the amount of any insurance proceeds or
condemnation awards collected by Seller as a result of any such damage or
destruction or condemnation, plus the amount of any insurance deductible, less
any sums expended by Seller toward the collection of such proceeds or awards or
to restoration or repair of the Property (the nature of which restoration or repairs,
but not the right of Seller to effect such restoration or repairs, shall be
subject to the approval of Buyer, which approval shall not be unreasonably
withheld, conditioned or delayed).  If
the proceeds or awards have not been collected as of the Closing, then such
proceeds or awards shall be assigned to Buyer, except to the extent needed to
reimburse Seller for sums expended to collect such proceeds or awards or to
repair or restore the Property (subject to the approval of Buyer, not to be
unreasonably withheld, conditioned or delayed provided no such approval shall
be required in the case of repairs which the Seller must make in order to
comply with applicable laws, resolve an emergency condition, or avoid default
under an agreement to which Seller is a party), and Seller shall retain the
rights to such proceeds and awards to such extent.  A condemnation shall be deemed material if
any portion of any net rentable area of the Property, or any parking is taken which
would cause the Property to be in violation of any existing laws or
regulations, including but not limited to, zoning regulations, or the existing
access to the Property is materially and adversely affected, permanently.


 


13





















 


ARTICLE VI



BROKERS AND EXPENSES


 


Section 6.1                                   Brokers.


 


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


 


Section 6.2                                   Expenses.


 


Except as expressly provided in this Agreement, each party hereto shall
pay its own expenses incurred in connection with this Agreement and the
transactions contemplated hereby.


 


ARTICLE VII



LEASES AND OTHER AGREEMENTS


 


Section 7.1                                   Leasing.


 


During the period between the Effective Date and the delivery of the
Deposit, Seller shall continue to manage and lease the Property in the same manner
as before the making of this Agreement, the same as though Seller were
retaining the Property. Provided, however, Seller shall have no obligation to
lease or market the Property and Seller shall have no liability for Leases
which are terminated either by agreement between the Seller and the applicable
tenant or as a result of a tenant’s default under its Lease.


 


During the period between the delivery of the Deposit and the Closing
Date, Seller hereby agrees to (to the extent permitted by applicable law):  (i) not enter into any new Lease, renew
any existing Lease, or modify any existing Lease for a unit at the Property
unless (a) (1) the term of such Lease expires on or before the dates
specified on Exhibit F
attached hereto for each individual building and (2) the Lease terminates
by its express terms on a date certain; and (3) the Lease does not contain
any autorenewal or non-termination provisions that benefit the Tenant; or (b) Buyer
otherwise waives the requirements of this Section in writing with respect
to all or certain tenants; and (ii) cooperate with Buyer in any
submissions to governmental authorities relating to Purchaser’s intended use
and development of the Property.  Upon
Buyer’s request, but only after the Deposit has been made, Seller shall deliver
a notice of termination (the “120 Day Notice”) to tenants specified by Buyer,
provided, however, that Seller shall have no obligation to send the 120 Day
Notice if the sending of the 120 Day Notice will result in the Lease being
terminated prior to the dates specified on Exhibit F
or the date the Lease expires according to its own terms (without reference to
any tenant holdover or automatic renewal provisions contained in such
Lease).  In addition, Seller and Buyer
agree that Buyer shall have


 


14





















 


the right to
cause the Seller to send 120 Day Notices with respect to Leases that expire
more than one hundred twenty (120) days after the date of the 120 Day Notice,
provided that such notices specify that the Lease shall not be terminated until
the later of (x) one hundred twenty (120) days after the date of the 120 Day
Notice; and (y) the date the Lease expires according to its own terms (without
reference to any tenant holdover or automatic renewal provisions contained in
such Lease).  Seller and Purchaser shall
jointly draft the 120 Day Notice, which may contain additional information
regarding Purchaser’s intended plans with respect to the Property.  Commencing on the date which is fifteen (15)
days after delivery of the Deposit, and monthly thereafter until the Closing
Date, Buyer shall pay directly to Seller the amount of Fifty Thousand and
No/100 Dollars ($50,000.00) (a “Vacancy
Payment”).  Each installment
of the Vacancy Payment shall be nonrefundable and shall be fully earned by
Seller when paid.  The Vacancy Payment
shall not be credited against the Purchase Price.  Buyer’s failure to pay an installment of the
Vacancy Payment when due shall be a material default under this Agreement and
in the event of such default, in addition to any other remedies available to
Seller, Seller may cease to comply with the obligations of this Section 7.1.


 


During the period between the Effective Date and the Closing Date, if
Seller becomes aware that a Unit is going to become vacant for the buildings
located at 11011, 11013, 11015, 11017 and 11019 Becontree Lake Drive on a date
between the Effective Date and the Closing Date (provided that nothing
contained in this paragraph shall affect the Seller’s obligations with respect
to the Lease termination dates set forth in Exhibit F.), then Seller shall
give Buyer written notice of such vacancy, describing the Lease, the rent and
the terms and conditions of the Lease. 
All terms and conditions shall be substantially similar to those offered
to prospective tenants at the Property. 
Buyer shall have four (4) business days from the receipt of such
notice to agree to lease the unit that will become vacant for the rent and upon
the terms and conditions specified in such notice by giving written notice to
Seller.  If Buyer exercises its rights
hereunder to enter into a Lease, the parties shall promptly execute a Lease for
said unit, and Buyer and Seller shall thereafter comply with each of their
respective obligations under the Lease until the Closing Date (and thereafter
if Closing does not occur).  If Buyer
does not exercise its rights hereunder to enter into a Lease, Seller may enter
into a Lease for that Unit with a third party on substantially the same terms
as were offered to Buyer and otherwise in compliance with the requirements of
this Agreement regarding leasing.  All
amounts paid by Buyer to Seller under Leases entered into pursuant to this
paragraph shall be credited to the Purchase Price at Closing.  The provisions of this paragraph shall
survive the termination of this Agreement, unless such termination results from
a default by Seller under this Agreement.


 


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


 


Section 7.2                                   Leasing
Commissions and Concessions.


 


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


 


15





















 


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


 


Section 7.3                                   Tenant
Notices.


 


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


 


Section 7.4                                  Maintenance
of Improvements and Operation of Property; Removal of Tangible Personal
Property.


 


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


 


Section 7.5                                   Service
Contracts.


 


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


 


16





















 


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


 


ARTICLE VIII



CLOSING AND ESCROW


 


Section 8.1                                   Intentionally
Omitted.


 


Section 8.2                                   Closing.


 


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


 


Section 8.3                                   Deposit
of Documents.


 


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


 


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


 


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


 


(3)                                 four
(4) duly executed counterparts of an Assignment and Assumption of Leases,
Service Contracts, Warranties and Other Intangible Property in the form
attached hereto as Exhibit E
pursuant to the terms of which Buyer shall assume all of Seller’s obligations
under the Leases, Service Contracts, and other documents and agreements
affecting the Property (the “Assignment of
Leases”);


 


(4)                                 an
affidavit pursuant to Section 1445(b)(2) of the Code, and on which
Buyer is entitled to rely, that Seller is not a “foreign person” within the
meaning of Section 1445(f)(3) of the Code; and


 


17





















 


(5)                                 an
updated Rent Roll, certified to Buyer.


 


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


 


(1)                                 immediately
available funds necessary to close this transaction, including, without
limitation, the Purchase Price (less the Deposit and interest thereon net of
investment fees, if any) and funds sufficient to pay Buyer’s closing costs and
share of prorations hereunder;


 


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


 


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


 


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


 


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


 


Section 8.4                                   Omitted


 


Section 8.5                                   Prorations.


 


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


 


18





















 


the leasing
commissions, legal fees and other expenses, and free rent and other
concessions, as provided in Section 7.2.


 


All rents
collected after the Closing shall be applied and paid as provided in this Section 8.5(a).  If a tenant shall specifically designate a
payment as being attributable to, or if it is readily ascertainable that a
payment received from a tenant is attributable to a specific period of time or
for a specific purpose, including, without limitation, for operating expenses
or real estate tax payments which were not paid or were underpaid by such
tenant or for reimbursement for work performed by Seller on the tenant’s
premises, such payment shall be so applied. 
If there is no such designation or if not so readily ascertainable, any
payment received from a tenant after Closing shall be deemed a payment of rent
due after the Closing until the tenant is current on rents and sums due under
the applicable Lease on or after the Closing, and then such payments shall be
paid to Seller to the extent of any rent or other sums owing to Seller for
periods prior to Closing.  Buyer shall
use reasonable efforts to collect such rents and other sums owing to
Seller.  Seller retains the right to
collect any such rents and other sums from tenants after Closing; provided,
however, that Seller shall have no right to cause any such tenant to be evicted
or to exercise any other landlord remedy against such tenant other than to sue
for collection.


 


The amount of
any cash security deposits held by Seller under Leases shall be credited
against the Purchase Price (and Seller shall be entitled to retain such cash
security deposits).  Seller shall receive
credits at Closing for the amount of any utility or other deposits with respect
to the Property.  Buyer shall cause all
utilities to be transferred into Buyer’s name and account at the time of
Closing.


 


Seller and
Buyer hereby agree that if any of the aforesaid prorations and credits cannot
be calculated accurately on the Closing Date or in the case of rents or other
charges received from tenants, such amount have not been collected, then the
same shall be calculated as soon as reasonably practicable after the Closing
Date or the date such amounts have been collected, and either party owing the
other party a sum of money based on such subsequent proration(s) or credits
shall pay said sum to the other party within thirty (30) days thereafter.  Any amounts not paid within such thirty (30)
day period shall bear interest from the date actually received by the payor
until paid at the greater of (i) the rate of ten percent (10%) per annum
or (ii) the prime rate (or base rate) reported from time to time in the “Money
Rates” column or section of The Wall Street Journal as being the
base rate on corporate loans at larger United States money center commercial
banks plus two (2) percent.  Upon
request of either party, the parties shall provide a detailed and accurate
written statement signed by such party certifying as to the payments received
by such party from tenants from and after Closing and to the manner in which
such payments were applied, and shall make their books and records available
for inspection by the other party during ordinary business hours upon
reasonable advance notice.


 


(b)                                  All
title charges (including endorsements and reinsurance charges), survey costs,
escrow or closing fees, sale and transfer taxes, recording fees or taxes,
documentary taxes and similar taxes and fees imposed upon the transfer of the
Property by applicable law shall be paid by Buyer at Closing.  Any escrow fees shall be split equally
between Seller and Buyer.  The parties
will execute and deliver any required transfer or other similar tax
declarations to the appropriate governmental entity at Closing.


 


19





















 


(c)                                  Omitted


 


(d)                                  The
provisions of this Section 8.5 shall survive the Closing.


 


ARTICLE IX



MISCELLANEOUS


 


Section 9.1                                   Notices.


 


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


 


	
  To Buyer:

  	
   

  	
  Christopher Clemente

  
	
   

  	
   

  	
  Comstock Homebuilding Companies, Inc.

  
	
   

  	
   

  	
  11465 Sunset Hills Road, Suite 510

  
	
   

  	
   

  	
  Reston, Virginia 20190

  
	
   

  	
   

  	
  Fax No.: (703) 760-1520

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Jubal Thompson, Esquire

  
	
   

  	
   

  	
  Comstock Homebuilding Companies, Inc.

  
	
   

  	
   

  	
  11465 Sunset Hills Road, Suite 510

  
	
   

  	
   

  	
  Reston, Virginia 20190

  
	
   

  	
   

  	
  Fax No.: (703) 760-1520

  
	
   

  	
   

  	
   

  
	
  with a copy
  to:

  	
   

  	
  Joseph Edward Bankert, Esquire

  
	
   

  	
   

  	
  Bankert & Associates, P.C.

  
	
   

  	
   

  	
  3025 Hamaker Court, #501

  
	
   

  	
   

  	
  Fairfax, Virginia 22031

  
	
   

  	
   

  	
  Fax No.: (703) 876-4628

  
	
   

  	
   

  	
   

  
	
  To Seller:

  	
   

  	
  ER
  Carter, L.L.C.

  
	
   

  	
   

  	
  c/o RREEF America L.L.C.

  
	
   

  	
   

  	
  280 Park Avenue, 40th Floor

  
	
   

  	
   

  	
  New York, New York 10017

  
	
   

  	
   

  	
  Attention: Peter F. Feinberg

  
	
   

  	
   

  	
  Fax No.: 212-454-6616

  
	
   

  	
   

  	
   

  
	
  with a copy
  to:

  	
   

  	
  Seyfarth Shaw LLP

  
	
   

  	
   

  	
  55 East Monroe Street, Suite 4200

  
	
   

  	
   

  	
  Chicago, Illinois 60603

  
	
   

  	
   

  	
  Attention: Jeffrey D. Friedman

  
	
   

  	
   

  	
  Fax No.: 312-269-8869

  



 


20





















 


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


 


Section 9.2                                   Entire
Agreement.


 


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


 


Section 9.3                                   Entry
and Indemnity.


 


Notwithstanding the fact that Buyer has no due diligence or inspection
contingency under this Agreement, Seller shall permit Buyer to enter the Property
in accordance with the terms of this Section 9.3 solely for purposes of
planning and preparing for Buyer’s ownership of the Property and for purposes
of performance and design testing or inspection solely related to such planning
and preparation.  In connection with any
entry by Buyer, or its agents or employees onto the Property, Buyer shall give
Seller reasonable advance notice of such entry and the nature and scope of any
testing or inspection to be performed in connection with such entry and shall conduct
such entry and any inspections in connection therewith (a) during normal
business hours, (b) so as to minimize, to the greatest extent possible,
interference with Seller’s operation of the Property and the use and enjoyment
of the Property by Seller’s tenants, (c) in compliance with all applicable
laws, and (d) otherwise in a manner reasonably acceptable to Seller.  Notwithstanding anything to the contrary
contained herein, Buyer shall not contact any governmental authority or any
tenant without first notifying Seller of the nature of such contact, and
Seller, at Seller’s election, shall be entitled to have a representative
participate in any telephone or other contact made by Buyer to a tenant and
present at any meeting by Buyer with a tenant. 
Buyer shall maintain  public
liability and property damage insurance in amounts and in form and substance
adequate to insure against all liability of Buyer and its agents or employees
arising out of any entry to the Property pursuant to the provisions hereof, and
Buyer shall provide Seller with evidence of such insurance coverage upon
request by Seller.  Buyer shall indemnify
and hold Seller harmless from and against any costs, damages, liabilities,
losses, expenses, liens or claims (including, without limitation, court costs
and reasonable attorneys’ fees and disbursements) arising out of or relating to
any entry on the Property by Buyer, its agents or employees.  The provisions of this Section 9.3 shall
be in addition to any access or indemnity agreement previously executed by
Buyer in connection with the Property; provided that in the event of any
inconsistency between this Section 9.3 and such other agreement, the
provisions of this Section 9.3 shall govern. The foregoing indemnity shall
survive beyond the


 


21





















 


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


 


Section 9.4                                   Time.


 


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


 


Section 9.5                                   Attorneys’
Fees.


 


If either party hereto fails to perform any of its obligations under
this Agreement or if any dispute arises between the parties hereto concerning
the meaning or interpretation of any provision of this Agreement, whether prior
to or after Closing, or if any party defaults in payment of its post-Closing
financial obligations under this Agreement, then the defaulting party or the
party not prevailing in such dispute, as the case may be, shall pay any and all
costs and expenses incurred by the other party on account of such default
and/or in enforcing or establishing its rights hereunder, including, without
limitation, court costs and reasonable attorneys’ fees and disbursements.


 


Section 9.6                                   Assignment.


 


Except as provided herein, Buyer’s rights and obligations hereunder
shall not be assignable without the prior written consent of Seller in Seller’s
sole discretion.  Notwithstanding the
foregoing, Buyer shall have the right, without the necessity of obtaining
Seller’s consent but with prior written notice to Seller, to assign its right,
title and interest in and to this Agreement to a separate account, or an entity
owned by a separate account, of Buyer, or to a single purpose entity, whether
existing or not as of the Effective Date, at any time before the Closing
Date.   Without limiting and
notwithstanding the above, in no event shall Buyer have the right to assign its
rights or obligations hereunder to any party which could not make the
representation and warranty contained in subsection 3.5(e) above, and
in connection with any assignment pursuant to the terms hereof, the assignee
shall reconfirm in a written instrument acceptable to Seller and delivered to
Seller prior to the effective date of the assignment said representation and
warranty as applied to the assignee and that all other terms and conditions of
this Agreement shall apply to such assignee. 
Subject to the provisions of this Section, this Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
successors and assigns.


 


Section 9.7                                   Counterparts.


 


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


 


Section 9.8                                   Governing
Law.


 


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


 


22





















 


Section 9.9                                   Confidentiality
and Return of Documents.


 


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


 


Section 9.10                            Interpretation
of Agreement.


 


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


 


Section 9.11                            Limited
Liability.


 


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


 


Section 9.12                            Amendments.


 


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


 


Section 9.13                            No
Recording.


 


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


 


23





















 


Section 9.14                            Drafts
Not an Offer to Enter into a Legally Binding Contract.


 


The parties hereto agree that the submission of a draft of this
Agreement by one party to another is not intended by either party to be an
offer to enter into a legally binding contract with respect to the purchase and
sale of the Property.  The parties shall
be legally bound with respect to the purchase and sale of the Property pursuant
to the terms of this Agreement only if and when the parties have been able to
negotiate all of the terms and provisions of this Agreement in a manner
acceptable to each of the parties in their respective sole discretion, and both
Seller and Buyer have fully executed and delivered to each other a counterpart
of this Agreement (or a copy by facsimile transmission). The last date upon
which either Seller or Buyer executes and delivers a counterpart of this
Agreement to the other shall be the “Effective
Date” of this Agreement, and such date shall be inserted in the
first paragraph of this Agreement.


 


Section 9.15                            ERISA.


 


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


 


Section 9.16                            No
Partnership.


 


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


 


Section 9.17                            No
Third Party Beneficiary.


 


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


 


Section 9.18                            Omitted.


 


Section 9.19                            Limitation
on Liability.


 


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


 


24





















 


representation,
warranty and/or covenant by Seller) under this Agreement or any documents
executed pursuant hereto or in connection herewith, including, without
limitation, the Deed, the Bill of Sale, the Assignment of Leases and any Seller
estoppel certificate (collectively, the “Other
Documents”, shall under no circumstances whatsoever exceed Seven
Hundred Fifty Thousand Dollars ($750,000); and (b) no claim by Buyer
alleging a breach by Seller of any representation, warranty and/or covenant of
Seller contained herein or in any of the Other Documents may be made, and
Seller shall not be liable for any judgment in any action based upon any such
claim, unless and until such claim, either alone or together with any other
claims by Buyer alleging a breach by Seller of any such representation, warranty
and/or covenant is for an aggregate amount in excess of Fifteen Thousand
Dollars ($15,000) (the “Floor Amount”),
in which event Seller’s liability respecting any final judgment concerning such
claim or claims shall be for the entire amount thereof, subject to the
limitation set forth in clause (a) above; provided, however, that if any
such final judgment is for an amount that is less than or equal to the Floor
Amount, then Seller shall have no liability with respect thereto.


 


Section 9.20                            FIN
46 Language.


 


Buyer hereby represents that it is subject to the requirements of
Interpretation No. 46 (“FIN 46”), Consolidation
of Variable Interest Entities, an authoritative accounting
pronouncement issued by the Financial Accounting Standards Board.  Seller agrees to timely cooperate in all
material respects with the Buyer’s obligation to comply with the financial
reporting requirements of FIN 46, including providing Seller’s financial
statements (i.e., balance sheet, income statement and statement of cash flows) and
certain other information such as, but not limited to, asset values,
development stage, and cost estimation, provided, however, that the foregoing
obligations of Seller shall be limited to providing such information or
documentation as may be in the possession of, or reasonably obtainable by,
Seller, its property manager or accountants, at no cost to Seller, and in the
format that Seller (or its property manager or accountants) have maintained
such information..  Buyer agrees that
such information shall be used only to prepare financial statements in
accordance with generally accepted accounting principles to comply with Buyer’s
legal financial reporting obligations to the Securities and Exchange Commission
and other legally mandated uses of Buyer’s audited financial statements.  Such information shall not be distributed
individually to any other third party nor used for any other purposes.  Financial information provided will be
consolidated with other information from multiple entities and will not be identified
in any of Buyer’s public financial reports on an individual or specific
attribution basis.  The Information will
be collected, controlled and kept confidential by the Buyer’s Chief Accounting
Officer, or his designee, and will not be shared of distributed to the Buyer’s
operation personnel in any form, oral or written.


 


Section 9.21                            Survival.


 


Except as expressly set forth to the contrary herein, no
representations, warranties, covenants or agreements of Seller contained herein
shall survive the Closing.


 


Section 9.22                            Survival
of Article IX.


 


25





















 


Section 9.23                            The
provisions of this Article IX shall survive the Closing.


 


Section 9.24                            Storm
Water Management Facility.


 


It is a
condition to Buyer’s obligation to proceed to Closing hereunder that Seller
shall perform its obligations set forth in this Section 9.24.  Buyer and Seller acknowledge that the
spillway that previously contained the storm water management facility located
on the Property has been breached, that the governmental authorities with
jurisdiction over the storm water management facility are aware of the breach,
and that said breach could be construed by the governmental authorities as a
default under that certain Storm Water Detention Agreement dated December 7,
1976 and recorded in the land records of Fairfax County, Virginia in Deed Book
4539, page 378 (the “SWM Agreement”), as well as a violation of law.  Seller agrees, on or prior to July 29,
2005, to obtain approval of the appropriate governmental authorities to permit
the creation of a landscaped wetlands area as a cure for any default under the
SWM Agreement and as a remedy for any outstanding the violation of law as well
as approval of the scope of work to be performed.  Seller shall cooperate with Buyer to allow
Buyer to review and comment on Seller’s plan to remedy the default and cure the
violation, and Seller shall allow Buyer to attend all meetings with the
appropriate governmental authorities and to review all correspondence prior to
being sent to the appropriate governmental authorities, provided that the
nature and scope of the cure shall be in Seller’s sole discretion.  If such approval has not been obtained on or
before July 29, 2005, either party may terminate this Agreement by written
notice to the other, in which event neither party shall have any obligation to
the other except for those obligations contained herein which by their terms
survive contract termination, provided that upon notice from Seller of its
intention to terminate, Buyer may waive Seller’s requirement to obtain the
necessary governmental approvals. (In the event of such waiver, Seller agrees
to permit Buyer to assume the lead role in working towards obtaining such
approvals and completing the work, but neither obtaining such approvals nor
completing such work shall be a condition of Closing.  Furthermore, if such approvals have not been
obtained prior to Closing, Seller will provide Buyer with a credit against the
Purchase Price of 110% of Seller’s cost to complete the scope of work last
proposed by Seller to the governmental authorities, provided that,
notwithstanding anything herein to the contrary, Seller shall not be
responsible for the costs of survey, the design of the required planting area,
engineering and agreed scope of work for the creation of a landscaped wetlands
area, to the extent the costs thereof in the aggregate exceed $75,000.) Upon
approval by the appropriate governmental authorities, Seller shall cause the
approved work to be performed with due diligence and in a good and workmanlike
manner and shall pay for the same. Upon completion, Seller shall be responsible
to obtain all additional documentation required to evidence the curing of the
default under the SWM Agreement and the remedying of the outstanding violation
of law.  If required Seller will enter
into a written wetlands maintenance agreement with the appropriate governmental
authorities for the area of the storm water management facility, which
agreement shall be subject to Buyer’s approval, such approval not to be
unreasonably withheld, will record the same in the land records of Fairfax
County.  Following Closing, Buyer shall
assume all maintenance obligations under such wetlands maintenance agreement.
To the extent the work is not completed as of Closing, Seller shall assign the
contracts for such work to Buyer, which will assume all


 


26





















 


responsibility
therefor post-closing, and Buyer shall receive a credit for 110% of the
contract price for such work less amounts paid to date.


 


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


 


	
   

  	
  Seller:

  	
  ER
  CARTER, L.L.C.,

  
	
   

  	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  RREEF America, L.L.C.

  
	
   

  	
   

  	
  Its:

  	
  Managing Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Pamela Boneham

  	
   

  
	
   

  	
   

  	
  Pamela
  Boneham, Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Buyer:

  	
  COMSTOCK CARTER LAKE, L.C., a Virginia

  limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Comstock Homebuilding Companies, Inc., a

  
	
   

  	
   

  	
   

  	
  Delaware corporation, its manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Christopher Clemente

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Christopher Clemente

  
	
   

  	
   

  	
   

  	
   

  	
  Chief Executive Officer

  
								



 


27





















 


LIST OF EXHIBITS AND SCHEDULES


 


Exhibits


 


	
  Exhibit A

  	
   

  	
  Real
  Property Description

  
	
   

  	
   

  	
   

  
	
  Exhibit B

  	
   

  	
  List of
  Tenant Leases

  
	
   

  	
   

  	
   

  
	
  Exhibit C

  	
   

  	
  Deed

  
	
   

  	
   

  	
   

  
	
  Exhibit D

  	
   

  	
  Bill of Sale

  
	
   

  	
   

  	
   

  
	
  Exhibit E

  	
   

  	
  Assignment
  of Leases, Service Contracts, Warranties and Other Intangible Property

  
	
   

  	
   

  	
   

  
	
  Exhibit F

  	
   

  	
  Building
  Lease Termination Dates

  
	
   

  	
   

  	
   

  
	
  Exhibit G

  	
   

  	
  List of
  Service Contracts

  
	
   

  	
   

  	
   

  
	
  Exhibit H

  	
   

  	
  Intentionally
  Omitted

  



 


Schedules


 


	
  Schedule 1

  	
   

  	
  Disclosure
  Items

  



 





















 


EXHIBIT A


 


Legal
Description


 


Beginning at a point on the Northeasterly line of Beacontree Lane
(Route 4787) marking the Southernmost corner of Block 13, Section 9,
Reston; thence running with the Easterly lines of said Block 13 and continuing
with the Southerly lines of Block 17, Section 9, Reston and the Fairfax
County Park Authority the following courses: 
N 44°48’01” E, 6.26 feet; N 40°38’42” E, 124.61 feet; N 32°20’30” E,
124.73 feet; N 28°07’04” E, 196.93 feet; S 64°45’14” E, 575.83 feet to a stone
found; S 43°44’07” E, 841.52 feet to a concrete monument found; S 02°52’55” E,
920.86 feet to a concrete monument found; N 79°17’03” W, 900.68 feet to a
concrete monument found and N 79°15’05” W, 1,054.87 feet to an iron pipe found
on the Easterly line of Block 2, Section 29, Reston; thence running with
the Easterly lines of the said Block 2 and continuing with Block 14, Section 9,
Reston, the following courses:  N 37°08’10”
E, 173.54 feet; N 28°51’25” E, 74.03 feet; N 22°14’36” E, 73.86 feet to an iron
pipe found; N 14°07’29” E, 449.12 feet to an iron pipe found; N 21°46’59” E,
98.11 feet to an iron pipe found; N 37°07’28” E, 97.71 feet to an iron pipe
found and N 44°48’01” E, 167.93 feet, to a point on the Southwesterly line of
the aforementioned Becontree Lane; thence running with the Southwesterly lines
of Becontree Lane S 52°53’40” E, 26.26 feet and with a curve to the right whose
radius is 25.00 feet and whose chord is S 07°15’50” E, 35.75 feet, an arc
distance of 39.82 feet to a point on the Westerly line of Becontree Lake Drive
(Route 6330); thence running with the lines of Becontree Lake Drive the
following courses:  S 38°22’00” W, 59.98
feet; with a curve to the right whose radius is 25.00 feet and whose chord is S
62°27’42” W, 20.41 feet, an arc distance of 21.03 feet; with a curve to the
left whose radius is 50.00 feet and whose chord is S 51°38’00” E, 66.67 feet,
an arc distance of 241.19 feet; with a curve to the right whose radius is 25.00
feet and whose chord is N 14°16’18” E, 20.41 feet, an arc distance of 21.03
feet; N 38°22’00” E, 332.95 feet; with a curve to the right whose radius is
190.00 feet and whose chord is N 75°33’03” E, 229.66 feet, an arc distance of
246.61 feet; with a curve to the right whose radius is 25.00 feet and whose
chord is S 43°10’14” E, 20.41 feet, an arc distance of 21.03 feet; with a curve
to the left whose radius is 50.00 feet and whose chord is N 22°44’06” E, 66.67
feet, an arc distance of 241.18 feet; with a curve to the right whose radius is
25.00 feet and whose chord is S 88°38’26” W, 20.41 feet, an arc distance of
21.03 feet; with a curve to the left whose radius is 240.00 feet and whose
chord is S 75°33’03” W, 290.10 feet, an arc distance of 311.51 feet; S 38°22’01”
W, 172.95 feet; with a curve to the right whose radius is 25.00 feet and whose
chord is S 82°44’10” W, 34.96 feet, an arc distance of 38.72 feet and N 52°53’40”
W, 21.71 feet to the point of beginning, containing 47.42571 acres of land,
more or less.


 


A-1





















 


EXHIBIT B


 


List of Tenant Leases


 


B-1





















 


Exhibit C


 


SPECIAL
WARRANTY DEED


 


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


 


WITNESSETH:


 


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


 


INSERT LEGAL


 


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


 


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


 


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


 


C-1





















 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
				



 


 


	
  STATE OF

  	
  )

  
	
   

  	
  )

  
	
  COUNTY OF

  	
  )

  



 


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


 


GIVEN under my hand and seal this           day
of                                                             ,
2005.


 


 


	
   

  	
   

  	
  (SEAL)

  
	
   

  	
  Notary Public

  



 


 


My commission expires:


 


F-2





















 


Exhibit D


 


BILL OF SALE


 


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


 


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


 


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


 


Assignee acknowledges and agrees that, except as expressly provided in,
and subject to the limitations contained in, that certain Agreement of Purchase
and Sale dated CONTRACTDATE, by and between Assignor and BUYERNAME (as amended,
the “Agreement”), Assignor has not
made, does not make and specifically disclaims any representations, warranties,
promises, covenants, agreements or guaranties of any kind or character
whatsoever, whether express or implied, oral or written, past, present or
future, of, as to, concerning or with respect to (a) the nature, quality
or conditions of the Personal Property, (b) the income to be derived from
the Personal Property, (c) the suitability of the Personal Property for
any and all activities and uses which Assignee may conduct thereon, (d) the
compliance of or by the Personal Property or its operation with any laws,
rules, ordinances or regulations of any applicable governmental authority or
body, (e) the quality, habitability, merchantability or fitness for a
particular purpose of any of the Personal Property, or (f) any other
matter with respect to the Personal Property. 
Assignee further acknowledges and agrees that, having been given the
opportunity to inspect the Personal Property, Assignee is relying solely on its
own investigation of the Personal Property and not on any information provided
or to be provided by Assignor, except as specifically provided in the
Agreement.  Assignee further acknowledges
and agrees that any information provided or to be provided with respect to the
Personal Property was obtained from a variety of sources and that Assignor has
not made any independent investigation or verification of such
information.  Assignee further
acknowledges and agrees that the sale of the Personal Property as provided for
herein is made on an “as is, where is” condition and basis


 


D-1





















 


“with all
faults,” except as specifically provided in, and subject to the limitations
contained in, the Agreement.


 


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


 


IN WITNESS
WHEREOF, Assignor and Assignee have caused this Bill of Sale to be executed on
the date and year first above written.


 


	
   

  	
  ASSIGNOR:

  
	
   

  	
   

  
	
   

  	
  SELLERNAME,
  SELLERENTITY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BY:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Its:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ASSIGNEE:

  
	
   

  	
   

  
	
   

  	
  ASSIGNEENAME,
  ASSIGNEEENTITY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Its:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
					



 


D-2





















 


Exhibit E


 


Assignment of
Leases, Service Contracts,

Warranties and Other Intangible Property


 


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


 


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


 


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


 


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


 


E-1





















 


CONCERNING OR
WITH RESPECT TO THE NATURE, QUALITY OR CONDITION OF THE ASSIGNED ITEMS, THE
INCOME TO BE DERIVED THEREFROM, OR THE ENFORCEABILITY, MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE OF THE ASSIGNED ITEMS.


 


Except as otherwise expressly provided in Article VII of the
Agreement, by accepting this Assignment and by its execution hereof, Assignee
assumes the payment and performance of, and agrees to pay, perform and
discharge, all the debts, duties and obligations to be paid, performed or
discharged from and after the Closing Date (as defined in the Agreement) by (a) the
“landlord” or the “lessor” under the terms, covenants and conditions of the
Leases, including, without limitation, compliance with the terms of the Leases
relating security deposits, and (b) the owner under the Service Contracts,
the Warranties and/or the Other Intangible Property.  Assignee agrees to indemnify, hold harmless
and defend Assignor from and against any and all claims, losses, liabilities,
damages, costs and expenses (including, without limitation, court costs and
reasonable attorneys’ fees and disbursements) resulting by reason of the
failure of Assignee to pay, perform or discharge any of the debts, duties or
obligations assumed or agreed to be assumed by Assignee hereunder arising out
of or relating to, directly or indirectly, in whole or in part, the Assigned
Items, from and after the Closing Date. 
Except as otherwise expressly provided in Article VII and subject to
the provisions of Sections 3.2 and  9.19
of the Agreement (which provisions are not modified in any way by the following
indemnity), Assignor agrees to protect, indemnify, defend and hold Assignee
harmless from and against all claims, losses, damages, costs, expenses,
obligations and liabilities (including, without limitation, court costs and
reasonable attorneys’ fees and disbursements) (collectively, “Claims”) arising out of or relating to,
directly or indirectly, in whole or in part, the Assigned Items, the Leases or
Service Contracts prior to the Closing Date; provided, however, that the
foregoing indemnity shall not apply to any Claims relating in any way to the
physical, environmental or other condition of the Property (as defined in the
Agreement) or the compliance or non-compliance of the Property with any legal
requirements; and provided further that the foregoing indemnity shall apply
solely to Claims first raised after the Closing Date and shall survive only for
a period of six (6) months after the Closing Date.  Any such Claim which Assignee may have at any
time against Assignor, whether known or unknown, which is not specifically
asserted by written notice to Assignor within such six (6) month period
shall not be valid or effective, and neither Assignor nor any Seller Related
Parties (as defined in the Agreement) shall have any liability with respect
thereto.


 


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


 


All of the covenants, terms and conditions set forth herein shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns.


 


E-2





















 


IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment
to be executed on the day and year first above written.


	
   

  	
  ASSIGNOR:

  
	
   

  	
   

  
	
   

  	
  SELLERNAME,
  SELLERENTITY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BY:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ASSIGNEE:

  
	
   

  	
   

  
	
   

  	
  ASSIGNEENAME,
  ASSIGNEEENTITY

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Its:

  	
   

  	
   

  
						



 


E-3





















 


Exhibit F


 


BUILDING LEASE
TERMINATION DATES


 


	
  Building Address

  	
   

  	
  Lease Termination Date

  
	
   

  	
   

  	
   

  
	
  11023 Becontree Lake Drive

  	
   

  	
  December 31, 2005

  
	
   

  	
   

  	
   

  
	
  11027 Becontree Lake Drive

  	
   

  	
  December 31, 2005

  
	
   

  	
   

  	
   

  
	
  11019 Becontree Lake Drive

  	
   

  	
  January 31, 2006

  
	
   

  	
   

  	
   

  
	
  11017 Becontree Lake Drive

  	
   

  	
  February 28, 2006

  
	
   

  	
   

  	
   

  
	
  11015 Becontree Lake Drive

  	
   

  	
  March 31, 2006

  
	
   

  	
   

  	
   

  
	
  11013 Becontree Lake Drive

  	
   

  	
  April 30, 2006

  
	
   

  	
   

  	
   

  
	
  11011 Becontree Lake Drive

  	
   

  	
  May 31, 2006

  



 


F-1





















 


EXHIBIT G


 


List of
Service Contracts


 


G-1





















 


EXHIBIT H


 


INTENTIONALLY
OMITTED


 


H-1





















 


Schedule 1


 


Disclosure
Items


 


I-1





















 


	
  AGREEMENT OF PURCHASE AND SALE

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE I PURCHASE AND SALE OF PROPERTY

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.1

  	
  Sale.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.2

  	
  Purchase Price.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II CONDITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.1

  	
  Buyer’s Conditions Precedent.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III BUYER’S EXAMINATION

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.1

  	
  Representations and Warranties of Seller.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.2

  	
  No Liability for Exception Matters.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.3

  	
  Survival of Seller’s Representations and
  Warranties of Sale.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.4

  	
  Seller’s Knowledge.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.5

  	
  Representations and Warranties of Buyer.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.6

  	
  Buyer’s Independent Investigation.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.7

  	
  Release.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.8

  	
  Survival.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV TITLE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.1

  	
  Conditions of Title.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.2

  	
  Evidence of Title.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE V RISK OF LOSS AND INSURANCE PROCEEDS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.1

  	
  Minor Loss.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.2

  	
  Major Loss.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI BROKERS AND EXPENSES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.1

  	
  Brokers.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.2

  	
  Expenses.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII LEASES AND OTHER AGREEMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.1

  	
  Leasing.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.2

  	
  Leasing Commissions and Concessions.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.3

  	
  Tenant Notices.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.4

  	
  Maintenance of Improvements and Operation
  of Property; Removal of Tangible Personal Property.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.5

  	
  Service Contracts.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII CLOSING AND ESCROW

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.1

  	
  Escrow Instructions.

  	
   

  



 





















 


	
  Section 8.2

  	
  Closing.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.3

  	
  Deposit of Documents.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.4

  	
  Omitted

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.5

  	
  Prorations.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.1

  	
  Notices.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.2

  	
  Entire Agreement.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.3

  	
  Entry and Indemnity.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.4

  	
  Time.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.5

  	
  Attorneys’ Fees.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.6

  	
  Assignment.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.7

  	
  Counterparts.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.8

  	
  Governing Law.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.9

  	
  Confidentiality and Return of Documents.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.10

  	
  Interpretation of Agreement.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.11

  	
  Limited Liability.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.12

  	
  Amendments.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.13

  	
  No Recording.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.14

  	
  Drafts Not an Offer to Enter into a Legally Binding Contract.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.15

  	
  ERISA.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.16

  	
  No Partnership.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.17

  	
  No Third Party Beneficiary.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.18

  	
  Omitted.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.19

  	
  Limitation on Liability.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.20

  	
  FIN 46 Language.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.21

  	
  Survival.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.22

  	
  Survival of Article IX.

  	
   

  
	
   

  	
   

  	
   

  
	
  LIST OF EXHIBITS AND SCHEDULES

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULES

  	
   

  	
   

  



 


H-2