exv10w78



 





Exhibit 10.78



PURCHASE AND SALE AGREEMENT


dated as of March 27, 2007


by and between


BAY WEST DESIGN CENTER, LLC,

a Delaware limited liability company


and


BAY WEST SEATTLE, LLC,

a Delaware limited liability company

(together with Bay West Design Center, LLC, “SELLER”)


and


HINES REIT PROPERTIES, L.P.,

a Delaware limited partnership


(“PURCHASER”)




 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	1.	 	Sale And Purchase	 	 	1	 
	 
	 	1.1.	 	General	 	 	1	 
	 
	 	1.2.	 	Definition Of “Property”	 	 	1	 
	 
	 	1.3.	 	Title Company	 	 	2	 
	2.	 	Payment Of Purchase Price	 	 	2	 
	 
	 	2.1.	 	Amount	 	 	2	 
	 
	 	2.2.	 	Terms Of Payment	 	 	3	 
	3.	 	Liquidated Damages	 	 	3	 
	4.	 	Review Of The Property; Inspection Period	 	 	4	 
	 
	 	4.1.	 	Document Review	 	 	4	 
	 
	 	4.2.	 	Access To Real Property, Inspection And Due Diligence	 	 	6	 
	 
	 	4.3.	 	Inspection Period	 	 	8	 
	 
	 	4.4.	 	Termination And Return Of Property	 	 	9	 
	 
	 	4.5.	 	Confidentiality	 	 	9	 
	5.	 	Title and Survey; Title Objections	 	 	9	 
	 
	 	5.1.	 	Title Policy	 	 	9	 
	 
	 	5.2.	 	Title	 	 	9	 
	 
	 	5.3.	 	Title Objections	 	 	10	 
	6.	 	Condemnation or Casualty	 	 	11	 
	 
	 	6.1.	 	Condemnation	 	 	11	 
	 
	 	6.2.	 	Casualty	 	 	11	 
	7.	 	Representations and Warranties	 	 	12	 
	 
	 	7.1.	 	Seller's Knowledge	 	 	12	 
	 
	 	7.2.	 	Seller’s Representations and Warranties	 	 	12	 
	 
	 	7.3.	 	Limitations On Seller’s Representations, Warranties, and Covenants	 	 	13	 
	 
	 	7.4.	 	Purchaser’s Representations and Warranties	 	 	14	 
	8.	 	Disclaimer; Release And Indemnification Of Seller	 	 	15	 
	 
	 	8.1.	 	Disclaimer Of Warranties; “As Is” Purchase	 	 	15	 
	 
	 	8.2.	 	Release Of Seller	 	 	15	 
	 
	 	8.3.	 	Intentionally Deleted	 	 	16	 
	 
	 	8.4.	 	Flood Hazard Zone	 	 	16	 
	9.	 	Closing	 	 	16	 
	 
	 	9.1.	 	Closing	 	 	16	 
	 
	 	9.2.	 	Seller's Delivery Into Escrow	 	 	17	 
	 
	 	9.3.	 	Purchaser's Delivery Into Escrow	 	 	18	 
	 
	 	9.4.	 	Estoppel Certificates	 	 	18	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	 
	 	9.5.	 	Conditions to Closing	 	 	20	 
	 
	 	9.6.	 	Closing Prorations.	 	 	21	 
	 
	 	9.7.	 	Closing Costs	 	 	23	 
	 
	 	9.8.	 	Closing Procedure	 	 	23	 
	 
	 	9.9.	 	Possession	 	 	23	 
	 
	 	9.10.	 	Maintenance	 	 	23	 
	 
	 	9.11.	 	Purchaser Remedies	 	 	24	 
	10.	 	Brokers	 	 	24	 
	11.	 	Operation of the Property	 	 	24	 
	12.	 	SEC Compliance	 	 	24	 
	13.	 	Miscellaneous	 	 	25	 
	 
	 	13.1.	 	Notices	 	 	25	 
	 
	 	13.2.	 	Rules of Construction	 	 	26	 
	 
	 	13.3.	 	Amendment; Waivers	 	 	26	 
	 
	 	13.4.	 	Time Of Essence	 	 	26	 
	 
	 	13.5.	 	Attorneys’ Fees	 	 	26	 
	 
	 	13.6.	 	Law	 	 	26	 
	 
	 	13.7.	 	Entire Agreement	 	 	26	 
	 
	 	13.8.	 	Assignment; Successors And Assigns	 	 	27	 
	 
	 	13.9.	 	Section 1031 Cooperation	 	 	27	 
	 
	 	13.10.	 	Exhibits	 	 	27	 
	 
	 	13.11.	 	Definition Of Business Day	 	 	27	 
	 
	 	13.12.	 	Counterparts	 	 	27	 
	 
	 	13.13.	 	Reporting Requirements	 	 	28	 
	 
	 	13.14	 	Net Worth Covenant	 	 	30	 
	 
	 	13.15	 	Joint and Several Liability	 	 	31	 






	 	 	 
	EXHIBITS
	A

	 	Legal Description Of Real Property
	B

	 	Bill Of Sale
	C

	 	Assignment of Contracts
	D

	 	List of Current Leases
	E

	 	Assignment and Assumption of Leases
	F

	 	[Intentionally Deleted]
	G

	 	Special Warranty Deed
	H

	 	Affidavit Of Non-Foreign Status






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	 	 	Page
	I

	 	Tenant Notice	 	 
	J

	 	Form of Tenant Estoppel Certificate	 	 
	K

	 	List of Environmental Documents	 	 
	L

	 	List of Contracts	 	 
	M

	 	Survey Certification	 	 






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PURCHASE AND SALE AGREEMENT




     This Purchase and Sale Agreement (“Agreement”) dated as of March 27, 2007 is entered into by
and among BAY WEST DESIGN CENTER, LLC, a Delaware limited liability company (“BWDC”), and BAY WEST
SEATTLE, LLC, a Delaware limited liability company (“BWS”, and, together with BWDC, collectively,
“Seller”) and HINES REIT PROPERTIES, L.P., a Delaware limited partnership (“Purchaser”).



R E C I T A L S




     This Agreement is entered into on the basis of the following facts, understandings and
intentions of the parties:



     A. BWDC is the owner of the improved real property commonly known as the Seattle Design Center
located at 5601 Sixth Avenue South and 5701 Sixth Avenue South, Seattle, King County, Washington,
and more particularly described as Parcel A on Exhibit A attached hereto.



     B. BWS is the owner of the unimproved real property located at the northwest corner of Fifth
Avenue South and South Orcas Street, Seattle, King County, Washington, and more particularly
described as Parcel B on Exhibit A attached hereto.



     C. The real property described as Parcels A and B on Exhibit A attached hereto is
collectively referred to in this Agreement as the “Land”.



     D. Purchaser desires to purchase from Seller, and Seller desires to sell to Purchaser, the
Property (as defined below) on the terms and conditions set forth herein.



A G R E E M E N T




     NOW THEREFORE, in consideration of the mutual covenants of the parties herein
contained and other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:



     1. Sale And Purchase.



          1.1. General. Subject to the terms, covenants and conditions contained in this
Agreement, Seller shall sell to Purchaser, and Purchaser shall purchase from Seller, all of the
Property, as defined in Section 1.2 below.



          1.2. Definition Of “Property”. As used in this Agreement, the term “Property”
includes the following:



               (a) Land. Seller’s fee simple title interest in the Land;



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               (b) Improvements and Fixtures. The buildings and any other improvements on the Land
(collectively, the “Improvements”) and all fixtures attached or related to any such Improvements.



               (c) Rights and Privileges. All of Seller’s right, title and interest in and to all
rights, privileges, strips or gores of land lying in any road or alley adjoining such land
(collectively, with the Land and Improvements, the “Real Property”), benefits, tenements,
hereditaments, rights-of-way, easements, appurtenances, mineral rights, development rights, air
rights, water rights and riparian rights belonging or appertaining to the Real Property.



               (d) Personal Property. All of Seller’s interests, if any, in and to all service,
maintenance and management contracts relating to the Property as described in Exhibit L
attached hereto (the “Contracts”) to the extent that Purchaser agrees to assume any or all of such
Contracts as set forth in “Purchaser’s Approval” (as defined and as described in Section 4.3(a)),
personal property, tangible or intangible (including without limitation logos, trademarks,
tradenames, including the “Seattle Design Center” tradename, websites and web domain names relating
to the Real Property, warranties (to the extent transferable), guarantees, plans, specifications
and architect’s, engineer’s, and all other consultant’s reports relating to the Property or the
construction of the Improvements) licenses, and permits located on or related to the Property, and
used in the ownership, management or operation of the Property (collectively, the “Personal
Property”); provided, however, that the Personal Property shall not include any appraisals,
internal financial projections or internal statements, valuation reports and/or related
information, or any of Seller’s organizational documents. Such Personal Property shall be conveyed
by a Bill of Sale from each of BWDC and BWS in the form attached hereto as Exhibit B (the
“Bills of Sale”) and an Assignment of Contracts from each of BWDC and BWS in the form attached
hereto as Exhibit C (the “Assignments of Contracts”), as appropriate.



               (e) Tenant Leases. All of Seller’s interest in, to and under any and all leases,
concession agreements or other agreements providing third parties with a right to occupy a portion
of the Real Property that are in effect as of the Closing (as defined below) (the “Leases”), a list
of the Leases in effect as of the Effective Date is attached hereto as Exhibit D. The
Leases shall be assigned by Seller to Purchaser and assumed by Purchaser pursuant to an Assignment
and Assumption of Leases from each of BWDC and BWS, as applicable, in the form attached hereto as
Exhibit E (the “Assignments and Assumption of Leases”).



          1.3. Title Company. The purchase and sale of the Property shall be handled through an
escrow that Seller has established with First American Title Insurance Company (“Title Company”) at
its office located at 1850 Mt. Diablo Blvd., Walnut Creek, California 94596, Attn: Liz Treangen,
Telephone No.: (925) 927-2151; Fax No.: (925) 927-2180 (Escrow No. NCS-286260-CC). Seller and
Purchaser agree to execute such escrow instructions as are reasonably required by Title Company to
consummate the transaction. The escrow instructions shall not be deemed to modify the provisions
of this Agreement unless any modifications are specifically identified as such and are executed by
both Seller and Purchaser.



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     2. Payment Of Purchase Price.



          2.1. Amount. The purchase price (the “Purchase Price”) to be paid by Purchaser to
Seller for the Property shall be Fifty-Seven Million Dollars ($57,000,000.00), subject to closing
costs and prorations as provided in Sections 9.6 and 9.7 below. On or before the end of the
Inspection Period (as defined below), the parties will agree in writing upon the allocation of the
Purchase Price between that portion of the Property owned by BWDC and that portion of the Property
owned by BWS.



          2.2. Terms Of Payment. Purchaser shall pay the Purchase Price to Seller as follows:



               (a) Deposit. Purchaser shall deposit in escrow established with Title Company
pursuant to Section 1.3 above, within three (3) business days after the date (the “Effective Date”)
that is the later of: (i) the date on which the last of the parties hereto has executed this
Agreement as evidenced by the dates appearing below the parties’ signatures below, and (ii) the
date the last of the Seller’s Due Diligence Materials (as defined below) is delivered or otherwise
made available to Purchaser the sum of Two Million Dollars ($2,000,000.00) in immediately available
funds, as an earnest money deposit on account of the Purchase Price (the “Initial Deposit”). The
Initial Deposit shall be invested by Title Company in an interest-bearing account designated by
Purchaser (but subject to Seller’s reasonable approval) and all interest accrued thereon while held
in escrow shall be part of the Initial Deposit. Within one (1) business day after the date of the
Purchaser’s Approval (as defined below), Purchaser shall deposit in escrow with Title Company the
additional sum of Two Million Dollars ($2,000,000.00) in immediately available funds as an
additional deposit (the “Additional Deposit”). The Initial Deposit and the Additional Deposit,
together with all interest accrued thereon (collectively, the “Deposit”), shall thereafter be
nonrefundable to Purchaser except as expressly provided herein. The Deposit shall be credited to
the Purchase Price at Closing.



               (b) Payment of Balance. Subject to closing costs and prorations as provided in
Sections 9.6 and 9.7 below, the balance of the Purchase Price shall be paid in full, in cash,
through escrow at Closing as provided in Section 9 below.



     3. Liquidated Damages. Purchaser acknowledges that the closing of the sale of the
Property to Purchaser, on the terms and conditions and within the time period set forth in this
Agreement, is material to Seller. Purchaser also acknowledges that Seller will suffer substantial
damages if such transaction is not so consummated due to Purchaser’s default under this Agreement.
Purchaser further acknowledges that, as of the date of this Agreement, Seller’s damages would be
extremely difficult or impossible to compute in light of the unpredictable state of the economy and
of governmental regulations, the fluctuating market for real estate and real estate loans of all
types, and other factors which directly affect the value and marketability of the Property. In
light of the foregoing and all of the other facts and circumstances surrounding this transaction,
and following negotiations between the parties, Purchaser and Seller agree that the amount of the
Deposit represents a reasonable estimate of the damages which Seller would suffer by reason of
Purchaser’s default hereunder. Accordingly, Purchaser and Seller hereby agree that, in the event
that the Closing fails to occur due to the default of Purchaser under this Agreement, Seller’s sole
remedy shall be to terminate this Agreement by giving notice to Purchaser and Title



3









 







Company and to retain the Deposit as liquidated damages in lieu of any other claim Seller may
have in law or in equity (including, without limitation, specific performance) arising by reason of
Purchaser’s default after, but only after, the delivery of Purchaser’s Approval (as defined below).
The parties have initialed this Section 3 to establish their intent to so liquidate damages.
Notwithstanding the foregoing, nothing contained in this Section 3 shall be deemed to limit: (a)
Purchaser’s obligation to return or deliver to Seller the materials described in Sections 4.2(c)
and 4.4 below, (b) the parties confidentiality obligations under Section 4.5 below, or (c)
Purchaser’s indemnification obligations after the Closing contained in this Agreement or its
obligations under Section 4.2(b).



	 	 	 
	Seller’s

	 	Purchaser’s
	Initials:                    

	 	Initials:                    






     4. Review Of The Property; Inspection Period. During the period commencing on the
Effective Date and expiring at 5:00 P.M. (P.D.T.) on April 11, 2007 (the “Inspection Period”),
Seller shall allow Purchaser and Purchaser’s engineers, architects and other employees and agents
reasonable access to the Property for the purpose of inspecting the Property.



          4.1. Document Review.



               (a) Seller’s Due Diligence Materials. Within one (1) business day after the parties’
execution of this Agreement, Seller shall deliver to Purchaser true and complete copies of, and
Purchaser shall acknowledge receipt of, the items listed below (“Seller’s Due Diligence
Materials”), to the extent such items are in the possession or control of Seller:




               (i) Income and expense statements for the Property for the years ended December 31,
2002 — December 31, 2006 and for the month of January 2007;




               (ii) A copy of the real property tax bills for the Real Property for the 2002-2007
calendar years;




               (iii) A current rent roll for the Property;




               (iv) A copy of each of the Leases, together with all amendments and modifications
thereto;




               (v) A copy of each of the Contracts, together with all amendments and modifications
thereto;




               (vi) A list of the Personal Property;




               (vii) A list of all capital expenses incurred by Seller in connection with the Property
since January 1, 2002;




               (viii) A copy of each license and permit, if any, held by Seller in connection with the
ownership, management or operation of the Property (including all permits relating to the
skybridge);



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               (ix) A copy of the most recent survey in Seller’s possession, prepared by Chadwick &
Winters under project #99-2352, dated July 31, 2006;




               (x) A copy of all Phase I environmental audit reports in Seller’s possession with
respect to the Property;




               (xi) A copy of each of the documents listed on Exhibit K attached hereto (which
are the most relevant documents regarding the nearby state superfund cleanup site of Philip
Services Corporation — Georgetown Facility relating to groundwater contamination from such
site that presently affects the Real Property); and




               (xii) A copy of all pleadings for any pending litigation relating to the Property.



From and after the Effective Date, Seller shall allow Purchaser and its agents and consultants
reasonable continuing access to Seller’s files relating to the Property, which files are located in
Seller’s office at the Property, upon reasonable notice and during business hours, to review and
copy, at Purchaser’s expense: (a) financial reports and records of Seller relating to the Property
(exclusive of any appraisals, internal financial projections or valuation reports); (b) tenant
files and correspondence relating to the Property or the Leases; (c) building plans and
specifications; (d) additional documents relating to the groundwater contamination described in
(xi) above; and (e) other documents, information and reports in Seller’s possession or control
directly related to the Property.



               (b) No Representation or Warranty Regarding Seller’s Due Diligence Materials. Except
as otherwise specifically provided in this Agreement, Seller makes no representation or warranty
whatsoever regarding the existence or availability of the Seller’s Due Diligence Materials.
Purchaser acknowledges and agrees that, except as otherwise provided in this Agreement: (i) any and
all of the Seller’s documents, information and reports are provided or made available to Purchaser
for informational purposes only and do not constitute representations or warranties of Seller of
any kind; (ii) the documents, information and reports that Seller provides or makes available to
Purchaser in connection with the negotiation, execution and delivery of this Agreement may not be
inclusive of all of the documents, information and reports in existence concerning the Property,
except that all Leases (and amendments thereto) and tenant correspondence have been provided or are
being made available to Purchaser; and (iii) by providing or making available to Purchaser such
documents, information and reports, and subject to the representations and warranties expressly
made by Seller in this Agreement, Seller has complied with and satisfied any obligations Seller may
have to provide Purchaser with information about the Property; provided however, Seller represents
that to Seller’s Knowledge (as defined in Section 7.1), there is no material, relevant information
missing from, or any material untruth, mistake or inaccuracy in any documents provided or made
available to Purchaser by Seller. Purchaser shall be deemed to have reviewed any and all materials
in the files of Seller regardless of whether Purchaser elects to review such files and materials,
to the extent Purchaser is permitted to review such documents pursuant to this Agreement.



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          4.2. Access To Real Property, Inspection And Due Diligence.



               (a) Access to Property. During the Inspection Period, Purchaser shall have reasonable
access to the Property on the terms and conditions set forth in this Section 4.2.



               (b) Inspection Standards. Purchaser and its affiliates and their respective
representatives, agents, employees, consultants, contractors, architects and engineers, and each of
their respective officers, directors, partners, members, managers, agents, employees,
representatives, and designees (collectively, the “Purchaser Parties”), shall have access to the
Property at any time and from time to time during regular business hours and upon reasonable
advance telephonic notice to Kelly Michaels (or in her absence, Chris Peterson or Cyndi Sundby at
(206) 762-2700), at Purchaser’s sole cost and expense: (i) to show the Property to third parties
(including, without limitation, contractors, engineers, architects, attorneys, insurers, banks and
other lenders or investors), and (ii) to perform after providing not less than 24 hours notice, any
inspections, Phase I environmental site assessments and measurements that Purchaser reasonably
deems necessary or appropriate (including typical air quality testing and evaluations); provided,
however, that Purchaser shall not conduct any invasive, intrusive or destructive testing of the
Property, including without limitation a “Phase II” environmental assessment, without first
obtaining Seller’s prior consent, which consent shall not be unreasonably withheld, conditioned or
delayed. Performance of all tests, inspections and reviews is at Purchaser’s sole risk and
expense. Purchaser shall give Seller at least twenty four (24) hours prior notice of any air
quality testing or evaluation and Seller’s environmental consultant shall (i) have the right to be
present during such testing and (ii) be promptly provided with the results of such testing. For
Purchaser’s Phase II environmental site assessment activities (collectively, the “Phase II
Activities”), including but not limited to, installing sampling or monitoring wells or probes;
obtaining soil, subsurface gas or groundwater samples or interior or ambient air samples; or
analyzing such samples on site, Seller requests that Purchaser provide a scope of work for all such
Phase II Activities for approval by Seller (which approval shall not be unreasonably withheld or
delayed) no later than three (3) business days prior to commencing any such Phase II Activities,
but Purchaser shall provide such scope of work to Seller at least twenty four (24) hours prior to
the commencement of any such Phase II Activities. Notwithstanding other language in this Section
4.2(b), and except for the review of documents, Purchaser shall conduct all Phase II Activities
during other than regular business hours. Seller’s environmental consultant shall be permitted to
be present during Purchaser’s Phase II Activities, shall be allowed to learn the results of any on-
or off-site sampling analyses, and shall be allowed, at Seller’s cost, to obtain split samples.
Purchaser shall perform, and shall cause all of the Purchaser Parties to perform, all inspections,
reviews and testing on the Property so as not to cause any damage, loss, cost, or expense to, or
other claims against Owner, Owner’s property manager, or the Property (other than with respect to
any Excluded Matters, as defined below). Purchaser shall, at its expense, promptly repair or cause
to be repaired any damage to the Property to the extent caused by or attributable to the entry onto
the Property by any Purchaser Party to conduct any tests, inspections, interviews or reviews of the
Property. Purchaser hereby agrees to indemnify, defend and hold Seller, its property manager, and
their respective directors, officers, members, managers, agents and employees free and harmless
from any and all loss, cost, damage, injury or expense (including without limitation reasonable
attorneys’ fees and costs) arising out of or in any way related to claims for work or labor
performed, materials or supplies furnished, or injury to persons or property caused by the entry
upon the Property prior to



6









 







the Closing by the Purchaser Parties, except, in each case, to the extent arising from (i) any
act or omission of Seller or any other indemnified party, or (ii) any pre-existing liabilities,
conditions or other matters merely discovered by the Purchaser Parties (e.g., latent environmental
contamination, latent construction or other physical defects or conditions) (collectively, the
“Excluded Matters”). Further, the foregoing indemnification and other obligations of the Purchaser
Parties shall expressly exclude consequential and punitive damages. Purchaser hereby indemnifies
and holds Seller harmless from any reasonable cost or expense suffered or incurred by Seller for,
or any costs incurred by Seller in removing, any lis pendens or liens placed on the Property due to
the actions of any of the Purchaser Parties. Before any of the Purchaser Parties enter onto the
Property pursuant to this Section 4.2(b), Purchaser shall deliver to Seller an original certificate
of Purchaser’s commercial general liability insurance, which may be provided under a blanket
policy, with blanket contractual obligations endorsement, a minimum limit of at least $2,000,000,
and which shows Seller as additional insured. Purchaser’s indemnification obligations under this
Section 4.2(b) shall survive for one (1) year after the Closing or earlier termination of this
Agreement. Purchaser agrees that in conducting any survey, inspections, investigations or tests of
the Property, Purchaser and its agents and representatives shall (i) not unreasonably interfere
with the operation and maintenance of the Property, (ii) not contact any tenant of the Property
unless Purchaser has provided a representative of Seller with reasonable notice prior to such
contact and provides such representative with reasonable opportunity to be present at such meeting,
(iii) not unreasonably disturb any tenant or unreasonably interfere with its use of the Property
pursuant to its lease, (iv) not damage any part of the Property or any personal property owned or
held by any tenant or any third party, (v) not injure or otherwise cause bodily harm to Seller’s
guests, agents, invitees, contractors or employees, or any tenant or its guests or invitees, (vi)
maintain insurance as provided above, (vii) promptly pay when due the costs of all surveys, tests,
investigations and examinations done with regard to the Property, (viii) not permit any liens to
attach to the Real Property by reason of the exercise of Purchaser’s rights hereunder, (ix)
immediately on completion of each such test or inspection, fully restore the Property to the
condition in which the same was found before any such inspection or test was undertaken, and (x)
not reveal or disclose any information obtained during the Inspection Period concerning the
Property except as set forth in Section 4.5. In the event Purchaser fails to perform any
affirmative duty or obligation of Purchaser under this Subsection 4.2(b) (vi), (vii), (viii) or
(ix) above within three (3) business days after written notice to Purchaser of its failure (and
without notice in case of an emergency), Seller may (but shall not be obligated to) perform such
duty or obligation on Purchaser’s behalf and Purchaser shall reimburse Seller upon demand for the
costs and expenses of any such performance (including assessed penalties, interest and reasonable
attorneys’ fees incurred in connection therewith).



               (c) Delivery. As additional consideration for the transaction contemplated herein,
upon request from Seller, Purchaser shall promptly deliver to Seller copies (without representation
or warranty) of any and all reports, tests or studies prepared by third parties involving
structural or geologic conditions, environmental, hazardous waste or hazardous substance
contamination of the Property which reports, tests and studies shall be addressed to both Purchaser
and Seller at Seller’s cost with respect to the addition of Seller as an addressee; provided,
however, that Purchaser shall not be required to deliver to Seller any internally generated
reports, financial analysis, or information which would be considered attorney work product, and
Purchaser shall have no obligation to cause any such tests or studies to be performed on the
Property. If such reports, tests or studies indicate the existence or reasonable



7









 







potential existence of any environmental, hazardous waste or hazardous substance contamination
of any portion of the Property in levels which would violate applicable laws and require
remediation, Seller may terminate this Agreement by giving written notice to Purchaser within ten
(10) business days after Purchaser confirms such contamination and its remediation consequences and
provides Seller with copies of such reports, tests or studies. Upon such termination, the Deposit
shall be promptly returned to Purchaser and neither Purchaser nor Seller shall have any further
obligations under this Agreement, except such obligations of the parties that expressly survive the
termination of this Agreement.



               (d) Reporting. Notwithstanding Purchaser’s obligations pursuant to Section 4.5, in
the event that Purchaser’s Phase II Activities or any other of Purchaser’s due diligence activities
give rise to environmental, health or safety information that must be reported to any governmental
agency, Seller shall be immediately informed of the issue and shall be solely responsible for
making any necessary disclosures; provided however that if Seller does not make such disclosures
within a reasonable time period, Purchaser may make any disclosure required to enable it to comply
with applicable laws.



          4.3. Inspection Period.



               (a) Inspection and Right to Terminate. On the Effective Date, Purchaser shall have
the right promptly to commence and actively pursue its due diligence inspections of the Property,
including its review of the condition of title to the Real Property as described in Section 5
below. From and after the Effective Date, Seller shall allow Purchaser and its agents and
consultants reasonable continuing access to Seller’s files located at the Property during business
hours to review and copy, at Purchaser’s expense: (i) financial reports and records of Seller
relating to the Property; (ii) tenant files and correspondence relating to the Property or the
Leases; and (iii) other data in Seller’s possession or control directly related to the Property
(exclusive of any appraisals, internal financial projections or valuation reports). Purchaser
agrees that neither it nor its agents will communicate with any tenants of the Property without
Seller’s prior consent, which consent shall not be unreasonably withheld, conditioned or delayed.
In the event that Purchaser’s due diligence shall reveal any matters which are not acceptable to
Purchaser in Purchaser’s sole and absolute discretion for any reason or for no reason, Purchaser
may elect not to proceed with this purchase, in which event this Agreement shall terminate, the
Initial Deposit shall be returned to Purchaser and this Agreement shall be null and void without
recourse to either party hereto (except to the extent such recourse arises in connection with a
provision of this Agreement which expressly survives termination). In the event Purchaser in its
sole discretion is satisfied with and/or waives any objections to its due diligence inspection of
the Property and desires to proceed with the purchase of the Property pursuant to this Agreement,
Purchaser shall do all of the following prior to the expiration of the Inspection Period
(collectively, “Purchaser’s Approval”): (i) send written notice of approval to Seller by facsimile
transmission, with a copy thereof to Title Company, which notice shall also identify which of the
Contracts Purchaser agrees to assume at Closing; and (ii) deposit the Additional Deposit with the
Title Company in immediately available funds not later than one (1) business day after Purchaser’s
Approval. If Purchaser timely provides Purchaser’s Approval in accordance with the foregoing, the
entire Deposit shall become nonrefundable for any reason (except as expressly otherwise provided in
this Agreement) and shall thereafter constitute liquidated damages in the event of a Purchaser
default as set forth in Section 3. If Purchaser fails



8









 







for any reason to timely provide Purchaser’s Approval in strict accordance with the foregoing,
then Purchaser shall be deemed to have elected not to proceed with this purchase and the Initial
Deposit shall be promptly returned to Purchaser.



               (b) Acknowledgment and Waiver. Purchaser acknowledges that, pursuant to the terms of
this Agreement, Purchaser shall be afforded a full opportunity to inspect the Property, review all
land use and other governmental restrictions and entitlements, observe the Property’s physical
characteristics and existing conditions and conduct such other investigations and studies on and of
said Property as it deems necessary and that, if Purchaser delivers the Purchaser’s Approval
pursuant to this Section 4.3, Purchaser shall be deemed to have waived on the expiration of the
Inspection Period any and all objections to or complaints (including, but not limited to, Federal,
State or common law based actions and any private right of action under State and Federal law to
which the Property is or may be subject, including but not limited to, CERCLA and RCRA) regarding
the physical characteristics and existing conditions of the Property, including, without
limitation, potential building defects, structural and geologic conditions, subsurface soil, gas
and water conditions and solid and hazardous waste and hazardous substances on, under, adjacent to
or otherwise affecting the Property. Purchaser further hereby assumes the risk of changes in
applicable laws and regulations relating to past, present and future environmental conditions on
the Property and the risk that adverse physical characteristics and conditions, including, without
limitation, the presence of hazardous substances or other contaminants, may not have been revealed
by its investigation.



          4.4. Termination And Return Of Property. If this Agreement is terminated for any
reason whatsoever, Purchaser shall promptly deliver to Seller the original and any copies of all
documents, plans, surveys, contracts, agreements, materials and the like delivered to Purchaser or
Purchaser’s agents, representatives or designees by Seller or Seller’s agents, representatives or
employees, or copied by Purchaser or Purchaser’s agents pursuant to this Agreement, unless the same
is needed in an action against Seller in connection with an alleged or actual default hereunder.



          4.5. Confidentiality. Each party hereto agrees to maintain in confidence, and not to
discuss with or to disclose to any person or entity who is not a party to this Agreement, any
material term of this Agreement or any aspect of the transactions contemplated hereby, except as
provided in this Section 4.5. Seller and Purchaser may publicly disclose the existence of this
Agreement provided that the identity of Purchaser and the Purchase Price is not disclosed (except
as may be required by applicable Securities and Exchange Commission rules as noted below).
Purchaser shall not disclose to anyone other than the Purchaser Parties and Purchaser’s attorneys,
partners, investors and financiers any information disclosed by Seller to Purchaser which is not
generally known by the public regarding Seller’s operations and/or the Property. Notwithstanding
the foregoing, each party hereto may discuss with and disclose to its accountants, attorneys,
existing or prospective lenders, investors, investment bankers, underwriters, rating agencies,
partners, consultants and other advisors to the extent such parties reasonably need to know such
information and are bound by a confidentiality obligation identical in all material respects to the
one created by this Section 4.5. Additionally, each party may discuss and disclose such matters to
the extent necessary for such party, such party’s affiliates or any entity advised by such party’s
affiliates to comply with any requirements of the Internal Revenue Service and the Securities and
Exchange Commission, the New York Stock Exchange



9









 







or any similar agency or body, or in order to comply with any other applicable laws or court
order, except as provided in Section 4.2(d). This provision shall survive termination of this
Agreement for a period of two (2) years. Any press release to be made regarding any matter which
is the subject of the confidentiality obligation created in this Section 4.5 shall be subject to
the reasonable approval of Purchaser and Seller, both as to timing and content.



     5. Title and Survey; Title Objections.



          5.1. Title Policy and Survey. Purchaser acknowledges that Seller has ordered from the
Title Company, and Seller agrees promptly to deliver or otherwise make available to Purchaser, a
title commitment for the Real Property (the “Commitment”) and, if available, a legible copy of each
of the underlying recorded documents referenced therein, which Commitment will form the basis of
Title Company’s issuance of its extended coverage Owner’s form title insurance policy (ALTA 1970
form) (“Owner’s Title Policy”) to Purchaser. At or prior to Closing, each Seller shall provide to
Title Company such reasonable and customary owner’s affidavits and indemnities for mechanics’
liens, in each case as may be required by the Title Company to issue the Owner’s Title Policy. As
soon as practicable following the Effective Date, Purchaser shall have the right to obtain an ALTA
as-built survey of the Real Property from a reputable surveyor company licensed to do business in
the state in which the Real Property is located (the “Surveyor”) complying with the requirements,
and containing the certification, set forth in Exhibit M (the “Updated Survey”).



          5.2. Title. Title to the Real Property shall be conveyed from each of BWDC and BWS to
Purchaser by special warranty deeds (the “Deeds”), in the form of Exhibit G hereto. Title
to the Real Property shall be conveyed to Purchaser free and clear of all liens and encumbrances
except the following which title shall be taken subject to: (i) non-delinquent liens to secure
payment of real estate taxes and assessments; (ii) applicable zoning and use laws, ordinances,
rules and regulations of any municipality, township, county, state or other governmental agency or
authority; (iii) all matters that are disclosed by the Updated Survey; (iv) any exceptions or
matters created by Purchaser or any of its architects, engineers, consultants, agents, employees,
and/or representatives; (v) all other exceptions of record appearing in the Commitment to which
Purchaser does not object in writing prior to expiration of the review periods set forth in Section
5.3 below; and (vi) the standard printed exceptions and conditions in the ALTA owner’s extended
form (1970) policy of title insurance which are not to be removed by endorsement or affidavits
requested by Purchaser pursuant to Section 5.3 below. The foregoing exceptions to title are
collectively referred to as the “Permitted Exceptions”. Conclusive evidence of delivery of title
in accordance with the foregoing shall be the willingness of Title Company to issue to Purchaser at
Closing, upon payment of its regularly scheduled premium, the Owner’s Title Policy in the amount of
the Purchase Price, showing fee simple title to the Property vested of record in Purchaser, subject
only to the Permitted Exceptions.



          5.3. Title Objections. If the Commitment, the underlying documents referenced therein
or the Updated Survey discloses any title exceptions to which Purchaser objects, Purchaser shall
notify Seller in writing of its objections (each, a “Title Objection”) not later than 5:00 p.m.
(P.D.T.) on the fifth (5th) business day after Purchaser’s receipt of the last to be received of
the Commitment, the underlying title documents and the Updated Survey (“Title Objections Notice”);
provided, however, that Purchaser’s Title Objections Notice, if any, must



10









 







be delivered to Seller not less than four (4) business days prior to the expiration of the
Inspection Period. Seller shall have three (3) business days from the receipt of the Title
Objections Notice to notify Purchaser in writing whether Seller commits to cause any or all of the
title exceptions to which Purchaser has objected to be removed or insured against at Closing. At
or before the Closing, Seller shall remove all monetary liens of any existing deed of trust or
mechanics’ lien affecting the Property (except for those described in clause (iv) of Section 5.2
above), and such matters shall in no event be considered Permitted Exceptions. If Seller commits
to remove or provide insurance against any Title Objection, then the removal of or insurance
against such item(s) shall be a condition to Purchaser’s obligation to Close and Purchaser shall be
deemed to have approved title to the Property, provided, however, that if Seller elects to insure
over a Title Objection, then Purchaser shall have the right in its sole discretion to approve the
manner in which Seller proposes to insure over said Title Objection. If Seller does not so commit
to remove or insure against each of the Title Objections, Purchaser’s sole remedy shall be either
(i) to proceed with this transaction and purchase the Property, subject to any Title Objections
that Seller has not committed to remove or insure over, by giving notice of same to Seller prior to
the expiration of the Inspection Period, or (ii) to elect not to proceed with this purchase and
terminate this Agreement, in which event this Agreement shall terminate, the Initial Deposit shall
be returned to Purchaser and neither Seller nor Purchaser shall have any further obligations under
this Agreement, except such obligations of the parties that expressly survive the termination of
this Agreement. In the event that Purchaser fails to give notice of its intent to proceed with the
Closing in accordance with the immediately preceding sentence, then this Agreement shall be deemed
terminated and the Initial Deposit shall be promptly returned to Purchaser.



     6. Condemnation or Casualty.



          6.1. Condemnation. If, at any time after the Effective Date but prior to Closing, a
proceeding is instituted for the taking of all or any material portion of the Property under the
power of eminent domain (a “Taking”), then Purchaser shall have the right by giving written notice
to Seller and Title Company within ten (10) business days after the date of Purchaser’s receipt of
written notice of any such Taking to terminate this Agreement effective as of the date such notice
of termination is given. Seller shall give Purchaser prompt written notice of any such Taking. A
material portion of the Property shall mean that any material portion of the net rentable area or
parking associated with the Real Property is taken or access to the Property is materially and
adversely affected, permanently. If Purchaser fails to give such notice within such applicable ten
(10) business day period, then Purchaser shall be deemed to have elected to consummate the purchase
of the Property in accordance with this Agreement, in which event Seller shall assign to Purchaser
at Closing any award payable by reason of the Taking. The Closing Date, as such term is defined
below, shall be postponed, if necessary, to permit Purchaser to have the ten (10) business day
period following expiration of the Inspection Period or the date of receipt of notice of a Taking
(as the case may be) to make the election specified hereinabove. If Purchaser terminates this
Agreement pursuant to this Section 6.1, then the Deposit shall be returned promptly to Purchaser
and neither Seller nor Purchaser shall have any further obligations under this Agreement, except
such obligations of the parties that expressly survive the termination of this Agreement.



11









 





          6.2. Casualty.



               (a) Minor Damage. In the event of damage to the Property or any portion thereof prior
to Closing caused by any casualty that is not “major” (as hereinafter defined), this Agreement
shall remain in full force and effect provided Seller performs any necessary repairs or, at
Seller’s option, assigns to Purchaser all of Seller’s right, title and interest to any claims and
proceeds Seller may have with respect to any casualty insurance policies relating to the Property;
provided, however, that if Seller does not have any right, title and interest to any claims or
proceeds and Seller does not elect to repair any damages using its own funds, then within ten (10)
days of Purchaser’s receipt of notice from Seller regarding the foregoing and Seller’s intent not
to repair any damages, Purchaser shall have the right to terminate the Agreement. If Purchaser
terminates this Agreement pursuant to this Section 6.2(a), then the Deposit shall be returned
promptly to Purchaser and neither Seller nor Purchaser shall have any further obligations under
this Agreement, except such obligations of the parties that expressly survive the termination of
this Agreement. In the event that Seller performs repairs upon the Property, Seller shall use
commercially reasonable efforts to complete such repairs promptly and the Closing Date shall be
extended for a reasonable time in order to allow the completion of such repairs. If Seller assigns
the claims and proceeds to Purchaser, the Purchase Price shall be reduced by an amount equal to the
lesser of the cost of repair or the deductible amount under Seller’s insurance policy; provided, in
the event of an uninsured loss or damage, the Purchase Price shall be reduced by an amount equal to
the cost of repair. Upon Closing, full risk of loss with respect to the Property shall pass to
Purchaser.



               (b) Major Damage. In the event of a “major” loss or damage, Seller shall have the
option either to (a) perform any necessary repairs prior to Closing, or (b) assign to Purchaser at
Closing all of Seller’s right, title and interest to any claims and proceeds Seller may have with
respect to any casualty insurance policies relating to the Property. Seller shall notify Purchaser
of its election with respect to the above two remedies in writing, and within ten (10) days
thereafter, Purchaser may terminate this Agreement by written notice to Seller. If Purchaser
terminates this Agreement pursuant to this Section 6.2(b), then the Deposit shall be returned
promptly to Purchaser and neither Seller nor Purchaser shall have any further obligations under
this Agreement, except such obligations of the parties that expressly survive the termination of
this Agreement. If Purchaser does not timely terminate this Agreement as provided above, then
Purchaser shall be deemed to have elected to proceed with Closing. In the event that Seller
performs repairs upon the Property, Seller shall use reasonable efforts to complete such repairs
promptly and the Closing Date shall be extended for a reasonable time in order to allow the
completion of such repairs. If Seller assigns the claims and proceeds to Purchaser, the Purchase
Price shall be reduced by an amount equal to the lesser of the cost of repair or the deductible
amount under Seller’s insurance policy; provided, in the event of an uninsured loss or damage, the
Purchase Price shall be reduced by an amount equal to the cost of repair. Upon Closing, full risk
of loss with respect to the Property shall pass to Purchaser.



               (c) Definition of “Major” Loss or Damage. For purposes of Sections 6.2(a) and 6.2(b),
“major” loss or damage refers to loss or damage to the Property or any portion thereof such that
(A) it would permit any Major Tenant (as defined below) to terminate its Lease or (B) the cost of
repairing or restoring the Property to a condition substantially similar to that of the Property in
question prior to the event of damage would be, in the opinion of a general contractor selected by
Seller and reasonably approved by Purchaser, equal to or greater than One Million Dollars
($1,000,000.00).




12










 





     7. Representations and Warranties.



          7.1. Seller’s Knowledge. As used in this Agreement, the term “Seller’s Knowledge”
means only the current actual personal knowledge of Timothy P. Treadway, Chief Executive Officer,
Bill R. Poland, Chairman, Cynthia Sundby, Vice President-Operations, Kelly Michaels, President, and
Chris Peterson, Vice President-Controller (collectively, “Seller’s Representatives”), without any
duty of further inquiry or investigation beyond the matters and facts of which they are personally
aware as of the date hereof (except that Seller’s Representatives shall have a duty to inquire of
Brian Straker, the Building Engineer, with respect to the Seller’s Knowledge matters), and such
term shall not include the knowledge of any other person or firm, it being understood by Purchaser
that (i) Seller’s Representatives are not charged with knowledge of any of the acts or omissions of
predecessors in title to the Property or the operation or management of the Property before
Seller’s acquisition of the Property unless they are actually and personally aware of such matters,
and (ii) Seller’s Knowledge shall not apply to, or be construed to include, information or material
which may be in the possession of Seller or its employees or agents, generally or incidentally, but
of which Seller’s Representatives are not actually and personally aware. Seller hereby represents
that Seller’s Representatives are the employees of Seller and/or Seller’s affiliates who, as a
result of their responsibilities and duties with respect to one or more aspects of Seller’s
interests in the Property, are the persons responsible for being aware of, and being kept informed
of, the facts and circumstances pertinent to the representations and warranties made by Seller in
this Agreement.



          7.2. Seller’s Representations and Warranties. Seller hereby makes the representations
and warranties set forth below as of the date of this Agreement and, subject to matters contained
in any notice given pursuant to the next succeeding sentence, as of Closing. If Seller learns of,
or has a reason to believe that any of the representations and warranties contained in this Section
7.2 may cease to be true, Seller shall give prompt written notice (a “Change Notice”) to Purchaser
(which notice shall include a copy of the instrument, correspondence or document, if any, upon
which Seller’s notice is based) and, in such event, the applicable representations and warranties
shall be deemed to be modified to include the information set forth in such Change Notice. In the
event that Seller delivers a Change Notice to Purchaser at any time after the expiration of the
Inspection Period of any materially adverse change in any of the representations and warranties
contained in this Section 7.2, Purchaser shall have the right, by written notice delivered to
Seller within five (5) business days after receipt of Seller’s Change Notice, to terminate this
Agreement and, in such event, the Deposit shall be promptly returned to Purchaser and neither
Purchaser nor Seller shall have any further obligations under this Agreement, except such
obligations of the parties that expressly survive the termination of this Agreement.



               (a) Condemnation. Seller has not received written notice of any eminent domain or
condemnation actions pending against the Property or any part thereof, or being contemplated that
would affect the Property or any part thereof.



               (b) Legal Proceedings. Seller has not received written notice of any legal actions or
proceedings in any court pending or threatened against Seller that may affect the Property.



13









 





               (c) Leases. Other than the Leases identified on Exhibit D attached hereto,
there are no oral and/or written existing leases, rental agreements, concession agreements,
licenses or other space occupancy agreements regarding the Property. To Seller’s Knowledge, Seller
has not received any written notice of any default by Seller with respect to the Leases which
remains uncured.



               (d) Due Authorization. Seller has been duly authorized to execute and perform its
obligations under this Agreement. The persons signing this Agreement on behalf of Seller have the
power and authority to do so and to bind Seller to this Agreement. This Agreement is, and all the
other instruments, agreements and other documents executed by Seller which are to be delivered to
Purchaser at Closing are and at the time of Closing will be, duly authorized, executed and
delivered by Seller, and will be the valid and binding agreements and obligations of Seller
enforceable in accordance with their respective terms.



               (e) Non-Foreign Person. Seller is not a foreign person as defined in Internal Revenue
Code Section 1445(f)(3).



               (f) No Conflict. The execution and delivery of this Agreement, and the sale and
conveyance of the Property contemplated hereby, do not and will not (a) violate the terms of any
order, writ or decree of any court or judicial or regulatory authority or body binding upon Seller,
or the charter or governing instruments of Seller, (b) conflict with or result in a breach of any
condition or provision or constitute a default under or pursuant to the terms of any contract,
mortgage, lien, lease, agreement, debenture or instrument to which Seller is a party, or which is
or purports to be binding upon Seller or upon the Property, or (c) to Seller’s Knowledge, violate
any rule, regulation, statute or law applicable to Seller.



               (g) Transferable. There are no Improvements, or, to Seller’s Knowledge, rights and
privileges described in Section 1.2(c), Contracts or Personal Property which are owned by Seller
and not transferable; provided, however, that in the case of the existing roof warranty, such
warranty is transferable only upon payment by Purchaser of the applicable transfer fee set forth in
such warranty.



               (h) No Other Rights to Acquire the Property. Except for any contingent back-up offers
Seller may enter into after the date of this Agreement that are subordinate to Purchaser’s rights
under this Agreement, Seller has not granted, and to Seller’s Knowledge, no other person or entity
has an executory contract, option to purchase, right of first refusal, right of first offer or any
similar right to acquire all or any portion of the Property.



               (i) Seller’s Due Diligence Materials. The Seller’s Due Diligence Materials delivered
to Purchaser are true, accurate and complete copies of such materials.



               (j) Hazardous Materials. Except as disclosed by any of the environmental documents
listed on Exhibit K or in any other documents delivered to or made available by Seller for
Purchaser’s review, to Seller’s Knowledge, during Seller’s ownership of the Property, the Property
has not been used for the production, storage, deposit or disposal of hazardous materials,
hazardous substances, hazardous waste, or other contaminants in violation of any applicable
environmental laws and Seller has not received any written notice from any



14









 







applicable governmental authority that any such materials, substances, waste, or contaminants
have been placed or located on, under, or about the Real Property in violation of any applicable
environmental laws.



               (k) Bankruptcy. 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.



               (l) Violations of Laws. Seller has not received any written notice from any
governmental authority of any violation of any law applicable to the Property that has not been
corrected.



               (m) Good Standing. Each entity comprising Seller has been duly organized, is validly
existing, and is in good standing in the state in which it was formed, and, if so required to, is
qualified to do business in the state in which the Real Property is located.



               (n) OFAC. Neither entity comprising Seller is a Prohibited Party (as defined below)
or is owned or controlled by, or is acting, directly or indirectly, for or on behalf of, any
Prohibited Party. As used herein, “Prohibited Party” shall mean (a) any person or entity that is
listed on the Specially Designated Nationals and Blocked Persons List maintained by the Office of
Foreign Assets Control, U.S. Department of the Treasury (“OFAC”), any list promulgated pursuant to
Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 25, 2001) or any other similar list maintained
by OFAC pursuant to any authorizing statute, Executive Order or regulation; or (b) any person with
whom a citizen of the United States is otherwise prohibited from engaging in transactions by any
trade embargo, economic sanction or other prohibition under United States law, including but not
limited to, the International Emergency Economic Powers Act, 50 U.S.C. §1701 et
seq., the Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any
Executive Orders and regulations promulgated thereunder.



          7.3. Limitations On Seller’s Representations, Warranties, and Covenants. In the event
of any breach by Seller of any of the preceding representations or warranties which is discovered
prior to Closing, Purchaser shall (i) promptly advise Seller of such breach following Purchaser’s
discovery of such breach, and (ii) cooperate with Seller, at no out-of-pocket expense to Purchaser,
in mitigating any damage to Purchaser from such breach. In the event of any breach by Seller of
any of such representations or warranties discovered after Closing, Seller shall be liable only for
any direct or actual damages suffered by Purchaser on account of Seller’s breach. Any liability of
Seller hereunder for breach of any such representations or warranties shall be limited to (a) a
claim or claims in excess of an aggregate of $50,000.00 that are asserted no later than nine (9)
months from the Closing Date (as defined in Section 9.1 below), and (b) a maximum aggregate amount
of $1,250,000.00. Notwithstanding the foregoing, Seller shall have no liability based on matters
disclosed to Purchaser in any of the Seller’s Due Diligence Materials or in any other information,
documents or materials that are provided to or otherwise made available to Purchaser in accordance
with Section 4. In no event



15









 







shall Seller be liable for any indirect or consequential damages on account of Seller’s breach
of any representation or warranty contained in this Agreement. Additionally, notwithstanding the
foregoing or the provisions of Section 13.3 below, if Purchaser becomes aware prior to the Closing
that any representation or warranty hereunder is untrue, or any covenant or condition to Closing
hereunder has not been fulfilled or satisfied (if not otherwise waived by Purchaser), and Purchaser
nonetheless proceeds to close its purchase of the Property, then Purchaser shall be deemed to have
irrevocably and absolutely waived, relinquished and released all rights and claims against Seller
for any damage or other loss arising out of or resulting from such untrue representation or
warranty or such unfulfilled or unsatisfied covenant or condition. Notwithstanding anything in
this Section 7.3 to the contrary, no cap or limit shall be applicable to purchase price adjustments
(for prorations or otherwise) or for the failure to pay any broker’s fees.



          7.4. Purchaser’s Representations and Warranties. Purchaser hereby makes the following
representations and warranties as of the date of this Agreement and as of Closing:



               (a) Due Authorization. Purchaser has been duly authorized to execute and perform its
obligations under this Agreement. The persons signing this Agreement on behalf of Purchaser have
the power and authority to do so and to bind Purchaser to this Agreement. All the instruments,
agreements and other documents executed by Purchaser which are to be delivered to Seller at Closing
are and at the time of Closing will be duly authorized, executed and delivered by Purchaser.



               (b) Legal Proceedings. To Purchaser’s current actual knowledge, Purchaser has not
received written notice of any legal actions or proceedings in any court pending against Purchaser
that affect Purchaser’s ability to purchase the Property.



               (c) No Consents. No consent to the sale and conveyance of the Property by Seller to
Purchaser is required to be obtained from any governmental agency or public administrative body or
any other person or entity.



               (d) No Conflict. The execution and delivery of this Agreement, and the purchase of
the Property contemplated hereby, do not and will not (a) violate the terms of any order, writ or
decree of any court or judicial or regulatory authority or body binding upon Purchaser or the
charter or governing instruments of Purchaser, (b) conflict with or result in a breach of any
condition or provision or constitute a default under or pursuant to the terms of any contract,
mortgage, lien, lease, agreement, debenture or instrument to which Purchaser is a party, or which
is or purports to be binding upon Purchaser, or (c) to Purchaser’s actual current knowledge,
violate any rule, regulation, statute or law applicable to Purchaser.



     8. Disclaimer; Release And Indemnification Of Seller.



          8.1. Disclaimer Of Warranties; “As Is” Purchase. Purchaser acknowledges that it will
have had an opportunity to conduct due diligence inspections of the Property and will acquire the
Property in its current condition based on its due diligence inspections. Subject to Section 7.2,
and any certificates delivered at Closing with respect to same, Purchaser acknowledges and agrees
that the Property is to be conveyed by Seller to Purchaser “as is, with



16









 







all faults,” and substantially in its current condition. Subject to Section 7.2, and any
certificates delivered at Closing with respect to same, Purchaser further acknowledges and agrees
that, except for the representations and warranties by Seller set forth in Section 7.2 above and in
any closing certificate or document, the sale of the Property to Purchaser is made without any
warranty or representation of any kind by Seller, either express or implied or arising by operation
of law, and Seller shall have no liability with respect to the value, uses, habitability,
merchantability, condition, design, operation, rents, financial condition or prospects, or fitness
for purpose or use of the Property (or any part thereof), or any other aspect, portion or component
of the Property, including: (i) the physical condition, nature or quality of the Property,
including the quality of the soils, groundwater, and air on, under, around and affecting the
Property and the quality of the labor and materials included in any improvements, fixtures,
equipment or personal property comprising a portion of the Property; (ii) the fitness of the
Property for any particular purpose; (iii) the presence or suspected presence of hazardous
materials on, in, under or about the Property (including the soils, groundwater, and air on, under,
around and affecting the Property); and (iv) existing or proposed governmental laws or regulations
applicable to the Property or the further development or change in use thereof, including
environmental laws and laws or regulations dealing with zoning or land use. Subject to Section
7.2, and any certificates delivered at Closing with respect to same, Seller shall have no liability
for any latent, hidden, or patent defect as to the Property or the failure of the Property, or any
part thereof, to comply with any applicable laws and regulations. In particular, Purchaser
acknowledges and agrees that the Property information made available to Purchaser under this
Agreement (and any other information Purchaser may have obtained regarding in any way any of the
Property, including without limitation, its operations or its financial history or prospects from
Seller or its agents, employees or other representatives) is delivered to Purchaser as a courtesy,
without representation or warranty as to its accuracy or completeness and not as an inducement to
acquire the Property; that nothing contained in any deliveries of Property information shall
constitute or be deemed to be a guarantee, representation or warranty, express or implied, in any
regard as to any of the Property; and that Purchaser is relying only upon the provisions of this
Agreement and its own independent assessment of the Property and its prospects in determining
whether to acquire the Property.



_________________

Purchaser’s Initials




          8.2. Release Of Seller. Except as specifically provided in this Agreement or under
any of the documents delivered at Closing, Seller and its principals, agents and employees are
hereby released from all responsibility and liability regarding the valuation, saleability,
physical condition or utility of the Property, or its suitability for any purpose whatsoever;
provided, however, the foregoing waiver and release shall not apply with respect to any claims,
demands, penalties, fines, liabilities, settlements, damages, costs or expenses, known or unknown,
existing and future, incurred in connection with or relating to any claims related to the property
accruing prior to the Closing Date that are made by third parties for personal injury, property
damage or death. Purchaser acknowledges that any information of any type which Purchaser has
received or may receive from Seller, its property manager or their respective agents, including,
without limitation, any environmental reports and surveys, is furnished on the express condition
that Purchaser shall make an independent verification of the accuracy of such information, all such
information being furnished without any warranty whatsoever, except for



17









 





the representations and warranties contained in Section 7.2. The first sentence
notwithstanding, the foregoing release shall not be applicable to any claims by Purchaser based on
the intentional failure of Seller to disclose to Purchaser material, adverse information within
Seller’s Knowledge relating to the ownership, operation, management or condition of the Property.
The provisions of this Section 8.2 shall survive Closing.



          8.3. Indemnifications. Intentionally Deleted.



          8.4. Flood Hazard Zone. Purchaser acknowledges that if the Real Property is located
in an area which the Secretary of the Department of Housing and Urban Development has found to have
special flood hazards, then pursuant to the National Flood Insurance Program, Purchaser will be
required to purchase flood insurance in order to obtain a loan secured by the Real Property from
any federally regulated financial institution or a loan insured or guaranteed by an agency of the
United States government. Seller shall have no responsibility to determine whether the Real
Property is located in an area which is subject to the National Flood Insurance Program.



     9. Closing.



          9.1. Closing. Subject to the satisfaction or waiver of the parties’ respective
conditions to Closing set forth in Sections 9.4 and 9.5, the transaction contemplated by this
Agreement shall be consummated through an escrow at the office of Title Company on or prior to June
22, 2007 (the “Closing Date”), provided that all conditions to Closing have been met by Seller.
Purchaser hereby acknowledges that Purchaser may be required by Title Company to wire funds into
escrow on the business day before the Closing Date. For purposes of this Agreement, the term
"Closing” shall mean the consummation of the sale and conveyance of the Property to Purchaser as
evidenced by recordation of the Deed. Purchaser acknowledges that Seller is required to defease
the existing securitized loan on the Property (the “Loan”) in order to deliver title to the
Property free and clear of the lien of the existing deed of trust on the Real Property. In
connection with such defeasance, Purchaser agrees to cooperate in good faith with all usual and
customary requirements imposed by the master loan servicer(s), bond trustee(s) and ratings
agency(ies) for such defeasance transaction so long as Purchaser is not required to make any
disclosures about Purchaser nor incur any additional liability or expense in so doing. The parties
shall close the transaction in accordance with the three-day closing process required by the
servicer for the Loan, which process is generally described below. Upon receipt of the Purchaser’s
Approval, Seller shall engage a defeasance coordinator and shall provide Purchaser with an outline
of the three-day closing process required to defease the Loan. Notwithstanding anything to the
contrary in this Section 9, the Closing Date shall be Day Three (as described in Section 9.1(c)
below), which shall be the date possession of the Property is delivered to Purchaser.



               (a) Day One. Purchaser and Seller shall execute and deliver to Title Company all
documents necessary to close the sale of the Property, including documents necessary to release the
Property from the lien securing the Loan. Seller shall cause its defeasance coordinator to set up
a conference call involving Seller, Seller’s attorney, Purchaser, Purchaser’s attorney, Purchaser’s
lender (if any), and the Title Company’s escrow officer to confirm that all conditions for funding
the purchase of the Property on Day Two (as described in



18









 







Section 9.1(b) below) have been satisfied. Purchaser shall cause its lender and attorney to
participate in this call.



          (b) Day Two. Purchaser shall deliver to Title Company all funds necessary to close
the sale of the Property, including the balance of the Purchase Price. Purchaser’s lender, if any,
shall fund the new loan on this date notwithstanding the fact that the lien of the Loan will not be
released and the deed of trust evidencing Purchaser’s new loan will not be recorded until Day
Three. Purchaser shall, however, receive a credit at Closing for the interest that accrues on the
amount funded under Purchaser’s new loan from Day Two until Closing.



          (c) Day Three. After receiving confirmation of delivery to an intermediary of the
securities being used to defease the Property, Title Company shall disburse that portion of the
funds deposited into escrow that are necessary to purchase the replacement securities required to
defease the Loan. After receiving confirmation of the purchase of these replacement securities,
Title Company shall proceed to close the sale transaction contemplated by this Agreement by
recording the reconveyance documents relating to the Loan, the Deed and any loan documents relating
to the Purchaser’s new loan and disbursing the sales proceeds in accordance with the approved
estimated closing statement of the parties.



          9.2. Seller’s Delivery Into Escrow. Prior to Closing, Seller shall deliver the
following items into escrow with Title Company, each of which shall be duly executed and
acknowledged as appropriate:



               (a) Deeds. Separate Deeds, duly executed and acknowledged by each of BWDC and BWS.



               (b) Bills of Sale. Separate Bills of Sale duly executed by each of BWDC and BWS.



               (c) Assignments of Contracts. Separate Assignments of Contracts, duly executed by
each of BWDC and BWS, as applicable.



               (d) Assignments and Assumption of Leases. Separate Assignments and Assumption of
Leases, duly executed by each of BWDC and BWS, as applicable.



               (e) Affidavits Of Non-Foreign Status. An Affidavit of Non-Foreign Status in the form
attached hereto as Exhibit H, duly executed by each of BWDC and BWS.



               (f) Real Estate Excise Tax Affidavits. A Washington Real Estate Excise Tax Affidavit
(“Excise Tax Affidavit”) to be filed with respect to each of the Deeds, duly executed by each of
BWDC and BWS.



               (g) Tenant Estoppels. The Estoppel Certificates (as defined in Section 9.4 below).



               (h) Tenant Notice. A written notice from Seller to the tenants in the form of
Exhibit I attached hereto (“Tenant Notice”).



19









 





               (i) Termination of Current Management Agreement. Effective as of Closing, Seller
shall terminate without cost to Purchaser the current Property Management Agreement and deliver
evidence of such termination to Purchaser.



               (j) Other Documents. Such other documents or instruments as may be reasonably
required to consummate this transaction in accordance with the terms and conditions of this
Agreement, such as appropriate escrow instructions to Title Company.



          9.3. Purchaser’s Delivery Into Escrow. Purchaser shall deliver the following items
into escrow with Title Company:



               (a) Cash. Immediately available funds in the following amounts: (i) the balance of
the Purchase Price; and (ii) such amount, if any, as is necessary for Purchaser to pay Purchaser’s
share of the closing costs and prorations specified in Sections 9.6 and 9.7 below.



               (b) Assignments of Contracts. The Assignments of Contracts, duly executed by
Purchaser.



               (c) Assignments and Assumption of Leases. The Assignments and Assumption of Leases,
duly executed by Purchaser.



               (d) Excise Tax Affidavits. The Excise Tax Affidavits, duly executed by Purchaser.



               (e) Tenant Notice. The Tenant Notice, duly executed by Purchaser.



               (f) Other Documents. Such other documents and instruments as may be reasonably
required in order to consummate this transaction in accordance with the terms and conditions of
this Agreement, such as appropriate escrow instructions to Title Company.



          9.4. Estoppel Certificates. Seller shall request and use commercially reasonable
efforts to deliver to Purchaser duly executed estoppel certificates (the “Estoppel Certificates”)
substantially in the form of Exhibit J attached hereto or otherwise reasonably approved by
Purchaser from 100% of the tenants of the Property. It shall be a condition to Closing that Seller
deliver to Purchaser, no later than the date that is six (6) business days prior to the Closing
Date, Estoppel Certificates from: (i) those tenants of the Property who each lease more than 15,000
square feet of net rentable area (the “Major Tenants”), provided that Seller may, at its election,
deliver estoppel certificates executed by Seller (“Seller’s Estoppel Certificates”) for up to
twenty five percent (25%) of the Major Tenants (by number); and (ii) a sufficient number of
additional tenants so that Purchaser receives Estoppel Certificates from tenants who, in the
aggregate (i.e., together with the Major Tenants who deliver executed Estoppel Certificates), lease
not less than eighty-five percent (85%) of the net rentable area of the Property, provided that
Seller may, at its election, deliver Seller’s Estoppel Certificates for tenants (inclusive of Major
Tenants, but subject to the twenty-five percent (25%) limitation set forth in (i) above) leasing up
to a total of 60,000 square feet of net rentable area of the Property. Seller hereby agrees to
deliver the Estoppel Certificates to Purchaser immediately as and when received by Seller. Seller
shall have no obligation to obtain any other form of estoppel



20









 







certificate from the tenants, nor
shall receipt of any other form be a condition to Closing. The
immediately preceding sentence notwithstanding, Seller shall cooperate with Purchaser and any
lender of Purchaser in obtaining such subordination, non-disturbance and attornment agreements as
Purchaser’s lender may request. Seller shall deliver the Estoppel Certificates to the tenants
(with a copy to Purchaser) not later than thirty (30) days after the expiration of the Inspection
Period and shall ask each tenant to execute and deliver its Estoppel Certificate as soon as
possible after receipt thereof; provided, however, Purchaser shall not be required to accept any
Estoppel Certificate dated more than thirty (30) days prior to the Closing Date in satisfaction of
Seller’s requirements under this Section 9.4. In exercising its reasonable approval concerning the
acceptability of a tenant estoppel certificate on a form other than that prescribed by Exhibit
J, Purchaser shall accept an alternative form that provides all of the information required to
be provided by a tenant under the terms of the applicable Lease. If Seller fails to deliver to
Purchaser Estoppel Certificates (including Seller’s Estoppel Certificates) from the number of
tenants required under this Section 9.4 and otherwise meeting the requirements of this Section 9.4
by the sixth (6th) business day prior to the Closing Date, Purchaser shall have the
right to terminate this Agreement by written notice delivered to Seller not less than four (4)
business days prior to the Closing Date, in which event the Deposit shall be promptly returned to
Purchaser, and thereafter neither party shall have any further obligations hereunder except such
obligations that expressly survive the termination of this Agreement. The disclosure or expression
of any facts, claims or information by tenants in their completed Estoppel Certificates shall not
be deemed a material variation from the form required under this Section 9.4 if such facts, claims
or information: (a) were set forth in the applicable Lease(s), or (b) allege any default by, claim
against, or amount due from the landlord under the Leases representing potential losses or costs of
less than $50,000 in the aggregate. If such Estoppel Certificates ( the “Disputed Certificates”)
allege potential losses or costs of $50,000 or more in the aggregate, then Purchaser shall have the
right to terminate this Agreement by written notice delivered to Seller not less than four (4)
business days prior to the Closing Date, in which event the Deposit shall be promptly returned to
Purchaser, and thereafter neither party shall have any further obligations hereunder except such
obligations that expressly survive the termination of this Agreement. If the Disputed Certificates
allege potential losses or costs of less than $50,000 in the aggregate, then Purchaser shall have
the right to terminate this Agreement by written notice delivered to Seller not less than four (4)
business days prior to Closing; provided, however, that if Seller agrees, by written notice to
Purchaser delivered within one (1) business day after receipt of Purchaser’s notice of termination,
to either (i) cause an entity having a net worth after Closing reasonably satisfactory to Purchaser
to indemnify Purchaser against the aggregate potential losses or costs alleged in the Disputed
Certificates or (ii) credit the amount of such potential losses or costs to Purchaser at Closing,
then Purchaser’s notice of termination shall be of no force and effect and the parties shall be
obligated to proceed with the Closing. With respect to any tenant for whom Seller delivers a
Seller’s Estoppel Certificate, Seller shall be entitled to continue to deal with such tenant prior
to and after Closing to attempt to obtain an Estoppel Certificate from such tenant. If Purchaser
subsequently receives an Estoppel Certificate executed by a tenant for whom Seller has previously
delivered a Seller’s Estoppel Certificate, Seller shall thereupon be released from liability to
Purchaser under such Seller’s Estoppel Certificate to the extent that the information contained in
the tenant’s Estoppel Certificate is consistent with the information contained in the Seller’s
Estoppel Certificate.



21









 





          9.5. Conditions to Closing. Closing of the transaction contemplated by this Agreement
shall be subject to the following conditions precedent for the benefit of the respective parties,
as hereafter set forth.



               (a) Purchaser’s obligation to purchase the Property from Seller shall be subject to the
occurrence and/or satisfaction of the following conditions on or before the respective dates
specified below (or Purchaser’s written waiver thereof):




               (i) Title Policy: On the Closing Date, the Title Company shall be
unconditionally prepared and committed to issue the Owner’s Title Policy in the amount of
the Purchase Price insuring fee simple title to the Property vested in Purchaser, subject
only to the Permitted Exceptions;




               (ii) No Default by Seller: As of the Closing Date, Seller shall have made all
deliveries into escrow as required under Section 9.2 above and shall not be in default of
any material term or provision of this Agreement; and




               (iii) Seller’s Representations: All representations and warranties made by
Seller in this Agreement shall be materially true and correct as of the Closing Date.



If any of the foregoing are not satisfied or waived by Purchaser, Purchaser shall have the right to
terminate this Agreement, in which event the Deposit shall promptly be refunded to Purchaser and
thereafter neither party shall have any further obligations hereunder except such obligations that
expressly survive the termination of this Agreement.



               (b) Seller’s obligation to sell the Property to Purchaser is subject to the occurrence and/or
satisfaction of the following conditions on or before the Closing Date (or Seller’s written waiver
thereof):




               (i) Purchaser shall have made all deliveries into escrow as required under Section 9.3
above and shall not be in default of any material term or provision of this Agreement; and




               (ii) All representations and warranties made by Purchaser in this Agreement shall be
true and correct as of the Closing Date.



          9.6. Closing Prorations. At Closing, the items of income and expense of the Property
set forth below shall be prorated on the basis of a 365-day year, actual days elapsed for the month
in which Closing occurs, as of midnight on the day immediately preceding the Closing Date (the
"Adjustment Date”). Income and expenses attributable to the period prior to the Closing Date shall
be for the account of Seller, and income and expenses attributable to the period on and after the
Closing Date shall be for the account of Purchaser. The following items shall be prorated through
escrow as described above:



               (a) All current real property taxes, non-delinquent bonds or improvement assessments, general
and special, non-delinquent public or governmental charges or assessments affecting the Property
(including current assessments, liens or encumbrances for



22









 







sewer, water, drainage or other public improvements whether completed or commenced on or prior
to the date of this Agreement). If the Closing Date occurs before the tax rate or assessment is
fixed, the proration of such taxes and assessments by Title Company shall be made at Closing based
upon the most recent tax bills available.



               (b) All rental payments, additional rents, common area maintenance charges, charges for taxes
and insurance premiums or for escalation thereof, if any, and other charges payable under the
Leases (hereinafter collectively referred to as the “Rents”) received by Seller in the month in
which the Closing Date occurs shall be prorated as of the Adjustment Date. With respect to any
Rent arrearages under the Leases as of the Closing Date, such arrearages shall be treated as
delinquent rent and if collected after the Closing Date shall be prorated as provided in Section
9.6(b) (ii).




               (i) Operating Expenses. Final proration of operating expenses which are
reimbursable by any present tenant of the Property or any portion thereof shall not be
prorated hereunder (except to the extent that Seller is due a credit for having already paid
such expense). Purchaser shall send customary statements for reimbursement of operating
expenses and taxes to tenants under the Leases after consulting with Seller with respect to
appropriate amounts due therefor and shall remit to Seller, upon receipt, Seller’s prorated
share thereof, by allocating to Seller the product of the apportionable item for the entire
billing period multiplied by a fraction, the numerator of which is the number of days within
the specified billing period which occur before the Closing Date and the denominator of
which is the number of days in the specified billing period.




               (ii) Delinquent Rents. If, on the Adjustment Date, any tenant at the Property
is delinquent in the payment of any minimum or base monthly rents and/or its prorata share
of operating expenses (herein referred to as “Base Rent”), then any delinquent Base Rent
collected by Purchaser after the Closing Date shall be successively applied to the payment
of (i) Base Rent due and payable in the month in which the Closing Date occurs, which
payment shall be prorated as of the Adjustment Date and the portion due Seller shall be paid
by Purchaser to Seller, (ii) any Base Rent delinquent for any periods from and after
Closing, and (iii) Base Rent due and payable in the months preceding the month in which the
Closing Date occurs, which payment shall be promptly paid by Purchaser to Seller.




               (iii) Collection Efforts. Purchaser shall not be obligated to take any steps
to recover any Rent arrearages. If Purchaser collects any Rent arrearages that are to be
prorated between the parties as provided in this Section 9.6(b), Purchaser shall be
permitted to deduct reasonable costs of collection incurred by Purchaser. Purchaser and
Seller shall each promptly pay to the other any amount due as a result of any proration
required under this Section 9.6(b). The terms and conditions set forth in this Section
9.6(b) shall expressly survive the Closing Date.



               (c) All utilities, maintenance and service charges, and other similar expenses of the Property
shall be prorated between Seller and Purchaser as of the Adjustment



23









 







Date and, to the extent of information then available, such prorations shall be made at the
Closing.



               (d) Seller and Purchaser shall use their best efforts prior to the Closing Date to prepare a
schedule of prorations covering as many items to be prorated as practicable so such prorations can
be made at the Closing. Such prorations shall be adjusted, if necessary, and completed after the
Closing as soon as final information becomes available. Seller and Purchaser agree to cooperate
and to use their best efforts to complete such prorations no later than thirty (30) days after the
Closing Date, except for any annual reconciliation of expense reimbursements payable by a tenant
that cannot be completed until the final accounting for the year has been prepared or such other
expenses that cannot be completed until actual invoices or billings are received, which prorations
shall be completed as soon as final information becomes available. Monthly income and expense
items shall be prorated on the basis of a thirty (30) day month.



               (e) Subject to the provisions of Section 9.6(f) below, the income and expenses of the Property
for the period before the Closing Date shall be for the account of Seller and the income and
expenses for the period on and after the Closing Date shall be for the account of Purchaser.
Security deposits, other refundable deposits, and prepaid rents under the Leases shall be credited
to Purchaser and charged to Seller at the Closing. Purchaser shall promptly pay to Seller all
rents and other income under the Leases received by Purchaser after the Closing Date that are
allocable to the period before the Closing Date. Rents or other income that are not designated by
the tenant to apply to a particular time period shall be applied first to the earliest rents or
other income due from the tenant from and after Closing and then to periods prior to Closing, if
any.



               (f) Seller shall be credited at Closing for the amount of any Outstanding Reimbursables as of
the Closing Date. For purposes hereof, “Outstanding Reimbursables” means any costs and expenses
incurred by Seller prior to Closing in connection with its ownership and operation of the Property
(prorated as appropriate for expenses relating to time periods overlapping the Closing Date) that
(i) relate to time periods prior to the Closing Date, and (ii) are reimbursable by the tenant of
the Property but have not yet been reimbursed as of Closing. At Closing, Seller shall be deemed to
have assigned to Purchaser the right to collect and retain all Outstanding Reimbursables that are
credited to the Seller at Closing.



               (g) Seller shall be credited at Closing for any cash deposit delivered by Seller and held by
the City of Seattle Department of Transportation with respect to the skybridge on the Property.



               (h) Seller shall be responsible for all unpaid tenant improvement and leasing costs with
respect to Leases entered into prior to the Effective Date, including, without limitation, all
amounts due and payable to Wolfgang Puck Catering and Events, LLC pursuant to that certain
Foodservice Agreement dated as of May 31, 2006 (the “Puck Agreement”) (such amounts, collectively,
the “Tenant Amounts”), and Purchaser shall receive a credit against the Purchase Price at Closing
with respect to the Tenant Amounts; provided, however, Purchaser shall be responsible for (and
Purchaser shall not receive a credit against the Purchase Price at Closing for) any Tenant Amounts
with respect to Leases entered into after the Effective Date and



24









 







approved by Purchaser pursuant to Section 11 hereof. The foregoing notwithstanding, the term
“Tenant Amounts” shall not include the unamortized portion of the “Investment” or the “Pre-Opening
Expenses” as those terms are defined in Sections 4(d) and 4(e), respectively, of the Puck
Agreement.



          9.7. Closing Costs. Seller shall be responsible for payment of the Washington State
real estate excise tax due in connection with the transfer of the Property from Seller to
Purchaser, the portion of the premium for the Owner’s Title Policy attributable to standard owner’s
coverage and one-half of any escrow fees charged by Title Company. Purchaser shall be responsible
for payment of the additional premium for the Owner’s Title Policy attributable to extended owner’s
coverage (and any lender’s policy), including the cost of all endorsements thereto, the cost for
the Updated Survey and one-half of any escrow fees charged by Title Company. All other Closing
costs shall be paid by the party who customarily pays such costs in a commercial real estate
transaction in King County, Washington. Each party shall pay its own attorneys’ fees incurred in
connection with this Agreement or the transaction contemplated herein. Although the parties are
attributing no portion of the Purchase Price to the Personal Property, notwithstanding any other
provision of this Agreement, Purchaser shall also be responsible for any sales or use taxes
resulting from the sale to Purchaser of the Personal Property.



          9.8. Closing Procedure. Title Company shall close escrow when it is in a position to:
(i) record the Deeds; (ii) pay to Seller, by wire transfer in immediately available funds, the
amount of the Purchase Price, as such amount may be increased or decreased as a result of the
allocation of the closing costs and prorations as specified in Sections 9.6 and 9.7; and (ii) issue
to Purchaser the Owner’s Title Policy in accordance with Section 5.2.



          9.9. Possession. Subject to the Leases, on the Closing Date, Seller shall
transfer possession of the Property to Purchaser. On the Closing Date or as soon thereafter as
practicable, Seller and Purchaser shall send notices to all vendors and contractors under any
Contracts informing them that Seller sold the Property to Purchaser on the Closing Date.



          9.10. Maintenance. Subject to Section 11 hereof, Seller shall, between Seller’s
execution of this Agreement and the Closing Date, at Seller’s sole cost and expense, maintain the
Property in substantially the same condition and repair as on the Effective Date, reasonable and
customary wear and tear excepted, and otherwise operate the Property as before the making of this
Agreement; provided, however, that in the event of a Taking or any damage to the Property by any
casualty, then the provisions of Sections 6.1 and 6.2, respectively, shall apply.



          9.11. Purchaser Remedies. If Seller defaults under or breaches this Agreement and
fails to sell the Property in accordance with this Agreement, Purchaser shall have the right, as
its sole remedy, either (a) to terminate this Agreement by giving written notice to Seller and
receive the prompt return of the Deposit, which return shall operate to release Seller from any and
all liability hereunder (provided, however, that in the event that such Seller default is an
intentional, willful breach of this agreement by Seller, Purchaser shall also be entitled to
reimbursement for actual third-party out-of-pocket costs and expenses incurred by Purchaser in
connection with its due diligence review of the Property in an amount up to, but not to exceed, One
Hundred Thousand Dollars ($100,000)), (b) to enforce specific performance of Seller’s



25









 







obligation to sell the Property to Purchaser in accordance with this Agreement, or (c) if, and
only if, the remedy of specific performance is not available to Purchaser due to the acts of
Seller, Purchaser shall have the right to pursue Seller for damages. Except as set forth in
clauses (a) and (c) above, Purchaser expressly waives all rights to obtain damages in the event of
Seller’s failure to close the sale of the Property hereunder. Purchaser shall be deemed to have
elected the remedy under clause (a) above if Purchaser fails to file suit for specific performance
against Seller, in a court having jurisdiction in the county and state in which the Property is
located, within sixty (60) days following the date upon which Closing was to have occurred.



     10. Brokers. Seller and Purchaser each warrant and represent to the other that no
person, firm or entity is in a position to claim a real estate brokerage commission, due diligence
fee or finder’s fee as a procuring cause of this transaction based upon contacts with such party or
the Property other than Pacific Real Estate Partners, Inc. (“Broker”). Seller shall pay a
commission to Broker in accordance with the terms of a separate agreement if, but only if, the
transaction contemplated by this Agreement actually closes. Each party shall indemnify, defend,
protect and hold the other party harmless from and against any and all claims, actions, causes of
action, demands, liabilities, damages, costs and expenses (including attorneys’ fees) arising as a
result of a breach of the foregoing warranty and representation.



     11. Operation of the Property. Seller shall operate, manage, lease, renovate and
maintain the Property in a manner consistent with its current practices, including maintaining
insurance in amounts currently in effect. Notwithstanding the foregoing, if and only if Purchaser
has given Purchaser’s Approval prior to expiration of the Inspection Period and Seller has received
the Deposit pursuant to Section 4.3 above, and this Agreement is otherwise in full force and
effect, Purchaser shall have the right to approve any proposed improvements, renovations, new
leases, lease extensions or modifications, which approval shall be in Purchaser’s sole and absolute
discretion. Furthermore and notwithstanding the foregoing, after the Effective Date and prior to
Purchaser’s Approval, Purchaser shall have the right to approve any proposed improvements,
renovations, new leases, lease extensions or modifications, which approval shall not be
unreasonably withheld, delayed or conditioned. Purchaser’s failure to respond to any request for
such an approval within five (5) business days after Purchaser’s actual receipt of request shall be
deemed approval thereof.



     12. SEC Compliance Seller acknowledges that audited financial statements pertaining
to the Property for the three (3) calendar years prior to the Closing and the portion of the
calendar year in which Closing occurs up to the Closing Date are required to be filed by Purchaser
with the Securities and Exchange Commission (the “SEC”) after the Closing. Accordingly, Seller
agrees to provide Purchaser and its representatives with reasonable access to Seller’s books and
records for the Property after the Closing upon reasonable advance written notice in order only to
conduct the required audit. Seller shall cooperate (at no cost to Seller) with Purchaser and its
auditor in the conduct of such audit by making its files available and allowing Purchaser and its
auditor the right to interview Seller’s officers, directors, partners, members, managers and
employees (the “Seller Related Parties”) upon request by Purchaser; provided, however, that (i)
neither Seller nor any of the Seller Related Parties shall have any obligation to sign or execute
any letter or any other document in connection with such audit, (ii) none of Purchaser, the SEC or
Purchaser’s auditor shall have the right to rely on any interview with any Seller Related Parties,
(iii) neither Seller nor any of the Seller Related Parties shall have



26









 







any liability in connection with the audit, and (iv) the results of such audit shall not serve
as grounds for Purchaser to seek a refund of any portion of the Purchase Price or otherwise give
rise to any claim or cause of action under this Agreement against Seller or any of the Seller
Related Parties.



     13. Miscellaneous.



          13.1. Notices. All notices, demands or other communications of any type given by
either party to the other, whether required by this Agreement or in any way related to this
transaction, shall be in writing and be delivered: (i) by hand, facsimile or Federal Express or
other nationally-recognized overnight courier service; or (ii) by United States Mail, certified
mail, return receipt requested, with proper postage affixed. Each notice to a party shall be
addressed as follows:



	 	 	 	 	 
	 

	 	To Seller:
	 	Bay West Design Center, LLC
	 

	 	 	 	Bay West Seattle, LLC
	 

	 	 	 	c/o Bay West Group
	 

	 	 	 	2 Henry Adams Street, Suite 450
	 

	 	 	 	San Francisco, CA 94103
	 

	 	 	 	Attn.: Bill R. Poland and Timothy P. Treadway
	 

	 	 	 	Telephone No.: (415) 552-7700
	 

	 	 	 	Facsimile No.: (415) 552-7760
	 
	 	 	 	 
	 

	 	With a copy to:
	 	Stein & Lubin LLP
	 

	 	 	 	600 Montgomery Street, 14th Floor
	 

	 	 	 	San Francisco, California 94111
	 

	 	 	 	Attn: Mark D. Lubin
	 

	 	 	 	Telephone No.: (415) 981-0550
	 

	 	 	 	Facsimile No.: (415) 981-4343
	 
	 	 	 	 
	 

	 	To Purchaser:
	 	Hines REIT Properties, L.P.
	 

	 	 	 	c/o Hines Interests Limited Partnership
	 

	 	 	 	445 South Figueroa Street, Suite 2080
	 

	 	 	 	Los Angeles, CA 90071
	 

	 	 	 	Attn: Colin P. Shepherd
	 

	 	 	 	Telephone No.: (213) 629-5200
	 

	 	 	 	Facsimile No.: (213) 629-1423






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	 	With a copy to:
	 	Hines Interests Limited Partnership
	 

	 	 	 	800 Fifth Avenue, Suite 3838
	 

	 	 	 	Seattle, WA 98104
	 

	 	 	 	Attn: W. Rand Dixon
	 

	 	 	 	Telephone No.: (206) 839-8400
	 

	 	 	 	Facsimile No.: (206) 839-8401
	 
	 	 	 	 
	 

	 	 	 	and
	 
	 	 	 	 
	 

	 	 	 	Hines REIT Properties, L.P.
	 

	 	 	 	c/o Hines Advisors Limited Partnership
	 

	 	 	 	2800 Post Oak Boulevard, Suite 5000
	 

	 	 	 	Houston, Texas 77056-6118
	 

	 	 	 	Attn: Jason P. Maxwell — Legal
	 

	 	 	 	Telephone No.: (713) 966-7638
	 

	 	 	 	Facsimile No.: (713) 966-2705






Any notice delivered by hand or Federal Express or similar courier service shall be deemed to be
delivered when actual delivery is made. Any notice delivered by facsimile shall be deemed to be
delivered when sent, provided that confirmation of effective transmission is received. Any notice
deposited in the United States Mail in the manner required above shall be deemed to be delivered
three (3) business days after the date of such deposit, and any time periods provided for herein
during which a party may act shall not commence until such notice is deemed to be so delivered.
Either party hereto may change its address by notice given as provided herein to the other party
and Title Company.



          13.2. Rules of Construction. Where required for proper interpretation, words in the
singular shall include the plural, the masculine gender shall include the neuter and the feminine,
and vice versa. The headings of the Sections, Subsections and paragraphs contained in this
Agreement are included only for convenience of reference and shall be disregarded in the
construction and interpretation of this Agreement. This Agreement has been fully negotiated at
arms’ length between the parties, after advice by counsel and other representatives chosen by the
parties, and the parties are fully informed with respect thereto. No party shall be deemed the
scrivener of this Agreement and, accordingly, the provisions of this Agreement shall be construed
as a whole according to their common meaning and not strictly for or against any party. Use in
this Agreement of the words “including” or “such as”, or words of similar import, following any
general term, statement or matter shall not be construed to limit such term, statement or matter to
the enumerated items, whether or not language of non-limitation (such as “without limitation” or
“but not limited to”) are used with reference thereto, but rather shall refer to all items or
matters that could reasonably fall within the broadest scope of such term, statement or matter.



          13.3. Amendment; Waivers. This Agreement may not be modified or amended except by an
agreement in writing signed by the parties hereto. A party may waive any of the conditions
contained herein or any of the obligations of the other party hereunder, but any such waiver shall
be effective only if in writing and signed by the party waiving such conditions or obligations.



28









 





          13.4. Time Of Essence. Time is of the essence of this Agreement and each provision
hereof.



          13.5. Attorneys’ Fees. If either party brings an action or proceeding at law or in
equity to interpret or enforce this Agreement or any provisions contained herein, or to seek
damages or other redress for a breach, the prevailing party shall be entitled to recover in
addition to all other remedies or damages, reasonable attorneys’ fees incurred in such action or
proceeding.



          13.6. Law. This Agreement shall be governed by, construed and interpreted in
accordance with the laws of the State of Washington.



          13.7. Entire Agreement. This Agreement, including the exhibits hereto, constitutes
the entire agreement between the parties pertaining to the subject matter hereof and supersedes all
prior and contemporaneous agreements and understandings of the parties and/or their affiliates in
connection therewith, including that certain Purchase Offer dated March 15, 2007 entered into by
and between BWDC and Hines Interests Limited Partnership, a Delaware limited partnership (“Hines
Interests”) and that certain Access License Agreement dated March 21, 2007 by and between Seller
and Hines Interests. No representation, warranty, covenant, agreement or condition not expressed
in this Agreement shall be binding upon the parties hereto or shall affect or be effective to
interpret, change or restrict the provisions of this Agreement.



          13.8. Assignment; Successors And Assigns. Purchaser shall have no right to assign
this Agreement or any of Purchaser’s rights hereunder without first having obtained Seller’s prior
written consent to such assignment, which consent may be withheld in Seller’s sole discretion.
Notwithstanding the foregoing, Purchaser may assign this Agreement to any assignee if the assignee
agrees in writing to be bound by all of the terms and conditions of this Agreement and such
assignee is an entity of which Purchaser (or its parent company) owns a majority ownership interest
and that is controlled and/or managed by or under common control with Purchaser. Any purported
assignment by Purchaser to an unauthorized party in violation of this Section 13.8 shall be null
and void. Subject to the foregoing, this Agreement, and the terms, covenants and conditions herein
contained, shall be binding upon and inure to the benefit of the parties hereto and their
respective successors, heirs and assigns. In no event shall an assignment by Purchaser of this
Agreement or any of Purchaser’s rights hereunder release Purchaser from its obligations under this
Agreement, regardless whether Seller has consented thereto.



          13.9. Section 1031 Cooperation. In the event Seller desires to engage in a
tax-deferred exchange under Section 1031 of the Internal Revenue Code of 1986, as amended,
Purchaser shall reasonably cooperate with such exchange by executing such documents and instruments
as shall be customarily used by Seller’s qualified exchange intermediary, so long as Purchaser
assumes no obligations and incurs no cost or expense in connection therewith, and the Closing is
not delayed by reason thereof.



          13.10. Exhibits. The exhibits to which reference is made in this Agreement are deemed
incorporated into this Agreement in their entirety by such reference. The exhibits to this
Agreement are the following:



29









 





	 	 	 	 	 
	 

	 	A
	 	Legal Description of Real Property
	 

	 	B
	 	Bill Of Sale
	 

	 	C
	 	Assignment of Contracts
	 

	 	D
	 	List of Current Leases
	 

	 	E
	 	Assignment and Assumption of Leases
	 

	 	F
	 	[Intentionally Deleted]
	 

	 	G
	 	Special Warranty Deed
	 

	 	H
	 	Affidavit Of Non-Foreign Status
	 

	 	I
	 	Tenant Notice
	 

	 	J
	 	Form of Tenant Estoppel Certificate
	 

	 	K
	 	List of Environmental Documents
	 

	 	L
	 	List of Contracts
	 

	 	M
	 	Survey Certification






          13.11. Definition Of Business Day. For purposes of this Agreement, the term “business
day” shall mean Monday through Friday, inclusive, but excluding any day on which banks are
authorized or required to be closed by the appropriate governmental authorities of the State of
Washington or the United States.



          13.12. Counterparts. This Agreement may be executed in one or more counterparts by
the parties hereto. All counterparts shall be construed together and shall constitute one
agreement. Each party (i) has agreed to permit the use, from time to time and where appropriate,
of telecopied signatures in order to expedite the transaction contemplated by this Agreement, (ii)
intends to be bound by its respective telecopied signature, (iii) is aware that the other will rely
on the telecopied signature, and (iv) acknowledges such reliance and waives any defenses to the
enforcement of the documents effecting the transaction contemplated by this Agreement based on the
fact that a signature was sent by telecopy. As used herein, the term “telecopied signature” shall
include any electronic signature sent via e-mail.



          13.13. Reporting Requirements. Title Company shall comply with all applicable
federal, state and local reporting and withholding requirements relating to the Closing. Without
limiting the generality of the foregoing, Title Company shall be responsible for complying with the
requirements of Section 6045(e) of the Internal Revenue Code of 1986, as amended, and with the
requirements of Chapter 82.45 of the Revised Code of Washington.



          13.14. Net Worth Covenant. Seller shall maintain a net worth not less than One
Million Two Hundred Fifty Thousand Dollars ($1,250,000) plus any amounts reasonably anticipated to
be owed to Purchaser for prorations or other amounts payable hereunder after Closing for a period
of nine (9) months from and after the Closing Date, provided, however, that such amount shall be
reduced by any amount paid to Purchaser or any third party in connection with any claim against
Seller made pursuant to the provisions of this Agreement after Closing. Notwithstanding anything
to the contrary contained in this Agreement, this Section 13.14 shall survive the Closing for only
a period of nine (9) months.



          13.15. Joint and Several Liability. Each entity comprising Seller shall be jointly
and severally liable with the other entity comprising Seller with respect to all obligations and
agreements of Seller contained herein.




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     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth
above.



	 	 	 	 	 	 	 	 	 
	SELLER:	 	BAY WEST DESIGN CENTER, LLC,	 	 
	 	 	a Delaware limited liability company	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	BW Seattle Corp.,	 	 
	 	 	 	 	a Washington corporation,	 	 
	 	 	 	 	its Manager	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Timothy P. Treadway	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Timothy P. Treadway,	 	 
	 

	 	 	 	 	 	Chief Executive Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Dated:	 	March ___, 2007	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	BAY WEST SEATTLE, LLC,	 	 
	 	 	a Delaware limited liability company	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Timothy P. Treadway	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Timothy P. Treadway,	 	 
	 	 	 	 	Chief Executive Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Dated:	 	March 27, 2007	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	PURCHASER:	 	HINES REIT PROPERTIES, L.P.,	 	 
	 	 	a Delaware limited partnership	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Hines Real Estate Investment Trust, Inc.,	 	 
	 	 	 	 	its general partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Charles N. Hazen	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	Charles N. Hazen	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	President	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Dated:	 	March 27, 2007	 	 







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