UNTIL THE SURVIVAL DATE
SET FORTH IN SECTION 24.9 BELOW.
SECTION 3.9.
STUDY PERIOD.
(A)
DURING THE PERIOD (THE "STUDY PERIOD") THAT COMMENCED ON ******* **, ****
(THE "***** ****** ************ ****"), AND ENDS ON ******* **, ****, AT ****
**** ******* **** (THE "***** ******** ****"), THE BUYER WILL BE AFFORDED THE
OPPORTUNITY TO CONFIRM OR EXAMINE WHATEVER FACTS ("FACTS"), AS DISTINCT FROM
JUDGMENTS ("JUDGMENTS"), IN THE OFFERING PACKAGE AND THE DUE DILIGENCE MATERIALS
AND THIS AGREEMENT IT CHOOSES TO INVESTIGATE.
IN NO EVENT SHALL "FACTS" INCLUDE
(I) ANY PRO FORMA INFORMATION, PROJECTIONS, FORECASTS, OR OPINIONS REGARDING
PRESENT OR FUTURE MARKET CONDITIONS, (II) ANY CHANGE, OR POTENTIAL CHANGE, IN
THE MARKET CONDITIONS WHICH INFLUENCE THE PROPERTIES INCLUDING, WITHOUT
LIMITATION, THE MARKET RENTS FOR BUILDINGS IN THE NORTHERN VIRGINIA AND
WASHINGTON D.C. METROPOLITAN OFFICE MARKET, THE SUPPLY AND DEMAND FORCES
AFFECTING THE NORTHERN VIRGINIA AND WASHINGTON D.C. METROPOLITAN OFFICE MARKET,
(III) THE
13
PROPERTIES' COMPETITIVE POSITION RELATIVE TO THEIR EXISTING AND NEW DEVELOPMENT
COMPETITORS, OCCUPANCY/VACANCY RATES, COLLECTION LOSS ALLOWANCES, IF ANY, AND
PROJECTED GROWTH RATES, IF ANY, IN RENTS AND EXPENSES AND LEVELS OF TENANT
PACKAGES (INCLUDING TENANTS WORK AND MARKET DRIVEN LEASING FEES), (IV) THE
IMPACT OF THE CONSUMMATION OF THIS TRANSACTION ON THE ASSESSED VALUE OF THE
PROPERTIES, (V) THE AVAILABILITY OR LIMITED AVAILABILITY OR COST OF OBTAINING
TERRORISM AND
OTHER INSURANCE, (VI) OTHER INCOME SOURCES AND AMOUNTS INCLUDING,
WITHOUT LIMITATION, OVERTIME HVAC CHARGES FROM THE PROPERTIES, (VII) PARKING
REVENUES AND EXPENSE ESTIMATES, (VIII) THE APPLICABILITY AND AMOUNT OF ANY
COMMONWEALTH OF VIRGINIA FRANCHISE TAX, OR (IX) WHETHER ANY BUILDING CAN BE
RE-MEASURED TO INCLUDE MORE NET RENTABLE AREA.
(B)
SUBJECT TO SECTION 3.9(C) BELOW, BUYER MAY ELECT TO TERMINATE THIS
AGREEMENT WITH RESPECT TO AN INDIVIDUAL PROPERTY BY WRITTEN NOTICE RECEIVED BY
SELLER ON OR BEFORE THE ***** ******** **** (THE "TERMINATION NOTICE") IF AND
ONLY IF BUYER DETERMINES DURING THE STUDY PERIOD THAT (I) IT HAS BEEN UNABLE TO
RESOLVE ANY TITLE QUESTIONS LISTED ON EXHIBIT GG TO BUYER'S REASONABLE
SATISFACTION (REGARDLESS OF WHETHER SUCH TITLE QUESTIONS CONSTITUTE A MATERIAL
DIFFERENCE), (II) BUYER HAS NOT BEEN ABLE TO CONDUCT TENANT INTERVIEWS WITH AT
LEAST EIGHT (8) OF THE ELEVEN (11) TENANTS LISTED ON SCHEDULE 3.9(B) ATTACHED
HERETO (REGARDLESS OF WHETHER THE FAILURE OF BUYER TO CONDUCT ANY SUCH
INTERVIEWS CONSTITUTES A MATERIAL DIFFERENCE), OR (III) THERE ARE MATERIAL
ADVERSE INCONSISTENCIES WITH RESPECT TO AN INDIVIDUAL PROPERTY BETWEEN (A) THE
FACTS SET FORTH IN THE OFFERING PACKAGE, THE DUE DILIGENCE MATERIALS AND THIS
AGREEMENT, AND THOSE FACTS KNOWN BY BUYER ON THE EFFECTIVE DATE, AND (B) FACTS
DISCOVERED BY BUYER DURING THE STUDY PERIOD WHICH INCONSISTENCIES, IF KNOWN BY
BUYER ON THE EFFECTIVE DATE, WOULD HAVE CAUSED BUYER TO MATERIALLY REDUCE THE
AGGREGATE PURCHASE PRICE AGREED TO BY BUYER UNDER THIS AGREEMENT FOR THE
PORTFOLIO IN WHICH THE INDIVIDUAL PROPERTY IS LOCATED (EACH SUCH MATERIAL
INCONSISTENCY BEING REFERRED TO HEREIN AS A "MATERIAL DIFFERENCE").
BUYER'S
TERMINATION NOTICE SHALL SET FORTH A DETAILED, FULL AND COMPLETE DESCRIPTION