Exhibit 10.1**AGREEMENT OF PURCHASE AND SALE**(9911 Belward Campus Drive & Traville Property, Rockville Maryland)     This Agreement of Purchase and Sale (“**Agreement**”) is made as of the 2nd day of May2006 (“**Effective Date**”) between Human Genome Sciences, Inc., a Delaware corporation (“**Seller**”), andBioMed Realty, L.P., a Maryland limited partnership (“**Purchaser**”).**RECITALS**     A. Belward Property. Belward C LLC, a Maryland limited liability company (“**Belward**”),is the owner of the following property (collectively, the “**Belward Property**”):     (i) approximately nine and one-half acres of land located at 9911 Belward Campus Drive,Rockville, Maryland, as more fully described in Exhibit A-1 attached hereto (the“**Belward Land**”), which is improved by a building containing approximately 289,912 grosssquare feet of laboratory manufacturing space (the “**Belward Building**”); and all other right,title and interest in and to (1) all and singular the rights, benefits, privileges,easements, tenements, hereditaments, and appurtenances thereon or in anyway appertaining tosuch Belward Land; and (2) all strips and gores and any land lying in the bed of any street,road or alley, open or proposed, adjoining such Belward Land (all of the foregoingcollectively, the “**Belward Real Property**”);     (ii) all other tangible property (including each item of equipment, machinery,furniture, art work, furnishings, office equipment and supplies stored onsite) listed onSchedule 1-A attached hereto (all of the foregoing property, together with anyreplacements for such property as permitted under this Agreement, collectively, the “**BelwardOther Property**”); and     (iii) all intangible personal property of Belward now or hereafter used exclusively inconnection with the operation, ownership, maintenance, management, or occupancy of theBelward Real Property; the plans and specifications for the improvements; warranties,indemnities, applications, permits, approvals and licenses (to the extent applicable in anyway to the above referenced Belward Real Property or the Belward Other Property andassignable) and all intellectual property necessary to operate or maintain the Belward OtherProperty; and insurance proceeds and condemnation awards or claims thereto (other than taxrefunds and credits applicable to any period before the Belward Closing Date and all otherproperty listed on Schedule 1-B attached hereto and cash and deposits, bonds orother security), including, without limitation, the items listed on Schedule 1-Cattached hereto (all of the foregoing collectively, the “**Belward Intangible PersonalProperty**”). For the avoidance of doubt, Belward Intangible Personal Property shall notinclude any product licenses or manufacturing processes associated with Seller’sbio-pharmaceutical products.
 

 
     B. Existing Belward Lease. Seller is the sole tenant of the Belward Property pursuantto that certain Lease dated as of November 7, 2001 by and between Genome Statutory Trust 2001 A, aConnecticut Statutory Trust, as Lessor and Seller, as Lessee, as memorialized and supplemented by acertain Memorandum of Lease and Lease Supplement dated as of November 7, 2001 and recorded onNovember 15, 2001 in Liber 19984 at Folio 298, and by a certain Amendment to Memorandum of Leaseand Lease Supplement dated as of December 14, 2001 and recorded on December 19, 2001 in Liber 20183at Folio 254, as the same has been further modified, bifurcated and supplemented by a certainMemorandum of Modification to and Bifurcation of Lease and Memorandum of Lease dated on or aboutJune 30, 2003, and recorded on July 8, 2003 in Liber 24406 at Folio 383, and as the same has beenfurther amended and restated by a certain First Amended and Restated Memorandum of Lease and LeaseSupplement (C Lot) dated on or about June 30, 2003 and recorded on July 3, 2003 in Liber 24406 atFolio 517 (collectively, the “**Existing Belward Lease**”).     C. Belward Membership Interests. Seller holds 100% of the beneficial interest inBelward (the “**Belward Membership Interests**”).     D. Seller Belward Property and Seller Retained Property. Seller is the owner of: (a)all of the tangible property listed on Schedule 1-D attached hereto (all of the foregoingproperty, together with any replacements for such property as permitted under this Agreement,collectively, the “**Seller Belward Property**”), which generally consists of property that isnecessary for the operation and maintenance of the Building, and (b) all of the tangible propertylisted on Schedule 1-E attached hereto (all of the foregoing property, together with anyreplacements for such property as permitted under this Agreement, collectively, the “**SellerRetained Property**”), which generally consists of general manufacturing equipment and equipmentengineered to Seller’s specifications.     E. Traville Property. Traville LLC, a Maryland limited liability company (“**Traville**”and, together with Belward, the “**Property Entities**”), is the owner of the following property(collectively, the “**Traville Property**” and, together with the Belward Property, the “**Properties**”):     (i) approximately 50 acres of land located on the parcel known as “the TravilleProperty”, bounded by Shady Grove Road and Darnestown Road, Rockville, Maryland as morefully described in Exhibit A-2 attached hereto (the “**Traville Land**”), that iscomprised of:     (1) approximately 12 acres of land, as more fully described on ExhibitA-3 attached hereto (the “**Traville HQ Land**”) which are improved by threebuildings (the “**Traville HQ Buildings**”) containing approximately 635,058 grosssquare feet of laboratory and office space which is currently leased by WachoviaDevelopment Corporation, a North Carolina corporation (“**Wachovia**”) to Sellerpursuant the Traville Sublease (as defined below), and all other right, title andinterest in and to (A) all and singular the rights, benefits, privileges, easements,tenements, hereditaments, and appurtenances thereon or in anyway appertaining tosuch Traville HQ Land; and (B) all strips and gores and any land lying in the bed ofany street, road or alley, open or proposed, adjoining such Traville HQ
 

 
Land (all of the foregoing, including the Traville HQ Land and the Traville HQBuildings, the “**Traville HQ Real Property**”), and     (2) approximately 38 acres of land, as more fully described on ExhibitA-4 attached hereto (the “**Traville Future Development Land**”); and all otherright, title and interest in and to (A) all and singular the rights, benefits,privileges, easements, tenements, hereditaments, and appurtenances thereon or inanyway appertaining to such Traville Future Development Land; and (B) all strips andgores and any land lying in the bed of any street, road or alley, open or proposed,adjoining such Traville Future Development Land (all of the foregoing, including theTraville Future Development Land, the “**Traville Future Development Real Property**”and, together with the Traville HQ Real Property, the “**Traville Real Property**” and,together with the Belward Real Property, the “**Real Property**”);(ii) Traville Other Property.     (1) all tangible property (including each item of equipment, machinery,furniture, art work; furnishings, office equipment and supplies stored onsite)listed on Schedule 1-F attached hereto (all of the foregoing property,together with any replacements for such property as permitted under this Agreement,collectively, the “**Traville HQ Other Property**”), and     (2) all tangible property (including each item of equipment, machinery,furniture, art work; furnishings, office equipment and supplies stored onsite)listed on Schedule 1-G attached hereto (all of the foregoing property,together with any replacements for such property as permitted under this Agreement,collectively, the “**Traville Future Development Other Property**” and, collectivelywith the Belward Other Property and the Traville HQ Other Property, the “**OtherProperty**”); and(iii) Traville Intangible Personal Property.     (1) all intangible personal property of Traville now or hereafter usedexclusively in connection with the operation, ownership, maintenance, management, oroccupancy of the Traville HQ Real Property; the plans and specifications for theimprovements; warranties, indemnities, applications, permits, approvals and licenses(to the extent applicable in any way to the above referenced Traville HQ RealProperty or the Traville HQ Other Property and assignable) and all intellectualproperty necessary to operate or maintain the Traville HQ Other Property; andinsurance proceeds and condemnation awards or claims thereto (other than tax refundsapplicable to any period before the Traville Closing Date and all other propertylisted on Schedule 1-H attached hereto and cash and deposits, bonds or othersecurity), including, without limitation, the items described on Schedule1-I attached hereto (all of the foregoing, collectively, the “**Traville HQIntangible Personal Property**”). For the avoidance of doubt, Traville HQ IntangiblePersonal Property shall not include any product licenses or manufacturing processesassociated with Seller’s bio-pharmaceutical products, and
 

 
     (2) all intangible personal property now or hereafter used exclusively inconnection with the operation, ownership, maintenance, management, or occupancy ofthe Traville Future Development Real Property; the plans and specifications for theimprovements; warranties, indemnities, applications, permits, approvals and licenses(to the extent applicable in any way to the above referenced Traville FutureDevelopment Real Property or the Traville Future Development Other Property andassignable) and all intellectual property necessary to operate or maintain theTraville Future Development Other Property; and insurance proceeds and condemnationawards or claims thereto (other than tax refunds applicable to any period before theTraville Closing Date and all other property listed on Schedule 1-J attachedhereto and cash and deposits, bonds or other security), including, withoutlimitation, the items described on Schedule 1-K attached hereto (all of theforegoing, collectively, the “**Traville Future Development Intangible Property**” and,collectively with the Belward Intangible Personal Property and the Traville HQIntangible Personal Property, the “**Intangible Personal Property**”).     F. Traville HQ Real Property. Traville, as landlord, and Wachovia, as tenant, enteredinto that certain Amended and Restated Ground Lease, pursuant to which Traville leased the TravilleHQ Land to Wachovia (the “**Traville Ground Lease**”). Wachovia subleased the entire Traville HQ RealProperty to Seller pursuant to that certain Amended and Restated Lease Agreement dated June 30,2003 (the “**Traville Sublease**” and, together with the Belward Lease and the Traville Ground Lease,the “**Existing Leases**”).     G. Traville Membership Interests. Seller holds 100% of the beneficial interest inTraville (the “**Traville Membership Interests**”).     H. Seller Traville Property. Seller is the owner of all of the tangible property(including each item of equipment, machinery, furniture, art work, furnishings, office equipmentand supplies stored onsite) listed on Schedule 1-L attached hereto (collectively, the“**Seller Traville Property**” and, together with the Seller Belward Property, the “**Seller OwnedProperty**”).     I. Equipment Leases. Seller leases certain personal property (including each item ofequipment, machinery, furniture and furnishings) listed on Schedule 1-M attached hereto(collectively, the “**Leased Equipment**”), pursuant to: (a) that certain Master Lease Agreement datedJune 26, 1993, by and between Tenant and General Electric Capital Corporation (“**General Electric**”),(b) that certain BioTech Equipment Schedule No. 008 dated December 31, 2003 by and between Tenantand General Electric, (c) that certain BioTech Equipment Schedule No. 009 undated [2004] underMaster Lease dated June 26, 1998, by and between Tenant and General Electric, (d) that certainMaster Equipment Lease Agreement dated December 31, 2003, by and between Key Equipment Finance(“**Key**”) and Tenant and Equipment Schedule No. 1 attached thereto, (e) that certain EquipmentSchedule No. 2 dated December 31, 2003, by and between Tenant and Key, (f) that certain EquipmentSchedule No. 3 dated June 28, 2004, by and between Tenant and Key, and (g) that certain EquipmentSchedule No. 4 dated June 29, 2004, by and between Tenant and Key (collectively, the “**EquipmentLeases**”).     J. Purpose. The parties are entering into this Agreement to provide for Seller tosell
 

 
to Purchaser, and Purchaser to purchase from Seller, all of the Belward Membership Interestsand the Traville Membership Interests. In addition, (i) the parties intend to terminate theExisting Belward Lease and to enter into a new lease agreement to be entered into between Seller,as tenant, and Belward, as landlord, at the Belward Closing (the “**Belward Lease**”), pursuant towhich Seller will be the sole tenant at the Belward Property, and (ii) the parties intend toterminate each of the Existing Leases and enter into a new lease agreement to be entered intobetween Seller, as tenant, and Traville, as landlord, at the Closing (the “**Traville Lease**” and,together with the Belward Lease, the “**Subject Leases**”), pursuant to which Seller will be the soletenant at the Belward Property and the Traville HQ Real Property.**AGREEMENT**     In consideration of the foregoing and of the covenants and conditions hereinafter set forth,and intending to be legally bound hereby, the parties hereto agree:**ARTICLE 1. MEMBERSHIP INTERESTS / PURCHASE PRICE**     1.1. Membership Interests. Subject to the terms and conditions of this Agreement, Sellerhereby agrees to assign, sell, transfer, convey and set over to Purchaser, and Purchaser herebypurchases and accepts the following property: (a) all of Seller’s right, title and interest in theBelward Membership Interests, free and clear of all liens, encumbrances, claims, rights orliabilities in favor of any other party of any kind or nature whatsoever; and (b) all of Seller’sright, title and interest in the Traville Membership Interests, free and clear of all liens,encumbrances, claims, rights or liabilities in favor of any other party of any kind or naturewhatsoever (collectively, the “**Membership Interests**”).     1.2. Purchase Price. The total purchase price to be paid to Seller by Purchaser forthe Membership Interests shall be Four Hundred Twenty-Five Million Dollars ($425,000,000) (the“**Purchase Price**”). The parties agree that the Purchase Price shall be allocated as follows: (a)Two Hundred Million Dollars ($200,000,000) for the Belward Membership Interests (the “**BelwardPurchase Price**”); (b) Twenty-Five Million Dollars ($25,000,000) for the Traville MembershipInterests (the “**Traville Purchase Price**”), it being understood that following the acquisition ofthe Traville Membership Interests, Purchaser shall acquire the Traville HQ Building from Wachoviaalong with Wachovia’s interests as lessee under the Traville Ground Lease for Two Hundred MillionDollars ($200,000,000) (the “**Wachovia Termination Payment**”).     1.3. Deposit of Earnest Money. Within two (2) Business Days after the Effective Date,Purchaser shall deposit Twenty Million Dollars ($20,000,000) in cash as a good faith non-refundabledeposit (such amount, including any interest earned thereon, the “**Earnest Money**”) with the EscrowAgent (as defined below). For purposes of this Agreement, a “**Business Day**” shall mean any day ofthe year other than any Saturday or Sunday or any other day on which banks located in MontgomeryCounty, Maryland generally are closed for business. The Escrow Agent shall hold and disburse theEarnest Money in accordance with the escrow provisions in Exhibit B. The Earnest Moneyshall be non-refundable, except as otherwise provided herein. Seller agrees that it shall not deliver anyinstruction to the Escrow Agent calling for disbursement of the Earnest Money to Seller exceptfollowing delivery of notice to Purchaser and Escrow Agent of a Purchaser default hereunder andfollowing the expiration of any
 

 
applicable cure period or as otherwise expressly provided in thisAgreement, and Seller further agrees to provide Purchaser with a copy of such disbursementinstruction concurrently with the delivery thereof to the Escrow Agent. Provided such supplementalescrow instructions are not in conflict with this Agreement as it may be amended in writing fromtime to time, Seller and Purchaser agree to execute such supplemental escrow instructions as may beappropriate to enable Escrow Agent to comply with the terms of this Agreement.     1.4. Title Company and Escrow Agent. The “**Escrow Agent**” and “**Title Company**” are:LandAmerica Commercial Services, 31 Light Street, Suite 500, Baltimore, Maryland 21202, Attn: NancyDodson Sacci (Tel #: (410) 752-7070; Fax #: (410) 752-7043.     1.5. Closing Date. The “**Closing Date**” shall mean: (a) with respect to the BelwardProperty, May 24, 2006 (the “**Belward Closing Date**”); provided, however, the partiesmay mutually agree in writing to close on an earlier date by delivering to Escrow Agent before theinitially scheduled Belward Closing Date a written notice executed by Purchaser and Seller settingforth the new Belward Closing Date, and (b) with respect to the Traville Property, June 23, 2006(the “**Traville Closing Date**”); provided, however, the parties may mutually agree inwriting to close on an earlier date by delivering to Escrow Agent before the initially scheduledTraville Closing Date a written notice executed by Purchaser and Seller setting forth the newTraville Closing Date.     1.6. Right of First Refusal. From and after the Belward Closing Date, Sellerhereby grants to Purchaser the following:          (a) a right of first refusal for approximately 3 acres of land located in Rockville, Marylandas more fully described in Exhibit A-5 attached hereto, which is improved by a buildingcontaining approximately 51,181 gross square feet of laboratory and office space within onebuilding (the “**Q Building”**) in accordance with the terms and conditions of the Option Agreementattached hereto as Exhibit S (the “**Q Building Option Agreement**”); and          (b) a right of first refusal for approximately 9.98 acres of land located in Rockville,Maryland as more fully described in Exhibit A-6 attached hereto, which is improved by abuilding containing approximately 127,000 gross square feet of laboratory manufacturing space andoffice space within one building (the “**Pilot Plant**” and, together with the Q Building, the “**OptionParcels**”) in accordance with the terms and conditions of the Option Agreement attached hereto asExhibit T (the “**Pilot Plant Option Agreement**”).     1.7. Allocation of Purchase Price.          (a) The Purchase Price (plus any assumed liabilities to the extent properly taken into accountunder the Internal Revenue Code of 1986, as amended (the “**Code**”) and the Treasury regulationspromulgated thereunder), shall be allocated among the assets of the Property Entities (the“**Allocation**”). Purchaser and Seller shall use their best efforts to reasonably determine suchAllocation.          (b) Purchaser and Seller agree to (i) be bound by the Allocation, (ii) act in accordance withthe Allocation in the preparation of all financial statements and the filing of any and allreturns, declarations, reports, claims for refund, information returns or statements relating toany Tax (as defined in (c) below), including any schedules or attachments thereto and
 

 
including anyamendments thereof (each, a “**Tax Return**” and collectively, “**Tax Returns**”), including, withoutlimitation, filing Form 8594 with their United States federal income Tax Return for the taxableyear that includes the respective Closing Date and in the course of any Tax audit, Tax review orTax litigation relating thereto, and (iii) take no position and cause their Affiliates to take noposition inconsistent with the Allocation for income Tax purposes, including United States federaland state income Tax and foreign income Tax, unless otherwise required pursuant to a“determination” within the meaning of Section 1313(a) of the Code. Not later than thirty (30) daysprior to the filing of their respective Forms 8594 relating to this transaction, each of Purchaserand Seller shall deliver to the other a copy of its Form 8594.          (c) For purposes of this Agreement, the term “**Tax**” shall mean any federal, state, local orforeign income, gross receipts, franchise, estimated, alternative, minimum, add-on minimum, sales,use, transfer, registration, value added, excise, natural resources, severance, stamp, occupation,premium, windfall profit, environmental, customs duties, real property, personal property, capitalstock, intangibles, withholding, social security, unemployment, disability, payroll, license,employee or other tax or levy, of any kind whatsoever, including any interest, penalties, oradditions to tax in respect of the foregoing whether disputed or not.**ARTICLE 2. INSPECTION**     2.1. Seller’s Delivery of Specified Documents. Subject to the terms and provisions of theConfidentiality Agreement dated as of February 9, 2006 by and between Seller and Purchaser (the“**Confidentiality Agreement**”)**,**to the extent such items are in Seller’s, any Property Entity’s orits property manager’s possession or control, Seller shall: (a) provide or make available toPurchaser at each Property or at Seller’s office: (i) the information and documents set forth onExhibit C-1 attached hereto (the “**Property Information**”) for each Property within five (5)days after the Effective Date, and (ii) the information and documents set forth on ExhibitC-2 regarding the Traville and Belward (the “**Entity Information**” and, together with theProperty Information, the “**Pertinent Information**”) within five (5) days after the Effective Date;and (b) deliver to Purchaser a property diligence questionnaire for each Property completed bySeller in good faith, without any intentional misstatement of material fact, substantially in theform of Exhibit D attached hereto within ten (10) days after the Effective Date. Selleragrees to cooperate with Purchaser and make copies, at Seller’s expense, of such documentation asPurchaser may request during the course of Purchaser’s review of the Pertinent Information. Theterms “**Operating Statements**,” “**Commission Schedule**” and “**Contracts**” are defined in ExhibitC-1. Seller shall have the continuing obligation during the pendency of this Agreement toprovide Purchaser with anydocument described above and coming into Seller’s, any Property Entity’s or its property manager’spossession or produced by or for Seller after the initial delivery of the Pertinent Information.     2.2. Due Diligence. Purchaser shall have until May 2, 2006 (the “**Due Diligence Period**”) inwhich to examine, inspect, and investigate the Properties and all matters concerning the PropertyEntities, and, in Purchaser’s sole and absolute judgment and discretion, to determine whether theProperty, the Property Entities, the Pertinent Information and Seller are satisfactory to Purchaserto proceed with this transaction. Purchaser may terminate this Agreement pursuant to thisSection 2.2 for any reason by giving written notice of termination to Seller on or beforethe last day of the Due Diligence Period, and in the event Purchaser terminates this Agreement,Purchaser shall promptly thereafter return to Seller all documents that Seller shall have provided
 

 
to Purchaser in connection with the Properties. Upon such termination, the Earnest Money shall berefunded to Purchaser immediately upon request, and all further rights and obligations of theparties under this Agreement shall terminate except for those that expressly survive suchtermination. This Agreement shall continue in full force and effect if Purchaser does not give thewritten notice of termination prior to the expiration of the Due Diligence Period. Purchaser shallhave the right to terminate this Agreement prior to the expiration of the Due Diligence Period forboth of the Properties. Purchaser shall not have the right to terminate this Agreement for onlyone of the Properties. In the event Purchaser elects to terminate this Agreement pursuant to thisSection 2.2, Purchaser shall return to Seller all copies of the Pertinent Information inPurchaser’s custody or control together with a copy of all due diligence studies performed by or onbehalf of Purchaser with respect to the Properties. PURCHASER ACKNOWLEDGES THAT IT HAS COMPLETEDITS DUE DILIGENCE AND HAS ELECTED TO PROCEED WITH THIS TRANSACTION.     2.3. Access. Upon reasonable notice to Seller and in accordance with the terms andconditions of that certain Right of Entry Agreement dated as of April 10, 2006, by and amongSeller, Purchaser, Traville and Belward, Purchaser and its agents, employees, consultants, lendersand representatives shall have reasonable access to the Properties and all books and records thatare in any Property Entity’s possession or control or that are for the Properties and in Seller’sor its property manager’s possession or control for the purpose of conducting surveys, appraisals,architectural, engineering, structural, mechanical, geotechnical, physical, soil and environmentalinspections and tests, and any other inspections, studies, or tests reasonably required byPurchaser, including, without limitation, evaluating access, utilities, subdivision and zoning ofthe Properties.     2.4. Contracts. Schedule 2.4 sets forth a complete and accurate list of any andall contracts to which either Property Entity is a party (“**Contracts**”). With respect to each suchContract, Seller shall either: (a) terminate such Contract prior to the respective Closing Date; or(b) cause the respective Property Entity to assign its rights and obligations under such Contractto Seller prior to the respective Closing Date.     2.5. Intentionally Omitted.     2.6. Easements. This Agreement and the Traville Closing hereunder is contingent uponPurchaser and Seller at Closing executing and delivering a reciprocal easement agreement (the“**Reciprocal Easement Agreement**”) which shall provide for the easements referred to in ExhibitW attached hereto. Seller and Purchaser shall use their respective good faith efforts tonegotiate the terms and conditions of the easements over the Traville HQ Land and the TravilleFuture Development Land. The Reciprocal Easement Agreement shall provide, among other things, (i)easements in favor of Seller with respect to the Traville Future Development Land and (ii) uponSeller exercising its option to purchase the Traville HQ Property pursuant to the Traville OptionAgreement, easements in favor of Purchaser with respect to the Traville HQ Land. In the event theform of the Reciprocal Easement Agreement is not so agreed upon, Purchaser may elect, in its solediscretion, to terminate this Purchase Agreement by providing Seller written notice of suchelection. Upon such termination, the Earnest Money shall be refunded to Purchaser immediately uponrequest, and all further rights and obligations of the parties under this Agreement shall terminateexcept for those that expressly survive such termination. At such time as the Reciprocal EasementAgreement is approved by Seller and
 

 
Purchaser, the form shall be attached hereto as substituteExhibit W. In lieu of the foregoing, Seller and Purchaser may agree that prior to theTraville Closing Date, Traville may record a Declaration in the Land Records of Montgomery County,Maryland creating the easements hereinabove referred to, subject to prior written approval ofPurchaser.**ARTICLE 3. TITLE AND SURVEY REVIEW**     3.1. Title Commitment and Survey. Seller shall cause to be delivered to Purchaser on orprior to the date that is five (5) days after the Effective Date, any existing survey for each ofthe Belward Real Property and the Traville Real Property in Seller’s or any Property Entity’spossession or control. Purchaser may, in its sole discretion, obtain a new ALTA-ACSM Urban surveyof the Property (the “**Survey**”), including a certification addressed to Purchaser, substantially inthe form attached hereto as Exhibit F. The Survey shall plot all plotable easementsbenefiting the Property. Within ten (10) days after the Effective Date, Purchaser shall order acurrent, effective commitment to issue the title insurance products described in Sections5.2(h) and 5.2(i) (the “**Title Commitments**”) for each of the Belward Real Property andthe Traville Real Property issued by the Title Company. Prior to the respective Closing Date,Purchaser shall order a date-down of the Title Commitments to the date of the request. If thereare any new exceptions on either Title Commitment, then Seller shall work with the Title Companyand Purchaser to remove or modify the new exceptions in accordance with Section 3.3.     3.2. UCC Commitment. Within ten (10) days after the Effective Date, Purchaser shall ordera UCC search with the applicable Secretary of State for each of Seller and the Property Entities.On the date that is fifteen (15) days before the expiration of the Due Diligence Period, the TitleCompany shalldeliver to Purchaser a current effective commitment for UCC insurance for each of the BelwardMembership Interests (the “**Belward UCC Commitment**”) and the Traville Membership Interests (the“**Traville UCC Commitment**” and, together with the Belward UCC Commitment, the “**UCC Commitments**”),pursuant to which the Title Company shall commit to insure such non-real estate assets forvalidity, enforceability, and protection against fraud and forgery. The Title Commitments, thedocuments referred to therein, the UCC Commitments and the Surveys are referred to hereincollectively as the “**Title Documents**.”     3.3. Title Review and Cure. During the Due Diligence Period, Purchaser shall reviewtitle to each Property as disclosed by the Title Documents. Purchaser shall be entitled to objectto any title matters shown in the Title Documents, in its sole discretion, by a written notice ofobjections delivered to Seller on or before the expiration of the Due Diligence Period. Purchasershall notify Seller before the expiration of the Due Diligence Period which title exceptions(excluding survey matters), if any, will not be accepted by Purchaser (the “**Title Notice**”). IfPurchaser fails to notify Seller in writing of its disapproval of any exceptions before theexpiration of the Due Diligence Period, Purchaser shall be deemed to have approved the condition oftitle to the Real Property. If Purchaser notifies Seller in writing that Purchaser objects to anyexceptions to title, Seller shall have three (3) Business Days after receipt of the Title Notice tonotify Purchaser of either of the following: (a) that Seller will remove such objectionableexceptions from title on or before the Closing; or (b) that Seller elects not to cause suchexceptions to be removed. If Seller fails to notify Purchaser within such three (3) Business Dayperiod, then Seller shall be deemed to have made an election under the foregoing clause (a).Notwithstanding the foregoing or any other provision of this Agreement, all monetary obligations(including, without limitation, mechanics and materialmens liens or claims thereof,
 

 
any liens orencumbrances that secure obligations for borrowed money and any exceptions or encumbrances to titlewhich are created by or through Seller after the Effective Date) disclosed in the Title Commitmentconstituting a lien against the Real Property are to be satisfied by Seller before Closing otherthan Taxes that are not yet due and payable, and Seller shall, at Seller’s sole cost and expense,cause each Property to be vested in the respective Property Entity to the satisfaction of the TitleCompany so that the Title Company will insure that such Property Entity has fee title to therespective Real Property. With respect to any other objections, Seller will reasonably cooperatewith Purchaser in curing such objections. The procurement by Seller of a commitment for theissuance of the respective Title Policies (as defined in Section 5.2(i) hereof) or anendorsement thereto insuring Purchaser, in a manner acceptable to Purchaser, against any titleexception which was disapproved pursuant to this Section 3.3 shall be deemed a cure bySeller of such disapproval. If Seller gives Purchaser notice under clause (b) above, Purchasershall have three (3) Business Days after the date of such notice in which to notify Seller thatPurchaser will nevertheless proceed with the purchase in accordance with the provisions of thisAgreement and take title to the Property subject to such exceptions, or that Purchaser willterminate this Agreement and receive a refund of the Earnest Money. If after the expiration of theDue Diligence Period the Title Company revises either Title Commitment or any of the UCCCommitments, or the surveyor revises either Survey, to add or modify exceptions, or to add ormodify the conditions to obtaining any endorsement requested by Purchaser during the Due DiligencePeriod, then Purchaser may terminate this Agreement and receive a refund of the Earnest Money ifthe provision for their removal or modification satisfactory to Purchaser is not made. In suchcase, the respective Closing Date shall be extended for up to ten (10) days in order for Purchaserand Seller to determine if suchexception can be resolved and to give Purchaser the opportunity to terminate this Agreementand receive a refund of the Earnest Money if the exception is not removed. PURCHASER ACKNOWLEDGESTHAT IT HAS COMPLETED ITS REVIEW OF THE TITLE DOCUMENTS AND DOES NOT OBJECT TO ANY TITLE MATTERSRELATED THEREIN.     3.4. Permitted Exceptions and Endorsements. “**Permitted Exceptions**” means the followingexceptions approved or deemed approved by Purchaser pursuant to this Agreement: real estate taxesnot yet due and payable; tenants in possession as tenants only under the Subject Leases, and thatcertain Conservation Easement Agreement recorded December 30, 1994 in Liber 13178, Folio 412, byand among Michele Rosenfeld, Associate General Counsel of the Maryland-National Capital Park andPlanning Commission, pursuant to which the Property is subject to the Agreement by Owners’Dedication on the plat recorded as Plat No. 20556 and all other exceptions listed in the TitleCommitment. For the avoidance of doubt, the general exceptions in the Title Commitments will beremoved upon issuance of the ALTA extended coverage title policy to be issued in this transactionand are not Permitted Exceptions. “**Customary Endorsements**” shall mean, to the extent suchendorsements are available under the laws of the state in which the Properties are located: (a)owner’s comprehensive; (b) access; (c) survey (accuracy of survey); (d) location (survey legalmatches title legal); (e) separate tax lot; (f) subdivision map act; (g) zoning 3.1, with parkingand loading docks; (h) mechanic’s lien; (i) deletion of creditors’ rights exception; (j)endorsement over environmental protection liens; (k) utilities endorsement; (l) non-imputationendorsement (the knowledge of any prior buyer, member or beneficial interest holder is not imputedto Seller); and (m) fairway endorsement (the Title Company treats the title policy as thoughnothing has changed even though a member of the insured assigns its membership interests, but theidentity of the insured does not change). In addition, Purchaser shall have the right to requestsuch other endorsements as Purchaser may
 

 
require during the Due Diligence Period based on itsreview of the Title Commitments and Surveys. If agreed to by the parties prior to the applicableClosing Date, Permitted Exceptions may include (i) a memorandum of the Belward Option Agreement,(ii) a memorandum of the Traville Option Agreement, and (iii) a memorandum of the right of firstrefusal which incorporates the substantive terms of Article 30 of the Traville Lease, and theDeclaration referred to in Section 2.6 of this Agreement, each memorandum shall be in formand substance satisfactory to Purchaser and Seller.     3.5. ALTA Statement. Seller shall execute at Closing an ALTA Statement (Owner’s Affidavit)and any other documents, undertakings or agreements customarily required by the Title Company toenable it to issue the Title Policy in accordance with the provisions of this Agreement.**ARTICLE 4. OPERATIONS AND RISK OF LOSS**     4.1. Closing of Transactions. Seller shall perform, execute and deliver, any furtheractions, documents and will obtain such consents, as may be reasonably necessary to cause theBelward Property to be vested in Belward and the Traville Property to be vested in Traville.          4.1.1. On or before the Belward Closing Date, Seller shall cause each of the leases thataffects any portion of the Belward Property, other than the Belward Lease and the Equipment Leases,to be terminated (including the Existing Belward Lease), and each party under any such lease towhich Belward is a party shall have released Belward from all obligations and liabilities undersuch Lease. In addition, Seller shall cause each of the Contracts which Seller elects to terminatepursuant to Section 2.4, to be terminated. Each party under each of the Contracts to whichBelward is a party shall have released Belward from all obligations and liabilities under suchContract. Seller shall further perform, execute and deliver, any further actions, documents andwill obtain such consents, as may be reasonably necessary to cause the following to occurconcurrently with the Belward Closing Date, Seller’s conveyance of the Belward Membership Intereststo Purchaser.          4.1.2. On or before the Traville Closing Date, Seller shall cause each of the leases thataffects any portion of the Traville Property, other than the Traville Lease and the EquipmentLeases, to be terminated (including the Traville Sublease and the Traville Ground Lease), and eachparty under any such lease to which Traville is a party shall have released Traville from allobligations and liabilities under such Lease. Wachovia shall have terminated all of its rights andinterest in the Traville Ground Lease to Traville and shall have released Traville from allobligations and liabilities under such Traville Ground Lease. In addition, Seller shall cause eachof the Contracts which Seller elects to terminate pursuant to Section 2.4, to beterminated. Each party under each of the Contracts to which Traville is a party shall havereleased Traville from all obligations and liabilities under such Contract. Seller shall furtherperform, execute and deliver, any further actions, documents and will obtain such consents, as maybe reasonably necessary to cause the following to occur concurrently with the Traville ClosingDate, Seller’s conveyance of the Traville Membership Interests to Purchaser. At or before theTraville Closing, Seller shall cause Traville to be released from all obligations and liabilitiesunder the Equipment Leases.     4.2. Ongoing Operations. During the pendency of this Agreement:
 

 
          (a) LLC Agreements. Seller shall not amend, supplement, terminate, waive any defaultunder, grant concessions regarding, or otherwise modify in any manner without Purchaser’s consent,the LLC Agreements except that the LLC Agreements may be modified to provide that the membershipinterests are governed by Article 8 of the Maryland UCC and to provide for the issuance ofcertificates representing such membership interests. Seller shall neither enter into any contractor agreement nor act or refrain from acting in such a way that could jeopardize Seller’s membershipinterest in the Property Entities or its ability to transfer to Purchaser clear title to all of themembership interests therein.          (b) Preservation of Business. Subject to Section 4.2(e), Seller shall, andshall cause each Property Entity to, (i) cause each Property to be operated only in the ordinaryand usual course of business and consistent with past practice, shall preserve intact suchProperty, the Seller Owned Property, the Seller Retained Property and the Leased Equipment,preserve the good will and advantageous relationships of Seller and each of the Property Entitieswith customers, suppliers, independent contractors, employees and other persons or entitiesmaterial to the operation of its business, (ii) perform its obligations under leases and otheragreementsaffecting such Property, the Seller Owned Property, the Seller Retained Property and theLeased Equipment, and (iii) not take any action or omission which would cause any of therepresentations or warranties of Seller contained herein to become inaccurate or any of thecovenants of Seller to be breached. Seller will neither cause nor permit any Property Entity toengage in any practice, take any action, or enter into any transaction outside of the ordinarycourse of business.          (c) Maintenance of Insurance. Seller shall continue to carry and cause each PropertyEntity to carry its existing insurance through the respective Closing Date, and shall not allow anybreach, default, termination or cancellation of such insurance policies or agreements to occur orexist.          (d) New Contracts. Subject to Section 4.2(e), Without Purchaser’s priorwritten consent in each instance, Seller shall neither, and shall cause each Property Entity toneither, enter into nor amend, terminate, waive any default under, grant concessions regarding, norotherwise modify in any manner without Purchaser’s consent, any contract or agreement that will bean obligation affecting either Property or binding on Purchaser or any Property Entity after theClosing.          (e) Leasing Arrangements. Seller shall have the right to enter into a Lease or subletthe Property; provided, however, Purchaser’s prior written consent shall berequired, which consent shall be given in Purchaser’s sole and absolute discretion, if assuming theClosing were to occur, such lease or sublease could jeopardize the status of BioMed Realty Trust,Inc., a Maryland corporation, as a real estate investment trust as further described in Section8.1(j) hereof. In the event Seller requests such consent from Purchaser, Purchaser shallrespond in writing within five (5) business days.          (f) Equipment Leases. Seller shall maintain in existence each of the Equipment Leasesand shall neither permit a default thereunder nor exercise any option to purchase the equipmentthereunder.
 

 
          (g) Seller Owned Property and Seller Retained Property. Seller shall maintain theSeller Owned Property and the Seller Retained Property in good condition and repair, reasonablewear and tear excepted, and not permit any mechanic’s or materialmen’s liens to be levied against,or any other liens or encumbrances to encumber, the Seller Owned Property or the Seller RetainedProperty without Purchaser’s prior written consent, which consent shall be given in Purchaser’ssole and absolute discretion. Seller shall not sell, encumber or transfer any of the Seller OwnedProperty or the Seller Retained Property (other than as is prudent in the ordinary course ofoperating the Properties, provided, however, that Seller shall replace such Seller Owned Propertyor the Seller Retained Property with a comparable item of equal quality and quantity as existed asof the time of such removal, provided, further, that Seller may from time to time move suchproperty to other Seller facilities in Montgomery County, Maryland so long as Seller replaces suchproperty with comparable item of equal quality and quantity as existed as of the time of suchremoval prior to the expiration of the respective lease term for either the Belward Lease or theTraville Lease, as the case may be). Seller shall cause the exhibits and schedules attached to thebills of sale and leases to be delivered on the respective Closing Date to be revised to reflectthe location of such replacement property.          (h) Removal and Replacement of Property. Seller shall not, and shall cause eachProperty Entity not to, remove any Other Property, Seller Retained Property, Seller Owned Propertyor Leased Equipment (other than as is prudent in the ordinary course of operating the Properties,provided, however, Seller shall replace such Other Property, Seller Retained Property, Seller OwnedProperty or Leased Equipment with a comparable item of equal quality and quantity as existed as ofthe time of such removal at or before the end of the respective lease term for either the BelwardLease or the Traville Lease, as the case may be). Seller shall cause the exhibits and schedulesattached to the bills of sale and leases to be delivered on the respective Closing Date to berevised to reflect the location of such replacement property.          (i) Maintenance of Permits. Seller and each of the Property Entities shall maintainin existence all licenses, permits and approvals, if any, in its name necessary or reasonablyappropriate to the ownership and occupancy of either Property. On or before the Closing Date for aProperty Entity, Seller shall transfer to Purchaser any and all licenses, permits or approvalsrelating to the ownership and/or occupancy of the Property that are in Seller’s name with respectto the respective Property.          (j) Loan. At Purchaser’s request, Seller shall, and Seller shall cause each of theProperty Entities to, reasonably cooperate (at no material additional cost to Seller that Purchaserdoes not agree to bear) with any requirements of Purchaser’s lenders in connection with any debt orequity financing obtained or to be obtained by Purchaser in connection with this transaction oreither Property, including, without limitation, delivering opinions, subordination andnon-disturbance agreements and such other documents as may be reasonably requested by Purchaser inconnection with this transaction. In the event Purchaser obtains such financing, Purchaser shalluse reasonable efforts to cause each of Purchaser’s lenders to execute and deliver to Seller aSubordination, Nondisturbance, Attornment and Agreement (“**SNDA”**) in form and substance reasonablyacceptable to Purchaser’s lenders and Seller, which SNDA shall reference Seller’s option topurchase the respective Property pursuant to each of the Belward Option Agreement and the TravilleOption Agreement.
 

 
          (k) Exclusive Negotiations. In the absence of a Purchaser default, Seller shall, andSeller shall cause each of the Property Entities to: (i) remove each Property from the market, and(ii) not actively solicit the submission of any proposal or offer from any person related to theacquisition of the Properties or the Membership Interests nor participate in any discussions ornegotiations regarding, or facilitating in any other manner any effort or attempt by any personregarding, the sale or acquisition of any of the Properties or the Membership Interests.          (l) Taxes. Seller shall not permit the Property Entities to, and the PropertiesEntities shall not, without the prior written consent of Purchaser, make or change any materialelection in respect of Taxes (including any election to be treated as an association taxable as acorporation for federal, state or local tax purposes), adopt or change any accounting method orperiod in respect of Taxes, enter into any tax-sharing, allocation, compensation or like agreement,settle any claim or assessment in respect of Taxes, request any tax ruling or consent to anyextension or waiver of the limitation period applicable to any claim or assessment in respect ofTaxes.     4.3. Damage; Condemnation.As between Seller and Purchaser, all risk of loss with respect to the Properties shall remainwith Seller until the respective Closing Date, when full risk of loss with respect to therespective Property shall pass to Purchaser. Seller shall promptly give Purchaser written noticeof any damage to either Property, describing such damage, whether such damage is covered byinsurance and the estimated cost of repairing such damage. Seller shall promptly give Purchasernotice of any eminent domain proceedings that are contemplated, threatened or instituted withrespect to either Property (“**Eminent Domain**”).          (i) If the aggregate cost of repair or replacement or the value of the Eminent Domain(collectively, “**repair and/or replacement**”) with respect to either Property is One Million Dollars($1,000,000.00) or less, in the opinion of Purchaser’s and Seller’s respective engineeringconsultants, Purchaser shall close on the subject Property and take the Property as diminished bysuch events with an assignment by Seller of any casualty insurance proceeds or condemnationproceeds and the payment by Seller to Purchaser of any applicable deductible amounts, less anyamounts reasonably incurred by Seller to repair such Property (together with a credit from Sellerto Purchaser of the full amount of any deductible not paid directly by Seller and the amount of anyrepair and/or replacement not covered by such proceeds).          (ii) If the aggregate cost of repair and/or replacement to a Property is greater than OneMillion Dollars ($1,000,000.00), in the opinion of Purchaser’s and Seller’s respective engineeringconsultants, then Purchaser, at its sole option, may elect either to: (a) terminate this Agreementas to the respective Property by written notice to Seller and the Escrow Agent, in which event theEarnest Money shall be returned to Purchaser and neither party shall have any further liability tothe other hereunder, except for those liabilities that expressly survive a termination of thisAgreement; or (b) proceed to close and take the Property as diminished by such events, togetherwith an assignment of Seller’s casualty insurance proceeds or condemnation proceeds and the paymentby Seller to Purchaser or any applicable deductible amounts, less any amounts reasonably incurredby Seller to repair either Property (together with a credit from Seller to Purchaser of the fullamount of any deductible not paid directly by Seller and the amount of any repair and/orreplacement not covered by such proceeds).
 

 
          (iii) If a dispute arises between Seller and Purchaser with respect to the cost of repairand/or replacement for the matters set forth in this Section, an engineer designated by Seller andan engineer designated by Purchaser shall within five (5) business days select an independentengineer licensed to practice in Maryland who shall resolve such dispute within ten (10) businessdays after being retained by Purchaser. All fees, costs and expenses of such third engineer soselected shall be shared equally by Purchaser and Seller. In such case, the respective ClosingDate shall be extended for up to twenty (20) days in order for Purchaser and Seller to resolve suchdispute.          (iv) A casualty or condemnation with respect to one Property shall affect neither Purchaser’sand Seller’s obligation to close on the other Property nor Seller’s obligation to execute theSubject Lease with respect to the other Property.          (v) If any Seller Owned Property or Seller Retained Property is damaged, destroyed or subjectto condemnation, then Seller shall promptly repair or replace such Seller Owned Property or SellerRetained Property with a comparable item of equal quality andquantity as existed as of the time of such damage, destruction or condemnation. Seller’sobligations under this Section 4.3(v) shall survive the respective Closing.**ARTICLE 5. CONDITIONS PRECEDENT; DEFAULT AND REMEDIES**     5.1. Conditions to Seller’s Obligation to Close. In addition to all other conditions setforth herein, the obligation of Seller to consummate the transactions contemplated hereunder shallbe contingent upon the satisfaction of the conditions set forth below in this Section 5.1.If Seller elects separate Closings in accordance with Section 1.5, then the conditions setforth in this Section 5.1 shall apply separately to each of the Belward Closing and theTraville Closing.          (a) Representations. Purchaser’s representations and warranties contained hereinshall be true and correct in all material respects as of the date of this Agreement and therespective Closing Date;          (b) Performance. As of the respective Closing Date, Purchaser shall have performedits obligations hereunder and all deliveries to be made by Purchaser at such Closing have beentendered; and          (c) Other Condition. Any other condition set forth in this Agreement to Seller’sobligation to close shall have been satisfied by the applicable date.     5.2. Conditions to Purchaser’s Obligation to Close. In addition to all other conditionsset forth herein, the obligation of Purchaser to consummate the transactions contemplated hereundershall be contingent upon the satisfaction of the conditions set forth below in this Section5.2. If separate Closings are elected by Seller in accordance with Section 1.5, thenthe conditions set forth in this Section 5.2 shall apply separately to each of the BelwardClosing and the Traville Closing.          (a) Representations. Seller’s and the Property Entities’ representations andwarranties contained herein and in the applicable Seller’s Closing Certificate shall be true andcorrect in all material respects as of the date of this Agreement and the respective Closing Date.The schedules of all liabilities (contingent or otherwise) for the respective Property attached to
 

 
the applicable Seller’s Closing Certificate shall not show additional assets or liabilities beyondthose shown on the Liabilities Schedule approved by Purchaser during the Due Diligence Period,unless otherwise approved by Purchaser in its sole discretion.          (b) Performance. As of the respective Closing Date, each of Seller and the PropertyEntities shall have performed their obligations hereunder and all deliveries to be made by Sellerat such Closing have been tendered;          (c) Default. As of the respective Closing Date, Seller shall not be in default underany agreement to be assigned to, or obligation to be assumed by, Purchaser under this Agreement;          (d) Property Entity Default. As of the respective Closing Date, neither PropertyEntity shall be in default under any Contract or any other agreement to be retained by suchProperty Entity after such Closing Date;          (e) Physical Condition. The physical condition of the respective Property, the SellerOwned Property, the Seller Retained Property and the Leased Equipment shall be substantially thesame on the respective Closing Date as on the Effective Date, reasonable wear and tear excepted,unless the alteration of said physical condition is the result of a casualty loss or proceeding ineminent domain, in which case the provisions of Section 4.3 shall govern;          (f) Financial Condition. The financial condition of Seller and each of the PropertyEntities (each individually and not in the aggregate) on the respective Closing Date shall besubstantially the same as the financial condition of Seller and each of the Property Entities (eachindividually and not in the aggregate) on the Effective Date after taking into account Seller’soperating losses from continuing operations;          (g) Lease Condition. As of the respective Closing Date for any Property Entity, (1)Seller and Purchaser shall have executed the Subject Lease with respect to the respective Property,(2) the Subject Lease with respect to the respective Property shall be in full force and effect,(3) Seller shall be the sole tenant with respect to the respective Property, and (4) Purchasershall have received assurances acceptable to Purchaser in its sole and absolute discretion that onthe consummation of the respective Closing, all of the leases affecting any portion of therespective Property, other than the Subject Lease, including each of the Existing Leases withrespect to the respective Property, shall have been terminated and each party under any such leaseto which such Property Entity is a party shall have released such Property Entity from allobligations and liabilities under such lease;          (h) Belward Title. Seller shall have executed all such documents and agreementsrequired by the Title Company to vest the Belward Building and the Belward Real Property inBelward. Upon the sole condition of payment of the premium by Purchaser, at the Belward Closing,the Title Company shall be irrevocably committed to issue to Purchaser an ALTA Owner’s Policy oftitle insurance (Revised 10-13-70 and 10-17-84), with extended coverage (i.e., with ALTA GeneralExceptions deleted), dated as of the Belward Closing Date, in the amount of $200,000,000, insuringBelward and Purchaser, not individually, but solely as the owner of 100% of the membershipinterests in Belward, as owner of good, marketable and
 

 
indefeasible fee simple title to the BelwardProperty, subject only to the Permitted Exceptions, and containing the Customary Endorsements (the“**Belward Title Policy**”); and          (i) Traville Title. Seller and/or Wachovia, as the case may be, shall have executedall such documents and agreements required by the Title Company to vest the Traville HQ Buildingand the Traville HQ Real Property in Traville. Upon the sole condition of payment of the premiumby Purchaser, at the Traville Closing, the Title Company shall be irrevocably committed to issue toPurchaser, an ALTA Owner’s Policy of title insurance (Revised 10-13-70 and 10-17-84), with extendedcoverage (i.e., with ALTA General Exceptions deleted), dated as of the Traville Closing Date, inthe amount of $225,000,000, insuring Traville and Purchaser, not individually, but solely as theowner of 100% of the membership interests in Traville, as owner of good, marketable andindefeasible fee simple title to the Traville Property, subject only to thePermitted Exceptions, and containing the Customary Endorsements (the “**Traville Title Policy**”and, together with the Belward Title Policy, the “**Title Policies**”);          (j) Belward UCC Title Insurance. Upon the sole condition of payment of the premium byPurchaser, at the Belward Closing, the Title Company shall be irrevocably committed to issue toPurchaser the Belward UCC Commitment provided for in Section 3.2 hereof, free and clear ofall liens, Permitted Exceptions, encumbrances, claims, rights or liabilities in favor of any otherparty of any kind or nature whatsoever (“**Belward UCC Title Policy**”);          (k) Traville UCC Title Insurance. Upon the sole condition of payment of the premiumby Purchaser, at the Traville Closing, the Title Company shall be irrevocably committed to issue toPurchaser the Traville UCC Commitment provided for in Section 3.2 hereof, free and clear ofall liens, permitted exceptions, encumbrances, claims, rights or liabilities in favor of any otherparty of any kind or nature whatsoever (“**Traville UCC Title Policy**” and, together with the BelwardTitle Policy, the “**UCC Title Policy**”).          (l) Bankruptcy. No proceeding shall have been commenced against Seller or anyProperty Entity under the federal Bankruptcy Code or any state law for relief of debtors;          (m) Moratorium. No moratorium, statute or regulation of any governmental agency ororder or ruling of any court shall have been enacted, adopted, or issued which would materiallyadversely affect Purchaser’s or any Property Entity’s use or development of either Property;          (n) Property Entities. Except as provided in this Agreement, there shall not haveoccurred since the Effective Date, any material change (including without limitation the initiationof any material litigation or other adversarial proceeding or the incurrence of any liability) inor relating to the business or operation of the Property Entities or their financial condition, andSeller shall not have taken, and Seller shall have not permitted the Property Entities to havetaken, any action which would constitute a breach of this Agreement. No claim shall have beenfiled or threatened against Seller or the Property Entities seeking to prevent or set aside theClosing or seeking damages or compensation if the Closing occurs. The financial condition ofSeller and the Property Entities shall be substantially the same on the respective Closing Date ason the date of execution of this Agreement after taking into account such Property Entity’soperating losses from continuing operations;
 

 
          (o) Other Condition. Any other condition set forth in this Agreement to Purchaser’sobligation to close shall have been satisfied by the applicable date.     5.3. Failure of Condition Precedent. So long as a party is not in default beyondapplicable notice and cure periods hereunder, if any condition to such party’s obligation toproceed with the Closing hereunder has not been satisfied as of the respective Closing Date orother applicable date and such condition is not cured within five (5) Business Days after receiptof notice of default from the non-defaulting party; such non-defaulting party may, in its solediscretion, either (a) terminate this Agreement by delivering written notice to the other party onor before the respective Closing Date or other applicable date, whereupon: (i) if such terminationoccurs prior to the expiration of the Due Diligence Period,then the Earnest Money shall be returned to Purchaser, (ii) if such termination occurs subsequentto the termination of the Due Diligence Period and Purchaser is in breach of its obligations underthis Agreement, then the provisions of Section 5.4 shall apply, or (iii) if suchtermination occurs subsequent to the termination of the Due Diligence Period and Seller is inbreach of its obligations under this Agreement, then the provisions of Section 5.5 shallapply, or (b) elect to close, notwithstanding the non-satisfaction of such condition, in whichevent such party shall be deemed to have waived any such condition. The foregoing shall not beconstrued as diminishing the respective rights of the parties under Sections 5.4(b) and5.5(b).     5.4. Purchaser’s Defaults; Seller’s Remedies.          (a) In the event of a breach by Purchaser of its obligations under this Agreement after theexpiration of the Due Diligence Period, which breach is not cured within five (5) Business Daysafter Purchaser’s receipt of notice of default from Seller (provided that no such cure period shallextend the respective Closing Date or apply for a breach of the obligation to close by such ClosingDate) and Seller is willing, ready and able to perform its obligations hereunder, is not in defaulthereunder and shall have performed all of the obligations required of Seller as of the datePurchaser receives the notice of default from Seller, Seller’s sole remedy shall be to terminatethis Agreement and retain all Earnest Money and any earnings thereon as liquidated damages, not asa penalty. PURCHASER AND SELLER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT OR IMPRACTICAL TOQUANTIFY THE ACTUAL DAMAGES TO SELLER IN THE EVENT OF A BREACH BY PURCHASER AFTER THE EXPIRATION OFTHE DUE DILIGENCE PERIOD, THAT THE AMOUNT OF ALL EARNEST MONEY IS A REASONABLE ESTIMATE OF SUCHACTUAL DAMAGES, AND THAT SELLER’S EXCLUSIVE REMEDY IN THE EVENT OF A BREACH BY PURCHASER AFTER THEEXPIRATION OF THE DUE DILIGENCE PERIOD SHALL BE TO RETAIN ALL EARNEST MONEY AND EARNINGS THEREON ASLIQUIDATED DAMAGES.          Initials of Seller  Initials of Purchaser            (b) Subject to Section 9.23, after Closing, in the event of a breach by Purchaser ofits obligations under this Agreement that survive Closing, Seller may exercise any rights andremedies available at law or in equity.
 

 
     5.5. Seller’s Defaults; Purchaser’s Remedies.          (a) In the event of a breach by Seller of its obligations under this Agreement, which breachis not cured within five (5) Business Days after Seller’s receipt of notice of default fromPurchaser (provided that no such cure period shall extend the respective Closing Date or apply fora breach of the obligation to close by such Closing Date), Purchaser may elect only one of thefollowing two remedies: (i) terminate this Agreement and receive: (1) a refund of the Earnest Moneyand any earnings thereon, plus (2) in the case of an intentional breach by Seller, liquidateddamages in the amount of two million dollars ($2,000,000)**,**plus (3) reimbursement from Seller forPurchaser’s reasonable out of pocket costs incurred in connection with the negotiation of thisAgreement, Purchaser’s diligence with respect to the Properties, andPurchaser’s actions in furtherance of the transactions contemplated by this Agreement(provided that said sum recoverable as reimbursement shall not exceed two hundred and fiftythousand dollars ($250,000)); or (ii) enforce specific performance of this Agreement againstSeller, including the right to recover reasonable attorneys’ fees and to seek recovery pursuant toSection 9.1 of this Agreement. Purchaser’s election of remedies shall be made within 10Business Days following Seller’s failure to cure. PURCHASER AND SELLER AGREE THAT IT WOULD BEEXTREMELY DIFFICULT OR IMPRACTICAL TO QUANTIFY THE ACTUAL DAMAGES TO PURCHASER IN THE EVENT OF ABREACH BY SELLER, THAT THE AMOUNTS SET FORTH ABOVE ARE A REASONABLE ESTIMATE OF SUCH ACTUALDAMAGES.          Initials of Seller  Initials of Purchaser            (b) Subject to Sections 8.3, 8.4 and 9.23, after Closing, in the eventof a breach by Seller of its obligations under this Agreement that survive Closing, Purchaser mayexercise any rights and remedies available at law or in equity.**ARTICLE 6. CLOSING**     6.1. Closing Date. The consummation of the transactions contemplated herein (the“**Closing**”) shall occur as follows.     6.2. Belward Closing. The consummation of the transactions contemplated herein withrespect to the Belward Membership Interests (the “**Belward Closing”)**shall occur on the BelwardClosing Date at the office of the Escrow Agent through the escrow with the Escrow Agent. TheEarnest Money shall be retained by the Escrow Agent as security for Purchaser’s performance underthe Purchase Agreement with respect to the Traville Membership Interests. Funds shall be depositedinto and held by Escrow Agent in a closing escrow account with a bank satisfactory to Purchaser andSeller. Upon satisfaction or completion of all closing conditions and deliveries, the partiesshall direct the Escrow Agent to immediately deliver, and if appropriate, record, the closingdocuments to the appropriate parties and make disbursements according to the Belward ClosingStatement executed by Seller and Purchaser. Provided such supplemental escrow instructions are notin conflict with this Agreement as it may be amended in writing from time to time, Seller andPurchaser agree to execute such supplemental escrow instructions as may be appropriate to enableEscrow Agent to comply with the terms of this
 

 
Agreement. The parties understand that the Closingshall occur by escrow in Bethesda, Maryland requiring that all necessary deliveries to escrow mustbe completed by 9:00 AM on the Belward Closing Date.          (a) Seller’s Deliveries in Escrow. Prior to 9:00 AM on the Belward Closing Date,Seller shall deliver in escrow to the Escrow Agent four (4) counterpart originals of each of thefollowing:          (i) Organizational Documents. A certified copy of the Articles of Organization(and any amendments thereto) of Belward and a certificate of good standing for Belward, eachissued by the Secretary of State of the State of Maryland, dated no earlier than seven (7)days prior to the Belward Closing Date;          (ii) Assignment of Belward Membership Interests. The Assignment of BelwardMembership Interests, in the form attached hereto as Exhibit G, executed by Seller;          (iii) Belward Lease. The Belward Lease, substantially in the form ofExhibit H attached hereto, executed by Seller;          (iv) Opinion. An opinion of counsel for Seller, addressed to Purchaser andPurchaser’s lender, if any, that have been identified to Seller and dated the BelwardClosing Date, in form and substance reasonably acceptable to Purchaser, covering (1) thesubjects set forth in Sections 8.1(a), (c) and (d), (2) the valid transfer by Sellerto Purchaser of the ownership of the Belward Membership Interests, and (3) to such counsel’sknowledge, the Belward Membership Interests are free and clear of all Liens, subject tocustomary limitations, assumptions and qualifications. The opinion shall state that it maybe relied upon by counsel to Purchaser in connection with any legal opinion that may berequired to be given by counsel to Purchaser in connection with any debt or equity financingobtained or to be obtained by Purchaser;          (v) Seller’s Closing Certificate. A certificate, substantially in the form ofExhibit I attached hereto (the “**Belward Closing Certificate**”), executed by Sellerfor the Belward Closing;          (vi) Authority. Evidence of the existence, organization and authority of eachof Seller and Belward and of the authority of the persons executing documents on behalf ofSeller and Belward reasonably satisfactory to the Escrow Agent and the Title Company;          (vii) Indemnity. A mechanic’s lien indemnity executed by Seller, if required,in form and substance reasonably satisfactory to Escrow Agent and the Title Company;          (viii) FIRPTA Certificate. A certificate in form and substance reasonablysatisfactory to Purchaser, duly executed and acknowledged by Seller, certifying that thetransactions contemplated by this Agreement are exempt from withholdings under Section 1445of the Code;
 

 
          (ix) Belward Bill of Sale. A Bill of Sale for the Seller Belward Propertysubstantially in the form of **Exhibit N**attached hereto (“**Belward Bill of Sale**”), executedand acknowledged by Seller;          (x) Belward Option Agreement. An Option Agreement substantially in the form of**Exhibit O**attached hereto (“**Belward Option Agreement**”), executed by Seller or, in thealternative, an executed original of the pre-closing Belward Option Agreement between Sellerand Belward;          (xi) Memorandum of Belward Option Agreement. A memorandum of the BelwardOption Agreement, in recordable form, to be recorded in Montgomery County, Maryland, in formand substance reasonably satisfactory to Purchaser and Seller (“**Memorandum of Belward OptionAgreement**”), executed and acknowledged by Seller or, in the alternative, a recordedmemorandum of the Belward Option Agreement between Seller and Belward;          (xii) Terminations. Terminations effective no later than the Belward ClosingDate of each Contract which Seller elected to terminate pursuant to Section 2.4,pursuant to which Belward is released from all of its obligations and liabilities under suchContracts;          (xiii) Belward Lease Terminations. Terminations effective no later than theBelward Closing Date of the Existing Belward Lease, pursuant to which Belward is releasedfrom all of its obligations and liabilities under the Existing Belward Lease and otherwisein form and substance reasonably acceptable to Purchaser;          (xiv) Termination of Deed of Trust. The termination of that certain Deed ofTrust and Security Agreement dated November 7, 2001, from Genome Statutory Trust 2001A toWells Fargo Bank Northwest, N.A., as amended and modified;          (xv) Q Building Option Agreement. The Q Building Option Agreementsubstantially in the form of **Exhibit S**attached hereto, executed by Seller;          (xvi) Memorandum of Q Building Option Agreement. A memorandum of the QBuilding Option Agreement in recordable form, to be recorded in Montgomery County, Maryland,in form and substance reasonably satisfactory to Purchaser and Seller (“**Memorandum of QBuilding Option Agreement**”), executed and acknowledged by Seller;          (xvii) Pilot Plant Option Agreement. The Pilot Plant Option Agreementsubstantially in the form of **Exhibit T**attached hereto, executed and acknowledged by Seller;          (xviii) Memorandum of Pilot Plant Option Agreement. A memorandum of the PilotPlant Option Agreement in recordable form, to be recorded in Montgomery County, Maryland, inform and substance reasonably satisfactory to Purchaser and Seller (“**Memorandum of PilotPlant Option Agreement**”), executed and acknowledged by Seller;
 

 
          (xix) Security Agreement. The Security Agreement, substantially in the form ofExhibit V, executed by Seller;          (xx) Tax Clearance Certificates. At the Belward Closing, Seller and theProperty Entities shall use their reasonable best efforts to provide Purchaser with suchclearance certificates or similar document(s) which may be required by any state taxingauthority to relieve Purchaser of any obligation to withhold any portion of the payments toSeller pursuant to this Agreement;          (xxi) Amended and Restated Belward LLC Agreement. If requested by Purchaser,(1) the Amended and Restated Belward LLC Agreement naming Purchaser as “Managing Member” andthe holder of the 100% of the membership interests in Belward, executed by Seller, and (2)the amendment to the Articles of Organization of Belward; and          (xxii) Other Deliveries. Any other Closing deliveries required to be made byor on behalf of Seller or any Property Entity hereunder or reasonably required to effect theClosing of this transaction consistent with this Agreement.          (b) Purchaser’s Deliveries in Escrow. Prior to 9:00 AM on the Belward Closing Date,Purchaser shall deliver in escrow to the Escrow Agent four (4) counterpart originals of each of thefollowing:          (i) Purchase Price. The Belward Purchase Price, plus or minus applicableprorations, deposited by Purchaser with the Escrow Agent in immediate, same-day federalfunds wired for credit into the Escrow Agent’s escrow account;          (ii) Assignment of Belward Membership Interests. The Assignment of BelwardMembership Interests, in the form attached hereto as Exhibit G, executed byPurchaser;          (iii) Belward Bill of Sale. Counterpart of the Belward Bill of Sale, executedby Purchaser;          (iv) Belward Option Agreement. If required pursuant to Section 6.2(a)(x)above, counterpart of the Belward Option Agreement in recordable form to be recorded inMontgomery County, Maryland, executed by Purchaser;          (v) Memorandum of Belward Option Agreement. If required pursuant to Section6.2(a)(xi) above, the Memorandum of Belward Option Agreement, executed and acknowledged byPurchaser;          (vi) Belward Lease. The Belward Lease, substantially in the form ofExhibit H attached hereto, executed by Purchaser on behalf of Belward;          (vii) Q Building Option Agreement. The Q Building Option Agreementsubstantially in the form of **Exhibit S**attached hereto, executed and acknowledged byPurchaser;
 

 
          (viii) Memorandum of Q Building Option Agreement. The Memorandum of Q BuildingOption Agreement, executed and acknowledged by Purchaser;          (ix) Pilot Plant Option Agreement. The Pilot Plant Option Agreementsubstantially in the form of **Exhibit T**attached hereto, executed and acknowledged byPurchaser;          (x) Memorandum of Pilot Plant Option Agreement. The Memorandum of Pilot PlantOption Agreement, executed and acknowledged by Purchaser;          (xi) Security Agreement. The Security Agreement, substantially in the form ofExhibit V, executed by Purchaser on behalf of Belward; and          (xii) Other Deliveries. Any other Closing deliveries required to be made by oron behalf of Purchaser hereunder or reasonably required to effect the Closing of thistransaction consistent with this Agreement.     6.3. Traville Closing and Escrow. The consummation of the transactions contemplatedherein with respect to the Traville Membership Interests (the “**Traville Closing**”) shall occur onthe Traville Closing Date at the offices of the Escrow Agent through the money escrow with theEscrow Agent. Funds shall be deposited into and held by Escrow Agent in a closing escrow accountwith a bank satisfactory to Purchaser and Seller. Upon satisfaction or completion of all closingconditions and deliveries (including the execution and delivery to the Escrow Agent of each of theTraville Sublease Termination and the Traville Ground Lease Termination), the parties shall directthe Escrow Agent to take the following steps in the following order: (a) deliver the Assignment ofTraville Membership Interests to Purchaser, (b) immediately record and deliver the closingdocuments to the appropriate parties, and (c) make disbursements according to the Traville ClosingStatement executed by Seller and Purchaser and Wachovia, if required. Provided such supplementalescrow instructions are not in conflict with this Agreement as it may be amended in writing fromtime to time, Seller and Purchaser agree to execute such supplemental escrow instructions as may beappropriate to enable Escrow Agent to comply with the terms of this Agreement. The partiesunderstand that the Closing shall occur in Bethesda, Maryland requiring that all necessarydeliveries to escrow must be completed by 9:00 AM on the Traville Closing Date.          (a) Seller’s Deliveries in Escrow. Prior to 9:00 AM on the Traville Closing Date,Seller shall deliver in escrow to the Escrow Agent four (4) counterpart originals of each of thefollowing:          (i) Organizational Documents. A certified copy of the Articles of Organization(or any amendments thereto) of Traville and a certificate of good standing for Traville,each issued by the Secretary of State of the State of Maryland, dated no earlier than seven(7) days prior to the Traville Closing Date;          (ii) Assignment of Traville Membership Interests. The Assignment of TravilleMembership Interests, in the form attached hereto as Exhibit J, executed by Seller(“**Assignment of Traville Membership Interests**”);
 

 
          (iii) Traville Lease. The Traville Lease, substantially in the form ofExhibit K attached hereto, executed by Seller;          (iv) Opinion. An opinion of counsel for Seller, addressed to Purchaser andPurchaser’s lender, if any, that have been identified to Seller and dated the TravilleClosing Date, in form and substance reasonably acceptable to Purchaser, covering (1) thesubjects set forth in Sections 8.1(a), (c) and (d), (2) the valid transfer bySeller to Purchaser of the ownership of the Traville Membership Interests, and (3) to suchcounsel’s knowledge, the Traville Membership Interests are free and clear of all Liens,subject to customary limitations, assumptions and qualifications. The opinion shall statethat it may be relied upon by counsel to Purchaser in connection with any legal opinion thatmay be required to be given by counsel to Purchaser in connection with any debt or equityfinancing obtained or to be obtained by Purchaser;          (v) Seller’s Closing Certificate. A certificate, substantially in the form ofExhibit L attached hereto (the “**Traville Closing Certificate**” and, together with theBelward Closing Certificate, the “**Seller’s Closing Certificates**”), executed by Seller forthe Traville Closing;          (vi) Authority. Evidence of the existence, organization and authority of eachof Seller and Traville and of the authority of the persons executing documents on behalf ofSeller and Traville reasonably satisfactory to the Escrow Agent and the Title Company; and          (vii) Indemnity. A mechanic’s lien indemnity executed by Seller, if required,in form and substance reasonably satisfactory to Escrow Agent and the Title Company;          (viii) FIRPTA Certificate. A certificate in form and substance reasonablysatisfactory to Purchaser, duly executed and acknowledged by Seller and Wachovia, certifyingthat the transactions contemplated by this Agreement are exempt from withholdings underSection 1445 of the Code;          (ix) Traville Bill of Sale. A Bill of Sale for the Seller Traville Propertysubstantially in the form of **Exhibit P**attached hereto (“**Traville Bill of Sale**”), executedand acknowledged by Seller;          (x) Traville Option Agreement. An Option Agreement for the Traville Propertyand Memorandum of Option Agreement in recordable form, to be recorded in Montgomery County,Maryland, substantially in the form of **Exhibit Q**attached hereto (“**Traville OptionAgreement**”), executed and acknowledged by Seller or, in the alternative, an executedoriginal of the Traville Option Agreement between Seller and Traville;          (xi) Memorandum of Traville Option Agreement. A memorandum of the TravilleOption Agreement in recordable form, to be recorded in Montgomery County, Maryland, in formand substance reasonably satisfactory to Purchaser and Seller (“**Memorandum of TravilleOption Agreement**”), executed and acknowledged by
 

 
Seller or, in the alternative, a recordedmemorandum of the Traville Option Agreement between Seller and Traville;          (xii) Terminations. Terminations effective no later than the Traville ClosingDate of each Contract which Seller elected to terminate pursuant to Section 2.4,pursuant to which Traville is released from all of its obligations and liabilities undersuch Contracts, executed by Seller and each other party thereto;          (xiii) Sublease Agreement Termination. A termination effective no later thanthe Traville Closing Date of the Traville Sublease, pursuant to which Traville is releasedfrom all of its obligations and liabilities under the Traville Sublease and otherwise inform and substance reasonably acceptable to Purchaser, executed by Seller and Wachovia(“**Traville Sublease Termination**”);          (xiv) Traville Ground Lease Termination. A termination of the Traville GroundLease effective no later than the Traville Closing Date, pursuant to which the TravilleGround Lease is terminated, Traville is released from all of its obligations and liabilitiesunder the Traville Ground Lease and otherwise in form and substance reasonably acceptable toPurchaser, executed by Traville and Wachovia (“**Traville Ground Lease Termination**”);          (xv) Right of Entry. The Right of Entry, in the form attached hereto asExhibit U, executed by Seller;          (xvi) Reciprocal Easement Agreement. The Reciprocal Easement Agreement, in theform attached hereto as Exhibit W, executed by Seller; and          (xvii) Tax Clearance Certificates. At the Traville Closing, Seller and theProperty Entities shall use their reasonable best efforts to provide Purchaser with suchclearance certificates or similar document(s) which may be required by any state taxingauthority to relieve Purchaser of any obligation to withhold any portion of the payments toSeller pursuant to this Agreement;          (xviii) Amended and Restated Traville LLC Agreement. If requested byPurchaser, (1) the Amended and Restated Traville LLC Agreement naming Purchaser as “ManagingMember” and the holder of the 100% of the membership interests in Traville, executed bySeller, and (2) the amendment to the Articles of Organization of Traville; and          (xix) Other Deliveries. Any other Closing deliveries required to be made by oron behalf of Seller or any Property Entity hereunder or reasonably required to effect theClosing of this transaction consistent with this Agreement.          (b) Purchaser’s Deliveries in Escrow. Prior to 9:00 AM on the Traville Closing Date,Purchaser shall deliver in escrow to the Escrow Agent four (4) counterpart originals of each of thefollowing:          (i) Purchase Price. The Traville Purchase Price, less the Earnest Money thatis applied to the Traville Purchase Price, plus or minus applicable prorations,
 

 
deposited byPurchaser with the Escrow Agent in immediate, same-day federal funds wired for credit intothe Escrow Agent’s escrow account.          (ii) Wachovia Termination Payment. The Wachovia Termination Payment depositedby Purchaser with the Escrow Agent in immediate, same-day federal funds wired for creditinto the Escrow Agent’s escrow account.          (iii) Assignment of Traville Membership Interests. The Assignment of TravilleMembership Interests, in the form attached hereto as Exhibit J, executed byPurchaser;          (iv) Traville Bill of Sale. Counterpart of the Traville Bill of Sale, executedby Purchaser;          (v) Traville Option Agreement. If required pursuant to Section 6.2(b)(x)above, counterpart of the Traville Option Agreement, executed by Purchaser;          (vi) Memorandum of Traville Option Agreement. If required pursuant to Section6.2(b)(xi) above, the Memorandum of Traville Option Agreement, executed and acknowledged byPurchaser;          (vii) Traville Lease. The Traville Lease, substantially in the form ofExhibit K attached hereto, executed by Purchaser on behalf of Traville;          (viii) Right of Entry. The Right of Entry, in the form attached hereto asExhibit U, executed by Purchaser on behalf of Traville;          (ix) Reciprocal Easement Agreement. The Reciprocal Easement Agreement, in theform attached hereto as Exhibit W, executed by Purchaser; and          (x) Other Deliveries. Any other Closing deliveries required to be made by oron behalf of Purchaser hereunder or reasonably required to effect the Closing of thistransaction consistent with this Agreement.     6.4. Closing Statements/Closing Costs.          (a) Seller and Purchaser shall deposit with the Escrow Agent executed Closing Statementsconsistent with this Agreement in the form required by the Escrow Agent.          (b) Seller and Purchaser shall execute such returns, questionnaires and other documents asshall be required with regard to all applicable real property transaction taxes imposed byapplicable federal, state or local law or ordinance.          (c) Seller shall pay the fees of any counsel representing Seller in connection with thistransaction. Seller shall also pay the following costs and expenses:          (i) one-half of the escrow fee, if any, which may be charged by the Escrow Agent or the TitleCompany;
 

 
          (ii) one-half of any excise, recording, deed, imposed transfer tax, documentary stamp tax orsimilar tax which becomes payable by reason of the transfer of the Membership Interests underapplicable state or local law, including, without limitation, any real estate excise tax; and          (iii) all of Seller’s recording fees in order to release any liens in connection with thetransactions contemplated hereby.          (d) Purchaser shall pay the fees of any counsel representing Purchaser in connection with thistransaction. Purchaser shall also pay the following costs and expenses:          (i) one-half of the escrow fee, if any, which may be charged by the Escrow Agent or the TitleCompany;          (ii) one-half of any excise, recording, deed, imposed transfer tax, documentary stamp tax orsimilar tax which becomes payable by reason of the transfer of the Membership Interests underapplicable state or local law, including, without limitation, any real estate excise tax; and          (iii) the cost of the Survey;          (iv) the UCC title insurance premium for the UCC Title Policies;          (v) the premium for the Title Policy for each of the Properties, the Customary Endorsementsand all other endorsements; and          (vi) all other recording fees in order to effectuate the Closing.     6.5. Transfer of Title. At Closing, Seller shall transfer title to 100% of the MembershipInterests in the Property Entities to Purchaser free and clear of all liens, encumbrances, claimsor liabilities of any kind or nature pursuant to the Assignments.     6.6. Delivery of Books and Records. The following shall apply with respect to eachClosing: immediately after the respective Closing, Seller shall deliver to the offices ofPurchaser’s property manager: the original Contracts and the following to the extent the same arein Seller’s, any Property Entity’s or its property manager’s possession or control: copies ororiginals of all books and records of account, contracts, copies of correspondence with tenants andsuppliers, receipts for deposits, unpaid bills and other papers or documents which pertain to therespective Property or the respective Property Entity; all permits and warranties; all advertisingmaterials, booklets, keys and other items, if any, used in the operation of such Property; and theoriginal “as-built” plans and specification; all other available plans and specifications; and alloperation manuals. Seller shall cooperate with Purchaser before and after Closing to transfer toPurchaser any such information stored electronically.     6.7. Recordation Taxes. Subject to Section 7.5, in the event Purchaser acquires afee interest in either the Belward Property or the Traville Property, Purchaser shall beresponsible for all transfer and recordation taxes in connection with such acquisition.**ARTICLE 7. PRORATIONS AND ADJUSTMENTS**
 

 
     7.1. Prorations.The following shall apply with respect to each Closing: at least five (5) days prior to therespective Closing Date, Seller shall provide to Purchaser such information and verificationreasonably necessary to support the prorations and adjustments under this Article 7. Tothe extent Seller pays such operating expenses, assessments, charges under Contracts and utilitycharges with respect to such Property pursuant to an Existing Lease or as the sole occupant of theBelward Building, Seller shall continue to be responsible for such charges pursuant to the termsand provisions of the Subject Leases. All other assessments, charges under Contracts and utilitycharges with respect to such Property shall be prorated between Seller and Purchaser, based on theactual number of days in the applicable period, as of the close of the day immediately precedingsuch Closing Date, with Seller bearing all such items to the extent attributable to the periodprior to such Closing Date and Purchaser bearing all such items to the extent attributable theperiod commencing on such Closing Date. Taxes shall be allocated as set forth in Sections7.5 and 9.19 hereof.     7.2. Closing Statement. At least five (5) days prior to the: (a) Belward Closing Date,Escrow Agent shall deliver to Seller and Purchaser a closing statement setting forth the prorationsand adjustments to the Purchase Price with respect to the Belward Property pursuant to Section7.1 (the “**Belward Closing Statement**”); and (b) Traville Closing Date, Escrow Agent shalldeliver to Seller and Purchaser a closing statement setting forth the prorations and adjustments tothe Traville Purchase Price with respect to the Traville Property pursuant to Section 7.1(the “**Traville Closing Statement**” and, together with the Belward Closing Statement, the “**ClosingStatements**”). Purchaser and Seller shall have two (2) Business Days after receipt of theapplicable Closing Statement to notify the other party in writing of any changes to such ClosingStatement. If either party fails to notify the other within such two (2) Business Day period, thenthe parties shall have been deemed to have approved such Closing Statement. If Purchaser notifiesSeller within such two (2) Business Day period, then the parties shall endeavor in good faith tocause the changes to be implemented in such Closing Statement.     7.3. Sales Commissions. Seller shall pay a real estate commission to Scheer Partners, Inc.(“**Scheer**”) upon the Belward Closing and the Traville Closing, pursuant to a separate broker’scommission agreement between Scheer and Seller. Except as provided above, Seller and Purchaserrepresent and warrant each to the other that they have not dealt with any other real estate broker,sales person or finder in connection with this transaction. In the event of any claim for broker’sor finder’s fees or commissions in connection with the negotiation, execution or consummation ofthis Agreement or the transactions contemplated hereby, each party shall indemnify and holdharmless the other party from and against any such claim based upon any statement, representationor agreement of such party.     7.4. Pre-Closing Expenses. Seller will not be delinquent in paying, and will not alloweither Property Entity under its Existing Lease to be delinquent in paying, all bills and invoicesfor labor, goods, material and services of any kind relating to the respective Property and utilitycharges (except if and to theextent such utility charges are billed directly to tenants), relating to the period prior to suchClosing.     7.5. Transfer Taxes. In the event that state or local transfer or recordation Taxes arerequired to be paid under Maryland law as a result of the sale of the Belward Membership Interestsor the Traville Membership Interests, Seller hereby indemnifies Purchaser against one-half of anytransfer or recordation Taxes, reconveyance fees and other expenses payable pursuant
 

 
to thistransaction, should any be required. This indemnity shall survive the Closing. Seller shall filein a timely fashion all Tax Returns relating to such Taxes.**ARTICLE 8. REPRESENTATIONS AND WARRANTIES**     8.1. Seller’s Representations and Warranties. As a material inducement to Purchaser toexecute this Agreement and consummate this transaction, Seller represents and warrants to Purchaserthat:          (a) Organization and Authority. Seller has been duly organized, is validly existing,and is in good standing as a Delaware corporation. Seller is in good standing and is qualified todo business in the state in which the Properties are located. Seller has the full right andauthority and has obtained any and all consents required to enter into this Agreement and theSubject Leases and to consummate or cause to be consummated the transactions contemplated hereby.This Agreement has been, and all of the documents to be delivered by Seller at the Closing,including the Subject Leases, will be, authorized and properly executed and constitute, or willconstitute, as appropriate, the valid and binding obligations of Seller, enforceable in accordancewith their terms.          (b) Recitals. All matters set forth in the Recitals A, B, C, D, E, F, G, H, I and Jare true and correct in all material respects as of the date hereof.          (c) Belward and Belward Membership Interests. Belward has been duly organized, isvalidly existing, and is in good standing as a Maryland limited liability company. Belward is ingood standing and is qualified to do business in the state in which Belward Property is located.Seller is the holder of 100% of the membership interests (and beneficial interests) in Belward,free and clear of all liens, encumbrances, claims or liabilities of any kind or nature. There areno membership interests in Belward other than the interests owned by Seller, and there has been noamendment or other modification to the Belward LLC Agreement in effect as of the Effective Date,nor has there been any revocation or termination of the same. Belward does not own, directly orindirectly, any capital stock or other ownership interests in any person or entity. There are nooutstanding options, warrants, calls, rights, commitments or agreements obligating Seller orBelward to issue, deliver or sell any membership interests or other equity interests or beneficialinterests in Belward, and there are no outstanding securities or other rights which are convertibleor exchangeable into any shares, membership interests or other equity interests or beneficialinterests in Belward. Neither Seller nor Belward is subject to any obligation to repurchase orotherwise acquire or retire or to register any shares, membership interests or any other equityinterest or beneficial interest in Belward. Seller is not a party to any equity holder, member,operating, voting or similar arrangements with respect to any shares,membership interests or any other equity interests or beneficial interests in Belward and hasnot granted a proxy, power of attorney or other authority with respect to any shares, membershipinterests or any other equity of Belward to any other person or entity. No action has been takento affect a dissolution or in contemplation of a dissolution of Belward.          (d) Traville and Traville Membership Interests. Traville has been duly organized, isvalidly existing, and is in good standing as a Maryland limited liability company. Traville is ingood standing and is qualified to do business in the state in which Traville Property is located.Seller is the holder of 100% of the membership interests (and beneficial interests) in
 

 
Traville,free and clear of all liens, encumbrances, claims or liabilities of any kind or nature. There areno membership interests in Traville other than the interests owned by Traville Sellers, and therehas been no amendment or other modification to the Traville LLC Agreement in effect as of theEffective Date, nor has there been any revocation or termination of the same. Traville does notown, directly or indirectly, any capital stock or other ownership interests in any person orentity. There are no outstanding options, warrants, calls, rights, commitments or agreementsobligating Seller or Traville to issue, deliver or sale any membership interests or other equityinterests or beneficial interest in Traville, and there are no outstanding securities or otherrights which are convertible or exchangeable into any shares, membership interests or other equityinterests or beneficial interest in Traville. Neither Seller nor Traville is subject to anyobligation to repurchase or otherwise acquire or retire or to register any shares, membershipinterests or any other equity interest or beneficial interest in Traville. Seller is not a partyto any equity holder, member, operating, voting or similar arrangements with respect to any shares,membership interests or any other equity interests or beneficial interest in Traville and has notgranted a proxy, power of attorney or other authority with respect to any shares, membershipinterests or any other equity of Traville to any other person or entity. No action has been takento affect a dissolution or in contemplation of a dissolution of Traville.          (e) Conflicts and Pending Actions or Proceedings. There is no agreement to whichSeller or any Property Entity is a party or, to Seller’s Knowledge, binding on Seller or anyProperty Entity which is in conflict with this Agreement or the Subject Leases, or which challengesor impairs Seller’s ability to execute or perform its obligations under this Agreement or theSubject Leases. There is not now pending or, to the best of Seller’s Knowledge, threatened, anyaction, suit or proceeding before any court or governmental agency or body against (i) Seller thatwould prevent Seller or the Property Entities from performing their obligations hereunder oragainst or with respect to either Property or (ii) either Property Entity or that would affect theProperty Entities operations. Neither Seller nor any Property Entity is subject to any outstandinginjunction, judgment, order, decree or ruling. To Seller’s Knowledge, no condemnation, eminentdomain or similar proceedings are pending or threatened with regard to either Property. Seller andthe Property Entities have not received any notice and to Seller’s Knowledge, there are no pendingor threatened liens, special assessments, impositions or increases in assessed valuations to bemade against either Property.          (f) No Violations. The execution and delivery of this Agreement do not, and theconsummation of the transactions contemplated hereby and compliance by Seller with the provisionshereof will not, conflict with, result in any violation of or default (with or without notice orlapse of time or both) under, give rise to a right of termination, cancellation or acceleration ofany obligation or to the loss of a material benefit under, or result in the creation of any lien onany of Seller’s or any of the Property Entities’ interests, rights or assets under:(a) the Belward LLC Agreement or other organizational documents of Seller or Belward; (b) theTraville LLC Agreement or other organizational documents of Seller or Traville; (c) any loan orcredit agreement, note, bond, mortgage, indenture, lease, permit, concession, franchise, license orother contract, agreement or instrument applicable to Seller or any Property Entity; or (d) anyjudgment, order, decree, statute, law, ordinance, rule or regulation applicable to Seller, anyProperty Entity or any of the Properties.          (g) Belward Lease. Seller is the only tenant at the Belward Property under theExisting Belward Lease. Seller has neither assigned the Existing Belward Lease nor sublet any
 

 
partof the Belward Property and does not hold the Belward Property under an assignment or sublease.All work to be performed for Seller under the Existing Belward Lease or any other agreement hasbeen performed as required and has been accepted by Seller, and all allowances to be paid toSeller, including allowances for tenant improvements, moving expenses or other items, have beenpaid. The Existing Belward Lease is in full force and effect, free from default and free from anyevent which could become a default under the Existing Belward Lease and Seller has no claimsagainst the landlord or offsets or defenses against rent, and there are no disputes with thelandlord. Seller is not currently entitled to any rent abatement. There are no leasing or otherfees or commissions due, nor will any become due, in connection with the Existing Belward Lease,any renewal or extension or expansion of the Existing Belward Lease or the termination of theExisting Belward Lease, nor under any understanding or agreement with any party as to payment ofany leasing commissions or fees regarding future leases or as to the procuring of tenants. Sellerhas the absolute right to terminate the Existing Belward Lease and shall terminate the ExistingBelward Lease prior to the Belward Closing Date.          (h) Traville Ground Lease. Traville is the landlord under the Traville Ground Lease.Traville has not assigned the Traville Ground Lease other than in connection with the TravilleSublease. All work to be performed by Traville under Traville Ground Lease, and all allowances tobe paid to Wachovia, including allowances for tenant improvements, moving expenses or other items,have been paid. The Traville Ground Lease is in full force and effect, free from default and freefrom any event which could become a default under the Traville Ground Lease and to Seller’sKnowledge, Wachovia has no claims against the landlord or offsets or defenses against rent, andthere are no disputes with the landlord. Wachovia is not currently entitled to any rent abatement.There are no leasing or other fees or commissions (other than any fees or other expenses payableto Wachovia or its attorneys in connection with the termination of the Traville Sublease, whichshall be at Seller’s sole cost and expense) due, nor will any become due, in connection with theTraville Ground Lease or the termination of the Traville Ground Lease. Seller has the absoluteright to terminate the Traville Ground Lease prior to the Traville Closing Date.          (i) Traville Sublease. Seller is the only occupant of the Traville HQ Real Propertyunder the Traville Sublease. Seller has not assigned the Traville Sublease to any other person orentity. All work to be performed for Seller under Traville Lease or any other agreement has beenperformed as required and has been accepted by Seller, and all allowances to be paid to Seller,including allowances for tenant improvements, moving expenses or other items, have been paid. TheTraville Sublease is in full force and effect, free from default and free from any event whichcould become a default under the Traville Sublease and Seller has no claims against the landlord oroffsets or defenses against rent, and there are no disputes with the landlord. Seller is notcurrently entitled to any rent abatement. There are no leasing or other feesor commissions (other than any fees or other expenses payable to Wachovia or its attorneys inconnection with the termination of the Traville Sublease, which shall be at Seller’s sole cost andexpense) due, nor will any become due, in connection with the Traville Sublease, any renewal orextension or expansion of the Traville Sublease or the termination of the Traville Sublease, norunder any understanding or agreement with any party as to payment of any leasing commissions orfees regarding future leases or as to the procuring of tenants. Seller has the absolute right toterminate the Traville Sublease and shall terminate the Traville Sublease prior to the TravilleClosing Date.
 

 
          (j) REIT Compliance. During the pendency of this Agreement, neither Property Entityholds any assets other than those listed on Schedule 8.1(j) attached hereto. Specifically,but without limitation, neither Property Entity owns or holds (i) any stock of or other ownershipinterest in a corporation (or other entity treated for federal income tax purposes as anassociation taxable as a corporation) or any ownership interest in a partnership, limited liabilitycompany, trust or other entity, (ii) any debt instrument, (iii) any other security, warrant,option, subscription agreement, or contract for the acquisition of a security within the meaning ofthe Investment Company Act of 1940, as amended, or Code Section 856(c)(4), including withoutlimitation, any security described in Code Section 856(c)(4)(B)(iii)(II) or Code Section856(c)(4)(B)(iii)(III), or (iv) any asset or other property that is stock in trade or otherproperty of a kind which would properly be included in inventory if on hand at the close of thetaxable year or property held primarily for sale to customers in the ordinary course of its tradeor business, within the meaning of Code Section 1221(a)(1). Neither Property Entity (1) owns oroperates a motel or hotel, or (2) conducts any business other than the business of owning andoperating the Properties. Neither Property Entity has received or is entitled to receive anyincome from any source other than the Traville Ground Lease or the Existing Belward Lease.          (k) Contracts; Operating Statements. The list of Contracts to be delivered toPurchaser pursuant to this Agreement is or will be true, correct, and complete as of the date ofits delivery. The documents constituting the Contracts that are delivered to Purchaser are true,correct and complete copies of all of the Contracts affecting either Property. Neither Seller nor,to Seller’s Knowledge, the Property Entities or any other party is in default under any Contract.The Operating Statements to be delivered to Purchaser pursuant to this Agreement will show allitems of income and expense (operating and capital) incurred in connection with Seller’s or theProperty Entities’ ownership, operation, and management of either Property for the periodsindicated and will be true, correct, and complete in all material respects.          (l) Legal Compliance. Seller and the Property Entities have all material licenses,permits and certificates necessary for the use and operation of the Properties and for the conductof the business of Seller and Property Entities, if any, as currently conducted on the respectiveProperties, including, without limitation, all certificates of occupancy necessary for the lawfuloccupancy of the Properties. Neither Seller nor the Property Entities have received written noticethat either Property or the use thereof or either Property Entity violates any governmental law orregulation or any covenants or restrictions encumbering either Property. Neither Seller nor theProperty Entities have received any written notices of violations or alleged violations of anylaws, rules, regulations or codes, including building codes, with respect to the Properties whichhave not been corrected to the satisfaction of the issuer of the notice.          (m) Environmental. Except as set forth in the Schedule 8.1(m), neither Sellernor any Property Entity has knowledge of, and has received no notice of, any violation ofEnvironmental Laws related to the Properties or the presence or release of Hazardous Materials onor from the Properties except as disclosed in the Property Information. Neither Seller nor anyProperty Entity, nor to Seller’s Knowledge, any tenant or other occupant, has used the Propertiesor any part thereof for the release, generation, treatment, storage, handling or disposal of anyHazardous Materials, in violation of any Environmental Laws. There are no underground storagetanks located on the Properties. The term “**Environmental Laws**” includes without limitation theResource Conservation and Recovery Act and the Comprehensive Environmental Response Compensationand Liability Act and other federal laws governing the environment as
 

 
in effect on the date of thisAgreement, together with their implementing regulations, guidelines, rules or orders as of the dateof 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 orthat purport to regulate Hazardous Materials. The term “**Hazardous Materials**” includes petroleum,including crude oil or any fraction thereof, natural gas, natural gas liquids, liquefied naturalgas, or synthetic gas usable for fuel (or mixtures of natural gas or such synthetic gas), and anysubstance, material, waste, pollutant or contaminant listed or defined as hazardous or toxic underany Environmental Law.          (n) Disclosure. Other than this Agreement, the documents delivered at Closingpursuant hereto, the Permitted Exceptions, the Contracts, Section 30 and Exhibit C of the RealEstate Sales Contract dated May 8, 2001, by and between Travilah Park Development Corporation, aMaryland corporation, and Seller, as confirmed by the letter dated April 13, 2006, by the State ofMaryland Office of the Attorney General Educational Affairs Division, and the Amendment to Right ofEntry Agreement dated November 17, 2005, by and between the State of Maryland for the use of theUniversity System of Maryland on behalf of the USM Shady Grove Educational Center and Traville,there are no contracts or agreements of any kind relating to the Properties or the PropertyEntities to which either Property Entity is a party and which would be binding on such PropertyEntity after the respective Closing. Copies of Pertinent Information delivered to Seller pursuantto Section 2.1 hereof are or will be true, correct and complete. Seller has delivered toPurchaser all books, notices, documents and agreements pertaining to the Properties or the PropertyEntities that are in Seller’s, any Property Entity’s or its property manager’s possession. ToSeller’s actual knowledge, the Pertinent Information does not and shall not as of the applicableClosing contain a material misstatement of fact or omit to state a fact necessary in order to makethe statements therein not misleading in any material respect. Seller is not aware of any currentfact or circumstance pertaining to the Property Entities or the condition of the Properties or theProperty Entities that (i) has not been disclosed to Purchaser, or will not be disclosed toPurchaser pursuant to the Pertinent Information, and (ii) has a material adverse impact on eitherProperty or on either Property Entity or the membership interests in the Property Entities.Notwithstanding the foregoing, Purchaser agrees that, so long as Seller discloses the foregoinginformation in a manner which is not misleading in any material respect, Purchaser shall be fullyresponsible for all information that is readily apparent from a review of the Phase One / Phase TwoEnvironmental Assessments delivered to Seller pursuant to Section 2.1, the Survey, theTitle Commitment and the Tenant Estoppels and/or any reports or studies obtained by Purchaser.          (o) Intellectual Property. Schedule 8.1(o) sets forth a complete and accuratelist of all intellectual property rights that are owned by the Property Entities (the “**IntellectualProperty Rights**”). Except as set forth in the Schedule 8.1(o), to Seller’s Knowledge:(i) the Property Entities hold valid and continuing authority in connection with the use of suchIntellectual Property Rights by the Property Entities; (ii) the conduct of the business of theProperty Entities and the use of the Intellectual Property Rights by the Property Entities do notinfringe any intellectual property rights or any other proprietary right of any person; (iii) theProperty Entities have not received any written notice from any other person pertaining to orchallenging the right of the Property Entities to use any of the Intellectual Property Rights; and(iv) the Property Entities do not own or use any Intellectual Property Right pursuant to a licenseand has not granted any Person any rights to use any of the Intellectual Property Rights. TheIntellectual Property Rights constitute all proprietary and technical information, trade secrets,
 

 
patents and patent rights, patent applications, supplier lists and other supplier information,customer lists and other customer information, price lists, advertising and promotional materials,field performance data, research materials, other proprietary intangibles, databases, processes,technical know-how, business and product know-how, engineering and other drawings, designs, plans,methods, engineering and manufacturing specifications, technology, inventions, processes, methods,formulas, procedures, sales history, model numbers, literature and phone numbers, and operating andquality control manuals and data necessary for the lawful conduct of their business as it iscurrently being conducted.          (p) Insurance. Seller maintains for each Property Entity insurance, with financiallysound and reputable insurers, covering such Property Entity in such amounts and covering such risksas are, to Seller’s Knowledge, in accordance with normal industry practice for companies engaged inbusinesses similar to the business and owning properties in the same general area in which theProperty Entities conducts their business. There is no material default with respect to anyprovision contained in any policy or binder with respect to such insurance, nor has any PropertyEntity failed to give any notice or present any claim under such policy or binder in due and timelyfashion.          (q) Taxes.          (i) Filing of Tax Returns and Payment of Taxes. Each of Seller and theProperty Entities has duly and timely filed with the appropriate taxing authorities all TaxReturns required to be filed. All such Tax Returns filed are complete and accurate in allmaterial respects. All material Taxes owed by any of the Property Entities and Seller(whether or not shown on any Tax Return) have been paid. Except as set forth onSchedule 8.1(q), neither Seller nor either Property Entity is currently thebeneficiary of any extension of time within which to file any Tax Return. Except as setforth on Schedule 8.1(q), no material claim has ever been made by an authority in ajurisdiction where any of Property Entities does not file Tax Returns that such entity is ormay be subject to taxation by that jurisdiction.          (ii) Audits, Investigations, Disputes or Claims. No deficiencies for Taxeshave been claimed, proposed or assessed by any Tax authority against Seller or the PropertyEntities. Except as disclosed on Schedule 8.1(q), there are no pending or, to theknowledge of Seller or the Property Entities, threatened audits, investigations, disputes orclaims or other actions for or relating to any liability for Taxes with respect to any ofSeller or the Property Entities, and there are no matters under discussion with anygovernmental authorities, or known to any of Seller or the Property Entities, with respectto Taxes that are likely to result in a material additional liability for Taxes withrespect to Seller or the Property Entities. Seller and the Property Entities have deliveredor made available to Purchaser complete and accurate copies of all examination reports andstatements of deficiencies assessed against or agreed to by any of Seller and the PropertyEntities since December 31, 1998. Except as set forth on Schedule 8.1(q), neitherSeller nor the Property Entities has waived any statute of limitations in respect of Taxesor agreed to any extension of time with respect to a Tax assessment or deficiency.          (iii) Taxes of Other Persons. Except as set forth on Schedule 8.1(q),neither Seller nor the Property Entities has any liability for the Taxes of any person (1)
 

 
under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local orforeign law), (2) as a transferee or successor, (3) by contract, or (4) otherwise.          (iv) Tax Sharing Agreements. There are no Tax-sharing agreements or similararrangements (including indemnity arrangements) with respect to or involving the PropertyEntities, the Membership Interests, the assets of the Property Entities or the businessesconducted by Seller or the Property Entities, and after the respective Closing Date, none ofthe Property Entities, the Membership Interests, the assets of the Property Entities or thebusinesses conducted by Seller or the Property Entities, shall be bound by any suchTax-sharing agreements or similar arrangements or have any Liability thereunder for amountsdue in respect of periods prior to the respective Closing Date.          (v) No Withholding. None of the transactions contemplated hereby are subjectto withholding under Section 1445 of the Code. Each of Seller and the Property Entities haswithheld and paid all Taxes required to have been withheld and paid in connection withamounts paid or owing to any employee, independent contractor, creditor, stockholder orother third party. The transactions contemplated herein are not subject to the taxwithholding provisions of Section 3406 of the Code, or of Subchapter A of Chapter 3 of theCode or of any other provision of law.          (vi) LLC Tax Treatment. At all times since their formation, each of theProperty Entities have been an entity with a single owner that is disregarded as separatefrom Seller for federal tax purposes, and up to and including the respective Closing Date,each of the Property Entities will be an entity with a single owner that is disregarded asseparate from Seller for federal tax purposes. No Form 8832 has ever been filed withrespect to either of the Property Entities as other than a disregarded entity and, as ofsuch Closing Date, no such election shall have been made.          (r) Single Purpose Entity. Belward was formed solely for the purpose of acquiring anddirectly holding a fee ownership in the Belward Property and Traville was formed solely for thepurpose of holding a fee ownership in the Traville Property. Neither Property Entity has everconducted any business other than owning and operating its respective Property and leasing of itsrespective Property. Neither Property Entity has ever made any loan to any other person or entity.Neither Property Entity has ever been a party to any contract or agreement other than as set forthon the list of Contracts to be delivered to Purchaser in accordance with Exhibit C-2.          (s) Employees. Neither Property Entity currently has or at any time has had anyemployees.          (t) Subsidiaries. Neither Property Entity currently has, nor at any time has had, noras of the Closing Date will have, any subsidiaries of any kind, including, without limitation,corporations, limited liability companies or partnerships.          (u) Liabilities Schedule. Neither Property Entity has any liabilities (contingent orotherwise) except as disclosed on Schedule 8.1(u) (the “**Liabilities Schedule**”). TheLiabilities Schedules fairly present in all material respects, as of the dates and for the periodsstated therein, the liabilities of each of the Property Entities. Neither Property Entity has any
 

 
liabilities or obligations of a nature required by GAAP to be disclosed in a financial statement orbalance sheet of such Property Entity, other than as reflected in the Liabilities Schedule.          (v) ERISA. Seller is not and is not acting on behalf of an “employee benefit plan”within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, asamended, a “plan” within the meaning of Section 4975 of the Code or an entity deemed to hold “planassets” within the meaning of 29 C.F.R. § 2510.3-101 of any such employee benefit plan or plans.          (w) No Commission. Other than a real estate commission to Scheer Partners, Inc. whichis paid by Seller pursuant to a separate broker’s commission agreement between Scheer Partners,Inc. and Seller, neither Property Entity has dealt with, nor is dealing with, any real estatebroker, sales person or finder in connection with this transaction and no broker’s or finder’s feesor commissions are payable by either Property Entity in connection with the negotiation, executionor consummation of this Agreement. Seller and Purchaser hereby indemnify, protect and defend andhold the other harmless from and against all losses, claims, costs, expenses and damages(including, but not limited to, reasonable fees of counsel selected by the indemnified party)resulting from the claims of any broker, finder or other such party, other than Scheer Partners,Inc., claiming by, through or under the acts or agreements of the indemnifying party. Theobligations of the parties pursuant to this Section 8.1(w) shall survive Closing or anytermination of this Agreement.          (x) Equipment Leases. Seller has not assigned any of the Equipment Leases to anyother person or entity. Each of the Equipment Leases is in full force and effect, free fromdefault and free from any event which could become a default under such Equipment Lease.          (y) Seller Retained Property and Seller Owned Property. Seller owns the SellerRetained Property and the Seller Owned Property free and clear of all liens, encumbrances, claimsor liabilities of any kind or nature other than the Traville Sublease. Seller has not assigned,sold or conveyed any of the Seller Retained Property or Seller Owned Property to any other personor entity. Seller has the absolute right to assign the Seller Owned Property and shall assign theSeller Owned Property to Purchaser on the respective Closing Date.     8.2. Purchaser’s Representations and Warranties. As a material inducement to Seller toexecute this Agreement and consummate this transaction, Purchaser represents and warrants to Sellerthat:          (a) Organization and Authority. Purchaser has been duly organized and is validlyexisting as a Maryland limited partnership, in good standing and will be qualified to do businessin the state in which the Properties are located on the respective Closing Date. Subject only toobtaining certain internal approvals on or before the expiration of the Due Diligence Period,Purchaser has the full right and authority and has obtained any and all consents required to enterinto this Agreement and the Subject Leases and to consummate or cause to be consummated thetransactions contemplated hereby. This Agreement has been, and all of the documents to bedelivered by Purchaser at the Closing, including the Subject Leases, will be, authorized andproperly executed and constitutes, or will constitute, as appropriate, the valid and bindingobligation of Purchaser, enforceable in accordance with their terms.
 

 
          (b) Conflicts and Pending Action. There is no agreement to which Purchaser is a partyor to Purchaser’s Knowledge binding on Purchaser which is in conflict with this Agreement. Thereis no action or proceeding pending or, to Purchaser’s Knowledge, threatened against Purchaser whichchallenges or impairs Purchaser’s ability to execute or perform its obligations under thisAgreement.     8.3. Survival of Representations and Warranties. The representations and warrantiesset forth in this Article 8 are made as of the Effective Date and are remade as of therespective Closing Date, and such representations and warranties (and any representations andwarranties in any other documents delivered to Purchaser pursuant to the provisions of thisAgreement) shall not be deemed to be merged into or waived by the instruments of Closing. Seller’srepresentations and warranties with respect to each Property and each Closing shall survive therespective Closing Date for a period of twelve (12) months from such date with respect toSections 8.1(a), (b), (g), (h), (i), (l),(m), (n), (p) and (w), for period of two (2) years from such datewith respect to Sections 8.1(c), (d), (e), (f), (j),(k), (o), (r), (t), (u), (v) and (w), andfor a period of 120 days after the expiration of the applicable statute of limitation with respectto Section 8.1(q) (the “**Survival Period**”). No claim for a breach of any of Seller’srepresentations and warranties, or the failure or default of a covenant or agreement of Seller,shall be actionable or payable unless (a) the breach in question results from or is based on acondition, state of facts, or other matter that was not disclosed on or before the respectiveClosing Date to Purchaser by or on behalf of Seller in writing or not disclosed in the PertinentInformation or on or before the respective Closing Date was not within Purchaser’s Knowledge, (b)the valid claims for all such breaches collectively aggregate more than Two Hundred Fifty ThousandDollars ($250,000.00), in which event the full amount of such claims shall be actionable, and (c)written notice containing a description of the specific nature of such breach shall have been givenby Purchaser to Seller before the expiration of the respective Survival Period and an action shallhave been commenced by Purchaser against Seller within fourteen (14) months after the respectiveClosing. Seller shall neither knowingly nor intentionally perform any act, or permit any PropertyEntity to perform any act, that could cause any said representations and warranties to becomeuntrue. Seller shall promptly notify Tenant as soon as it discovers that any representation orwarranty hereunder has become untrue. Notwithstanding anything contained in this Agreement to thecontrary:          (i) If, prior to Closing, Purchaser knows that (1) any of Seller’s representations andwarranties are not true or correct in any material respect as of the Effective Date, or as of theClosing Date (in each case, an “**Incorrect Seller Representation**”), or (2) thatSeller has failed to perform any material covenant and material agreement herein contained (an“**Unperformed Seller Covenant**”), then within five (5) Business Days after Purchaser acquiresPurchaser’s Knowledge of such Incorrect Seller Representation or such Unperformed Seller Covenant,as the case may be, Purchaser shall give Seller written notice describing the same (the “**PurchaserNote**”), and Seller shall have five (5) Business Days from the date of receipt of the Purchaser’sNotice to cure such Incorrect Seller Representation, or such Unperformed Seller Covenant, as thecase may be, and, if necessary, the respective Closing Date will be extended up to five (5)Business Days in order to permit Seller to effect such cure. If Seller fails to effect such curewithin the aforesaid five (5) Business Day period, then Purchaser shall have the right to (a)terminate this Agreement in accordance with the provisions of Section 5.5 hereof (includinga refund of the Earnest Money and any earnings thereon, plus liquidated damages and out of pocketexpenses as set forth in Section 5.5 hereof) or (b) seek specific performance in
 

 
accordancewith the provisions of Section 5.5 hereof. In such case, the respective Closing Date shallbe extended for up to ten (10) days to give Purchaser the opportunity to make such election.          (ii) If prior to Closing, Purchaser knows of any Incorrect Seller Representation orUnperformed Seller Covenant and Purchaser shall nevertheless proceed to Closing notwithstanding thefact, Purchaser shall be deemed to have waived such Incorrect Seller Representation or UnperformedSeller Covenant and Purchaser shall not be entitled to commence any action against Seller afterClosing due to such Incorrect Seller Representation or Unperformed Seller Covenant.          (iii) All references in this Agreement to “**Seller’s Knowledge**,” “**Seller’s actual knowledge**,”or words of similar import shall refer only to the actual (as opposed to deemed, imputed, orconstructive) present knowledge of Alain C. Cappeluti, Vice President, Financial Operations, andJoe Morin, Vice President, Engineering, without inquiry. Messrs. Cappeluti and Morin are theindividuals most knowledgeable about the condition of the Properties. Notwithstanding any fact orcircumstance to the contrary, Seller’s Knowledge shall not be construed to refer to the knowledgeof any other person or entity. Messrs. Cappeluti and Morin are not parties to this Agreement andunder no circumstances shall either of them have personal liability whatsoever under this Agreementor with respect to the transactions contemplated hereunder.          (iv) All references in this Agreement to “**Purchaser’s Knowledge**,” “**Purchaser’s actualknowledge**,” or words of similar import shall refer only to the actual (as opposed to deemed,imputed, or constructive) present knowledge of Gary A. Kreitzer, without inquiry. Purchaser shallalso be deemed to have actual knowledge of all matters disclosed in the Pertinent Information.Notwithstanding any fact or circumstance to the contrary, Purchaser’s Knowledge shall not beconstrued to refer to the knowledge of any other person or entity. Mr. Kreitzer is not a party tothis Agreement and under no circumstances shall he have personal liability whatsoever under thisAgreement or with respect to the transactions contemplated hereunder.     8.4. Properties Sold “As Is”.          (i) General. Except as otherwise expressly provided in this Agreement or thewarranties of title provided in the agreements to be delivered by Seller to Purchaser at Closing(the “**Closing Agreements**”), Seller hereby specifically disclaims any warranty (oral or written)concerning (a) the nature and condition of the Properties and the suitability thereof for any andall activities and uses that Purchaser may elect to conduct thereon; (b) the manner, construction,condition, and state of repair or lack of repair of the Improvements; (c) the nature and extent ofany right-of-way, lien, encumbrance, license, reservation, condition or otherwise; (d) thecompliance of the Properties or their operation with any laws, it being specifically understoodthat Purchaser shall have full opportunity, during the Due Diligence Period, to determine foritself the environmental condition of the Properties; (e) the accuracy of completeness of anystatements, calculations, or conditions stated or set forth in Seller’s books and recordsconcerning the Properties; and (f) any other matter whatsoever except as expressly set forth inthis Agreement. Except as otherwise expressly provided in this Agreement or the ClosingAgreements, the transfer of the Properties and the Membership Interests as provided for herein ismade on a strictly “AS IS” “WHERE IS” “WITH ALL FAULTS” basis as of the Closing Date.
 

 
EXCEPT ASOTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR THE CLOSING AGREEMENTS, PURCHASER EXPRESSLYACKNOWLEDGES THAT, IN CONSIDERATION OF THE AGREEMENTS OF SELLER IN THIS AGREEMENT, SELLER MAKES NOWARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING, BUT INNO WAY LIMITED TO, ANY WARRANTY OF QUANTITY, QUALITY, CONDITION, HABITABILITY, MERCHANTABILITY,SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, ANY IMPROVEMENTS LOCATED THEREON,OR ANY SOIL CONDITIONS RELATED THERETO.          (ii) No Reliance. PURCHASER SPECIFICALLY ACKNOWLEDGES THAT IT IS NOT RELYING ON (ANDSELLER HEREBY DISCLAIMS AND RENOUNCES) ANY REPRESENTATIONS OR WARRANTIES MADE BY OR ON BEHALF OFSELLER OF ANY KIND OR NATURE WHATSOEVER, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENTOR THE CLOSING AGREEMENTS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR THE CLOSINGAGREEMENTS, PURCHASER FOR ITSELF AND IT’S SUCCESSORS AND ASSIGNS, HEREBY RELEASES SELLER, AND ITSSUCCESSORS AND ASSIGNS, FROM AND WAIVES ANY AND ALL CLAIMS AND LIABILITIES AGAINST SELLER FOR,RELATED TO, OR IN CONNECTION WITH, ANY ENVIRONMENTAL CONDITION AT THE PROPERTIES (OR THE PRESENCEOF ANY MATTER OR SUBSTANCE RELATING TO THE ENVIRONMENTAL CONDITION OF THE PROPERTY), INCLUDING, BUTNOT LIMITED TO, CLAIMS AND/OR LIABILITIES RELATING TO (IN ANY MANNER WHATSOEVER) ANY HAZARDOUS,TOXIC OR DANGEROUS MATERIALS OR SUBSTANCES LOCATED IN, AT, ABOUT, OR UNDER THE PROPERTIES, OR FORANY AND ALL CLAIMS OR CAUSES OF ACTION (ACTUAL OR THREATENED) BASED ON, IN CONNECTION WITH, ORARISING OUT OF ENVIRONMENTAL LAW OR ANY OTHER CLAIM OR CAUSE OF ACTION (INCLUDING ANY FEDERAL ORSTATE BASED STATUTORY, REGULATORY, OR COMMON LAW CAUSE OF ACTION) RELATED TO ENVIRONMENTAL MATTERSOR LIABILITY WITH RESPECT TO OR AFFECTING THE PROPERTIES. PURCHASER REPRESENTS TO SELLER THATPURCHASER HAS CONDUCTED, OR WILL CONDUCT BEFORE CLOSING, SUCH INVESTIGATIONS OF THE PROPERTIES WITHQUALIFIED PROFESSIONALS OF ITS OWN SELECTION, INCLUDING BUT NOT LIMITED TO, THE PHYSICAL ANDENVIRONMENTAL CONDITIONS THEREOF, AS PURCHASER DEEMS NECESSARY TO SATISFY ITSELF AS TO THECONDITION OF THE PROPERTIES AND THE EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN WITHRESPECT TO ANY HAZARDOUS SUBSTANCES ON OR DISCHARGED OR RELATED FROM THE PROPERTIES AND WILL RELYSOLELY ON SAME AND NOT ON ANY INFORMATION PROVIDED BY OR ON BEHALF OF THE SELLER OR SELLER’S AGENTSOR EMPLOYEES WITH RESPECT THERETO, OTHER THAN SUCH REPRESENTATIONS, WARRANTIES, AND COVENANTS OFSELLER AS ARE EXPRESSLY SET FORTH IN THIS AGREEMENT OR THE CLOSING AGREEMENTS. UPON CLOSING,EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR THE CLOSING AGREEMENTS, PURCHASER SHALLASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION DEFECTS ANDADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S
 

 
INVESTIGATIONS, AND PURCHASER, ON CLOSING, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED, ANDRELEASED SELLER AND ITS SUCCESSORS AND ASSIGNS, FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS,CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT), LOSSES, DAMAGES, LIABILITIES, COSTS ANDEXPENSES (INCLUDING ATTORNEYS’ FEES AND COURT COSTS OF ANY AND EVERY KIND OR CHARACTER, KNOWN ORUNKNOWN), WHICH PURCHASER MIGHT HAVE ASSERTED OR ALLEGED AGAINST SELLER, AT ANY TIME BY REASON OFOR ARISING OUT OF ANY LATENT OR PATENT CONSTRUCTION DEFECTS OR PHYSICAL CONDITIONS, VIOLATION OFANY APPLICABLE LAWS (INCLUDING, WITHOUT LIMITATION, ANY ENVIRONMENTAL LAWS) AND ANY AND ALL OTHERACTS, OMISSIONS, EVENTS, CIRCUMSTANCES, OR MATTERS REGARDING THE PROPERTIES. EXCEPT AS OTHERWISEEXPRESSLY PROVIDED IN THIS AGREEMENT OR THE CLOSING AGREEMENTS, PURCHASER HEREBY RELEASES SELLERFROM ANY OBLIGATION OR RESPONSIBILITY FOR ANY CLEANUP, REMEDIATION, OR REMOVAL OF HAZARDOUSSUBSTANCES OR OTHER ENVIRONMENTAL CONDITIONS ON THE PROPERTIES SHOULD THE SAME BE REQUIRED AFTERTHE CLOSING DATE.          (iii) Inducement. PURCHASER ACKNOWLEDGES AND AGREES THAT THE PROVISIONS CONTAINED INTHIS ARTICLE WERE A MATERIAL FACTOR IN SELLER’S ACCEPTANCE OF THE PURCHASE PRICE AND THAT SELLERWAS UNWILLING TO SELL THE PROPERTIES OR THE MEMBERSHIP INTERESTS TO PURCHASER UNLESS SELLER ISRELEASED AS EXPRESSLY SET FORTH ABOVE. PURCHASER WITH PURCHASER’S COUNSEL, HAS FULLY REVIEWED THEDISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT, AND UNDERSTANDS THE SIGNIFICANCE AND EFFECTTHEREOF. PURCHASER ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH INTHIS AGREEMENT ARE AN INTEGRAL PART OF THIS AGREEMENT, AND THAT SELLER WOULD NOT HAVE AGREED TOSELL THE PROPERTIES OR THE MEMBERSHIP INTERESTS TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THEDISCLAIMER AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT. THE TERMS AND CONDITIONS OF THISSECTION WILL EXPRESSLY SURVIVE THE CLOSING AND WILL NOT MERGE WITH THEPROVISIONS OF THE CLOSING DOCUMENTS, INCLUDING, BUT NOT LIMITED TO, THE APPLICABLE CONVEYANCEDOCUMENTS .**ARTICLE 9. MISCELLANEOUS**     9.1. Indemnification. Seller shall defend, indemnify and hold harmless Purchaser from andagainst any liability, damages, claims or causes of action: (a) against the Property Entitiesarising prior to the Closing Date, (b) against any challenge of the ownership of the MembershipInterests, or (c) as a result of a breach of Seller’s representations and warranties in thisAgreement or any instrument delivered pursuant to this Agreement, including, without limitation,the Seller’s Closing Certificate. If Seller fails to discharge or undertake to defend against suchliability, upon receipt of written notice from Purchaser of such failure, Seller shall have fifteen(15) days (the “**Defense Cure Period**”) to cure such failure by prosecuting such a defense. IfSeller fails to do so within the Defense Cure Period, then Purchaser may settle the same andSeller’s liability to Purchaser shall be conclusively established by such settlement
 

 
provided that such settlement is entered into on commercially reasonable terms and conditions, theamount of such liability to include both the settlement consideration and the costs and expenses(including attorneys’ fees) incurred by Seller in effecting such settlement.     9.2. Parties Bound. Neither party may assign this Agreement without the prior writtenconsent of the other, and any such prohibited assignment shall be void; provided, however, thatPurchaser may assign this Agreement without Seller’s consent to an Affiliate (including withoutlimitation BioMed Realty Trust, Inc). Subject to the foregoing, this Agreement shall be bindingupon and inure to the benefit of the respective legal representatives, successors, assigns, heirs,and devisees of the parties. For the purposes of this paragraph, the term “**Affiliate**” means (a) anentity that directly or indirectly controls, is controlled by or is under common control withPurchaser or (b) a partnership or other entity in which Purchaser or an entity described in (a) isa partner or other owner; and the term “control” means the power to direct the management of suchentity through voting rights, ownership or contractual obligations.     9.3. Headings. The article and paragraph headings of this Agreement are forconvenience only and in no way limit or enlarge the scope or meaning of the language hereof.     9.4. Expenses. Except as otherwise expressly provided herein, each party hereto shallpay its own expenses incident to this Agreement and the transactions contemplated hereunder,including all legal and accounting fees and disbursements. Any expenses incident to this Agreementand the transactions contemplated hereunder that would be borne by the Property Entities shallinstead be born by Seller.     9.5. Invalidity and Waiver. If any portion of this Agreement is held invalid orinoperative, then so far as is reasonable and possible the remainder of this Agreement shall bedeemed valid and operative, and, to the greatest extent legally possible, effect shall be given tothe intent manifested by the portion held invalid or inoperative. The failure by either party toenforce against the other any term or provision of this Agreement shall not be deemed to be awaiver of such party’s right to enforce against the other party the same or any other such term orprovision in the future.     9.6. Governing Law. This Agreement shall, in all respects, be governed, construed,applied, and enforced in accordance with the law of the State of Maryland.     9.7. Survival. The provisions of this Agreement and the obligations of the partiesnot fully performed at any Closing shall survive such Closing and shall not be deemed to be mergedinto or waived by the instruments of Closing. For the avoidance of doubt, this means that if thisAgreement terminates after the Belward Closing, but before the Traville Closing, then therepresentations and warranties set forth herein with respect to the Belward Closing shall survivesuch termination.     9.8. No Third Party Beneficiary. This Agreement is not intended to give or confer anybenefits, rights, privileges, claims, actions, or remedies to any person or entity as a third partybeneficiary, decree, or otherwise.     9.9. Entirety and Amendments. This Agreement embodies the entire agreement betweenthe parties and supersedes all prior agreements and understandings relating to the Properties orthe Property Entities. This Agreement may be amended or supplemented only in
 

 
writing by a non-electronic instrument executed by the party against whom enforcement issought. For the avoidance of doubt, copies of signed instruments that are electronicallytransmitted constitute a writing for this purpose.     9.10. Time of the Essence. Time is of the essence in the performance of thisAgreement.     9.11. Time. All times, whenever specified herein, shall be prevailing local time inMontgomery County, Maryland.     9.12. Confidentiality. Subject to Section 9.13, Seller agrees to keep allnegotiations and the terms of this Agreement confidential, and shall not disclose such terms to anyperson, without the prior written approval of Purchaser. The foregoing indemnity obligations shallsurvive the termination of this Agreement and the Closing.     9.13. Press Release. Until the Closing, neither Seller nor Purchaser will release orcause or permit to be released any press notices, or publicity (oral or written) or advertisingpromotion relating to, or otherwise announce or disclose or cause or permit to be announced ordisclosed, in any manner whatsoever, the terms, conditions or substance of this Agreement withoutfirst obtaining the written consent of the other party except those disclosures that are requiredby securities law(s), including the Securities Act of 1933, or contractual obligation (in whichcase notice shall be timely provided to the other party of such requirement and disclosure). TheSeller and Purchaser shall cooperate in preparing the form and substance of any press notices. Theforegoing shall not preclude either party from discussing the substance or any relevant details ofsuch transactions with any of its attorneys, accountants, professional consultants, lenders,partners, investors, or any prospective lender, partner or investor, as the case may be, or preventeither party hereto, from complying with laws, rules, regulations and court orders, includingwithout limitation, governmental regulatory, disclosure, tax and reporting requirements, or fromSeller making disclosures in the ordinary course of its due diligence inspections and contacts withthird parties related thereto. Notwithstanding the foregoing but subject to any ConfidentialityAgreement, any party to this transaction (and each employee, agent or representative of theforegoing) may disclose to any and all persons, without limitation of any kind, the tax treatmentand tax structure of the transaction and all materials of any kind (including opinions or other taxanalyses) that are provided to them relating to such tax treatment and tax structure except to theextent maintaining such confidentiality is necessary to comply with any applicable federal or statesecurities laws. The authorization in the preceding sentence is not intended to permit disclosureof any other information unrelated to the tax treatment and tax structure of the transactionincluding (without limitation) (a) any portion of the transaction documents or related materials tothe extent not related to the tax treatment or tax structure of the transaction, (b) the existenceor status of any negotiations unrelated to the tax issues, or (c) any other term or detail notrelevant to the tax treatment or the tax structure of the transaction.     9.14. Attorneys’ Fees. Should either party employ attorneys to enforce judicially anyof the provisions hereof, the non-prevailing party agrees to pay the prevailing party allreasonable costs, charges, and expenses, including reasonable attorneys’ fees, expended or incurredby the prevailing party in connection with any such litigation.
 

 
     9.15. Notices. All notices required or permitted hereunder shall be in writing andshall be served on the parties at the addresses set forth in Exhibit M. Any such noticesshall be either (a) sent by overnight delivery using a nationally recognized overnight courier, inwhich case notice shall be deemed delivered one Business Day after deposit with such courier, (b)sent by facsimile, in which case notice shall be deemed delivered upon transmission of such noticewith confirmed receipt by the sender’s machine on a Business Day during regular business hours (9a.m.-6:00 p.m. eastern time), or (c) sent by personal delivery, in which case notice shall bedeemed delivered upon receipt or refusal of delivery. A party’s address may be changed by writtennotice to the other party; provided, however, that no notice of a change of address shall beeffective until actual receipt of such notice. Copies of notices are for informational purposesonly, and a failure to give or receive copies of any notice shall not be deemed a failure to givenotice. The attorney for a party has the authority to send notices on behalf of such party.     9.16. Construction. The parties acknowledge that the parties and their counsel havereviewed and revised this Agreement and that the normal rule of construction to the effect that anyambiguities are to be resolved against the drafting party shall not be employed in theinterpretation of this Agreement or any exhibits or amendments hereto.     9.17. Remedies Cumulative. Except as expressly provided to the contrary in thisAgreement, the remedies provided in this Agreement shall be cumulative and shall not preclude theassertion or exercise of any other rights or remedies available by law, in equity or otherwise.     9.18. Calculation of Time Periods. Unless otherwise specified, in computing anyperiod of time described herein, the day of the act or event after which the designated period oftime begins to run is not to be included and the last day of the period so computed is to beincluded, unless such last day is a Saturday, Sunday or legal holiday for national banks in thelocation where the Properties are located, in which event the period shall run until the end of thenext day which is neither a Saturday, Sunday, or legal holiday. The last day of any period of timedescribed herein and the time during any day by which an event must occur shall be deemed to end at5 p.m.     9.19. Tax Matters.          (a) Books & Records; Cooperation. Purchaser, on one hand, and Seller, on the otherhand, agree to furnish or cause to be furnished to the other, upon request, as promptly aspracticable, such information and assistance relating to the Membership Interests and the assets ofthe Property Entities, including, without limitation, access to books and records, as is reasonablynecessary for the filing of all Tax Returns by Purchaser, and the Property Entities, the making ofany election relating to Taxes, the preparation for any audit by any taxing authority, and theprosecution or defense of any claim, suit or proceeding relating to any Taxes. Each of Purchaser,on one hand, and Seller, on the other hand, shall retain all books and records with respect toTaxes pertaining to the Membership Interests and the assets of the Property Entities, for a periodof at least seven (7) years following the respective Closing Date. At the end of such period, eachparty shall provide the other with at least ten (10) days prior written notice before transferring,destroying or discarding any such books and records, during which period the party receiving suchnotice can elect to take possession, at its own expense, of such books and records. Purchaser, onone hand, and Seller, on the other hand, shall cooperate fully with the other in the conduct of anyaudit, litigation or other proceeding relating to Taxes involving the Membership
 

 
Interests and the assets of the Property Entities. Purchaser, on one hand, and Seller, on theother hand, further agree, upon request, to use their reasonable best efforts to obtain anycertificate or other document from any governmental authority or any other Person as may benecessary to mitigate, reduce or eliminate any Tax that could be imposed (including, but notlimited to, with respect to the transactions contemplated hereby).          (b) Allocation of Taxes. Except as otherwise provided in Section 7.5 hereofrelating to Transfer Taxes, Seller shall be responsible for and shall promptly pay when due allTaxes levied with respect to the Membership Interests and the assets of the Property Entitiesattributable to any Tax period ending on or before the respective Closing Date and the portion ofany Straddle Period (as hereinafter defined) ending on such Closing Date (a “**Pre-Closing TaxPeriod**”).          All Taxes levied with respect to the Membership Interests and the assets of the PropertyEntities for any Tax period beginning before and ending after the respective Closing Date (a“**Straddle Period**”) shall be apportioned between the Pre-Closing Tax Period and any Tax periodbeginning after such Closing Date and that portion of any Straddle Period beginning after suchClosing Date (a “**Post-Closing Tax Period**”), as follows:          (i) in the case of any Taxes other than Taxes based upon or related to income orreceipts, the portion allocable to the Pre-Closing Tax Period shall be deemed to be theamount of such Tax for the entire Straddle Period multiplied by a fraction the numerator ofwhich is the number of days in the Tax period ending on the respective Closing Date and thedenominator of which is the number of days in the entire Straddle Period, and          (ii) in the case of any Tax based upon or related to income or receipts, the portionallocable to the Pre-Closing Tax Period shall be deemed equal to the amount which would bepayable if the relevant Straddle Period ended on the respective Closing Date.          Upon receipt of any bill for such Taxes relating to the Membership Interests or the assets ofthe Property Entities, Purchaser, on one hand, and Seller, on the other hand, shall present astatement to the other setting forth the amount of reimbursement to which each is entitled underthis Section 9.19 together with such supporting evidence as is reasonably necessary tocalculate the proration amount. The proration amount shall be paid by the party owing it to theother within ten (10) days after delivery of such statement. In the event that Purchaser or Sellershall make any payment for which it is entitled to reimbursement under this Section 9.19,the applicable party shall make such reimbursement promptly but in no event later than ten (10)days after the presentation of a statement setting forth the amount of reimbursement to which thepresenting party is entitled along with such supporting evidence as is reasonably necessary tocalculate the amount of reimbursement. Notwithstanding the foregoing, Purchaser shall not beliable and Seller shall indemnify and hold Purchaser harmless for (i) any Taxes of Seller or theProperty Entities levied with respect to the Membership Interests and the assets of the PropertyEntities attributable to Pre-Closing Tax Periods, or (ii) any other Taxes of Seller for any period.
 

 
          (c) Notices. Seller shall promptly notify Purchaser in writing upon receipt by Sellerof notice of any pending or threatened federal, state, local or foreign Tax audits or assessmentsrelating to the income, properties or operations of Seller that reasonably may be expected torelate to the Membership Interests or the assets or business of the Property Entities.          (d) Characterization of Indemnification Payments. Any indemnification payments madeto Purchaser or Seller pursuant to this Agreement shall constitute an adjustment of theconsideration paid under this Agreement for Tax purposes and shall be treated as such by Purchaserand Seller on their Tax Returns to the extent permitted by law.     9.20. Execution in Counterparts. This Agreement may be executed in any number ofcounterparts, each of which shall be deemed to be an original, and all of such counterparts shallconstitute one Agreement. To facilitate execution of this Agreement, the parties may execute andexchange by telephone facsimile counterparts of the signature pages.     9.21. Further Assurances. In addition to the acts and deeds recited herein andcontemplated to be performed, executed or delivered by either party at Closing, each party agreesto perform, execute and deliver, on or after the Closing any further actions, documents, and willobtain such consents, as may be reasonably necessary or as may be reasonably requested to fullyeffectuate the purposes, terms and conditions of this Agreement or to further perfect theconveyance, transfer and assignment of the Membership Interests to Purchaser.     9.22. Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIESHEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OFOR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.     9.23. Damages. The parties waive any and all rights they may have to punitive,special, exemplary, or consequential damages, INCLUDING LOSS OF STOCK VALUE, in respect of anydispute based on this AGREEMENT; provided, however, such waiver shall not apply toTHE RIGHT OF EITHER PARTY TO RECEIVE LIQUIDATED DAMAGES IN ACCORDANCE WITH Sections 5.4(a)and 5.5(a) HEREOF.     9.24. Disclosure Addendum. In connection with the execution of this Agreement,Purchaser shall execute that certain Disclosure Addendum substantially in the form of ExhibitR.[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
 

 
     IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as of the Effective Date.           **SELLER:**   **PURCHASER:**             **HUMAN GENOME SCIENCES, INC.,**   **BIOMED REALTY, L.P.,**  a Delaware corporation   a Maryland limited partnership             By      /s/ H. THOMAS WATKINS Name: H. Thomas Watkins   By      /s/ ALAN D. GOLD      Name: Alan D. Gold    Title: President and ChiefExecutive Officer          Title: President and Chief Executive Officer  [SIGNATUREPAGE: HGS PURCHASE AND SALE AGREEMENT]