Exhibit 10.10


 


PURCHASE
AND SALE AGREEMENT 


 


THIS PURCHASE AND SALE AGREEMENT (this “Agreement”)
is made and entered into as of this 19th day of May, 2006, by and
between MIDDLETON INVESTORS, LLC, a Massachusetts limited liability company,
having an address of c/o BPG Properties, Ltd., 770 Township Line Road, Suite 150,
Yardley, Pennsylvania 19067 (“Seller”), and HARVARD PROPERTY TRUST, LLC, a
Delaware limited liability company, having an address of 15601 Dallas Parkway, Suite 600,
Addison, Texas 75001-6026 (“Purchaser”).


 


W I T N
E S S E T H:


 


In consideration of the covenants and
agreements hereinafter contained, the parties hereto agree as follows:


 


1.                                      The Sale.


 


Upon and subject to the terms and
conditions of this Agreement, Seller agrees to sell and convey to Purchaser,
and Purchaser agrees to purchase from Seller (i) those certain parcels of
land in the Town of Middleton, Essex County (South), Commonwealth of
Massachusetts, which parcels are more particularly described in Exhibit A
attached hereto, together with all right, title and interest of Seller in and
to any land lying in the bed of any streets, alleys, or rights-of-way (open)
adjacent or abutting or adjoining such premises, together with all rights,
privileges, rights of way and easements appurtenant to such premises
(collectively the “Land”), (ii) all buildings, garages, improvements,
structures and fixtures on the Land, including without limitation the existing
office building commonly known as “The Ferncroft Corporate Center, 35 Village
Road,” (collectively the “Building,” and together with the Land, the “Real
Property”); (iii) Seller’s right, title and interest in and to the leases,
occupancy agreements, or licenses affecting the Real Property or any part thereof
together with any amendments of any of the foregoing or any related agreements
creating ongoing obligations of the parties thereto which are listed on Exhibit B
(the “Schedule of Leases”) and any New Leases entered into pursuant to Section 19.8
(collectively the “Leases”); (iv) all furniture, furnishings, fixtures,
equipment and other tangible personal property owned by Seller, located on the
Real Property and used solely in connection therewith (the “Tangible Personal
Property”); (v) all right, title and interest of Seller under any and all
maintenance, service, leasing, brokerage, advertising and other like contracts
and agreements with respect to the ownership and operation of the Real Property
(collectively the “Service Contracts”); and (vi) all right, title and
interest of Seller in and to all studies, surveys, plans, drawings,
specifications, reports, contracts, warranties, approvals, licenses, permits,
certificates, design approvals, and variances relating to the Land or the
Building, to the extent in Seller’s possession and transferable without cost to
Seller, all to the extent applicable to the period from and after the Closing
(as hereinafter defined), except as expressly set forth to the contrary in this
Agreement (collectively “Development Materials”) (the Land, the Building, Tangible
Personal Property, the Service Contracts, the Leases, the Development Materials
and such other rights and interests described above being collectively referred
to herein as the “Property”). Purchaser acknowledges that Seller does not own (a) the



 

















 


UPS and Liebert units, telecommunications
equipment and other fixtures located in the premises leased to Verizon
Directories Services – East Inc. successor to Verizon Information Services Inc.
(“Verizon”) and (b) the telecommunications equipment owned by Verizon New
England Inc. located in the common telephone equipment room on the 4th
floor of the Building and, to the extent owned by Verizon New England
Inc., all cables, wires and other equipment and apparatus used to distribute
telecommunications services to such common telephone equipment room from
outside of the Building and within the Building.


 


2.                                      Purchase Price; Deposit.


 


The purchase price to be paid by
Purchaser to Seller for the Property is Twenty Seven Million and 00/100 Dollars
($27,000,000.00) (the “Purchase Price”). Two Million and 00/100 Dollars
($2,000,000.00) (the “Initial Deposit”) shall then be paid by Purchaser to
Partners Title Company, 712 Main Street, Suite 2000E, Houston, Texas
77002-3215 (Attention: Reno Hartfiel) (referred to herein as the “Escrow Agent”
or the “Title Company”) as escrow holder within three (3) business days
following the execution and delivery of this Agreement by both Seller and
Purchaser (the “Effective Date”). Unless this Agreement is terminated in
accordance with the provisions of Section 3 or Section 19 hereof, an
additional Two Million and 00/100 Dollars ($2,000,000.00) (the “Additional
Deposit” and together with the Initial Deposit, the “Deposit”) shall be paid to
Escrow Agent as an additional deposit within one (1) business day
following the expiration of the Inspection Period set forth in Section 19
herein. The balance of the Purchase Price shall be paid to Seller at closing of
title (the “Closing”) and shall be paid by immediately available federal funds.
The Deposit shall be held by Escrow Agent in an interest bearing account in
accordance with the terms of an Escrow Agreement substantially in the form annexed
hereto as Exhibit C. If the purchase and sale hereunder is consummated in
accordance with the terms and conditions hereof, the Deposit shall be applied
to the Purchase Price at the Closing. In all other events, the Deposit shall be
disposed of by the Escrow Agent as provided elsewhere in this Agreement.


 


3.                                      Condition of Title.


 


Within
five (5) calendar days after the Effective Date, Purchaser will obtain an
ALTA Preliminary Commitment for Title Insurance (hereafter called the “Title
Commitment”) issued by the Title Company and Seller will deliver a copy of the
existing survey of the Real Property. Buyer, at its sole cost and expense,
shall be responsible for ordering an update of the survey (the “Survey”). Purchaser
shall be responsible for all of the costs and expenses associated with the
Survey and Title Commitment. The Title Commitment shall specify all easements,
liens, encumbrances, restrictions, conditions or covenants with respect to the
Real Property, and include copies of all documents referred to as exceptions to
title. If any exceptions appear in the Title Commitment, or any encroachments
or other matters appear on the Survey, to which Purchaser objects, Purchaser
shall, during the Inspection Period, notify Seller in writing of its objections
to title and survey (an “Objection Notice”). Purchaser shall not be required to
object to, and Seller shall be obligated to discharge and/or terminate at
Closing or make arrangements reasonably satisfactory to Purchaser to have such
discharged or terminated following Closing in accordance with customary
practice, any mortgages or related security documents or similar encumbrances
given to secure indebtedness for money borrowed by Seller (collectively,


 


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“Voluntary
Encumbrances”) and such Voluntary Encumbrances shall not be included as
Permitted Exceptions. Except for Voluntary Encumbrances, Seller may, but shall
not be obligated to, undertake to eliminate or cure any title or survey
objections of Purchaser contained in the Objection Notice (collectively “Defects
of Title”) to the reasonable satisfaction of Purchaser. At Purchaser’s sole
option and discretion, a removal or cure may be effected by issuance of
title insurance eliminating or insuring against the specified Defects of Title.
If Seller fails to cure or eliminate any Defects of Title, within ten (10) days
after receipt of the Objection Notice, or gives notice within such ten (10) day
period that Seller declines to cure or eliminate such Defects of Title,
Purchaser shall have the option exercisable within five (5) days after the
end of such ten (10) day period or after receipt of such notice from
Seller, as applicable, to either (i) terminate this Agreement or (ii) waive
its objection to such Defects of Title (and if Purchaser thereafter so desires may cure
them at Purchaser’s cost and expense, without any adjustment to the Purchase
Price). In the event Seller does not receive Purchaser’s written notice to
terminate the Agreement or Purchaser’s waiver of such Defects of Title within
such five (5) day period, then Purchaser shall be deemed to have elected
to terminate this Agreement. If Purchaser exercises its right to terminate the
Agreement, Escrow Agent shall promptly repay the Deposit plus any accrued
interest to Purchaser, and the parties shall thereafter have no further rights
or obligations pursuant to this Agreement, except those that expressly survive
termination hereunder. All matters relating to the state of title and matters
shown on the Survey with respect to the Real Property existing as of the date
of the Title Commitment or the Survey, as the case may be, which Purchaser
did not include in the Objection Notice or which are subsequently waived or
deemed waived by Purchaser, together with (a) zoning, building and other
governmental and quasi-governmental laws, codes and regulations, (b) liens
for such taxes and special assessments as will not be, as of the Closing Date,
due and payable, (c) rights of tenants under the Leases, and those
claiming by, through and under said tenants and (d) acts of Purchaser, and
those claiming by, through and under Purchaser and are collectively referred to
herein as the “Permitted Exceptions.”


 


4.                                      The Closing; Conditions Precedent to Closing.


 


4.1                                 Conditions
Precedent to Purchaser’s Obligations. Purchaser shall not be obligated to
consummate the transaction described in this Agreement unless:


 


(a)                                  All representations and
warranties made by Seller hereunder shall be true in all material respects as
of the Closing Date subject to the provisions of Section 7.3 herein;


 


(b)                                 Each item or instrument to be
delivered to Purchaser by Seller described in Section 4.7 below, has been
delivered to the Escrow Agent on or prior to the Closing Date;


 


(c)                                  The Tenant Estoppel
Certificates as required by Section 4.7 have been delivered to Purchaser.


 


(d)                                 No suit, action or other proceeding
shall be pending which seeks to restrain, enjoin or otherwise prohibit the
consummation of the transaction contemplated by this Agreement, or which
involves the Property in any material way; and


 


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(e)                                  The environmental and physical
condition of the Property shall not change adversely and materially after the
end of the Inspection Period and there shall be no encumbrance or title defect
affecting the Property first appearing after the Effective Date of the Title
Commitment or Survey.


 


4.2                                 Failure of Purchaser’s
Conditions Precedent. In the event any of the aforesaid conditions precedent
shall not have been satisfied or shall not exist on the Closing Date, then,
unless Purchaser shall have waived in writing the satisfaction or existence of
such condition precedent, in its election and in its sole and subjective
discretion, Purchaser shall not be obligated to close the transaction
contemplated hereby, and Purchaser shall be entitled to receive a return of the
Deposit with any interest accrued thereon. If the failure of any condition
precedent constitutes a default by Seller under this Agreement, Purchaser shall
have the remedies provided by Section 14.1 herein; otherwise, upon receipt
of the Deposit by Purchaser, Purchaser and Seller shall both be relieved of any
further liability or obligation hereunder.


 


4.3                                 Conditions Precedent to Seller’s
Obligations. Seller shall not be obligated to consummate the transaction
described in this Agreement unless:


 


(a)                                  All representations and
warranties made by Purchaser hereunder shall be true in all material respects
as of the Closing Date;


 


(b)                                 Each item or instrument to be
delivered to Seller by Purchaser described in Section 4.8 below, has been
delivered to the Escrow Agent on or prior to the Closing Date and


 


(c)                                  No suit, action or other
proceeding shall be pending which seeks to restrain, enjoin or otherwise
prohibit the consummation of the transaction contemplated by this Agreement, or
which involves the Property in any material way.


 


4.4                                 Failure
of Seller’s Conditions Precedent. In the event any of the aforesaid conditions
precedent shall not have been satisfied or shall not exist on the Closing Date,
then, unless Seller shall have waived in writing the satisfaction or existence
of such condition precedent, in its election and in its sole and subjective
discretion, Seller shall not be obligated to close the transaction contemplated
hereby and Purchaser shall be entitled to receive a return of the Deposit with
any interest accrued thereon. If the failure of any condition precedent
constitutes a default by Purchaser under this Agreement, Seller shall have the
remedies provided by Section 14.2 below; otherwise upon receipt of the
Deposit by Purchaser, Purchaser and Seller shall both be relieved of any
further liability or obligation hereunder.


 


4.5                                 Closing.
The Closing shall take place through the Escrow Agent, commencing at 10:00 a.m.
on June 26, 2006 (the “Closing Date”). Notwithstanding the foregoing, in
the event the conditions of this Section 4 are not satisfied by the
Closing Date, either Seller or Purchaser shall have the unilateral right, upon
prior written notice to the other, to extend the Closing Date for a time period
not to exceed fourteen (14) days from the original Closing Date. Even if the
conditions of this Section 4 have been satisfied, Purchaser shall have the
right to extend the Closing Date for an additional period of fifteen (15) days
by depositing the additional sum of Two Million and 00/100 Dollars ($2,000,000.00)
with the Escrow Agent as an addition to the 


 


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Deposit
(the “Closing Extension Deposit” or together with the Initial Deposit and
Additional Deposit the “Deposit”). If the purchase and sale hereunder is
consummated in accordance with the terms and conditions hereof, the Closing
Extension Deposit shall be credited and applied to the Purchase Price at
Closing. In all other events, the Closing Extension Deposit and Deposit shall
be disposed of by the Escrow Agent as provided elsewhere in this Agreement. All
documents to be delivered at the Closing and all payments to be made as
specified in Sections 4.7 and 4.8 shall be delivered to the Escrow Agent on the
Closing Date, in escrow, pending delivery of possession of the Property in
conformance with this Agreement, upon which delivery, all instruments and funds
shall then be delivered out of escrow. Purchaser and/or Purchaser’s agents
shall be entitled to inspect the Real Property prior to the delivery of the
deed in order to determine whether the condition thereof complies with the
terms of this Agreement. Notwithstanding anything to the contrary herein, the
deed shall not be recorded until the Escrow Agent confirms receipt of the
entire Purchase Price, as adjusted as herein provided.


 


4.6                                 Possession. At Closing Seller
shall deliver full possession of the Real Property free of all tenants and
occupants other than the tenants and occupants (collectively the “Tenants”)
under the Leases, such Real Property to be then in the same condition as on the
date of this Agreement, subject to ordinary wear and tear. 


 


4.7                                 Seller’s Deliveries. The following
deliveries shall be made by Seller at Closing:


 


(a)                                  Seller shall execute,
acknowledge, and deliver to Purchaser (or to a nominee designated by Purchaser
no less than seven (7) calendar days prior to the Closing Date) a
Massachusetts statutory form of Quitclaim Deed, substantially in the form attached
hereto as Exhibit D, conveying to Purchaser title in fee simple to
the Real Property, subject only to the Permitted Exceptions.


 


(b)                                 Seller shall deliver to
Purchaser two executed and acknowledged counterparts of an Assignment and
Assumption of Leases, substantially in the form annexed hereto as Exhibit E
(the “Lease Assignment”), assigning to Purchaser Seller’s interest as landlord
under the Leases. In addition, Seller shall deliver to Purchaser (i) the
original signed Leases and all amendments thereto (or copies thereof if
originals are not available), and (ii) any Tenant security deposits,
including any interest earned thereon, required under the Leases.


 


(c)                                  Seller shall deliver to
Purchaser two executed counterparts of a General Instrument of Transfer,
substantially in the form annexed hereto as Exhibit F (the “General
Instrument of Transfer “), assigning the matters described therein, including
without limitation the Service Contracts and the Development Materials.


 


(d)                                 Seller shall make available to
Purchaser at the Property originals (or copies thereof if originals are not
available) of all documents and materials assigned pursuant to the General
Instrument of Transfer which it may have in its possession, or in the
possession of any agent or affiliate.


 


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(e)                                  Seller shall deliver to
Purchaser an affidavit sworn to by Seller, substantially in the form annexed
hereto as 

Exhibit G, stating under penalties of perjury that Seller is not a
foreign person as defined in Internal Revenue Code Section 1445 and
stating Seller’s United States taxpayer identification number.


 


(f)                                    Seller shall deliver to
Purchaser such evidence (which may take the form of a Secretary’s
Certificate) as may be reasonably required by Purchaser or the Title
Company evidencing the status and capacity of Seller and the authority of
persons executing the various documents on behalf of Seller in connection with
this Agreement. Seller shall also deliver to Purchaser a current certificate of
good standing for the Purchaser issued by the appropriate governmental authority
for the Commonwealth of Massachusetts.


 


(g)                                 Seller shall deliver such
affidavits and other customary items as the Title Company may reasonably
require with respect to mechanic’s liens, gap coverage and parties in
possession.


 


(h)                                 Seller shall deliver evidence
of payment in full of the commission due to the Named Broker as defined in Section 6
below or shall provide for payment of such commission at Closing by way of a
debit to Seller on the Closing Statement and instruction to Escrow Agent to pay
such amount.


 


(i)                                     Seller shall deliver to
Purchaser estoppel certificates (the “Tenant Estoppels”) from Verizon and the
SAS Institute, Inc. (the “Required Estoppels”). The estoppel certificates
submitted by Seller to the tenants for execution shall be substantially in the form of
Exhibit H attached hereto (the “Form Tenant Estoppel
Certificate”). The Tenant Estoppels executed by tenants shall be in
substantially the form of the Form Tenant Estoppel Certificate,
except that a Tenant Estoppel executed by a tenant shall be deemed an
acceptable Tenant Estoppel for purposes hereof either: (i) if it contains
the qualification by the tenant of any statement as being to the best of its
knowledge or as being subject to any similar qualification; or (ii) if it
only contains the information the tenant is required to give pursuant to its
lease. Notwithstanding the foregoing, a Tenant Estoppel executed by a tenant
shall not be deemed acceptable, unless specifically approved by the Purchaser,
if such Estoppel Certificate asserts an on-going default by the landlord under
the Lease. Purchaser expressly agrees and acknowledges that (i) Seller can
not and will not provide any specific financial information for the Tenants and
(ii) Seller can not make any representations or warranties regarding any
specific financial information for the Tenants set forth in the Tenant
Estoppels. If any Tenant Estoppel contains statements confirming any of Seller’s
representations or warranties, then Seller shall be deemed not to have made
such representations or warranties as to such Lease. If any Tenant Estoppel
contains statements or allegations that a default or potential default exists
on the part of Seller under the lease in question or contain information
inconsistent with any representations of Seller contained in this Agreement and
Purchaser elects to close the purchase and sale transaction contemplated herein
notwithstanding the existence of such


 


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statements,
allegations or information, then such Tenant Estoppel shall be deemed
acceptable for purposes of this Section, notwithstanding the existence of such
allegations, statements or information and Seller shall have no liability
whatsoever to Purchaser hereunder with respect to the existence of such
allegations, statements or information.


 


If
Seller does not provide to Purchaser the Required Estoppels on or before the
Closing Date, then Purchaser may elect, by written notice to Seller given
on the Closing Date, either: (i) not to purchase the Property, in which
event the Deposit shall be returned to Purchaser, at which time this Agreement
shall terminate and become null and void and neither party shall have any
further rights or obligations under this Agreement, except for those which
expressly survive termination of this Agreement; or (ii) elect to purchase
the Property notwithstanding Seller’s failure to provide the Required
Estoppels, in which event Purchaser shall be deemed to have waived the
condition contained in this Section 4.7(i). If Purchaser proceeds to
Closing, Purchaser shall be deemed to have elected item (ii) above.


 


(j)                                     To the extent that any security
deposit is composed of a letter of credit: (i) Seller shall make
commercially reasonable efforts to have the same assigned and transferred, at
Seller’s expense (or the applicable tenant’s expense), to Purchaser as of the
Closing and (ii) if not transferable as of Closing, Seller shall cooperate
with Purchaser in all reasonable respects following the Closing so as to
transfer the same to Purchaser or to obtain a replacement letter of credit with
respect thereto, in favor of Purchaser. Until any such letter of credit shall
be transferred or replaced, Seller shall draw upon the same and deliver the
proceeds to Purchaser promptly (in no event more than five (5) business
days) following Purchaser’s written request (Purchaser shall not make such
written request unless Purchaser believes, in good faith, that such request is
in accordance with and when permitted under the applicable lease); provided
that Purchaser shall defend, indemnify and hold harmless Seller from and
against any and all loss, cost, damage, liability or out-of-pocket expense
incurred by Seller as a result of any such actions taken by Seller at Purchaser’s
request. Seller shall defend, indemnify and hold harmless Purchaser from and
against any and all loss, cost, damage, liability or out-of-pocket expense
incurred by Purchaser only if Seller fails to take an affirmative action to
draw upon a letter of credit that Purchaser has requested the same to be drawn
upon provided.


 


(k)                                  Seller shall deliver to
Purchaser one original notice to each Tenant advising each Tenant of the sale
of the Property and the assignment of its Lease to Purchaser, substantially in
the form annexed hereto as Exhibit J.


 


(l)                                     Seller shall deliver to
Purchaser one original notice to each service provider under the Service
Contracts, advising each such service provider of the sale of the Property and
the assignment of its Service Contract to Purchaser, substantially in


 


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the form annexed hereto as Exhibit K.


 


(m)                               Seller shall deliver a
certified rent roll for the current month for the tenants listed on the Schedule of
Leases annexed hereto as Exhibit B.


 


(n)                                 Seller shall deliver to
Purchaser two executed counterparts of the Closing Statement (as hereinafter
defined in Section 5) (or the Closing Statement may be signed in
facsimile counterparts on the Closing Date).


 


4.8                                  Purchaser’s
Deliveries. The following deliveries shall be made by Purchaser at Closing:


 


(a)                                  Purchaser shall deposit with
the Escrow Agent the Purchase Price provided for in Section 2 above, net
of the Deposit and interest accrued thereon, as adjusted for apportionments
provided for in Section 5 below, and Purchaser shall instruct the Escrow
Agent shall pay over at Closing the Deposit and such interest to Seller.


 


(b)                                 Purchaser shall deliver to
Seller two executed and acknowledged counterparts of the Assignment and
Assumption of Leases.


 


(c)                                  Purchaser shall deliver to
Seller two executed counterparts of the General Instrument of Transfer.


 


(d)                                 Purchaser shall deliver to
Seller two executed counterparts of the Closing Statement (or the Closing
Statement may be signed in facsimile counterparts on the Closing Date).


 


(e)                                  Purchaser shall deliver to
Seller such evidence (which may take the form of a Secretary’s
Certificate) as may be reasonably required by Seller or the Title Company
evidencing the status and capacity of Purchaser and the authority of persons
executing the various documents on behalf of Purchaser, or Purchaser’s designee
or nominee, in connection with this Agreement.


 


5.                                      Apportionments.


 


The following are to be apportioned as of
the Closing Date in accordance with local custom, with said date being a day of
income and expense to Purchaser, and the same shall be reflected on a closing
statement (the “Closing Statement”) executed by Seller and Purchaser at the
Closing:


 


5.1                                 Taxes
and sewer rents, if any, on the basis of the fiscal year for which assessed. If
the Closing Date shall occur before the real property tax rate for such fiscal
year is fixed, the apportionment of taxes shall be made on the basis of the
taxes assessed for the preceding fiscal year. After the real property taxes are
finally fixed for the fiscal year in which the Closing Date occurs, Seller and
Purchaser shall make a recalculation of the apportionment of such taxes, and
Seller or Purchaser, as the case may be, shall make an appropriate payment
to the other based on 


 


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such recalculation. To the extent Seller has
undertaken to obtain any real estate tax abatement relative to Seller’s period
ownership (“Abatement”), Seller shall be entitled to continue to prosecute such
Abatement following the Closing and the amount of the net proceeds of such
Abatement after deducting the cost of the prosecution of same shall be prorated
through the Closing Date, if, as and when such proceeds are paid by the
applicable governmental taxing authority. As part of the Review Materials
(as hereinafter defined), Seller shall provide to Purchaser copies of the
relevant filings and documents relative to the Abatement. All expenses, taxes,
fees, and charges of every type relating to the Property and accruing for any
period prior to the Closing shall be paid promptly by Seller except to the
extent that Purchaser received credit therefore at the Closing.


 


5.2                                 All assessments imposed by any
governmental agency (herein “Assessments”) for improvements to the Real
Property for work substantially completed on or before the date of Closing
shall be paid in full by Seller at Closing. Any other Assessments for
improvements to the Real Property shall be paid by Purchaser. If at the time
for the delivery of the deed, the Real Property or any part thereof shall
be or shall have been affected by an Assessment or Assessments for work which
Seller is obligated to pay which are or may become payable in annual
installments of which the first installment is then due or has been paid, then
for the purposes of this Agreement all of the unpaid installments of any such
Assessment, including those which are to become due and payable after the
delivery of the deed, shall be deemed to be due and payable and to be liens
upon the Land affected thereby and shall be paid and discharged by the Seller
upon the delivery of the deed. If upon the delivery of the deed Assessments
which are Purchaser’s obligation exist, Purchaser assumes all such assessments
and will reimburse Seller for any installments for which Purchaser is obligated
to pay but were in fact paid for by Seller. As part of the Review
Materials, Seller shall provide to Purchaser copies of all relevant documents,
notices and correspondence relative to any Assessment of which Seller has
actual knowledge and possession.


 


5.3                                 Final readings on all gas,
water and electric meters shall be made as of the Closing, if possible. If
final readings are not possible, gas, water and electricity charges will be
prorated based on the most recent period for which costs are available. Any
deposits made by Seller with utility companies shall be returned to Seller. Purchaser
shall be responsible for making all arrangements for the continuation of
utility services.


 


5.4                                 Prepaid rent and collected rent
under the Leases shall be prorated as of the Closing Date. Rents collected from
any Tenant by Seller after the Closing Date shall be deemed to apply first to
the rentals for the month of Closing, second to current rental due at the time
of payment, and then to any other rentals that are delinquent on the Closing
Date. Unpaid and delinquent rents, to which Seller is entitled, shall be turned
over to Seller if collected by Purchaser within thirty (30) days of receipt.
Purchaser agrees to use commercially reasonable efforts to attempt to collect
such rents; provided Purchaser shall not be obligated to evict any tenant or
enforce any remedies of the Lease or file any legal action in connection
therewith. Seller shall not initiate any suit against any tenant with regard to
delinquent rent so long as such tenant remains a tenant of the Property. Tenants
under the Leases are currently paying Seller certain amounts (referred to
herein as “Tenant Reimbursements”) based on Seller’s estimates for real estate
taxes and assessments, common area maintenance, operating expenses and similar


 


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expenses (collectively, “Tenant Reimbursable
Expenses”). Tenant Reimbursements shall be provisionally adjusted as of the
Closing Date. In the event that any Tenant Reimbursements or the calculation
thereof is subject to adjustment pursuant to the terms and provisions of any
Lease (e.g., year-end adjustments to escalation charges and the like), then
after the amount of such Tenant Reimbursements is finally determined by
Purchaser (which determination shall be made on or before January 31,
2007), the parties shall make the proper adjustments so that the proration will
be accurate based upon the actual amount of such Tenant Reimbursements collected
and the actual Tenant Reimbursable Expenses incurred for the period in
question, and payment shall be made promptly to Purchaser or Seller, whichever may be
entitled to such payment, by the other party for the purpose of making such
adjustment. After closing, Purchaser shall promptly bill the tenants for Tenant
Reimbursable Expenses payable under the Leases and continue to bill such
tenants for such amounts each month. In the event Seller shall be obligated to
make, and makes a payment to Purchaser upon Purchaser’s reconciliation of
Tenant Reimbursements collected and the actual Tenant Reimbursement Expenses
incurred as aforesaid, upon receipt Purchaser shall be obligated to promptly
remit the applicable portion of the particular tenants entitled thereto, and
Purchaser shall indemnify, defend and hold harmless Seller, its beneficiaries,
their partners and their respective directors, officers, employees and agents,
and each of them from and against any losses, claims, damages and liabilities,
including, without limitation, reasonable attorneys’ fees and expenses incurred
in connection therewith, arising out of or resulting from Purchaser’s failure
to remit such amounts to tenants in accordance with the provisions thereof.


 


5.5.                              Payments made by Seller under
all Service Contracts shall be apportioned by Seller and Purchaser as of the
Closing Date.


 


5.6                                 Seller shall have the right to
discharge, from out of the Closing proceeds, any lien capable of being
discharged by the payment of an ascertainable sum, including without limitation
any Voluntary Encumbrances which Seller is obligated to discharge, in which
event the total sum of money required to discharge said lien or liens, as
evidenced either by a written payoff statement or by other evidence
satisfactory to the Title Company, shall be reflected on the Closing Statement.


 


5.7                                 The provisions of this Section 5
shall survive the Closing.


 


6.                                      Brokerage
Commissions.


 


Purchaser
and Seller each represent and warrant to the other that they have not dealt
with any broker in connection with the purchase of the Property except Trammell
Crow Company (the “Named Broker”). Purchaser and Seller shall indemnify,
defend and hold each other harmless from any claim, liability, obligation, cost
or expense (including attorneys’ fees and expenses) for fees or commissions
relating to Purchaser’s purchase of the Property asserted against either party
by any broker or other person (other than the Named Broker) claiming by,
through or under the indemnifying party or whose claim is based on the
indemnifying party’s acts. Seller agrees that in connection with the sale of
the Property to Purchaser, it is solely responsible for the payment of the
Named Broker’s commission, whose compensation Seller shall pay under a separate
arrangement.


 


10

















 


The representations made by Seller and
Purchaser in this Section 6 shall survive the Closing.


 


7.                                      Warranties and Representations.


 


7.1                                 Seller
represents and warrants that (which representations and warranties shall be
deemed to have been made again at Closing):


 


(a)                                  Seller has no actual knowledge
of, and has not received any notice of, any threatened or pending condemnation
proceedings affecting the Real Property;


 


(b)                                 The reports listed on Exhibit L,
full, correct and complete copies of all of which have been or will be
delivered to Purchaser at or before the execution of this Agreement, are, to
Seller’s knowledge, all of the reports in Seller’s or Seller’s agents
possession which relate to the investigation of the Real Property for the
presence of hazardous materials. To the Seller’s actual knowledge, there are no
hazardous wastes, petroleum products, pollutants, asbestos, asbestos containing
materials, or other hazardous substances located in, upon or beneath the Real
Property except (i) as referenced in such reports and (ii) those such
substances or materials which are used in Seller’s business conducted on the
Property (or the business of any of the Tenants) and handled in conformity with
applicable law and regulations;


 


(c)                                  All written materials which
Seller has delivered or shall deliver to Purchaser pursuant this Agreement,
including, without limitation the Review Materials, are and shall be complete
in all material respects;


 


(d)                                 Seller has not entered into any
options, purchase contracts or other written agreements, whereby any person
could validly claim a right, title or interest in the Property or any portion
thereof by or through Seller;


 


(e)                                  Seller has received no written
notice or citation from any federal, state, county or municipal authority
alleging any fire, health, safety, building pollution, environmental, zoning or
other violation of any law, regulation, permit, order or directive in respect
of the Real Property or any part thereof, which has not been corrected;


 


(f)                                    With respect to the Leases,
except as set forth on Exhibit B, or as otherwise provided in Section 19.8
hereof with respect to certain New Leases: 
(i) no rent has been paid more than thirty (30) days in advance, (ii) to
Seller’s knowledge, neither the Tenants nor Seller is in default in the
performance of any material covenant, agreement or condition contained in the
Leases, and (iii) Seller has not received written notice from any Tenant
regarding pending or threatened offsets against rent or for any other monetary
or material claim against Seller which has not been fully resolved and no rent
concessions have been created which are not


 


11

















 


disclosed in the Leases. The
representations and warranties made in this Section 7.1(h) shall not
apply to the New Leases on the date of execution and delivery of this
Agreement.


 


(g)                                 Seller is a Massachusetts
limited liability company duly organized, validly existing, and in good
standing in the Commonwealth of Massachusetts, and Seller has all requisite
power and authority to own and operate its properties and to carry on its
business as now conducted and to enter into and perform this Agreement and
to carry out the transactions contemplated hereby;


 


(h)                                 No bankruptcy or insolvency
proceeding under the Bankruptcy Code or any state bankruptcy or insolvency law
filed by or against Seller is pending and no such filing is contemplated by
Seller, or, to Seller’s knowledge, threatened;


 


(i)                                     There is no outstanding, or, to
the Seller’s knowledge, threatened litigation, claims or proceedings before any
court, commission, agency or other administrative authority which could
prohibit or materially adversely affect Seller’s title to the Real Property or
Seller’s ability to consummate the transaction contemplated by this Agreement;


 


(j)                                     No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any governmental authority on the part of Seller is required
in connection with the execution and delivery of this Agreement or its sale of
the Property;


 


(k)                                  Seller has duly authorized the
execution, delivery, and performance of this Agreement, and such execution,
delivery and performance by Seller of this Agreement will not result in a
breach of, violate any term or provision of, or constitute a default under,
Seller’s organizational documents or any other agreement by which Seller is
bound;


 


(l)                                     There are no lease brokerage
agreements, leasing commission agreements or other agreements providing for
payments of any amounts for leasing activities or procuring tenants with
respect to the Property other than as set forth in the Leases;


 


(m)                               To Sellers knowledge, except as
disclosed in the Review Materials, there are no Assessments or Abatements
affecting the Property or any portion thereof; and


 


(n)                                 To the extent of Seller’s
actual knowledge, Seller is not in violation of the requirements of Executive
Order No. 133224, 66 Fed. Reg. 49079 (Sept. 25, 2001) (the “Order”) and
other similar requirements contained in the rules and regulations of the
Office of Foreign Assets Control, Department of the Treasury (“OFAC”) and in
any enabling legislation or other Executive Orders or regulations in respect
thereof (the Order and such other rules, regulations, legislation, or orders
are collectively called the “Orders”). Further, to the extent of Seller’s
actual knowledge, Seller represents that it is not an entity that is


 


12

















 


subject
to maintaining policies, procedures and practices regarding compliance with the
Orders.


 


(o)                                 To
the extent of Seller’s actual knowledge, neither Seller nor any general partner
or any managing member of Seller:


 


(i)                                     is
listed on the Specially Designated Nationals and Blocked Persons List
maintained by OFAC pursuant to the Order and/or on any other list of terrorists
or terrorist organizations maintained pursuant to any of the rules and
regulations of OFAC or pursuant to any other applicable Orders (such lists are
collectively referred to as the “Lists”);


 


(iii)                               is
a person or entity who has been determined by competent authority to be subject
to the prohibitions contained in the Orders; or


 


(iii)                               is
owned or controlled by, or acts for or on behalf of, any person or entity on
the Lists or any other person or entity who has been determined by competent
authority to be subject to the prohibitions contained in the Orders.


 


Seller
hereby covenants and agrees that if Seller obtains actual knowledge prior to
Closing that Seller or any of its managing members or general partners becomes
listed on the Lists or is indicted, arraigned, or custodially detained on
charges involving money laundering or predicate crimes to money laundering,
Seller shall immediately notify Purchaser in writing, and in such event,
Purchaser shall have the right to terminate this Agreement without penalty or
liability to Purchaser immediately upon delivery of written notice thereof to
Seller, whereupon the Deposit shall be returned to Purchaser.


 


As used herein, the term “knowledge” with
respect to Seller shall mean the actual, conscious, not constructive or
imputed, knowledge of Jennifer Bowlby, Asset Manager and Albert J. Corr, Vice
President, New England Region and shall not be construed to refer to the
knowledge of any other employee, officer, director or representative of Seller
or of any affiliate of Seller.


 


7.2                                 Purchaser
represents and warrants that (which representations and warranties shall be
deemed to have been made again at Closing):


 


(a)                                  Purchaser is a limited
liability company duly organized and existing under the laws of the State of
Delaware, and Purchaser has all requisite power and authority to enter into and
perform this Agreement and to carry out the transactions contemplated
hereby;


 


(b)                                 No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any governmental authority on the part of Purchaser is
required in connection with the execution and delivery of this Agreement or its
purchase of the Property;


 


13

















 


(c)                                  Purchaser has duly authorized
the execution, delivery, and performance of this Agreement, and such execution,
delivery and performance by Purchaser of this Agreement will not result in a
breach of, violate any term or provision of, or constitute a default under,
Purchaser’s organizational documents or any other agreement by which Purchaser
is bound;


 


(d)                                 No bankruptcy or insolvency
proceeding under the Bankruptcy Code or any state bankruptcy or insolvency law
filed by or against Purchaser is pending and no such filing is contemplated by
Purchaser, or, to Purchaser’s knowledge, threatened; and


 


(e)                                  There is no outstanding, or, to
the Purchaser’s knowledge, threatened litigation, claims or proceedings before
any court, commission, agency or other administrative authority which could
affect Purchaser’s ability to consummate the transaction contemplated by this
Agreement.


 


(f)                                    To the extent of Purchaser’s
actual knowledge, Purchaser is not in violation of the requirements of the
Orders and other similar requirements contained in the rules and
regulations of OFAC. Further, to the extent of Purchaser’s actual knowledge,
Purchaser represents that it is not an entity that is subject to maintaining
policies, procedures and practices regarding compliance with the Orders.


 


(g)                                 To the extent of Purchaser’s
actual knowledge, neither Purchaser nor any general partner or any managing
member of Purchaser:


 


(i)                                     is
listed on the Lists;


 


(ii)                                  is
a person or entity who has been determined by competent authority to be subject
to the prohibitions contained in the Orders; or


 


(iii)                               is
owned or controlled by, or acts for or on behalf of, any person or entity on
the Lists or any other person or entity who has been determined by competent
authority to be subject to the prohibitions contained in the Orders.


 


Purchaser
hereby covenants and agrees that if Purchaser obtains actual knowledge prior to
Closing that Purchaser or any of its managing members or general partners
becomes listed on the Lists or is indicted, arraigned, or custodially detained
on charges involving money laundering or predicate crimes to money laundering,
Purchaser shall immediately notify Seller in writing, and in such event, Seller
shall have the right to terminate this Agreement without penalty or liability
to Purchaser immediately upon delivery of written notice thereof to Purchaser.


 


(h)                                 Purchaser
represents and warrants to Seller that (i) Purchaser is not an “employee
benefit plan” (as defined in section 3(3) of ERISA) or a “plan” (as
defined in Section 4975(e)(1) of the Code), and (ii) none of the


 


14

















 


Purchaser’s
assets constitute “plan assets” for purposes of ERISA or the Code (as defined
in 29 C.F.R. 2510.3-101 or other U.S. Department of Labor authorities).


 


As
used herein, the term “knowledge” with respect to Purchaser shall mean
the actual, conscious, not constructive or imputed, knowledge of Joe Jernigan
and shall not be construed to refer to the knowledge of any partner, officer,
director, agent, member, manager, employee or representative of Purchaser, or
of any affiliate of Purchaser.


 


7.3                                 The representations and
warranties made by Seller in Section 7.1 and by Purchaser in Section 7.2
are true and correct in all material respects as of the date of this Agreement,
and shall be true and correct in all material respects and deemed repeated as
of the Closing. The representations and warranties of Purchaser as set forth in
Section 7.2 shall survive the Closing and shall not be merged therein. The
representations or warranties of Seller as set forth in Section 7.1, shall
survive consummation of the transactions contemplated by this Agreement and
shall continue in full force and effect for a period of nine (9) months
after the Closing (the “Survival Period”), and shall be binding upon and inure
to the benefit of Purchaser, its successors in interest and assigns provided,
however, Seller shall not have any liability or other obligation with respect
to any such representations or warranties unless prior to the expiration of the
Survival Period the party seeking to assert liability under any such
representation or warranty of Seller shall have notified Seller in writing
setting forth specifically the representation or warranty allegedly breached by
Seller, a description of the alleged breach in reasonable detail and a proposed
remedy. All liability or other obligation of Seller under any such
representations or warranties shall lapse and be of no further force or effect
with respect to any matters not contained in a written notice delivered as
contemplated within the Survival Period, or, if such notice is given within the
Survival Period, unless suit on the claim described in such notice is commenced
against Seller within thirty (30) days following the expiration of the Survival
Period.


 


7.4                                 If either Seller or Purchaser
shall proceed to Closing with actual knowledge of any matter which is in
conflict with any of the representations, warranties or indemnities made in
this Agreement by the other party, they shall be deemed to have waived such
representations, warranties or indemnities to the extent inconsistent with such
actual knowledge.


 


7.5                                 Notwithstanding anything to the
contrary contained herein, Purchaser shall not assert any claim or claims
against Seller for breach of any representation or warranty made by Seller in Section 7.1
hereof, and Seller shall not assert any claim or claims against Purchaser for
breach of any representation or warranty made by Purchaser in Section 7.2
hereof, as the case may be, unless and until the aggregate of such party’s
claim or claims thereunder exceeds Thirty Five Thousand and 00/100 Dollars
($35,000.00); however if such threshold is exceeded, subject to the limitations
of Section 7.6, Purchaser may pursue all such claims starting at the
first Dollar.


 


7.6                                 Notwithstanding anything
contained in this Agreement, the aggregate total liability of Seller for breach
of any representation or warranty made by Seller in Section 7.1 hereof (as
the same are restated at Closing) shall not exceed Seven Hundred Fifty Thousand
and 00/100 Dollars ($750,000.00).


 


15

















 


8.                                      Merger of All Prior Understandings; Property to be Accepted “AS
IS”.


 


It is understood and agreed that all
understandings and agreements heretofore had between Seller and Purchaser with
respect to the subject matter of this Agreement and the transaction
contemplated herein, are merged in this Agreement, which alone fully and
completely expresses their agreement, and neither is party relying upon any
statement or representation, not specifically embodied in this Agreement, made
by the other. Except as otherwise expressly provided in this Agreement, Seller shall
have no repair, removal or remediation obligations whatsoever, and Purchaser
agrees to accept the Property on the basis of Purchaser’s own investigation of
the Property, that the Property will be acquired by the Purchaser “AS IS”, “WHERE
IS” and “WITH ALL FAULTS” on the date of this Agreement, and without any
express or implied warranties by Seller and without recourse to Seller, as to
its physical condition, title, usability, suitability or otherwise; that
Purchaser assumes the risk that adverse physical conditions may not be or may not
have been revealed by its own investigations or by Seller (Seller having no
obligation so to do); that Seller has made no express or implied
representations or warranties of any kind in connection with any matter relating
to the value and profitability of the Property or its fitness for any
particular purpose; and that Seller has made no express or implied
representations or warranties of any kind except as otherwise expressly set
forth in this Agreement. Except as otherwise expressly provided in this
Agreement, Purchaser agrees to accept the Property in its then existing “AS IS”
condition and basis with all faults at the Closing and waives all objections or
claims against Seller (including, but not limited to, any right or claim of
indemnity or contribution) arising from or related to the Property or the use
thereof or its physical, environmental, economic or legal condition (including,
without limitation, the actual or suspected existence of any Hazardous
Materials in, on under or about the Property or the soil or ground water
thereof). The provisions of this Section 8 shall survive the Closing.


 


9.                                      No Oral
Change; Assignment


 


9.1                                 This Agreement may not be
changed or terminated orally.


 


9.2                                 Purchaser shall not have the right
to assign this Agreement without the written consent of Seller; provided,
however, that, Purchaser may assign this Agreement, without such consent,
to any entity which is a parent, subsidiary or affiliate of Purchaser, or a
single purpose entity formed by Purchaser and one or more investors for the
purpose of acquiring the Property, subject to the provisions of this Section 9.2.
It shall be a condition precedent to the effectiveness of any such assignment
that (i) any such assignee execute and deliver an Assignment and
Assumption Agreement in a form reasonably satisfactory to Seller, pursuant
to which assignee shall acknowledge that it is an assignee of Purchaser with
respect to the Property, and shall agree to assume and discharge all of the
obligations of Purchaser at Closing and thereafter arising under this Agreement
with respect to the Property, and (ii) that the designation of such
assignee and the execution and delivery of the documents required to be
executed and delivered to it by Seller at Closing in accordance with Purchaser’s
instructions shall not relieve or discharge Purchaser of any of its obligations
arising under this Agreement. Any attempt to assign this Agreement in violation
of the provisions of this Section 9.2 shall be deemed to be null and void
and of no force or effect.


 


16

















 


10.                               Closing
Expenses.


 


10.1                           Seller’s Costs. Seller shall
pay, in addition to its apportionments, (i) the cost of its legal counsel;
(ii) one-half (1⁄2) of any escrow fees charged by the Escrow Agent or Title
Company, (iii) the cost of recording any title clearing documents for any
Voluntary Encumbrances; (v) all applicable documentary stamps payable in
connection with the recording of the deed; and (vi) other costs and
expenses which are customarily borne by a seller of commercial property in
Middleton, Massachusetts.


 


10.2                           Purchaser’s Costs. Purchaser
shall pay, in addition to its apportionments, (i) the cost of its legal
counsel, accountants, engineers, architects, and advisors; (ii) the
premium for the Title Commitment and the title insurance and endorsements
issued pursuant thereto; (iii) the cost to obtain or update the Survey; (iv) the
cost of recording the deed as well as any other of Seller’s Deliveries which are
to be recorded; (v) the costs of municipal lien certificates and utility
readings, (vi) one-half (1⁄2) of any escrow fees charged by the Escrow Agent
or Title Company; and (vii) any other costs and expenses which are
customarily borne by a purchaser of commercial property in Middleton,
Massachusetts.


 


11.                               Notices.


 


All notices, demands, consents, requests,
or other communications provided for or permitted to be given hereunder by a
party hereto must be in writing and shall be deemed to have been properly given
or served (i) upon the personal delivery thereof, via courier delivery
service or otherwise, (ii) upon the delivery by facsimile electronic
transmission (provided that such facsimile is sent on a business day prior to
5:00 p.m. of the recipient’s local time, and a confirmation copy is sent
via another manner set forth in this Section 11), (iii) the next
business day following deposit with a nationally recognized overnight
air-freight or courier service such as Federal Express, or (iv) three (3) business
days following deposit thereof in the United States mail, certified mail
(return receipt requested), provided such notices shall be addressed or
delivered to the parties at their respective addresses or facsimile telephone
numbers set forth below in this Section 11. Copies of all notices
delivered hereunder shall also be delivered in the same manner to counsel for
the parties hereto.


 


	
  If
  to Purchaser:

  	
   

  	
  Harvard
  Property Trust, LLC

  
	
   

  	
   

  	
  15601
  Dallas Parkway, Suite 600

  
	
   

  	
   

  	
  Addison,
  Texas 75001-6026

  
	
   

  	
   

  	
  Attn:   Joe
  Jernigan

  
	
   

  	
   

  	
  Telephone
  No.: (214) 655-1600

  
	
   

  	
   

  	
  Facsimile No.: (214) 655-1610

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy to

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Haynes and Boone, LLP

  
	
   

  	
   

  	
  2505 N. Plano Road, Suite 4000

  
	
   

  	
   

  	
  Richardson, Texas 75082-4101

  



 


17

















 


	
   

  	
   

  	
  Attn:   Richard K. Martin

  
	
   

  	
   

  	
  Telephone No.: (972) 739-8634

  
	
   

  	
   

  	
  Facsimile No.: (972) 692-9114

  
	
   

  	
   

  	
   

  
	
  If to Seller:

  	
   

  	
  Middleton Investors, LLC

  
	
   

  	
   

  	
  c/o BPG Properties, Ltd.

  
	
   

  	
   

  	
  770 Township Line Road, Suite 150 

  Yardley, Pennsylvania 19067 

  Attn:   Mr. Albert J. Corr 

  Telephone No.: (215) 575-2458 

  Facsimile No.: (215) 575-2437

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy to

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BPG Properties, Ltd. 

  3200 Centre Square West 

  1500 Market Street 

  Philadelphia, Pennsylvania 19102 

  Attn:   Mr. Mark T. Ledger 

  Telephone No.: (215) 557-6900 ext. 18 

  Facsimile No.:  (215) 557-3746

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  and

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Hinckley, Allen & Snyder LLP 

  28 State Street 

  Boston, Massachusetts 02109 

  Attn:   David Barry Connolly, Esq. 

  Telephone No.: (617) 345-9000 

  Facsimile No.:  (617) 345-9020

  



 


Any such addresses for the giving of
notices may be changed by either party by giving written notice as
provided above to the other party. Notice given by counsel to a party shall be
effective as notice from such party.


 


12.                               Governing Law.


 


This Agreement and the documents to be
executed and delivered by the parties in connection with the transactions set
forth herein shall be construed, interpreted, and enforced in accordance with
the laws of the Commonwealth of Massachusetts, without reference to principles
of conflicts of laws.


 


13.                               Recording.


 


Purchaser and Seller agree not to record
this Agreement or any memorandum hereof in 


 


18

















 


any public records. A violation of this Section 13
shall constitute a default hereunder. In the event that either party hereto
records this Agreement or any evidence or memorandum of it, the other party
shall have the right on behalf of the recording party to execute and record a
termination of the same, and each party hereby grants to the other an
irrevocable power of attorney for the limited purpose thereof.


 


14.                               Default.


 


14.1                           By
Seller; Purchaser’s Remedies. In the event of a default by Seller hereunder,
Purchaser shall give Seller written notice of such default (not more than ten (10) days
after Purchaser acquires knowledge of such default; provided no notice shall be
required for failure to proceed to Closing on the Closing Date) and if Seller
has not cured such event of default within ten (10) days following Seller’s
receipt of such default notice (or such additional time as reasonably necessary
in the event such default cannot be cured within such ten (10) day period
and Seller has promptly commenced to cure the same and diligently prosecutes
the same to completion), then Purchaser as its sole and exclusive remedy shall
be entitled to either: (i) seek specific performance of this Agreement,
but not damages, in a court of competent jurisdiction (provided an action is
commenced no later than 60 days after Purchaser became aware of such default),
or (ii) terminate this Agreement and receive back the Deposit plus any
accrued interest and the parties shall thereafter have no further rights or
obligations pursuant to this Agreement except those obligations that expressly
survive such termination. The parties agree that Purchaser’s actual damages
would be difficult or impossible to determine if Seller defaults and the
ownership of the Property has a unique value to Purchaser which is not
adequately capable of being compensated through the payment of damages. Therefore,
it is specifically acknowledged and agreed that Purchaser shall be entitled to
the remedy of specific performance in connection with any such default, in the
event Purchaser elects to pursue such remedy as herein provided.
Notwithstanding any of the foregoing, in the event of a willful default by
Seller, said willful default being solely defined as (i) Seller refusing
to convey the Property to Purchaser by the Closing Date in accordance with this
Agreement, as such date may be extended by either party, or (ii) any
willful default by Seller of Sections 19.7 and 19.8 of the Agreement, Purchaser
shall be entitled to the following remedies in addition to the available remedy
of specific performance: (a) receive the return of its Deposit plus any
accrued interest and (b) upon the presentment of the appropriate
documentation to Seller, receive its actual out of pocket third (3rd)
party expenses including attorney’s fees, engineering fees, consultant’s fees,
environmental fees, loan application fees, rate lock fees, lender fees,
appraisal fees, and other costs incurred in connection with the potential
acquisition and financing of the Property, the inspection and review of the
Property and the negotiation of this Agreement, up to a maximum amount not to
exceed One Hundred Fifty Thousand ($150,000.00) Dollars, provided that
Purchaser commences any such claim within thirty (30) days of Seller’s willful
default.


 


14.2                           By
Purchaser; Seller’s Remedies. In the event of a default by Purchaser hereunder,
other than failure to proceed to Closing on the Closing Date (for which no
notice shall be required), Seller shall give Purchaser written notice of such
default (not more than ten (10) days after Seller acquires knowledge of
such default) and if Purchaser has not cured such default within ten (10) days
of Purchaser’s receipt of such default notice (or such additional time as
reasonably necessary in the event such default cannot be cured within such ten (10) day
period)


 


19

















 


and Purchaser has diligently pursued the cure
the same and diligently prosecuted the same to completion; the sole and
exclusive remedy of Seller shall be to terminate this Agreement, in which event
Seller may retain the Deposit plus any accrued interest as liquidated
damages (and not as a penalty), and the parties shall thereafter have no
further rights or obligations pursuant to this Agreement except those
obligations that expressly survive such termination. Purchaser and Seller have
considered carefully the loss to Seller if Purchaser fails to consummate the
purchase and sale contemplated herein for any reason other than Seller’s
default hereunder or the failure of condition precedent to Purchaser’s
obligation to close hereunder occasioned by taking the Property off the market
as a consequence of the negotiation and execution of this Agreement, the
expenses of Seller incurred in connection with the preparation of this
Agreement and Seller’s performance hereunder, and the other damages, general
and special, which Purchaser and Seller realize and recognize Seller will
sustain but which Seller cannot at this time calculate with absolute certainty.
Based on all those considerations, Purchaser and Seller have agreed that the
damage to Seller in such event would reasonably be expected to be equal to the
sum of the Deposit plus such accrued interest. The parties agree that it would
be extremely difficult or impossible to ascertain the actual damages which
would be suffered by Seller if Purchaser fails to perform its obligations
under this Agreement, and that the Deposit plus such interest is the best
estimate of the amount of damages Seller would suffer.


 


14.3                           After Closing, Seller and
Purchaser shall, subject to the terms and conditions of this Agreement, have
such rights and remedies as are available at law or in equity, except that
neither Seller nor Purchaser shall be entitled to recover from the other
indirect, consequential or special damages.


 


15.                               Casualty;
Condemnation.


 


15.1                           Risk of Loss. The risk of loss
or damage to the Property by fire, accident, act of God, calamity or otherwise
(“Casualty”) until the delivery of the deed is retained by Seller. Seller
agrees to furnish Purchaser with notice of occurrence of any Casualty forthwith
upon the happening thereof (a “Casualty Notice”).


 


15.2                           Seller’s Right to Terminate. In
the event more than twenty percent (20%) of the floor area of the Building is
damaged as a result of a Casualty, or which is reasonably estimated to cost in
excess of One Million and 00/100 Dollars ($1,000,000.00) to repair and restore,
Seller may terminate this Agreement by written notice given to the
Purchaser within thirty (30) days of the date of the Casualty (Notice and the
Closing shall be extended to the extent necessary to provide such thirty (30)
day period), whereupon the Escrow Agent shall immediately repay the Deposit
plus any accrued interest to Purchaser and the parties shall thereafter have no
further rights or obligations pursuant to this Agreement.


 


15.3                           Purchaser’s Right to Terminate.
Unless terminated by Seller as provided in Section 15.2 above, in the
event of a “Material Loss,” as hereinafter defined, to the Property resulting
from any such Casualty, Purchaser may terminate this Agreement by notice
given to Seller within thirty (30) days of the date of a Casualty Notice (and
the Closing shall be extended to the extent necessary to provide such thirty
(30) day period). For purposes of this Section 15, a “Material Loss” means
damage or destruction, or condemnation that is reasonably estimated to 


 


20

















 


cost
or be valued at (as the case may be) more than Three Hundred Fifty
Thousand and 00/100 Dollars ($350,000.00) or (b) would permit any tenant
to terminate its lease or (c) damages 20% or more of the floor area of the
Building.


 


15.4                           Closing After Casualty. If this
Agreement is not terminated by Seller or Purchaser as provided in Sections 15.2
and 15.3, it shall remain in full force and effect and the parties shall
proceed to Closing without any reduction in the Purchase Price except as
specifically provided below. At the Closing, Seller shall assign to Purchaser
all insurance proceeds arising from the Casualty (to the extent not applied to
any restoration relating thereto) and Seller shall, at Closing, execute and
deliver to Purchaser all customary proofs of loss, assignments of claims and
other similar items, and shall credit Purchaser on account of the Purchase
Price on the Closing Statement in an amount equal to the deductible or co-insurance
amount under the applicable insurance policy and the amount necessary to repair
any uninsured casualty.


 


15.5                           Condemnation. Seller will
notify Purchaser immediately upon obtaining knowledge of any proceedings for a
condemnation that affects the Property. Purchaser may participate in such
proceedings, and Seller shall from time to time deliver to Purchaser all
instruments reasonably requested by it to permit such participation. In the
event of the institution of any proceedings for condemnation of the Property
results in a Material Loss or which adversely affects access to the Property or
makes the Property fail to comply with applicable law (without variance),
Purchaser may terminate this Agreement by notice given to Seller within
thirty (30) days of the date Seller gives notice to Purchaser of such
condemnation (and the Closing shall be extended to the extent necessary to
provide such thirty (30) day period), whereupon the Escrow Agent shall
immediately repay the Deposit plus any accrued interest to Purchaser and the
parties shall thereafter have no further rights or obligations pursuant to this
Agreement except those obligations that expressly survive such termination. If
this Agreement is not so terminated, Seller shall pay over or assign to
Purchaser all awards recovered or recoverable on account of such condemnation,
and Purchaser shall take title to the Property, subject to such condemnation
and without reduction in the Purchase Price, and Seller shall, at Closing,
execute and deliver to Purchaser all customary proofs of loss, assignments of
claims and other similar items.


 


16.                               No Option.


 


The submission of this Agreement to
Purchaser shall not be construed to vest in Purchaser an option to purchase or
any reservation of the Property. Purchaser shall have no right or interest
hereunder until such time as this Agreement has been fully executed by Seller
and Purchaser.


 


17.                               Successors and Assigns.


 


This
Agreement shall inure to the benefit of and be binding upon the Seller and
Purchaser hereto and their respective heirs, personal representatives, and
permitted successors, and assigns.


 


21

















 


18.                               Further Assurances.


 


Seller and Purchaser each agree to
execute any and all documents and take such further actions as may be
reasonably necessary to effectuate the purposes of this Agreement.


 


19.                               Inspection Period.


 


19.1                           Purchaser’s Inspections.
Purchaser may until 5:00 p.m. Eastern Standard Time (USA) on June 9,
2006 (the “Inspection Period”), at Purchaser’s sole cost and expense to: (i) perform all
engineering studies and inspections with respect to the Real Property to
determine the Property’s physical condition, (ii) perform all non-invasive
environmental auditing, engineering and testing on the Property as Purchaser
shall reasonably require to satisfy Purchaser that no unacceptable
environmental condition exists on the Property, (iii) satisfy itself as to
the location of utilities and utility connection fees which may be
necessary for Purchaser’s intended use of the Property, (iv) conduct all
other reviews and inspections which Purchaser deems reasonably necessary to
determine the Property’s suitability for Purchaser’s proposed use. To
facilitate Purchaser’s investigation, Seller has delivered to Purchaser and
Purchaser acknowledges receipt of all environmental reports listed on Exhibit L,
all engineering reports, building plans, copies of all Development Materials,
within Seller’s actual possession (collectively, the “Review Materials”). Seller
does not warrant the accuracy of the information contained in the Review
Materials. Purchaser acknowledges receipt of the environmental reports listed
in Exhibit L. During the Inspection Period, Purchaser shall review
all Service Contracts provided by Seller. Purchaser shall notify Seller prior
to the expiration of the Inspection Period of those Service Contracts, if any,
that it approves. All Service Contracts that Purchaser does not, in its sole
and absolute discretion, so approve shall be deemed disapproved, and Seller
shall, at Seller’s expense, terminate such disapproved Service Contracts with
the termination to be effective not later than the Closing Date. In all events,
the property management agreement in effect with respect to the Property, along
with any Service Contract that is not delivered to Purchaser, shall be deemed
to be disapproved by Purchaser, and Seller shall, at Seller’s expense,
terminate such property management agreement and undelivered Service Contracts
effective not later than the Closing Date.


 


19.2                           License for Entry. Subject to
the provisions of this Section 19, Seller hereby gives to Purchaser and
its duly authorized agents, contractors and/or representatives the right of
access to the Property during the term of this Agreement for the purpose of conducting
such inspections, tests, studies and other investigations. Any such entry shall
only be allowed following reasonable prior notice to Seller. Prior to any such
entry, Purchaser shall, at Purchaser’s expense, deliver to Seller a certificate
of insurance evidencing that Purchaser has a policy or policies of commercial
general liability insurance, including property damage, statutory worker’s
compensation coverage on Purchaser’s employees at, on or about the Property
(which shall contain a waiver of subrogation in favor of Seller), written by
one or more responsible insurance companies with an A. M. Best rating of not
less than A-: XIII, and licensed to do business in Massachusetts, with limits
of not less than One Million and No/100 Dollars ($1,000,000.00) per occurrence
and One Million and No/100 Dollars ($1,000,000.00) aggregate, and with
automobile coverage with a limit of not less than One Hundred Thousand and
No/100 Dollars ($100,000.00). Such policies shall name Seller and Property
Manager as additional


 


22

















 


insureds (except on worker’s compensation)
against loss of life, personal injury and/or property damage with respect to
the Property, with deductibles reasonably acceptable to Seller. Each such policy
shall be non-cancelable for any cause without first giving Seller twenty (20)
days prior written notice and shall contain a cross-liability endorsement. No
inspection shall be undertaken without at least twenty-four (24) hours’ prior
notice to Seller, or otherwise as may be approved by Seller’s property
manager. Seller at its option, shall be permitted to have a representative
present during any or all inspections. Neither Purchaser nor its agents or
representatives shall contact any Tenants without at least 24 hours prior
notice to Seller and giving Seller or its representative the right to be
present during such contact. Inspections shall not involve soil and/or
ground water sampling or other invasive testing unless and until the location,
scope and methodology of such sampling or testing shall have all been approved
in writing by Seller, in Seller’s sole and absolute discretion. Purchaser shall
promptly repair all damage resulting from any such inspections, tests, studies
and other investigations at its sole expense and to Seller’s reasonable
satisfaction, which obligation shall survive termination of this Agreement. No
such inspections, tests or studies shall result in any damage to the Premises
or unreasonably interfere with the normal conduct of business at the Property
(including without limitation the business of any Tenants).


 


19.3                           Indemnity. Purchaser covenants
and agrees to defend, indemnify and hold Seller harmless from and against any
and all liens, claims, charges, costs, suits, damages, injuries or other
liabilities whatsoever including, without limitation, reasonable attorneys
fees, arising out of, resulting from directly or indirectly or as a consequence
of Purchaser’s exercise of its Inspection rights under this Agreement,
including, without limitation, its right of inspection as provided for in this Section 19
and any actions by Purchaser, its agents, employees or contractors, or anyone
acting by, through or under Purchaser, on the Property prior to the Closing,
and such indemnity shall survive the Closing and any termination of this
Agreement; provided, however, Purchaser shall not be liable for, and shall not
indemnify Seller with respect to, any pre-existing condition, fact, matter,
item, or substance discovered, uncovered, located, identified, as a result of
Purchaser’s entry unless such pre-existing condition, fact, matter, item, or
substance was exacerbated by Purchaser’s entry and inspection. Upon written
notice by Seller to Purchaser, Seller shall have the right to provide for its
own defense of any such liens, claims, charges, costs, suits, damages, injuries
or other liabilities, at the cost and expense (including reasonable attorney’s
fees) of Purchaser. Purchaser shall be required to indemnify and hold Seller
harmless on account of discovery of existing conditions to the extent such
existing conditions are exacerbated by the Purchaser’s exercise of its
Inspection rights under this Agreement.


 


19.4                           Prior to the end of the
Inspection Period, Seller shall prepare and submit to Purchaser, for Purchaser’s
approval, a list of the Tangible Personal Property. Upon such approval, such
list shall be initialed by the parties and shall become Schedule III to
the General Instrument of Transfer. In the event Purchaser has not approved a
list of Tangible Personal Property submitted by Seller on or before expiration
of the Inspection Period, and Purchaser does not exercise its right to
terminate this Agreement as set forth in Section 19.6 herein, then the
last list of Tangible Personal Property submitted by Seller to Purchaser shall
be deemed approved by Purchaser and shall become Schedule III to the
General Instrument of Transfer.


 


23

















 


19.5                           Confidentiality. Purchaser
agrees to hold in confidence, until the conclusion the transaction contemplated
by this Agreement (except as required by law or applicable SEC regulations),
any information or data relating to the Property obtained by Purchaser,
including, but not limited to, information and data obtained by Purchaser
through testing and inspections, and any information furnished by Seller. Such
covenant of confidentiality shall not prohibit Purchaser from disclosing the
existence of this Agreement and the transactions contemplated hereby, and any
information or data relating to the Property obtained by Purchaser, to any
partners, investors, underwriters, employees, lenders, accountants or legal
counsel of any of the foregoing (subject to the undertaking of any such person
to maintain the confidentiality thereof as herein provided). The provisions of
this Section 19.5 shall survive the termination of this Agreement without
the occurrence of the Closing.


 


19.6                           Termination. At any time during
the Inspection Period, Purchaser shall have the right to terminate this Agreement
for any reason or for no reason by delivering written notice thereof to Seller
on or before the last day of the Inspection Period, and upon any such
termination, neither party shall have any further rights or obligations
hereunder except those obligations that expressly survive such termination, and
the Escrow Agent shall return the Initial Deposit plus all accrued interest
thereon to Purchaser. The failure of Purchaser to notify Seller in writing
prior to the end of the Inspection Period of Purchaser’s desire to terminate
this Agreement shall constitute a waiver of Purchaser’s right to terminate this
Agreement, as set forth in this Section 19.6. In the event that Purchaser
terminates this Agreement pursuant to this provision of this Section 19.6,
Purchaser shall return to Seller the Review Materials furnished by Seller to
Purchaser. Additionally, if Purchaser and Seller have failed to close the sale
and purchase of the Property for any reason other than Seller’s default, upon
the Seller’s request, Purchaser will provide or cause its consultants (provided
there is not additional cost to Purchaser) to provide to Seller copies of all
third party studies, reports and test results received by the Purchaser
excluding any market and economic feasibility studies (collectively, the “Reports”)
regarding the Property without any additional charge to Seller, within three (3) business
days from Seller’s request after the date of termination of this Contract;
provided any Reports delivered to Seller shall be delivered for informational
purposes only and Purchaser makes no representation or warranty, express or
implied, as to the accuracy or completeness of the information contained in the
Reports. Seller agrees not to enforce any claim or cause of action against Purchaser
or the preparers of the Reports for any inaccuracies in the Reports. The
Reports shall be for Seller’s information only and Seller shall not reuse the
Reports or deliver copies to any third party. This provision shall survive the
termination of this Agreement.


 


19.7                           Operation of Property. During
the term of this Agreement, Seller shall: 


 


(a)                                  make no voluntary changes in
the condition of title to the Real Property; 


 


(b)                                 continue to substantially and
materially maintain and insure the Real Property consistent with the present
operations thereof, normal wear and tear, casualty and condemnation excepted.


 


(c)                                  not remove any item of Tangible
Personal Property unless replaced by a comparable item of Tangible Personal
Property;


 


24

















 


(d)                                 refrain from applying or
forfeiting any security deposits under any Leases;


 


(e)                                  maintain all permits, licenses
and occupancy certificates, including, without limitation, all development,
building and use permits and certificates of occupancy;


 


(f)                                    refrain from entering into or
amending any contracts, or other agreements (excluding leases) regarding the
Property (other than contracts in the ordinary and usual course of business and
which are cancelable by the owner of the Property without penalty within thirty
(30) days after giving notice thereof);


 


(g)                                 perform, when due, all material
obligations under any and all agreements relating to the Property and otherwise
in accordance with applicable laws, ordinances, rules, and regulations;


 


(h)                                 promptly provide Purchaser with
copies of (1) any default letters sent to or from tenants, (2) any
copies of correspondence received from a tenant that it is “going dark” or
seeking to re-negotiate its lease, and (3) notices of bankruptcy filings
received with respect to any Tenant;


 


(i)                                     promptly forward to Purchaser
any notices of code violations Seller receives and


 


(j)                                     promptly notify Purchaser of
any facts of which Seller has knowledge which would cause any of the
representations and warranties of Seller contained in this Contract to become
false or misleading.


 


19.8                           New Leases. Commencing on the
date which is five (5) days prior to the expiration of the Inspection
Period (“Consent Period”), Seller will not enter into any new Lease,
modify any existing Lease, without in each case, receiving Purchaser’s prior
written consent, which consent shall not be unreasonably withheld or delayed. Prior
to the Consent Period, Seller may enter into any new lease or modify any
existing Lease without Purchaser’s consent. Seller shall provide Purchaser with
notification of any new lease proposals or modifications, with copies thereof
and a statement fully disclosing the obligations and costs associated
therewith, and such other information reasonably requested by Purchaser,
including, without limitation financial information regarding the tenant (“Lease
Notice”). During the Consent Period, if Purchaser disapproves of any such
proposed Lease or notification, Seller will not enter into any such Lease or
modification. If Purchaser fails to provide Seller with written notice
detailing Purchaser’s specific objections to any such new Lease or
modification, within three (3) business days following the date of Seller’s
delivery to Purchaser of the Lease Notice, such item will be deemed approved by
Purchaser. Seller agrees to deliver Purchaser copies of any new lease
proposals, new leases or modifications signed after the date of this Agreement
and prior to the Consent Period within two (2) business days after
delivery to the tenant. Purchaser’s consent shall not be required for any
expansion or renewal of a Lease that Seller, as landlord, is required to honor
pursuant to the terms of an existing Lease.


 


25

















 


20.                               Miscellaneous.


 


20.1                           Captions and Headings. This Section and/or
section headings and the arrangement of this Agreement are for the
convenience of the parties hereto and do not in any way affect, limit, amplify
or modify the terms and provisions hereof.


 


20.2                           Reserved Right. Notwithstanding
anything to the contrary set forth herein, each of Seller and Purchaser
reserves the right to waive any condition or contingency provided for its
benefit in this Agreement.


 


20.3                           Singular, Plural, etc. Wherever
herein the singular number is used the same shall include the plural and the
masculine gender shall include the feminine and neuter genders and vice versa
as the context shall require.


 


20.4                           Counterparts. This Agreement may be
executed in several counterparts, which shall constitute one and the same
instrument.


 


20.5                           Partial Invalidity. If any
provision of this Agreement shall be declared invalid or illegal for any reason
whatsoever, then notwithstanding such invalidity or illegality, the remaining
terms and provisions of this Agreement shall remain in full force and effect in
the same manner as if the invalid or illegal provisions had not been contained
herein.


 


20.6                           Exhibits. Each of the exhibits
annexed to this Agreement constitute an integral part hereof.


 


20.7                           Time. When the last day for the
performance of any act permitted or required hereunder falls on any day which
is not a business day in the City of Boston, Massachusetts, such act may be
performed on the next business day in said city. Time is of the essence of the
provisions of this Agreement.


 


20.8                           Purchaser’s Audit. Purchaser
has advised Seller that Purchaser must cause to be prepared audited financial
statements for the calendar year 2005 and the partial calendar year 2006 (from January 1
up to the Closing Date) (the “Covered Audit Period”) in respect to the Property
in compliance with certain laws and regulations, including without limitation,
Securities and Exchange Commission Regulation S, X and Rule 3-14. Seller
agrees to use reasonable efforts to cooperate with Purchaser’s auditors in the
preparation of such audited financial statements (it being understood and
agreed that the foregoing covenant shall survive Closing). Without limiting the
generality of the preceding sentence, (i) Seller shall during normal
business hours and upon Purchaser’s prior written request allow Purchaser’s
auditors reasonable access to such books and records maintained by Seller (and
Seller’s manager of the Property) in respect to the Property and pertaining to
the Covered Audit Period as necessary to prepare such audited financial
statements; (ii) Seller shall use reasonable efforts to provide to
Purchaser such existing financial information as is reasonably requested by
Purchaser and required for Purchaser’s auditors to prepare audited financial
statements, and (iii) to the extent under Seller’s employ and control,
Seller will upon Purchaser’s written request make available for interview by
Purchaser and Purchaser’s auditors the manager of the Property or other agents
or representatives of Seller


 


26

















 


responsible
for the day-to-day operation of the Property and the keeping of the books and
records in respect of the operation of the Property. Notwithstanding anything
contained in this Section 20.8 to the contrary, in no event shall Seller
be obligated to (i) make and/or obtain from Seller (or an affiliate of
Seller or any of Seller’s or its affiliates’ auditors) any representations or
certificates regarding such financial information, or (ii) disclose any
confidential or non-public financial information with respect to any affiliate
of Seller or any property of any such affiliate. The provisions of this Section 20.8
shall survive Closing.


 


 


Remainder
of Page Left Intentionally Blank, Signatures on Following Page


 


27

















 


IN WITNESS WHEREOF, the parties have
executed this Agreement the day and year first above written.


 


	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  MIDDLETON INVESTORS, LLC, 

  a Massachusetts limited liability company

  
	
   

  	
   

  
	
   

  	
  By: Bergen of Middleton, Inc., 

  a Massachusetts corporation, its manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Albert J. Corr

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Albert J. Corr

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Vice President for Middleton

  	
   

  
	
   

  	
   

  
	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  HARVARD PROPERTY TRUST, LLC,

  a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Bresky

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Gary Bresky

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Treasurer for Harvard Property Trust

  	
   

  
							



 


 


The Title Company acknowledges receipt of
this Agreement on May 19, 2006, and upon receipt of the Deposit, accepts the
Deposit and agrees to hold and disburse the Deposit in accordance with the
terms and conditions set forth in this Agreement and in the Escrow Agreement.


 


	
   

  	
  LANDAMERICA PARTNERS TITLE COMPANY

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Reno Hartfiel 

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Reno Hartfiel

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Executive VP and General

  Counsel for LandAmerica