**Exhibit 10.1**

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**PURCHASE AND SALE AND ESCROW AGREEMENT**

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**SELLER:**

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**175 FREEMAN STREET INVESTORS LLC**

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**PURCHASER:**

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**THE HAMILTON COMPANY**

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**PROPERTY:**

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**DEXTER PARK APARTMENTS175 FREEMAN STREETBROOKLINE, MASSACHUSETTS**

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**SEPTEMBER 1**, 2009

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TermSheet

 
| Purchaser:      | ** ** | **THE  HAMILTON COMPANY**                                                                                                                                                 |
|-----------------|------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|            | ** ** | ** **                                                                                                                                                                |
| Notice Address: | ** ** | **39  BRIGHTON AVENUE  BOSTON, MA 02134  ATTN: CARL A. VALERI  PHONE: 617-783-0039  FAX: 617-783-0568**                                                                   |
|            | ** ** | ** **                                                                                                                                                                |
|            | ** ** | **WITH A  COPY TO:**                                                                                                                                                      |
|            | ** ** | ** **                                                                                                                                                                |
|            | ** ** | **DIONNE &  GASS LLP  131 DARTMOUTH STREET, SUITE 501  BOSTON, MASSACHUSETTS 02116  ATTN: SALLY E. MICHAEL, ESQ.  PHONE: 617-912-0920  FAX: 617-723-4151**       |
|            | ** ** | ** **                                                                                                                                                                |
| Seller:         | ** ** | **175  FREEMAN STREET INVESTORS LLC**                                                                                                                                     |
|            | ** ** | ** **                                                                                                                                                                |
| Notice Address: | ** ** | **C/O  UBS REALTY INVESTORS LLC  242 TRUMBULL STREET  HARTFORD, CONNECTICUT 06103-1212  ATTN: GENERAL COUNSEL  PHONE: 860-616-9158  FAX: 860-616-9004**                   |
|            | ** ** | ** **                                                                                                                                                                |
|            | ** ** | **WITH A  COPY TO:**                                                                                                                                                      |
|            | ** ** | ** **                                                                                                                                                                |
|            | ** ** | **C/O  UBS REALTY INVESTORS LLC  242 TRUMBULL STREET  HARTFORD, CONNECTICUT 06103-1212  ATTN: JAYNE M. BRUNDAGE, EXEC. DIRECTOR  PHONE: 860-616-9165  FAX: 860-616-9010** |
|            | ** ** | ** **                                                                                                                                                                |
|            | ** ** | **WITH  AN ADDITIONAL COPY TO:**                                                                                                                                          |
|            | ** ** | ** **                                                                                                                                                                |
|            | ** ** | **BINGHAM  MCCUTCHEN LLP  1 STATE STREET  HARTFORD, CONNECTICUT 06103  ATTN: R. JEFFREY SMITH, ESQ.  PHONE: 860-240-2759  FAX: 860-240-2575**                             |

 

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| Escrow Agent/Title  Company: | ** ** | **FIRST  AMERICAN TITLE INSURANCE COMPANY**                                                                                               |
|------------------------------|------------|-------------------------------------------------------------------------------------------------------------------------------------------|
|                         | ** ** | ** **                                                                                                                                |
| Notice Address:              | ** ** | **101  HUNTINGTON AVENUE  BOSTON, MASSACHUSETTS 02199  ATTN: MICHAEL J. DESMOND, VICE PRESIDENT  PHONE: 617-772-9250  FAX: 617-226-2987** |
|                         | ** ** | ** **                                                                                                                                |
| Property:                    | ** ** | **DEXTER  PARK APARTMENTS  175 FREEMAN STREET  BROOKLINE, MASSACHUSETTS**                                                                 |
|                         | ** ** | ** **                                                                                                                                |
| Purchase Price:              | ** ** | **$129,500,000.00**                                                                                                                       |
|                         | ** ** | ** **                                                                                                                                |
| Deposit:                     | ** ** | **$5,000,000.00**                                                                                                                         |
|                         | ** ** | ** **                                                                                                                                |
| Closing Date:                | ** ** | **October 28,  2009, subject to extension by Seller up to November 24, 2009 per  Section 1.5**                             |

 

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**PURCHASE AND SALE AND ESCROW AGREEMENT**

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THIS**PURCHASE AND SALE AND ESCROW AGREEMENT** (this “**Agreement**”)****dated as ofthe 1st day of September, 2009, is made by and between **175 FREEMANSTREET INVESTORS LLC**, a Delaware limited liability company (“**Seller**”), with an office in care of UBS Realty InvestorsLLC, 242 Trumbull Street, Hartford, Connecticut 06103, and **THE HAMILTONCOMPANY,****INC.**, aMassachusetts corporation or its permitted assignee pursuant to Section 11.4hereof (“**Purchaser**”), with an office in care ofThe Hamilton Company, 39 Brighton Avenue, Boston, Massachusetts 02134.

 

**RECITALS :**

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Seller desires to sell certain improved real propertycommonly known as Dexter Park Apartments located at 175 Freeman Street,Brookline, Massachusetts, along with certain related personal and intangibleproperty, and Purchaser desires to purchase such real, personal and intangibleproperty.

 

**A G R E E M E N T S:**

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**NOW, THEREFORE,**in consideration of the foregoing, of the covenants, promises and undertakingsset forth herein, and for good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, Seller and Purchaser hereby agreeas follows:

 

**1.     TheProperty**.

 

1.1.          Description.  Subject to the terms and conditions set forthin this Agreement, and for the consideration herein set forth, Seller agrees tosell and transfer, and Purchaser agrees to purchase and acquire, all of Seller’sright, title, and interest in and to the following (collectively, the “**Property**”):

 

1.1.1.       Certainreal property (the “**Land**”) locatedin Brookline, Norfolk County, Massachusetts and more specifically described in Exhibit 1.1.1attached hereto;

 

1.1.2.       Allimprovements located on the Land, including, but not limited to, a 409-unitapartment building located at 175 Freeman Street, Brookline, Massachusetts andcommonly known as the “Dexter Park Apartments” (the “**Building**”),and all other structures, parking areas, systems, fixtures, and utilitiesassociated with, and utilized by Seller in the ownership and operation of theBuilding (all such improvements, together with the Building, being referred toherein collectively as the “**Improvements**”);

 

1.1.3.       Allfurniture, artwork, personal property, machinery, appliances, tools, buildingmaterials, hardware, carpeting, apparatus, and 

 

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equipment currently used in the operation, repair and maintenance ofthe Land and Improvements and situated thereon (collectively, the “**Personal Property**”), generally described on  Exhibit 1.1.3 attached hereto,but expressly excluding all furniture, artwork, personal property, equipment,fixtures, appliances, machinery, tools, building materials, apparatus and allother personal property owned by tenants of the Building, public or privateutilities or contractors working at the Property, except, in each of theforegoing cases, to the extent of any reversionary or other interest of Sellertherein.  The Personal Property to beconveyed is subject to depletions, replacements and additions in the ordinarycourse of business and contractual and legal transfer and use restrictions;

 

1.1.4.       Allrights, easements, hereditaments, interests, and appurtenances belonging to orinuring to the benefit of Seller and pertaining to the Land, if any, includingany development rights and water or mineral rights owned by or leased toSeller, if any;

 

1.1.5.       Anystreet or road abutting the Land to the center lines thereof;

 

1.1.6.       Theleases and occupancy agreements, as amended, prior to the date hereof,including those in effect on the date of this Agreement which are identified onthe Schedule of Leases attached hereto as Exhibit 1.1.6, and anynew leases entered into pursuant to Section 4.4, which as of the ClosingDate (as hereinafter defined) affect all or any portion of the Land orImprovements (collectively, the “**Leases**”), andany security and other deposits and prepaid rent actually held by Seller as ofthe Closing (as hereinafter defined) with respect to any such Leases;

 

1.1.7.       To the extent Purchaser elects to have thesame assigned to Purchaser pursuant to Section 3.3, and Subject to Section 3.3,all assignable contracts and agreements andequipment leases (collectively, the “**Contracts**”)relating to the operation, repair or maintenance of the Land, Improvements orPersonal Property the terms of which extend beyond midnight of the daypreceding the Date of Closing (as hereinafter defined);

 

1.1.8.       Tothe extent assignable without the consent of third parties, all trademarks,trade names including the name “Dexter Park”, it being understood that Sellerhas not registered any property rights in such name, domain names, permits,approvals, entitlements and other intangible property (including the telephonenumber for the Property) owned by Seller, if any, and used solely in connectionwith the Property, including, without limitation, all of Seller’s right, titleand interest in any and all transferable, unexpired warranties and guaranties(collectively, the “**Intangible PersonalProperty**”); and

 

1.1.9.       Alltransferable consents, authorizations, variances or waivers, licenses, permitsand approvals from any governmental or quasi-governmental agency, department,board, commission, bureau or other entity or 

 

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instrumentality held by the Seller in respect of the Land orImprovements (collectively, the “**Approvals**”).

 

1.2.          Purchase Price.  The total purchase price to be paid for theProperty (“**Purchase Price**”) is ONE HUNDREDTWENTY-NINE MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($129,500,000.00).

 

1.3.          Payment.  Payment of the Purchase Price is to be madeas follows:

 

1.3.1.       (a)           Purchaser shall make an earnest moneynon-refundable deposit of FIVE MILLION DOLLARS ($5,000,000.00) (the “**Deposit**”) prior to 5:00 p.m. (Eastern Time) of thesecond business day immediately following the date of this Agreement.

 

(b)           TheDeposit shall be placed and held in escrow by First American Title InsuranceCompany at 101 Huntington Avenue, Boston, Massachusetts (“**Title Company**”****and****“**Escrow Agent**”) in an account insuredby the Federal Deposit Insurance Corporation (“**FDIC**”)and the Depositors Insurance Fund (“**DIF**”) using Purchaser’s tax identification numberat a mutually acceptable savings bank chartered in Massachusetts.  Any interest, if any, earned and accrued onthe Deposit shall be considered as part of the Deposit.  Except as otherwise provided in thisAgreement, the Deposit shall be applied to the Purchase Price at Closing.  Escrow Agent shall confirm receipt of theDeposit.  The failure by Purchaser todeposit with Escrow Agent any portion of the earnest money Deposit within thetime-frame for doing so shall at the option of Seller exercised by writtennotice to Purchaser and without right of cure by Purchaser result in theimmediate, automatic cancellation and termination of this Agreement.

 

1.3.2.       AtClosing, the Purchaser shall pay Seller the Purchase Price, inclusive of theDeposit and subject to adjustments and pro rations as expressly providedherein, to a bank account designated by Seller via wire transfer or other formof immediately available funds.

 

1.3.3.       In addition to being an all cashtransaction, Purchaser’s obligation to purchase the Property is not contingentupon Purchaser’s ability to obtain financing for the purchase of the Property.

 

1.4.          IndependentConsideration.  Contemporaneouslywith the execution and delivery of this Agreement, Purchaser has paid to theSeller as further consideration for this Agreement, the amount of One Thousandand No/Dollars ($1,000.00) (“**Independent Consideration**”)in addition to the Deposit and independent of any other consideration providedfor hereunder, which Independent Consideration is fully earned by Seller and isnot refundable under any circumstances, but which shall be applied to thePurchase Price at Closing.

 

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1.5.          Closing.  Payment of the Purchase Price and closinghereunder (the “**Closing**”) will take place pursuantto a deed and money escrow closing on or before October 28, 2009, at theoffices of the Title Company at 10:00 a.m. local time or at such othertime and place as may be agreed upon in writing by Seller and Purchaser (theaforesaid date, or such other date as may be agreed upon by the parties, beingreferred to in this Agreement as the “**Closing Date**”or the “**Date of Closing**”).  The parties agree that Closing can occur bydelivery of the closing documents and the Purchase Price to the Title Companypursuant to written instruction letters and that the parties do not have tophysically attend the Closing.  TheClosing Date is of extreme importance to Seller as the Purchase Price is neededby Seller on the Closing Date in order to satisfy certain obligations ofSeller, and Purchaser’s covenant to close the transaction contemplated by thisAgreement on the Closing Date constitutes a material inducement to the entry bySeller into this Agreement.  Seller shallhave the one-time right to extend the Closing Date to a date not later than November 24,2009 by delivering to Purchaser, at least seven (7) days prior to theClosing Date, a written notice informing Purchaser of Seller’s election toextend the Closing Date and specifying the extended Closing Date.

 

1.6.          Agreement to Convey.  Seller shall convey, and Purchaser shallaccept, title to the Land and Improvements by a Massachusetts quitclaim deedand title to the Personal Property, by bill of sale, without warranty as to thetitle or the condition of such personalty, with warranty of title as to claimsand demands of all persons claiming by, through, or under Seller, but againstnone other.

 

**2.     “AsIs” Purchase**.

 

2.1.          No Reliance by Purchaser.

 

(a)                 Asa material inducement for Seller entering into this Agreement, Purchaserexpressly acknowledges and agrees that the Property is being sold, andPurchaser is acquiring the Property, in its present condition and state ofrepair.  Purchaser shall accept theProperty in an **“AS IS” “WHERE IS”**condition and **“WITH ALL FAULTS”** asof the date of this Agreement and as of the Closing.

 

(b)           Seller: (i) has informed Purchaser that theImprovements are in excess of twenty (20) years in age and the Property was notdeveloped or constructed by Seller or any affiliate, agent or contractor ofSeller; and (ii) has delegated the day-to-day management of the Propertyto an unaffiliated third party property management company (the “**Manager**”).

 

(c)           Purchaser understands and expressly acknowledges thatunknown liabilities may exist with respect to the Property, that Purchaserexplicitly took that possibility into account in determining and agreeing tothe Purchase Price, and that a portion of such consideration, having beenbargained for between the parties with the knowledge of the possibility ofliabilities, shall be 

 

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given inexchange for a full accord and satisfaction and discharge of Seller of all suchliabilities.

 

(d)           Purchasershall not rely on any warranties, promises, understandings or representations,express or implied, of Seller, any Seller Party (as defined below) or anyagent, contractor or employee of Seller or a Seller Party relating to the Property,the physical condition, development potential, operation, or income generatedby the Property or any other matter or things affected by or related to theProperty, except as may be expressly contained in this Agreement or the closingdocuments identified herein, and no such representation or warranty shall beimplied with respect to the Property. Without limiting the generality of the foregoing disclaimer ofrepresentations and warranties, except as may be expressly contained in thisAgreement or the closing documents identified herein, Seller specificallydisclaims any warranties or representations of any kind or character, expressor implied, with respect to (i) matters of title, (ii) environmentalmatters relating to the Property or any portion thereof, including, withoutlimitation, the presence of Hazardous Materials, including asbestos, or anyharmful or toxic materials in, on, under or in the vicinity of the Property, (iii) geologicalconditions, including, without limitation, subsidence, subsurface conditions,water table, underground water reservoirs, limitations regarding the withdrawalof water, and geologic faults and the resulting damage of past and/or futurefaulting, (iv) whether, and the extent to which the Property or anyportion thereof is affected by any stream (surface or underground), body ofwater, wetlands, flood prone area, flood plain, floodway or special floodhazard, (v) drainage, (vi) soil conditions, including the existenceof instability, past soil repairs, soil additions or conditions of soil fill,or susceptibility to landslides, or the sufficiency of any undershoring, (vii) thepresence of endangered species or any environmentally sensitive or protectedareas, (viii) zoning or building entitlements to which the Property or anyportion thereof may be subject, (ix) the availability of any utilities tothe Property or any portion thereof including, without limitation, water,sewage, gas and electric, (x) usages of adjoining Property, (xi) access tothe Property or any portion thereof, (xii) the Property’s compliance with anysite plans or other plans and specifications, or the size, location, age, use,design, quality, description, suitability, structural integrity or soundness,state of repair, water-tightness, operation, habitability, quality ofconstruction or physical condition of the Property or any portion thereofincluding, without limitation, the plumbing, sewer, heating, ventilating, airconditioning and electrical systems, roofing, windows, balconies, walls, floorsand foundations, (xiii) except for the representations and warranties expresslycontained in this Agreement, the value, title or financial condition of theProperty, or any income, expenses, charges, liens, encumbrances, rights orclaims on or affecting or pertaining to the Property or any part thereof, (xiv)the condition or use of the Property or compliance of the Property with any orall past, present or future federal, state or local ordinances, rules,regulations or laws, building, fire, parking or zoning ordinances, codes orother similar laws, including without limitation the Americans withDisabilities Act, (xv) the existence or non-existence 

 

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of underground storage tanks, surface impoundments, or landfills, (xvi)the merchantability of the Property or fitness of the Property for anyparticular purpose, (xvii) tax consequences, or (xviii) any other matter orthing with respect to the Property.  A “**Seller Party**” is defined as the member of Seller, the Manager,UBS Realty Investors LLC (“**UBS**”) (Seller’sadvisor), and their respective officers, members, partner(s) and agents ofSeller, Seller’s member, and UBS.

 

(e)           Seller does not make,has not made, and specifically disclaims any representation or warrantyregarding the suitability of the Property for condominium ownership, including,without limitation, any representation or warranty regarding the statutes,laws, codes, rules, regulations, orders or decrees governing the conversion ofthe Property to condominium ownership. If Purchaser desires to convert the Property to condominium ownership,Purchaser shall not, until after the Closing Date, (i) file any conversionor condominium application, declaration, request for approval or otherinstrument(s) with the governing authorities; (ii) notify tenants ofthe Property of the proposed conversion; (iii) advertise or publicize theproposed condominiums, or (iv) make or accept any offers, deposits orreservations for condominium sales.  Inthe event that Purchaser converts or attempts to convert the Property tocondominium ownership, Purchaser shall indemnify, defend and hold Seller freeand harmless from any loss, injury, damages, claims, liens, costs or expenses,including attorneys’ fees and costs, arising out of or in connection with theconversion or attempted conversion of the Property to condominium ownership,including, without limitation, any claims from tenants of the Property and anyclaims arising in connection with the physical condition of the Property.

 

2.1.1.       Purchaseracknowledges and agrees that it has had the opportunity to fully inspect andinvestigate the Property and matters relevant to the Property and shall makeall inquiries, inspections, tests, audits, studies and analyses that it deemsnecessary or desirable in connection with the Property (subject to theprovisions of Section 3.1 of this Agreement) and approve or disapprove inits sole discretion the results of its investigations and inspections(including engineering, structural or other tests with respect to the conditionof the Property). Purchaser relied solely upon the results of Purchaser’s owninspections and judgment and other information obtained or otherwise madeavailable to Purchaser, rather than any information of Seller, in determiningwhether to purchase the Property.  Sellerwas and is under no duty to make affirmative disclosures or inquiry regardingany matter which may or may not be known to Seller or any Seller Party, andPurchaser, for itself and for its successors and assigns, hereby specificallywaives and releases Seller and each Seller Party from any such duty thatotherwise might exist.

 

2.1.2  Purchaser hereby waives and releases Seller, and each Seller Party, fromany and all present or future claims, demands, causes of actions, losses,damages, including, without limitation, exemplary, punitive, indirect orconsequential, special or other damages, liabilities, costs and 

 

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expenses (including attorney’s fees whethersuit is initiated or not) whether known or unknown, liquidated or contingent(hereinafter collectively called the “Claims”) arising from or relating toProperty, including, without limitation, any of the matters set  forth in this Section 2, as well as (i) anydefects, errors or omissions in the design, construction, repair, ormaintenance of the Property, or (ii) any environmental and other physicalconditions affecting the Property whether the same are a result of negligenceor otherwise.  The release set forth inthis Section specifically includes, without limitation, any Claims arisingin connection with the presence or alleged presence of asbestos or harmful ortoxic substances in, on, under or about the Property including, withoutlimitation, any claims under or on account of (i) the ComprehensiveEnvironmental Response, Compensation and Liability Act of 1980, as the same mayhave been amended or may be amended from time to time and similar statestatutes and any regulations promulgated thereunder; (ii) any otherfederal, state or local law, ordinance, rule or regulation, now orhereafter in effect, that deals with or otherwise in any manner relates to,environmental matters of any kind; or (iii) this Agreement or the commonlaw.  **The releaseset forth in this Section specifically includes, without limitation, anyclaims under the Americans with Disabilities Act of 1990 or similar state orlocal laws, as any of those laws may be amended from time to time and anyregulations, orders, rules of procedure or guidelines promulgated inconnection with such laws, regardless of whether they were in existence on thedate of this Agreement.  Purchaseracknowledges that Purchaser has been represented by independent legal counselof Purchaser’s selection and Purchaser is granting this release of its ownvolition and after consultation with Purchaser’s counsel.  The waiver and release of claims by Purchaserin this Section does not obligate Purchaser to indemnify Seller or anySeller Party against any such claims brought by third parties.**

 

**INITIALS: PURCHASER:**

 

2.2.          Merger andSurvival.  All understandings andagreements heretofore made between the parties or their respective agents orrepresentatives are merged in this Agreement and the Exhibits hereto annexed,which alone fully and completely express their agreement, and this Agreementhas been entered into after full investigation, or with the Purchaser satisfiedwith the opportunity afforded for investigation, neither party relying upon anystatement or representation by the other unless such statement orrepresentation is specifically embodied in this Agreement or the Exhibitsannexed hereto.  ** **Allthe terms and provisions of Section 2.1 and 2.2 shall survive Closing orany termination of this Agreement.

 

**3.     Inspections**.

 

3.1.          Inspections.  Purchaseracknowledges and agrees that it has had the opportunity to fully inspectand investigate the Property and matters relevant to the Property and has madeall inquiries, inspections, tests, audits, studies and analyses that it deemsnecessary or desirable in connection with the Property, and that Purchaser has

 

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no further right toconduct any further inspection or investigation of the Property, except solelyto the extent Purchaser’s mortgage lender reasonably requires the same inconnection with the underwriting of Purchaser’s acquisition financing for theProperty, to the extent described in this Section 3.1.

 

3.1.1.       Tothe extent reasonably required by Purchaser’s mortgage lender in connectionwith its underwriting of Purchaser’s acquisition financing for the Property,Seller has made and shall make available (at no cost to Seller) to Purchaserand its employees, representatives, counsel, access to the Property duringnormal business hours and to documents, materials, reports, books, records andfiles relating to the Property including, without limitation, Leases, tenantfiles, tenant correspondence, and the financial information available toPurchaser on the Dexter Park data site at http://www.peracon.com.  However, Seller shall have no ongoingobligation to provide any “**Excluded Items**”which shall mean all of the following materials, except to the extentpreviously provided by Seller on the Dexter Park data site athttp://www.peracon.com as of the date of this Agreement:  (i) Seller’s financial analyses orprojections, Investment Committee information, including Seller’spre-acquisition due diligence materials, acquisition files on the Property andthe book value of the Property; (ii) material which is subject to attorneyclient privilege or which is attorney work product; (iii) marketvaluations, appraisals, insurance policies, any engineering, or inspectionreports or proposals or bids for repairs to the Property or any portion thereofor any current operating budgets for the Property; (iv) financials ofSeller or any affiliate of Seller; (v) material which Seller is legallyrequired not to disclose; or (vi) any of Seller’s entity-relatedinstruments, files or correspondence, including tax returns.

 

3.1.2.       Tothe extent reasonably required by Purchaser’s mortgage lender in connectionwith its underwriting of Purchaser’s acquisition financing for the Property,subject to the rights of tenants at the Property, Purchaser and the “PurchaserParties” (defined in Section 3.6 below) shall be given reasonable accessduring normal business hours to the Property for the purpose of making furthernon-intrusive physical or environmental inspections of the Property.  When making any non-intrusive physical orenvironmental inspection(s) of the Property, Purchaser shall carry theinsurance coverages set out on Exhibit 3.1.2 attached hereto, and, uponrequest of Seller, shall provide Seller with written evidence of same.  Purchaser and its agents shall not interferewith the business activity of Manager, tenants, tenants’ customers oremployees, or any persons occupying or providing goods or services at theProperty, shall not reveal to any third party other than the Purchaser Partiesand persons approved by Seller the results of its inspections other than alender in connection with its decision to finance Purchaser’s acquisition ofthe Property and provided that such lender has been advised of thisconfidentiality restriction and has agreed to abide by it (except as may berequired by law), and shall restore promptly any physical damage caused by suchinspection(s).  Purchaser shall notdamage the Property and shall immediately restore the Property and removeanything placed on the Property in connection with its inspection(s).

 

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Purchaser shall give Seller two(2) business days prior notice of its intention to conduct any inspection(s) ortenant interviews, and Seller reserves the right to have a representativepresent.  Purchaser shall provide Sellerwith a copy of any inspection report in Purchaser’s possession promptly upon Seller’swritten request, which obligation shall survive Closing or any termination ofthis Agreement.  Purchaser shallindemnify, defend, and hold Seller and any Seller Party free and harmless fromany loss, injury, damage, claim, lien, cost or expense, including attorney’sfees and costs, arising out of a breach of the foregoing by Purchaser inconnection with the inspection of the Property, or otherwise from the exerciseby Purchaser or its agents or representatives of the right of access under thisSection 3.1.2. (collectively, the “**Purchaser’s IndemnityObligations**”), which agreement shall survive Closing or terminationof this Agreement for a period of 12 months. Any inspections shall be at Purchaser’s expense.  Purchaser’sIndemnity Obligations shall survive Closing or any termination of thisAgreement.

 

3.1.3.       Exceptas otherwise provided in this Agreement, Seller makes no representations orwarranties as to the truth, accuracy or completeness of any materials, reports,data or other information supplied to Purchaser (or indirectly to Purchaser’smortgage lender) by Seller or a Seller Party or any of their respective agents,employees or contractors****inconnection with Purchaser’s inspection of the Property (e.g., that suchmaterials are current, complete, accurate or the final version thereof, or thatall such materials are in Seller’s possession). It is the parties’ express understanding and agreement that suchmaterials are provided only for Purchaser’s convenience, and Purchaser shallrely exclusively on its own independent investigation and evaluation of everyaspect of the Property and not on any materials supplied by Seller or  a Seller Party or any of their respectiveagents, employees or contractors. Purchaser expressly disclaims any intent to rely on any such materialsprovided to it by Seller or a Seller Party or any of their respective agents,employees or contractors in connection with its inspection and agrees that itshall rely solely on its own independently developed or verified informationand Purchaser further acknowledges and agrees that such materials were providedon the express condition that Purchaser shall make and independent verificationof the accuracy of such information.  Theterms and provisions of this Section 3.1.3 shall survive the Closing orany termination of this Agreement.

 

3.2.         Title and Survey.  Prior to the execution of this Agreement,Seller has delivered or caused to be delivered to Purchaser, and Purchaseracknowledges receipt of, (i) a preliminary title report or a commitmentfor an ALTA owner’s standard coverage owner’s policy of title insuranceinsuring fee title to the Property, together with copies of all items shown asexceptions to title therein, issued by the Title Company and identified asCommitment No. 405838, dated July 26, 2009 (the “**TitleCommitment**”), and (ii) a copy of Seller’s survey of the Landdated March 29, 2001 and last revised on April 11, 2001 (the “**Survey**”).  All mattersof title described on the Title Commitment and the Survey, other than delinquenttaxes and assessments and security instruments for existing mortgageindebtedness secured by the Property, are hereby declared to be 

 

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acceptable to Purchaserand shall be deemed “**Permitted Encumbrances**”hereunder.  At or prior to Closing,Seller shall be obligated to: (a) pay all delinquent taxes andassessments, (b) satisfy and/orcause to be released the security instruments for existing indebtedness securedby the Property, and (c) remove any exceptions caused by Seller’svoluntary acts after July 26, 2009 and not approved by Purchaser.

 

Subject to Section 4.5of this Agreement, Seller shall not, after the date of this Agreement, byvoluntary act, intentionally create any new easements, liens, deeds of trust,mortgages, covenants, restrictions, agreements or any other encumbrances totitle to all or any portion of the Property without the prior written consentof Purchaser.

 

NeitherPurchaser nor Seller shall incur any liability to the other in connection withthe selection of the Title Company or the surveyor retained in connection withthe transaction contemplated by this Agreement or in connection with the lossby Title Company of the Deposit or any other amounts deposited by either partyinto the escrow.

 

3.3.          Contracts.  On or before the date which is thirty (30)days prior to the Closing Date, Purchaser shall notify Seller in writing if itelects not to assume at Closing any of the Contracts which are identified on Exhibit 3.3(the “**Contracts**”) attachedhereto.  Seller shall give notice oftermination of such disapproved Contract(s) as of the Closing Date;provided that, if under the disapproved Contract(s) Seller has no right toterminate same on or prior to Closing, or if a termination fee or charge is duethereunder as a result of such termination, Purchaser shall (i) assume atClosing all obligations thereunder from the Date of Closing until theexpiration dates of such Contracts or (ii) reimburse Seller for thepayment of the termination-related fee or charge, as applicable.  Unless Purchaser gives such written notice toSeller in the time period described above, Purchaser will be deemed to haveapproved same, and such Contracts will be assigned by Seller and assumed byPurchaser at Closing.

 

3.4.          Intentionally Omitted.

 

3.5.          Lead-Based Paint.  Purchaser acknowledges that it has hadsufficient time in which to conduct a risk assessment or inspection of theProperty for the presence of lead-based paint and/or lead-based paint hazards,and that by electing to proceed with the purchase of the Propertynotwithstanding its termination right pursuant to this Section 3.5,Purchaser shall accept the Property at Closing “AS IS, WHERE IS, WITH ALLFAULTS” with respect to, among other things, the presence or possible presenceat the Property of lead-based paint and/or lead-based paint hazards.  Purchaser acknowledges that it has beenprovided with the notice regarding lead-based paint and/or lead-based painthazards attached hereto as Exhibit 3.5, together with all otherdeliveries required to be made by sellers of real property under applicablelaw.

 

3.6.          Confidentiality.  Unless Seller specifically and expresslyotherwise agrees in writing, all information regarding the Property madeavailable to Purchaser by Seller or Seller’s agents or representatives (the “**Proprietary Information**”) is confidential (except to theextent such information is already in the public domain) and 

 

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shall not be disclosed, exceptas may be required by law, to any other person except those due diligenceprofessionals or entities assisting Purchaser with the transaction, orPurchaser’s lender, if any (collectively, the “**PurchaserParties**”) and then only upon Purchaser making such person aware ofthe confidentiality restriction and procuring such person’s agreement to bebound thereby.  If the purchase and salecontemplated hereby fails to close for any reason whatsoever, Purchaser shallreturn to Seller, or cause to be returned to Seller, all ProprietaryInformation.  Unless the transactioncontemplated by this Agreement is consummated, Purchaser shall not use or allowto be used any Proprietary Information for any purpose other than to determinewhether to proceed with the contemplated purchase, or if same is consummated,in connection with the operation of the Property post-Closing.  The foregoing shall not be deemed to preventPurchaser from complying with laws, rules, regulations and court orders,including, without limitation, governmental regulatory, disclosure, tax andreporting requirements, which may require disclosure of Proprietary Informationotherwise required to be kept confidential pursuant to this Section 3.6,but only to the extent such disclosure is required by any of theforegoing.  Notwithstanding any otherterm of this Agreement, the provisions of this Section 3.6 shall surviveClosing for a period of six (6) months, and shall survive any terminationof this Agreement indefinitely. Notwithstanding the foregoing, it shall not be a breach of thisAgreement to disclose such Proprietary Information to a person who alreadyknows such information.

 

**4.     Priorto Closing**.

 

Until Closing,Seller or Seller’s agent shall:

 

4.1.          Insurance.  Keep the Property insured against fire andother hazards covered by extended coverage endorsement and commercial publicliability insurance against claims for bodily injury, death and property damageoccurring in, on or about the Property, substantially in accordance withcurrent coverages.

 

4.2.          Operation.  Subject to the Leases, operate and maintainthe Property in a businesslike manner and substantially in accordance withSeller’s past practices with respect to the Property, and make any and allrepairs and replacements reasonably required to deliver the Property toPurchaser at Closing in its present condition, normal wear and tear excepted,provided that (i) Seller shall have no obligation to make extraordinarycapital expenditures or expenditures outside Seller’s normal course of business,and (ii) in the event of any loss or damage to the Property as describedin Section 7, Seller shall repair the Property only if Seller is obligatedto do so under the Leases and if Seller so elects and then only to the extentof available insurance proceeds. Purchaser shall not contact, deal with, or negotiate with tenants,subtenants or prospective tenants or subtenants, of the Property without priorwritten consent of Seller and shall notify Seller promptly if any tenant, orprospective tenant, contacts Purchaser.

 

4.3.          New Contracts.  Enter into only those third party contractswhich are reasonably necessary to carry out its obligations under Section 4.2and, provided 

 

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such terms are availableon a commercially reasonable basis, which shall be cancelable on no more thanthirty (30) days written notice.

 

4.4.          New Leases.  Continue its present rental program andefforts at the Property to rent apartment units and renew expiring leases.

 

4.5.          New Liens.  Not create any new encumbrance or lienaffecting the Property other than liens and encumbrances (i) that can bedischarged prior to Closing, and (ii) that in fact are discharged atSeller’s expense prior to or at the Closing.

 

4.6.          Copiesof Written Notices. Seller shall, fromand after the date hereof, promptly provide Purchaser with copies of allwritten notices received by Seller after the date hereof which assert anymaterial breach of Leases, agreements, laws, covenants or permits applicable tothe Property.

 

4.7.          Lease Terminations; Defaults.  Nothing herein shall in any way affect orrestrict the right of Seller to seek to enforce its rights under any Lease orpermit the early termination of any Lease; provided, however, that such actionis consistent with what a reasonable and prudent property owner would do underthe circumstances then existing.

 

4.8.          Notices of Lease; SNDA.  Seller shall use commercially reasonableefforts to cooperate with Purchaser to obtain: (a) a release (inrecordable form) of that certain Notice of Lease dated May 1, 1992 betweenDexter Park Limited Partnership, as lessor, and Lundermac Co., Inc., aslessee, recorded with the Norfolk County, Massachusetts Registry of Deeds inBook 9381 at Page 545; (b) a release (in recordable form) of thatcertain Notice of Lease dated May 27, 1997 between Dexter Park LimitedPartnership, as lessor, and Lundermac Co., Inc., as lessee, recorded withthe Norfolk County, Massachusetts Registry of Deeds in Book 11886 at Page 92;and (c) a subordination agreement from Lundermac Co., Inc., aslessee, in favor of Purchaser’s first mortgage lender providing acquisitionfinancing, in such form as may be reasonably requested by said mortgage lender,pertaining to the lease identified in that certain Notice of Lease dated July 2,2001 between 175 Freeman Street Investors, LLC, as lessor, and Lundermac Co., Inc.,as lessee, recorded with the Norfolk County, Massachusetts Registry of Deeds inBook 15635 at Page 446.  The abilityof Purchaser and/or Seller to obtain any of the foregoing documents is not acondition precedent to the Closing, and nothing contained in this Section 4.8shall be construed as excluding the above-described notices of lease from thedefinition of “Permitted Exceptions”.

 

**5.     Representationsand Warranties**.

 

5.1.         By Seller.

 

(a)           Seller representsand warrants to Purchaser that, except as otherwise disclosed to Purchaser:

 

5.1.1.       Seller is a limited liabilitycompany duly organized, validly existing and in good standing under the laws ofthe State of Delaware, is 

 

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qualified to do business in the Commonwealth of Massachusetts, has dulyauthorized the execution and performance of this Agreement, and such executionand performance will not violate any material term of its operating agreement.

 

5.1.2.       Sellerhas not, and as of the Closing Seller shall not have, (a) made a generalassignment for the benefit of creditors, (b) filed any voluntary petitionin bankruptcy or suffered the filing of any involuntary petition by Seller’screditors, (c) suffered the appointment of a receiver to take possessionof all, or substantially all, of Seller’s assets, which remains pending as ofsuch time, (d) suffered the attachment or other judicial seizure of all,or substantially all, of Seller’s assets, which remains pending as of suchtime, (e) admitted in writing its inability to pay its debts as they comedue, or (f) made an offer of settlement, extension or composition to itscreditors generally.

 

5.1.3.       Selleris not, and as of the Closing shall not be, a “foreign person” as defined in Section 1445of the Internal Revenue Code of 1986, as amended (the “**Code**”)and any related regulations.

 

5.1.4.       Subjectto Section 11.17, below, Seller is acting as principal in this transactionwith authority to close the transaction. This Agreement has been duly executed and delivered by it andconstitutes its legal, valid and binding obligation, enforceable against it inaccordance with its terms, except as such enforceability may be limited bybankruptcy, insolvency, reorganization, moratorium or other laws affectingcreditors’ rights and by general principles of equity (whether applied in aproceeding at law or in equity).

 

5.1.5.       ToSeller’s knowledge, no portion of the Property is the subject of a current,pending or threatened condemnation proceeding which would have a materiallyadverse impact on the Property.

 

5.1.6.       TheSchedule of Leases attached hereto as Exhibit 1.1.6 is a true and correctcopy, as of its date, of the rent roll used by and relied upon by Seller in itsownership and management of the Property.

 

5.1.7.       Thereis no action, suit, hearing, arbitration or proceeding pending, or to the bestof Seller’s knowledge, threatened, against Seller with respect to the Property,before any court, tribunal or governmental authority.

 

5.1.8.       Thetwelve (12) month actual-to-budget operating statements of the Property for2007, 2008 and year-to-date 2009, as posted on the Dexter Park data site athttp://www.peracon.com, are the reports relied upon by Seller, its member andits partners in their reporting for the operations of the Property during suchtime periods.

 

(b)           Seller shall have no liability withrespect to a breach of the representations and warranties set forth above tothe extent that Purchaser 

 

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proceeds with the closing of the transaction contemplated hereby withactual knowledge of such breach or should have known of such breach, throughthe exercise of reasonable diligence prior to the Closing Date.

 

5.2.         Condition Precedent.           It shall be a condition precedent toPurchaser’s obligation to purchase the Property from Seller that (i) allof Seller’s representations and warranties contained in or made pursuant tothis Agreement shall have been true and correct in all material respects whenmade and remain true and correct in all material respects as of the ClosingDate, (ii) the Title Company shall be irrevocably and unconditionallycommitted to issue the Title Policy to Purchaser upon payment of its premiumand other charges; and (iii) Seller shall have performed its obligationspursuant to Section 4.2 hereof.

 

5.3.         By Purchaser.

 

(a)           Purchaserrepresents and warrants to Seller that, except as otherwise disclosed toSeller.

 

5.3.1.       Purchaseris a Massachusetts corporation duly organized, validly existing and in goodstanding under the laws of such State, is authorized to do business in theCommonwealth of Massachusetts, has duly authorized the execution and performanceof this Agreement, and such execution, delivery, and performance will notviolate any material term of any of its constitutive documents.

 

5.3.2.       Purchaserhas not, and as of the Closing Purchaser shall not have (a) made a generalassignment for the benefit of creditors, (b) filed any voluntary petitionin bankruptcy or suffered the filing of any involuntary petition by Purchaser’screditors, (c) suffered the appointment of a receiver to take possessionof all, or substantially all, of Purchaser’s assets, which remains pending asof such time, (d) suffered the attachment or other judicial seizure ofall, or substantially all, of Purchaser’s assets, which remains pending as ofsuch time, (e) admitted in writing its inability to pay its debts as theycome due, or (f) made an offer of settlement, extension or composition toits creditors generally.

 

5.3.3.       Purchaseris not, and as of the Closing shall not be, a “foreign person” as defined in Section 1445of the Code and any related regulations.

 

5.3.4.       Purchaseris acting as principal in this transaction with authority to close thetransaction.  This Agreement is the validand legally binding obligation of Purchaser.

 

5.3.5.       Purchaseris a sophisticated investor in commercial real estate and has and will performsuch due diligence of the Property and its condition (financial and otherwise)as Purchaser deems appropriate.

 

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5.3.6.       Purchaserhas reviewed the Leases, Contracts, expenses and other matters relating to theProperty and based upon the representations and warranties of Seller expresslycontained in this Agreement and its own investigations, inspections, tests andstudies, determined whether to purchase the Property and assume Seller’s rightsand obligations under the Leases, Contracts and otherwise with respect to theProperty.

 

5.3.7.       Unlessotherwise disclosed to Seller in writing, neither Purchaser nor any affiliateof or principal in Purchaser is other than a citizen of, or partnership, corporationor other form of legal person domesticated in the United States of America.

 

5.3.8.       NeitherPurchaser nor any principal of Purchaser who owns a 20% or greater direct orindirect ownership interest in Purchaser is a person or entity described by Section 1of Executive Order 13,224, and neither Purchaser nor any such principal ofPurchaser engages in any dealings or transactions, or is otherwise associated,with any such persons or entities including the governments of Cuba, Iran,North Korea, Myanmar, Sudan, Syria, and Venezuela.

 

5.3.9.       The execution, delivery and performance byPurchaser of its obligations under this Agreement do not and will notcontravene or constitute a default under any provisions of applicable law orregulation or any agreement, judgment, injunction, order, decree or otherinstrument binding on Purchaser.

 

(b)           Purchaser shall have no liability with respect to a breachof the representations and warranties set forth above to the extent that Sellerproceeds with the closing of the transaction contemplated hereby with actualknowledge of such breach or should have known of such breach, through theexercise of reasonable diligence prior to the Closing Date.

 

5.3.10.     Purchaseris entering into this transaction solely for commercial purposes, and is asophisticated business entity with significant experience in purchasing realproperty similar to the Property located in the metropolitan Boston real estatemarket.  Purchaser acknowledges that itsrepresentations and warranties are a material inducement to Seller’swillingness to agree to enter into this transaction with Purchaser, and thatbut for the representations and warranties contained in this paragraph, Sellerwould not execute and deliver this Agreement.

 

5.4.         Condition Precedent. It shall bea condition precedent to Seller’s obligation to sell the Property to Purchaserthat all of Purchaser’s representations and warranties contained in or madepursuant to this Agreement shall have been true and correct in all materialrespects when made and shall be true and correct in all material respects as ofthe Closing Date.  At the Closing,Purchaser and Seller shall each deliver to the other Seller a certificatecertifying that each of its representationsand warranties in this Agreement is true and correct as of the Closing Date.

 

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5.5.         Mutual Representation.

 

(a)           Each of Seller andPurchaser represents to the other that it has had no dealings, negotiations, orconsultations on its own behalf, or for its benefit, with any broker,representative, employee, agent or other intermediary except Cushman andWakefield of Massachusetts, Inc., in connection with this Agreement or thesale of the Property.  Seller andPurchaser agree that each will indemnify, defend and hold the other free andharmless from the claims of any other broker(s), representative(s),employee(s), agent(s) or other intermediary(ies) claiming to haverepresented Seller or Purchaser, respectively, or otherwise to be entitled to compensationin connection with this Agreement or the sale of the Property.  This provision shall survive Closing for six (6) months.

 

(b)           Neither Seller nor Purchaser will knowingly take, or agreeto or commit to take, any action that would make any representation or warrantymade by such party inaccurate in any material respect at or prior to theClosing Date.

 

**6.     Costsand Prorations**.

 

6.1.         Purpose and Intent.  Except as expressly provided herein, thepurpose and intent of this Agreement is that Seller shall bear all expenses ofownership and operation of the Property and shall receive all income therefromaccruing through midnight at the end of the day preceding the Closing Date, andPurchaser shall bear all such expenses and receive all such income accruingthereafter.  This provision shall surviveClosing.

 

6.2.         Purchaser’s Costs.  Purchaser shall pay the following costs ofclosing this transaction:

 

6.2.1.       Thefees and disbursements of its counsel, inspecting architect and engineer, ifany;

 

6.2.2.       Any escrowfees;

 

6.2.3.       Anysales or use taxes relating to the transfer of Personal Property to Purchaser;

 

6.2.4.       Thecost of the issuance of any policy of title insurance issued in connection withthis transaction and any updates to the Title Commitment, including, withoutlimitation, any additional premium charge(s) for endorsements and/ordeletion(s) of exception items and any cancellation charge(s) imposedby Title Company in the event the policy of title insurance contemplated by theTitle Commitment is not issued.

 

6.2.5.       Thecost of any update to the copy of the Survey provided by Seller to Purchaser;

 

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6.2.6.       Anyrecording fees relating to the deed to be delivered by Seller hereunder andPurchaser’s other closing documents and Purchaser’s lender’s documents;

 

6.2.7.       Anyother expense(s) incurred by Purchaser or its representative(s) ininspecting or evaluating the Property or closing this transaction; and

 

6.3.         Seller’s Costs.  Seller shall pay the following costs ofclosing this transaction:

 

6.3.1.       Thefees and disbursements of its counsel;

 

6.3.2.       Thecost of any deed excise stamp taxes;

 

6.3.3.       Anyrecording fees relating to the documents to be recorded by Seller in order toclear title in the manner described by this Agreement;

 

6.3.4.       Thebroker’s fee to the extent any such fee is payable pursuant to the separateagreement with Cushman and Wakefield of Massachusetts, Inc. dated May 21,2009.

 

6.4.         Prorations.  Collected Rents and any other amounts (including,without limitation, payment of base rent, ground rent, parking income andreimbursements of Property operating costs) paid by tenants applicable to themonth in which the Date of Closing occurs or prepaid by tenants for monthsafter the month in which the Date of Closing occurs shall be prorated as of theDate of Closing and be adjusted against the Purchase Price on the basis of aschedule (the “**Rent Schedule**”) which shall beprepared by Seller and delivered to Purchaser. The Rent Schedule shall set forth (i) rents and other amountspayable applicable to the month in which the Date of Closing occurs, (ii) rentsand other amounts collected by Seller applicable to the month in which the Dateof Closing occurs, and (iii) rents and other amounts due but uncollectedand applicable to the month in which the Date of Closing occurs, (the latterunpaid obligations being referred to herein as the “**CurrentDelinquencies**”), as well as rental and other payment delinquencies(excluding those applicable to the month in which the Date of Closing occurs)which are owed to Seller but uncollected as of the Date of Closing (“**Delinquencies**”). Purchaser shall receive a credit against the Purchase Price for any cashsecurity and other deposits with respect to the Leases, which deposits are heldby Seller and have not been applied or forfeited as of Date of Closing.  Such cash deposits will be kept by Seller.

 

6.4.1.       Vaultcharges, sewer charges, utility charges and operating expenses actually paid orpayable by Seller as of the Date of Closing shall be prorated as of the Date ofClosing and adjusted against the Purchase Price, provided that within ninety(90) days after the Closing, Purchaser and Seller shall make a furtheradjustment for such charges which may have accrued or been incurred prior tothe Date of Closing, but not collected or paid at that date.  All

 

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prorations shall be made on a 365-day calendar year basis, using actualnumber of days in the month.

 

6.4.2.       Purchasershall pay at Closing, the fair market value of the fuel oil stored in anystorage tanks located at the Property, such amount to be determined by SupremeEnergy (Seller’s existing fuel oil retailer) based on a meter reading providedby Seller’s engineer within the seven (7) days immediately preceding theClosing Date (but in no event later than three (3) days immediatelypreceding the Closing Date).

 

6.5.         Taxes.     Real estate taxes, personal property taxes, special assessments(and installments thereof) and other governmental taxes and charges relating tothe Property, including annual or periodic permit fees, (collectively, “**Taxes**”) payable during the year in which Closing occursshall be prorated as of the Date of Closing and adjusted against the PurchasePrice.  If Closing occurs before theactual Taxes payable during such year are known, the proration of Taxes shallbe upon the basis of Taxes for the Property payable by Seller during theimmediately preceding year; provided, however, that if the Taxes payable duringthe year in which Closing occurs are thereafter determined to be more or lessthan the Taxes payable during the preceding year (after any appeal of theassessed valuation thereof is concluded), Seller and Purchaser promptly, exceptin the case of an ongoing tax protest), shall adjust the proration of Taxes andSeller or Purchaser, as the case may be, shall pay to the other any amountrequired as a result of such adjustment, and further provided that anyreproration of real estate taxes shall take into account only increases in thetax rate or millage, i.e., any portion of any real estate tax increaseattributable to an increase in assessed value shall not be taken intoaccount.  This covenant shall not mergewith the deed delivered hereunder but shall survive the Closing.

 

6.6.         In General.

 

(a)           Anyother costs or charges of closing this transaction not specifically mentionedin this Agreement shall be paid and adjusted in accordance with local custom inNorfolk County, Massachusetts.

 

(b)   (i) Noneof Seller’s insurance policies relating to the Property will be assigned toPurchaser, and Purchaser shall be responsible for arranging for its owninsurance as of the Closing Date; (ii) utilities paid by Seller, includingtelephone, electricity, water and gas, shall be read on as close as possible before the Closing Date and Purchaser withcooperation from Seller’s on-site Manager, if necessary, shall be responsiblefor all the necessary actions needed to arrange for utilities to be transferredto the name of Purchaser on the Closing Date, including the posting of anyrequired deposits (it being understood, however, that Seller shall be entitledto a credit at the Closing for any utility deposits which it or itspredecessors have made prior to the Closing Date, to the extent the same aretransferred to Purchaser, and Seller shall be entitled to recover and retainfrom the providers of such utilities any refunds or overpayments to the extentapplicable to the period prior to and including the Closing Date, and anyutility 

 

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deposits for which it does not receive a credithereunder); and (iii) on the Closing Date, the Property will not besubject to any financing obtained by Seller or its predecessors unlessPurchaser has expressly agreed to assume such financing.  Accordingly, there will be no prorations forinsurance, utilities (except to the extent provided above for utilitydeposits), payroll or debt service.  Inthe event a meter reading is unavailable for any particular utility or is readon a date other than the Closing Date, such utility bill shall be prorated inthe manner provided in Section 6.1.

 

6.7.          Closing Adjustment.  Escrow Agent shall prepare a closingstatement on the basis set out above, and shall endeavor to deliver suchcomputation to Purchaser and Seller at least two (2) business days priorto Closing.

 

6.8.          Post-Closing Reconciliation.  If any of the aforesaid prorations cannot becalculated accurately as of the Closing Date, then they shall be calculated assoon after the Closing Date as feasible, but in any event no later than December 31,2009. Notwithstanding any provision contained in this Agreement to thecontrary, after the expiration of said period, no further adjustments, creditsor prorations shall be made or allocated between the parties under thisAgreement for any of the items listed in this Section 6, except for anydelinquencies due to Seller and except for a reproration of Taxes pursuant to Section 6.5above in the event the Taxes for the year of Closing are not known as of theClosing Date.

 

6.9.          Post-Closing Collections.  Purchaser shall use its best efforts duringthe ninety (90) day period immediately following the Date of Closing to collectCurrent Delinquencies and Delinquencies. Amounts collected from tenants who or which, as of the Date of Closing,were obligors with respect to Current Delinquencies and/or Delinquencies shallbe applied first to satisfy such tenants’ obligations for the payment periodduring which collection occurred, second to satisfy Current Delinquencies,third to satisfy Delinquencies, and the balance to satisfy any other rental obligationsof such tenants to Purchaser. Amounts collected and applicable to satisfyCurrent Delinquencies shall be paid promptly to Seller to the extent of Seller’spro-rata entitlement thereto, and amounts collected and applicable to satisfyDelinquencies shall be promptly paid to Seller.

 

At the end ofthe ninety (90) day period following the Date of Closing, Purchaser shallprepare and deliver to Seller a statement (the “**CollectionStatement**”) identifying all payments collected during such ninety(90) days from tenants who were listed on the Rent Schedule prepared anddelivered pursuant to Section 6.4 hereof as obligors on CurrentDelinquencies or Delinquencies.  If anyuncollected Current Delinquencies or then unsatisfied Delinquencies exist,Purchaser hereby agrees to assign to Seller any and all rights afforded theobligee with respect thereto (with respect to Current Delinquencies, to theextent of Seller’s pro-rata entitlement thereto), whereupon Seller shall beentitled to take such steps, including the right to file suit, as Seller in itssole and absolute discretion deems necessary or appropriate to collect suchsums, excepting only the right to dispossess any tenant still in possession ofits further right to occupy the premises demised to it.  Such assignment shall be effective 

 

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automatically, without the need for execution or delivery of anyinstrument of assignment.  Upon requestof Seller, however, Purchaser shall execute and deliver to Seller suchinstrument(s) as Seller may reasonably request to confirm suchassignment.  Purchaser shall, at no costto Purchaser, cooperate with Seller in any manner reasonably requested bySeller in connection with any such collection effort.

 

Purchasershall keep and maintain at all times full and accurate books of account andrecords adequate to reflect correctly total rental and other payments collectedunder each of the Leases, and all such books and records shall be kept andshall be available to Seller for at least one year after the Date ofClosing.  Seller shall have the right toinspect, copy and audit such books of account and records at Seller’s expense,during reasonable business hours, and upon reasonable notice to Purchaser,whether such books and records are in the possession of Purchaser or any agentof Purchaser for the purpose of verifying the accuracy of the CollectionStatement and the rental and any other payments collected by Purchaser, whichwere earned during Seller’s ownership period, and which should have been paidto Seller pursuant to this Section  6.9.

 

6.10.        Other Items.  All cash in any operating, reserve or otherproperty accounts on the Closing Date shall belong to Seller.

 

6.11.        Survival.  The provisions of this Section 6 shallsurvive Closing.

 

**7.     Damage,Destruction or Condemnation**.

 

7.1.          Material Event.  If, prior to Closing, twenty percent (20%) ormore of the net rentable area of the Building or all access to the Property arerendered completely untenantable, or are destroyed or taken under power ofeminent domain, Purchaser may elect to terminate this Agreement by givingwritten notice of its election to Seller within five (5) business days after receiving notice of such destructionor taking.  If Purchaser does not givesuch written notice within such period, this transaction shall be consummatedon the date and at the Purchase Price provided for in Section 1, andSeller shall assign to Purchaser the physical damage proceeds of any insurancepolicy(ies) payable to Seller, or Seller’s portion of any condemnation award,as applicable, in both cases up to the amount of the Purchase Price plusone-half of any amounts in excess thereof, and including any rights of Sellerto prosecute, settle, compromise, or appeal such payments, and, if an insuredcasualty, pay to Purchaser the amount of any deductible, if not previously paidby Seller, but not to exceed the amount of the loss.

 

7.2.          Immaterial Event.  If, prior to Closing, less than twentypercent (20%) of the net rentable area of the Building is rendered completelyuntenantable or are destroyed, or are taken under power of eminent domain,Purchaser shall close this transaction on the date and at the Purchase Priceagreed upon in Section 1, and Seller shall assign to Purchaser its interestin the physical damage proceeds of any insurance policies payable to Seller,and including any rights of Seller to prosecute, settle, compromise, or appealsuch payments, and, if an insured casualty, pay to Purchaser 

 

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the amount of anydeductible not previously paid by Seller but not to exceed the amount of theloss.

 

7.3.         Cooperation.  Seller and Purchaser, as may be appropriate,shall cooperate in prosecuting, settling, and compromising any such condemnationaward and insurance claim.

 

7.4.         Termination and Return of Deposit.  If Purchaser elects to terminate thisAgreement pursuant to this Section 7, and if Purchaser is not, on the dateof such election, in material default of its obligation to have closed underthe Agreement, Seller shall promptly direct the Title Company to return theDeposit to Purchaser.

 

**8.     Notices**.  Any notice, consent, or approval required orpermitted to be given hereunder shall be in writing and shall be deemed to begiven when hand delivered or one (1) business day after pickup by FederalExpress, UPS overnight, or similar overnight express service, or on the datewhen delivered by facsimile transmission with written acknowledgment ofreceipt, in any case addressed to the parties at their respective addresses fornotice set forth in the Term Sheet of this Agreement, or, in each case, to suchother address as either party may from time to time designate by giving noticein writing to the other party, provided that neither party shall designate asits address a post office box or other address which does not accept overnightdelivery.  Notice hereunder may be givenby counsel acting on behalf of either party. Telephone numbers are for informational purposes only.  Effective notice will be deemed given only asprovided above.  Notice given to Sellerby e-mail is not considered proper notice under this section.

 

**9.     Closingand Escrow**.

 

9.1.         Escrow Instructions.  Upon execution of this Agreement, the partiesshall deliver an executed counterpart of this Agreement to the Title Company toserve as the instructions to the Title Company as the Escrow Agent forconsummation of the transaction contemplated herein, and Title Company shallexecute this Agreement to acknowledge acceptance of the escrow and receipt ofthe Deposit.  Seller and Purchaser shallexecute such additional and supplementary escrow instructions as may beappropriate to enable the Title Company to comply with the terms of this Agreement,provided, however, that in the event of any conflict between the provisions ofthis Agreement and any supplementary escrow instructions, the terms of thisAgreement shall prevail.

 

9.2.         Duties of Escrow Agent.

 

(a)           EscrowAgent is acting solely as a stakeholder under this Section 9.2.  Escrow Agent’s duties shall be determinedsolely by the express provisions hereof and are purely ministerial in nature.

 

(b)           Duringthe term of this Agreement, Escrow Agent shall hold and deliver the Depositstrictly in accordance with the terms and provisions of 

 

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this Agreement and shall not commingle the Deposit with any funds ofEscrow Agent or others.  Escrow Agentshall invest the Deposit in one or more interest-bearing accounts using Purchaser’s tax identification numberat a mutually acceptable savings bank located chartered in the Commonwealth ofMassachusetts, and such account(s) shall be fully insured by the FDICand/or the DIF and have no penalty for early withdrawal.  Escrow Agent shall disburse the Deposit instrict accordance with the written instructions of the parties hereto.  Escrow Agent shall not disburse the Depositwithout at least one business day’s notice to Seller.  All costs incurred by Escrow Agent inconnection with its obligations under this Section 9.2(b) shall beborne solely by Purchaser.  In no eventshall Escrow Agent’s use of multiple accounts to hold the Deposit result inEscrow Agent having to deliver the net sales proceeds to Seller in more thanone (1) wire transfer.

 

**EscrowAgent’s initials:**

 

(c)   IntentionallyOmitted.

 

(d)           Ifthis Agreement is terminated by Purchaser (pursuant to Section 7.1 or Section 10.2hereof) or by the mutual written agreement of Seller and Purchaser, or ifEscrow Agent is unable at any time to determine to whom the Deposit should bedelivered, then Escrow Agent shall deliver the deposit in accordance with thejoint written instructions of the Seller and Purchaser.  If written instructions are not received byEscrow Agent within ten (10) days after Escrow Agent has served a writtenrequest for instructions upon both Seller and Purchaser, the Escrow Agent shallhave the right to pay the Deposit into any court of competent jurisdiction inthe state where the Property is located and to interplead Seller andPurchaser.  Upon the filing of theinterpleader action, Escrow Agent shall be discharged from any furtherobligations in connection with this Agreement.

 

(e)           Ifcosts or expenses are incurred by Escrow Agent because of litigation or adispute between Seller and Purchaser concerning this Agreement (whichlitigation or dispute does not involve any action, omission or failure to actby Title Company), Seller and Purchaser shall each pay Escrow Agent one-half ofEscrow Agent’s reasonable costs and expenses. Except for such costs and expenses, no fee or charge shall be due orpayable to Escrow Agent for its services under this Agreement.

 

(f)            EscrowAgent undertakes only to perform the duties and obligations imposed upon itunder the terms of this Agreement, and to do so in strict accordance with theAgreement, and does not undertake to perform any of the covenants, terms andprovisions applicable to Seller and Purchaser.

 

(g)           Purchaserand Seller acknowledge and agree that Escrow Agent has assumed no liabilityexcept for gross negligence or willful misconduct and that Escrow Agent mayseek advice from its own counsel and shall be fully 

 

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protected in any action taken by it in good faith in accordance withthe opinion of its counsel.

 

(h)           Theconditions to the Closing shall be the Escrow Agent’s receipt of funds anddocuments as described in this Section 9.2.  Upon receipt of such funds and documents,Escrow Agent shall deliver the items as described in this Agreement.

 

(i)            Allacts and documents required of Purchaser or Seller in order to close the escrowpursuant hereto shall be deposited with Escrow Agent no later than 5:00 p.m.(Eastern Time) on the day immediately preceding the Closing Date, and shall beavailable for release at Closing.  Inaddition, all funds required from Purchaser in order to close the escrowpursuant hereto shall be deposited with Escrow Agent no later than 10:00 a.m.(Eastern Time) on the Closing Date, and shall be available for immediatedistribution at Closing.  Notwithstandingthe foregoing, the Purchaser will not be deemed in default under this Agreementfor delivery of the funds required to consummate the purchase of the Propertyin accordance with this Agreement after 10:00 a.m. (Eastern Time) on theClosing Date, so long as the total amount of funds due and owing to Seller areactually received by Seller via wire transfer to an account designated bySeller (as confirmed by Federal Reserve reference number) on the Closing Date.  If Purchaser fails to deposit all fundssufficiently early on the Closing Date so that Seller does not receive its netfunds prior to 3:00 p.m. (Eastern Time) on the Closing Date, Purchasershall pay Seller $3,750.00, representing Seller’s anticipated loss of thebenefit of overnight investment of the net proceeds.

 

(j)            Notwithstanding anything to thecontrary in this Section 9.2, in the event the Closing does not occur onor before the Closing Date, the Escrow Agent shall, unless it is notified byboth parties to the contrary within five (5) business days after theClosing Date, return to the depositor thereof items which were depositedpursuant to this Agreement.  Theforegoing instruction to return items does not include funds or the Deposit.  Any such return shall not, however, relieveeither party of any liability it may have relating to its wrongful failure toclose.

 

(k)           Escrow Agent shall not be responsibleor liable in any manner whatsoever for the correctness, genuineness or validityof any document or instrument, or any signature thereon, deposited with ordelivered to Escrow Agent pursuant to this Agreement.  Escrow Agent may act in reliance upon anysuch document or instrument, which Escrow Agent in good faith believes to begenuine and duly authorized, without investigation as to the correctness,genuineness or validity thereof.  EscrowAgent shall not be liable except for the performance of such duties andobligations as are specifically set forth in this Agreement and no impliedcovenants or obligations shall be read into this Agreement against EscrowAgent.  Escrow Agent is not chargeablewith knowledge, and has no duties with respect to any other agreements between 

 

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Seller andPurchaser.  Escrow Agent shall not beresponsible to see to the correct application of any funds disbursed by itpursuant to this Agreement.

 

(l)            Seller and Purchaser acknowledgethat the transaction contemplated hereunder shall be closed by deliveringexecuted documents and the other closing deliveries to the Escrow Agent inaccordance with customary written instructions.

 

(m)          Upon request by Seller and Purchaser,Escrow Agent shall prepare a closing or settlement statement.

 

(n)           Escrow Agent is familiar with andunderstands the U.S. Foreign Corrupt Practices Act, 15 U.S.C. Sec. 78dd-1, etseq., and any other anti-corruption laws and regulations relevant to theAgreement and has not and will not violate these laws.

 

(o)           ThePresident of the United States has issued Executive Order 13224, in conjunctionwith the Office of Foreign Assets Control (“**OFAC**”).  This order bans any United States person fromdoing business with any person, entity or group specially designated by theU.S. Secretary of State or Secretary of the Treasury as a terrorist orterrorist entity.  OFAC maintains a listof these persons, entities and groups, known as the Specially DesignatedNationals and Blocked Persons List (“**SDN List**”).  In order to comply with this order, EscrowAgent shall not enter into contracts or other agreements with any person whosename appears on the SDN List.

 

9.3.         Seller’s Deliveries.

 

(a)           Seller shall deliver or cause to be delivered, either atthe Closing through the Title Company or by making available at the Property,as appropriate, the following items and original documents, each executed and,if required, acknowledged, as appropriate:

 

9.3.1.       AMassachusetts quitclaim deed to the Property, in the form attached hereto as Exhibit 9.3.1.

 

9.3.2.       Abill of sale in the form attached hereto as Exhibit 9.3.2 conveyingthe Personal Property.

 

9.3.3.       (i) The Leases and any newleases entered into pursuant to Section 4.4; (ii) the Rent Schedule,including a listing of any tenant security and other deposits and prepaid rentsheld by Seller with respect to the Property; (iii) the cash securitydeposits and letters of credit held by Seller as security under the Leases, butonly to the extent the same have not been applied in accordance with the Leasesor returned to tenants and relate to tenants occupying space at the Property onthe Closing Date pursuant to Leases then in effect and any accrued interest thereon to the extent required byapplicable Massachusetts law; 

 

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(iv) an assignment of such Leases, deposits, and prepaid rents byway of an Assignment and Assumption of Leases in the form attached hereto as Exhibit 9.3.3; and (v) acertificate from the Manager, dated as of the Closing Date, certifying toPurchaser that ****the Leases for the Property which are on file in the management officethereof and which have been made available to Purchaser are used by and reliedupon by Manager in connection with the leasing operations conducted by Manager,in its capacity as property manager for the Property.****

 

9.3.4.       (i) Copiesof all Contracts which Purchaser has elected to assume or which are notterminable by the Seller without fee or penalty on or before the Date ofClosing; and (ii) an assignment of such Contracts to Purchaser by way ofan assignment and assumption agreement, in the form attached hereto as Exhibit 9.3.4.

 

9.3.5.       Anassignment to Purchaser of Seller’s right, title and interest, if any, in anynames specific to the Property, including any domain name(s), permits,approvals, entitlements, and other intangible property owned by Seller and usedsolely in connection with the Property in the form attached hereto as Exhibit 9.3.5.

 

9.3.6.       Anassignment of all unexpired, transferable warranties and guarantees then ineffect, if any, with respect to the Improvements or any repairs or renovationsto such Improvements and Personal Property being conveyed hereunder, whichassignment is in the form attached hereto as Exhibit 9.3.6.

 

9.3.7.       Sellershall deliver to Purchaser at Closing, the originals of all Leases, tenantfiles, and, to the extent in Seller’s possession and to the extent available,the Contracts and Equipment Leases being assumed by Purchaser, and any buildingplans, specifications and operating manuals relating to the Property.  All other books and records requested byPurchaser will be provided at Seller’s sole discretion and at Purchaser’s solecost.  These materials may be deliveredat the Property.

 

9.3.8.       Anaffidavit pursuant to the Foreign Investment and Real Property Tax Act in theform attached hereto as Exhibit 9.3.8.

 

9.3.9.       Appropriateevidence of authorization as required by the Title Company.

 

9.3.10.     Astatement updating the Seller’s representations and warranties and certifyingthe same as true and correct as of the Closing Date.

 

9.3.11.     Any deed excise stamp tax declarationin the form required by applicable governmental authorities.

 

9.3.12.     TheClosing Statement (prepared by the Title Company).

 

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9.3.13.     Keysor key codes to all locks at the Property, which will be delivered at theProperty.

 

9.3.14.     An owners affidavit and gapindemnification agreement in form and substance as may be acceptable toPurchaser and the Title Company, but in any event in sufficient form to permitthe Title Company to issue a standard owner’s policy of title insurance and toissue the same at Closing, notwithstanding that the deed conveying the Landshall not have been recorded at such time. In addition, Seller shall deliver such other documents as may bereasonably required by the Title Company and which do not expand or createSeller liability beyond that provided for by this Agreement as may be agreedupon by Seller and Purchaser to consummate the transaction, provided, however,that Seller shall not be obligated to provide to Title Company any otheraffidavits, indemnities, certifications, covenants, obligations or liabilitiesbeyond those that Seller is providing to Purchaser under this Agreement orwhich go beyond that required for the issuance by Title Company of a standardowner’s policy of title insurance.

 

9.4.         Purchaser’s Deliveries.  At Closing, Purchaser shall (i) paySeller the Purchase Price through the Escrow Agent and provide any instrumentsrequired by the Title Company from a purchaser of real property; and (ii) executeand deliver the agreements referred to in Sections 9.3.3(iii) and9.3.4(ii), any deed excise stamp tax declarations in the form required byapplicable governmental authorities, a statement updating the Purchaser’srepresentations and warranties and certifying the same as true and correct asof the Closing Date, and the Closing Statement.

 

9.5.         Mutual Obligations.  Seller and Purchaser shall each deposit suchother instruments as are reasonably required (i) to confirm theirrespective authority to close this transaction, (ii) by Escrow Agent, or (iii) otherwiseto consummate the sale and acquisition of the Property in accordance with theterms hereof (provided that in no event shall any such documents increase theliability of Purchaser or Seller). Seller and Purchaser hereby designate Escrow Agent as the “**Reporting Person**” for the transaction pursuant to Section 6045(e) ofthe Internal Revenue Code and the regulations promulgated thereunder and agreeto execute such documentation as is reasonably necessary to effectuate suchdesignation.

 

9.6.         Possession.  Purchaser shall be entitled to possession ofthe Property upon conclusion of the Closing, subject to the PermittedEncumbrances.

 

9.7.         Insurance.  Seller shall terminate its policies ofinsurance as of noon on the Date of Closing and Purchaser shall be responsiblefor obtaining its own insurance thereafter.

 

9.8.         Utility Service and Deposits.  To the extent any utility account is inSeller’s name, Seller shall be entitled to the return of any deposit(s) and/orbond(s) posted by it or its predecessor with any utility company andPurchaser shall notify each 

 

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utility company servingthe Property to terminate any Seller account, effective at noon on the Date ofClosing, such notice to be in the form of Exhibit 9.8 attachedhereto.

 

9.9.         Notice Letters.  Subsequent to Closing, Seller shall provideto Purchaser copies of form letters to tenants and to service, maintenance,supply and other contractors serving the Property, whose Leases and Contracts(respectively) were assigned to Purchaser at Closing, advising them of the saleof the Property to Purchaser, notifyingthem that security deposits have been transferred to Purchaser, anddirecting to Purchaser all rents and bills for the services and supplies,respectively, provided to the Property on and after the Date of Closing.

 

**10.  Breach;Default; Failure of Condition**.

 

10.1.       PurchaserDefault.  If Purchaser shall breachor default under this Agreement and, with respect to breaches or defaults forwhich a cure period is applicable, fail to cure such breach or default withinsuch cure period, Seller may terminate this Agreement, the Deposit shall beretained by Seller as liquidated damages, without the necessity of provingactual damages, and both parties shall be relieved of and released from anyfurther liability hereunder except for Purchaser’s Indemnity Obligations setforth in Sections 3.1.2 and 3.6 hereof and matters which, by the expressprovision thereof in this Agreement, survive termination of the Agreement.  Seller and Purchaser agree that Seller’sdamages in the event of such breach or default will be difficult or impracticalto ascertain, the Deposit is a fair and reasonable estimate of such damages asof the date of this Agreement, and the Deposit is to be retained by Seller asagreed and liquidated damages in light of Seller’s removal of the Property fromthe market and the costs incurred by Seller and shall not constitute a penaltyor a forfeiture.

 

10.1.1.     Theparties hereto agree that it would be difficult to prove actual damagesresulting from a breach of this Agreement and that the Deposit represents afair and equitable estimation of Seller’s damages in the event of a breach ordefault by Purchaser.  The partiesfurther agree that this liquidated damage clause is included herein as a resultof negotiation by the parties at the express request of Purchaser and thatPurchaser hereby waives any right to challenge the enforceability of thisclause or its reasonability, and Purchaser hereby waives any and all rights itmay have at law or equity to dispute Seller’s right to the liquidated damagesprovided for herein.  In addition, theparties waive any right to asset the lack of mutuality of remedy as a defensein the event of any litigation arising out of this Agreement.

 

**Seller’s initials:                                                                  Purchaser’sinitials:**

 

10.2.       Seller Default.  If Seller shall refuse or fail to convey theProperty as herein provided for any reason other than (i) a breach ordefault by Purchaser under this Agreement and the expiration of the cureperiod, if any, or (ii) any other provision of this Agreement whichpermits Seller to terminate this Agreement or otherwise relieves Seller of theobligation to convey the Property, Purchaser shall elect as its sole andexclusive

 

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remedy hereunder eitherto terminate the Agreement and recover the Deposit or to specifically enforcethe Seller’s obligations to convey the Property in accordance with thisAgreement, Purchaser hereby expressly waiving any right to recover exemplary,punitive, indirect, consequential, special or other damages and all otherremedies available at law or at equity with regard to any such failure; providedthat no action in specific performance shall seek to require the Sellerto do any of the following (other than as required as pursuant to thisAgreement): (a) change the condition of the Property or restore the sameafter any fire or other casualty; (b) subject to Sections 3.2and 10.3 hereof, expend money or post a bond to remove a title encumbranceor defect or correct any matter shown on a survey of the Property; or (c) secureany permit, approval, or consent with respect to the Property or Seller’sconveyance of the Property.

 

10.3.       Failure of Condition.  If prior to Closing Seller discloses toPurchaser or Purchaser discovers that title to the Property is subject todefects, limitations or encumbrances other than Permitted Encumbrances, thenPurchaser shall promptly give Seller written notice of any objectionthereto.  In such event, the Closingshall be postponed for up to thirty (30) days and Seller shall use reasonableefforts to cure such objection, provided that Purchaser may not object to thestate of title of the Property on the basis of any Permitted Encumbrance(s).

 

10.3.1.     Subjectto Section 3.2 and Section 10.3 hereof, Seller shall have noobligation to cure any title objection. If Purchaser fails to waive an objection within five (5) days afternotice from Seller that Seller is unable to cure the objection prior to theextended Closing Date, this Agreement shall terminate automatically and  the Title Company shall promptly return theDeposit to Purchaser, and neither party shall have any liability to the otherexcept for Purchaser’s obligations set forth in Section  3.1.2 and 3.6hereof.  For the purposes of thisAgreement, any title defect, limitation or encumbrance other than a PermittedEncumbrance shall be deemed cured if Title Company or another title insurancecompany reasonably acceptable to Purchaser and authorized to do business in Massachusetts,agrees to issue an ALTA owner’s title insurance policy to Purchaser in theamount of the Purchase Price, which policy takes no exception for such defect,limitation or encumbrance and is issued for no additional premium or for anadditional premium if Seller agrees to pay such additional premium uponClosing.

 

10.4.       Representationor Warranty Untrue.  Prior toClosing, if any materialrepresentation or warranty of any party is discovered to have been false, inany material respect, when made, then such discovery shall be an event ofdefault by the party that made the false representation or warranty.  If, after the date of this Agreement andbefore the Closing, (a) such false representation or warranty shallconstitute a condition that such defaulting party is capable of curing and (b) suchdefaulting party notifies the non-defaulting party in writing that it intendsto cure such false representation or warranty, then such defaulting party shallhave the right to cure such false representation or warranty prior to Closingand, if such condition is not cured by Closing (or if such defaulting partynotifies the non-defaulting party that such condition can not be cured), thenthe non-defaulting party shall have all of the rights set forth in 

 

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Article 10.  However, if the non-defaulting partyconsummates the Closing with knowledge of such false representation orwarranty, such non-defaulting party shall be conclusively deemed to have waivedsuch default and accepted such uncured condition, in which event thenon-defaulting party shall have no rights or remedies under this Agreementregarding such default and such representation and warranty shall automaticallybe deemed amended to fully and accurately state the actual facts and conditionsthen known or existing so that no fact or condition first discovered or noticereceived or events occurring after the Effective Date can or will constitute abreach by the defaulting party of any of the warranties or representations.

 

**11.          Miscellaneous**.

 

11.1.        Entire Agreement.  This Agreement, together with the Exhibitsattached hereto, all of which are incorporated by reference, constitutes theentire agreement between the parties with respect to the subject matter hereof,and no alteration, modification or interpretation hereof shall be bindingunless in writing and signed by both parties. The parties are not bound by any agreements, understandings, provisions,conditions, representations or warranties (whether written or oral and whethermade by Seller or any agent, employee or principal of seller or any otherparty) other than as are expressly set forth and stipulated in this Agreement.

 

11.2.        Severability.  If any provision of this Agreement orapplication to any party or circumstances shall be determined by any court ofcompetent jurisdiction to be invalid and unenforceable to any extent, theremainder of this Agreement or the application of such provision to such personor circumstances, other than those as to which it is so determined invalid orunenforceable, shall not be affected thereby, and each provision hereof shallbe valid and shall be enforced to the fullest extent permitted by law.

 

11.3.        Applicable Law.  This Agreement shall be construed andenforced in accordance with the laws of the Commonwealth of Massachusetts.

 

11.4.        Assignability.  Purchaser shall not assign this Agreementwithout first obtaining Seller’s written consent, provided however, that Purchaser may, without Seller’s consent, butwith no less than five (5) business days written notice to Seller whichnotice will include the name of such assignee and the names of all principalsand entities owning twenty-five percent (25%) or more of such assignee, assignthis Agreement to an “Affiliate” of Purchaser or designate an “Affiliate” totake title, to the Property at Closing.  “**Affiliate**” means any entity that is ownedor controlled by an entity of which the general partners, managers or votingmembers are at least fifty-one (51%) percent owned or controlled by principalsof Purchaser, and shall include trusts or other estate planning entitiescreated for the benefit of such principals and their immediate familymembers.  Any assignment incontravention of this provision shall be void. No assignment, whether or not permitted, shall release the Purchaserherein named from any obligation or liability under this Agreement.  The Purchaser and any permitted assigneeshall be jointly and severally liable for all such obligations andliabilities.  Any permitted assigneeshall be deemed to have made any and all representations and 

 

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warranties made byPurchaser hereunder, as if the assignee were the original signatoryhereto.  Purchaser acknowledges that anysuch assignee shall be subject toSeller’s verification that such assignee can make the representation set forthin Section 5.3.8.

 

If Purchaser requests Seller’s consent to an assignment of thisAgreement, Purchaser shall (i) notify Seller in writing of the proposedassignment; (ii) provide Seller with the name and address of the proposedassignee; (iii) provide Seller with financial information, includingcurrent financial statements, for the proposed assignee; and (iv) provideSeller with a copy of the proposed instrument of assignment.

 

Any transfer or assignment of any membership or other beneficialinterest of Purchaser in excess of forty-nine percent (49%) shall be deemed anassignment within the meaning of this Section 11.4.

 

11.5.       Successors Bound.  This Agreement shall be binding upon andinure to the benefit of Purchaser and Seller and their respective successorsand permitted assigns.

 

11.6.       Captions.  The captions in this Agreement are insertedonly as a matter of convenience and for reference and in no way define, limitor describe the scope of this Agreement or the scope or content of any of itsprovisions.

 

11.7.       Attorneys’ Fees.  In the event of any litigation arising out ofthis Agreement, the prevailing party shall be entitled to recover from theother party reasonable attorneys’ and paralegals’ fees and costs actuallyincurred, whether incurred out of court, at trial, on appeal or in anybankruptcy, arbitration or administrative proceedings.

 

11.8.       No Relationship. Nothing containedin this Agreement shall be construed to create a fiduciary, partnership, jointventure, principal/agent or other relationship between the parties or theirsuccessors or assigns, and the parties owe no duty to each other except asexpressly stated in this Agreement.

 

11.9.       Time of Essence. Time is of theessence for all purposes of this Agreement.

 

11.10.     Counterparts.  This Agreement may be executed and deliveredin any number of counterparts, each of which so executed and delivered shall bedeemed to be an original and all of which shall constitute one and the sameinstrument.  Each counterpart may bedelivered by facsimile transmission provided that a signed original is providedpromptly.  The signature page of anycounterpart may be detached therefrom without impairing the legal effect of thesignature(s) thereon provided such signature page is attached to anyother counterpart identical thereto.

 

11.11.     Recordation.  Neither this Agreement nor any memorandum ornotice hereof shall be recorded. Purchaser shall (i) not, and hereby waives its rights to, file anynotice of lis pendens or other form of notice of pendency or other instrumentagainst the Property or any portion thereof in connection herewith and (ii) indemnify

 

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Seller against allliabilities (including reasonable attorneys’ fees, expenses and disbursements)incurred by Seller by reason of the filing by Purchaser or its agent of anysuch memorandum, notice or other instrument. If Purchaser fails to comply with the terms hereof by recording orattempting to record this Agreement or a notice thereof, such act shall notoperate to bind or cloud the title to the Property.  Seller shall, nevertheless, have the rightforthwith to institute appropriate legal proceedings to have the same removedfrom record.  If Purchaser or any agent,broker or counsel acting for Purchaser shall cause or permit this Agreement ora copy thereof to be filed in an office or place of public record, Seller, atits option, and in addition to Seller’s other rights and remedies, may treatsuch act as a default of this Agreement on the part of the Purchaser.  However, the filing of this Agreement in anylawsuit or other proceedings in which such document is relevant or materialshall not be deemed to be a violation of this Section 11.11.

 

11.12.      Proper Execution. The submission bySeller to Purchaser of this Agreement in unsigned form shall be deemed to be asubmission solely for Purchaser’s consideration and not for acceptance and execution.  Such submission shall have no binding forceand effect, shall not constitute an option, and shall not confer any rightsupon Purchaser or impose any obligations upon Seller irrespective of anyreliance thereon, change of position or partial performance.  The submission by Seller of this Agreementfor execution by Purchaser and the actual execution and delivery thereof byPurchaser to Seller shall similarly have no binding force and effect on Sellerunless and until Seller shall have executed this Agreement and the Depositshall have been received by the Title Company and a counterpart thereof shallhave been delivered to Purchaser. Signatures of this Agreement transmitted by facsimile or via electronicmail (*.pdf or similar file types) shall be valid and effective to bind theparty so signing.  Each party agrees topromptly deliver an execution original to this Agreement, any amendmentthereto, or any notice sent via facsimile or via electronic mail with itsactual signature to the other party, but a failure to do so shall not affectthe enforceability of this Agreement, amendment or notice, it being expresslyagreed that each party to this Agreement shall be bound by its own telecopiedor electronically mailed signature in all instances and shall accept thetelecopied or electronically mailed signature of the other party to thisagreement.

 

11.13.      Tax Protest.  If, as a result of any tax protest orotherwise, any refund or reduction of any real property or other tax orassessment relating to the Property during the period for which, under theterms of this Agreement, Seller is responsible, Seller shall be entitled toreceive or retain such refund or the benefit of such reduction, less equitableprorated costs of collection.

 

11.14.      Best Knowledge; Received Written Notice.  Whenever a representation, warranty or otherstatement is made in this Agreement or in any document or instrument to bedelivered at Closing pursuant to this Agreement, on the basis of the best ofknowledge of Seller, or is qualified by Seller having received written notice,such representation, warranty or other statement is made with the exclusion ofany facts disclosed to or otherwise known by Purchaser, and is made solely onthe basis of the current, conscious, and actual, as distinguished from implied,imputed and 

 

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constructive, knowledgeon the date that such representation or warranty is made, without inquiry orinvestigation or duty thereof, of Robert Wilkins, (the officer of Seller having responsibility for themanagement of the Property), without attribution to such specific officers offacts and matters otherwise within the personal knowledge of any other officersor employees of Seller or third parties, including but not limited to tenantsand property managers of the****Property, andexcluding, whether or not actually****known by suchspecific officers, any matter known to Purchaser or its agents at the time ofClosing.  So qualifying Seller’sknowledge shall in no event give rise to any personal liability on the part ofRobert Wilkins or any other officer or employee of any Seller Party.

 

11.15.     Survival and Limitation ofRepresentations and Warranties.

 

(a)           The representationsand warranties of Seller set forth in this Agreement or any documents executedin connection herewith shall survive the Closing, but, any action, suit orproceeding brought by Purchaser against Seller under this Agreement or underany such documents shall be commenced and served, if at all, on or before thedate which is six (6) months after the date of Closing and, if notcommenced and served on or before such date, thereafter shall be void and of noforce or effect.

 

(b)           Subjectto Section 10.2, above, the aggregateliability of the Seller with****respect to allclaims arising in connection with the representations and warranties of Sellerwhich survive the Closing and any other obligations of Seller which expresslysurvive Closing under this Agreement shall not exceed FIVE HUNDRED THOUSAND ANDNO/100 DOLLARS ($500,000.00), and in no event shall any liability arise inconnection therewith unless and except to the extent that the direct damages toPurchaser by reason of all such claims, collectively, exceed $50,000.00.  In no event shall Seller be liable to Purchaserfor any consequential, exemplary, punitive, or any other type of damages (otherthan direct damages) or for unrealized expectations or other similar claims inrespect of any such claims, and in every case Purchaser’s recovery for anyclaims shall be net of any insurance proceeds and any indemnity, contribution,or other similar payment recovered or recoverable by Purchaser from anyinsurance company or other third party. Seller’s total liability with respect to a default by Seller for refusalor failure to convey the Property shall not be governed by this Section butshall instead be governed by the terms and provisions of Section 10.2 ofthis Agreement.

 

11.16.     Intentionally Omitted.

 

11.17.     Time to Execute and Deliver.  This Agreement shall be void if one fullyexecuted copy is not received by Seller on or before 5:00 p.m. EasternTime on September 1, 2009 and/or if Seller shall not have received noticefrom the Escrow Agent that the Deposit shall have been received by the EscrowAgent, on or before 5:00 p.m. Eastern Time on the date which is twobusiness days immediately following the date of this Agreement.

 

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11.18.     No Personal Liability.  Any liability for participation in thistransaction shall remain with Purchaser and Seller only and in no event shallthere be any personal liability on the part of any officer, manager or employeeof the parties, their partners or their constituent members or entities.  This provision shall survive Closing or anytermination of this Agreement.

 

11.19.     Date of Agreement.  All references to the date of this Agreementmean the date upon which both Seller and Purchaser have executed thisAgreement.

 

11.20.     Date of Performance.  If the date of performance of any obligationor the expiration of any time period provided herein should fall on a Saturday,Sunday or legal holiday, then said obligation shall be due and owing, and saidtime period shall expire, on the first day thereafter which is not a Saturday,Sunday or legal holiday.  Any referencein this Agreement to a “business day” shall mean any day of the week other thana Saturday, Sunday or legal holiday. Except as may otherwise be set forth herein, any performance providedfor herein shall be timely made if completed not later than 5:00 p.m.(Eastern Time) on the day of performance.

 

11.21.     Waiver.  Excuse or waiver of the performance by theother party of any obligation under this Agreement shall only be effective ifevidenced by a written statement signed by the party so excusing orwaiving.  No delay in exercising anyright or remedy shall constitute a waiver thereof, and no waiver by Seller orPurchaser of the breach of any covenant of this Agreement shall be construed asa waiver of any preceding or succeeding breach of the same or any othercovenant or condition of this Agreement. All of the provisions of this Section 11 shall survive the Closing,or in the event that the Closing does not occur, any termination orcancellation of this Agreement.

 

11.22.     Interpretation.  This Agreement is the result of negotiationsbetween the parties who are experienced in sophisticated and complex matterssimilar to the transaction contemplated by this Agreement and is entered intoby both parties in reliance upon the economic and legal bargains containedherein and shall be interpreted and construed in a fair and impartial mannerwithout regard to such factors as the party which prepared the Agreement, therelative bargaining powers of the parties or the domicile of any party.  Seller and Purchaser are each represented bylegal counsel competent of advising them of their obligations and liabilitieshereunder.  The presentation andnegotiation of this Agreement shall not be construed as any offer by Seller tosell, or any offer by Purchaser to purchase, the Property or obligate eitherparty unless and until this Agreement has been duly executed and delivered toboth parties.

 

11.23.     Public Disclosure.  Following Closing, Purchaser and Seller shallhave the right to announce the acquisition and sale of the Property in themedia (including “tombstones”), provided that (i) Purchaser shall consultwith Seller with respect to any such notice or publication and implement anycomments or objections of Seller, and (ii) the Purchase Price is notdisclosed and neither party discloses the name of the other party, directly orindirectly.  Seller may also publicizethe sale of the Property in the ordinary course of its business.  The provisions of this Section shall 

 

33

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survive Closing.  Neitherparty shall publicly disclose the terms of this transaction without the priorwritten consent of the other party, except (after written notice to the otherparty) as may be required by law or as required to enforce the terms andprovisions hereof.

 

11.24.      GovernmentalApprovals.  Nothing in this Agreementshall be construed as authorizing Purchaser to apply for a zoning change,variance, subdivision map, lot line adjustment, or other discretionary governmentalact, approval or permit with respect to the Property prior to Closing, andPurchaser shall not do so without the prior written approval of Seller, whichapproval may be withheld in Seller’s sole and absolute discretion.  Purchaser also agrees not to submit anyreports, studies or other documents, including without limitation, plans andspecifications, impact statements for water, sewage, drainage or traffic,environmental review forms, or energy conservation checklists to anygovernmental agency, or any amendment or modification to any such instrumentsor documents prior to Closing, unless first approved in writing by Seller,which approval Seller may withhold in its sole, absolute discretion, provided,however, that Purchaser shall have the right without the consent of Seller torequest a zoning confirmation letter or certificate from the Brookline,Massachusetts zoning authority.  Purchaser’s obligation to purchase the Property shall not be subject toor conditioned upon Purchaser obtaining any variance(s), zoning amendment,subdivision map, lot line adjustment, condominium approval or otherdiscretionary governmental act, approval or permit.

 

11.25.      Purchaser Not a Successor of Seller.  Purchaser is not and shall not be deemed tobe a successor to Seller.  Purchaser isacquiring only the Property and not an ongoing business enterprise.

 

11.26.      Termination.  Upon termination of this Agreement inaccordance with its terms (and not as a result of a default by either party),neither party shall have any further rights or obligations or liabilities,except those rights and obligations arising under any sections of thisAgreement which expressly survive termination of this Agreement.  It is hereby agreed that, in addition toexpress statements of survivability, all references in this Agreement to Seller’sor Escrow Agent’s obligation to return the Deposit to Purchaser shall survivethe termination of this Agreement.

 

11.27.      Construction.  As used herein, the words “include”, “including”,and similar terms shall be construed as if followed by the phrase “withoutlimitation”.

 

11.28.      No Third Party Beneficiary.  This Agreement is not intended to give orconfer any benefits, rights, privileges, claims, actions, or remedies to anyperson or entity as a third party beneficiary.

 

34

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**IN WITNESS WHEREOF,**the undersigned Seller has executed and delivered this Purchase and Sale andEscrow Agreement as an instrument under seal as of the date set forth above.

 
|   | **SELLER:**                            |
|--------|----------------------------------------|
|   |                                   |
|   | **175 FREEMAN STREET INVESTORS  LLC**, |
|   | a Delaware limited  liability company  |
|   |                                   |
|   | By:                                    | TPF Equity Trust  Operating Partnership |
|   |                                   | LP, its sole member |
|   |                                   |   |
|   |                                   | By: | TPF Equity Trust  Operating |
|   |                                   |   | Partnership GP LLC, its  general |
|   |                                   |   | partner |
|   |                                   |   |   |
|   |                                   |   |   |
|   |                                   |   | By: |   |
|   |                                   |   | Name: | Jayne M. Brundage |
|   |                                   |   | Title: | Executive Director |

 

----

 

**IN WITNESS WHEREOF,**the undersigned Purchaser has executed and delivered this Purchase and Sale andEscrow Agreement as an instrument under seal as of the date set forth above.

 
|   | **PURCHASER:**                 |
|--------|--------------------------------|
|   | ** **                     |
|   | **THE HAMILTON COMPANY, INC.** |
|   | a Massachusetts  corporation   |
|   |                           |
|   | By:                            |   |
|   | Name:                          |   |
|   | Title:                         |   |

 

----

 

An original, fully executedcopy of this Agreement, together with the Deposit, has been received by theTitle Company this          day of                        ,2009, and by execution hereof the Title Company hereby covenants and agrees tobe bound by the terms of this Agreement.

 
|   | **ESCROW  AGENT/TITLE COMPANY**     |
|--------|-------------------------------------|
|   | ** **                          |
|   | ** **                          |
|   | **FIRST  AMERICAN TITLE INSURANCE** |
|   | **COMPANY**                         |
|   |                                |
|   | By:                                 |   |
|   | Name:                               | Michael J. Desmond |
|   | Title:                              | Vice President |

 

----

 

**List of Exhibits**

 
| Exhibit 1.1.1 |   | Legal Description                                     |
|--------------------|--------|-------------------------------------------------------|
|               |   |                                                  |
| Exhibit 1.1.3 |   | Inventory of Personal  Property                       |
|               |   |                                                  |
| Exhibit 1.1.6 |   | Schedule of Leases and  Security Deposits             |
|               |   |                                                  |
| Exhibit 3.1.2 |   | Insurance Requirements                                |
|               |   |                                                  |
| Exhibit 3.3   |   | Schedule of Contracts  Equipment Leases               |
|               |   |                                                  |
| Exhibit 9.3.1 |   | Form of  Massachusetts Quitclaim Deed            |
|               |   |                                                  |
| Exhibit 9.3.2 |   | Form of Bill of  Sale                            |
|               |   |                                                  |
| Exhibit 9.3.3 |   | Form of Assignment  and Assumption of Leases     |
|               |   |                                                  |
| Exhibit 9.3.4 |   | Form of Assignment  and Assumption of Contracts  |
|               |   |                                                  |
| Exhibit 9.3.5 |   | Form of Property  Name Assignment                |
|               |   |                                                  |
| Exhibit 9.3.6 |   | Form of Assignment  of Warranties and Guarantees |
|               |   |                                                  |
| Exhibit 9.3.8 |   | Form of FIRPTA  Affidavit                        |
|               |   |                                                  |
| Exhibit 9.8   |   | Form of Notice to  Utility Company               |
|               |   |                                                  |
| Exhibit 9.9   |   | Notice to Tenants                                     |

 

2

----

 

**EXHIBIT 1.1.1**

**LEGALDESCRIPTION**

 

A certain parcel of land,with buildings thereon, situated in Brookline, Norfolk County, Massachusetts,bounded and described as follows:

 

BEGINNING at a point onthe northerly sideline of Freeman Street, said point being the point ofcurvature of a curve connecting the northerly side of Freeman Street and theeasterly sideline of Pleasant Street; thence running along said curved line tothe right of radius 30.57 feet a distance of 44.56 feet to a point oftangency, said point being on the easterly sideline of Pleasant Street;

 

THENCE running along saideasterly sideline of Pleasant Street North 01°19’00” East a distance of31.37 feet to an angle point;

 

THENCE turning andrunning along said easterly sideline of Pleasant Street North 00°44’44”West a distance of 336.10 feet to a point of curvature;

 

THENCE running along acurved line to the right of radius 20.00 feet a distance of34.54 feet to a point of tangency, said point being on the southerlysideline of Thatcher Street;

 

THENCE running along saidsoutherly sideline of Thatcher Street South 81°49’38” East a distance of438.23 feet to a point of curvature;

 

THENCE running along acurved line to the right of the radius 20.00 feet a distance of31.35 feet to a point of tangency, said point being on the westerlysideline of St. Paul Street;

 

THENCE running along thewesterly side of St. Paul Street South 08°00’00” West a distance of370.47 feet to a point of curvature;

 

THENCE running along acurved line to the right of the radius 20.00 feet a distance of31.34 feet to a point of tangency, said point being on the northerlysideline of Freemen Street;

 

THENCE running along thenortherly sideline of Freeman Street North 82°14’30” West a distance of372.80 feet to the point of beginning.

 

----

 

**EXHIBIT 1.1.3**

**INVENTORYOF PERSONAL PROPERTY**

** **

**SEE ATTACHED**

 

----

 

**EXHIBIT 1.1.6**

**SCHEDULEOF LEASES AND SECURITY DEPOSITS**

** **

**SEEATTACHED**

 

----

 

**EXHIBIT 3.1.2**

**INSURANCEREQUIREMENTS**

 

I.                                         Prior toperforming any Assessment activities, Purchaser and all Purchaser’sconsultants, engineers and any environmental consultant and any subcontractorthereof (and any other agent, contractor or consultant of Purchaser performingAssessment activities) shall have and maintain in forms and with companiesreasonably acceptable to Owner at least the following insurance coverage:

 

A.                                   EnvironmentalLegal Liability Insurance

 

A policy of environmental legal liability insurance, having minimumlimits of Five Million Dollars ($5,000,000) per occurrence (or Each PollutionIncident Loss) with a Five Million Dollar ($5,000,000) Policy aggregate,written on a claims-made or occurrence basis, with a deductible no greater thanOne Hundred Thousand Dollars ($100,000) per occurrence.  Consultant shall maintain claims-madecoverage in the above liability limits for at least two (2) years aftercontract completion under the same terms and conditions.  Notwithstanding the foregoing, in the eventPurchaser wishes to conduct a phase II environmental assessment or anyintrusive  testing, additional orincreased coverage may be required.

 

B.                                     Workers’Compensation and Employers’ Liability

 

1.                                       Statutoryrequirement in states where operating, to include all areas involved inoperations covered under this Agreement.

 

2.                                       Coverage “B”— Employers’ Liability - $100,000 Bodily Injury by accident — each accident;$100,000 Bodily Injury by disease — each employee; $500,000 disease policylimit.

 

C.                                     GeneralLiability Insurance

 

1.                                       StandardCommercial General Liability policy form on an occurrence basis includingPremises/Operations Liability, Broad Form Contractual Liability, BlanketOwner’s and Contractors Liability and Products/Completed Operations Liabilityand the explosion, collapse and underground (xcu) exclusions eliminated.

 

2.                                       Limits ofLiability: One Million Dollars ($1,000,000) Per Occurrence and Two MillionDollars ($2,000,000) Products Completed Operations and General Aggregates.

 

D.                                    AutomobileLiability Insurance

 

1.                                       ComprehensiveAutomobile form, including all Owned, Non-Owned and Hired Vehicles.

 

1

----

 

2.                                       Limits ofLiability: Bodily Injury, $1,000,000 each person, $1,000,000 any one accidentor loss.

 

3.                                       The policyshall include Insurance Services Office policy endorsement Form MCS-90 ora similar endorsement providing coverage for environmental claims should therebe any transportation of pollutants

 

E.                                     UmbrellaLiability

 

Minimum amount of Five Million Dollars ($5,000,000) each occurrence andgeneral aggregate, providing excess coverage on a following form basis over thecoverage required by Subsections A., B. (except for Worker’s Compensation), C.and D.

 

II.                                     AdditionalRequirements

 

A.                                   Except whereprohibited by law, all insurance policies except the Environmental LegalLiability Policy, shall provide that the insurance companies waive the rightsof recovery or subrogation against the Owner, its agents, servants, invitees,employees, affiliated companies, contractors, subcontractors, and theirinsurers.

 

B.                                     Suchinsurance shall not be subject to cancellation except upon thirty (30) daysprior written notice to Owner.

 

C.                                     Allinsurance required hereunder shall be with such insurance companies as arereasonably satisfactory and acceptable to Owner.  Prior to commencement of the Assessment,Purchaser shall deliver to Owner for its inspection all insurance certificatesfor coverage required hereunder or such other evidence of compliance with theforegoing insurance requirements as is required by, and satisfactory andacceptable to, Owner.

 

D.                                    Owner, itsparent, subsidiaries, affiliates, investment advisors, property managers ordesignees, and its and their officers, directors, and employees shall be namedas additional insured under the General Liability, Automobile Liability andUmbrella Liability insurance policies required to be maintained by Purchaser’sconsultants and/or any subcontractor thereof.

 

E.                                      AllInsurance coverage maintained by Purchaser and Purchaser’s consultants and anysubcontractor thereof shall be primary and not contributing with any insurancemaintained by Owner.

 

2

----

 

**EXHIBIT 3.3**

**SCHEDULEOF CONTRACTS AND EQUIPMENT LEASES**

** **

**SEE ATTACHED**

 

----

 

**EXHIBIT 3.5**

** **

**SEE ATTACHED**

 

1

----

 

**EXHIBIT 9.3.1**

**MASSACHUSETTSQUITCLAIM DEED**

** **

**175FREEMAN STREET INVESTORS****LLC**, a Delawarelimited liability company (the “**Grantor**”),whose address is c/o UBS Realty Investors LLC, 242 Trumbull Street, Hartford,Connecticut 06103, for and in consideration of the sum of Ten and No/100Dollars ($10.00) paid to Grantor and other good and valuable consideration, thereceipt and sufficiency of which are hereby acknowledged, has, subject to theexceptions hereinafter set forth, **GRANTED, SOLD,**and **CONVEYED** and does hereby **GRANT, SELL,** and **CONVEY**, with **QUITCLAIM COVENANTS**, unto **THE HAMILTONCOMPANY, INC.**, a Massachusetts corporation (the “**Grantee**”), whose address is 39 Brighton Avenue, Boston,Massachusetts 02134, certain land located at 175 Freeman Street, Brookline,Norfolk County, Massachusetts, and being more particularly described in Exhibit Aattached hereto and incorporated herein by reference, together with allimprovements located on such land (such land and improvements beingcollectively referred to as the “**Property**”).

 

This conveyance is made and accepted subject to allmatters set out in Exhibit B attached hereto and incorporatedherein by reference.

 

**TO HAVE AND TO HOLD**the Property, together with all rights and appurtenances pertaining thereto,including all of Grantor’s right, title and interest in and to adjoiningstreets, alleys and rights-of-way, unto Grantee and Grantee’s successors,heirs, and assigns forever; and Grantor does hereby bind itself and itssuccessors and heirs to warrant and forever defend the Property unto Granteeand Grantee’s successors, heirs, and assigns, against every person whomsoeverlawfully claiming or to claim the same or any part thereof by, through, orunder Grantor, but not otherwise, for matters arising subsequent to the vestingof title in Grantor.

 

Notwithstanding any provision to the contrary, Grantormakes no warranties of any nature or kind, whether statutory, express orimplied, with respect to the physical condition of the Property (includingwithout limitation any and all improvements located thereon and/or comprising apart thereof), and Grantee by its acceptance of this Deed accepts the physicalcondition of the Property “AS IS, WITH ALL FAULTS.”

 

1

----

 

**EXECUTED** as ofthe [      ] day of October, 2009.

 
|   | **GRANTOR:**                           |
|--------|----------------------------------------|
|   |                                   |
|   | **175 FREEMAN STREET INVESTORS  LLC**, |
|   | a Delaware limited  liability company  |
|   |                                   |
|   | By:                                    | TPF Equity Trust  Operating Partnership |
|   |                                   | LP, its sole member |
|   |                                   |   |
|   |                                   | By: | TPF Equity Trust  Operating |
|   |                                   |   | Partnership GP LLC, its  general |
|   |                                   |   | partner |
|   |                                   |   |   |
|   |                                   |   |   |
|   |                                   |   | By: |   |
|   |                                   |   | Name: | Jayne M. Brundage |
|   |                                   |   | Title: | Executive Director |

 
| STATE OF CONNECTICUT | )                                                               |
|----------------------|-----------------------------------------------------------------|
|                 | )          ss |
| COUNTY OF HARTFORD   | )                                                               |

 

On this        day of October, 2009,before me personally appeared Jayne M. Brundage, who acknowledged herself to bethe Executive Vice President of 175 Freeman Street Investors LLC, a Delawarelimited liability company, and that she, being authorized so to do, executedthe foregoing instrument for the purposes therein contained as her and its freeact and deed, by signing the name of limited liability company by herself asExecutive Director.

 
|   | IN WITNESS WHEREOF, I  have hereunto set my hand                                  |
|--------|-----------------------------------------------------------------------------------|
|   |                                                                              |
|   | Notary Public                                                                     |
|   |                                                                              |
|   |                                                                              |
|   |           My  Commission Expire |

 

2

----

 

**EXHIBIT 9.3.2**

**BILLOF SALE**

** **

For valuableconsideration, the receipt and sufficiency of which is hereby acknowledged, **175 FREEMAN STREET****INVESTORSLLC**, a Delaware limited liability company (the “**Seller**”),hereby conveys to **THE HAMILTON COMPANY, INC.**,a Massachusetts corporation (the “**Purchaser**”),all of Seller’s right, title and interest in and to those certain items ofpersonal property described on Exhibit A attached hereto and made apart hereof (the “**Personal Property**”)relating to certain real property located at 175 Freeman Street, Brookline,Norfolk County, Massachusetts.

 

The “PersonalProperty” expressly excludes the following: (i) all items of personal property owned by tenants, subtenants,independent contractors, business invitees and utilities; and (ii) allcash on hand, checks, money orders, prepaid postage in postage meters, accountsreceivable and claims arising prior to the Closing.  This Bill of Sale is given by Seller andaccepted by Purchaser with no warranties, express or implied.

 

Seller has notmade and does not make any express or implied warranty or representation of anykind whatsoever with respect to the Personal Property, including but notlimited to:  title; merchantability ofthe Personal Property or its fitness for any particular purpose; the design orcondition of the Personal Property; the quality or capacity of the PersonalProperty; workmanship or compliance of the Personal Property with therequirements of any law, rule, specification or contract pertaining thereto;patent infringement or latent defects. Purchaser accepts the Personal Property on an “AS IS, WHERE IS” basis.

 

**IN WITNESSWHEREOF,** Seller has caused this instrument to beexecuted and delivered as of this [      ] day ofOctober, 2009.

 
|   | **SELLER:**                            |
|--------|----------------------------------------|
|   |                                   |
|   | **175 FREEMAN STREET INVESTORS  LLC**, |
|   | a Delaware limited  liability company  |
|   |                                   |
|   | By:                                    | TPF Equity Trust  Operating Partnership |
|   |                                   | LP, its sole member |
|   |                                   |   |
|   |                                   | By: | TPF Equity Trust  Operating |
|   |                                   |   | Partnership GP LLC, its  general |
|   |                                   |   | partner |
|   |                                   |   |   |
|   |                                   |   |   |
|   |                                   |   | By: |   |
|   |                                   |   | Name: | Jayne M. Brundage |
|   |                                   |   | Title: | Executive Director |

 

----

 

**EXHIBIT 9.3.3**

**ASSIGNMENTAND ASSUMPTION OF LEASES**

** **

For valuableconsideration, the receipt and sufficiency of which are hereby acknowledged, **175 FREEMAN STREET INVESTORS LLC**, a Delaware limitedliability company (the “**Assignor**”),hereby assigns, transfers and delegates to **THE HAMILTON COMPANY, INC.**,a Massachusetts corporation (the “**Assignee**”), andAssignee hereby agrees to assume and accept the assignment and delegation ofall of Assignor’s right, title and interest except for Assignor’s right tocollect delinquent rent in and to the Landlord’s rights and obligations underthe leases and the security deposits relating to the property known as DexterPark Apartments and more particularly described on Exhibit A attachedhereto.  The leases and security deposits(“**Leases**”) are listed on Exhibit Battached hereto.

 

By acceptingthis Assignment and by its execution hereof, Assignee assumes the payment andperformance of, and agrees to pay, perform and discharge, all the debts, dutiesand obligations to be paid, performed or discharged from and after the datehereof, by the “landlord” or the “lessor” under the terms, covenants andconditions of the Leases, including, without limitation, brokerage commissionsand compliance with the terms of the Leases relating to tenant improvements andsecurity deposits.

 

Assignor shallindemnify Assignee against and hold Assignee harmless from any and all cost,liability, loss, damage or expense, including, without limitation, reasonableattorneys’ fees, originating or relating to the period prior to date hereof andarising out of the Assignor’s obligations under such Leases.  Assignee shall indemnify Assignor against andhold Assignor harmless from any and all cost, liability, loss, damage orexpense, including, without limitation, reasonable attorneys’ fees, originatingor relating to the period on or after the date hereof and arising out of theAssignee’s obligations under such Leases.

 

Notwithstandinganything to the contrary contained herein, the indemnities contained hereinshall survive for a period of six (6) months from the date set forth below(the “**Survival Period**”).  Any litigation with respect to suchindemnification must be commenced (by service of process on such other party)within the Survival Period, and if not so commenced within the Survival Period,the indemnification shall be void and of no force or effect.  To the extent that Assignee has knowledge asof the date set forth below of any costs, liability, loss, damage or expensewhich would be covered by Assignor’s indemnity set forth above, Assignor’sindemnity set forth above shall be void and of no force or effect.  No claim for indemnity hereunder shall beactionable or payable unless the valid claims for indemnification collectivelyaggregate more than $50,000.  In no eventshall the liability of Assignor or Assignee hereunder exceed $500,000 (in theaggregate together with any other liabilities of Assignor arising under the transactionscontemplated by that certain Purchase and Sale and Escrow Agreement dated August [      ],2009 by and between Assignor and Assignee), and liability hereunder shall belimited to actual damages and shall not include exemplary, punitive orconsequential damages.

 

1

----

 

If anylitigation between Assignor and Assignee arises out of the obligations of theparties under this Assignment or concerning the meaning or interpretation ofany provision contained herein, the losing party shall pay the prevailing party’scosts and expenses of such litigation including, without limitation, reasonableattorneys’ fees.

 

This Agreementmay be executed and delivered in any number of counterparts, each of which soexecuted and delivered shall be deemed to be an original and all of which shallconstitute one and the same instrument.

 

This Agreementis made subject, subordinate and inferior to the easements, covenants and othermatters and exceptions set forth on Exhibit A (the “**Permitted Exceptions**”), attached hereto and made a parthereof for all purposes.

 

2

----

 

**IN WITNESSWHEREOF,** Assignor and Assignee have executed thisAssignment effective as of this [      ] day ofOctober, 2009.

 
|   | **ASSIGNOR:**                          |
|--------|----------------------------------------|
|   |                                   |
|   | **175 FREEMAN STREET INVESTORS  LLC**, |
|   | a Delaware limited  liability company  |
|   |                                   |
|   | By:                                    | TPF Equity Trust  Operating Partnership |
|   |                                   | LP, its sole member |
|   |                                   |   |
|   |                                   | By: | TPF Equity Trust  Operating |
|   |                                   |   | Partnership GP LLC, its  general |
|   |                                   |   | partner |
|   |                                   |   |   |
|   |                                   |   |   |
|   |                                   |   | By: |   |
|   |                                   |   | Name: | Jayne M. Brundage |
|   |                                   |   | Title: | Executive Director |

 

 
|   | **ASSIGNEE:**                  |
|--------|--------------------------------|
|   |                           |
|   | **THE HAMILTON COMPANY, INC.** |
|   | a Massachusetts  corporation   |
|   |                           |
|   | By:                            |   |
|   | Name:                          |   |
|   | Title:                         |   |
|   |                           |   |

 

3

----

 

**EXHIBIT 9.3.4**

**ASSIGNMENTAND ASSUMPTION OF CONTRACTS**

** **

In considerationof One Dollar and other good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, **175 FREEMANSTREET INVESTORS, LLC**, a Delaware limited liability company (the “**Assignor**”), hereby assigns to and delegates **THE HAMILTON COMPANY, INC.**, a Massachusetts corporation (the“**Assignee**”), with an office and place ofbusiness at 39 Brighton Avenue, Boston, Massachusetts 02134, and Assigneehereby assumes and accepts the assignment and delegation of all of Assignor’sright, title and interest in and to the contracts, licenses, agreements andequipment leases (the “**Contracts**”)described on Exhibit A attached hereto relating to certain realproperty known as Dexter Park Apartments and located at 175 Freeman Street,Brookline, Norfolk County, Massachusetts, and Assignee hereby accepts suchassignment.

 

Assignor shallindemnify Assignee against and hold Assignee harmless from any and all cost,liability, loss, damage or expense, including, without limitation, reasonableattorneys’ fees, originating or relating to the period prior to date hereof andarising out of the Assignor’s obligations under the Contracts described on Exhibit A.  Assignee shall indemnify Assignor against andhold Assignor harmless from any and all cost, liability, loss, damage orexpense, including, without limitation, reasonable attorneys’ fees, originatingor relating to the period on or after the date hereof and arising out of theAssignee’s obligations under the Contracts described on Exhibit A.

 

Notwithstandinganything to the contrary contained herein, the indemnities contained hereinshall survive for a period of six (6) months from the date set forth below(the “**Survival Period**”).  Any litigation with respect to suchindemnification must be commenced (by service of process on such other party)within the Survival Period, and if not so commenced within the Survival Period,the indemnification shall be void and of no force or effect.  To the extent that Assignee has knowledge asof the date set forth below of any costs, liability, loss, damage or expensewhich would be covered by Assignor’s indemnity set forth above, Assignor’sindemnity set forth above shall be void and of no force or effect.  No claim for indemnity hereunder shall beactionable or payable unless the valid claims for indemnification collectivelyaggregate more than $50,000.  In no eventshall the liability of Assignor or Assignee hereunder exceed $500,000 (in theaggregate together with any other liabilities of Assignor arising under the transactionscontemplated by that certain Purchase and Sale and Escrow Agreement dated August [      ],2009 by and between Assignor and Assignee), and liability hereunder shall belimited to actual damages and shall not include exemplary, punitive or consequentialdamages.

 

If anylitigation between Assignor and Assignee arises out of the obligations of theparties under this Assignment or concerning the meaning or interpretation ofany provision contained herein, the losing party shall pay the prevailing party’scosts and expenses of such litigation including, without limitation, reasonableattorneys’ fees.

 

1

----

 

This Agreementmay be executed and delivered in any number of counterparts, each of which soexecuted and delivered shall be deemed to be an original and all of which shallconstitute one and the same instrument.

 

2

----

 

**IN WITNESSWHEREOF,** Assignor and Assignee have executed thisAssignment effective as of this [      ] day ofOctober, 2009.

 
|   | **ASSIGNOR:**                          |
|--------|----------------------------------------|
|   |                                   |
|   | **175 FREEMAN STREET INVESTORS  LLC**, |
|   | a Delaware limited  liability company  |
|   |                                   |
|   | By:                                    | TPF Equity Trust  Operating Partnership |
|   |                                   | LP, its sole member |
|   |                                   |   |
|   |                                   | By: | TPF Equity Trust  Operating |
|   |                                   |   | Partnership GP LLC, its  general |
|   |                                   |   | partner |
|   |                                   |   |   |
|   |                                   |   |   |
|   |                                   |   | By: |   |
|   |                                   |   | Name: | Jayne M. Brundage |
|   |                                   |   | Title: | Executive Director |

 

 
|   | **ASSIGNEE:**                  |
|--------|--------------------------------|
|   |                           |
|   | **THE HAMILTON COMPANY, INC.** |
|   | a Massachusetts  corporation   |
|   |                           |
|   | By:                            |   |
|   | Name:                          |   |
|   | Title:                         |   |
|   |                           |   |

 

3

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**EXHIBIT 9.3.5**

**ASSIGNMENTOF PROPERTY NAME**

** **

For valuableconsideration, the receipt and sufficiency of which is hereby acknowledged, **175 FREEMAN STREET INVESTORS LLC**, a Delaware limitedliability company (the “**Assignor**”),hereby assigns, transfers and sets over unto **THE HAMILTONCOMPANY, INC.**, a Massachusetts corporation (the “**Assignee**”), all of Assignor’s right, title and interest, ifany, in and to the property name “Dexter Park Apartments”.  Seller makes no warranty or representation ofany kind with respect to its right, title and interest in the property name.

 

**IN WITNESSWHEREOF,** Assignor has caused this instrument to beexecuted as of this [      ] day of October,2009.

 
|   | **SELLER:**                            |
|--------|----------------------------------------|
|   |                                   |
|   | **175 FREEMAN STREET INVESTORS  LLC**, |
|   | a Delaware limited  liability company  |
|   |                                   |
|   | By:                                    | TPF Equity Trust  Operating Partnership |
|   |                                   | LP, its sole member |
|   |                                   |   |
|   |                                   | By: | TPF Equity Trust  Operating |
|   |                                   |   | Partnership GP LLC, its  general |
|   |                                   |   | partner |
|   |                                   |   |   |
|   |                                   |   |   |
|   |                                   |   | By: |   |
|   |                                   |   | Name: | Jayne M. Brundage |
|   |                                   |   | Title: | Executive Director |

 

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**EXHIBIT 9.3.6**

**ASSIGNMENTOF WARRANTIES AND GUARANTEES**

** **

**THISAGREEMENT** is made as of the[      ] day of October, 2009, between **175 FREEMAN STREET INVESTORS LLC**, a Delaware limitedliability company (the “**Assignor**”), and**THE HAMILTON COMPANY, INC.**, aMassachusetts corporation (the “**Assignee**”).

 

**RECITALS :**

** **

Assignee hasthis day acquired from Assignor certain interests in land, buildings andimprovements more particularly described on Exhibit A attachedhereto and made a part hereof (the “**Property**”).

 

In considerationof the acquisition of the Property by Assignee and other good and valuableconsideration, the mutual receipt and legal sufficiency of which are herebyacknowledged, Assignor hereby assigns, transfers and sets over unto Assigneeand Assignee hereby accepts from Assignor all of Assignor’s right, title andinterest in and to all transferable warranties and guarantees, if any, withrespect to the improvements located on the Property or any repairs orrenovations to such improvements and any personal property conveyed to Assigneeby Assignor in connection with the Property.

 

**IN WITNESSWHEREOF,** Assignor has caused this instrument to beexecuted as of the date above written.

 
|   | **SELLER:**                            |
|--------|----------------------------------------|
|   |                                   |
|   | **175 FREEMAN STREET INVESTORS  LLC**, |
|   | a Delaware limited  liability company  |
|   |                                   |
|   | By:                                    | TPF Equity Trust  Operating Partnership |
|   |                                   | LP, its sole member |
|   |                                   |   |
|   |                                   | By: | TPF Equity Trust  Operating |
|   |                                   |   | Partnership GP LLC, its  general |
|   |                                   |   | partner |
|   |                                   |   |   |
|   |                                   |   |   |
|   |                                   |   | By: |   |
|   |                                   |   | Name: | Jayne M. Brundage |
|   |                                   |   | Title: | Executive Director |

 

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**EXHIBIT 9.3.8**

**AFFIDAVITPURSUANT TO FOREIGN INVESTMENTAND REAL PROPERTY TAX ACT**

** **

Section 1445 of the Internal Revenue Code (the “**Code**”) provides that a transferee of a U.S.real property interest must withhold tax if the transferor is a foreignperson.  For U.S. tax purposes (includingsection 1445), the owner of a disregarded entity (which has legal title to aU.S. real property interest under local law) will be the transferor of theproperty and not the disregarded entity. To inform                                          ,a                                      ,of [Address] (“**Transferee**”) that tax withholdingwill not be required in connection with the disposition of the Property asdefined in, and pursuant to, that certain Purchase and Sale and Escrow Agreementdated                            ,the undersigned certifies the following on behalf of                                 (“**Transferor**”):

 

1.                                       Transferoris not a foreign corporation, foreign partnership, foreign trust, or foreignestate (as those terms are defined in the Code and Income Tax Regulations);

 

2.                                       Transferor is not a disregarded entity asdefined in Code § 1.1445-2(b)(2)(iii);

 

3.                                       Transferor’s U.S. employer identification number is06-1604937; and

 

4.                                       Transferor’s address is:

 

c/o UBS Realty Investors LLC242 Trumbull StreetHartford, Connecticut 06103-1212

 

This Affidavit may bedisclosed to the Internal Revenue Service and any false statement containedherein could be punished by fine, imprisonment, or both.

 

Under penalties ofperjury I declare that I have examined this Affidavit and to the best of myknowledge and belief it is true, correct, and complete, and further declarethat I have authority to sign this document on behalf of Transferor.

 
|   |            | , a    |
|--------|-----------------|--------|
|   |            |
|   |            |
|   | By:             |
|   |            |
|   | Its:            |   |
|   |            |
|   | Duly Authorized |
|        |                 |        |  |

 

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**EXHIBIT 9.8**

**NOTICETO UTILITY COMPANY**

** **

October [      ],2009

 

RE:                                                                              **DEXTER PARK APARTMENTS175 FREEMAN STREETBROOKLINE, MASSACHUSETTS**

 

You are hereby notified and advised that **THE HAMILTON COMPANY, INC.** (“**Purchaser**”)has purchased and acquired from **175 FREEMAN STREETINVESTORS LLC** all right, title and interest in and to **DEXTER PARK APARTMENTS**(“**Property**”).

 

In accordance with the foregoing, you are herebynotified that all future invoices, bills, correspondence, and notices relatingto the Property, should be delivered to Purchaser at the followingaddress:  39 Brighton Avenue, Boston,Massachusetts 02134.

 

Upon final payment of the utility bills, please cancelany bonds in place and return the originals to Steven Miele at UBS RealtyInvestors LLC, 242 Trumbull Street, Hartford, Connecticut 06103-1212.

 
|   | Very truly yours,                      |
|--------|----------------------------------------|
|   |                                   |
|   | **175 FREEMAN STREET INVESTORS  LLC**, |
|   | a Delaware limited  liability company  |
|   |                                   |
|   | By:                                    | TPF Equity Trust  Operating Partnership |
|   |                                   | LP, its sole member |
|   |                                   |   |
|   |                                   | By: | TPF Equity Trust Operating |
|   |                                   |   | Partnership GP LLC, its  general |
|   |                                   |   | partner |
|   |                                   |   |   |
|   |                                   |   |   |
|   |                                   |   | By: |   |
|   |                                   |   | Name: | Jayne M. Brundage |
|   |                                   |   | Title: | Executive Director |

 

----

 
|   |   |   | **THE HAMILTON COMPANY, INC.** |
|--------|--------|--------|--------------------------------|
|   |   |   | a Massachusetts  corporation   |
|   |   |   |                           |
|   |   |   | By:                            |   |
|   |   |   | Name:                          |   |
|   |   |   | Title:                         |   |

 

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**EXHIBIT 9.9**

**NOTICE TO TENANTS**

** **

October [      ],2009

 

Re:      Notice of Change of Ownership of

Dexter Park Apartments,175 Freeman Street, Brookline, Massachusetts

 

Ladies and Gentlemen:

 

You are hereby notifiedas follows:

 

1.     That as of the date hereof, 175 FREEMANSTREET INVESTORS LLC has transferred, sold, assigned, and conveyed all of itsinterest in and to the above-described property, (the “Property”) to THEHAMILTON COMPANY, INC. (the “New Owner”).

 

2.     Future notices and rental payments withrespect to your leased premises at the Property should be made to the New Ownerin accordance with your lease terms at the following address:

 

Dexter Park Apartments

Attn:                              (Telephone #:                      )

Street Address

City, State &Zip

 

3.               TheNew Owner shall be responsible for holding your security deposit in accordancewith the terms of your lease.

 

**[REMAINDEROF PAGE INTENTIONALLY BLANK]**

 

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