Exhibit 10.1


 


REAL ESTATE PURCHASE AGREEMENT


 


between


 


830
WINTER STREET LLC

as Seller


 


and


 


INTERCONTINENTAL
REAL ESTATE INVESTMENT FUND III, LLC

as
Purchaser


 


of


 


830
Winter Street, Waltham, Massachusetts


 





















 


Table
of Contents


 


	
  1.

  	
  Property Identification

  	
   

  
	
   

  	
   

  	
   

  
	
  2.

  	
  Purchase
  Price

  	
   

  
	
   

  	
   

  	
   

  
	
  3.

  	
  Deposit

  	
   

  
	
   

  	
   

  	
   

  
	
  4.

  	
  Title and Survey Matters

  	
   

  
	
   

  	
  4.1

  	
  Update of Title and Survey

  	
   

  
	
   

  	
  4.2

  	
  Approval of Title and Survey

  	
   

  
	
   

  	
   

  	
   

  
	
  5.

  	
  Inspection;
  Property Contracts

  	
   

  
	
   

  	
  5.1

  	
  Access

  	
   

  
	
   

  	
  5.2

  	
  Termination of Property Contracts

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  Conditions
  Precedent, Casualty Damage or Condemnation

  	
   

  
	
   

  	
  6.1

  	
  Conditions Precedent

  	
   

  
	
   

  	
  6.2

  	
  Seller’s Obligations

  	
   

  
	
   

  	
  6.3

  	
  Risk of Loss

  	
   

  
	
   

  	
  6.4

  	
  Condemnation

  	
   

  
	
   

  	
  6.5

  	
  Leasing & Other Activities Prior to Closing

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
  Representations,
  Warranties and Covenants

  	
   

  
	
   

  	
  7.1

  	
  Seller’s Representations

  	
   

  
	
   

  	
  7.2

  	
  Seller; Seller’s Knowledge

  	
   

  
	
   

  	
  7.3

  	
  Purchaser’s Representations

  	
   

  
	
   

  	
  7.4

  	
  Property Conveyed “As Is”

  	
   

  
	
   

  	
  7.5

  	
  Certain Reports

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
  Closing

  	
   

  
	
   

  	
  8.1

  	
  Closing Date

  	
   

  
	
   

  	
  8.2

  	
  Seller’s Deliveries

  	
   

  
	
   

  	
  8.3

  	
  Purchaser’s Deliveries

  	
   

  
	
   

  	
  8.4

  	
  Costs and Prorations

  	
   

  
	
   

  	
  8.5

  	
  Possession

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
  Praecis Lease

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
  Real Estate
  Commissions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  11.

  	
  Termination
  and Default

  	
   

  
	
   

  	
  11.1

  	
  Termination by Purchaser

  	
   

  
	
   

  	
  11.2

  	
  Purchaser’s Default

  	
   

  
	
   

  	
  11.3

  	
  Seller’s Default

  	
   

  



 


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  12.

  	
  Miscellaneous

  	
   

  
	
   

  	
  12.1

  	
  Entire Agreement

  	
   

  
	
   

  	
  12.2

  	
  Binding On Successors and Assigns

  	
   

  
	
   

  	
  12.3

  	
  Assignment by Purchaser

  	
   

  
	
   

  	
  12.4

  	
  Waiver

  	
   

  
	
   

  	
  12.5

  	
  Governing Law; Consent to Jurisdiction

  	
   

  
	
   

  	
  12.6

  	
  Counterparts

  	
   

  
	
   

  	
  12.7

  	
  Notices

  	
   

  
	
   

  	
  12.8

  	
  Attorneys’ Fees

  	
   

  
	
   

  	
  12.9

  	
  IRS Real Estate Sales Reporting

  	
   

  
	
   

  	
  12.10

  	
  Time Periods

  	
   

  
	
   

  	
  12.11

  	
  Modification of Agreement

  	
   

  
	
   

  	
  12.12

  	
  Further Instruments

  	
   

  
	
   

  	
  12.13

  	
  Descriptive Headings

  	
   

  
	
   

  	
  12.14

  	
  Time of the Essence

  	
   

  
	
   

  	
  12.15

  	
  Business Day

  	
   

  
	
   

  	
  12.16

  	
  Construction of Agreement

  	
   

  
	
   

  	
  12.17

  	
  Execution by Officer of Seller

  	
   

  
	
   

  	
  12.18

  	
  Execution by Officer of Purchaser

  	
   

  
	
   

  	
  12.19

  	
  JURY TRIAL WAIVER

  	
   

  
	
   

  	
  12.20

  	
  Survival

  	
   

  
	
   

  	
  12.21

  	
  Submission Not an Offer or Option

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  13.

  	
  General
  Escrow Provisions

  	
   

  



 


ii





















 


REAL
ESTATE PURCHASE AGREEMENT


 


THIS REAL ESTATE PURCHASE
AGREEMENT (this “Agreement”) is entered into as of October 11,
2005, by and between 830 Winter Street LLC, a Delaware limited liability company
(the “Seller”), with an address of 830 Winter St., Waltham,
Massachusetts  02451, and Intercontinental Real Estate Investment Fund
III, LLC, a Massachusetts limited liability company  (the
“Purchaser”), with an address at 1270
Soldiers Field Road, Boston, Massachusetts, 02135.


 


1.                                 Property
Identification.  Subject to the terms
and provisions hereof, Seller agrees to sell to Purchaser, and Purchaser agrees
to purchase from Seller:


 


(a)                                  Fee
simple title to all of the land located at 830 Winter Street, Waltham, Massachusetts, more particularly
described on Exhibit 1(a) attached
hereto, together with all privileges, rights, easements, and appurtenances
belonging to such land and all right, title and interest (if any) of Seller in
and to any streets, alleys, passages, and other rights-of-way or appurtenances
included in, adjacent to or used in connection with such land and all right,
title and interest (if any) of Seller in all mineral and development rights
appurtenant to such land (collectively, the “Land”).


 


(b)                                 The
three (3) story office/laboratory building containing approximately 179,855 square feet (as per the
modified BOMA standards) of floor area located on the Land and all other
structures and other improvements situated upon the Land and all fixtures,
systems and facilities owned by Seller and located on the Land (collectively,
the “Improvements”).


 


(c)                                  All
furniture, equipment, machinery, inventories, supplies, signs and other
tangible personal property of every kind and nature, if any, owned by Seller
and installed, located at or used in connection with the operation of the Land
or Improvements, including the tangible personal property listed on Exhibit 1(c) attached hereto, but
specifically excluding those items of personal property set forth on the
attached Exhibit 1(c-1)  (collectively, the “Personal Property”).


 


(d)                                 All
of Seller’s right, title and interest, if any, in all intangible assets of any
nature relating to the Land, the Improvements or the Personal Property,
including, without limitation, all of Seller’s right, title and interest in all
(i) warranties, guaranties and indemnities by and claims against third
parties relating to components of the Improvements or Personal Property
(including without limitation, any guarantees or warranties, if any, with
respect to the roof, heating system and other building systems), (ii) licenses,
permits, approvals, development rights, certificates, variances, consents and
similar documents evidencing rights relating to the Land or the Improvements, (iii) logos
and trade names currently used in the operation of the Land and Improvements,
and (iv) plans, specifications, drawings, surveys, engineering and other
design products, soils (including borings) tests and reports, project budgets
and schedules, and other technical descriptions and documents relating to the
Land, Improvements and Personal Property, in each case only to the extent that
Seller has such items in its possession or within its


 





















 


control after reasonable
efforts and may legally transfer the same (collectively, the “Intangible
Property”).


 


(e)                                  All
of Seller’s rights, if any, in all service, supply and equipment rental
contracts affecting the Land or Improvements (collectively, the “Property
Contracts”) including, without limitation, those Property Contracts listed
on Exhibit 1(f) attached
hereto, to the extent Seller is entitled to transfer the same to Purchaser and
Purchaser does not elect to have Seller terminate them in accordance with Section 5.2
below.


 


The Land and Improvements are hereinafter sometimes
referred to collectively as the “Real Property” and the Real Property,
Personal Property, Intangible Property and Property Contracts are hereinafter
sometimes referred to collectively as the “Property.”


 


2.                                 Purchase
Price.  The purchase price for the
Property (the “Purchase Price”) shall be Fifty-One Million Two Hundred
Fifty Thousand and 00/100 Dollars ($51,250,000.00).  The Purchase Price, subject to adjustment as
provided herein, shall be paid on the Closing Date (as defined below) by wire
transfer of immediately available federal funds.


 


3.                                 Deposit.  Purchaser has heretofore deposited One
Million and 00/100 Dollars ($1,000,000) in escrow (the “Initial Deposit”)with
the Escrow Agent (defined below) which is being held, and will continue to be
held, as set forth below.  Within two (2) days
of receipt by Purchaser of a fully executed, counterpart original of this
Agreement, Purchaser shall deposit,  by
wire transfer or check, an additional One Million and 00/100 Dollars ($1,000,000)
(together with the Initial Deposit, the “Deposit”) with First American Title
Insurance Company  (the “Escrow Agent”),
having an address at Prudential Center, 101 Huntington Avenue, Boston, MA  02199. 
The Deposit has and shall continue to be held in a segregated,
interest-bearing account reasonably approved by Seller and Purchaser.  The Deposit (including any interest earned
thereon) shall be applied to the Purchase Price if the Closing occurs.  In the event that the Closing does not occur
by the Closing Date (as defined below), interest on the Deposit shall be paid
to the party entitled to receive the Deposit in accordance with the terms of
this Agreement.  Any taxes due on such
interest income shall be the sole responsibility of Purchaser.  Purchaser will provide to the Escrow Agent a
form W-9 for the reporting of such interest income.


 


4.                                 Title
and Survey Matters.


 


4.1                                 Update
of Title and Survey.  Purchaser has
performed all survey diligence that it desires to undertake, and has caused to
be issued a commitment for an owner’s policy of title insurance (the “Title
Commitment”), in the amount of the Purchase Price, issued by the Escrow
Agent (the “Title Company”), a copy of which is attached hereto as Exhibit 4.1.


 


4.2                                 Approval
of Title and Survey.


 


(a)                                  As
used herein, the term “Permitted Exceptions” means: (i) all matters
shown on Schedule B — Section 2 of the Title Commitment, except for
Items 3 and 4 (but with respect to Item 4, subject to clause (ii) below), and
all matters that would be shown by an ALTA/ACSM survey of the Real Property performed
as of the date


 


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hereof; and (ii) all
matters, whether or not of record, to the extent caused by Purchaser or its
agents, representatives or contractors.


 


(b)                                 If,
after the date of this Agreement, title to the Real Property becomes encumbered
by any matter (including, without limitation, an attachment or lis pendens)
other than a Permitted Exception, Seller shall use reasonable efforts to
correct any such encumbrance, except that (i) Seller shall in no event be
required to bring suit or otherwise initiate any legal proceedings to clear any
such encumbrance and (ii) other than for any Seller Encumbrances (as
defined below), Seller shall not be required to expend more than a total of
Twenty Thousand Dollars ($20,000.00) to cure such encumbrances.  If, despite such reasonable efforts, Seller
does not remove (by bonding or otherwise) any such encumbrance to the
reasonable satisfaction of the Title Company on or prior to the Closing Date
(as the same may be extended as set forth below), then Purchaser shall have the
option, exercisable by written notice delivered to Seller by 10:00 A.M. on
the Closing Date, of either (y) accepting the title as it then is and closing
or (z) terminating this Agreement, in which event the Deposit shall be
returned immediately to Purchaser and Seller shall reimburse Purchaser for
Purchaser’s documented reasonable out-of-pocket third party diligence expenses
related to the Property not to exceed $25,000, and thereupon, neither party
shall have any further obligation or liabilities under this Agreement, except
as otherwise stated herein.  As used
herein, the term “Seller Encumbrance” shall mean (1) any mortgage
or deed of trust or other monetary lien voluntarily granted or expressly
assumed by Seller and encumbering the Property or (2) any and all
judgments or mechanic’s or supplier’s liens encumbering the Property arising
from work performed or materials furnished at the Property by or on behalf of
Seller.  In any event, all Seller
Encumbrances must be satisfied by Seller on or prior to the Closing Date (as
the same may be extended as set forth below) or, if not so satisfied, shall be
satisfied at Closing out of the proceeds otherwise payable to Seller.


 


(c)                                  If,
despite reasonable efforts consistent with the foregoing provisions of this Section 4.2,
Seller is unable to cure any encumbrance which arises after the date of this
Agreement, other than a Permitted Exception, in each case prior to the
scheduled Closing Date, and such title or survey objection or encumbrance can
reasonably be cured within thirty (30) days of the scheduled Closing Date with
reasonable efforts consistent with the foregoing provisions of this Section 4.2
(i.e. limit on expenditures of Twenty Thousand Dollars ($20,000.00) and no
obligation to bring suit, etc.), Seller shall have the right to extend the
Closing Date for a period of up to thirty (30) days exercisable by written
notice to the Purchaser received by Purchaser by 5:00 P.M. on the last
Business Day prior to the Closing Date (an “Extension Notice”) in order
to provide additional time for such cure. 
Upon exercise of any such extension right, the term “Closing Date” as
used herein shall mean the date set forth in such Extension Notice.  During such extended period, Seller shall
continue to use commercially reasonable efforts consistent with the foregoing
provisions of this Section 4.2 to cure such matters.


 


(d)                                 Seller
agrees that after the date hereof through the Closing or termination of this
Agreement, Seller shall not solicit offers from other parties for the purchase
of the Property or any interest therein.


 


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5.                                 Inspection;
Property Contracts.


 


5.1                                 Access.


 


(a)                                  Purchaser
acknowledges that it, or its duly authorized agents or representatives, have
received (i) copies of all applicable books and financial records relating
to the Property and the operation and maintenance thereof, and (ii) the
items listed on Exhibit 5.1,
in each case to the extent currently within Seller’s possession or control or
available to Seller after reasonable inquiry or effort (collectively, the “Inspection
Records”).  Seller makes no
representations or warranties as to the content or accuracy of any Inspection
Records.


 


(b)                                 In
the event the Closing does not occur for any reason, Purchaser shall return to
Seller all Inspection Records and any and all other materials and information
with respect to the Property provided to Purchaser by Seller or its agents, including
any photocopies thereof.  In any event,
Purchaser shall:  (i) maintain the
confidentiality of the results of its investigation and all materials delivered
by Seller; (ii) disclose such materials only to its employees, agents,
prospective investors, partners, lenders, attorneys, consultants and advisors
who need or deem it useful to review such materials in connection with the Closing
contemplated hereby, and to any governmental authority or in connection with
any judicial, administrative or other legal proceedings, suits or actions, to
the extent Purchaser is advised by counsel that it is required to do so, and
then only after prior notice to Seller as to the nature and scope of such
disclosure; and (iii) return all such materials to Seller (without
retaining copies thereof) if the Closing does not occur for any reason.


 


(c)                                  Neither
Seller nor Purchaser shall make any public announcement with respect to the
purchase and sale of the Property without the prior consent of the other party,
which consent shall not be unreasonably withheld; provided, however, that
except as otherwise provided below no such announcement shall:  (i) be made unless the Closing has
occurred; or (ii) make any reference to the Purchase Price or other
material terms of this Agreement except to the extent that the same are a
matter of public record or available to the public generally.  Notwithstanding the foregoing, Purchaser and
Seller may make any such disclosures required by applicable laws affecting
either party.


 


5.2                                 Termination
of Property Contracts.  Seller shall
also terminate, effective at Closing, all other Property Contracts not assumed
by Purchaser as set forth below. Notwithstanding the provisions of the
preceding sentence, within 3 Business Days hereof, Purchaser may notify Seller
that it wishes to assume certain of the Property Contracts at Closing.  Seller agrees to assign such Property
Contracts to Purchaser provided that:  (i) said
Property Contracts are assignable, and (ii) Purchaser assumes all
obligations and liabilities of Seller under any assigned Property Contracts
from and after the Closing Date.


 


6.                                 Conditions
Precedent, Casualty Damage or Condemnation.


 


6.1                                 Conditions
Precedent.  In addition to any other
conditions precedent in favor of Purchaser as may be set forth elsewhere in
this Agreement, Purchaser’s obligations


 


4





















 


under this Agreement are
expressly subject to the timely fulfillment of the conditions set forth in this
Section 6.1 on or before the Closing Date, or such earlier date as is set
forth below.  Each condition may be
waived in whole or in part only by written notice of such waiver from Purchaser
to Seller.


 


(a)                                  Seller
performing and complying in all material respects with all of the terms of this
Agreement to be performed and complied with by Seller prior to or at the
Closing including, without limitation, Section 4.2.


 


(b)                                 On
the Closing Date, all of the representations and warranties of Seller set forth
in this Agreement shall continue to be true, accurate and complete in all
material respects.


 


Notwithstanding the foregoing, if the conditions set
forth in Sections 6.1(a) and (b) or any other condition of
Closing shall not have been fulfilled on or before the Closing Date, Seller
shall have the right in its sole discretion to extend the Closing Date for a
period of up to thirty (30) days, exercisable by sending an Extension Notice in
accordance with the provisions set forth in Section 4.2(d) above, in
order to provide additional time for the fulfillment of such conditions.


 


6.2                                 Seller’s
Obligations.  In addition to any
other conditions precedent in favor of Seller as may be set forth elsewhere in
this Agreement, Seller’s obligations under this Agreement are expressly subject
to the timely fulfillment by Purchaser of the conditions set forth in this Section 6.2
on or before the Closing Date, or such earlier date as is set forth below.  Each condition may be waived in whole or part
only by written notice of such waiver from Seller to Purchaser.


 


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


 


(b)                                 On
the Closing Date, all of the representations and warranties of Purchaser set
forth in this Agreement shall continue to be true, accurate and complete in all
material respects.


 


6.3                                 Risk
of Loss.  In the event that all or a
portion of the Improvements are damaged or destroyed by fire or other casualty
prior to the Closing Date such that the reasonably estimated cost to repair the
same exceeds Five Million Dollars ($5,000,000) then Purchaser may, at Purchaser’s
sole option, elect to either:


 


(a)                                  terminate
this Agreement and receive back the Deposit, whereupon Seller and Purchaser shall
have no further obligations or liabilities to each other under this Agreement
except as otherwise provided herein; or


 


(b)                                 close
the transaction contemplated by this Agreement.


 


If Purchaser elects to proceed pursuant to Section 6.3(b),
Purchaser shall purchase the Property in accordance with the terms hereof
except that (y) the Purchase Price shall be reduced by the amount of any
applicable insurance deductible with respect to any damage or destruction


 


5





















 


of the Improvements by
fire or other casualty (or such lesser amount as Purchaser and Seller
reasonably agree to be necessary to repair the damage), and (z) Seller shall
assign to Purchaser at Closing all insurance proceeds payable on account of
such damage (less Seller’s reasonable cost to secure the same and less repair
costs incurred by Seller with respect to such damage as documented to Purchaser’s
reasonable satisfaction) and deliver to Purchaser any insurance proceeds
previously paid to Seller on account of such damage and not already expended
toward Seller’s reasonable cost of securing the same or restoration of the
Improvements.  Purchaser shall be deemed
to have elected to proceed under Section 6.3(b) unless, within
twenty (20) days from notice of such casualty, Purchaser provides Seller
with written notice that Purchaser elects to terminate this Agreement pursuant
to Section 6.3(a).


 


6.4                                 Condemnation.  In the event that all or a material portion
of the Real Property should be condemned or becomes the subject of condemnation
proceedings or a threat of condemnation proceedings prior to the Closing such
that the reasonably estimated loss of value as a result thereof exceeds Five
Million Dollars ($5,000,000), Purchaser may, at Purchaser’s sole option, elect
either to:


 


(a)                                  terminate
this Agreement and receive back the Deposit, whereupon Seller and Purchaser
shall have no further obligations or liabilities to each other under this
Agreement except as otherwise provided herein; or


 


(b)                                 close
the transaction contemplated by this Agreement.


 


In all other cases, or if Purchaser elects to proceed
under Section 6.4(b), Purchaser shall purchase the Property in accordance
with the terms hereof (without reduction in the Purchase Price) and Seller
shall assign to Purchaser at Closing all condemnation proceeds payable and
still outstanding as a result of such condemnation (less Seller’s reasonable
cost to secure the same and less repair costs incurred by Seller with respect
to such taking as documented to Purchaser’s reasonable satisfaction) and
deliver to Purchaser any condemnation proceeds previously paid to Seller on
account of such condemnation (less Seller’s reasonable cost to secure the
same).  Purchaser shall be deemed to have
elected to proceed under Section 6.4(b) unless, within
twenty (20) days of notice from Seller of the condemnation or condemnation
proceedings or threat of condemnation proceedings, Purchaser provides Seller
with written notice that Purchaser elects to terminate this Agreement pursuant
to Section 6.4(a).


 


6.5                                 Leasing &
Other Activities Prior to Closing.


 


(a)                                  From
and after the date of this Agreement, Seller shall not enter into any lease or
other occupancy agreement covering any portion of the Land or Improvements (a “Lease”)
that would affect the Property after the Closing Date, without the written
consent of Purchaser.


 


(b)                                 Seller
shall not, from and after the date of this Agreement, enter into any Property
Contracts or modifications, renewals or terminations of any existing Property
Contracts, in each case that would affect the Property after the Closing Date,
without the written consent of Purchaser, which consent shall not be
unreasonably withheld, conditioned or delayed.


 


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(c)                                  At
all times prior to Closing, and subject to Sections 6.5(a) and (b), Seller
shall continue to: (i) maintain the Property in its current condition,
reasonable wear and tear and damage from casualty excepted, (ii) conduct
business with respect to the Property in the same manner in which said business
has been heretofore conducted in all material respects, and (iii) insure
the Property as is set forth in Exhibit 6.5(c).


 


7.                                 Representations,
Warranties and Covenants.


 


7.1                                 Seller’s
Representations.  Except as set forth
in the Reports (as defined below) or as otherwise disclosed in writing to
Purchaser, Seller warrants and represents to Purchaser as follows:


 


(a)                                  Legal
Existence.  Seller is a limited
liability company duly created, validly existing and in good standing under the
laws of the State of Delaware.


 


(b)                                 Authority.  Seller has full right, power and authority
and is duly authorized to enter into this Agreement, to perform each of the
covenants and obligations on its part to be performed hereunder and to execute
and deliver, and to perform its obligations under all documents required to be
executed and delivered by it pursuant to this Agreement, and this Agreement
constitutes the valid and binding obligation of Seller enforceable in
accordance with its terms.


 


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


 


(d)                                 FIRPTA.  Seller is not a “foreign person” within the
meaning of Section 1445(f)(3) of the Internal Revenue Code of
1986.  Seller’s taxpayer identification
number is 04-3522201.


 


(e)                                  Bankruptcy.  Seller has not filed any petition in
bankruptcy or other insolvency proceedings or proceedings for reorganization of
Seller or for the appointment of a receiver or trustee for all or any
substantial part of Seller’s property, nor has Seller made any assignment for
the benefit of its creditors or filed a petition for an arrangement, or entered
into an arrangement with creditors or filed a petition for an arrangement with
creditors or otherwise admitted in writing its inability to pay its debts as
they become due.


 


(f)                                    Litigation.  To Seller’s knowledge, there are no actions,
suits or proceedings (including, but not limited to, bankruptcy) pending or
threatened against Seller or affecting Seller which, if determined adversely to
Seller, would adversely affect the Property or Seller’s ability to perform its
obligations hereunder.


 


(g)                                 Violations
of Law.  Seller has not received any
written notice or copy of notice from any governmental agency or other
government instrumentality respecting Seller’s or the Property’s violation of
any applicable governmental law, ordinance, rule or regulation or
requiring the correction of any condition with respect to


 


7





















 


the Property, or any part
thereof, by reason of a violation of any applicable federal, state, county or
municipal law, code, rule, or regulation, which has not been previously cured.


 


(h)                                 Condemnation.  Seller has not received any written notice or
copy of notice from any governmental agency or official to the effect that any
condemnation proceeding is contemplated in connection with the Property.


 


(i)                                     Conflicts.  Neither the execution, delivery or
performance of this Agreement nor compliance herewith (a) conflicts or
will conflict with or results or will result in a breach of or constitutes or
will constitute a default under (1) the certificate of organization or
other organizational documents of Seller, (2) to Seller’s knowledge, any
law or any order, writ, injunction or decree of any court or governmental
authority applicable to Seller, or (3) any agreement or instrument to
which Seller is a party or by which it, or to its knowledge the Property, is
bound or (b) results in the creation or imposition of any lien, charge or
encumbrance upon its property pursuant to any such agreement or instrument.


 


(j)                                     Property
Contracts.  Purchaser acknowledges Seller
has delivered or made available, true and complete copies of all Property
Contracts (including all amendments or supplements thereto) including those
listed on Exhibit 1(f);
provided, however, that Seller shall not be deemed to be in breach of this
Agreement if Seller unintentionally failed to provide to Purchaser only
Property Contracts involving aggregate payments of less than $10,000 per year or
which are terminable by the owner of the Property at no cost or expense (other
than payment for services or materials through the date of termination) by upon
not more than thirty (30) days’ written notice. 
Seller has not, within the last year, received any written notice or
copy of notice of any default under any Property Contract or other such
contract agreement that has not been cured or waived.


 


(k)                                  Rights
to Purchase. Seller has not granted any option agreements or rights of
first refusal with respect to the purchase of Property or any other unexpired
rights in favor of third persons to purchase or otherwise acquire the Property
or any interest in the Property or any interest in Seller.


 


(l)                                     Zoning;
Applicable Laws and Restrictions Governing Operation and Restrictions.  Seller has received no notice from any
governmental entity that the Property, including its current use and operation
and the parking at the Property, violates any currently applicable laws,
regulations, ordinances, building codes, or rules of any applicable
municipal, local, state, or federal jurisdiction, including, without
limitation, zoning ordinances, building codes, or laws governing access for
handicapped persons.  Seller has received
no notice that the Property violates any restrictions, covenants, or similar
agreements affecting the Property.


 


(m)                               Hazardous
Materials.  Except as may be disclosed
in the Reports (as defined in Section 7.5 below), Seller has not received
any notices from any governmental authority or neighboring, upgradient or
downgradient property owners regarding any noncompliance with or violation of
any Environmental Requirements (as


 


8





















 


defined in Section 7.5
below) applicable to the Real Property or the presence or release of Hazardous
Materials (as defined in Section 7.5 below) on or from the Real Property,
except as disclosed in the Reports (as defined in Section 7.5 below).  During Seller’s ownership of the Property,
Seller has neither made nor been requested to make, nor to its knowledge been
required to make, any report or disclosure to any governmental authority
relating to a release or threatened release of Hazardous Materials (as defined
in Section 7.5 below) to or from the Property.


 


(n)                                 Personal
Property.  All of the Personal
Property listed in Exhibit 1(c) hereto
shall be owned by the Seller on the Closing Date, free and clear of all liens,
encumbrances and security interests. 
Except as set forth in Exhibit 7.1(o)
hereto, none of the Personal Property required for the operation, repair or
maintenance of the Properties is leased from or owned by third-parties.


 


(o)                                 Brokers.  The Broker (as defined in Section 9
hereof) is the only Broker with whom Seller has dealt in connection with this
purchase and sale.


 


(p)                                 Agreements
with Governmental Authorities. 
Seller has not entered into any unrecorded commitments or agreements with
any governmental agencies or authorities affecting the Real Property that have
not been disclosed to Purchaser as of the date hereof.


 


(q)                                 Taxes;
Special Assessments.  No abatement
proceedings are pending with reference to any real estate taxes assessed
against the Real Property.  There are no
betterment assessments or other special assessments presently pending or, to
Seller’s knowledge,  proposed by any
governmental authority with respect to any portion of the Property.


 


7.2                                 Seller;
Seller’s Knowledge.  Whenever a
representation is made to “the Seller’s knowledge,” or a term of similar
import, the accuracy of such representation shall be based solely on the actual
knowledge of Edward C. English and Alex Braginsky.  The representations and warranties of Seller
set forth in or made pursuant to this Agreement shall survive the Closing Date
for a period of six (6) months, and no action or proceeding thereon shall
be valid or enforceable, at law or in equity, if a legal proceeding is not
commenced within that time.  In any
event, the total liability of Seller for any breach of a representation and/or
warranty set forth in or made pursuant to this Agreement by Seller shall not,
in the aggregate, exceed Fifty Thousand Dollars ($50,000), and Seller shall
have no liability for consequential or punitive damages resulting from such
breach.  Seller shall have no liability
for any breach of any representation or warranty set forth herein unless and
until the aggregate amount of such liability exceeds Ten Thousand Dollars ($10,000).  Notwithstanding the foregoing, if, prior to
the Closing, Purchaser obtains actual knowledge that any representation or
warranty of Seller is untrue and Purchaser nonetheless proceeds with the
Closing, Seller shall have no liability for any such matter regarding which
Purchaser had actual knowledge prior to Closing.


 


9





















 


7.3                                 Purchaser’s
Representations.  Purchaser makes the
following representations and warranties to Seller:


 


(a)                                  Legal
Existence and Authority.  Purchaser
is a duly formed, validly existing limited liability company under the laws of
the Commonwealth of Massachusetts, is in good standing, and is authorized to
enter into this Agreement and consummate the transactions contemplated hereby;
each of the individuals executing this Agreement on Purchaser’s behalf is
authorized to do so, and this Agreement constitutes the valid and legally
binding obligation of Purchaser, enforceable against Purchaser in accordance
with its terms.


 


(b)                                 Litigation.  There are no actions, suits or proceedings,
including but not limited to bankruptcy, pending or, to the knowledge of
Purchaser, threatened, against or affecting Purchaser which, if determined
adversely to Purchaser, would adversely affect its ability to perform its
obligations hereunder.


 


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


 


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


 


(e)                                  Taxpayer
I.D.  Purchaser’s taxpayer
identification number is 04-3549299.


 


The representations and warranties of Purchaser as set
forth in or made pursuant to this Agreement shall survive the Closing for a
period of six (6) months, and no action or proceeding thereon shall be
valid or enforceable, at law or in equity, if a legal proceeding is not
commenced within that time.


 


7.4                                 Property
Conveyed “As Is”.  Other than as
expressly set forth in this Agreement, Seller hereby specifically disclaims any
warranty, guaranty or representation, oral or written, past, present or future,
of, as to, or concerning (a) the nature and condition of the Property,
including, without limitation, the water, soil and geology or any other matter
affecting the stability or integrity of the Real Property or the Improvements,
and the suitability thereof and of the Property for any and all activities and
uses which Purchaser may elect to conduct thereon, and the existence of any
Hazardous Materials (as defined below) thereon, (b) the compliance of the
Property with any law, rule, regulation or ordinance to which the Property is
or may be subject, (c) except as provided in the Deed (as defined below),
the condition of title to the Property or the nature and extent of any right of
way, lease, license, reservation or contract, (d)


 


10





















 


the profitability or
losses or expenses relating to the Property and the businesses conducted in
connection therewith, (e) the value of the Property, (f) the
existence, quality, nature or adequacy of any utility servicing the Property, (g) the
physical condition of the Property, and (h) the legal or tax consequences
of this Agreement or the transactions contemplated hereby.  Purchaser acknowledges that except as
expressly set forth in Section 7.1, Seller has not made an independent
investigation or verification of the accuracy or completeness of any documents,
studies, surveys, information or materials which were prepared by parties other
than Seller and which will be provided, or made available, to Purchaser
including, without limitation, the Inspection Records, or the methods employed
by the preparers of such items. 
Purchaser acknowledges that, as of the date hereof, it has had a full
and complete opportunity to conduct such investigations, examinations,
inspections and analysis of the Property as Purchaser, in its sole and absolute
discretion, may determine.  Purchaser
expressly acknowledges that, in consideration of the agreements of Seller
herein, and other than as expressly set forth in this Agreement, Seller makes
no representations or warranties, express or implied, or arising by operation
of law, including, but not limited to, any warranty of condition, habitability,
merchantability, suitability or fitness for a particular purpose or
otherwise.  Except for Seller’s
representations set forth in Sections 7.1 and 9, Purchaser is purchasing the
Property solely in reliance on Purchaser’s own investigations and those of
Purchaser’s agents, and Purchaser is not relying on any statements,
information, and/or other material provided by Seller or Seller’s agents.


 


7.5                                 Certain
Reports.  Seller has provided or will
provide to Purchaser promptly upon execution of this Agreement true and
complete copies of certain reports that are in Seller’s possession relating to
the physical and environmental condition of the Property, which reports are
listed on Exhibit 7.5 hereto (collectively,
the “Reports”).  For purposes of
this Agreement, the term “Hazardous Materials” shall mean any substance
which is or contains:  (i) any “hazardous
substance” as now or hereafter defined in Section 101(14) of the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended (42 U.S.C. Section 9601 et seq.) or any regulations
promulgated under CERCLA; (ii) any “hazardous waste” as now or hereafter
defined in the Recourse Conservation and Recovery Act (42 U.S.C. Section 6901
et seq.) or regulations promulgated under RCRA; (iii) any substance
regulated by the Toxic Substances Control Act (15 U.S.C. Section 2601
et. seq.); (iv) gasoline, diesel fuel or other petroleum hydrocarbons;
(v) asbestos and asbestos containing materials, in any form, whether
friable or nonfriable; (vi) polychlorinated biphenyls; (vii) radon
gas; and (viii) any additional substances or materials which are now or
hereafter classified or considered to be hazardous or toxic under “Environmental
Requirements” (as hereinafter defined) or the common law, or any other
applicable law related to the Property. 
Hazardous Materials shall include, without limitation, any substance,
the presence of which on the Real Property: (a) requires reporting,
investigation or remediation under Environmental Requirements; (b) causes
or threatens to cause a nuisance on the Real Property or adjacent property or
poses or threatens to pose a hazard to health or safety of persons on the Real
Property or adjacent property; or (c) which, if emanated or migrated from
the Real Property, could constitute a trespass. 
For purposes of this Agreement, the term “Environmental Requirements”
shall mean all laws, ordinances, statutes, codes, rules, regulations,
agreements, judgments, orders and decrees now or hereafter enacted,
promulgated, or amended, of the United States, the states, the counties, the
cities or any other political subdivisions in which the Real Property is
located and any other political subdivision, agency or instrumentality
exercising jurisdiction over the owner


 


11





















 


of the Real Property, the
Real Property or the use of the Real Property relating to pollution, the
protection or regulation of human health, natural resources or the environment,
or the emission, discharge, release or threatened release of pollutants,
contaminants, chemicals or industrial, toxic or hazardous substances or waste
or Hazardous Materials into the environment (including, without limitation,
ambient air, surface water, ground water or land or soil).


 


8.                                 Closing.


 


8.1                                 Closing
Date.  Subject to Seller’s right to
extend the Closing Date as provided in this Agreement, the closing hereunder
shall take place at the office of Seller’s counsel, Goodwin Procter LLP, Exchange Place, Boston,
Massachusetts at 10:00 a.m., or through customary closing arrangements
reasonably acceptable to Seller and Purchaser (the “Closing”), in either
case on October 18, 2005 (as the same may be extended in accordance with
this Agreement, the “Closing Date”).


 


8.2                                 Seller’s
Deliveries.  At or prior to the
Closing, Seller shall deliver or cause to be delivered, at Seller’s sole
expense pursuant to customary closing escrow arrangements reasonably satisfactory
to Seller and Purchaser, each of the following items:


 


(a)                                  A
quitclaim deed (the “Deed”) duly executed and acknowledged by Seller,
substantially in the form attached hereto as Exhibit 8.2(a),
subject only to the Permitted Exceptions and the matters referred to in Section 1(a) and
together with the benefit of the matters referred to in Section 1(a).  The acceptance of the Deed by Purchaser or
its nominee, as the case may be, shall be deemed to be a full performance and
discharge of every agreement and obligation herein contained or expressed,
except such as are, by the terms hereof, to be performed after delivery of the
Deed.


 


(b)                                 A
duly executed and acknowledged original bill of sale and general assignment
substantially in the form attached hereto as Exhibit 8.2(b).


 


(c)                                  All
keys to all locks on the Property.


 


(d)                                 A
non-foreign person affidavit in customary form sworn to by Seller as required
by Section 1445 of the Internal Revenue Code.


 


(e)                                  A
certificate in the form attached hereto as Exhibit 8.2(e) stating
that all representations and warranties made by Seller in this Agreement remain
true, complete and correct in all material respects as of the Closing Date,
except as otherwise provided in such certificate.


 


(f)                                    Such
evidence, certificates or documents as may be reasonably required by the Title
Company relating to:  (i) mechanics’
or suppliers’ liens; (ii) parties in possession; or (iii) the status
and capacity of Seller and the authority of the person or persons who are
executing the various documents on behalf of Seller in connection with the sale
of the Property, and in any event, copies of Seller’s legal existence
certificate from the State of Delaware and appropriate votes and authorizations
to enter into and close the transaction contemplated herein.


 


12





















 


(g)                                 All
Property Contracts and all other documents in the possession of Seller or its
property manager relating to the operation of the Property including all
permits, licenses, approvals, plans, specifications, surveys, guaranties and
warranties.


 


(h)                                 A
duly executed original counterpart of a closing statement in accordance
herewith.


 


(i)                                     A
duly executed Lease (the “Praecis Lease”) between Purchaser, as
Landlord, and PRAECIS PHARMACEUTICALS INCORPORATED (“Praecis”), as
Tenant, substantially in the form attached hereto as Exhibit 8.2(i).


 


(j)                                     All
books and records relating to the Property and its operation and management,
including, but not limited to, all financial records, reports and statements in
Seller’s possession or control.


 


(k)                                  Such
other documents as may be reasonably necessary or appropriate to effect the
consummation of the transaction which is the subject of this Agreement or which
are otherwise required or contemplated by this Agreement.


 


8.3                                 Purchaser’s
Deliveries.  At or prior to the
Closing, Purchaser shall deliver the following items pursuant to customary
closing escrow arrangements reasonably satisfactory to Seller and Purchaser:


 


(a)                                  By
wire transfer of immediately available federal funds, the Purchase Price, less
the amount of the Deposit and as adjusted for the prorations provided for in
this Agreement.


 


(b)                                 Duly
executed and acknowledged original counterparts of Seller’s deliveries 8.2 (b) and
(i).


 


(c)                                  Such
evidence or documents as may reasonably be required by the Title Company
evidencing the status and capacity of Purchaser and the authority of the person
or persons who are executing the various documents on behalf of Purchaser in
connection with the purchase of the Property, and in any event, copies of
Seller’s legal existence certificate from the State of Delaware and appropriate
votes and authorizations to enter into and close the transaction contemplated
herein.


 


(d)                                 A
certificate in the form attached hereto as Exhibit 8.3(d) stating
that all representations and warranties made by Purchaser in this Agreement
remain true, correct and complete in all material respect as of the Closing
Date, except as otherwise provided in such certificate.


 


(e)                                  Such
other documents as may be reasonably necessary or appropriate to effect the
consummation of the transaction which is the subject of this Agreement or which
are otherwise required or contemplated by this Agreement.


 


13





















 


8.4                                 Costs
and Prorations.


 


(a)                                  Closing
Costs.  Purchaser and Seller shall
each pay their own legal fees related to the negotiation and preparation of
this Agreement and all documents required to settle the transaction
contemplated hereby.  Purchaser shall pay
(i) all costs associated with its due diligence, including the cost of
appraisals, architectural, engineering, credit and environmental reports, (ii) all
survey costs, (iii) all recording fees (other than to discharge Seller
Encumbrances), and (iv) all title insurance premiums and title examination
costs.  Seller shall pay (i) all
transfer taxes, deed stamps or similar amounts and (ii) all recording fees
associated with the discharge of Seller Encumbrances.  Purchaser and Seller shall each pay fifty
percent (50%) of any escrow charges of the Escrow Agent related to the Deposit
and the Closing.  All other customary
purchase and sale closing costs shall be paid by Seller or Purchaser in
accordance with the custom in the jurisdiction where the Property is located.


 


(b)                                 Prorations.  The following shall be prorated between
Seller and Purchaser as of the Closing Date:


 


(i)                                     all
real estate taxes and general or special assessments on the Real Property based
on the most recently ascertainable taxes. 
Seller shall be responsible for all such taxes that are allocable to any
period prior to the Closing Date and Purchaser shall be responsible for all
such taxes allocable to any period from and after the Closing Date.  If any taxes or assessments relating to the
period prior to the Closing are paid in installments, then Seller shall pay on
or before the Closing Date any remaining installments with respect to such
taxes or assessments.  If, at the time of
Closing, the tax rate has not yet been fixed, the taxes shall be prorated based
upon the tax rate established for the previous tax year applied to the latest
assessed value; provided, however, that Seller and Purchaser agree that to the
extent the actual taxes for the current year differ from the amount so
apportioned at Closing, the parties hereto will make all necessary adjustments
by appropriate payments between themselves following the Closing.


 


(ii)                                  to
the extent Property Contracts are not terminated pursuant to Section 5.3,
Seller shall be credited for prepaid sums under such Property Contracts and
Purchaser shall be credited for any amounts due or accrued thereunder as of
Closing; and


 


(iii)                               to
the extent that utility meters are not read and final bills rendered as of the
day immediately preceding the Closing Date as set forth below, water, sewer,
electricity and other public utility charges with respect to the Property shall
be prorated effective as of the day immediately preceding the Closing Date
utilizing an estimate of such charges reasonably approved by both Purchaser and
Seller based on prior utility bills.


 


Seller shall request and use reasonable efforts to
obtain a final reading of all water, sewer, electricity, gas and other public
utility meters as of the day immediately preceding the Closing Date and shall
promptly pay any bills rendered pursuant to such meter readings.


 


14





















 


All prorations and closing payments shall be made on
the basis of a closing statement reasonably approved by Purchaser and
Seller.  Except as otherwise stated, in
the event any of the prorations or apportionments made under this Section 8.4
shall prove to be incorrect for any reason, then any party shall be entitled to
a prompt adjustment to correct the same. 
Any item which cannot be finally prorated because of the unavailability
of information shall be tentatively prorated on the basis of the best data then
available and re-prorated when the information is available.  The provisions of this Section 8.4 shall
survive the Closing for a period of twelve (12) months.  Purchaser and Seller acknowledge that, except
as otherwise expressly provided herein, the purpose and intent of the
provisions set forth in this Section 8.4 and elsewhere in this Agreement
as to prorations and apportionments is that Seller shall bear all expenses of
the ownership and operation of the Property and shall receive all income
therefrom accruing through midnight at the end of the day preceding the Closing
and Purchaser shall bear all such expenses and receive all income accruing thereafter.  Any revenues and/or expenses affecting the
Property that are not otherwise specifically addressed in Section 8.4(a) shall
be apportioned consistently with the foregoing provisions.


 


8.5                                 Possession.  Possession of the Property (including the
Personal Property in its current condition, reasonable wear and tear and damage
by casualty excepted) shall be delivered to Purchaser by Seller at the Closing,
subject only to the rights of Praecis under the Praecis Lease, rights arising
under any Property Contracts not terminated by Seller pursuant to Section 5.3,
and rights arising under any of the Permitted Exceptions.


 


9.                                 Praecis
Lease.  In
consideration of Buyer purchasing the Property, Praecis, as the sole member of
Seller, agrees that it shall lease approximately 65,464 rentable square feet of
space in the south wing of the Building on the terms as set forth in the
Praecis Lease attached hereto as Exhibit 8.2(i).


 


10.                           Real
Estate Commissions.  If and when, but
only if and when, the Closing is completed and the Purchase Price is paid in
full, Seller shall be obligated to pay a real estate commission and/or
brokerage fee to Richards Barry Joyce and Partners LLC (“Broker”)
pursuant to a separate agreement between Seller and Broker.  Such commissions shall be paid in full at
Closing.  Purchaser shall have no
obligation whatsoever to make any payment to Broker in connection with the
purchase and sale of the Property. 
Seller and Purchaser represent and warrant to each other that no other
brokerage fee or real estate commission is or shall be due or owing to any
party other than Broker in connection with this transaction based on any action
or contact by such party, and Seller and Purchaser hereby indemnify and hold
the other harmless from any and all loss, liability, claim, cause of action,
damage, cost or other expense of any nature whatsoever, including, without
limitation, reasonable attorneys’ fees and expenses resulting from a breach of
such representation and warranty.  The
provisions of this Section 9 shall survive the Closing or earlier
termination of this Agreement.


 


11.                           Termination
and Default.


 


11.1                           Termination
by Purchaser.  If this Agreement is
terminated by Purchaser pursuant to its rights to terminate as provided
elsewhere in this Agreement, the Deposit shall promptly be returned to the
Purchaser by the Escrow Agent and the parties hereto shall have no further
obligations hereunder, except as otherwise stated herein.


 


15





















 


11.2                           Purchaser’s
Default.  Subject to Section 5.2,
if Purchaser defaults in its obligation to purchase the Property subject to and
in accordance with the terms of this Agreement, the Deposit shall, subject to
the procedures set forth in Section 12 of this Agreement, promptly be paid
to Seller by the Escrow Agent as liquidated damages for Purchaser’s default and
as Seller’s sole and exclusive remedy at law, in equity or otherwise for such
default (it being agreed by Seller and Purchaser that it is now, and at the
time of such default will be, difficult or impracticable to ascertain Seller’s
actual damages and that such liquidated amount represents reasonable
compensation to Seller).


 


11.3                           Seller’s
Default.  In the event of Seller’s
default hereunder, Purchaser may, as its sole and exclusive remedy at law or in
equity, either (i) terminate this Agreement by giving written notice to
Seller, in which case the Deposit shall, subject to the procedures set forth in
Section 12 of this Agreement, promptly be returned to Purchaser by the
Escrow Agent, or (ii) Purchaser may institute and prosecute an action to
compel specific performance hereunder by Seller. 
Pursuant to this Section 10.3, Seller’s default explicitly shall
not mean Seller’s failure to comply with any deliveries or conditions to
closing where such deliveries or conditions require performance by third
parties and Seller has made commercially reasonable efforts to obtain such
deliveries or fulfill such conditions.


 


12.                           Miscellaneous.


 


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


 


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


 


12.3                           Assignment
by Purchaser.  Upon notice to Seller
at least three (3) Business Days prior to the Closing Date, Purchaser may
assign its rights under this Agreement without Seller’s consent to any
Affiliate of Purchaser, but such Affiliate shall make no further assignment of
this Agreement without Seller’s prior written consent, and Affiliate shall
expressly assume all obligations of Seller under this Agreement.  Purchaser shall provide a copy of the
instrument effecting such assignment to Seller. 
Notwithstanding any such assignment of this Agreement by Purchaser,
Purchaser shall remain jointly and severally liable under the terms of this
Agreement.  As used herein, Affiliate
means any entity controlled by, controlling, or under common control with
Purchaser, and the various uses of the word “control” mean the ability to
direct the decisions or actions of the entity in question.


 


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


 


16





















 


12.5                           Governing
Law; Consent to Jurisdiction.  This
Agreement shall be governed by and construed under the internal laws of the
Commonwealth of Massachusetts, without regard to the principles of conflicts of
law.  Seller, Purchaser and their
respective assignees hereby consent to the jurisdiction of any federal or state
court located in the Commonwealth of Massachusetts.


 


12.6                           Counterparts.  This Agreement may be executed in any number
of counterparts and it shall be sufficient that the signature of each party
appear on one or more such counterparts. 
All counterparts shall collectively constitute a single agreement.


 


12.7                           Notices.  All communications hereunder shall be in
writing, personally delivered or mailed by first-class registered or certified
mail, return receipt requested, postage prepaid or delivered by Federal Express
or another nationally recognized overnight commercial courier against receipt,
or sent by facsimile providing that a confirming copy is simultaneously sent by
Federal Express or other nationally recognized overnight commercial courier:


 


(i)                                     if
to Seller at:


 


830
Winter Street


Waltham,
MA


Attention:
Edward C. English


Facsimile:
(781) 890-7469


 


with a
copy to:


 


Michael
J. Litchman, Esq.


Goodwin
Procter LLP


Exchange
Place


Boston,
MA 02109-2881


Facsimile:
(617) 523-1231


 


(ii)                                  if
to Purchaser at:


 


Intercontinental
Real Estate Investment Fund III, LLC


1270
Soldiers Field Road


Boston,
MA  02135


Attention:
Greg Shay


Facsimile
no. (617) 254-1751


 


with a
copy to:


 


Bradley &
Associates


1270
Soldiers Field Road


Boston,
MA  02135


Facsimile
no. (617) 782-9442


 


Such notice shall be deemed given on the date of
receipt by the addressee or the date receipt would have been effectuated if
delivery were not refused.  Each party
may designate a new


 


17





















 


address by written notice to the other in accordance
with this Section 11.7.  The inability to deliver a notice because of a changed address of which proper notice was not given shall be deemed a refusal of such notice.


 


12.8                           Attorneys’
Fees.  In the event of a judicial or
administrative proceeding or action by one party against the other party with
respect to the interpretation or enforcement of this Agreement, the prevailing
party shall be entitled to recover reasonable costs and expenses including,
without limitation, reasonable attorneys’ fees and expenses, whether at the
investigative, pretrial, trial or appellate level.  The prevailing party shall be determined by
the court based upon an assessment of which party’s major arguments or position
prevailed.


 


12.9                           IRS
Real Estate Sales Reporting. 
Purchaser, Seller and Escrow Agent hereby agree and acknowledge that
Escrow Agent shall act as “the person responsible for closing” the transaction
which is the subject of this Agreement pursuant to Internal Revenue Code Section 6045(e) and
shall prepare and file all informational returns, including without limitation,
IRS Form 1099-S, and shall otherwise comply with the provisions of
Internal Revenue Code Section 6045(e). 
Purchaser and Seller shall reasonably cooperate in connection with such
filings.


 


12.10                     Time
Periods.  In the event the time for
performance of any obligation hereunder expires on a day that is not a Business
Day, the time for performance shall be extended to the next Business Day.


 


12.11                     Modification
of Agreement.  No modification of
this Agreement shall be deemed effective unless in writing and signed by the
party to be charged.  Without limiting
the foregoing, the written consent of the Escrow Agent shall not be necessary
to change any provision of this Agreement that does not affect the
responsibilities of Escrow Agent.


 


12.12                     Further
Instruments.  Each party, promptly
upon the request of the other, shall execute and have acknowledged and
delivered to the other or to Escrow Agent, as may be appropriate, any and all
further instruments reasonably requested or appropriate to evidence or give
effect to the provisions of this Agreement and which are consistent with the
provisions of this Agreement.


 


12.13                     Descriptive
Headings.  The descriptive headings
of the paragraphs of this Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any provisions of this
Agreement.


 


12.14                     Time of
the Essence.  Time is of the essence
with respect to each of the material provisions of this Agreement.


 


12.15                     Business
Day.  As used herein, the term “Business
Day” means any day other than Saturday, Sunday and any day which is a legal
holiday in The Commonwealth of Massachusetts.


 


12.16                     Construction
of Agreement.  This Agreement shall
not be construed more strictly against one party than against the other merely
by virtue of the fact that it may have been


 


18





















 


prepared primarily by
counsel for one of the parties, it being recognized that both Purchaser and Seller
have contributed substantially and materially to the preparation of this
Agreement.


 


12.17                     Execution
by Officer of Seller.  This Agreement
is executed on behalf of Seller by an officer of the managing member of Seller,
acting in his/her capacity as such officer, and not individually.  Purchaser and each person dealing with
Seller, or claiming any rights or interests herein or hereunder, agrees to look
solely to the assets of Seller for satisfaction of any obligations of Seller,
and they further agree that no investor, partner, owner, advisor, manager,
employee, officer, director or agent of Seller shall have any personal
liability hereunder or otherwise.


 


12.18                     Execution
by Officer of Purchaser.  This
Agreement is executed on behalf of Purchaser by an officer of Purchaser, acting
in his/her capacity as an officer of the Purchaser and not individually.  Seller and each person dealing with
Purchaser, or claiming any rights or interests herein or hereunder, agrees to look
solely to the assets of Purchaser for satisfaction of any obligations of
Purchaser, and they further agree that no stockholder, advisor, manager,
employee, officer, director or agent of Purchaser shall have any personal
liability hereunder or otherwise.


 


12.19                     JURY TRIAL
WAIVER.  THE PARTIES HERETO HEREBY
WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER IN
CONTRACT OR TORT) BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER IN
RESPECT OF ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.


 


12.20                     Survival.  Any obligations of Seller or Purchaser
hereunder, including, without limitation, contractual indemnities, which are
not liquidated on the Closing Date or which by their terms may arise after the
Closing Date, shall survive the Closing subject, however, to any limitations on
survival expressly set forth in this Agreement.


 


12.21                     Submission
Not an Offer or Option.  The
submission of this Agreement or a summary of some or all of its provisions for
examination or negotiation by Purchaser or Seller does not constitute an offer
by Seller or Purchaser to enter into an agreement to sell or purchase the
Property, and neither party shall be bound to the other with respect to any
such purchase and sale until a definitive agreement satisfactory to Purchaser
and Seller in their sole discretion is executed and delivered by both Seller
and Purchaser.


 


13.                           General
Escrow Provisions.  The obligations
and rights of the Escrow Agent under this Agreement shall be subject to the
following terms and conditions:


 


(a)                                  The
duties and obligations of Escrow Agent shall be determined solely by the
express provisions of this Agreement and no implied duties or obligations shall
be implied against Escrow Agent. 
Further, Escrow Agent shall be under no obligation to refer to any other
document between or among Purchaser and Seller referred to in or related to
this Agreement, unless Escrow Agent is provided with a copy of such document
and consents thereto in writing.


 


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(b)                                 Escrow
Agent shall not be liable to anyone by reason of any error of judgment, or for
any act done or step taken or omitted by Escrow Agent in good faith, or for any
mistake of fact or law, or for anything which Escrow Agent may do or refrain
from doing in connection herewith, unless caused by or arising out of Escrow
Agent’s actual and intentional misconduct or gross negligence.


 


(c)                                  Escrow
Agent shall be entitled to rely, and shall be protected in acting in reliance,
upon any writing furnished to Escrow Agent by either Purchaser or Seller and
shall be entitled to treat as genuine, and as the document it purports to be,
any letter, paper or other document furnished to Escrow Agent.  Escrow Agent may rely on any affidavit of
either Purchaser or Seller or any other person as to the existence of any facts
stated therein to be known by the affiant.


 


(d)                                 If
Seller shall become entitled to retain or receive the Deposit or other amount
paid under this Agreement, Escrow Agent shall pay the same to Seller together
with all interest earned thereon and if Purchaser shall become entitled to a
return of the Deposit or other amount paid under this Agreement, Escrow Agent
shall pay the same to Purchaser together with all interest earned thereon;
provided, however, that no disbursement pursuant to this subsection shall
be made by Escrow Agent until the third (3rd) Business Day following the
receipt or deemed receipt of notice by Seller and Purchaser from Escrow Agent
of its intention to so disburse, and disbursement made by Escrow Agent after
the passage of such three (3) Business Day period shall relieve Escrow
Agent from all liability in connection with such disbursement unless such
disbursement is proscribed by order of a court of competent jurisdiction or
objected to in writing by Seller or Purchaser. 
If such disbursement is objected to in writing by Seller or Purchaser
within such three (3) Business Day period, then Escrow Agent shall not
make such disbursement until unanimously instructed in writing by Purchaser and
Seller, or is directed to make such disbursement by a court of competent
jurisdiction.  Notwithstanding anything
to the contrary set forth above, no such notice by Escrow Agent shall be given
and no notice of objection may or shall be given by Seller in the event
Purchaser terminates this Agreement as set forth in Section 5.2, and in
such event Escrow Agent shall promptly pay the Deposit together with all
interest thereon to Purchaser.


 


(e)                                  In
the event of any disagreement between Purchaser and Seller resulting in adverse
claims and demands being made in connection with or against the funds held in
escrow, Escrow Agent shall refuse to comply with the claims or demands of
either party until such disagreement is finally resolved (i) by a court of
competent jurisdiction (in proceedings which Escrow Agent or any other party
may initiate, it being understood and agreed by Purchaser and Seller that
Escrow Agent has authority (but not the obligation) to initiate such
proceedings), or (ii) by an arbitrator in the event that Purchaser and
Seller mutually and jointly determine to submit the dispute to arbitration
pursuant to the rules of the American Arbitration Association, and in so
doing Escrow Agent shall not be or become liable to a party, or (iii) by
written settlement between Purchaser and Seller.


 


20





















 


(f)                                    Purchaser
and Seller each agree to jointly and severally indemnify and hold harmless
Escrow Agent against any and all losses, liabilities, costs (including legal
fees) and other expenses in any way incurred by Escrow Agent (except to the
extent the Escrow Agent willfully disregards any provision of this Agreement to
which it is bound) in connection with or as a result of any disagreement
between Purchaser and Seller under this Agreement or otherwise incurred by
Escrow Agent in any way on account of its role as Escrow Agent, except that
neither Purchaser nor Seller shall have any obligation to pay Escrow Agent any
fee for escrow services hereunder.


 


(g)                                 Escrow
Agent in its sole discretion shall have the right to resign as Escrow Agent
under this Agreement, provided that it shall provide both Purchaser and Seller
with at least thirty (30) days written notice of such resignation pursuant to
the notice provisions of Section 11.7 of this Agreement.  Upon any such resignation, Escrow Agent shall
transfer the Deposit and any interest earned thereon to a successor Escrow
Agent jointly approved by Purchaser and Seller, whereupon the original Escrow
Agent shall have no further obligation or liability whatsoever as Escrow Agent
under this Agreement.


 


(h)                                 The
parties hereby acknowledge and agree that Federal Deposit Insurance for the
Deposit, if any, is limited to a cumulative maximum amount of $100,000 for each
individual depositor for all of the depositor’s accounts at the same or related
institution.  The parties further hereby
acknowledge and agree that certain banking instruments such as, but not limited
to, repurchase agreements and letters of credit, are not covered at all by
Federal Deposit Insurance.  The parties
acknowledge and agree that Escrow Agent shall have no obligation or liability
with respect to insuring the Deposit or with respect to the solvency of the
depository institution, or otherwise with respect to the appropriateness of the
depository institution for purposes of the Deposit.  Further, the parties understand that Escrow
Agent assumes no responsibility for, nor will the parties hold the same liable
for, any loss occurring which arises from the fact that (x) the amount of the
account or accounts contemplated hereby may cause the aggregate amount of any
individual depositor’s account or accounts to exceed $100,000, (y) that this
excess amount is not insured by the Federal Deposit Insurance Corporation, or (z)
that Federal Deposit Insurance is not available on certain types of bank
instruments.


 


(i)                                     Escrow
Agent may pay the Deposit into a court of competent jurisdiction upon
commencement by the Escrow Agent of an interpleader action in such court.  The reasonable out-of-pocket costs and
attorneys’ fees of the Escrow Agent for such interpleader action shall be paid
by the losing party in such interpleader action.


 


(j)                                     The
rights and immunities of Escrow Agent hereunder shall apply equally to its
partners, of counsel, associates, employees, affiliates and agents.


 


(k)                                  All
of Escrow Agent’s obligations under this Agreement shall automatically
terminate upon disbursing the Deposit as set forth above.


 


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blank]


 


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IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as an instrument under seal and as of the date first written
above.


 


	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  830 WINTER STREET LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  PRAECIS PHARMACEUTICALS

  
	
   

  	
   

  	
  INCORPORATED, its sole member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Edward C. English

  
	
   

  	
   

  	
  Name:  Edward
  C. English

  
	
   

  	
   

  	
  Title:  Vice
  President and Chief

  Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  INTERCONTINENTAL REAL
  ESTATE

  INVESTMENT FUND III, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:  Intercontinental
  Real Estate Corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter Palandjian

  
	
   

  	
   

  	
  Name:  Peter
  Palandjian

  
	
   

  	
   

  	
  Title:  President &
  Treasurer

  
				



 


22





















 


RECEIPT
BY THE ESCROW AGENT


 


This Agreement, fully executed by both Seller and
Purchaser, has been received by the Escrow Agent this 12th day of October, 2005
and by its execution hereof, Escrow Agent hereby covenants and agrees to be
bound by the terms of this Agreement that are applicable to the Escrow Agent in
its role as escrow agent pursuant to Sections 3, 10, 11.11 and 12 of this
Agreement.


 


	
   

  	
  ESCROW AGENT

  
	
   

  	
   

  
	
   

  	
  FIRST AMERICAN TITLE INSURANCE

  COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John F. Shea

  
	
   

  	
   

  	
  Name:  John F.
  Shea

  
	
   

  	
   

  	
  Title:  
  Underwriter

  



 


23





















 


Exhibits


 


	
  Exhibit 1(a)

  	
  -

  	
  Description of
  Land

  
	
  Exhibit 1(c)

  	
  -

  	
  Schedule of
  Tangible Personal Property

  
	
  Exhibit 1(f)

  	
  -

  	
  Schedule of
  Property Contracts

  
	
  Exhibit 4.1

  	
  -

  	
  Title Commitment

  
	
  Exhibit 5.1

  	
  -

  	
  Property
  Information

  
	
  Exhibit 6.5(c)

  	
  -

  	
  Insurance

  
	
  Exhibit 7.1(o)

  	
  -

  	
  Leased Personal
  Property

  
	
  Exhibit 7.5

  	
  -

  	
  Schedule of
  Reports

  
	
  Exhibit 8.2(a)

  	
  -

  	
  Form of
  Deed

  
	
  Exhibit 8.2(b)

  	
  -

  	
  Form of
  Bill of Sale and General Assignment

  
	
  Exhibit 8.2(e)

  	
  -

  	
  Updated Seller
  Representation Certificate

  
	
  Exhibit 8.2(i)

  	
  -

  	
  Form of
  Praecis Lease

  
	
  Exhibit 8.3(d)

  	
  -

  	
  Updated Purchaser
  Representation Certificate

  



 


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