exv10w76



 




EXHIBIT
10.76

PURCHASE AND SALE AGREEMENT




     THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is entered into as of January 29,
2007 by and among SP-K Development, LLC (“Tract K Seller”), SP-B1 Development, LLC
(“Tract B-1 Seller”), SP-A Development, LLC (“Tract A Seller”), SP-B2 Development,
LLC (“Tract B-2 Seller”), SP-D Development, LLC (“Tract D Seller”), SP-E
Development, LLC (“Tract E Seller”), SP-J Development, LLC (“Tract J Seller”), 110
Munson Street, LLC (“110 Munson Seller”), SP-C Development, LLC (“Assignor 1”) and
Lyme Properties LLC (“Assignor 2”), each a Delaware limited liability company, and
collectively, the “Seller” and BioMed Realty, L.P., a Maryland limited partnership (the
“Purchaser”), having an office at 17140 Bernardo Center Drive, Suite 222, San Diego,
California 92128, with a facsimile number of (858) 485-9843. The Seller has an office c/o Lyme
Properties LLC, 101 Main Street, 18th floor, Cambridge, MA 02142 Attn: Robert L. Green,
with a facsimile number of (617) 225-2133.



     Capitalized terms used in this paragraph shall have the respective meanings set forth in this
Agreement. The Tract K Seller is the tenant under the Ground Lease for Tract K. The Tract B-1
Seller is the tenant under the Ground Lease for Tract B-1. The Tract A Seller is the tenant under
the Ground Lease for Tract A. The Tract B-2 Seller is the tenant under the Ground Lease for Tract
B-2. The Tract D Seller is the tenant under the Ground Lease for Tract D. The Tract E Seller is
the tenant under the Ground Lease for Tract E. The Tract J Seller is the tenant under the Ground
Lease for Tract J. The 110 Munson Seller is the fee title owner of 110 Munson. Assignor 1 is a
party to the TDA. Assignor 2 is a party to the ARDA and the TDA.



     In consideration of the mutual promises hereinafter set forth and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:



ARTICLE 1




Definitions




     Section 1.1. Definitions. For purposes of this Agreement, capitalized terms
not otherwise defined herein have the meanings set forth below:



     “Adjustment Point” shall have the meaning set forth in Section 8.4(b).



     “ARDA” shall have the meaning set forth in the attached Schedule 7.2(b)(iv)-3.



     “ARDA Consent” shall have the meaning set forth in Section 6.2(f).



     “ARDA Estoppel Provisions” shall have the meaning set forth in Section 6.2(f).



     “ARDA Party” shall mean Science Park Development Corporation.



     “Asserting Party” shall have the meaning set forth in Section 11.21.



 









 





     “Assignment and Assumption Agreement” shall mean an Assignment, Assumption and Bill of
Sale Agreement in substantially the form attached hereto as Schedule 8.2(e).



     “Brokerage Agreements” shall mean the lease brokerage agreements listed on the
attached Schedule 7.2(b)(iv)-4.



     “Business Day” shall mean any day of the week other than Saturday, Sunday, or a day on
which banking institutions in Boston, Massachusetts are obligated or authorized by law or executive
action to be closed to the transaction of normal banking business.



     “Certificate” shall have the meaning set forth in Section 6.1(g).



     “Claim” shall have the meaning set forth in Section 10.6.



     “Claim Period” shall have the meaning set forth in Section 7.3(d).



     “Closing” shall mean the consummation of the purchase and sale of the Property
pursuant to the terms of this Agreement.



     “Closing Date” shall mean April 4, 2007, as such date may be extended in accordance
with the express extension provisions of this Agreement.



     “Closing Month” shall have the meaning set forth in Section 8.4(b).



     “Closing Statement” shall have the meaning set forth in Section 8.4(l).



     “Code” shall mean the Internal Revenue Code of 1986, and all amendments thereto and
all regulations issued thereunder.



     “coming due” shall have the meaning set forth in Section 6.4(c).



     “Condemnation” shall have the meaning set forth in Section 6.3(a).



     “Confidential Information” shall mean all information concerning the Property, the
Leases and Seller, excluding information that is available to the general public from sources other
than disclosure by Purchaser or its agents in violation of this Agreement.



     “costs of collection” shall have the meaning set forth in Section 8.4(b).



     “Damage Cap” shall have the meaning set forth in Section 10.4.



     “Deed” shall mean a special warranty deed from 110 Munson Seller to Purchaser in the
form attached hereto as Schedule 8.2(a).



     “Defending Party” shall have the meaning set forth in Section 11.21.



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     “Deposit” shall have the meaning set forth in Section 3.1.



     “Due Diligence Materials” shall have the meaning set forth in Section 5.2.



     “Effective Date” shall mean the date of this Agreement.



     “Environmental Insurance Policy” shall mean that certain Pollution Legal Liability
Policy issued by Gulf Insurance Group with a Policy Number: GU-0680969.



     “Environmental Laws” shall have the meaning set forth in Section 11.19.



     “eRoom” shall have the meaning set forth in Section 5.2.



     “Escrow Agent” shall mean the Title Company.



     “Ground Landlord’s Consent” shall have the meaning set forth in Section
6.1(d).



     “Ground Landlord Estoppel Provisions” shall have the meaning set forth in Section
6.1(d).



     “Ground Lease Assignment” shall mean an Assignment and Assumption of Ground Lease in
substantially the form attached hereto as Schedule 8.2(b).



     “Ground Leases” shall mean the ground leases at the Property listed on the attached
Schedule 7.2(b)(iv)-1.



     “Hazardous Materials” shall have the meaning set forth in Section 11.19.



     “Impositions” shall have the meaning set forth in Section 8.4(b).



     “Joint Venture Entity” shall mean a limited partnership, limited liability company or
any other joint venture entity that is managed, either directly or indirectly, by any Related
Entity(s) (provided that the management rights of such Related Entity(s) may be subject to (i) the
right of one or more other partners, members or other venturers in such joint veture to approve
certain material transactions entered into, other actions taken by or other major decisions made
for, such Joint Venture Entity and (ii) other customary rights, so long as no such rights can ever
be exercised with respect to the transactions contemplated by this Agreement).



     “Lease Expenses” shall mean the Seller Lease Expenses and the Purchaser Lease Expenses
related to the Property.



     “Leases” shall mean the leases of space at the Real Property listed on the attached
Schedule 7.2(b)(iv)-1.



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     “Listed Permits” shall mean the licenses, permits, approvals, certificates and
entitlements listed on Schedule 7.2(b)(iv)-6 attached hereto.



     “Lyme Timber Guarantys” shall have the meaning set forth in the attached Schedule
7.2(b)(iv)-3



     “Major Event” shall have the meaning set forth in Section 6.3(a).



     “Miscellaneous Consultant Agreements” shall mean the contracts and agreements that are
listed on the attached Schedule 7.2(b)(iv)-2.



     “Miscellaneous Consultant Consent” shall mean an agreement in the form attached as
Schedule 5.5.



     “Net Proceeds” shall have the meaning set forth in Section 6.3(a).



     “New Lender” shall mean any lender or lenders (or any agent on their behalf) providing
financing to Purchaser in connection with the transactions contemplated herein.



     “Other Matters” shall mean the contracts and matters that are listed on the attached
Schedule 7.2(b)(iv)-3.



     “Permits” shall mean any licenses, permits, approvals, certificates or entitlements
issued in connection with the improvements that Seller has constructed on the Real Property,
including the Listed Permits.



     “Permitted Assignee” shall mean any Joint Venture Entity, Related Entity or, with
respect to Purchaser, any New Lender, and with respect to any New Lender, any Person eligible to be
an assignee of New Lender’s interests under the documents entered into by Purchaser and New Lender
with respect to the financing of the transactions contemplated herein.



     “Permitted Exceptions” shall mean: (a) all matters shown on the Title Commitments
(other than Seller Mortgages) or the Surveys, except for those matters (other than any matter that
would otherwise constitute a Permitted Exception under this definition) as to which, in accordance
with Section 4.1: (i) Purchaser makes a written objection on or before the expiration of
the Study Period; and (ii) Seller elects to use reasonable efforts to cure; (b) if Purchaser fails
to obtain the Title Commitments before the end of the Study Period, all matters of public record as
of the last day of the Study Period (other than Seller Mortgages); (c) all matters, whether or not
of record, that arise out of the actions of Purchaser or Persons acting under Purchaser; (d) any
documents evidencing the Leases, the Miscellaneous Consultant Agreements or any Other Matters to be
assigned to Purchaser under this Agreement; (e) the lien of general real estate taxes, personal
property taxes and all water, sewer, utility, trash and other similar charges and assessments which
are not yet due and payable; (f) any lien, encumbrance or governmental obligation which either
affects solely the property of a tenant under a Lease or is the obligation of such tenant to
discharge, cure or comply with; (g) all laws, regulations and ordinances restrictions including,
without limitation, all environmental, use, building and zoning laws



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affecting the Properties or the ownership, use or operation thereof now in effect or which may
be in force and effect on the Closing Date with respect to such Properties; (h) any notice of
contract and (i) all matters (other than Seller Mortgages) that the Title Company is willing to
insure over to the reasonable satisfaction of Purchaser without material additional premium or
indemnity (other than additional premium or indemnity that Seller in its sole discretion elects to
pay or give). Without limitation, Permitted Exceptions include all of the matters respectively
referred to in Schedule 4.1 attached.



     “Person” shall mean any individual, estate, trust, partnership, limited liability
company, limited liability partnership, corporation, governmental agency or other legal entity and
any unincorporated association.



     “Personal Property” shall mean all right, title and interest of Seller in all Permits
(except to the extent such Permit cannot be assigned in accordance with applicable law), Reports,
the Leases (including any security deposits delivered thereunder) at the Property, the
Miscellaneous Consultant Agreements, the Other Matters, matters referred to in Schedule
4.1, the Brokerage Agreements, the Plans and Specifications, the tangible personal property
used or to be used in connection with the Real Property, including the tangible personal property
listed on Schedule 7.2(c)(v) attached hereto, the Environmental Insurance Policy and in all
surveys, blue prints, drawings and other documentation for or with respect to the Property; all
marketing artwork, booklets, manuals and promotional and advertising materials concerning the
Property (including any websites, photographs, videos or other tangible or intellectual property
concerning the Property) in each case to the extent available and in the possession and control of
Seller; all tenant data, correspondence with past, present and prospective tenants, vendors
suppliers and utility companies in each case to the extent available and in the possession and
control of Seller; such other existing books, records and documents used solely in connection with
the construction or operation of the Property to the extent available and in the possession and
control of Seller; all intellectual property with respect to the Property, including but not
limited to, trade names and trademarks associated with the Property or by which the Property is
commonly known or designated, and all claims and causes of action with respect to any of the
foregoing arising from and after the Closing; provided, however, that Seller (x) makes no
representations or warranties whatsoever with respect to any of the Personal Property (except as
and to the extent expressly set forth in Section 7.2) and (y) Purchaser acknowledges and
agrees that Seller and/or the Seller Parties may use photographs or other reproductions of the
Property after the Closing for marketing or other reasonable purposes. For the avoidance of doubt,
Purchaser expressly acknowledges that trademarks, trade names, copyrights or other intellectual
property in and to the legal or trade names of any direct or indirect owner of Seller or Assignor,
including without limitation the names “Lyme,” and “Lyme Properties” shall not be transferred from
Seller to Purchaser, nor shall the following be transferred or conveyed as Personal Property (i)
any information or documents related to the transaction of which this Agreement is a part, (ii)
any projections and other internal memoranda or materials, (iii) financial statements of
Seller, appraisals, budgets, strategic plans for the Property, internal analyses and submissions
relating to Seller’s obtaining of internal authorizations and the like and (iv) any attorney and
accountant work product or any other materials subject to any legal privilege in favor of Seller.



     “Post-Closing Escrow Agreement” shall have the meaning set forth in Section
10.5.



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     “Post-Closing Escrow Funds” shall have the meaning set forth in Section 10.5.



     “Property” shall mean the Real Property and the Personal Property.



     “Purchase Price” shall mean the purchase price for the Property as specified in
Section 2.2(a).



     “Purchaser Lease Expenses” shall mean, collectively, any third party costs or expenses
(including any brokerage fees) arising out of or in connection with (a) any of the Leases at the
Property, to the extent such costs and expenses were not due and payable prior to the Closing, as
the same are set forth on the attached Schedule 7.2(b)(iv)-4, (b) any extension, expansion
or other right exercised by any Tenant under any Lease at the Property after the Effective Date, or
(c) any new lease or Lease modification at the Property entered into with Purchaser’s prior
approval as provided in this Agreement between the Effective Date and the Closing Date.



     “Purchaser Title Objections” shall have the meaning set forth in Section 4.1.



     “Purchaser’s Endorsements” shall mean the following to the extent such endorsements
are generally available for real property such as the Real Property in the State of Connecticut:
(1) owner’s comprehensive; (2) access; (3) “same as” survey; (4) subdivision; (5) zoning 3.1; (6)
deletion of standard mechanic’s lien exception and (7) deletion of creditor’s rights exception.



     “Purchaser’s REIT Entity” shall have the meaning set forth in Section 6.4.



     “Real Property” shall mean the real and other property respectively described on
Exhibit A attached hereto and all buildings, structures and other improvements located
thereon, together with and subject to all privileges, rights, easements and appurtenances belonging
to or burdening such property (including the Permitted Exceptions) and all right, title and
interest of Seller, if any, in and to any streets, alleys, passages or other rights-of-way or
appurtenances included in, adjacent to or used in connection with such property. Exhibit A
respectively describes the following: Tract K, Tract B-1, Tract A, Tract B-2, Tract D, Tract E,
Tract J and 110 Munson.



     “Related Entity” shall mean Purchaser, Purchaser’s REIT Entity or any single purpose
entity or entities that are directly or indirectly wholly-owned and controlled by Purchaser and
Purchaser’s REIT Entity.



     “Rents” shall have the meaning set forth in Section 8.4(b).



     “Reports” shall mean any reports by any third party engineering, architectural,
environmental or other like consultants regarding Hazardous Materials at the Real Property, which
were prepared for Seller in connection with and following Seller’s acquisition of the Real
Property, including the reports listed on the attached Schedule 7.2(b)(iv)-5. The Reports
are Confidential Information.



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     “Restricted Period” shall mean the period commencing on the date that is three (3)
Business Days prior to the expiration of the Study Period and ending on the earlier of the Closing
or the termination of this Agreement.



     “Seller Lease Expenses” shall mean, collectively, any third party costs or expenses
(including any brokerage fees) arising out of or in connection with any of the Leases of the
Property or portions thereof (other than any Purchaser Lease expenses) to the extent the same are
due prior to the Closing.



     “Seller Mortgage” shall mean any mortgage or deed of trust granted or assumed by
Seller and encumbering the Real Property or any portion thereof or any other lien securing the
payment of a liquidated sum of money voluntarily created by Seller, but shall not include any
mortgage that Purchaser elects to assume at the Closing.



     “Seller Parties” shall mean each Seller, and each such entity’s affiliates, and each
of their respective direct and indirect owners, and their respective agents, partners, officers,
directors, trustees, attorneys, advisors, managers and employees.



     “Seller Representations” shall mean the representations and warranties of Seller
expressly set forth in Section 7.2.



     “Seller’s Broker(s)” shall mean Lyme Properties LLC.



     “Seller’s Estoppel Certificate” shall mean an estoppel certificate from the applicable
Seller provided pursuant to this Agreement.



     “Seller’s Title Election Period” shall have the meaning set forth in Section
4.1.



     “Study Period” shall mean the period commencing on the Effective Date of this
Agreement and ending at 5:00 p.m. East Coast time on February 16, 2007.



     “Survey” shall have the meaning set forth in Section 4.1.



     “Surviving Obligations” shall mean all obligations of a party which by their terms
expressly survive the Closing or termination of this Agreement.



     “TDA” shall have the meaning set forth in the attached Schedule 7.2(b)(iv)-3.



     “TDA Consent” shall have the meaning set forth in Section 6.1(e).



     “TDA Estoppel Provisions” shall have the meaning set forth in Section 6.1(e).



     “TDA Party” shall have the meaning set forth in Section 6.1(e).



     “Tenant Estoppel Certificate” shall have the meaning set forth in Section
6.1(c).



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     “Tenants” shall mean the tenants under the Leases at the Property.



     “Threshold Amount” shall have the meaning set forth in Section 10.1.



     “Title Commitments” shall mean commitments in customary form evidencing the Title
Company’s commitment to issue the Title Policies to Purchaser.



     “Title Company” shall mean the Boston, Massachusetts office of Stewart Title Guaranty
Company, having an address of 99 Summer Street, 2nd Floor, Boston, Massachusetts 02110, Attention:
Marie Franco, Esq.



     “Title Cure Cap” shall mean Four Hundred Thousand Dollars ($400,000).



     “Title Objection Notice” shall have the meaning set forth in Section 4.1.



     “Title Policies” shall mean ALTA Owner’s Policies of title insurance (insuring either
fee or ground lease title, as applicable), with extended coverage (i.e., with ALTA General
Exceptions deleted), dated as of the date and time of the recording of the Deed or, if applicable,
the recording of a Ground Lease Assignment, in the amount of the allocated Purchase Price for the
Real Property, insuring Purchaser as owner of good, marketable and indefeasible fee simple title
(or in the case of any portion of the Real Property that is subject to a Ground Lease, good and
marketable leasehold title) to the respective Real Property, subject only to the Permitted
Exceptions and including the Purchaser’s Endorsements.



     “Update” shall have the meaning set forth in Section 7.3(c).



     “Update Termination Period” shall have the meaning set forth in Section
7.3(c).



     “Updated Certificate” shall have the meaning set forth in Section 6.1(j).



     “when due” shall have the meaning set forth in Section 6.4(c).



ARTICLE 2




Agreement: Purchase Price




     Section 2.1. Agreement to Sell and Purchase. Subject to the terms and
provisions hereof, Seller agrees to sell the Property to Purchaser, and Purchaser agrees to
purchase the Property from Seller.



     Section 2.2. Purchase Price. (a) The purchase price for the Property shall
be the sum of Twenty One Million Dollars ($21,000,000) (the “Purchase Price”). Subject to
the adjustments and apportionments set forth in this Agreement, the Purchase Price shall be paid on
the Closing Date by wire transfer of immediately available federal funds to such account(s) of
Seller as Seller designates in writing to Purchaser. The Purchase Price shall be allocated as
follows:



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	(1)

	 	Tracts K and B-1 and 110 Munson:
	 	$	22,300,000	 
	(2)

	 	Tracts A, B-2, D, E and J and all other Property:
	 	($	1,300,000	)






     The Purchase Price allocation with respect to the matters set forth in the foregoing (2) is a
reduction in the Purchase Price on account of future funding obligations with respect to
development on Tracts A, B-2, D, E and J. The foregoing allocation is not intended and shall not
be construed to allow Seller to sell or Purchaser to purchase less than all of the Property.



ARTICLE 3




Deposit




     Section 3.1. Deposit. Purchaser shall deposit with Escrow Agent no later
than the following events the following amounts: (i) on the third (3rd) Business Day after the
Effective Date, One Million Dollars ($1,000,000), (ii) on the third (3rd) Business Day after the
date of the expiration of the Study Period, if Purchaser fails to terminate this Agreement in
accordance with Section 5.2, One Million Dollars ($1,000,000) (individually or
collectively, as the case may be at any time, the “Deposit”), such that the total Deposit
at such time shall be Two Million Dollars ($2,000,000). The Deposit shall be held by Escrow Agent
in a segregated “money market” interest bearing account pursuant to an escrow agreement in the form
attached hereto as Schedule 3.1. Escrow Agent shall invest the Deposit in an
interest-bearing savings account or short-term U.S. Treasury Bills or similar cash-equivalent
securities, as directed by Purchaser and Seller. Any and all interest earned on the Deposit shall
be reported to Purchaser’s federal tax identification number and shall become part of the Deposit.
The Deposit shall be applied to the Purchase Price if the Closing occurs. If Purchaser fails to
deliver any installments of the Deposit to Escrow Agent within the time required under this
Section 3.1, then this Agreement shall, at Seller’s election, terminate (other than the
Surviving Obligations), and any Deposit then held by Escrow Agent shall be promptly paid or
delivered to Seller following such termination. At Purchaser’s election all or any portion of the
Deposit may be made by delivering to the Escrow Agent a letter of credit, which shall mean an
irrevocable, unconditional, transferable, clean sight draft letter of credit in a form reasonably
approved by Seller issued or confirmed for direct payment by a financial institution acceptable to
Seller that will accept draws upon such letter of credit in either Boston, Massachusetts or New
York, New York, that expires no earlier than one hundred twenty (120) days after the Closing Date,
in favor of Seller entitling Seller to draw thereon based solely on a statement purportedly
executed by an officer of Seller stating that it has the right to draw thereon. Purchaser shall
remain fully liable for the amount of the Deposit, without duplication, if any such letter of
credit evidencing the Deposit expires, is terminated or is otherwise not payable to or drawable by
Seller in accordance with the terms of this Agreement.



ARTICLE 4




Survey and Title Commitment




     Section 4.1. Title and Survey. Purchaser may: (a) order an “as built”
survey for any of the respective Real Property (the “Surveys”) by a licensed surveyor or
registered professional



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engineer reasonably acceptable to Purchaser; and (b) cause the Title Company to prepare and
furnish Title Commitments to Purchaser and Seller for the Real Property, together with copies of
all instruments referred to thereon as exceptions to title. Purchaser shall deliver an original of
any Surveys and a copy of any Title Commitments (and such instruments) to Seller within three (3)
Business Days of receipt thereof by Purchaser. In the event that Purchaser fails to obtain any
Title Commitments or Surveys prior to the expiration of the Study Period, in each case with respect
to any part of the Real Property, then Purchaser shall waive any right to object to any matter set
forth in the Title Commitments or Surveys, as the case may be (but such waiver shall apply only
with respect to such parts of the Real Property for which a Title Commitment or Survey was not
obtained), following the expiration of the Study Period.



     Not later than the expiration of the Study Period, Purchaser shall give Seller a written
notice (the “Title Objection Notice”) that sets forth in reasonable detail an explanation
of any objections that Purchaser has to title or survey matters affecting the Real Property (the
“Purchaser Title Objections”); provided, however, that Purchaser shall have no right to
object to any Permitted Exceptions. Seller shall have until 5:00 p.m. Boston time on the third
(3rd) Business Day from its receipt of the Title Objection Notice (“Seller’s Title Election
Period”) to give Purchaser notice as to whether Seller elects to use reasonable efforts to cure
the Purchaser Title Objections by the Closing Date. If Seller fails to give Purchaser written
notice of such election before the end of Seller’s Title Election Period, Seller shall be deemed to
have elected not to attempt to cure the Purchaser Title Objections. If Seller elects not to or is
deemed to have elected not to attempt to cure any one or more of the Purchaser Title Objections,
such Purchaser Title Objections shall constitute Permitted Exceptions and Purchaser shall have
until 5:00 p.m. Boston time on the fifth (5th) Business Day after the end of the Study Period to
elect whether to take title to the Property subject to such matters or to terminate this Agreement
by giving written notice to Seller of such termination on or before such time on such fifth (5th)
Business Day, and failure of Purchaser to so terminate this Agreement shall be deemed an election
to take title to the Property subject to such matters. If (x) Seller elects to use reasonable
efforts to cure any one or more of the Purchaser Title Objections, or (y) the Real Property becomes
subject to any defect in title arising after the date of any Title Commitment or Survey obtained
prior to the expiration of the Study Period, as the case may be, Purchaser shall notify Seller
within three (3) Business Days of becoming aware of such defect (or at the Closing if less than
three (3) Business Days remain until the Closing Date) and Seller shall have until the Closing
Date, which Seller may in its sole discretion, exercisable by written notice to Purchaser on or
before the Closing Date, extend for one or more periods of up to sixty (60) days in total to
provide additional time to complete such cure. If at the Closing Date, as so extended, Seller has
not completed such cure then Purchaser shall have the option of either accepting the title as it
then is or receiving a refund of the Deposit, which shall promptly be returned to Purchaser and
thereupon except for Surviving Obligations Purchaser and Seller shall have no further obligations
or liabilities under this Agreement. If Seller elects to use reasonable efforts to cure any one or
more of Purchaser Title Objections, Seller shall in no event be required to bring or settle a
lawsuit to clear any title defects and, except for Seller Mortgages, Seller shall never be required
to expend more than the amount of the Title Cure Cap to cure all Purchaser Title Objections. All
Seller Mortgages will be satisfied by Seller at or prior to the Closing or, if not so satisfied,
shall be satisfied at Closing by reserving proceeds otherwise payable to Seller in a manner
reasonably satisfactory to the Title Company.



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     Section 4.2. Discharge of Title Objections Notwithstanding anything herein
to the contrary, Seller shall be deemed to have removed or corrected each matter or condition that
is not a Permitted Exception if, in Seller’s discretion and at its sole cost, Seller either (a)
causes the Title Company to remove such matter or condition as an exception to title in the
applicable Title Commitment issued at Closing or affirmatively insures against the same in a manner
reasonably acceptable to Purchaser, in each case without any additional cost to Purchaser, whether
such insurance is made available in consideration of payment, bonding, indemnity of Seller or
otherwise, or (b) delivers (i) its own funds (or directs that a portion of the Purchase Price be
delivered) in an amount needed to fully discharge any such matter or condition to the Title Company
with instructions for the Title Company to apply such funds to fully discharge any such matter or
condition, and (ii) if required by the Title Company, such instruments in recordable form as are
necessary to enable the Title Company to discharge such matter or condition of record.



ARTICLE 5




Inspection




     Section 5.1. Access During the pendency of this Agreement, Purchaser,
personally or through its authorized agents, shall be entitled upon reasonable advance notice to
the applicable Seller Party to enter upon the Real Property during normal business hours and shall
have the right to make such investigations, studies and analyses as Purchaser deems necessary or
advisable, subject to the following limitations: (a) such access shall not violate any law or, so
long as the same has been delivered to Purchaser, any agreement to which Seller is a party; (b) a
representative of the applicable Seller Party shall have the right to be present when Purchaser or
its representatives conducts its or their investigations on the Real Property or communicates with
any Tenants, (c) neither Purchaser nor its representatives shall interfere with any construction
activities taking place on the Real Property (except to a de minimis extent); (d) neither Purchaser
nor its agents shall damage the Real Property or any portion thereof (except to a de minimis
extent); (e) before Purchaser or its agents enter onto the Real Property, Purchaser shall deliver
to the applicable Seller Party a certificate of insurance naming the applicable Seller Party as an
additional insured, evidencing commercial general liability insurance (including property damage,
bodily injury and death) issued by an insurance company having a rating of at least “A-VII” by A.M.
Best Company, with limits of at least $1,000,000 per occurrence for bodily or personal injury or
death and $2,000,000 aggregate per location; (f) Purchaser shall: (i) use reasonable efforts to
perform all on-site due diligence reviews on an expeditious and efficient basis; and (ii)
indemnify, hold harmless and defend the Seller and the Seller Parties against, and hold each of
them harmless from, all loss, liability, claims, costs (including reasonable attorneys’ fees),
liens and damages resulting from or relating to the activities of Purchaser or its agents;
provided, however, that Purchaser shall not indemnify, hold harmless or defend Seller or any of the
Seller Parties against any loss, liability, claims, costs (including reasonable attorney’s fees),
liens or damages caused by any Seller Party’s negligence or willful misconduct, or which arise out
of the mere discovery of conditions that were present before Purchaser entered onto the Real
Property, and (g) without Seller’s prior written consent, which Seller may give or withhold in its
absolute discretion, Purchaser shall not conduct any Phase II investigations, soil borings or other



11









 




invasive tests on or around the Real Property. The foregoing indemnification obligation shall
survive the Closing or termination of this Agreement.




     Section 5.2. Study Period (a) Purchaser shall have the Study Period to (i)
physically inspect the Property, ascertain that the Property has sufficient characteristics for its
purposes, conduct appraisals, examine construction documents, perform examinations of the physical
condition of the Property and any improvements located thereon, and examine the Property for the
presence of Hazardous Materials, in each case as provided for in Section 5.1, and (ii)
review any materials delivered and/or made available to Purchaser and/or Purchaser’s
representatives (including, without limitation, the Reports and those items contained in that
certain data room website located at https://extranet.piperrudnick.com/eRoom/lyme/ (such website
being the “eRoom”) and have access to such other records relating to construction of any
improvements located on the Real Property as are in Seller’s possession or control (collectively,
the “Due Diligence Materials”) and to otherwise conduct such due diligence review of the
Property as Purchaser, in its absolute discretion, deems appropriate all at its sole cost. Where
this Agreement uses words such as “made available to Purchaser”, “provided to Purchaser”,
“disclosed to Purchaser” and the like, the presence of any information in the eRoom prior to the
commencement of the Restricted Period shall mean that such information was made available,
provided, delivered and disclosed to Purchaser.



     (b) Prior to the conclusion of the Study Period, Purchaser shall notify Seller as to which
Miscellaneous Consultant Agreements Purchaser will assume and which Miscellaneous Consultant
Agreements shall be terminated by Seller in Purchaser’s sole discretion, and in the absence of any
such notice, Purchaser shall be deemed to elect to assume all of the Miscellaneous Consultant
Agreements. Purchaser will assume the obligations coming due after the Closing Date under those
Miscellaneous Consultant Agreements which Purchaser has elected (or is deemed to have elected) to
assume, to the extent that the parties to such agreements agree to such assumption. Seller shall
terminate at Closing all Miscellaneous Consultant Agreements that are not so assumed.



     (c) If, before the end of the Study Period, Purchaser shall for any reason in Purchaser’s sole
discretion, determine that it does not wish to purchase the Property, Purchaser shall be entitled
to terminate this Agreement by giving written notice thereof to Seller prior to the expiration of
the Study Period, and thereupon the Deposit shall promptly be returned to Purchaser and, except for
the Surviving Obligations, Seller and Purchaser shall have no further obligations or liabilities to
each other hereunder. If Purchaser fails to give such notice prior to the expiration of the Study
Period, it shall conclusively be deemed to have elected to waive its right to terminate this
Agreement under this Section 5.2 and shall be obligated to purchase the Property in
accordance with the terms hereof. If Purchaser terminates this Agreement under this Section
5.2 or under any other provision of this Agreement, Purchaser shall promptly deliver to Seller
copies of all reports, studies and investigations relating to the Property in Purchaser’s
possession or under its control, the same to be without warranty or representation by Purchaser or
cost to Seller; provided, however, that Purchaser shall have no obligation to deliver copies of any
of the following to Seller: (i) any information or documents related to the transaction of which
this Agreement is a part, (ii) any projections and other internal memoranda or materials,
(iii) financial statements of Purchaser, appraisals, budgets, strategic plans for the Property



12









 







prepared by or on behalf of Purchaser, internal analyses and submissions relating to
Purchaser’s obtaining of internal authorizations and the like and (iv) any attorney and accountant
work product or any other materials subject to any legal privilege in favor of Purchaser.



     Section 5.3. Confidentiality (a) Subject to Section 5.3(b) and
5.3(c), Purchaser shall hold all Confidential Information in confidence and shall not at any
time disclose or permit the disclosure of the Confidential Information to any Person without
Seller’s prior written consent. Purchaser further agrees to use the Confidential Information only
for purposes of evaluating the Property in connection with its purchase thereof in accordance with
the terms of this Agreement. Notwithstanding the foregoing, (i) Purchaser may disclose the
Confidential Information to its affiliates, legal counsel, consultants, engineers, accountants,
lenders and similar third parties for their review of the Confidential Information in connection
with Purchaser’s purchase of the Property subject to the terms of this Section 5.3, and
(ii) Purchaser may disclose the Confidential Information to the extent that such disclosure is
required by law (including any securities law) or court order, provided that Purchaser first shall
provide written notice thereof to Seller. If this Agreement is terminated before the Closing,
Purchaser promptly shall return the Confidential Information to Seller and shall not retain copies
thereof.



     (b) Following the Effective Date, Seller and Purchaser shall make a public announcement
concerning the sale of the Property pursuant to this Agreement. Seller and Purchaser shall provide
drafts of such public announcement to, and confer with, the other party before such public
announcement is made.



     (c) From and after the Closing, notwithstanding anything to the contrary contained in this
Agreement, any party to this transaction (and each employee, agent or representative of the
foregoing) may disclose to any and all persons, without limitation of any kind, the tax treatment
and tax structure of the transaction and all materials of any kind (including opinions or other tax
analyses) that are provided to them relating to such tax treatment and tax structure except to the
extent that maintaining confidentiality with respect thereto is necessary to comply with any
applicable federal or state securities laws. The authorization in the preceding sentence is not
intended to permit disclosure of any other information unrelated to the tax treatment and tax
structure of the transaction including (without limitation) (i) any portion of the transaction
documents or related materials to the extent not related to the tax treatment or tax structure of
the transaction, (ii) the existence or status of any negotiations unrelated to the tax issues, or
(iii) any other term or detail not relevant to the tax treatment or the tax structure of the
transaction.



     (d) The provisions of this Section 5.3 shall survive the termination of this
Agreement.



     Section 5.4. Reporting. In the event that Purchaser’s due diligence reveals
any condition of the Property that in Purchaser’s judgment requires disclosure to any governmental
agency or authority, Purchaser shall immediately notify Seller thereof. In such event, Seller, and
not Purchaser nor anyone acting on Purchaser’s behalf, shall make such disclosures as Seller deems
appropriate. Notwithstanding the foregoing, Purchaser may disclose matters concerning the Property
to a governmental authority if, (a) in the written opinion of Purchaser’s outside legal counsel (a
copy of which is furnished to Seller), Purchaser is, or more likely than not is, required by law to
make such disclosure, and (b) to the extent permitted by law, Purchaser gives Seller



13









 







not less than ten (10) Business Days prior written notice of the proposed disclosure, together
with a copy of such legal opinion.



     Section 5.5. Miscellaneous Consultant Consents. Seller shall use
commercially reasonable efforts (as defined below) to obtain the following prior to the
commencement of the Restricted Period: a Miscellaneous Consultant Consent from each party to the
Miscellaneous Consultant Agreements (other than the Seller or any predecessor-in-interest of Seller
thereunder). Seller’s sole obligation with respect to the Miscellaneous Consultant Consents shall
be to use commercially reasonable efforts to obtain the same (which, for purposes of this
Section 5.5, shall mean requesting the applicable document from the intended signatory
thereto, and shall in no event include the expenditure of any funds, the amendment of any
Miscellaneous Consultant Agreement or the commencement, settlement or other resolution of any
litigation, arbitration or similar proceeding), and Purchaser’s sole remedy with respect to
Seller’s failure to obtain any such document (or any issue disclosed in any such document) shall be
to terminate this Agreement in accordance with Section 5.2.



ARTICLE 6




Conditions Precedent, Condemnation




     Section 6.1. Conditions Precedent Favoring Purchaser. Purchaser’s
obligations under this Agreement are subject to the fulfillment of the conditions set forth in this
Section 6.1 on or before the Closing Date. Each condition may be waived in whole or in
part only by written notice of such waiver from Purchaser to Seller or by Purchaser consummating
the transactions described in this Agreement at the Closing.



     (a) Each Seller shall have performed and complied in all material respects with all of the
terms of this Agreement to be performed and complied with by such Seller, as the case may be, prior
to or at the Closing.



     (b) Subject to Section 7.3, on the Closing Date, the representations of the
respective parties within the term Seller set forth in Section 7.2 (as the same have been
updated pursuant to Section 7.3(c)) shall be true, complete and accurate in all material
respects, subject to: (1) changes that: (y) are caused by the acts or omissions of Purchaser or
Persons acting under Purchaser; or (z) are a result of the operation of the Property in the normal
course of business since the date hereof and in accordance with the terms of this Agreement and do
not, individually or in the aggregate, have a material adverse effect on the value of the Property
or the Purchaser’s ability to use the Property for its intended uses; and (2) casualty or
condemnation (which shall be governed by Section 6.3).



     (c) Purchaser shall have received estoppel certificates from each of the following Tenants:
Alexion Pharmaceuticals, Inc., Higher One, Inc. and CT Technology Development Corp. (each, a
“Tenant Estoppel Certificate”) or shall have been provided with Seller’s Estoppel
Certificates as permitted by the following sentence, in each case dated no earlier than the
Effective Date (the “Estoppel Requirement”). If Tract K Seller is unable to obtain
estoppel certificates from Higher One, Inc. and CT Technology Development Corp., in order to meet
the



14









 







Estoppel Requirement, Tract K Seller shall provide to the Purchaser substitute Seller’s
Estoppel Certificates with respect to the Leases to Higher One, Inc. and CT Technology Development
Corp., as the case may be. With respect to any Tenant for whom Tract K Seller delivers a Seller’s
Estoppel Certificate, Tract K Seller’s statements therein shall be deemed to be representations and
warranties as though set forth under and subject to Article 7 of this Agreement. Tract K Seller
shall be entitled to continue to deal with such Tenant after Closing to attempt to obtain a Tenant
Estoppel Certificate from such Tenant. If Purchaser subsequently receives a Tenant Estoppel
Certificate from any Tenant for whom Tract K Seller has delivered a Seller’s Estoppel Certificate,
Tract K Seller shall thereupon be released from liability with respect to the Seller’s Estoppel
Certificate given with respect to such Tenant to the extent that the information contained in the
Tenant Estoppel Certificate obtained from the Tenant is materially consistent with the information
contained in Seller’s Estoppel Certificate. All Tenant Estoppel Certificates required hereby shall
be substantially in the form of the Seller’s Estoppel Certificate or, if the applicable Lease
provides a form tenant estoppel certificate that includes all of the material provisions of the
Seller’s Estoppel Certificate, then in the form so provided in such Lease, as the case may be; but
such form may contain modifications and additions so long as it sets forth the material provisions
of the form attached hereto. Except as provided in Section 6.1(g) below with respect to
any Certificate delivered to Purchaser before the commencement of the Restricted Period, no Tenant
Estoppel Certificate (or Seller’s Estoppel Certificate) shall count towards the Estoppel
Requirement if it (A) discloses any material default by Tract K Seller or the respective Tenant
that was not disclosed to Purchaser before the commencement of the Restricted Period or (B)
contains information that is materially inconsistent with the information set forth in the Leases
as made available to Purchaser before the commencement of the Restricted Period or (C) sets forth
claims or disputes not disclosed to Purchaser before the commencement of the Restricted Period, and
in each case has a material adverse effect on the value of the Property following the Closing; or
(D) discloses any information that would make any Seller Representation untrue in any material
respect. Tenant Estoppel Certificates or Seller’s Estoppel Certificates that set forth claims,
disputes or landlord defaults with respect to construction or other matters having an individual
value of not more than One Hundred Thousand Dollars ($100,000) and an aggregate value (with respect
to all Tenant Estoppel Certificates and Seller’s Estoppel Certificates) of not more than Two
Hundred Thousand Dollars ($200,000) and that would not entitle the Tenant under the applicable
Lease to terminate such Lease pursuant to the terms thereof as of the date of such Certificates
shall conclusively be deemed not to have a material adverse effect on the value of the Property
following the Closing; but Tenant Estoppel Certificates or Seller’s Estoppel Certificates that set
forth claims, disputes or landlord defaults with respect to construction or other matters having an
individual value greater than One Hundred Thousand Dollars ($100,000) or an aggregate value (with
respect to all Tenant Estoppel Certificates and Seller’s Estoppel Certificates) greater than Two
Hundred Thousand Dollars ($200,000) or that would entitle the Tenant under the applicable Lease to
terminate such Lease pursuant to the terms thereof as of the date of such Certificates shall
conclusively be deemed to have a material adverse effect on the value of the Property following the
Closing. The foregoing deemed material adverse effect shall apply to all Tenant Estoppel
Certificates and Seller’s Estoppel Certificates, whether the same are delivered to Purchaser before
or following the commencement of the Restricted Period (notwithstanding the provisions of
Section 6.1(g) below). If any Tenant Estoppel Certificate or Seller’s Estoppel Certificate
provided to Purchaser contains any information that is inconsistent with any Seller



15









 







Representation, the Seller Representation shall be deemed modified by the information
contained in such Certificate, and for the avoidance of doubt, each such Certificate shall be
treated as an Update. Notwithstanding anything herein to the contrary but subject to the
provisions set forth in Section 6.1(g) below with respect to any Certificate delivered to
Purchaser before the commencement of the Restricted Period, an estoppel certificate that would
otherwise satisfy the requirements for an acceptable estoppel certificate above, except for an
alleged “landlord default” or any Tenant claims or disputes in excess of the foregoing amounts set
forth in such certificate shall be deemed acceptable and shall count toward the Estoppel
Requirement if (x) Tract K Seller cures such asserted landlord default at or prior to the Closing,
or (y) Tract K Seller is disputing such landlord default in good faith, such alleged default
reasonably could not result in a termination of the respective Lease, and Tract K Seller at its
sole discretion deposits with the Escrow Agent at the Closing funds reasonably adequate to effect
the cure of such landlord default post-Closing and pay Tenant all amounts due under the Lease or
that otherwise may be due to the Tenant under applicable law, if any, as a result thereof, such
funds to be held in escrow by the Escrow Agent until such dispute is resolved in landlord’s favor
or such landlord default is cured, and if such dispute is not resolved in landlord’s favor within
ninety (90) days after the Closing, Purchaser may use and apply so much of the escrow funds as
shall be necessary to cure the landlord default and pay Tenant all amounts due under the Lease or
that may otherwise be due to the Tenant under applicable law, if any, as a result thereof, and any
remaining balance shall be promptly remitted to Tract K Seller. Purchaser shall reasonably
cooperate with Tract K Seller’s efforts to effect such cure after the Closing at no material cost
to Purchaser (unless such cost is reimbursed to Purchaser).



     (d) Purchaser shall have received from the landlord under each Ground Lease a “Ground
Landlord’s Consent” substantially in the form of Schedule 6.1(d), which includes the
“Ground Landlord Estoppel Provisions” therein, dated no earlier than the Effective Date.
Such form may contain modifications and additions so long as it sets forth the material provisions
of the form attached hereto. Except as provided in Section 6.1(g) below with respect to
any Certificate delivered to Purchaser before the commencement of the Restricted Period, no Ground
Landlord Estoppel Provisions shall satisfy this condition to Closing if the same (A) discloses any
material default by the tenant under such Ground Lease that was not disclosed to Purchaser before
the commencement of the Restricted Period or (B) contains information that is materially
inconsistent with the information set forth in the Ground Leases as made available to Purchaser
before the commencement of the Restricted Period or (C) sets forth claims or disputes not disclosed
to Purchaser before the commencement of the Restricted Period, and in each case has a material
adverse effect on the value of the Property following the Closing; or (D) discloses any information
that would make any Seller Representation untrue in any material respect. Ground Landlord Estoppel
Provisions that set forth claims, disputes or tenant defaults with respect to construction or other
matters having an individual value of not more than One Hundred Fifty Thousand Dollars ($150,000)
and an aggregate value (with respect to all Ground Landlord Estoppel Provisions) of not more than
Three Hundred Thousand Dollars ($300,000) and that would not entitle the landlord under the
applicable Ground Lease to terminate such Ground Lease pursuant to the terms thereof as of the date
of such Certificates shall conclusively be deemed not to have a material adverse effect on the
value of the Property following the Closing; but Ground Landlord Estoppel Provisions that set forth
claims, disputes or tenant defaults with respect to construction or other matters having an
individual value greater than One Hundred



16









 







Fifty Thousand Dollars ($150,000) or an aggregate value (with respect to all Ground Landlord
Estoppel Provisions) greater than Three Hundred Thousand Dollars ($300,000) or that would entitle
the landlord under the applicable Ground Lease to terminate such Ground Lease pursuant to the terms
thereof as of the date of such Certificates shall conclusively be deemed to have a material adverse
effect on the value of the Property following the Closing. The foregoing deemed material adverse
effect shall apply to all Ground Landlord Estoppel Provisions, whether the same are delivered to
Purchaser before or following the commencement of the Restricted Period (notwithstanding the
provisions of Section 6.1(g) below). If the Ground Landlord Estoppel Provisions provided
to Purchaser contain any information that is inconsistent with any Seller Representation, the
Seller Representation shall be deemed modified by the information contained in such Certificate,
and for the avoidance of doubt, each such Certificate shall be treated as an Update.
Notwithstanding anything herein to the contrary but subject to the provisions set forth in
Section 6.1(g) below with respect to any Certificate delivered to Purchaser before the
commencement of the Restricted Period, a Ground Landlord’s Consent that would otherwise satisfy the
requirements for an acceptable Ground Landlord’s Consent above, except for an alleged tenant
default under the Ground Lease or any landlord claim or disputes under such Ground Lease in excess
of the foregoing amounts set forth in such Certificate shall be deemed acceptable and shall satisfy
this condition to Closing if (x) the tenant under such Ground Lease cures such asserted tenant
default at or prior to the Closing, or (y) the tenant under such Ground Lease is disputing such
tenant default in good faith, such alleged default reasonably could not result in a termination of
such Ground Lease, and the tenant under such Ground Lease at its sole discretion deposits with the
Escrow Agent at the Closing funds reasonably adequate to effect the cure of such tenant default
post-Closing and pay the landlord under such Ground Lease all amounts due under such Ground Lease
or that otherwise may be due to the landlord under such Ground Lease under applicable law, if any,
as a result thereof, such funds to be held in escrow by the Escrow Agent until such dispute is
resolved in favor of the tenant under such Ground Lease, or such tenant default is cured, and if
such dispute is not resolved in tenant’s favor within ninety (90) days after the Closing, Purchaser
may use and apply so much of the escrow funds as shall be necessary to cure the applicable default
and pay the landlord under such Ground Lease all amounts due under such Ground Lease or that may
otherwise be due to such landlord under applicable law, if any, as a result thereof, and any
remaining balance shall be promptly remitted to the applicable Seller entity. Purchaser shall
reasonably cooperate with any such Seller entity’s efforts to effect such cure after the Closing at
no material cost to Purchaser (unless such cost is reimbursed to Purchaser).



     (e) Purchaser shall have received from each party to the TDA (other than any Seller) (each
such party being a “TDA Party”) a “TDA Consent” substantially in the form of
Schedule 6.1(e), which includes the “TDA Estoppel Provisions” therein, dated no
earlier than the Effective Date. The TDA Estoppel Provisions required hereby shall be
substantially in the form set forth in the TDA Consent; but such form may contain modifications and
additions so long as it sets forth the material provisions of the form attached hereto. Except as
provided in Section 6.1(g) below with respect to any Certificate delivered to Purchaser
before the commencement of the Restricted Period, no TDA Estoppel Provisions shall satisfy this
condition to Closing if the same (A) discloses any material default by any Person under the TDA
that was not disclosed to Purchaser before the commencement of the Restricted Period or (B)
contains information that is materially inconsistent with the information set forth in the TDA as
made available to Purchaser



17









 







before the commencement of the Restricted Period or (C) sets forth claims or disputes not
disclosed to Purchaser before the commencement of the Restricted Period, and in each case has a
material adverse effect on the value of the Property following the Closing; or (D) discloses any
information that would make any Seller Representation untrue in any material respect. TDA Estoppel
Provisions that set forth claims, disputes or defaults with respect to construction, remediation or
other matters having an individual value of not more than One Hundred Fifty Thousand Dollars
($150,000) and an aggregate value (with respect to all TDA Estoppel Provisions) of not more than
Three Hundred Thousand Dollars ($300,000) and that would not entitle a TDA Party to terminate the
TDA pursuant to the terms thereof as of the date of such Certificate shall conclusively be deemed
not to have a material adverse effect on the value of the Property following the Closing; but TDA
Estoppel Provisions that set forth claims, disputes or tenant defaults with respect to
construction, remediation or other matters having an individual value greater than One Hundred
Fifty Thousand Dollars ($150,000) or an aggregate value (with respect to all TDA Estoppel
Provisions) greater than Three Hundred Thousand Dollars ($300,000) or that would entitle a TDA
Party to terminate the TDA pursuant to the terms thereof as of the date of such Certificates shall
conclusively be deemed to have a material adverse effect on the value of the Property following the
Closing. The foregoing deemed material adverse effect shall apply to the TDA Estoppel Provisions,
whether the same are delivered to Purchaser before or following the commencement of the Restricted
Period (notwithstanding the provisions of Section 6.1(g) below). If the TDA Estoppel
Provisions provided to Purchaser contain any information that is inconsistent with any Seller
Representation, the Seller Representation shall be deemed modified by the information contained in
such Certificate, and for the avoidance of doubt, each such Certificate shall be treated as an
Update. Notwithstanding anything herein to the contrary but subject to the provisions set forth in
Section 6.1(g) below with respect to any Certificate delivered to Purchaser before the
commencement of the Restricted Period, a TDA Consent that would otherwise satisfy the requirements
for an acceptable TDA Consent above, except for an alleged default by a Seller under the TDA or any
TDA Party claim or disputes under the TDA in excess of the foregoing amounts set forth in such
Certificate shall be deemed acceptable and shall satisfy this condition to Closing if (x) the
applicable Seller party cures such asserted default under the TDA at or prior to the Closing, or
(y) the applicable Seller party is disputing such default in good faith, such alleged default
reasonably could not result in a termination of, or exercise of remedies under, the TDA, and such
Seller party under the TDA at its sole discretion deposits with the Escrow Agent at the Closing
funds reasonably adequate to effect the cure of such Seller party default post-Closing and pay the
applicable TDA Party under the TDA all amounts due under the TDA or that otherwise may be due to
the such TDA Party under the TDA under applicable law, if any, as a result thereof, such funds to
be held in escrow by the Escrow Agent until such dispute is resolved in favor of such Seller party
under the TDA, or such Seller party default is cured, and if such dispute is not resolved in such
Seller party’s favor within ninety (90) days after the Closing, Purchaser may use and apply so much
of the escrow funds as shall be necessary to cure the applicable default and pay the TDA Party all
amounts due under the TDA or that may otherwise be due to such TDA Party under applicable law, if
any, as a result thereof, and any remaining balance shall be promptly remitted to the applicable
Seller entity. Purchaser shall reasonably cooperate with any such Seller entity’s efforts to
effect such cure after the Closing at no material cost to Purchaser (unless such cost is reimbursed
to Purchaser).



18









 





     (f) Purchaser shall have received from the ARDA Party the “ARDA Consent” substantially
in the form of Schedule 6.1(f), which includes the “ARDA Estoppel Provisions”
therein, dated no earlier than the Effective Date. The ARDA Estoppel Provisions required hereby
shall be substantially in the form set forth in the ARDA Consent; but such form may contain
modifications and additions so long as it sets forth the material provisions of the form attached
hereto. Except as provided in Section 6.1(g) below with respect to any Certificate
delivered to Purchaser before the commencement of the Restricted Period, no ARDA Estoppel
Provisions shall satisfy this condition to Closing if the same (A) discloses any material default
by any Person that was not disclosed to Purchaser before the commencement of the Restricted Period
or (B) contains information that is materially inconsistent with the information set forth in the
ARDA as made available to Purchaser before the commencement of the Restricted Period or (C) sets
forth claims or disputes not disclosed to Purchaser before the commencement of the Restricted
Period, and in each case has a material adverse effect on the value of the Property following the
Closing; or (D) discloses any information that would make any Seller Representation untrue in any
material respect. ARDA Estoppel provisions that set forth claims, disputes or tenant defaults with
respect to construction, remediation or other matters having a value of not more than Three Hundred
Thousand Dollars ($300,000) and that would not entitle the ARDA Party to terminate the ARDA
pursuant to the terms thereof as of the date of such Certificate shall conclusively be deemed not
to have a material adverse effect on the value of the Property following the Closing; but ARDA
Estoppel Provisions that set forth claims, disputes or Lyme Properties LLC defaults with respect to
construction, remediation or other matters having a value greater than Three Hundred Thousand
Dollars ($300,000) or that would entitle the ARDA Party to terminate the ARDA pursuant to the terms
thereof as of the date of such Certificate shall conclusively be deemed to have a material adverse
effect on the value of the Property following the Closing. The foregoing deemed material adverse
effect shall apply to the ARDA Estoppel Provisions, whether the same are delivered to Purchaser
before or following the commencement of the Restricted Period (notwithstanding the provisions of
Section 6.1(g) below). If ARDA Estoppel Provisions provided to Purchaser contain any
information that is inconsistent with any Seller Representation, the Seller Representation shall be
deemed modified by the information contained in such Certificate, and for the avoidance of doubt,
each such Certificate shall be treated as an Update. Notwithstanding anything herein to the
contrary but subject to the provisions set forth in Section 6.1(g) below with respect to
any Certificate delivered to Purchaser before the commencement of the Restricted Period, ARDA
Estoppel Provisions that would otherwise satisfy the requirements for acceptable ARDA Estoppel
Provisions above, except for an alleged Lyme Properties LLC default under the ARDA or any ARDA
Party claim or disputes under such ARDA in excess of the foregoing amounts set forth in such
certificate shall be deemed acceptable and shall satisfy this condition to Closing if (x) Lyme
Properties LLC cures such asserted default at or prior to the Closing, or (y) Lyme Properties LLC
is disputing such default in good faith, such alleged default reasonably could not result in a
termination of, or exercise of remedies under, the ARDA, and Lyme Properties LLC at its sole
discretion deposits with the Escrow Agent at the Closing funds reasonably adequate to effect the
cure of such Lyme Properties LLC default post-Closing and pay the ARDA Party all amounts due under
the ARDA or that otherwise may be due to the ARDA Party under the ARDA under applicable law, if
any, as a result thereof, such funds to be held in escrow by the Escrow Agent until such dispute is
resolved in favor of Lyme Properties LLC under the ARDA, or such default is cured, and if such
dispute is not resolved in Lyme Properties LLC’s favor within ninety (90)



19









 







days after the Closing, Purchaser may use and apply so much of the escrow funds as shall be
necessary to cure the applicable default and pay the ARDA Party all amounts due under the ARDA or
that may otherwise be due to the ARDA Party under applicable law, if any, as a result thereof, and
any remaining balance shall be promptly remitted to Lyme Properties LLC. Purchaser shall
reasonably cooperate with Lyme Properties LLC’s efforts to effect such cure after the Closing at no
material cost to Purchaser (unless such cost is reimbursed to Purchaser).



     (g) If Seller is unable to obtain any of the documents described in Section 6.1 (c),
(d), (e) and (f) above (each of the foregoing, a “Certificate”) or
otherwise to meet any condition to Purchaser’s obligation to perform, Seller shall have the option,
by written notice to Purchaser, to extend the Closing Date from time to time for not more than
sixty (60) days in the aggregate from the original Closing Date. Except as otherwise expressly set
forth in Section 6.1(c) above, in the event that any Certificate is delivered to Purchaser
before the commencement of the Restricted Period, and thereafter Purchaser does not terminate this
Agreement pursuant to Section 5.2, then notwithstanding anything set forth in this
Agreement to the contrary, any such Certificate shall be deemed to satisfy any requirement
applicable thereto set forth in this Agreement, and Purchaser shall have no right to object to the
form, content or substance of such Certificate or any matter disclosed therein as not meeting the
conditions for Closing and any such nonconformity shall be deemed waived. Seller shall use
commercially reasonable efforts to obtain each of the Certificates.



     (h) Seller shall have the option to obtain updates to any of the Certificates (any such update
being an “Updated Certificate”). In the event that any Updated Certificate (x) discloses
information that is different from the information set forth in the prior Certificate and (y) such
additional disclosure would cause such Updated Certificate not to comply with Section
6.1(c), (d), (e) or (f) (as applicable), then such Updated Certificate
shall be treated as an Update in accordance with Section 7.3(c), and Purchaser’s only
remedy with respect thereto shall be to terminate this Agreement pursuant to the terms of
Section 7.3(c) prior to the expiration of the Update Termination Period applicable thereto.



     (i) Subject to (x) all applicable provisions, limitations and exclusions set forth in this
Agreement with respect to the Certificates and (y) any other matters that have been otherwise
disclosed to Purchaser by Seller (which matters (x) and (y) shall not apply to the Two Million
Dollar ($2,000,000) threshold amount set forth in this Section 6.1(i)), the aggregate
amount of all adverse matters disclosed in the Certificates to which a dollar amount is applicable
in each such Certificate shall not exceed Two Million Dollars ($2,000,000).



     (j) Upon satisfaction of the conditions set forth in the Title Commitment, the Title Company
is irrevocably committed to issue the Title Policies to Purchaser.



     (k) The physical condition of the Property shall be substantially the same on the Closing Date
as on the Effective Date, unless the alteration of said physical condition is the result of
condemnation or fire or other casualty, in which case the provisions of Section 6.3 shall
govern.



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     (l) No proceeding shall have been commenced against any party included within the term Seller
under the federal Bankruptcy Code or any state law for relief of debtors.



     (m) As of the Closing Date, the Leases and the Ground Leases shall be in full force and effect
and no default shall exist under any Lease or Ground Lease.



     (n) Each applicable party included within the term Seller shall have obtained all consents and
approvals set forth in Schedule 6.1(n), except for such items as Purchaser reasonably
determines Seller need not obtain consent.



     Section 6.2. Conditions Precedent Favoring Seller. Seller’s obligations under
this Agreement are subject to the fulfillment of the conditions set forth in this Section
6.2 on or before the Closing Date, or such earlier date as is set forth below. Each condition
may be waived in whole or part only by written notice of such waiver from Seller to Purchaser, or
by Seller consummating the transactions described in this Agreement at the Closing.



     (a) Purchaser shall have performed and complied in all material respects with all of the terms
of this Agreement to be performed and complied with by Purchaser prior to or at the Closing.



     (b) On the Closing Date, the representations of Purchaser set forth in Section 7.1
shall be true, accurate and complete in all material respects.



     (c) On or before the Closing Date, Seller shall have received evidence satisfactory to Seller
that the obligations and liabilities of The Lyme Timber Company under the Lyme Timber Guarantys
shall be discharged and released effective as of the Closing. Seller and Purchaser shall use
commercially reasonable efforts to cause such discharge and release to occur at or prior to the
Closing.



     (d) Reference is made to those certain letters of credit delivered by the applicable Seller
Parties to the landlords under the Ground Leases for Tract A, Tract B-2, Tract D and Tract E in the
respective amounts of $29,929.61, $4,185.90, $8,417.70 and $25,000. On or before the Closing Date,
Seller shall have received evidence satisfactory to Seller that Purchaser has entered into an
arrangement with the beneficiaries of such letters of credit such that (x) Purchaser provides
replacement security to such parties and (y) Seller’s letters of credit are returned to Seller at
Closing. Seller and Purchaser shall use commercially reasonable efforts to cause such replacement
and return of such letters of credit at Closing.



     Section 6.3. Casualty or Condemnation



     (a) If after the date hereof and prior to Closing, the Real Property or any part thereof shall
be (x) subject to a taking by any public or quasi-public authority through condemnation, eminent
domain or otherwise (including, but not limited to, any transfer made in lieu of or in anticipation
of the exercise of such taking) (collectively, “Condemnation”) or (y) destroyed or damaged
by fire or other casualty and in either case the parties reasonably estimate the proceeds from such
Condemnation or the cost to repair the damage or destruction to be in excess of fifteen



21









 







percent (15%) of the Purchase Price allocable to the Real Property (a “Major Event”),
Purchaser shall have the option exercisable within ten (10) Business Days after Purchaser and
Seller make a determination or agree on such estimate either (a) to terminate this Agreement by
written notice to Seller, whereupon all rights and obligations hereunder of each party shall cease
and terminate and be of no further force or effect except for the return of the Deposit to
Purchaser and the Surviving Obligations, or (b) to elect to take title to the Real Property without
any reduction in, abatement of, or credit against the Purchase Price (except as expressly set forth
in Section 6.3(b) below), notwithstanding such Condemnation, destruction or damage; if
Purchaser fails to make either such election within such period, Purchaser shall be deemed to have
elected option (b). If the parties fail to agree to the reasonable estimate of the proceeds from
such Condemnation or the cost to repair the damage or destruction within thirty (30) days after
the date of the applicable Condemnation or casualty, then Seller and Purchaser may submit the
dispute to the American Arbitration Association in Boston pursuant to the Expedited Procedures of
the Commercial Dispute Resolution Procedures thereof (and the Closing will be adjourned pending the
resolution of such arbitration). If, despite the occurrence of a Major Event, Purchaser elects to
consummate the transactions contemplated by this Agreement, at the Closing Seller shall assign to
Purchaser (without recourse) (x) the rights of Seller in and to the Condemnation proceeds or all
insurance proceeds with respect to such Major Event, net of the amount of the reasonable costs and
expenses incurred by Seller (including, but not limited to, reasonable legal fees and closing costs
under a sale in lieu of or in anticipation of the exercise of a taking) in collecting same
(“Net Proceeds”), and give Purchaser, without duplication, a credit against the Purchase
Price in the amount of the Net Proceeds already received by Seller prior to Closing (provided,
however, Seller shall receive, without duplication, a credit against such Purchaser credit for any
such costs and expenses not recovered prior to Closing) and (y) the rights to settle any
Condemnation proceeding or the loss under all policies of insurance applicable to the Major Event,
and Seller shall at Closing and thereafter execute and deliver to Purchaser all required proofs of
loss, assignments of claims and other similar items.



     (b) If after the date hereof and prior to Closing, the Real Property or any part thereof shall
be (x) subject to a Condemnation or (y) destroyed or damaged by fire or other casualty and, in
either case, it is not a Major Event, then the transaction contemplated by this Agreement shall be
consummated, without any reduction in, abatement of, or credit against the Purchase Price (except
as expressly set forth in this Section 6.3(b)) and Seller shall, at its option, either (i)
repair such damage prior to Closing and Seller shall keep any insurance or Condemnation proceeds,
(ii) allow Purchaser a credit against the Purchase Price in an amount equal to the reasonably
estimated cost of repair and Seller shall keep any insurance or Condemnation proceeds, or (iii)
assign to Purchaser (without recourse) the rights of Seller to the Net Proceeds, and, without
duplication, give Purchaser a credit against the Purchase Price in the amount of the Net Proceeds
already received by Seller prior to Closing (provided, however, Seller shall receive without
duplication a credit against such Purchaser credit for any such costs and expenses not recovered
prior to Closing) and the rights to settle any Condemnation proceeding or the loss under all
policies of insurance applicable to the Condemnation, destruction or damage, and Seller shall at
Closing and thereafter execute and deliver to Purchaser all required proofs of loss, assignments of
claims and other similar items.



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     (c) In the event that (i) a casualty occurs at the Real Property prior to the Closing, (ii) a
deductible is payable in connection with obtaining insurance proceeds with respect to such casualty
and (iii) Purchaser consummates the transaction notwithstanding such casualty and receives an
assignment of the Net Proceeds pursuant to Section 6.3(a) or Section 6.3(b), Seller
shall pay such deductible or shall give Purchaser a credit against the Purchase Price at Closing
for such deductible and such deductible shall not be considered in determining Net Proceeds.



     Section 6.4. Leasing & Other Activities Prior to Closing.



     (a) After the Effective Date, Seller shall not enter into any new lease or any material
modification of any Lease or Ground Lease or lease that would be binding on Purchaser after Closing
or grant any material consent or approval under any Lease or Ground Lease or lease which consent or
approval must be requested in writing and delivered in writing in order to be effective without
Purchaser’s prior written consent, which consent shall not be unreasonably withheld, conditioned or
delayed; provided, however, that notwithstanding the foregoing, Seller shall not be required to
obtain Purchaser’s consent to enter into any modification, renewal or extension of any Lease or
Ground Lease or lease, or to grant any consent under any Lease or Ground Lease or lease, to the
extent that the same is required pursuant to the applicable terms of the Lease or Ground Lease or
lease, as the case may be; provided, further, that Purchaser may withhold its consent in its sole
discretion if, assuming the Closing were to occur, any action could jeopardize BioMed Realty Trust,
Inc.’s, a Maryland corporation (“Purchaser’s REIT Entity”), status as a real estate
investment trust within the meaning of Sections 856 through 860 of the Code or cause the
Purchaser’s REIT Entity to be in receipt of income that does not constitute “rent from real
property” within the meaning of Section 856(d) of the Code. When seeking such consent from
Purchaser, Seller shall provide Purchaser with a description of the proposed transaction and, if
Purchaser does not notify Seller in writing of its disapproval within two (2) Business Days,
Purchaser shall be deemed to have consented to the transaction described in such notice. If
Purchaser disapproves such request, then Purchaser’s written notice shall specify in reasonable
detail the reasons for such disapproval. If the Closing occurs, Purchaser shall reimburse Seller
at Closing for all Lease Expenses related to any new Lease or material modification of an existing
Lease.



     (b) After the Effective Date, Seller shall not enter into any new agreements or contracts with
respect to the Property that would be binding on Purchaser, or material modifications of any such
agreements or contracts or any existing Miscellaneous Consultant Agreements or Other Matters or
grant any material consent or approval under any of the Miscellaneous Consultant Agreements or
Other Matters which consent or approval must be requested in writing and delivered in writing in
order to be effective that would be binding on Purchaser after Closing, without the written consent
of Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed; provided,
however, that Purchaser’s consent shall not be required with respect to any contract that is not
binding on Purchaser or that can be terminated without penalty on not more than thirty (30) days
prior written notice; provided, further, that Purchaser may withhold its consent in its sole
discretion if, assuming the Closing were to occur, any action could jeopardize Purchaser’s REIT
Entity’s status as a real estate investment trust within the meaning of Sections 856 through 860 of
the Code or cause the Purchaser’s REIT Entity to be in receipt of income that does not constitute
“rent from real property” within the meaning of



23









 







Section 856(d) of the Code. If Purchaser does not notify Seller in writing of its disapproval
within two (2) Business Days after notice thereof from Seller, Purchaser shall be deemed to have
consented to such requested action. If Purchaser disapproves any such request, then Purchaser’s
written notice shall specify in reasonable detail the reasons for such disapproval.



     (c) At all times prior to Closing, Seller shall (i) continue to conduct business with respect
to the Property substantially in the same manner in which said business has been heretofore
conducted, (ii) perform its obligations under the Leases, the Ground Leases and any contracts or
other agreements affecting the Property (including, without limitation, the Miscellaneous
Consultant Agreements and the Other Matters), (iii) continue to insure the Property substantially
as it is currently insured, and (iv) not take any action that would cause any of the Seller
Representations to become inaccurate in any material respect or any of the covenants of Seller to
be materially breached. Without limiting the generality of the foregoing, Seller shall pay all
accounts payable, and any debts or obligations owed by Seller relating to the Property when due
(“when due,” “coming due” or like words means the time for payment set forth in any
contract, or if no time is set forth then within thirty days (30) of the date when an invoice for
payment is received by Seller).



     (d) Seller shall not remove from the Real Property any Personal Property used in connection
with the operation of the Real Property (but nothing herein shall be deemed to make Seller
responsible for the acts of others at the Real Property).



     (e) No later than the Effective Date, Seller (i) shall remove the Property from the market and
(ii) shall not actively solicit or negotiate with any other prospective purchasers of the Property;
provided, however, that nothing herein shall in any way affect or apply to any dealings that Seller
has had with others prior to the Effective Date.



     (f) Seller shall provide Purchaser with copies of all written notices under any agreement,
contract or other document with respect to which a Certificate is required to be delivered pursuant
to the terms of this Agreement for the period after the Effective Date.



ARTICLE 7




     Section 7.0. No Other Representations Except as otherwise expressly set
forth in this Article 7, Purchaser and Seller specifically agree that neither is relying on any
statements, representations or warranties of any kind whatsoever, express or implied, from the
other party or any other Person acting by, under or through the other party. Purchaser
acknowledges the legal significance of the foregoing and acknowledges that such agreement is a
material inducement to Seller’s willingness to enter into this Agreement.



     Section 7.1. Purchaser’s Representations. Purchaser warrants and represents
to Seller as of the date hereof as follows:



     (a) Purchaser is an experienced and sophisticated purchaser of commercial real estate projects
such as the Property and, prior to the end of the Study Period, it will have had a full, complete
and fair opportunity to conduct such investigations, examinations, inspections and




24










 




analyses of the Property as Purchaser, in its absolute discretion, may deem appropriate.
PURCHASER IS PURCHASING THE PROPERTY “AS-IS, WHERE IS AND WITH ALL FAULTS” IN ITS PRESENT
CONDITION, SUBJECT TO REASONABLE USE, WEAR, TEAR, CONSTRUCTION ACTIVITIES AND NATURAL DETERIORATION
BETWEEN THE DATE HEREOF AND THE CLOSING DATE AND FURTHER AGREES THAT NEITHER SELLER NOR ANY AGENT,
DIRECT OR INDIRECT PARTNER, DIRECT OR INDIRECT MEMBER, EMPLOYEE OR REPRESENTATIVE OF THE FOREGOING
(i) SHALL BE LIABLE FOR ANY LATENT OR PATENT DEFECTS IN THE PROPERTY OR (ii) HAVE MADE ANY
REPRESENTATION WHATSOEVER REGARDING THE PROPERTY OR ANY PART THEREOF, THE CONSTRUCTION OR ANY OTHER
THING RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, AND
(iii) PURCHASER, IN EXECUTING, DELIVERING AND PERFORMING THIS AGREEMENT, HAS NOT AND DOES NOT RELY
UPON ANY STATEMENT, INFORMATION, OR REPRESENTATION TO WHOMSOEVER MADE OR GIVEN, WHETHER TO
PURCHASER OR OTHERS, AND WHETHER DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, MADE BY ANY PERSON,
EXCEPT AS EXPRESSLY SET FORTH HEREIN. IN ADDITION TO THE FOREGOING, PURCHASER REPRESENTS THAT
BEFORE THE EXPIRATION OF THE STUDY PERIOD PURCHASER WILL HAVE EXAMINED THE PROPERTY, THE REPORTS,
THE DUE DILIGENCE MATERIALS AND SUCH CONSTRUCTION, DESIGN AND OTHER MATTERS AS IT DEEMS
APPROPRIATE, AND WILL BE FAMILIAR WITH THE PHYSICAL AND ENVIRONMENTAL CONDITION OF THE PROPERTY AND
WILL HAVE CONDUCTED SUCH OTHER INVESTIGATION OF THE AFFAIRS AND CONDITION OF THE PROPERTY AS
PURCHASER CONSIDERS APPROPRIATE. NEITHER SELLER, NOR ANY AFFILIATE OF SELLER, NOR ANY AGENT,
DIRECT OR INDIRECT PARTNER, DIRECT OR INDIRECT MEMBER, EMPLOYEE OR REPRESENTATIVE OF THE FOREGOING
HAVE MADE OR WILL BE ALLEGED TO HAVE MADE ANY ORAL OR WRITTEN REPRESENTATIONS, WARRANTIES, PROMISES
OR GUARANTIES WHATSOEVER TO PURCHASER, WHETHER EXPRESS OR IMPLIED, AND, IN PARTICULAR, NO SUCH
REPRESENTATIONS, WARRANTIES, PROMISES OR GUARANTIES HAVE BEEN MADE OR WILL BE MADE OR WILL BE
ALLEGED TO HAVE BEEN MADE WITH RESPECT TO THE PHYSICAL CONDITION, CONSTRUCTION, DESIGN,
ENVIRONMENTAL CONDITION OR OPERATION OF THE PROPERTY, THE ACTUAL OR PROJECTED REVENUE AND EXPENSES
OF THE PROPERTY, THE PERMITS, ZONING AND OTHER LAWS, REGULATIONS AND RULES APPLICABLE TO THE
PROPERTY OR THE COMPLIANCE OF THE PROPERTY THEREWITH, THE CONSTRUCTION, DESIGN, CONDITION OR SAFETY
OF THE PROPERTY OR ANY IMPROVEMENTS THEREON OR ANY UTILITIES AND SERVICES WITH RESPECT THERETO OR
THE CONDITIONS OF ANY SOILS AND GEOLOGY, LOT SIZE, OR SUITABILITY OF THE PROPERTY OR ITS
IMPROVEMENTS FOR A PARTICULAR PURPOSE, THE QUANTITY, QUALITY OR CONDITION OF ANY PERSONAL PROPERTY
OR FIXTURES, THE USE OR OCCUPANCY OF THE PROPERTY OR ANY PART THEREOF OR ANY OTHER MATTER OR THING
AFFECTING OR RELATED TO THE PROPERTY OR THE TRANSACTIONS CONTEMPLATED HEREBY, EXCEPT AS, AND SOLELY
TO THE EXTENT SPECIFICALLY SET FORTH HEREIN. EXCEPT AS, AND SOLELY TO THE EXTENT, SPECIFICALLY SET
FORTH HEREIN,

25









 








NEITHER SELLER OR ANY AFFILIATE OF SELLER, NOR ANY AGENT, DIRECT OR INDIRECT PARTNER, DIRECT
OR INDIRECT MEMBER, EMPLOYEE OR REPRESENTATIVE OF THE FOREGOING HAVE MADE OR WILL MAKE ANY ORAL OR
WRITTEN REPRESENTATIONS, WARRANTIES, PROMISES OR GUARANTIES WHATSOEVER TO PURCHASER, WHETHER
EXPRESS OR IMPLIED, AND, IN PARTICULAR, THAT NO SUCH REPRESENTATIONS, WARRANTIES, PROMISES OR
GUARANTIES HAVE BEEN MADE OR WILL BE ALLEGED TO HAVE BEEN MADE WITH RESPECT TO THE TRUTH, ACCURACY
OR COMPLETENESS OF ANY MATERIALS, REPORTS, DATA OR OTHER INFORMATION, INCLUDING WITHOUT LIMITATION
THE CONTENTS OF THE BOOKS AND RECORDS OF SELLER OR REPORTS OR OTHER MATTERS LISTED ON
EXHIBITS OR SCHEDULES TO THIS AGREEMENT OR REFERRED TO HEREIN, THE DUE DILIGENCE
MATERIALS, PHYSICAL CONDITION AND ENVIRONMENTAL SURVEYS, INFORMATIONAL BROCHURES WITH RESPECT TO
THE PROPERTY, QUESTIONNAIRES (INCLUDING REIT QUESTIONNAIRES), RENT ROLLS, ANY INFORMATION PROVIDED
UNDER SECTION 11.20 OR IN CONNECTION WITH ANY OTHER REQUEST OF PURCHASER OR INCOME AND
EXPENSE STATEMENTS, WHICH SELLER OR ITS REPRESENTATIVES MAY HAVE DELIVERED, MADE AVAILABLE OR
FURNISHED TO PURCHASER IN CONNECTION WITH THE PROPERTY, AND PURCHASER REPRESENTS, WARRANTS AND
AGREES THAT ANY SUCH MATERIALS, QUESTIONNAIRES, DATA AND OTHER INFORMATION DELIVERED, MADE
AVAILABLE OR FURNISHED TO PURCHASER HAVE BEEN DELIVERED, MADE AVAILABLE OR FURNISHED TO PURCHASER
AS A CONVENIENCE AND ACCOMMODATION ONLY AND PURCHASER EXPRESSLY DISCLAIMS ANY INTENT TO RELY ON ANY
SUCH MATERIALS, QUESTIONNAIRES, DATA AND OTHER INFORMATION. PURCHASER HAS ENTERED INTO THIS
AGREEMENT, AFTER HAVING MADE AND RELIED SOLELY ON ITS OWN INDEPENDENT INVESTIGATION, INSPECTION,
ANALYSIS, APPRAISAL, EXAMINATION AND EVALUATION OF THE FACTS AND CIRCUMSTANCES. PURCHASER HAS NOT
RELIED UPON ANY SUCH REPRESENTATIONS, WARRANTIES, PROMISES OR GUARANTIES OR UPON ANY STATEMENTS
MADE IN ANY INFORMATIONAL BROCHURE WITH RESPECT TO THE PROPERTY AND HAS ENTERED INTO THIS AGREEMENT
AFTER HAVING MADE AND RELIED SOLELY ON ITS OWN INDEPENDENT INVESTIGATION, INSPECTION, ANALYSIS,
APPRAISAL, EXAMINATION AND EVALUATION OF THE FACTS AND CIRCUMSTANCES AND THE REPRESENTATIONS AND
WARRANTIES EXPRESSLY CONTAINED HEREIN. PURCHASER ACKNOWLEDGES THAT THE DESIGN AND/OR CONSTRUCTION
OF THE PROPERTY MAY NOT BE IN COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT OF 1990, AS
AMENDED AND OTHER LAWS, AND SELLER MAKES NO REPRESENTATIONS WITH RESPECT TO SAME. WITHOUT LIMITING
THE FOREGOING, NEITHER SELLER, NOR ANY AGENT, DIRECT OR INDIRECT PARTNER, DIRECT OR INDIRECT
MEMBER, EMPLOYEE OR REPRESENTATIVE OF THE FOREGOING HAS MADE ANY REPRESENTATION OR WARRANTY
WHATSOEVER REGARDING HAZARDOUS MATERIALS OF ANY KIND OR NATURE ON, ABOUT OR WITHIN THE PROPERTY OR
THE PHYSICAL CONDITION OF THE PROPERTY AND PURCHASER AGREES TO ASSUME THE RISK THAT ADVERSE
MATTERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION OR

26









 








DESIGN DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS MAY NOT HAVE BEEN REVEALED BY
PURCHASER’S INVESTIGATIONS OR ANY OTHER INFORMATION PURCHASER HAS REVIEWED. NOTWITHSTANDING ANY OF
THE FOREGOING, THE FOREGOING REPRESENTATION OF PURCHASER IS NOT INTENDED TO LIMIT, AND IS SUBJECT
TO, THE SELLER REPRESENTATIONS.




     (b) Purchaser is a limited partnership duly formed, validly existing and in good standing
under the laws of the State of Maryland. The Person(s) executing this Agreement on behalf of
Purchaser has been duly authorized to do so and this Agreement constitutes the valid and legally
binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms;



     (c) There are no actions, suits or proceedings pending or, to the knowledge of Purchaser,
threatened in writing, against or affecting Purchaser which, if determined adversely to Purchaser,
would adversely affect its ability to perform its obligations hereunder;



     (d) Purchaser has full right, power and authority and is duly authorized to enter into this
Agreement, to perform each of the covenants on its part to be performed hereunder and to execute
and deliver, and to perform its obligations under all documents required to be executed and
delivered by it pursuant to this Agreement;



     (e) Neither the execution, delivery or performance of this Agreement nor compliance herewith
(a) conflicts or will conflict with or results or will result in a breach of or constitutes or will
constitute a default under (1) the charter documents or by-laws of Purchaser, (2) to Purchaser’s
knowledge, any law or any order, writ, injunction or decree of any court or governmental authority,
or (3) any agreement or instrument to which Purchaser is a party or by which it is bound or (b)
results in the creation or imposition of any lien, charge or encumbrance upon its property pursuant
to any such agreement or instrument; and



     (f) No authorization, consent or approval of any governmental authority (including courts) is
required for the execution and delivery by Purchaser of this Agreement or the performance of its
obligations hereunder.



     (g) As of the Closing Date, Purchaser will have the financial resources necessary to
consummate the transactions contemplated under this Agreement (but nothing herein shall be
construed to grant Purchaser any financing contingency.)



     (h) As of the end of the Study Period, Purchaser will have inspected (and will be deemed to
have inspected and to have knowledge of) all of the documents referred to in this Agreement
(including those made available through the Due Diligence Materials) and any others delivered, or
made available for review to Purchaser for inspection and that in such inspection Purchaser will be
deemed not to have discovered any matter which would form the basis for a claim by Purchaser that
Seller has breached any representation, warranty or covenant of Seller made in this Agreement;
provided that the provisions of this sentence shall not apply to the representations or warranties
set forth in clauses (b)(i), (b)(ii), (b)(iii), (b)(iv)(a), (b)(v), (b)(vi), (b)(vii), (b)(viii) or
(c)(v) of Section 7.2); and provided further that the foregoing shall not



27









 




diminish Purchaser’s rights under Section 5.2. Notwithstanding anything to the
contrary set forth in this Agreement, if prior to the Closing Purchaser has or obtains knowledge
(or is deemed to have knowledge) that any of Seller’s representations or warranties set forth in
Section 7.2 are untrue in any respect, and Purchaser nevertheless proceeds with the Closing
despite such knowledge or deemed knowledge (as opposed to exercising its rights, to the extent
applicable, under Section 10.3), then such knowledge shall be attributed to Purchaser and
the breach by Seller of the representations and warranties as to which Purchaser shall have such
knowledge shall be waived by Purchaser, such representations and warranties shall be deemed
modified to conform them to the information about which Purchaser had or is deemed to have had such
knowledge and Seller shall have no liability to Purchaser, or its successors or assigns in respect
thereof.




     Section 7.2. Seller’s Representations. Each Seller warrants and represents
to Purchaser as of the date hereof as follows:




	 	(a)	 	Representations Concerning Seller






          (i) Each Seller (other than Assignor 2) is a limited liability company duly formed,
validly existing and in good standing under the laws of the State of Delaware and is duly
registered as a foreign limited liability company in the State of Connecticut. Assignor 2
is a limited liability company duly formed, validly existing and in good standing under the
laws of the State of New Hampshire and is duly registered as a foreign limited liability
company in the State of Connecticut. The Person(s) executing this Agreement on behalf of
each Seller has been duly authorized to do so and this Agreement constitutes the valid and
legally binding obligation of such entity, enforceable against such entity in accordance
with its terms;




          (ii) Except as set forth in the attached Schedule 7.2(b), there are no actions,
suits or proceedings pending or, to the knowledge of each Seller, threatened in writing,
against or affecting each Seller which, if determined adversely to such entity, would
adversely affect its ability to perform its obligations hereunder;




          (iii) Each Seller has full limited liability company right, power and authority and is
duly authorized to enter into this Agreement, to perform each of the covenants on its part
to be performed hereunder and to execute and deliver, and to perform its obligations under
all documents required to be executed and delivered by it pursuant to this Agreement;




          (iv) Except as set forth in attached Schedule 7.2(a), neither the execution,
delivery or performance of this Agreement nor compliance herewith nor the conveyance of the
Property to Purchaser (a) results or will result in a breach of or constitutes or will
constitute a default under (1) the charter documents or by-laws of any Seller, (2) to
Seller’s knowledge, any law or any order, writ, injunction or decree of any court or
governmental authority, or (3) subject to any matters set forth in Schedule 6.1(n)
and obtaining applicable Certificates, any agreement or instrument to which any Seller is a
party or by which any Seller is bound or (b) results in the creation or imposition of any
lien, charge or encumbrance upon its property pursuant to any such agreement or
instrument;



28









 






          (v) No authorization, consent, or approval of any governmental authority (including
courts) is required for the execution and delivery by Seller of this Agreement or the
performance of its obligations hereunder;




          (vi) Seller is not a “foreign person” as defined in Section 1445 of the Code;




	 	(b)	 	Seller’s Representations Concerning the Real Property 






          (i) Except as may be set forth in the attached Schedule 7.2(b), to each
Seller’s knowledge, such entity has received no written notice from any governmental
authority that there currently is any condemnation or eminent domain proceeding pending or
threatened against the Real Property.




          (ii) Except as may be set forth in the attached Schedule 7.2(b), to each
Seller’s knowledge, such entity has not received any written notice of any pending or
threatened litigation against such entity that would, in the reasonable judgment of such
entity and if determined adversely to such entity, materially and adversely affect Purchaser
or the Real Property following Closing.




          (iii) Except as may be set forth in the attached Schedule 7.2(b), and except as
set forth in the Due Diligence Materials, to each Seller’s knowledge, such entity has
received no written notice from any governmental authority requiring the correction of any
condition with respect to the Real Property on account of a material violation of any
applicable federal, state, county or municipal law, code, rule or regulation, which has not
been cured or waived.




          (iv) To each Seller’s knowledge, (a) each applicable entity has made available to
Purchaser copies that are complete in all material respects of the Leases, the Ground Leases
the Miscellaneous Consultant Agreements, the Environmental Insurance Policy, the Other
Matters, the Brokerage Agreements, the Reports and the Permits, and except as may be set
forth in the attached Schedule 7.2(b), no written notice of default has been given
under any of the Leases, the Ground Leases, the Brokerage Agreements, the Miscellaneous
Consultant Agreements, the Environmental Insurance Policy or Other Matters either by or to
Seller alleging a material default, which default has not been cured or waived; (b) the
Leases, the Ground Leases, the Environmental Insurance Policy and the Other Matters are in
full force and effect and enforceable in accordance with their terms; and (c) assuming that
Purchaser does not assume the Seller Mortgage, the Leases, the Ground Leases, the
Miscellaneous Consultant Agreements, the Environmental Insurance Policy, the Other Matters
and the Permitted Exceptions constitute all of the material agreements to which Seller is a
party in connection with the use or operation of the Property that will be binding on
Purchaser or the Real Property following the Closing (to the extent assumed pursuant to the
terms of this Agreement).




          (v) Schedule 7.2(b)(iv)-4 lists all brokerage fees and expenses based upon
agreements entered into by any Seller for which Purchaser will be liable after the Closing.



29









 






          (vi) No Ground Lease has ever had a term longer than ninety nine (99) years.




          (vii) 110 Munson is not an “establishment”, as such term is used in the Connecticut
Transfer Act, Sections 22a-134, et seq., Connecticut General Statutes.




          (viii) Seller and the Seller Parties have no commitment or legal obligation, absolute
or contingent, to any Person other than Purchaser to sell, assign, transfer or effect a
sale of any of the Property (other than inventory in the ordinary course of business), to
sell or effect a sale of capital stock or partnership interests, as applicable, of the
Seller or any Seller Party, to effect any merger, consolidation, liquidation or dissolution
or other reorganization of Seller or any Seller Parties, or to enter into any agreement or
cause the entering into of any agreement with respect to any of the foregoing.




	 	(c)	 	Seller’s Representations Concerning the Personal Property






          (i) Except as may be set forth in the attached Schedule 7.2(b), to each
Seller’s knowledge, such entity has received no written notice from any governmental
authority that there currently is any condemnation or eminent domain proceeding pending or
threatened against the Personal Property.




          (ii) Except as may be set forth in the attached Schedule 7.2(b), to each
Seller’s knowledge, such entity has not received any written notice of any pending or
threatened litigation against such entity that would, in the reasonable judgment of such
entity and if determined adversely to such entity, materially and adversely affect Purchaser
or the Personal Property following Closing.




          (iii) Except as may be set forth in the attached Schedule 7.2(b), to each
Seller’s knowledge, such entity has received no written notice from any governmental
authority requiring the correction of any condition with respect to the Personal Property on
account of a material violation of any applicable federal, state, county or municipal law,
code, rule or regulation, which has not been cured or waived.




          (iv) To each Seller’s knowledge, such entity has neither assigned nor
otherwise transferred its right, title or interest in and to the Personal Property, nor does
any Person hold any lien granted by Seller on the Personal Property other than through a
Seller Mortgage (which Seller Mortgage lien shall be terminated at Closing).




          (v) The attached Schedule 7.2(c)(v) sets forth all material tangible personal
property owned or leased by Seller that is used or held for use by Seller in connection with
the operation, management, maintenance or use of the Real Property.



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     Section 7.3. Knowledge; Breach.



     (a) For all purposes of this Agreement, including Section 7.2, “knowledge” with
respect to each of the entities included in the term Seller shall mean matters as to which David
Clem, Robert L. Green or George Lightbody have actual knowledge without any duty or
responsibilities to make any inquiry, review or investigation.



     (b) As used in this Agreement the phrase “deemed to know” (or words of similar import) shall
have the following meaning: Purchaser shall be “deemed to know” that a representation or warranty
of Seller (other than the representations or warranties set forth in clauses (b)(i), (b)(ii),
(b)(iii), (b)(iv)(a), (b)(v), (b)(vi), (b)(vii), (b)(viii) or (c)(v) of Section 7.2) is
untrue, inaccurate or incorrect to the extent that this Agreement, the Reports, Due Diligence
Materials, documents, studies, reports and other information made available by Seller to Purchaser
or its agents prior to the commencement of the Restricted Period, or any Certificate contains
information which is inconsistent with such representation or warranty.



     (c) Seller shall have the right to amend and otherwise modify the Certificates and the
Schedules and Exhibits attached hereto and amend and otherwise modify the representations and
warranties made by Seller prior to the commencement of the Restricted Period by written notice
thereof to Purchaser, and if Purchaser fails to terminate this Agreement as provided in Section
5.2, this Agreement shall conclusively be deemed amended to incorporate all such amendments and
modifications. Following the commencement of the Restricted Period and prior to the Closing,
Seller shall have the right to amend and otherwise modify the Certificates and the Schedules and
Exhibits attached hereto and amend and otherwise modify the representations and warranties made by
Seller by written notice thereof to Purchaser (an “Update”). With respect to any Update,
Purchaser shall have five (5) Business Days (the “Update Termination Period”) commencing
upon Purchaser’s receipt of written notice of such Update, during which Purchaser may terminate
this Agreement (except for the Surviving Obligations), but only on account of such Update, by
written notice to Seller and receive a refund of the Deposit. In the event that any Update
Termination Period commences less than five (5) Business Days prior to the Closing, then the
Closing may be adjourned by Purchaser for a period of up to five (5) Business Days such that
Purchaser may review such Update and the Closing shall be adjourned until the next Business Day
following the expiration of such period. In the event that Purchaser does not terminate this
Agreement during an applicable Update Termination Period, then Purchaser shall have no right to
terminate this Agreement on account of such Update, and this Agreement shall conclusively be deemed
amended to incorporate such Update.



     (d) Seller and Purchaser agree that, each shall, subject always to Article 10 and the
limitations set forth therein, be liable for the direct, but not consequential or punitive, damages
resulting from any breach of its representations and warranties expressly set forth in Article 7
hereof or in any document or certificate delivered in connection herewith; provided, however, that:
(i) such representations and warranties are personal to Seller and Purchaser and, notwithstanding
any other provision of this Agreement, may not be assigned to or enforced by any other Person;
provided, however, that Purchaser may assign the Seller Representations and Purchaser’s rights
under this Article 7 to any Permitted Assignee; and (ii) the representations and warranties of
Seller set forth in this Agreement or expressly set forth as such in any document or certificate
delivered by Seller in connection herewith shall survive the Closing for a period of time expiring
on the earlier of (x) nine (9) months following the Closing or (y) December 31,



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2007 (such period of time being the “Claim Period”), and no action or proceeding
thereon shall be valid or enforceable, at law or in equity, unless (x) Purchaser provides written
notice of any potential claim to Seller within the Claim Period, which notice shall describe such
potential claim in reasonable detail based upon the information available to Purchaser at such time
and (y) a legal proceeding is commenced within forty-five (45) days after Seller’s receipt of such
notice. Notwithstanding the foregoing, Seller shall have no liability for any such breach: (a)
regarding which Purchaser or its attorneys, agents or consultants are deemed to know the facts or
circumstances prior to Closing; or (b) that was disclosed in this Agreement or any exhibit hereto,
in the Due Diligence Materials, or in any other document, study or report delivered or made
available by Seller to Purchaser or its attorneys, consultants or agents at or before the Closing
(provided that the provisions of this clause (b) shall not apply to the representations or
warranties set forth in clauses (b)(i), (b)(ii), (b)(iii), (b)(iv)(a), (b)(v), (b)(vi), (b)(vii),
(b)(viii) or (c)(v) of Section 7.2). Purchaser further agrees that no claim may or shall
be made for any alleged breach of any representations or warranties made by Seller under or
relating to this Agreement unless the amount of such claim or claims, individually or in the
aggregate, exceeds the Threshold Amount, and such claim or claims shall never, individually or in
the aggregate shall never exceed the Damage Cap.




     Section 7.4 Status of Reports. Purchaser understands and acknowledges that
any Reports or other information provided to Purchaser is without any representation or warranty,
express or implied, as to the completeness or accuracy of the facts, presumptions, conclusions or
other matters contained therein. Purchaser has been expressly advised by Seller to conduct an
independent investigation and inspection of the Property utilizing experts as Purchaser deems to be
necessary for an independent assessment of all liability and risk with respect to the Property.
Except for Seller’s Representations, Purchaser shall rely only upon Purchaser’s own investigations
and inquiries with respect to all such liability and risk, including all liability and risk with
respect to the presence of hazardous materials in, on or around the Property.



ARTICLE 8




Closing




     Section 8.1. Closing Date. Subject to express rights to adjourn the Closing
or extend the Closing Date as provided in this Agreement, the Closing shall be consummated prior to
10:00 a.m. Boston, Massachusetts time on the Closing Date. Unless the parties otherwise agree in
writing, the Closing shall be conducted through a customary escrow arrangement with the Title
Company and, on or before the Closing Date the Seller shall deliver to the Title Company the
documents listed in Section 8.2 and the Purchaser shall deliver to the Title Company the
documents and funds described in Section 8.3.



     PURCHASER RECOGNIZES THAT IT IS A MATERIAL CONDITION TO THE OBLIGATIONS OF SELLER UNDER THIS
AGREEMENT THAT THE CLOSING BE CONSUMMATED PRIOR TO 10:00 A.M. BOSTON, MASSACHUSETTS TIME ON THE
CLOSING DATE. ACCORDINGLY, PURCHASER AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, PURCHASER
SHALL NOT BE ENTITLED TO ANY ADJOURNMENT OF THE CLOSING, TIME BEING OF THE ESSENCE AS TO THE
PERFORMANCE OF THE OBLIGATIONS OF PURCHASER HEREUNDER ON OR PRIOR TO SUCH DATE.



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     Section 8.2. Seller’s Deliveries. At the Closing (or at such later time as
set forth in clause (o) below), Seller shall deliver or cause to be delivered to Purchaser, at
Seller’s sole expense, the following items, each executed and acknowledged to the extent
appropriate:



     (a) The Deed for 110 Munson from the 110 Munson Seller (additionally, Seller shall deliver
conveyance tax statements for the City of New Haven and the State of Connecticut with checks in the
appropriate amounts to pay all applicable conveyance taxes);



     (b) The Ground Lease Assignment with respect to each of the Ground Leases;



     (c) A non-foreign person affidavit sworn to by Seller (other than Assignor 1 and Assignor 2)
as required by Section 1445 of the Code;



     (d) Such evidence or documents as may be reasonably required by the Title Company so that the
Title Company may deliver the Title Policies without exceptions relating to: (i) mechanics’ or
materialmen’s liens; (ii) parties in possession; and (iii) the status and capacity of Seller and
the authority of the Person or Persons who are executing the various documents on behalf of Seller
in connection with the sale of the Property to Purchaser;



     (e) A duly-executed Closing Statement;



     (f) The Assignment and Assumption Agreement;



     (g) The Ground Lease Assignments;



     (h) The Tenant Estoppel Certificates and any Seller’s Estoppel Certificates;



     (i) The Ground Landlord Consents;



     (j) The ARDA Consent;



     (k) The TDA Consents;



     (l) The Post-Closing Escrow Agreement;



     (m) Any transferable bonds, warranties or guaranties that relate to the Property and in
Seller’s possession and control, and any letter of credit security deposits delivered to Seller
under the Leases and each such document or instrument that is reasonably required to transfer any
such items to Purchaser (and Seller shall deliver any of the foregoing directly to any lender that
Purchaser designates in writing to Seller at least five (5) Business Days before the Closing);



     (n) A notice letter to all Tenants notifying them of the transfer of the Leases and any
security deposits and last months’ rent, so called, and the address to which such rents thereunder
should be paid; and



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     (o) A notice letter to parties to the Brokerage Agreements, the Ground Leases, the
Miscellaneous Consultant Agreements, the Environmental Insurance Policy and the Other Matters
notifying them of the assignment of such documents.



     (p) The following shall be delivered to Purchaser within ten (10) Business Days following the
Closing:




          (i) To the extent that the following are in the possession or control of Seller, the
original (or copies if only a copy is available) of Leases, the Ground Leases, the
Miscellaneous Consultant Assignments, the Brokerage Agreements, the Environmental Insurance
Policy, the Other Matters and any and all building plans, surveys, site plans, engineering
plans and studies, utility plans, landscaping plans, drawings and specifications, marketing
artwork, warranties book and other documentation concerning all or any part of the Property
(provided, however, Seller may keep copies of any of the foregoing); provided however, at
Purchaser’s request, Seller will provide any of such information in electronic format, if
the same is in the possession or control of Seller unless the same is in a proprietary
format of a computer program, other computer software or under a licensing agreement that
Seller is not transferring.



     Section 8.3. Purchaser’s Deliveries. At the Closing, Purchaser shall deliver
to Seller the following items each executed and acknowledged to the extent appropriate:



     (a) Immediately available federal funds sufficient to pay the Purchase Price (less the Deposit
and subject to apportionments and adjustments as set forth herein) and Purchaser’s share of all
escrow costs and closing expenses;



     (b) Such evidence or documents as may reasonably be required by the Title Company evidencing
the status and capacity of Purchaser and the authority of the Person or Persons who are executing
the various documents on behalf of Purchaser in connection with the purchase of the Property;



     (c) A duly executed counterpart of the Closing Statement;




     (d) A duly executed counterpart of the Assignment and Assumption Agreement;




     (e) Duly executed counterparts of the Ground Lease Assignments;




     (f) A duly executed counterpart of the Post-Closing Escrow Agreement; and




     (g) Duly executed counterparts of the Miscellaneous Consultant Consents.



     Section 8.4. Costs and Prorations.



     (a) General. The following listed items allocable to the Property will be adjusted to
the payment period that includes the date of Closing and shall be prorated between Seller and
Purchaser as of the Closing Date in accordance with this Section 8.4. All such items
attributable



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to the period prior to the Closing Date shall be credited or charged to Seller, and all such items
attributable to the period commencing on the Closing Date shall be credited or charged to
Purchaser. The provisions of this Section 8.4 shall survive the Closing.




     (b) Rents: Rents and other charges payable by tenants under the Leases
(“Rents”) shall be apportioned as and when collected. Any Rents collected by Purchaser
(which shall include Rents collected by any agent acting for Purchaser) subsequent to the Closing
(whether due and payable prior to or subsequent to the Closing Date) shall be adjusted as of the
11:59 p.m. on the Closing Date (the “Adjustment Point”), and any portion thereof properly
allocable to periods prior to the Adjustment Point, net of costs of collection properly allocable
thereto, if any, shall be paid by Purchaser to Seller (or such parties as may be directed by
Seller) promptly after the collection thereof by Purchaser, but subject to the further provisions
of this Section in the case of Rents due prior to the Adjustment Point. If prior to the Closing
any entity within the term Seller have collected any Rents (which shall include Rents collected by
any agent acting for such parties) which are properly allocable in whole or in part to periods
subsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to the
Adjustment Point, net of costs of collection properly allocable thereto, if any, shall be credited
to Purchaser by Seller at the Closing. As used in this Section the term “costs of
collection” shall mean and include reasonable attorneys’ fees and other costs incurred by
Purchaser or Seller in collecting any Rents, but shall not include the regular fees payable to any
property manager for the Property, the payroll costs of any of Seller’s employees or any other
internal costs or overhead of Seller or Purchaser.




	 	1.	 	Ten (10) business days prior to the Closing, Seller shall deliver to Purchaser
a list of all tenants which are delinquent in payment of Rents, which list shall set
forth the amount of each such delinquency, the period to which each such delinquency
relates and the nature of the amount due itemizing separately, as applicable, fixed
monthly rent, tax reimbursements, common area maintenance, operating expense
escalations, electric charges, charges for tenant services, charges for overtime
services, percentage rent and other charges, if any. Any amount collected by Purchaser
after the Closing Date, from tenants who owe Rents for periods prior to the Closing
Date, shall be applied (i) first, in payment of Rents for the month in which the
Closing Date occurs (the “Closing Month”) and in payment of Rents for the
periods following the Closing Month and (ii) second, in payment of Rents for the
periods preceding the Closing Month. Each such amount, less any costs of collection
(including reasonable counsel fees) reasonably allocable thereto, shall be adjusted and
prorated as provided above, and the party who receives such amount shall promptly pay
over to the other party the portion thereof to which it is so entitled.
	 
	 	2.	 	Purchaser shall use commercially reasonable efforts to bill and collect any
delinquencies set forth on the list delivered by Seller pursuant to this Section for a
period of six (6) months after the Closing and the amount thereof, as, when and to the
extent collected by Purchaser, shall, if due to Seller pursuant to the provisions of
this Section, be paid by Purchaser to Seller (or such parties as directed by Seller),
less any costs of collection (including reasonable counsel fees) reasonably allocable
thereto, promptly after the collection thereof by Purchaser. In no event




35









 












	 	 	 	shall Purchaser be obligated to institute any actions or proceedings or to seek the
eviction of any tenant in order to collect any such delinquencies. Thereafter,
Seller shall have the right to sue tenants to collect such delinquencies and
Purchaser shall cooperate (but shall not be obligated to spend any money unless
Seller have agreed to reimburse Purchaser therefor) with Seller to the extent
reasonably necessary, provided, however, Seller shall have no right to cause any
such tenant to be evicted or to exercise any other “landlord” remedy (as set forth in
the Lease) against such tenant other than to sue for collection.
	 
	 	3.	 	Following the Closing and upon the written request of Seller, as applicable,
Purchaser shall submit or cause to be submitted to Seller, within thirty (30) days
after the end of each calendar quarter up to and including the calendar quarter which
includes the date that is six (6) months after the Closing Date, but only so long as
any delinquencies shall be owed to Seller, a statement which sets forth all collections
made by Purchaser from the tenants which owe such delinquencies through the end of such
calendar quarter. Seller shall have the right from time to time following the Closing
until ninety (90) days after receipt by Seller of the last quarterly statement required
hereunder, at Seller’s expense, to examine and audit so much of the books and records
of Purchaser as relate to such delinquencies in order to verify the collections
reported by Purchaser in such quarterly statements.
	 
	 	4.	 	Purchaser agrees not to waive or settle any delinquency owed in whole or in
part to Seller without the prior written consent of Seller, which consent may be
granted or withheld in Seller’s reasonable discretion.
	 
	 	5.	 	With respect to that portion of Rents which are payable on an annual,
semiannual or other non-monthly basis, all such payments which become due after the
Closing, to the extent allocable to periods prior to the Adjustment Point, shall be
paid by Purchaser to Seller (or such parties as may be directed by Seller) promptly
after receipt thereof, subject to costs of collection, if any, properly allocable
thereto. With respect to that portion of Rents that are attributable to payments of
expenses such as common area maintenance charges, association charges or advertising
and promotional charges, such Rents shall be apportioned based on which party paid or
will pay the correlating expenses for the relevant period. With respect to that
portion of Rents which are billed on an index-based formula or on an estimated basis
during the fiscal or other period for which paid, at the end of such fiscal or other
period Purchaser shall determine whether the items in question have been over billed or
under billed (or over- or under-estimated, as applicable). If there has been an over
billing or over-estimation and an over billed/estimated amount has been received,
Seller shall, promptly after request by Purchaser, pay to Purchaser the portion of such
over billed/estimated amount which is properly allocable to the period prior to the
Adjustment Point (to the extent such amount was actually received), and promptly
thereafter Purchaser shall reimburse the entire over billed/estimated amount to the
tenants which paid the same. If there has been an under billing or under-estimation,
the additional amount shall be billed by Purchaser to the tenants and any amount
received by Purchaser, net of costs of collection, if any, to the extent properly
allocable to periods prior to the




36









 






	 	 	 	Adjustment Point shall promptly be paid by Purchaser to Seller (or such parties as
may be directed by Seller). In the event that a tenant requires an audit with
respect to an over-billing or under-billing that relates to the time period prior to
the Adjustment Point, Purchaser shall promptly notify Seller and Seller may either
(i) conduct such audit at its sole cost and expense, in which case Seller shall
consult with Purchaser in the conduct of same and Purchaser shall reasonably
cooperate with Seller and provide Seller with reasonable access to any books and
records reasonably necessary to conduct such audit or (ii) decline to conduct such
audit, in which case Seller shall reimburse Purchaser for the reasonable costs
incurred by Purchaser to conduct such audit relating to the time period prior to the
Adjustment Point. Seller shall maintain all books and records that may be relevant
to any audit for the time period required by the respective Lease, and provide
Purchaser and the respective Tenant access thereto in connection with any audit that
is permitted by such Lease.
	 
	 	6.	 	Notwithstanding anything to the contrary set forth in this Section, Seller (or
such parties as may be directed by Seller) shall be entitled to receive, and Purchaser
shall pay to Seller (or such parties as may be directed by Seller) promptly after
receipt thereof, net of costs of collection and reasonable attorneys’ fees, if any,
properly allocable thereto, (i) all amounts payable by tenants on account of all real
estate and personal property taxes, general and special assessments, water and sewer
charges, license fees and other fees and charges assessed or imposed by governmental
authorities upon the Properties (the “Impositions”) which, pursuant to the
terms of this Section, it is Seller’s obligation to pay and discharge (to the extent
Seller either paid such amounts or Purchaser received a credit therefor pursuant to
this Section), which amounts shall be apportioned between Seller and Purchaser in the
same manner as the Impositions to which they relate and (ii) all amounts payable by
tenants on account of utilities which, pursuant to the terms of this Section, it is
Seller’s obligation to pay and discharge (to the extent Seller either paid such amounts
or Purchaser received a credit therefor pursuant to this Section), which amounts shall
be apportioned between Seller and Purchaser in the same manner as the utilities to
which they relate. Notwithstanding anything to the contrary set forth in this Section,
Purchaser shall be entitled to receive, and Seller shall pay to Purchaser promptly
after receipt thereof, net of costs of collection and reasonable attorneys’ fees, if
any, properly allocable thereto, (i) all amounts payable by tenants on account of
Impositions which, pursuant to the terms of this Section, it is Purchaser’s obligation
to pay and discharge (to the extent Purchaser either paid such amounts or Seller
received a credit therefor pursuant to this Section), which amounts shall be
apportioned between Seller and Purchaser in the same manner as the Impositions to which
they relate and (ii) all amounts payable by tenants on account of utilities which,
pursuant to the terms of this Section, it is Purchaser’s obligation to pay and
discharge (to the extent Purchaser either paid such amounts or Seller (or a party
designated by Seller) received a credit therefor pursuant to this Section), which
amounts shall be apportioned between Seller and Purchaser in the same manner as the
utilities to which they relate.




37









 






	 	7.	 	Any advance rental deposits or payments held by Seller on the Closing Date and
applicable to periods of time subsequent to the Adjustment Point, and any security
deposits held by Seller on the Closing Date, together with any interest thereon, if
any, which, under the terms of the applicable Leases, is payable to the tenants
thereunder, shall be paid or credited to Purchaser at the Closing.





     (c) Cash Security Deposits. Purchaser shall be credited at Closing with: (i) all cash
security or other deposits held by or on behalf of Seller with respect to the Property (other than
any security deposits held in the form of a letter of credit or other non-cash security); (ii) any
rent prepaid beyond the Closing Date; and (iii) any interest earned as of the Closing on cash
security deposits or prepaid rent held by or on behalf of Seller, to the extent that such interest
is refundable to Tenants under the terms of the applicable Lease or applicable law. The cost of
transferring any letter of credit security deposits shall be divided evenly between Seller and
Purchaser.



     (d) Taxes. All real estate taxes assessed against the Real Property shall be prorated
between Seller and Purchaser on an accrual basis based upon the actual current tax bill and in
accordance with the custom of the local Bar Association. If the most recent tax bill received by
Seller before the Closing is not the actual current tax bill, then Seller and Purchaser shall
initially prorate the taxes at the Closing by applying 100% of the tax rate for the period covered
by the most current available tax bill to the latest assessed valuation, and shall reprorate the
taxes retroactively when the actual current tax bill is then available. All real estate taxes
accruing before the Closing shall be charged to Seller and all such taxes accruing on and after the
Closing shall be charged to Purchaser. Any refunds of real estate taxes made after the Closing
shall first be applied to the unreimbursed third-party costs incurred by Seller or Purchaser in
obtaining the refund, then shall be paid to Seller (for the period prior to the Closing) and to
Purchaser (for the period commencing on and after the Closing). If any proceeding to determine the
assessed value of the Real Property or the real estate taxes payable with respect to the Real
Property has been commenced before the Effective Date and shall be continuing as of the Closing,
Seller shall be authorized to continue to prosecute such proceeding and Purchaser agrees to
cooperate as reasonably requested with Seller and to execute any and all documents reasonably
requested by Seller in furtherance of the foregoing.



     (e) Lease Expenses. Seller shall pay all Seller Lease Expenses and Purchaser shall
pay all Purchaser Lease Expenses. At Closing, Purchaser shall reimburse Seller for any and all
Purchaser Lease Expenses to the extent the same have been paid by Seller prior to Closing. In
addition, at Closing, Purchaser shall assume Seller’s obligations to pay, when due (whether on a
stated due date or by acceleration) any Lease Expenses unpaid as of the Closing including without
limitation the commissions listed on the attached Schedule 7.2(b)(iv)-4 to become due as
therein provided, and Purchaser hereby agrees to indemnify, defend and hold Seller harmless from
and against any and all claims for such Lease Expenses which remain unpaid for any reason at the
time of Closing, which obligations of Purchaser shall survive the Closing. Each party shall make
available to the other all records, bills, vouchers and other data in such party’s control
verifying Lease Expenses and the payment thereof. With respect to any construction management fees
due to Seller as the landlord under the Leases, all such fees shall be prorated between Seller and
Purchaser as of the Closing based upon the information available to the parties at such time, with
the actual amount thereof subsequently determined (based on the actual



38









 




expenditures made during the month in which the Closing occurs on which such fees are based
divided by 30 and then multiplied by the number of days in the month prior to and including the
date of Closing) and appropriate adjustment made pursuant to Section 8.4(l) below.




     (f) Utilities. Utilities and fuel charges, including water, telephone, sewer, steam,
electricity, gas, oil charges and any assignable deposits with utility companies will be adjusted
on the basis of current bills and readings obtained by Seller prior to the Closing, with
appropriate adjustments pursuant to Section 8.4(l) below made based on actual readings and
invoices closer to the Closing and reasonably extrapolated to be as of the Closing.



     (g) License and Permit Fees. Assignable license and permit fees.



     (h) Expenses of Operation. Other expenses of operation and similar items, including
without limitation, advertising and marketing expenses.



     (i) Ground Leases. Any amounts payable by any of the tenants under the Ground Leases.



     (j) Customary Apportionments. Any other operating expenses and any other items
relating to a Real Property which, in accordance with customary business practice, customarily
would be apportioned between sellers and buyers of real estate. Notwithstanding the foregoing,
Seller shall pay all costs of procuring and recording all instruments necessary to be delivered or
recorded in order to place title to the Real Property in the condition required hereunder at
Closing.



     (k) Bills and Invoices. Except as otherwise specifically provided in this Agreement
or in any other written agreement that may be entered into between Seller and Purchaser, Seller has
paid or will pay in full, prior to Closing (but subject to apportionment hereunder), all bills and
invoices for labor, goods, material and services of any kind relating to the Real Property and
utility charges (except if and to the extent such utility charges are billed directly to tenants),
that are due and payable on or prior to the Closing, and Purchaser will pay in full, after the
Closing (but subject to apportionment hereunder), all bills and invoices for labor, goods, material
and services of any kind relating to the Real Property and utility charges (except if and to the
extent such utility charges are billed directly to tenants), that are due and payable after
Closing.



     (l) Closing Statement. Purchaser and Seller shall cooperate to produce prior to the
Closing Date a schedule of prorations and closing costs that is as complete and accurate as
reasonably possible (the “Closing Statement”). If any of the aforesaid prorations cannot
be calculated accurately on the Closing Date, then they shall be estimated to the extent possible
as of the Closing and calculated as soon after the Closing Date as is feasible. All adjustments to
initial estimated prorations shall be made by the parties with due diligence and cooperation within
sixty (60) days following the Closing, or such later time as may be required to obtain necessary
information for proration, by prompt cash payment to the party yielding a net credit from such
prorations from the other party. So long as the parties have reasonably cooperated with respect to
such adjustments, the provisions of this Section 8.4 shall survive the Closing through the
final day of the calendar year following the calendar year in which the Closing



39









 




occurs, and after such period neither Seller nor Purchaser shall have any further rights or
obligations under this Section 8.4.




     (m) Closing Costs. Purchaser and Seller shall each pay their own legal fees related
to the preparation of this Agreement and all documents required to settle the transaction
contemplated hereby. Purchaser shall pay (i) all costs associated with its due diligence,
including the cost of appraisals, architectural, engineering, credit and environmental reports,
(ii) all title insurance premiums and charges and all title examination costs, and (iii) all survey
costs. Seller shall pay (i) all documentary stamp taxes owing, if any, with respect to the Deed
and the Ground Lease Assignments, and (ii) the cost of recording the Deed and the Ground Lease
Assignments. Purchaser and Seller shall each pay one-half of the Escrow Agent’s fees for acting as
escrow agent. All other customary real property purchase and sale closing costs shall be paid by
Seller or Purchaser in accordance with the custom in the jurisdiction where the Real Property is
located.



ARTICLE 9




Real Estate Commission




     Section 9.1. Commissions. If and when, but only if and when, the Closing is
completed and the Purchase Price is paid in full, Seller shall be obligated to pay a real estate
commission and/or brokerage fee to Seller’s Broker in accordance with a separate agreement between
Seller and Seller’s Broker. Seller’s Broker shall indemnify Seller and Purchaser against all
claims, costs and liability relating to any broker or other Person claiming by, through or under
Seller’s Broker. By execution of this Agreement, Seller’s Broker agrees to the foregoing matters.
Seller and Purchaser respectively shall indemnify and hold harmless the other on account of all
claims of any other brokers or finders claiming by, through, under or on account of dealings with
them in any way related to this purchase and sale, including, without limitation, reasonable
attorneys’ fees and disbursements incurred by the indemnified party. The provisions of this
paragraph shall survive the Closing or termination of this Agreement.



ARTICLE 10




Termination and Default




     Section 10.1. Failure to Perform by Seller. Notwithstanding anything to the
contrary contained in this Agreement, if Seller fails to perform in any material respect any
covenant of Seller, as applicable, in accordance with the terms of this Agreement or if any of
Seller’s Representations shall not be true, correct and complete in any material respect upon
Closing, except (a) for changes due to the operation of the Property occurring prior to Closing
which are not prohibited by this Agreement (therefore there is no breach), (b) if the dollar amount
of the damages resulting from any breach of representation or failure to perform any covenant
together with all dollar amounts of all other damages resulting from any breach of representation
or failure to perform any other covenant is less than Fifty Thousand Dollars ($50,000) (in which
case the breach is deemed waived by Purchaser, the “Threshold Amount”) or (c) if otherwise
waived by Purchaser, then Purchaser’s sole and exclusive remedy shall be either: (i) if and only



40









 




if the breach by Seller is a breach of any of Seller’s covenants hereunder, sue for specific
performance with respect to the performance of same, subject to any limitations expressly set forth
in this Agreement; (ii) terminate this Agreement at the Closing (as it may be adjourned under this
Agreement) in which event this Agreement, without further action of the parties, shall become null
and void and no party shall have any further rights or obligations under this Agreement, except for
the return of the Deposit to the Purchaser and the Surviving Obligations; or (iii) waive such
default and proceed to Closing without any reduction in, abatement of, or credit against the
Purchase Price; if Purchaser fails to make any such election, Purchaser shall be deemed to have
elected the remedy set forth in Section 10.1(iii).




     Section 10.2. Notice to Seller. Notwithstanding anything herein to the
contrary, Purchaser shall give Seller written notice specifying any failure to perform by Seller of
any of Seller’s covenants hereunder or breach of any Seller Representation hereunder, which notice
shall be given within five (5) Business Days of the date Purchaser obtains actual knowledge of such
breach or failure to perform (or on or prior to the Closing Date, if the date Purchaser obtains
such actual knowledge is within 5 Business Days of the Closing Date); if Purchaser fails to deliver
such notice within such five-day period (or by Closing, if earlier), such failure or breach shall
be deemed waived by Purchaser. Upon receipt of such notice, Seller shall have until Closing (and
may adjourn the Closing for up to sixty (60) days if such adjournment is reasonably necessary to
cure such breach or failure to perform) to cure such breach or failure to perform. At the option
of Seller, Seller may cure such breach or failure to perform by giving Purchaser a credit against
the Purchase Price at the Closing for a reasonable estimate of the dollar amount to cure same if
quantifiable in excess of the Threshold Amount, but such credit shall only be that amount that
exceeds the Threshold Amount.



     Section 10.3. Failure to Perform by Purchaser.



     (a) Notwithstanding anything to the contrary contained in this Agreement, if Purchaser fails
to perform in accordance with the terms of this Agreement, or materially breaches its
representations or warranties (such failure or breach shall also be deemed a failure of a condition
precedent to Seller’s obligations to consummate their respective obligations under this Agreement),
the Deposit shall be forfeited to Seller as liquidated damages (which shall be Seller’s sole and
exclusive remedy against Purchaser), at which time this Agreement shall be null and void and no
party shall have any rights or obligations under this Agreement, except for the Surviving
Obligations. Seller and Purchaser acknowledge and agree that (i) the Deposit is a reasonable
estimate of and bears a reasonable relationship to the damages that would be suffered and costs
incurred by Seller as a result of having withdrawn the Property from sale and the failure of
Closing to occur due to a default of Purchaser under this Agreement; (ii) the actual damages
suffered and costs incurred by Seller as a result of such withdrawal and failure to close due to a
default of Purchaser under this Agreement would be extremely difficult and impractical to
determine; (iii) Purchaser seeks to limit its liability under this Agreement to the amount of the
Deposit in the event this Agreement is terminated and the transaction contemplated by this
Agreement does not close due to a default of Purchaser under this Agreement; and (iv) the Deposit
shall be and constitutes valid liquidated damages; provided, however, Purchaser and Seller agree
that the liquidated damages do not apply to any indemnity obligation of the Purchaser under this
Agreement.



41









 





     (b) Notwithstanding anything herein to the contrary, Seller shall give Purchaser written
notice specifying any failure to perform by Purchaser of any of Purchaser’s covenants hereunder or
breach of any of Purchaser’s representations and warranties hereunder, which notice shall be given
within five (5) Business Days of the date Seller obtains actual knowledge of such breach or failure
to perform (or on or prior to the Closing Date, if the date Seller obtains such actual knowledge is
within five (5) Business Days of the Closing Date); if Seller fails to deliver such notice within
such five-day period (or by Closing, if earlier), such failure or breach shall be deemed waived by
Seller. Upon receipt of such notice, Purchaser shall have until Closing (and may adjourn the
Closing for up to five (5) Business Days if such adjournment is reasonably necessary to cure such
breach or failure to perform) to cure such breach or failure to perform. The provisions of this
Section 10.3(b) shall not apply to any failure of Purchaser to perform at Closing, which
shall be a default under this Agreement for which no notice and cure period is provided.



     Section 10.4. Damage Cap. Notwithstanding anything to the contrary contained
in this Agreement, and subject to the limitation of Purchaser’s remedies set forth in Section
10.1, the maximum aggregate liability of the Seller in the aggregate for any and all damages or
Claims hereunder or in connection herewith, including without limitation, any Claims for
indemnification hereunder and Claims under any documents delivered in connection herewith, shall be
Two Million Dollars ($2,000,000) (the “Damage Cap”); provided, however, that Seller shall
not have any liability for any such damages or Claims until the aggregate amount of same is in
excess of the Threshold Amount (in which case the amount of said damages or Claims up to the
Threshold Amount are deemed waived by Purchaser); and provided further, that Seller shall not be
liable for any consequential, special, punitive or indirect damages. The provisions of this
Section 10.4 shall survive Closing or earlier termination of this Agreement.



     Section 10.5. Post-Closing Escrow. As security for Seller’s obligations, if
any, during the Claim Period, at the Closing Seller shall either (i) deposit in an account
designated by the Escrow Agent an amount equal to the Damage Cap in immediately available funds, or
(ii) deliver to the Escrow Agent a letter of credit in a form reasonably acceptable to Purchaser in
the stated amount of the Damage Cap (such funds, together with any interest earned thereon, net of
investment costs, or such Letter of Credit, the “Post-Closing Escrow Funds”). Such
Post-Closing Escrow Funds shall be held by Escrow Agent pursuant to the Escrow Instructions in the
form attached hereto as Schedule 10.5 (the “Post-Closing Escrow Agreement”) until
the expiration of the Claim Period (unless, prior to the expiration of the Claim Period, a claim
for such Post-Closing Escrow Funds is made by Purchaser, in which event the Post-Closing Escrow
Funds shall continue to be held in accordance with the terms of the Post-Closing Escrow Agreement)
and disbursed in accordance with the terms of such Post-Closing Escrow Agreement.



     SECTION 10.6. RELEASE. WITHOUT LIMITING ANY PROVISION IN THIS AGREEMENT,
SELLER AND PURCHASER, FOR THEMSELVES AND THEIR SUCCESSORS AND ASSIGNS AND THEIR AFFILIATES, HEREBY
RELEASE AND FOREVER DISCHARGE EACH OTHER AND EACH OTHER’S DIRECT AND INDIRECT OWNERS, AND THE
MANAGERS, MEMBERS, PARTNERS, BENEFICIAL OWNERS, OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS AND
AGENTS, RESPECTIVELY,



42









 




OF THE FOREGOING, FROM ANY AND ALL CLAIMS, ACTS, DEBTS, DEMANDS, ACTIONS, CAUSES OF ACTION,
SUITS, SUMS OF MONEY, GUARANTIES, BONDS, COVENANTS, CONTRACTS, ACCOUNTS, AGREEMENTS, PROMISES,
REPRESENTATIONS, RESTITUTIONS, OMISSIONS, VARIANCES, DAMAGES, OBLIGATIONS, COSTS, ENVIRONMENTAL
RELEASES, RESPONSE ACTIONS, FEES AND LIABILITIES OF EVERY NAME AND NATURE WHATSOEVER, BOTH AT LAW
AND IN EQUITY, KNOWN AND UNKNOWN (ANY OF THE FOREGOING, A “CLAIM”), WHICH THEY AND THEIR
SUCCESSORS AND ASSIGNS MAY NOW OR HEREAFTER HAVE WITH RESPECT TO MATTERS EXISTING AS OF THE CLOSING
DATE AGAINST ANY OTHER PARTY AND EACH OTHER’S DIRECT OR INDIRECT OWNERS, OR THE MANAGERS, MEMBERS,
PARTNERS, BENEFICIAL OWNERS, OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS OR AGENTS, RESPECTIVELY, OF
THE FOREGOING, ARISING IN CONNECTION WITH OR IN ANY MANNER RELATED TO THIS AGREEMENT, THE PROPERTY,
OR THE TRANSACTIONS CONTEMPLATED HEREBY, EXCEPTING SOLELY THE SURVIVING OBLIGATIONS AND OBLIGATIONS
ARISING UNDER THE ASSIGNMENT AND ASSUMPTION AGREEMENT AND ANY OTHER INSTRUMENT OR AGREEMENT
DELIVERED IN CONNECTION WITH THE CLOSING.




     SECTION 10.7. SURVIVAL. The provisions of this Article 10 shall survive the
Closing or earlier termination of this Agreement.



ARTICLE 11




Miscellaneous




     Section 11.1. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the transactions contemplated herein except
for any contemporaneous agreements between the parties hereto, if any, and it supersedes all prior
discussions, understandings or agreements between the parties. All Exhibits and Schedules attached
hereto are a part of this Agreement and are incorporated herein by reference.



     Section 11.2. Binding On Successors and Assigns. Subject to Section
11.3, this Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns.



     Section 11.3. No Assignment . Neither this Agreement nor any interest
hereunder shall be assigned or transferred by Seller or Purchaser; provided, however, that
Purchaser may assign its rights hereunder at Closing to any Permitted Assignee, and Purchaser may
designate one or more Related Entities or Joint Venture Entities to take title to all or any
portion of the Property and to execute and deliver the documents to be executed and delivered by
Purchaser hereunder in connection with the Closing. For purposes of clarity, Purchaser shall have
the right to assign its right to take title to all or any portion of the Property under this
Agreement to one or more Related Entities or Joint Venture Entities solely for the purposes of such
entity taking title to all or any portion of the Property and executing such documents, but the
Purchaser named herein (i.e., BioMed Realty, L.P.) shall not be released hereunder and shall
continue to be liable for all covenants and obligations of “Purchaser” hereunder and shall execute
and deliver at Closing any



43









 




required instruments and documents that “Purchaser” (as opposed to such Related Entities or
Joint Venture Entities) may be required to deliver hereunder. The parties acknowledge that this
will result in the execution of additional conveyancing documents. As used in this Agreement, the
term “Purchaser” shall be deemed to include the initial Purchaser and any permitted
designee of the initial Purchaser and all such Purchaser entities shall be jointly and severally
liable under this Agreement. Subject to the foregoing, this Agreement shall inure to the benefit
of and shall be binding upon Seller and Purchaser and their respective successors and assigns.




     Section 11.4. Waiver. The excuse or waiver of the performance by a party of
any obligation of the other party under this Agreement shall only be effective if evidenced by a
written statement signed by the party so excusing or waiving. No delay in exercising any right or
remedy shall constitute a waiver thereof, and no waiver by Seller or Purchaser of the breach of any
covenant of this Agreement shall be construed as a waiver of any preceding or succeeding breach of
the same or any other covenant or condition of this Agreement.



     Section 11.5. Governing Law.



     This Agreement shall be governed and interpreted in accordance with the laws of the State of
Connecticut, without giving effect to the conflicts of laws principles thereof. EACH OF THE
PARTIES HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. Any legal action or proceeding with respect to this Agreement or
any of the transactions contemplated herein may be brought in the courts of the State of
Connecticut for the Judicial District in which the Property is situated or of the United States of
America for the District of Connecticut, and, by execution and delivery of this Agreement, each of
the parties hereto hereby consents generally and unconditionally, to the exclusive jurisdiction of
the aforesaid courts. Each of the parties hereto hereby irrevocably waives, in connection with any
such action or proceeding, any objection, including, without limitation, any objection to the
laying of venue or based on the grounds of forum non conveniens, which it may now or hereafter have
to the bringing of any such action or proceeding in such respective jurisdictions.



     Section 11.6. Counterparts. This Agreement may be executed, including
executed by facsimile or electronic signature, in any number of counterparts and it shall be
sufficient that the signature of each party appear on one or more such counterparts. All
counterparts shall collectively constitute a single agreement. A facsimile or electronic signature
to this Agreement shall be sufficient to prove the execution hereof by any Person.



44









 





     Section 11.7. Notices. All notices or other communications required or
provided to be sent by either party shall be in writing and shall be: (i) sent by United States
Postal Service, certified mail, return receipt requested, (ii) sent by any nationally known
overnight delivery service for next day delivery, (iii) delivered in person or (iv) sent by
facsimile (with a copy delivered by any of the methods set forth in the foregoing (i), (ii) and
(iii)). All notices shall be deemed to have been given upon receipt. All notices shall be
addressed to the parties at the addresses below:



	 	 	 	 	 
	 

	 	To Seller:
	 	At the address set forth first above
	 
	 	 	 	 
	 

	 	with a copy to:
	 	Lyme Properties, LLC
	 

	 	 	 	23 Main Street
	 

	 	 	 	Hanover, New Hampshire 03755
	 

	 	 	 	Attn: George Lightbody
	 

	 	 	 	Fax: 603.643.0331
	 
	 	 	 	 
	 

	 	and with a copy to:
	 	Lyme Properties, LLC
	 

	 	 	 	23 Main Street
	 

	 	 	 	Hanover, New Hampshire 03755
	 

	 	 	 	Attn: David Clem
	 

	 	 	 	Fax: 603.643.0331
	 
	 	 	 	 
	 

	 	and with a copy to:
	 	The Lyme Timber Company
	 

	 	 	 	16 On the Common
	 

	 	 	 	P.O. Box 266
	 

	 	 	 	Lyme, New Hampshire 03768
	 

	 	 	 	Attn: David Roby
	 

	 	 	 	Fax: 617.225.2133
	 
	 	 	 	 
	 

	 	and with a copy to:
	 	DLA Piper US LLP
	 

	 	 	 	33 Arch Street, 26th Floor
	 

	 	 	 	Boston, Massachusetts 02110
	 

	 	 	 	Attn: Daniel A. Taylor, Esq.
	 

	 	 	 	Fax: 617.406.6100
	 
	 	 	 	 
	 

	 	To Purchaser:
	 	At the address set forth first above
	 
	 	 	 	 
	 

	 	with a copy to:
	 	Latham & Watkins LLP
	 

	 	 	 	600 West Broadway, Suite 1800
	 

	 	 	 	San Diego, California 92101
	 

	 	 	 	Attn: Steven Levine, Esq.
	 

	 	 	 	Fax: 619.696.7419






     Any address or name specified above may be changed by notice given to the addressee by the
other party in accordance with this Section 11.7. The inability to deliver notice because
of a changed address of which no notice was given as provided above, or because of rejection or



45









 




other refusal to accept any notice, shall be deemed to be the receipt of the notice as of the
date of such inability to deliver or rejection or refusal to accept. Any notice to be given by any
party hereto may be given by the counsel for such party.




     Section 11.8. Attorneys’ Fees. In the event of a proceeding or action by one
party against the other party with respect to the interpretation or enforcement of this Agreement,
the prevailing party shall be entitled to recover reasonable costs and expenses including
reasonable attorneys’ fees and expenses, whether at the investigative, pretrial, trial or appellate
level. The prevailing party shall be determined by the court based upon an assessment of which
party’s major arguments or position prevailed.



     Section 11.9. IRS Real Estate Sales Reporting. Purchaser and Seller hereby
agree that the Escrow Agent shall act as “the person responsible for closing” the transaction which
is the subject of this Agreement pursuant to Section 6045(e) of the Code and shall prepare and file
all informational returns, including IRS Form 1099-S, and shall otherwise comply with the
provisions of Section 6045(e) of the Code.



     Section 11.10. Time Periods. Any reference in this Agreement to the time for
the performance of obligations or elapsed time shall mean consecutive calendar days, months, or
years, as applicable. In the event the time for performance of any obligation hereunder expires on
a day that is not a Business Day, the time for performance shall be extended to the next Business
Day.



     Section 11.11. Modification of Agreement. No modification of this Agreement
shall be deemed effective unless expressly provided for herein or in writing expressly purporting
to modify or amend this Agreement and signed by both Seller and Purchaser.



     Section 11.12. Descriptive Headings; Word Meaning. The descriptive headings
of the paragraphs of this Agreement are inserted for convenience only and shall not control or
affect the meaning or construction of any provisions of this Agreement. Words such as “herein”,
“hereinafter”, “hereof” and “hereunder” when used in reference to this Agreement, refer to this
Agreement as a whole and not merely to a subdivision in which such words appear, unless the context
otherwise requires. The singular shall include the plural and the masculine gender shall include
the feminine and neuter, and vice versa, unless the context otherwise requires. The word
“including” shall not be restrictive and shall be interpreted as if followed by the words “without
limitation.”



     Section 11.13. Time of the Essence. Time is of the essence of this Agreement
and all covenants and deadlines hereunder. Without limiting the foregoing, Purchaser and Seller
hereby confirm their intention and agreement that time shall be of the essence of each and every
provision of this Agreement, notwithstanding any subsequent modification or extension of any date
or time period that is provided for under this Agreement. The agreement of Purchaser and Seller
that time is of the essence of each and every provision of this Agreement shall not be waived or
modified by any conduct of the parties, and the agreement of Purchaser and Seller that time is of
the essence of each and every provision of this Agreement may only be modified or waived by the
express written agreement of Purchaser and Seller that time shall not be of the



46









 




essence with respect to a particular date or time period, or any modification or extension
thereof, which is provided under this Agreement.




     Section 11.14. Construction of Agreement. This Agreement shall not be
construed more strictly against one party than against another merely by virtue of the fact that it
may have been prepared primarily by counsel for one of the parties, it being recognized that each
of Purchaser and Seller have contributed substantially and materially to the preparation of this
Agreement. Other than contemporaneous instruments executed and delivered of even date, if any,
this Agreement contains all of the agreements between the parties relating in any way to the
premises and supersedes all prior agreements and dealings between them. There are no oral
agreements between the parties relating to this Agreement or the premises. The enumeration of
specific examples of a general provision shall not be construed as a limitation of the general
provision. Unless a party’s approval or consent is required by the express terms of this Agreement
not to be unreasonably withheld, such approval or consent may be withheld in the party’s sole
discretion. Nothing herein shall be construed as creating the relationship between the parties of
principal and agent, or of partners or joint venturers or any relationship other than seller and
buyer. This Agreement and all consents, notices, approvals and all other related documents may be
reproduced by any party by any electronic means or by facsimile, photographic, microfilm,
microfiche or other reproduction process and the originals may be destroyed; and each party agrees
that any reproductions shall be as admissible in evidence in any judicial or administrative
proceeding as the original itself (whether or not the original is in existence and whether or not
reproduction was made in the regular course of business), and that any further reproduction of such
reproduction shall likewise be admissible. If any payment in the nature of interest provided for
in this Agreement shall exceed the maximum interest permitted under controlling law, as established
by final judgment of a court, then such interest shall instead be at the maximum permitted interest
rate as established by such judgment.



     Section 11.15. Limitations on Liability. Notwithstanding anything to the
contrary in this Agreement, and subject always to any additional limitations on each Seller’s
liability set forth elsewhere in this Agreement: (a) Purchaser’s recourse against each Seller under
this Agreement or any agreement, document, certificate or instrument delivered by any Seller
hereunder, or under any law, rule or regulation relating to the Property, shall be limited to each
Seller’s interest in the Property (or, following the Closing, to the net proceeds of the sale of
the Property actually received by each Seller); (b) the liability of each party that constitutes
Seller shall be joint and several; and (c) in no event shall any of the Seller Parties have any
personal liability hereunder or otherwise. The acceptance of the Deed, the Ground Lease
Assignments and all other performance of Seller at the Closing shall constitute full performance of
all of Seller’s obligations hereunder other than the Surviving Obligations.



     Section 11.16. Severability The parties hereto intend and believe that each
provision in this Agreement comports with all applicable local, state and federal laws and judicial
decisions. If, however, any provision in this Agreement is found by a court of law to be in
violation of any applicable local, state, or federal law, statute, ordinance, administrative or
judicial decision, or public policy, or if in any other respect such a court declares any such
provision to be illegal, invalid, unlawful, void or unenforceable as written, then it is the intent
of all parties hereto that, consistent with and with a view towards preserving the economic and
legal arrangements among



47









 




the parties hereto as expressed in this Agreement, such provision shall be given force and
effect to the fullest possible extent, and that the remainder of this Agreement shall be construed
as if such illegal, invalid, unlawful, void, or unenforceable provision were not contained herein,
and that the rights, obligations, and interests of the parties under the remainder of this
Agreement shall continue in full force and effect.




     Section 11.17. No Recording. The provisions hereof shall not constitute a
lien on the Property. Neither Purchaser nor its agents or representatives shall record or file
this Agreement or any notice or memorandum hereof in the New Haven Land Records, including without
limitation any lis pendens. If Purchaser breaches the foregoing provision, this Agreement shall,
at Seller’s election, terminate, and Seller shall retain the Deposit in accordance with Section
10.2 in addition to such other remedies Seller may have at law or in equity. Purchaser hereby
irrevocably appoints Seller as its true and lawful attorney-in-fact, coupled with an interest, for
the purpose of executing and recording such documents and performing such other acts as may be
necessary to terminate any recording or filing of this Agreement in violation of this provision.



     Section 11.18. No Implied Agreement. Neither Seller nor Purchaser shall have
any obligations in connection with the transaction contemplated by this Agreement unless each of
Seller and Purchaser, each acting in its sole discretion, elects to execute and deliver this
Agreement to the other parties. No correspondence, course of dealing or submission of drafts or
final versions of this Agreement between Seller and Purchaser shall be deemed to create any binding
obligations in connection with the transaction contemplated hereby, and no contract or obligation
on the part of Seller or Purchaser shall arise unless and until this Agreement is fully executed by
each of Seller and Purchaser. Once executed and delivered by Seller and Purchaser, this Agreement
shall be binding upon them notwithstanding the failure of Escrow Agent or any broker or other
Person to execute this Agreement.



     Section 11.19. Environmental Release by Purchaser. Without limiting any
provision in this Agreement, Purchaser, for itself and any of its successors and assigns and their
affiliates, hereby irrevocably and absolutely waives its right to recover from, and forever
releases and discharges, and covenants not to file or otherwise pursue any legal action (whether
based on contract, statutory rights, common law or otherwise) against, any Seller Party with
respect to any and all suits, actions, proceedings, investigations, demands, claims, liabilities,
obligations, fines, penalties, liens, judgments, losses, injuries, damages, settlement expenses or
costs of whatever kind or nature, whether direct or indirect, known or unknown, contingent or
otherwise (including any action or proceeding brought or threatened or ordered by any governmental
authority), including, without limitation, attorneys’ and experts’ fees and expenses, and
investigation and remediation costs that may arise on account of or in any way be connected with
any Property or any portion thereof including, without limitation, the physical, environmental and
structural condition of the Property or any law or regulation applicable thereto, or any other
matter relating to the use, presence or discharge of Hazardous Materials on, under, in, above or
about the Property. For purposes of this Agreement, the term “Hazardous Materials” means
any substance, chemical, compound, product, solid, gas, liquid, waste, byproduct, pollutant,
contaminant or other material that is hazardous, toxic, ignitable, corrosive, carcinogenic or
otherwise presents a risk of danger to human, plant or animal life or the environment or that is
defined, determined or identified as such in any federal, state or local law, rule or regulation
(whether now existing or hereafter enacted or promulgated) and any judicial or administrative order
or judgment, in each



48









 




case relating to the protection of human health, safety and/or the environment, including, but
not limited to, any materials, wastes or substances that are included within the definition of (A)
“hazardous waste” in the federal Recourse Conservation and Recovery Act; (B) “hazardous
substances” in the federal Comprehensive Environmental Response, Compensation and Liability
Act; (C) “pollutants” in the federal Clean Water Act; (D) “toxic substances” in the
federal Toxic Substances Control Act; (E) “oil or hazardous materials” in the laws or
regulations of any state or commonwealth, and (F) any substance, material, waste, pollutant or
contaminant listed or defined as hazardous or toxic under any Environmental Law. The term
“Environmental Laws” includes without limitation the Resource Conservation and Recovery Act and the
Comprehensive Environmental Response Compensation and Liability Act and other federal laws
governing the environment as in effect on the date of this Agreement, together with their
implementing regulations, guidelines, rules or orders as of the date of this Agreement, and all
state, regional, county, municipal and other local laws, regulations, ordinances, rules or orders
that are equivalent or similar to the federal laws recited above or that purport to regulate
Hazardous Materials. The provisions of this Section 11.19 shall survive the Closing or any
termination of this Agreement.




     Section 11.20. Regulation S-X. Seller shall, and shall request that their
accountants, assist Purchaser, at Purchaser’s request and sole cost and expense (which costs and
expenses Purchaser covenants to pay promptly when due), by providing information relating to the
Property and its operation that may be reasonably necessary for Purchaser to produce the financial
statements required under Rule 3-14 of regulation S-X of the U.S. securities laws (including
providing a letter in the form attached hereto as Schedule 11.20). In addition to the
above, Seller shall otherwise reasonably cooperate with Purchaser concerning the foregoing.
Subject to Seller’s obligations with respect to its representations and warranties hereunder,
Purchaser agrees to indemnify the Seller Parties and hold them harmless from and against any and
all Claims arising out of the preparation or use by Purchaser of any such information provided by
Seller or Seller’s accountants pursuant to this Section 11.20 (but excluding any Claims
arising out of the mere discovery of information by Purchaser). The provisions of this Section
11.20 shall survive the Closing or any termination of this Agreement.



     Section 11.21. Indemnification Procedures.



     (a) For purposes of this Section 11.21 the term “Asserting Party” shall mean
the party against whom a Claim is asserted and who seeks indemnification under this Agreement, and
the term “Defending Party” shall mean the party from whom indemnification is sought under
this Agreement.



     (b) If a Claim is made against the Asserting Party which the Asserting Party believes to be
covered by the Defending Party’s indemnification obligation under this Agreement, the Asserting
Party shall promptly notify the Defending Party of the Claim and, in such notice, shall offer to
the Defending Party the opportunity to assume the defense of the Claim within ten (10) Business
Days after receipt of the notice (with counsel reasonably acceptable to the Asserting Party). If
the Defending Party timely elects to assume the defense of the Claim, the Defending Party shall do
so on behalf of both the Asserting Party and the Defending Party, unless both the



49









 




Asserting Party and the Defending Party are named in the same litigation and representation of
both of them by the same counsel would be inappropriate.




     (c) If the Defending Party timely elects to assume the defense of the Claim, the Defending
Party shall have the right to settle the Claim on any terms it considers reasonable as long as the
settlement shall not require the Asserting Party to render any performance or pay any consideration
without its consent and provides for an unconditional release from all liability with respect to
such Claim of the Asserting Party.



     (d) If the Defending Party fails timely to elect to assume the defense of the Claim, or if the
Defending Party timely elects to assume the defense of the Claim but thereafter fails to defend the
Claim with diligence and continuity, the Asserting Party shall have the right, after giving prior
written notice to the Defending Party, to take over the defense of the Claim and to settle the
Claim on any terms it considers reasonable. Any such settlement shall be valid as against the
Defending Party.



     (e) If the Defending Party assumes the defense of a Claim, the Asserting Party may employ its
own counsel but such employment shall be at the sole expense of the Asserting Party. If the
Defending Party assumes the defense of a Claim but the same counsel may not represent both the
Asserting Party and the Defending Party, or if the Defending Party fails timely to assume the
defense of the Claim or, after having elected to assume the defense fails to defend the Claim with
diligence and continuity, the Asserting Party may employ its own counsel and such employment shall
be at the sole expense of the Defending Party.



     (f) Whether or not the Defending Party elects to assume the defense of a Claim, the Defending
Party shall cooperate with the Asserting Party in the defense of the Claim. If the Defending Party
elects to assume the defense of a Claim, the Asserting Party will cooperate with the Defending
Party in such defense.



     (g) If the Asserting Party is obligated to pay amounts for which it is entitled to be
indemnified hereunder, then Defending Party shall be obligated, unless such amounts shall be
reimbursed to the Asserting Party within ten (10) days of demand therefor, to pay interest on such
amounts thereafter until paid at a per annum rate equal to 2% above the rate announced as its
“prime rate” by Citibank, N.A. (or any successor bank thereto).



     (h) If the Asserting Party is obligated to perform repairs or other work in connection with
any Claims for which it is entitled to indemnification hereunder then, except in the case of any
emergency situation which involves immediate threat of damage or injury to persons or property (as
to which no such notice shall be required to be given until the earliest practicable opportunity),
the Asserting Party shall give a written notice to Defending Party setting forth the general nature
of such repairs or other work and, if the Defending Party fails to commence or, in the case of the
foregoing emergency situation assume the continuation of such repairs or other work within ten (10)
days after such written notice or, having commenced such repairs or other work, fails to diligently
prosecute such repairs or other work to completion, then such Asserting Party shall be entitled to
(and shall at all times) perform such repair or other work in a manner



50









 





which a reasonable and prudent owner of properties similar to the Property located where such
Property is located would cause such work to be performed.




     (i) The provisions of this Section 11.21 shall survive the Closing or termination of
this Agreement for so long as and be applicable to any indemnity herein that survives the Closing
or termination of this Agreement.



     Section 11.22. Existing Loan.



     Purchaser may elect to assume Seller’s existing mortgage financing with respect to the Real
Property. Seller will reasonably cooperate with Purchaser (at no cost to Seller) regarding such
efforts. If Purchaser so assumes such financing, then (a) Purchaser shall receive a credit for the
principal amount of such loan, interest accrued thereon and unpaid through the Closing Date and any
other amounts due and payable, but unpaid, on the Closing Date allocable to such loan and (b)
Seller shall receive a credit (and Purchaser shall be debited) for all amounts in reserve and/or
impound accounts held by the lender under such financing as of the Closing Date, to the extent that
all of Seller’s rights in such amounts are transferred to the Purchaser in connection with such
assumption. In connection with any such assumption, prior to Closing Seller shall be presented
with evidence reasonably acceptable to Seller that the obligations and liabilities of Seller and
any guarantor of such loan shall be discharged and released effective as of the Closing.



     Section 11.23. New Lender. Seller (at no cost or liability to Seller or any
Seller Parties) shall reasonably cooperate with Purchaser in Purchaser’s efforts to engage a New
Lender in connection with the transactions contemplated herein. The foregoing shall in no regard
constitute a financing contingency.



     Section 11.24. Further Assurances. In case at any time after the Closing
Date any reasonable further action is necessary to carry out the purposes of this Agreement,
including, without limitation, the transfer of the Property to Purchaser and obtaining all
customary post-closing consents, Seller and Purchaser will take or cause to be taken such further
action (including the execution and delivery of such further instruments and documents) as the
other party reasonably may request, all without further consideration.



[The balance of this page has intentionally been left blank. Signature pages follow.]



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     IN WITNESS WHEREOF, Seller and Purchaser hereto have executed this Agreement as of the date
first written above.



	 	 	 	 	 	 	 	 	 
	 	 	SELLER:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	SP-K DEVELOPMENT, LLC, a Delaware limited liability company
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By: Lyme Properties LLC, a New Hampshire limited liability company, its sole Manager
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:
	 	/s/ GEORGE LIGHTBODY
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Name: George Lightbody
	 

	 	 	 	 	 	 	 	Its: CFO
	 

	 	 	 	 	 	 	 	Date: 1/28, 2007
	 
	 	 	 	 	 	 	 	 
	 	 	SP-B1 DEVELOPMENT, LLC, a Delaware limited liability company
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By: Lyme Properties LLC, a New Hampshire limited liability company, its sole Manager
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:
	 	/s/ GEORGE LIGHTBODY
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Name: George Lightbody
	 

	 	 	 	 	 	 	 	Its: CFO
	 

	 	 	 	 	 	 	 	Date: 1/28, 2007
	 
	 	 	 	 	 	 	 	 
	 	 	SP-A DEVELOPMENT, LLC, a Delaware limited liability company
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By: Lyme Properties LLC, a New Hampshire limited liability company, its sole Manager
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:
	 	/s/ GEORGE LIGHTBODY
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Name: George Lightbody
	 

	 	 	 	 	 	 	 	Its: CFO
	 

	 	 	 	 	 	 	 	Date: 1/28, 2007






52









 






	 	 	 	 	 	 	 	 	 
	 	 	SP-B2 DEVELOPMENT, LLC, a Delaware limited liability company
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By: Lyme Properties LLC, a New Hampshire limited liability company, its sole Manager
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:
	 	/s/ GEORGE LIGHTBODY
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Name: George Lightbody
	 

	 	 	 	 	 	 	 	Its: CFO
	 

	 	 	 	 	 	 	 	Date: 1/28, 2007
	 
	 	 	 	 	 	 	 	 
	 	 	SP-D DEVELOPMENT, LLC, a Delaware limited liability company
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By: Lyme Properties LLC, a New Hampshire limited liability company, its sole Manager
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:
	 	/s/ GEORGE LIGHTBODY
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Name: George Lightbody
	 

	 	 	 	 	 	 	 	Its: CFO
	 

	 	 	 	 	 	 	 	Date: 1/28, 2007
	 
	 	 	 	 	 	 	 	 
	 	 	SP-E DEVELOPMENT, LLC, a Delaware limited liability company
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By: Lyme Properties LLC, a New Hampshire limited liability company, its sole Manager
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:
	 	/s/ GEORGE LIGHTBODY
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Name: George Lightbody
	 

	 	 	 	 	 	 	 	Its: CFO
	 

	 	 	 	 	 	 	 	Date: 1/28, 2007






53









 






	 	 	 	 	 	 	 	 	 
	 	 	SP-J DEVELOPMENT, LLC, a Delaware limited liability company
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By: Lyme Properties LLC, a New Hampshire limited liability company, its sole Manager
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:
	 	/s/ GEORGE LIGHTBODY
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Name: George Lightbody
	 

	 	 	 	 	 	 	 	Its: CFO
	 

	 	 	 	 	 	 	 	Date: 1/28, 2007
	 
	 	 	 	 	 	 	 	 
	 	 	110 MUNSON STREET, LLC, a Delaware limited liability company
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By: Lyme Properties LLC, a New Hampshire limited liability company, its sole Manager
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:
	 	/s/ GEORGE LIGHTBODY
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Name: George Lightbody
	 

	 	 	 	 	 	 	 	Its: CFO
	 

	 	 	 	 	 	 	 	Date: 1/28, 2007
	 
	 	 	 	 	 	 	 	 
	 	 	SP-C DEVELOPMENT, LLC, a Delaware limited liability company
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By: Lyme Properties LLC, a New Hampshire limited liability company, its sole Manager
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:
	 	/s/ GEORGE LIGHTBODY
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Name: George Lightbody
	 

	 	 	 	 	 	 	 	Its: CFO
	 

	 	 	 	 	 	 	 	Date: 1/28, 2007






	 	 	 	 	 	 	 
	 	LYME PROPERTIES LLC, a New Hampshire limited liability company
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ GEORGE LIGHTBODY
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: George Lightbody
	 

	 	 	 	 	 	Its: CFO
	 

	 	 	 	 	 	Date: 1/28, 2007






54









 






	 	 	 	 	 
	 	 	PURCHASER:
	 
	 	 	 	 
	 	 	BIOMED REALTY, L.P.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ GARY A. KREITZER
	 

	 	 	 	 
	 

	 	 	 	Name: Gary A. Kreitzer
	 

	 	 	 	Title: Executive Vice President
	 

	 	 	 	Date: Jan 29, 2007
	 
	 	 	 	 
	 

	 	By:
	 	/s/ JONATHAN P. KLASSEN
	 

	 	 	 	 
	 

	 	 	 	Name: Jonathan P. Klassen
	 

	 	 	 	Title: Vice President
	 

	 	 	 	Date: Jan 29, 2007
	 
	 	 	 	 
	 	 	BROKER:
	 
	 	 	 	 
	 	 	Lyme Properties LLC
	 
	 	 	 	 
	 

	 	By:
	 	/s/ GEORGE LIGHTBODY
	 

	 	 	 	 
	 

	 	 	 	Name: George Lightbody
	 

	 	 	 	Its: CFO







55