**EXHIBIT10.76****PURCHASE AND SALE AGREEMENT**     **THIS PURCHASE AND SALE AGREEMENT**(this “Agreement”) is entered into as of January 29,2007 by and among SP-K Development, LLC (“Tract K Seller”), SP-B1 Development, LLC(“Tract B-1 Seller”), SP-A Development, LLC (“Tract A Seller”), SP-B2 Development,LLC (“Tract B-2 Seller”), SP-D Development, LLC (“Tract D Seller”), SP-EDevelopment, LLC (“Tract E Seller”), SP-J Development, LLC (“Tract J Seller”), 110Munson Street, LLC (“110 Munson Seller”), SP-C Development, LLC (“Assignor 1”) andLyme Properties LLC (“Assignor 2”), each a Delaware limited liability company, andcollectively, the “Seller” and BioMed Realty, L.P., a Maryland limited partnership (the“Purchaser”), having an office at 17140 Bernardo Center Drive, Suite 222, San Diego,California 92128, with a facsimile number of (858) 485-9843. The Seller has an office c/o LymeProperties LLC, 101 Main Street, 18th floor, Cambridge, MA 02142 Attn: Robert L. Green,with a facsimile number of (617) 225-2133.     Capitalized terms used in this paragraph shall have the respective meanings set forth in thisAgreement. The Tract K Seller is the tenant under the Ground Lease for Tract K. The Tract B-1Seller is the tenant under the Ground Lease for Tract B-1. The Tract A Seller is the tenant underthe Ground Lease for Tract A. The Tract B-2 Seller is the tenant under the Ground Lease for TractB-2. The Tract D Seller is the tenant under the Ground Lease for Tract D. The Tract E Seller isthe tenant under the Ground Lease for Tract E. The Tract J Seller is the tenant under the GroundLease for Tract J. The 110 Munson Seller is the fee title owner of 110 Munson. Assignor 1 is aparty to the TDA. Assignor 2 is a party to the ARDA and the TDA.     In consideration of the mutual promises hereinafter set forth and for other good and valuableconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties heretoagree as follows:**ARTICLE 1****Definitions**     **Section 1.1.****Definitions****.**For purposes of this Agreement, capitalized termsnot otherwise defined herein have the meanings set forth below:     “Adjustment Point” shall have the meaning set forth in Section 8.4(b).     “ARDA” shall have the meaning set forth in the attached Schedule 7.2(b)(iv)-3.     “ARDA Consent” shall have the meaning set forth in Section 6.2(f).     “ARDA Estoppel Provisions” shall have the meaning set forth in Section 6.2(f).     “ARDA Party” shall mean Science Park Development Corporation.     “Asserting Party” shall have the meaning set forth in Section 11.21.
 

 
     “Assignment and Assumption Agreement” shall mean an Assignment, Assumption and Bill ofSale Agreement in substantially the form attached hereto as Schedule 8.2(e).     “Brokerage Agreements” shall mean the lease brokerage agreements listed on theattached Schedule 7.2(b)(iv)-4.     “Business Day” shall mean any day of the week other than Saturday, Sunday, or a day onwhich banking institutions in Boston, Massachusetts are obligated or authorized by law or executiveaction to be closed to the transaction of normal banking business.     “Certificate” shall have the meaning set forth in Section 6.1(g).     “Claim” shall have the meaning set forth in Section 10.6.     “Claim Period” shall have the meaning set forth in Section 7.3(d).     “Closing” shall mean the consummation of the purchase and sale of the Propertypursuant to the terms of this Agreement.     “Closing Date” shall mean April 4, 2007, as such date may be extended in accordancewith the express extension provisions of this Agreement.     “Closing Month” shall have the meaning set forth in Section 8.4(b).     “Closing Statement” shall have the meaning set forth in Section 8.4(l).     “Code” shall mean the Internal Revenue Code of 1986, and all amendments thereto andall regulations issued thereunder.     “coming due” shall have the meaning set forth in Section 6.4(c).     “Condemnation” shall have the meaning set forth in Section 6.3(a).     “Confidential Information” shall mean all information concerning the Property, theLeases and Seller, excluding information that is available to the general public from sources otherthan disclosure by Purchaser or its agents in violation of this Agreement.     “costs of collection” shall have the meaning set forth in Section 8.4(b).     “Damage Cap” shall have the meaning set forth in Section 10.4.     “Deed” shall mean a special warranty deed from 110 Munson Seller to Purchaser in theform attached hereto as Schedule 8.2(a).     “Defending Party” shall have the meaning set forth in Section 11.21.
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     “Deposit” shall have the meaning set forth in Section 3.1.     “Due Diligence Materials” shall have the meaning set forth in Section 5.2.     “Effective Date” shall mean the date of this Agreement.     “Environmental Insurance Policy” shall mean that certain Pollution Legal LiabilityPolicy issued by Gulf Insurance Group with a Policy Number: GU-0680969.     “Environmental Laws” shall have the meaning set forth in Section 11.19.     “eRoom” shall have the meaning set forth in Section 5.2.     “Escrow Agent” shall mean the Title Company.     “Ground Landlord’s Consent” shall have the meaning set forth in Section6.1(d).     “Ground Landlord Estoppel Provisions” shall have the meaning set forth in Section6.1(d).     “Ground Lease Assignment” shall mean an Assignment and Assumption of Ground Lease insubstantially the form attached hereto as Schedule 8.2(b).     “Ground Leases” shall mean the ground leases at the Property listed on the attachedSchedule 7.2(b)(iv)-1.     “Hazardous Materials” shall have the meaning set forth in Section 11.19.     “Impositions” shall have the meaning set forth in Section 8.4(b).     “Joint Venture Entity” shall mean a limited partnership, limited liability company orany other joint venture entity that is managed, either directly or indirectly, by any RelatedEntity(s) (provided that the management rights of such Related Entity(s) may be subject to (i) theright of one or more other partners, members or other venturers in such joint veture to approvecertain material transactions entered into, other actions taken by or other major decisions madefor, such Joint Venture Entity and (ii) other customary rights, so long as no such rights can everbe exercised with respect to the transactions contemplated by this Agreement).     “Lease Expenses” shall mean the Seller Lease Expenses and the Purchaser Lease Expensesrelated to the Property.     “Leases” shall mean the leases of space at the Real Property listed on the attachedSchedule 7.2(b)(iv)-1.
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     “Listed Permits” shall mean the licenses, permits, approvals, certificates andentitlements listed on Schedule 7.2(b)(iv)-6 attached hereto.     “Lyme Timber Guarantys” shall have the meaning set forth in the attached Schedule7.2(b)(iv)-3     “Major Event” shall have the meaning set forth in Section 6.3(a).     “Miscellaneous Consultant Agreements” shall mean the contracts and agreements that arelisted on the attached Schedule 7.2(b)(iv)-2.     “Miscellaneous Consultant Consent” shall mean an agreement in the form attached asSchedule 5.5.     “Net Proceeds” shall have the meaning set forth in Section 6.3(a).     “New Lender” shall mean any lender or lenders (or any agent on their behalf) providingfinancing to Purchaser in connection with the transactions contemplated herein.     “Other Matters” shall mean the contracts and matters that are listed on the attachedSchedule 7.2(b)(iv)-3.     “Permits” shall mean any licenses, permits, approvals, certificates or entitlementsissued in connection with the improvements that Seller has constructed on the Real Property,including the Listed Permits.     “Permitted Assignee” shall mean any Joint Venture Entity, Related Entity or, withrespect to Purchaser, any New Lender, and with respect to any New Lender, any Person eligible to bean assignee of New Lender’s interests under the documents entered into by Purchaser and New Lenderwith respect to the financing of the transactions contemplated herein.     “Permitted Exceptions” shall mean: (a) all matters shown on the Title Commitments(other than Seller Mortgages) or the Surveys, except for those matters (other than any matter thatwould otherwise constitute a Permitted Exception under this definition) as to which, in accordancewith Section 4.1: (i) Purchaser makes a written objection on or before the expiration ofthe Study Period; and (ii) Seller elects to use reasonable efforts to cure; (b) if Purchaser failsto obtain the Title Commitments before the end of the Study Period, all matters of public record asof the last day of the Study Period (other than Seller Mortgages); (c) all matters, whether or notof record, that arise out of the actions of Purchaser or Persons acting under Purchaser; (d) anydocuments evidencing the Leases, the Miscellaneous Consultant Agreements or any Other Matters to beassigned to Purchaser under this Agreement; (e) the lien of general real estate taxes, personalproperty taxes and all water, sewer, utility, trash and other similar charges and assessments whichare not yet due and payable; (f) any lien, encumbrance or governmental obligation which eitheraffects solely the property of a tenant under a Lease or is the obligation of such tenant todischarge, cure or comply with; (g) all laws, regulations and ordinances restrictions including,without limitation, all environmental, use, building and zoning laws
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affecting the Properties or the ownership, use or operation thereof now in effect or which maybe in force and effect on the Closing Date with respect to such Properties; (h) any notice ofcontract and (i) all matters (other than Seller Mortgages) that the Title Company is willing toinsure over to the reasonable satisfaction of Purchaser without material additional premium orindemnity (other than additional premium or indemnity that Seller in its sole discretion elects topay or give). Without limitation, Permitted Exceptions include all of the matters respectivelyreferred to in Schedule 4.1 attached.     “Person” shall mean any individual, estate, trust, partnership, limited liabilitycompany, limited liability partnership, corporation, governmental agency or other legal entity andany unincorporated association.     “Personal Property” shall mean all right, title and interest of Seller in all Permits(except to the extent such Permit cannot be assigned in accordance with applicable law), Reports,the Leases (including any security deposits delivered thereunder) at the Property, theMiscellaneous Consultant Agreements, the Other Matters, matters referred to in Schedule4.1, the Brokerage Agreements, the Plans and Specifications, the tangible personal propertyused or to be used in connection with the Real Property, including the tangible personal propertylisted on Schedule 7.2(c)(v) attached hereto, the Environmental Insurance Policy and in allsurveys, blue prints, drawings and other documentation for or with respect to the Property; allmarketing artwork, booklets, manuals and promotional and advertising materials concerning theProperty (including any websites, photographs, videos or other tangible or intellectual propertyconcerning the Property) in each case to the extent available and in the possession and control ofSeller; all tenant data, correspondence with past, present and prospective tenants, vendorssuppliers and utility companies in each case to the extent available and in the possession andcontrol of Seller; such other existing books, records and documents used solely in connection withthe construction or operation of the Property to the extent available and in the possession andcontrol of Seller; all intellectual property with respect to the Property, including but notlimited to, trade names and trademarks associated with the Property or by which the Property iscommonly known or designated, and all claims and causes of action with respect to any of theforegoing arising from and after the Closing; provided, however, that Seller (x) makes norepresentations or warranties whatsoever with respect to any of the Personal Property (except asand to the extent expressly set forth in Section 7.2) and (y) Purchaser acknowledges andagrees that Seller and/or the Seller Parties may use photographs or other reproductions of theProperty after the Closing for marketing or other reasonable purposes. For the avoidance of doubt,Purchaser expressly acknowledges that trademarks, trade names, copyrights or other intellectualproperty in and to the legal or trade names of any direct or indirect owner of Seller or Assignor,including without limitation the names “Lyme,” and “Lyme Properties” shall not be transferred fromSeller to Purchaser, nor shall the following be transferred or conveyed as Personal Property (i)any information or documents related to the transaction of which this Agreement is a part, (ii)any projections and other internal memoranda or materials, (iii) financial statements ofSeller, appraisals, budgets, strategic plans for the Property, internal analyses and submissionsrelating to Seller’s obtaining of internal authorizations and the like and (iv) any attorney andaccountant work product or any other materials subject to any legal privilege in favor of Seller.     “Post-Closing Escrow Agreement” shall have the meaning set forth in Section10.5.
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     “Post-Closing Escrow Funds” shall have the meaning set forth in Section 10.5.     “Property” shall mean the Real Property and the Personal Property.     “Purchase Price” shall mean the purchase price for the Property as specified inSection 2.2(a).     “Purchaser Lease Expenses” shall mean, collectively, any third party costs or expenses(including any brokerage fees) arising out of or in connection with (a) any of the Leases at theProperty, to the extent such costs and expenses were not due and payable prior to the Closing, asthe same are set forth on the attached Schedule 7.2(b)(iv)-4, (b) any extension, expansionor other right exercised by any Tenant under any Lease at the Property after the Effective Date, or(c) any new lease or Lease modification at the Property entered into with Purchaser’s priorapproval as provided in this Agreement between the Effective Date and the Closing Date.     “Purchaser Title Objections” shall have the meaning set forth in Section 4.1.     “Purchaser’s Endorsements” shall mean the following to the extent such endorsementsare generally available for real property such as the Real Property in the State of Connecticut:(1) owner’s comprehensive; (2) access; (3) “same as” survey; (4) subdivision; (5) zoning 3.1; (6)deletion of standard mechanic’s lien exception and (7) deletion of creditor’s rights exception.     “Purchaser’s REIT Entity” shall have the meaning set forth in Section 6.4.     “Real Property” shall mean the real and other property respectively described onExhibit A attached hereto and all buildings, structures and other improvements locatedthereon, together with and subject to all privileges, rights, easements and appurtenances belongingto or burdening such property (including the Permitted Exceptions) and all right, title andinterest of Seller, if any, in and to any streets, alleys, passages or other rights-of-way orappurtenances included in, adjacent to or used in connection with such property. Exhibit Arespectively describes the following: Tract K, Tract B-1, Tract A, Tract B-2, Tract D, Tract E,Tract J and 110 Munson.     “Related Entity” shall mean Purchaser, Purchaser’s REIT Entity or any single purposeentity or entities that are directly or indirectly wholly-owned and controlled by Purchaser andPurchaser’s REIT Entity.     “Rents” shall have the meaning set forth in Section 8.4(b).     “Reports” shall mean any reports by any third party engineering, architectural,environmental or other like consultants regarding Hazardous Materials at the Real Property, whichwere prepared for Seller in connection with and following Seller’s acquisition of the RealProperty, including the reports listed on the attached Schedule 7.2(b)(iv)-5. The Reportsare Confidential Information.
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     “Restricted Period” shall mean the period commencing on the date that is three (3)Business Days prior to the expiration of the Study Period and ending on the earlier of the Closingor the termination of this Agreement.     “Seller Lease Expenses” shall mean, collectively, any third party costs or expenses(including any brokerage fees) arising out of or in connection with any of the Leases of theProperty or portions thereof (other than any Purchaser Lease expenses) to the extent the same aredue prior to the Closing.     “Seller Mortgage” shall mean any mortgage or deed of trust granted or assumed bySeller and encumbering the Real Property or any portion thereof or any other lien securing thepayment of a liquidated sum of money voluntarily created by Seller, but shall not include anymortgage that Purchaser elects to assume at the Closing.     “Seller Parties” shall mean each Seller, and each such entity’s affiliates, and eachof their respective direct and indirect owners, and their respective agents, partners, officers,directors, trustees, attorneys, advisors, managers and employees.     “Seller Representations” shall mean the representations and warranties of Sellerexpressly set forth in Section 7.2.     “Seller’s Broker(s)” shall mean Lyme Properties LLC.     “Seller’s Estoppel Certificate” shall mean an estoppel certificate from the applicableSeller provided pursuant to this Agreement.     “Seller’s Title Election Period” shall have the meaning set forth in Section4.1.     “Study Period” shall mean the period commencing on the Effective Date of thisAgreement and ending at 5:00 p.m. East Coast time on February 16, 2007.     “Survey” shall have the meaning set forth in Section 4.1.     “Surviving Obligations” shall mean all obligations of a party which by their termsexpressly survive the Closing or termination of this Agreement.     “TDA” shall have the meaning set forth in the attached Schedule 7.2(b)(iv)-3.     “TDA Consent” shall have the meaning set forth in Section 6.1(e).     “TDA Estoppel Provisions” shall have the meaning set forth in Section 6.1(e).     “TDA Party” shall have the meaning set forth in Section 6.1(e).     “Tenant Estoppel Certificate” shall have the meaning set forth in Section6.1(c).
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     “Tenants” shall mean the tenants under the Leases at the Property.     “Threshold Amount” shall have the meaning set forth in Section 10.1.     “Title Commitments” shall mean commitments in customary form evidencing the TitleCompany’s commitment to issue the Title Policies to Purchaser.     “Title Company” shall mean the Boston, Massachusetts office of Stewart Title GuarantyCompany, having an address of 99 Summer Street, 2nd Floor, Boston, Massachusetts 02110, Attention:Marie Franco, Esq.     “Title Cure Cap” shall mean Four Hundred Thousand Dollars ($400,000).     “Title Objection Notice” shall have the meaning set forth in Section 4.1.     “Title Policies” shall mean ALTA Owner’s Policies of title insurance (insuring eitherfee or ground lease title, as applicable), with extended coverage (i.e., with ALTA GeneralExceptions deleted), dated as of the date and time of the recording of the Deed or, if applicable,the recording of a Ground Lease Assignment, in the amount of the allocated Purchase Price for theReal Property, insuring Purchaser as owner of good, marketable and indefeasible fee simple title(or in the case of any portion of the Real Property that is subject to a Ground Lease, good andmarketable leasehold title) to the respective Real Property, subject only to the PermittedExceptions and including the Purchaser’s Endorsements.     “Update” shall have the meaning set forth in Section 7.3(c).     “Update Termination Period” shall have the meaning set forth in Section7.3(c).     “Updated Certificate” shall have the meaning set forth in Section 6.1(j).     “when due” shall have the meaning set forth in Section 6.4(c).**ARTICLE 2****Agreement: Purchase Price**     **Section 2.1.****Agreement to Sell and Purchase**. Subject to the terms andprovisions hereof, Seller agrees to sell the Property to Purchaser, and Purchaser agrees topurchase the Property from Seller.     **Section 2.2.****Purchase Price**. (a) The purchase price for the Property shallbe the sum of Twenty One Million Dollars ($21,000,000) (the “Purchase Price”). Subject tothe adjustments and apportionments set forth in this Agreement, the Purchase Price shall be paid onthe Closing Date by wire transfer of immediately available federal funds to such account(s) ofSeller as Seller designates in writing to Purchaser. The Purchase Price shall be allocated asfollows:
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       (1) Tracts K and B-1 and 110 Munson: $22,300,000 (2) Tracts A, B-2, D, E and J and all other Property: ($1,300,000)     The Purchase Price allocation with respect to the matters set forth in the foregoing (2) is areduction in the Purchase Price on account of future funding obligations with respect todevelopment on Tracts A, B-2, D, E and J. The foregoing allocation is not intended and shall notbe construed to allow Seller to sell or Purchaser to purchase less than all of the Property.**ARTICLE 3****Deposit**     **Section 3.1.****Deposit**. Purchaser shall deposit with Escrow Agent no laterthan the following events the following amounts: (i) on the third (3rd) Business Day after theEffective Date, One Million Dollars ($1,000,000), (ii) on the third (3rd) Business Day after thedate of the expiration of the Study Period, if Purchaser fails to terminate this Agreement inaccordance with Section 5.2, One Million Dollars ($1,000,000) (individually orcollectively, as the case may be at any time, the “Deposit”), such that the total Depositat such time shall be Two Million Dollars ($2,000,000). The Deposit shall be held by Escrow Agentin a segregated “money market” interest bearing account pursuant to an escrow agreement in the formattached hereto as Schedule 3.1. Escrow Agent shall invest the Deposit in aninterest-bearing savings account or short-term U.S. Treasury Bills or similar cash-equivalentsecurities, as directed by Purchaser and Seller. Any and all interest earned on the Deposit shallbe reported to Purchaser’s federal tax identification number and shall become part of the Deposit.The Deposit shall be applied to the Purchase Price if the Closing occurs. If Purchaser fails todeliver any installments of the Deposit to Escrow Agent within the time required under thisSection 3.1, then this Agreement shall, at Seller’s election, terminate (other than theSurviving Obligations), and any Deposit then held by Escrow Agent shall be promptly paid ordelivered to Seller following such termination. At Purchaser’s election all or any portion of theDeposit may be made by delivering to the Escrow Agent a letter of credit, which shall mean anirrevocable, unconditional, transferable, clean sight draft letter of credit in a form reasonablyapproved by Seller issued or confirmed for direct payment by a financial institution acceptable toSeller that will accept draws upon such letter of credit in either Boston, Massachusetts or NewYork, New York, that expires no earlier than one hundred twenty (120) days after the Closing Date,in favor of Seller entitling Seller to draw thereon based solely on a statement purportedlyexecuted by an officer of Seller stating that it has the right to draw thereon. Purchaser shallremain fully liable for the amount of the Deposit, without duplication, if any such letter ofcredit evidencing the Deposit expires, is terminated or is otherwise not payable to or drawable bySeller in accordance with the terms of this Agreement.**ARTICLE 4****Survey and Title Commitment**     **Section 4.1.****Title and Survey**. Purchaser may: (a) order an “as built”survey for any of the respective Real Property (the “Surveys”) by a licensed surveyor orregistered professional
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engineer reasonably acceptable to Purchaser; and (b) cause the Title Company to prepare andfurnish Title Commitments to Purchaser and Seller for the Real Property, together with copies ofall instruments referred to thereon as exceptions to title. Purchaser shall deliver an original ofany Surveys and a copy of any Title Commitments (and such instruments) to Seller within three (3)Business Days of receipt thereof by Purchaser. In the event that Purchaser fails to obtain anyTitle Commitments or Surveys prior to the expiration of the Study Period, in each case with respectto any part of the Real Property, then Purchaser shall waive any right to object to any matter setforth in the Title Commitments or Surveys, as the case may be (but such waiver shall apply onlywith respect to such parts of the Real Property for which a Title Commitment or Survey was notobtained), following the expiration of the Study Period.     Not later than the expiration of the Study Period, Purchaser shall give Seller a writtennotice (the “Title Objection Notice”) that sets forth in reasonable detail an explanationof any objections that Purchaser has to title or survey matters affecting the Real Property (the“Purchaser Title Objections”); provided, however, that Purchaser shall have no right toobject to any Permitted Exceptions. Seller shall have until 5:00 p.m. Boston time on the third(3rd) Business Day from its receipt of the Title Objection Notice (“Seller’s Title ElectionPeriod”) to give Purchaser notice as to whether Seller elects to use reasonable efforts to curethe Purchaser Title Objections by the Closing Date. If Seller fails to give Purchaser writtennotice of such election before the end of Seller’s Title Election Period, Seller shall be deemed tohave elected not to attempt to cure the Purchaser Title Objections. If Seller elects not to or isdeemed to have elected not to attempt to cure any one or more of the Purchaser Title Objections,such Purchaser Title Objections shall constitute Permitted Exceptions and Purchaser shall haveuntil 5:00 p.m. Boston time on the fifth (5th) Business Day after the end of the Study Period toelect whether to take title to the Property subject to such matters or to terminate this Agreementby giving written notice to Seller of such termination on or before such time on such fifth (5th)Business Day, and failure of Purchaser to so terminate this Agreement shall be deemed an electionto take title to the Property subject to such matters. If (x) Seller elects to use reasonableefforts to cure any one or more of the Purchaser Title Objections, or (y) the Real Property becomessubject to any defect in title arising after the date of any Title Commitment or Survey obtainedprior to the expiration of the Study Period, as the case may be, Purchaser shall notify Sellerwithin three (3) Business Days of becoming aware of such defect (or at the Closing if less thanthree (3) Business Days remain until the Closing Date) and Seller shall have until the ClosingDate, which Seller may in its sole discretion, exercisable by written notice to Purchaser on orbefore the Closing Date, extend for one or more periods of up to sixty (60) days in total toprovide additional time to complete such cure. If at the Closing Date, as so extended, Seller hasnot completed such cure then Purchaser shall have the option of either accepting the title as itthen is or receiving a refund of the Deposit, which shall promptly be returned to Purchaser andthereupon except for Surviving Obligations Purchaser and Seller shall have no further obligationsor liabilities under this Agreement. If Seller elects to use reasonable efforts to cure any one ormore of Purchaser Title Objections, Seller shall in no event be required to bring or settle alawsuit to clear any title defects and, except for Seller Mortgages, Seller shall never be requiredto expend more than the amount of the Title Cure Cap to cure all Purchaser Title Objections. AllSeller Mortgages will be satisfied by Seller at or prior to the Closing or, if not so satisfied,shall be satisfied at Closing by reserving proceeds otherwise payable to Seller in a mannerreasonably satisfactory to the Title Company.
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     **Section 4.2.****Discharge of Title Objections** Notwithstanding anything hereinto the contrary, Seller shall be deemed to have removed or corrected each matter or condition thatis not a Permitted Exception if, in Seller’s discretion and at its sole cost, Seller either (a)causes the Title Company to remove such matter or condition as an exception to title in theapplicable Title Commitment issued at Closing or affirmatively insures against the same in a mannerreasonably acceptable to Purchaser, in each case without any additional cost to Purchaser, whethersuch insurance is made available in consideration of payment, bonding, indemnity of Seller orotherwise, or (b) delivers (i) its own funds (or directs that a portion of the Purchase Price bedelivered) in an amount needed to fully discharge any such matter or condition to the Title Companywith instructions for the Title Company to apply such funds to fully discharge any such matter orcondition, and (ii) if required by the Title Company, such instruments in recordable form as arenecessary to enable the Title Company to discharge such matter or condition of record.**ARTICLE 5****Inspection**     **Section 5.1.****Access** During the pendency of this Agreement, Purchaser,personally or through its authorized agents, shall be entitled upon reasonable advance notice tothe applicable Seller Party to enter upon the Real Property during normal business hours and shallhave the right to make such investigations, studies and analyses as Purchaser deems necessary oradvisable, subject to the following limitations: (a) such access shall not violate any law or, solong as the same has been delivered to Purchaser, any agreement to which Seller is a party; (b) arepresentative of the applicable Seller Party shall have the right to be present when Purchaser orits representatives conducts its or their investigations on the Real Property or communicates withany Tenants, (c) neither Purchaser nor its representatives shall interfere with any constructionactivities taking place on the Real Property (except to a de minimis extent); (d) neither Purchasernor its agents shall damage the Real Property or any portion thereof (except to a de minimisextent); (e) before Purchaser or its agents enter onto the Real Property, Purchaser shall deliverto the applicable Seller Party a certificate of insurance naming the applicable Seller Party as anadditional insured, evidencing commercial general liability insurance (including property damage,bodily injury and death) issued by an insurance company having a rating of at least “A-VII” by A.M.Best Company, with limits of at least $1,000,000 per occurrence for bodily or personal injury ordeath and $2,000,000 aggregate per location; (f) Purchaser shall: (i) use reasonable efforts toperform all on-site due diligence reviews on an expeditious and efficient basis; and (ii)indemnify, hold harmless and defend the Seller and the Seller Parties against, and hold each ofthem harmless from, all loss, liability, claims, costs (including reasonable attorneys’ fees),liens and damages resulting from or relating to the activities of Purchaser or its agents;provided, however, that Purchaser shall not indemnify, hold harmless or defend Seller or any of theSeller Parties against any loss, liability, claims, costs (including reasonable attorney’s fees),liens or damages caused by any Seller Party’s negligence or willful misconduct, or which arise outof the mere discovery of conditions that were present before Purchaser entered onto the RealProperty, and (g) without Seller’s prior written consent, which Seller may give or withhold in itsabsolute discretion, Purchaser shall not conduct any Phase II investigations, soil borings or other
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invasive tests on or around the Real Property. The foregoing indemnification obligation shallsurvive the Closing or termination of this Agreement.     **Section 5.2.****Study Period** (a) Purchaser shall have the Study Period to (i)physically inspect the Property, ascertain that the Property has sufficient characteristics for itspurposes, conduct appraisals, examine construction documents, perform examinations of the physicalcondition of the Property and any improvements located thereon, and examine the Property for thepresence of Hazardous Materials, in each case as provided for in Section 5.1, and (ii)review any materials delivered and/or made available to Purchaser and/or Purchaser’srepresentatives (including, without limitation, the Reports and those items contained in thatcertain data room website located at **https://extranet.piperrudnick.com/eRoom/lyme/**(such websitebeing the “eRoom”) and have access to such other records relating to construction of anyimprovements located on the Real Property as are in Seller’s possession or control (collectively,the “Due Diligence Materials”) and to otherwise conduct such due diligence review of theProperty as Purchaser, in its absolute discretion, deems appropriate all at its sole cost. Wherethis Agreement uses words such as “made available to Purchaser”, “provided to Purchaser”,“disclosed to Purchaser” and the like, the presence of any information in the eRoom prior to thecommencement of the Restricted Period shall mean that such information was made available,provided, delivered and disclosed to Purchaser.     (b) Prior to the conclusion of the Study Period, Purchaser shall notify Seller as to whichMiscellaneous Consultant Agreements Purchaser will assume and which Miscellaneous ConsultantAgreements shall be terminated by Seller in Purchaser’s sole discretion, and in the absence of anysuch notice, Purchaser shall be deemed to elect to assume all of the Miscellaneous ConsultantAgreements. Purchaser will assume the obligations coming due after the Closing Date under thoseMiscellaneous Consultant Agreements which Purchaser has elected (or is deemed to have elected) toassume, to the extent that the parties to such agreements agree to such assumption. Seller shallterminate at Closing all Miscellaneous Consultant Agreements that are not so assumed.     (c) If, before the end of the Study Period, Purchaser shall for any reason in Purchaser’s solediscretion, determine that it does not wish to purchase the Property, Purchaser shall be entitledto terminate this Agreement by giving written notice thereof to Seller prior to the expiration ofthe Study Period, and thereupon the Deposit shall promptly be returned to Purchaser and, except forthe Surviving Obligations, Seller and Purchaser shall have no further obligations or liabilities toeach other hereunder. If Purchaser fails to give such notice prior to the expiration of the StudyPeriod, it shall conclusively be deemed to have elected to waive its right to terminate thisAgreement under this Section 5.2 and shall be obligated to purchase the Property inaccordance with the terms hereof. If Purchaser terminates this Agreement under this Section5.2 or under any other provision of this Agreement, Purchaser shall promptly deliver to Sellercopies of all reports, studies and investigations relating to the Property in Purchaser’spossession or under its control, the same to be without warranty or representation by Purchaser orcost to Seller; provided, however, that Purchaser shall have no obligation to deliver copies of anyof the following to Seller: (i) any information or documents related to the transaction of whichthis Agreement is a part, (ii) any projections and other internal memoranda or materials,(iii) financial statements of Purchaser, appraisals, budgets, strategic plans for the Property
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prepared by or on behalf of Purchaser, internal analyses and submissions relating toPurchaser’s obtaining of internal authorizations and the like and (iv) any attorney and accountantwork product or any other materials subject to any legal privilege in favor of Purchaser.     **Section 5.3.****Confidentiality** (a) Subject to Section 5.3(b) and5.3(c), Purchaser shall hold all Confidential Information in confidence and shall not at anytime disclose or permit the disclosure of the Confidential Information to any Person withoutSeller’s prior written consent. Purchaser further agrees to use the Confidential Information onlyfor purposes of evaluating the Property in connection with its purchase thereof in accordance withthe terms of this Agreement. Notwithstanding the foregoing, (i) Purchaser may disclose theConfidential Information to its affiliates, legal counsel, consultants, engineers, accountants,lenders and similar third parties for their review of the Confidential Information in connectionwith Purchaser’s purchase of the Property subject to the terms of this Section 5.3, and(ii) Purchaser may disclose the Confidential Information to the extent that such disclosure isrequired by law (including any securities law) or court order, provided that Purchaser first shallprovide written notice thereof to Seller. If this Agreement is terminated before the Closing,Purchaser promptly shall return the Confidential Information to Seller and shall not retain copiesthereof.     (b) Following the Effective Date, Seller and Purchaser shall make a public announcementconcerning the sale of the Property pursuant to this Agreement. Seller and Purchaser shall providedrafts of such public announcement to, and confer with, the other party before such publicannouncement is made.     (c) From and after the Closing, notwithstanding anything to the contrary contained in thisAgreement, any party to this transaction (and each employee, agent or representative of theforegoing) may disclose to any and all persons, without limitation of any kind, the tax treatmentand tax structure of the transaction and all materials of any kind (including opinions or other taxanalyses) that are provided to them relating to such tax treatment and tax structure except to theextent that maintaining confidentiality with respect thereto is necessary to comply with anyapplicable federal or state securities laws. The authorization in the preceding sentence is notintended to permit disclosure of any other information unrelated to the tax treatment and taxstructure of the transaction including (without limitation) (i) any portion of the transactiondocuments or related materials to the extent not related to the tax treatment or tax structure ofthe transaction, (ii) the existence or status of any negotiations unrelated to the tax issues, or(iii) any other term or detail not relevant to the tax treatment or the tax structure of thetransaction.     (d) The provisions of this Section 5.3 shall survive the termination of thisAgreement.     **Section 5.4.****Reporting****.**In the event that Purchaser’s due diligence revealsany condition of the Property that in Purchaser’s judgment requires disclosure to any governmentalagency or authority, Purchaser shall immediately notify Seller thereof. In such event, Seller, andnot Purchaser nor anyone acting on Purchaser’s behalf, shall make such disclosures as Seller deemsappropriate. Notwithstanding the foregoing, Purchaser may disclose matters concerning the Propertyto a governmental authority if, (a) in the written opinion of Purchaser’s outside legal counsel (acopy of which is furnished to Seller), Purchaser is, or more likely than not is, required by law tomake such disclosure, and (b) to the extent permitted by law, Purchaser gives Seller
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not less than ten (10) Business Days prior written notice of the proposed disclosure, togetherwith a copy of such legal opinion.     **Section 5.5.****Miscellaneous Consultant Consents**. Seller shall usecommercially reasonable efforts (as defined below) to obtain the following prior to thecommencement of the Restricted Period: a Miscellaneous Consultant Consent from each party to theMiscellaneous Consultant Agreements (other than the Seller or any predecessor-in-interest of Sellerthereunder). Seller’s sole obligation with respect to the Miscellaneous Consultant Consents shallbe to use commercially reasonable efforts to obtain the same (which, for purposes of thisSection 5.5, shall mean requesting the applicable document from the intended signatorythereto, and shall in no event include the expenditure of any funds, the amendment of anyMiscellaneous Consultant Agreement or the commencement, settlement or other resolution of anylitigation, arbitration or similar proceeding), and Purchaser’s sole remedy with respect toSeller’s failure to obtain any such document (or any issue disclosed in any such document) shall beto terminate this Agreement in accordance with Section 5.2.**ARTICLE 6****Conditions Precedent, Condemnation**     **Section 6.1.****Conditions Precedent Favoring Purchaser**. Purchaser’sobligations under this Agreement are subject to the fulfillment of the conditions set forth in thisSection 6.1 on or before the Closing Date. Each condition may be waived in whole or inpart only by written notice of such waiver from Purchaser to Seller or by Purchaser consummatingthe transactions described in this Agreement at the Closing.     (a) Each Seller shall have performed and complied in all material respects with all of theterms of this Agreement to be performed and complied with by such Seller, as the case may be, priorto or at the Closing.     (b) Subject to Section 7.3, on the Closing Date, the representations of therespective parties within the term Seller set forth in Section 7.2 (as the same have beenupdated pursuant to Section 7.3(c)) shall be true, complete and accurate in all materialrespects, subject to: (1) changes that: (y) are caused by the acts or omissions of Purchaser orPersons acting under Purchaser; or (z) are a result of the operation of the Property in the normalcourse of business since the date hereof and in accordance with the terms of this Agreement and donot, individually or in the aggregate, have a material adverse effect on the value of the Propertyor the Purchaser’s ability to use the Property for its intended uses; and (2) casualty orcondemnation (which shall be governed by Section 6.3).     (c) Purchaser shall have received estoppel certificates from each of the following Tenants:Alexion Pharmaceuticals, Inc., Higher One, Inc. and CT Technology Development Corp. (each, a“Tenant Estoppel Certificate”) or shall have been provided with Seller’s EstoppelCertificates as permitted by the following sentence, in each case dated no earlier than theEffective Date (the “Estoppel Requirement”). If Tract K Seller is unable to obtainestoppel certificates from Higher One, Inc. and CT Technology Development Corp., in order to meetthe
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Estoppel Requirement, Tract K Seller shall provide to the Purchaser substitute Seller’sEstoppel Certificates with respect to the Leases to Higher One, Inc. and CT Technology DevelopmentCorp., as the case may be. With respect to any Tenant for whom Tract K Seller delivers a Seller’sEstoppel Certificate, Tract K Seller’s statements therein shall be deemed to be representations andwarranties as though set forth under and subject to Article 7 of this Agreement. Tract K Sellershall be entitled to continue to deal with such Tenant after Closing to attempt to obtain a TenantEstoppel Certificate from such Tenant. If Purchaser subsequently receives a Tenant EstoppelCertificate from any Tenant for whom Tract K Seller has delivered a Seller’s Estoppel Certificate,Tract K Seller shall thereupon be released from liability with respect to the Seller’s EstoppelCertificate given with respect to such Tenant to the extent that the information contained in theTenant Estoppel Certificate obtained from the Tenant is materially consistent with the informationcontained in Seller’s Estoppel Certificate. All Tenant Estoppel Certificates required hereby shallbe substantially in the form of the Seller’s Estoppel Certificate or, if the applicable Leaseprovides a form tenant estoppel certificate that includes all of the material provisions of theSeller’s Estoppel Certificate, then in the form so provided in such Lease, as the case may be; butsuch form may contain modifications and additions so long as it sets forth the material provisionsof the form attached hereto. Except as provided in Section 6.1(g) below with respect toany Certificate delivered to Purchaser before the commencement of the Restricted Period, no TenantEstoppel Certificate (or Seller’s Estoppel Certificate) shall count towards the EstoppelRequirement if it (A) discloses any material default by Tract K Seller or the respective Tenantthat was not disclosed to Purchaser before the commencement of the Restricted Period or (B)contains information that is materially inconsistent with the information set forth in the Leasesas made available to Purchaser before the commencement of the Restricted Period or (C) sets forthclaims or disputes not disclosed to Purchaser before the commencement of the Restricted Period, andin each case has a material adverse effect on the value of the Property following the Closing; or(D) discloses any information that would make any Seller Representation untrue in any materialrespect. Tenant Estoppel Certificates or Seller’s Estoppel Certificates that set forth claims,disputes or landlord defaults with respect to construction or other matters having an individualvalue of not more than One Hundred Thousand Dollars ($100,000) and an aggregate value (with respectto all Tenant Estoppel Certificates and Seller’s Estoppel Certificates) of not more than TwoHundred Thousand Dollars ($200,000) and that would not entitle the Tenant under the applicableLease to terminate such Lease pursuant to the terms thereof as of the date of such Certificatesshall conclusively be deemed not to have a material adverse effect on the value of the Propertyfollowing the Closing; but Tenant Estoppel Certificates or Seller’s Estoppel Certificates that setforth claims, disputes or landlord defaults with respect to construction or other matters having anindividual value greater than One Hundred Thousand Dollars ($100,000) or an aggregate value (withrespect to all Tenant Estoppel Certificates and Seller’s Estoppel Certificates) greater than TwoHundred Thousand Dollars ($200,000) or that would entitle the Tenant under the applicable Lease toterminate such Lease pursuant to the terms thereof as of the date of such Certificates shallconclusively be deemed to have a material adverse effect on the value of the Property following theClosing. The foregoing deemed material adverse effect shall apply to all Tenant EstoppelCertificates and Seller’s Estoppel Certificates, whether the same are delivered to Purchaser beforeor following the commencement of the Restricted Period (notwithstanding the provisions ofSection 6.1(g) below). If any Tenant Estoppel Certificate or Seller’s Estoppel Certificateprovided to Purchaser contains any information that is inconsistent with any Seller
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Representation, the Seller Representation shall be deemed modified by the informationcontained in such Certificate, and for the avoidance of doubt, each such Certificate shall betreated as an Update. Notwithstanding anything herein to the contrary but subject to theprovisions set forth in Section 6.1(g) below with respect to any Certificate delivered toPurchaser before the commencement of the Restricted Period, an estoppel certificate that wouldotherwise satisfy the requirements for an acceptable estoppel certificate above, except for analleged “landlord default” or any Tenant claims or disputes in excess of the foregoing amounts setforth in such certificate shall be deemed acceptable and shall count toward the EstoppelRequirement if (x) Tract K Seller cures such asserted landlord default at or prior to the Closing,or (y) Tract K Seller is disputing such landlord default in good faith, such alleged defaultreasonably could not result in a termination of the respective Lease, and Tract K Seller at itssole discretion deposits with the Escrow Agent at the Closing funds reasonably adequate to effectthe cure of such landlord default post-Closing and pay Tenant all amounts due under the Lease orthat otherwise may be due to the Tenant under applicable law, if any, as a result thereof, suchfunds to be held in escrow by the Escrow Agent until such dispute is resolved in landlord’s favoror such landlord default is cured, and if such dispute is not resolved in landlord’s favor withinninety (90) days after the Closing, Purchaser may use and apply so much of the escrow funds asshall be necessary to cure the landlord default and pay Tenant all amounts due under the Lease orthat may otherwise be due to the Tenant under applicable law, if any, as a result thereof, and anyremaining balance shall be promptly remitted to Tract K Seller. Purchaser shall reasonablycooperate with Tract K Seller’s efforts to effect such cure after the Closing at no material costto Purchaser (unless such cost is reimbursed to Purchaser).     (d) Purchaser shall have received from the landlord under each Ground Lease a “GroundLandlord’s Consent” substantially in the form of Schedule 6.1(d), which includes the“Ground Landlord Estoppel Provisions” therein, dated no earlier than the Effective Date.Such form may contain modifications and additions so long as it sets forth the material provisionsof the form attached hereto. Except as provided in Section 6.1(g) below with respect toany Certificate delivered to Purchaser before the commencement of the Restricted Period, no GroundLandlord Estoppel Provisions shall satisfy this condition to Closing if the same (A) discloses anymaterial default by the tenant under such Ground Lease that was not disclosed to Purchaser beforethe commencement of the Restricted Period or (B) contains information that is materiallyinconsistent with the information set forth in the Ground Leases as made available to Purchaserbefore the commencement of the Restricted Period or (C) sets forth claims or disputes not disclosedto Purchaser before the commencement of the Restricted Period, and in each case has a materialadverse effect on the value of the Property following the Closing; or (D) discloses any informationthat would make any Seller Representation untrue in any material respect. Ground Landlord EstoppelProvisions that set forth claims, disputes or tenant defaults with respect to construction or othermatters having an individual value of not more than One Hundred Fifty Thousand Dollars ($150,000)and an aggregate value (with respect to all Ground Landlord Estoppel Provisions) of not more thanThree Hundred Thousand Dollars ($300,000) and that would not entitle the landlord under theapplicable Ground Lease to terminate such Ground Lease pursuant to the terms thereof as of the dateof such Certificates shall conclusively be deemed not to have a material adverse effect on thevalue of the Property following the Closing; but Ground Landlord Estoppel Provisions that set forthclaims, disputes or tenant defaults with respect to construction or other matters having anindividual value greater than One Hundred
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Fifty Thousand Dollars ($150,000) or an aggregate value (with respect to all Ground LandlordEstoppel Provisions) greater than Three Hundred Thousand Dollars ($300,000) or that would entitlethe landlord under the applicable Ground Lease to terminate such Ground Lease pursuant to the termsthereof as of the date of such Certificates shall conclusively be deemed to have a material adverseeffect on the value of the Property following the Closing. The foregoing deemed material adverseeffect shall apply to all Ground Landlord Estoppel Provisions, whether the same are delivered toPurchaser before or following the commencement of the Restricted Period (notwithstanding theprovisions of Section 6.1(g) below). If the Ground Landlord Estoppel Provisions providedto Purchaser contain any information that is inconsistent with any Seller Representation, theSeller Representation shall be deemed modified by the information contained in such Certificate,and for the avoidance of doubt, each such Certificate shall be treated as an Update.Notwithstanding anything herein to the contrary but subject to the provisions set forth inSection 6.1(g) below with respect to any Certificate delivered to Purchaser before thecommencement of the Restricted Period, a Ground Landlord’s Consent that would otherwise satisfy therequirements for an acceptable Ground Landlord’s Consent above, except for an alleged tenantdefault under the Ground Lease or any landlord claim or disputes under such Ground Lease in excessof the foregoing amounts set forth in such Certificate shall be deemed acceptable and shall satisfythis condition to Closing if (x) the tenant under such Ground Lease cures such asserted tenantdefault at or prior to the Closing, or (y) the tenant under such Ground Lease is disputing suchtenant default in good faith, such alleged default reasonably could not result in a termination ofsuch Ground Lease, and the tenant under such Ground Lease at its sole discretion deposits with theEscrow Agent at the Closing funds reasonably adequate to effect the cure of such tenant defaultpost-Closing and pay the landlord under such Ground Lease all amounts due under such Ground Leaseor that otherwise may be due to the landlord under such Ground Lease under applicable law, if any,as a result thereof, such funds to be held in escrow by the Escrow Agent until such dispute isresolved in favor of the tenant under such Ground Lease, or such tenant default is cured, and ifsuch dispute is not resolved in tenant’s favor within ninety (90) days after the Closing, Purchasermay use and apply so much of the escrow funds as shall be necessary to cure the applicable defaultand pay the landlord under such Ground Lease all amounts due under such Ground Lease or that mayotherwise be due to such landlord under applicable law, if any, as a result thereof, and anyremaining balance shall be promptly remitted to the applicable Seller entity. Purchaser shallreasonably cooperate with any such Seller entity’s efforts to effect such cure after the Closing atno material cost to Purchaser (unless such cost is reimbursed to Purchaser).     (e) Purchaser shall have received from each party to the TDA (other than any Seller) (eachsuch party being a “TDA Party”) a “TDA Consent” substantially in the form ofSchedule 6.1(e), which includes the “TDA Estoppel Provisions” therein, dated noearlier than the Effective Date. The TDA Estoppel Provisions required hereby shall besubstantially in the form set forth in the TDA Consent; but such form may contain modifications andadditions so long as it sets forth the material provisions of the form attached hereto. Except asprovided in Section 6.1(g) below with respect to any Certificate delivered to Purchaserbefore the commencement of the Restricted Period, no TDA Estoppel Provisions shall satisfy thiscondition to Closing if the same (A) discloses any material default by any Person under the TDAthat was not disclosed to Purchaser before the commencement of the Restricted Period or (B)contains information that is materially inconsistent with the information set forth in the TDA asmade available to Purchaser
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before the commencement of the Restricted Period or (C) sets forth claims or disputes notdisclosed to Purchaser before the commencement of the Restricted Period, and in each case has amaterial adverse effect on the value of the Property following the Closing; or (D) discloses anyinformation that would make any Seller Representation untrue in any material respect. TDA EstoppelProvisions that set forth claims, disputes or defaults with respect to construction, remediation orother matters having an individual value of not more than One Hundred Fifty Thousand Dollars($150,000) and an aggregate value (with respect to all TDA Estoppel Provisions) of not more thanThree Hundred Thousand Dollars ($300,000) and that would not entitle a TDA Party to terminate theTDA pursuant to the terms thereof as of the date of such Certificate shall conclusively be deemednot to have a material adverse effect on the value of the Property following the Closing; but TDAEstoppel Provisions that set forth claims, disputes or tenant defaults with respect toconstruction, remediation or other matters having an individual value greater than One HundredFifty Thousand Dollars ($150,000) or an aggregate value (with respect to all TDA EstoppelProvisions) greater than Three Hundred Thousand Dollars ($300,000) or that would entitle a TDAParty to terminate the TDA pursuant to the terms thereof as of the date of such Certificates shallconclusively be deemed to have a material adverse effect on the value of the Property following theClosing. The foregoing deemed material adverse effect shall apply to the TDA Estoppel Provisions,whether the same are delivered to Purchaser before or following the commencement of the RestrictedPeriod (notwithstanding the provisions of Section 6.1(g) below). If the TDA EstoppelProvisions provided to Purchaser contain any information that is inconsistent with any SellerRepresentation, the Seller Representation shall be deemed modified by the information contained insuch Certificate, and for the avoidance of doubt, each such Certificate shall be treated as anUpdate. Notwithstanding anything herein to the contrary but subject to the provisions set forth inSection 6.1(g) below with respect to any Certificate delivered to Purchaser before thecommencement of the Restricted Period, a TDA Consent that would otherwise satisfy the requirementsfor an acceptable TDA Consent above, except for an alleged default by a Seller under the TDA or anyTDA Party claim or disputes under the TDA in excess of the foregoing amounts set forth in suchCertificate shall be deemed acceptable and shall satisfy this condition to Closing if (x) theapplicable Seller party cures such asserted default under the TDA at or prior to the Closing, or(y) the applicable Seller party is disputing such default in good faith, such alleged defaultreasonably could not result in a termination of, or exercise of remedies under, the TDA, and suchSeller party under the TDA at its sole discretion deposits with the Escrow Agent at the Closingfunds reasonably adequate to effect the cure of such Seller party default post-Closing and pay theapplicable TDA Party under the TDA all amounts due under the TDA or that otherwise may be due tothe such TDA Party under the TDA under applicable law, if any, as a result thereof, such funds tobe held in escrow by the Escrow Agent until such dispute is resolved in favor of such Seller partyunder the TDA, or such Seller party default is cured, and if such dispute is not resolved in suchSeller party’s favor within ninety (90) days after the Closing, Purchaser may use and apply so muchof the escrow funds as shall be necessary to cure the applicable default and pay the TDA Party allamounts due under the TDA or that may otherwise be due to such TDA Party under applicable law, ifany, as a result thereof, and any remaining balance shall be promptly remitted to the applicableSeller entity. Purchaser shall reasonably cooperate with any such Seller entity’s efforts toeffect such cure after the Closing at no material cost to Purchaser (unless such cost is reimbursedto Purchaser).
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     (f) Purchaser shall have received from the ARDA Party the “ARDA Consent” substantiallyin the form of Schedule 6.1(f), which includes the “ARDA Estoppel Provisions”therein, dated no earlier than the Effective Date. The ARDA Estoppel Provisions required herebyshall be substantially in the form set forth in the ARDA Consent; but such form may containmodifications and additions so long as it sets forth the material provisions of the form attachedhereto. Except as provided in Section 6.1(g) below with respect to any Certificatedelivered to Purchaser before the commencement of the Restricted Period, no ARDA EstoppelProvisions shall satisfy this condition to Closing if the same (A) discloses any material defaultby any Person that was not disclosed to Purchaser before the commencement of the Restricted Periodor (B) contains information that is materially inconsistent with the information set forth in theARDA as made available to Purchaser before the commencement of the Restricted Period or (C) setsforth claims or disputes not disclosed to Purchaser before the commencement of the RestrictedPeriod, and in each case has a material adverse effect on the value of the Property following theClosing; or (D) discloses any information that would make any Seller Representation untrue in anymaterial respect. ARDA Estoppel provisions that set forth claims, disputes or tenant defaults withrespect to construction, remediation or other matters having a value of not more than Three HundredThousand Dollars ($300,000) and that would not entitle the ARDA Party to terminate the ARDApursuant to the terms thereof as of the date of such Certificate shall conclusively be deemed notto have a material adverse effect on the value of the Property following the Closing; but ARDAEstoppel Provisions that set forth claims, disputes or Lyme Properties LLC defaults with respect toconstruction, remediation or other matters having a value greater than Three Hundred ThousandDollars ($300,000) or that would entitle the ARDA Party to terminate the ARDA pursuant to the termsthereof as of the date of such Certificate shall conclusively be deemed to have a material adverseeffect on the value of the Property following the Closing. The foregoing deemed material adverseeffect shall apply to the ARDA Estoppel Provisions, whether the same are delivered to Purchaserbefore or following the commencement of the Restricted Period (notwithstanding the provisions ofSection 6.1(g) below). If ARDA Estoppel Provisions provided to Purchaser contain anyinformation that is inconsistent with any Seller Representation, the Seller Representation shall bedeemed modified by the information contained in such Certificate, and for the avoidance of doubt,each such Certificate shall be treated as an Update. Notwithstanding anything herein to thecontrary but subject to the provisions set forth in Section 6.1(g) below with respect toany Certificate delivered to Purchaser before the commencement of the Restricted Period, ARDAEstoppel Provisions that would otherwise satisfy the requirements for acceptable ARDA EstoppelProvisions above, except for an alleged Lyme Properties LLC default under the ARDA or any ARDAParty claim or disputes under such ARDA in excess of the foregoing amounts set forth in suchcertificate shall be deemed acceptable and shall satisfy this condition to Closing if (x) LymeProperties LLC cures such asserted default at or prior to the Closing, or (y) Lyme Properties LLCis disputing such default in good faith, such alleged default reasonably could not result in atermination of, or exercise of remedies under, the ARDA, and Lyme Properties LLC at its solediscretion deposits with the Escrow Agent at the Closing funds reasonably adequate to effect thecure of such Lyme Properties LLC default post-Closing and pay the ARDA Party all amounts due underthe ARDA or that otherwise may be due to the ARDA Party under the ARDA under applicable law, ifany, as a result thereof, such funds to be held in escrow by the Escrow Agent until such dispute isresolved in favor of Lyme Properties LLC under the ARDA, or such default is cured, and if suchdispute is not resolved in Lyme Properties LLC’s favor within ninety (90)
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days after the Closing, Purchaser may use and apply so much of the escrow funds as shall benecessary to cure the applicable default and pay the ARDA Party all amounts due under the ARDA orthat may otherwise be due to the ARDA Party under applicable law, if any, as a result thereof, andany remaining balance shall be promptly remitted to Lyme Properties LLC. Purchaser shallreasonably cooperate with Lyme Properties LLC’s efforts to effect such cure after the Closing at nomaterial cost to Purchaser (unless such cost is reimbursed to Purchaser).     (g) If Seller is unable to obtain any of the documents described in Section 6.1 (c),(d), (e) and (f) above (each of the foregoing, a “Certificate”) orotherwise to meet any condition to Purchaser’s obligation to perform, Seller shall have the option,by written notice to Purchaser, to extend the Closing Date from time to time for not more thansixty (60) days in the aggregate from the original Closing Date. Except as otherwise expressly setforth in Section 6.1(c) above, in the event that any Certificate is delivered to Purchaserbefore the commencement of the Restricted Period, and thereafter Purchaser does not terminate thisAgreement pursuant to Section 5.2, then notwithstanding anything set forth in thisAgreement to the contrary, any such Certificate shall be deemed to satisfy any requirementapplicable thereto set forth in this Agreement, and Purchaser shall have no right to object to theform, content or substance of such Certificate or any matter disclosed therein as not meeting theconditions for Closing and any such nonconformity shall be deemed waived. Seller shall usecommercially reasonable efforts to obtain each of the Certificates.     (h) Seller shall have the option to obtain updates to any of the Certificates (any such updatebeing an “Updated Certificate”). In the event that any Updated Certificate (x) disclosesinformation that is different from the information set forth in the prior Certificate and (y) suchadditional disclosure would cause such Updated Certificate not to comply with Section6.1(c), (d), (e) or (f) (as applicable), then such Updated Certificateshall be treated as an Update in accordance with Section 7.3(c), and Purchaser’s onlyremedy with respect thereto shall be to terminate this Agreement pursuant to the terms ofSection 7.3(c) prior to the expiration of the Update Termination Period applicable thereto.     (i) Subject to (x) all applicable provisions, limitations and exclusions set forth in thisAgreement with respect to the Certificates and (y) any other matters that have been otherwisedisclosed to Purchaser by Seller (which matters (x) and (y) shall not apply to the Two MillionDollar ($2,000,000) threshold amount set forth in this Section 6.1(i)), the aggregateamount of all adverse matters disclosed in the Certificates to which a dollar amount is applicablein each such Certificate shall not exceed Two Million Dollars ($2,000,000).     (j) Upon satisfaction of the conditions set forth in the Title Commitment, the Title Companyis irrevocably committed to issue the Title Policies to Purchaser.     (k) The physical condition of the Property shall be substantially the same on the Closing Dateas on the Effective Date, unless the alteration of said physical condition is the result ofcondemnation or fire or other casualty, in which case the provisions of Section 6.3 shallgovern.
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     (l) No proceeding shall have been commenced against any party included within the term Sellerunder the federal Bankruptcy Code or any state law for relief of debtors.     (m) As of the Closing Date, the Leases and the Ground Leases shall be in full force and effectand no default shall exist under any Lease or Ground Lease.     (n) Each applicable party included within the term Seller shall have obtained all consents andapprovals set forth in Schedule 6.1(n), except for such items as Purchaser reasonablydetermines Seller need not obtain consent.     **Section 6.2****.****Conditions Precedent Favoring Seller**. Seller’s obligations underthis Agreement are subject to the fulfillment of the conditions set forth in this Section6.2 on or before the Closing Date, or such earlier date as is set forth below. Each conditionmay be waived in whole or part only by written notice of such waiver from Seller to Purchaser, orby Seller consummating the transactions described in this Agreement at the Closing.     (a) Purchaser shall have performed and complied in all material respects with all of the termsof this Agreement to be performed and complied with by Purchaser prior to or at the Closing.     (b) On the Closing Date, the representations of Purchaser set forth in Section 7.1shall be true, accurate and complete in all material respects.     (c) On or before the Closing Date, Seller shall have received evidence satisfactory to Sellerthat the obligations and liabilities of The Lyme Timber Company under the Lyme Timber Guarantysshall be discharged and released effective as of the Closing. Seller and Purchaser shall usecommercially reasonable efforts to cause such discharge and release to occur at or prior to theClosing.     (d) Reference is made to those certain letters of credit delivered by the applicable SellerParties to the landlords under the Ground Leases for Tract A, Tract B-2, Tract D and Tract E in therespective amounts of $29,929.61, $4,185.90, $8,417.70 and $25,000. On or before the Closing Date,Seller shall have received evidence satisfactory to Seller that Purchaser has entered into anarrangement with the beneficiaries of such letters of credit such that (x) Purchaser providesreplacement security to such parties and (y) Seller’s letters of credit are returned to Seller atClosing. Seller and Purchaser shall use commercially reasonable efforts to cause such replacementand return of such letters of credit at Closing.     **Section 6.3.****Casualty or Condemnation**     (a) If after the date hereof and prior to Closing, the Real Property or any part thereof shallbe (x) subject to a taking by any public or quasi-public authority through condemnation, eminentdomain or otherwise (including, but not limited to, any transfer made in lieu of or in anticipationof the exercise of such taking) (collectively, “Condemnation”) or (y) destroyed or damagedby fire or other casualty and in either case the parties reasonably estimate the proceeds from suchCondemnation or the cost to repair the damage or destruction to be in excess of fifteen
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percent (15%) of the Purchase Price allocable to the Real Property (a “Major Event”),Purchaser shall have the option exercisable within ten (10) Business Days after Purchaser andSeller make a determination or agree on such estimate either (a) to terminate this Agreement bywritten notice to Seller, whereupon all rights and obligations hereunder of each party shall ceaseand terminate and be of no further force or effect except for the return of the Deposit toPurchaser and the Surviving Obligations, or (b) to elect to take title to the Real Property withoutany reduction in, abatement of, or credit against the Purchase Price (except as expressly set forthin Section 6.3(b) below), notwithstanding such Condemnation, destruction or damage; ifPurchaser fails to make either such election within such period, Purchaser shall be deemed to haveelected option (b). If the parties fail to agree to the reasonable estimate of the proceeds fromsuch Condemnation or the cost to repair the damage or destruction within thirty (30) days afterthe date of the applicable Condemnation or casualty, then Seller and Purchaser may submit thedispute to the American Arbitration Association in Boston pursuant to the Expedited Procedures ofthe Commercial Dispute Resolution Procedures thereof (and the Closing will be adjourned pending theresolution of such arbitration). If, despite the occurrence of a Major Event, Purchaser elects toconsummate the transactions contemplated by this Agreement, at the Closing Seller shall assign toPurchaser (without recourse) (x) the rights of Seller in and to the Condemnation proceeds or allinsurance proceeds with respect to such Major Event, net of the amount of the reasonable costs andexpenses incurred by Seller (including, but not limited to, reasonable legal fees and closing costsunder a sale in lieu of or in anticipation of the exercise of a taking) in collecting same(“Net Proceeds”), and give Purchaser, without duplication, a credit against the PurchasePrice in the amount of the Net Proceeds already received by Seller prior to Closing (provided,however, Seller shall receive, without duplication, a credit against such Purchaser credit for anysuch costs and expenses not recovered prior to Closing) and (y) the rights to settle anyCondemnation proceeding or the loss under all policies of insurance applicable to the Major Event,and Seller shall at Closing and thereafter execute and deliver to Purchaser all required proofs ofloss, assignments of claims and other similar items.     (b) If after the date hereof and prior to Closing, the Real Property or any part thereof shallbe (x) subject to a Condemnation or (y) destroyed or damaged by fire or other casualty and, ineither case, it is not a Major Event, then the transaction contemplated by this Agreement shall beconsummated, without any reduction in, abatement of, or credit against the Purchase Price (exceptas expressly set forth in this Section 6.3(b)) and Seller shall, at its option, either (i)repair such damage prior to Closing and Seller shall keep any insurance or Condemnation proceeds,(ii) allow Purchaser a credit against the Purchase Price in an amount equal to the reasonablyestimated cost of repair and Seller shall keep any insurance or Condemnation proceeds, or (iii)assign to Purchaser (without recourse) the rights of Seller to the Net Proceeds, and, withoutduplication, give Purchaser a credit against the Purchase Price in the amount of the Net Proceedsalready received by Seller prior to Closing (provided, however, Seller shall receive withoutduplication a credit against such Purchaser credit for any such costs and expenses not recoveredprior to Closing) and the rights to settle any Condemnation proceeding or the loss under allpolicies of insurance applicable to the Condemnation, destruction or damage, and Seller shall atClosing and thereafter execute and deliver to Purchaser all required proofs of loss, assignments ofclaims and other similar items.
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     (c) In the event that (i) a casualty occurs at the Real Property prior to the Closing, (ii) adeductible is payable in connection with obtaining insurance proceeds with respect to such casualtyand (iii) Purchaser consummates the transaction notwithstanding such casualty and receives anassignment of the Net Proceeds pursuant to Section 6.3(a) or Section 6.3(b), Sellershall pay such deductible or shall give Purchaser a credit against the Purchase Price at Closingfor such deductible and such deductible shall not be considered in determining Net Proceeds.     **Section 6.4****.****Leasing & Other Activities Prior to Closing**.     (a) After the Effective Date, Seller shall not enter into any new lease or any materialmodification of any Lease or Ground Lease or lease that would be binding on Purchaser after Closingor grant any material consent or approval under any Lease or Ground Lease or lease which consent orapproval must be requested in writing and delivered in writing in order to be effective withoutPurchaser’s prior written consent, which consent shall not be unreasonably withheld, conditioned ordelayed; provided, however, that notwithstanding the foregoing, Seller shall not be required toobtain Purchaser’s consent to enter into any modification, renewal or extension of any Lease orGround Lease or lease, or to grant any consent under any Lease or Ground Lease or lease, to theextent that the same is required pursuant to the applicable terms of the Lease or Ground Lease orlease, as the case may be; provided, further, that Purchaser may withhold its consent in its solediscretion if, assuming the Closing were to occur, any action could jeopardize BioMed Realty Trust,Inc.’s, a Maryland corporation (“Purchaser’s REIT Entity”), status as a real estateinvestment trust within the meaning of Sections 856 through 860 of the Code or cause thePurchaser’s REIT Entity to be in receipt of income that does not constitute “rent from realproperty” within the meaning of Section 856(d) of the Code. When seeking such consent fromPurchaser, Seller shall provide Purchaser with a description of the proposed transaction and, ifPurchaser does not notify Seller in writing of its disapproval within two (2) Business Days,Purchaser shall be deemed to have consented to the transaction described in such notice. IfPurchaser disapproves such request, then Purchaser’s written notice shall specify in reasonabledetail the reasons for such disapproval. If the Closing occurs, Purchaser shall reimburse Sellerat Closing for all Lease Expenses related to any new Lease or material modification of an existingLease.     (b) After the Effective Date, Seller shall not enter into any new agreements or contracts withrespect to the Property that would be binding on Purchaser, or material modifications of any suchagreements or contracts or any existing Miscellaneous Consultant Agreements or Other Matters orgrant any material consent or approval under any of the Miscellaneous Consultant Agreements orOther Matters which consent or approval must be requested in writing and delivered in writing inorder to be effective that would be binding on Purchaser after Closing, without the written consentof Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed; provided,however, that Purchaser’s consent shall not be required with respect to any contract that is notbinding on Purchaser or that can be terminated without penalty on not more than thirty (30) daysprior written notice; provided, further, that Purchaser may withhold its consent in its solediscretion if, assuming the Closing were to occur, any action could jeopardize Purchaser’s REITEntity’s status as a real estate investment trust within the meaning of Sections 856 through 860 ofthe Code or cause the Purchaser’s REIT Entity to be in receipt of income that does not constitute“rent from real property” within the meaning of
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Section 856(d) of the Code. If Purchaser does not notify Seller in writing of its disapprovalwithin two (2) Business Days after notice thereof from Seller, Purchaser shall be deemed to haveconsented to such requested action. If Purchaser disapproves any such request, then Purchaser’swritten notice shall specify in reasonable detail the reasons for such disapproval.     (c) At all times prior to Closing, Seller shall (i) continue to conduct business with respectto the Property substantially in the same manner in which said business has been heretoforeconducted, (ii) perform its obligations under the Leases, the Ground Leases and any contracts orother agreements affecting the Property (including, without limitation, the MiscellaneousConsultant Agreements and the Other Matters), (iii) continue to insure the Property substantiallyas it is currently insured, and (iv) not take any action that would cause any of the SellerRepresentations to become inaccurate in any material respect or any of the covenants of Seller tobe materially breached. Without limiting the generality of the foregoing, Seller shall pay allaccounts payable, and any debts or obligations owed by Seller relating to the Property when due(“when due,” “coming due” or like words means the time for payment set forth in anycontract, or if no time is set forth then within thirty days (30) of the date when an invoice forpayment is received by Seller).     (d) Seller shall not remove from the Real Property any Personal Property used in connectionwith the operation of the Real Property (but nothing herein shall be deemed to make Sellerresponsible for the acts of others at the Real Property).     (e) No later than the Effective Date, Seller (i) shall remove the Property from the market and(ii) shall not actively solicit or negotiate with any other prospective purchasers of the Property;provided, however, that nothing herein shall in any way affect or apply to any dealings that Sellerhas had with others prior to the Effective Date.     (f) Seller shall provide Purchaser with copies of all written notices under any agreement,contract or other document with respect to which a Certificate is required to be delivered pursuantto the terms of this Agreement for the period after the Effective Date.**ARTICLE 7**     **Section 7.0**. **No Other Representations** Except as otherwise expressly setforth in this Article 7, Purchaser and Seller specifically agree that neither is relying on anystatements, representations or warranties of any kind whatsoever, express or implied, from theother party or any other Person acting by, under or through the other party. Purchaseracknowledges the legal significance of the foregoing and acknowledges that such agreement is amaterial inducement to Seller’s willingness to enter into this Agreement.     **Section 7.1.****Purchaser’s Representations**. Purchaser warrants and representsto Seller as of the date hereof as follows:     (a) Purchaser is an experienced and sophisticated purchaser of commercial real estate projectssuch as the Property and, prior to the end of the Study Period, it will have had a full, completeand fair opportunity to conduct such investigations, examinations, inspections and
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analyses of the Property as Purchaser, in its absolute discretion, may deem appropriate.PURCHASER IS PURCHASING THE PROPERTY “AS-IS, WHERE IS AND WITH ALL FAULTS” IN ITS PRESENTCONDITION, SUBJECT TO REASONABLE USE, WEAR, TEAR, CONSTRUCTION ACTIVITIES AND NATURAL DETERIORATIONBETWEEN THE DATE HEREOF AND THE CLOSING DATE AND FURTHER AGREES THAT NEITHER SELLER NOR ANY AGENT,DIRECT OR INDIRECT PARTNER, DIRECT OR INDIRECT MEMBER, EMPLOYEE OR REPRESENTATIVE OF THE FOREGOING(i) SHALL BE LIABLE FOR ANY LATENT OR PATENT DEFECTS IN THE PROPERTY OR (ii) HAVE MADE ANYREPRESENTATION WHATSOEVER REGARDING THE PROPERTY OR ANY PART THEREOF, THE CONSTRUCTION OR ANY OTHERTHING RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, AND(iii) PURCHASER, IN EXECUTING, DELIVERING AND PERFORMING THIS AGREEMENT, HAS NOT AND DOES NOT RELYUPON ANY STATEMENT, INFORMATION, OR REPRESENTATION TO WHOMSOEVER MADE OR GIVEN, WHETHER TOPURCHASER OR OTHERS, AND WHETHER DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, MADE BY ANY PERSON,EXCEPT AS EXPRESSLY SET FORTH HEREIN. IN ADDITION TO THE FOREGOING, PURCHASER REPRESENTS THATBEFORE THE EXPIRATION OF THE STUDY PERIOD PURCHASER WILL HAVE EXAMINED THE PROPERTY, THE REPORTS,THE DUE DILIGENCE MATERIALS AND SUCH CONSTRUCTION, DESIGN AND OTHER MATTERS AS IT DEEMSAPPROPRIATE, AND WILL BE FAMILIAR WITH THE PHYSICAL AND ENVIRONMENTAL CONDITION OF THE PROPERTY ANDWILL HAVE CONDUCTED SUCH OTHER INVESTIGATION OF THE AFFAIRS AND CONDITION OF THE PROPERTY ASPURCHASER CONSIDERS APPROPRIATE. NEITHER SELLER, NOR ANY AFFILIATE OF SELLER, NOR ANY AGENT,DIRECT OR INDIRECT PARTNER, DIRECT OR INDIRECT MEMBER, EMPLOYEE OR REPRESENTATIVE OF THE FOREGOINGHAVE MADE OR WILL BE ALLEGED TO HAVE MADE ANY ORAL OR WRITTEN REPRESENTATIONS, WARRANTIES, PROMISESOR GUARANTIES WHATSOEVER TO PURCHASER, WHETHER EXPRESS OR IMPLIED, AND, IN PARTICULAR, NO SUCHREPRESENTATIONS, WARRANTIES, PROMISES OR GUARANTIES HAVE BEEN MADE OR WILL BE MADE OR WILL BEALLEGED TO HAVE BEEN MADE WITH RESPECT TO THE PHYSICAL CONDITION, CONSTRUCTION, DESIGN,ENVIRONMENTAL CONDITION OR OPERATION OF THE PROPERTY, THE ACTUAL OR PROJECTED REVENUE AND EXPENSESOF THE PROPERTY, THE PERMITS, ZONING AND OTHER LAWS, REGULATIONS AND RULES APPLICABLE TO THEPROPERTY OR THE COMPLIANCE OF THE PROPERTY THEREWITH, THE CONSTRUCTION, DESIGN, CONDITION OR SAFETYOF THE PROPERTY OR ANY IMPROVEMENTS THEREON OR ANY UTILITIES AND SERVICES WITH RESPECT THERETO ORTHE CONDITIONS OF ANY SOILS AND GEOLOGY, LOT SIZE, OR SUITABILITY OF THE PROPERTY OR ITSIMPROVEMENTS FOR A PARTICULAR PURPOSE, THE QUANTITY, QUALITY OR CONDITION OF ANY PERSONAL PROPERTYOR FIXTURES, THE USE OR OCCUPANCY OF THE PROPERTY OR ANY PART THEREOF OR ANY OTHER MATTER OR THINGAFFECTING OR RELATED TO THE PROPERTY OR THE TRANSACTIONS CONTEMPLATED HEREBY, EXCEPT AS, AND SOLELYTO THE EXTENT SPECIFICALLY SET FORTH HEREIN. EXCEPT AS, AND SOLELY TO THE EXTENT, SPECIFICALLY SETFORTH HEREIN,
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NEITHER SELLER OR ANY AFFILIATE OF SELLER, NOR ANY AGENT, DIRECT OR INDIRECT PARTNER, DIRECTOR INDIRECT MEMBER, EMPLOYEE OR REPRESENTATIVE OF THE FOREGOING HAVE MADE OR WILL MAKE ANY ORAL ORWRITTEN REPRESENTATIONS, WARRANTIES, PROMISES OR GUARANTIES WHATSOEVER TO PURCHASER, WHETHEREXPRESS OR IMPLIED, AND, IN PARTICULAR, THAT NO SUCH REPRESENTATIONS, WARRANTIES, PROMISES ORGUARANTIES HAVE BEEN MADE OR WILL BE ALLEGED TO HAVE BEEN MADE WITH RESPECT TO THE TRUTH, ACCURACYOR COMPLETENESS OF ANY MATERIALS, REPORTS, DATA OR OTHER INFORMATION, INCLUDING WITHOUT LIMITATIONTHE CONTENTS OF THE BOOKS AND RECORDS OF SELLER OR REPORTS OR OTHER MATTERS LISTED ONEXHIBITS OR SCHEDULES TO THIS AGREEMENT OR REFERRED TO HEREIN, THE DUE DILIGENCEMATERIALS, PHYSICAL CONDITION AND ENVIRONMENTAL SURVEYS, INFORMATIONAL BROCHURES WITH RESPECT TOTHE PROPERTY, QUESTIONNAIRES (INCLUDING REIT QUESTIONNAIRES), RENT ROLLS, ANY INFORMATION PROVIDEDUNDER SECTION 11.20 OR IN CONNECTION WITH ANY OTHER REQUEST OF PURCHASER OR INCOME ANDEXPENSE STATEMENTS, WHICH SELLER OR ITS REPRESENTATIVES MAY HAVE DELIVERED, MADE AVAILABLE ORFURNISHED TO PURCHASER IN CONNECTION WITH THE PROPERTY, AND PURCHASER REPRESENTS, WARRANTS ANDAGREES THAT ANY SUCH MATERIALS, QUESTIONNAIRES, DATA AND OTHER INFORMATION DELIVERED, MADEAVAILABLE OR FURNISHED TO PURCHASER HAVE BEEN DELIVERED, MADE AVAILABLE OR FURNISHED TO PURCHASERAS A CONVENIENCE AND ACCOMMODATION ONLY AND PURCHASER EXPRESSLY DISCLAIMS ANY INTENT TO RELY ON ANYSUCH MATERIALS, QUESTIONNAIRES, DATA AND OTHER INFORMATION. PURCHASER HAS ENTERED INTO THISAGREEMENT, AFTER HAVING MADE AND RELIED SOLELY ON ITS OWN INDEPENDENT INVESTIGATION, INSPECTION,ANALYSIS, APPRAISAL, EXAMINATION AND EVALUATION OF THE FACTS AND CIRCUMSTANCES. PURCHASER HAS NOTRELIED UPON ANY SUCH REPRESENTATIONS, WARRANTIES, PROMISES OR GUARANTIES OR UPON ANY STATEMENTSMADE IN ANY INFORMATIONAL BROCHURE WITH RESPECT TO THE PROPERTY AND HAS ENTERED INTO THIS AGREEMENTAFTER HAVING MADE AND RELIED SOLELY ON ITS OWN INDEPENDENT INVESTIGATION, INSPECTION, ANALYSIS,APPRAISAL, EXAMINATION AND EVALUATION OF THE FACTS AND CIRCUMSTANCES AND THE REPRESENTATIONS ANDWARRANTIES EXPRESSLY CONTAINED HEREIN. PURCHASER ACKNOWLEDGES THAT THE DESIGN AND/OR CONSTRUCTIONOF THE PROPERTY MAY NOT BE IN COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT OF 1990, ASAMENDED AND OTHER LAWS, AND SELLER MAKES NO REPRESENTATIONS WITH RESPECT TO SAME. WITHOUT LIMITINGTHE FOREGOING, NEITHER SELLER, NOR ANY AGENT, DIRECT OR INDIRECT PARTNER, DIRECT OR INDIRECTMEMBER, EMPLOYEE OR REPRESENTATIVE OF THE FOREGOING HAS MADE ANY REPRESENTATION OR WARRANTYWHATSOEVER REGARDING HAZARDOUS MATERIALS OF ANY KIND OR NATURE ON, ABOUT OR WITHIN THE PROPERTY ORTHE PHYSICAL CONDITION OF THE PROPERTY AND PURCHASER AGREES TO ASSUME THE RISK THAT ADVERSEMATTERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION OR
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DESIGN DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS MAY NOT HAVE BEEN REVEALED BYPURCHASER’S INVESTIGATIONS OR ANY OTHER INFORMATION PURCHASER HAS REVIEWED. NOTWITHSTANDING ANY OFTHE FOREGOING, THE FOREGOING REPRESENTATION OF PURCHASER IS NOT INTENDED TO LIMIT, AND IS SUBJECTTO, THE SELLER REPRESENTATIONS.     (b) Purchaser is a limited partnership duly formed, validly existing and in good standingunder the laws of the State of Maryland. The Person(s) executing this Agreement on behalf ofPurchaser has been duly authorized to do so and this Agreement constitutes the valid and legallybinding obligation of Purchaser, enforceable against Purchaser in accordance with its terms;     (c) There are no actions, suits or proceedings pending or, to the knowledge of Purchaser,threatened in writing, against or affecting Purchaser which, if determined adversely to Purchaser,would adversely affect its ability to perform its obligations hereunder;     (d) Purchaser has full right, power and authority and is duly authorized to enter into thisAgreement, to perform each of the covenants on its part to be performed hereunder and to executeand deliver, and to perform its obligations under all documents required to be executed anddelivered by it pursuant to this Agreement;     (e) Neither the execution, delivery or performance of this Agreement nor compliance herewith(a) conflicts or will conflict with or results or will result in a breach of or constitutes or willconstitute a default under (1) the charter documents or by-laws of Purchaser, (2) to Purchaser’sknowledge, any law or any order, writ, injunction or decree of any court or governmental authority,or (3) any agreement or instrument to which Purchaser is a party or by which it is bound or (b)results in the creation or imposition of any lien, charge or encumbrance upon its property pursuantto any such agreement or instrument; and     (f) No authorization, consent or approval of any governmental authority (including courts) isrequired for the execution and delivery by Purchaser of this Agreement or the performance of itsobligations hereunder.     (g) As of the Closing Date, Purchaser will have the financial resources necessary toconsummate the transactions contemplated under this Agreement (but nothing herein shall beconstrued to grant Purchaser any financing contingency.)     (h) As of the end of the Study Period, Purchaser will have inspected (and will be deemed tohave inspected and to have knowledge of) all of the documents referred to in this Agreement(including those made available through the Due Diligence Materials) and any others delivered, ormade available for review to Purchaser for inspection and that in such inspection Purchaser will bedeemed not to have discovered any matter which would form the basis for a claim by Purchaser thatSeller has breached any representation, warranty or covenant of Seller made in this Agreement;provided that the provisions of this sentence shall not apply to the representations or warrantiesset forth in clauses (b)(i), (b)(ii), (b)(iii), (b)(iv)(a), (b)(v), (b)(vi), (b)(vii), (b)(viii) or(c)(v) of Section 7.2); and provided further that the foregoing shall not
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diminish Purchaser’s rights under Section 5.2. Notwithstanding anything to thecontrary set forth in this Agreement, if prior to the Closing Purchaser has or obtains knowledge(or is deemed to have knowledge) that any of Seller’s representations or warranties set forth inSection 7.2 are untrue in any respect, and Purchaser nevertheless proceeds with the Closingdespite such knowledge or deemed knowledge (as opposed to exercising its rights, to the extentapplicable, under Section 10.3), then such knowledge shall be attributed to Purchaser andthe breach by Seller of the representations and warranties as to which Purchaser shall have suchknowledge shall be waived by Purchaser, such representations and warranties shall be deemedmodified to conform them to the information about which Purchaser had or is deemed to have had suchknowledge and Seller shall have no liability to Purchaser, or its successors or assigns in respectthereof.     **Section 7.2.****Seller’s Representations**. Each Seller warrants and representsto Purchaser as of the date hereof as follows: (a) **Representations Concerning Seller**          (i) Each Seller (other than Assignor 2) is a limited liability company duly formed,validly existing and in good standing under the laws of the State of Delaware and is dulyregistered as a foreign limited liability company in the State of Connecticut. Assignor 2is a limited liability company duly formed, validly existing and in good standing under thelaws of the State of New Hampshire and is duly registered as a foreign limited liabilitycompany in the State of Connecticut. The Person(s) executing this Agreement on behalf ofeach Seller has been duly authorized to do so and this Agreement constitutes the valid andlegally binding obligation of such entity, enforceable against such entity in accordancewith its terms;          (ii) Except as set forth in the attached Schedule 7.2(b), there are no actions,suits or proceedings pending or, to the knowledge of each Seller, threatened in writing,against or affecting each Seller which, if determined adversely to such entity, wouldadversely affect its ability to perform its obligations hereunder;          (iii) Each Seller has full limited liability company right, power and authority and isduly authorized to enter into this Agreement, to perform each of the covenants on its partto be performed hereunder and to execute and deliver, and to perform its obligations underall documents required to be executed and delivered by it pursuant to this Agreement;          (iv) Except as set forth in attached Schedule 7.2(a), neither the execution,delivery or performance of this Agreement nor compliance herewith nor the conveyance of theProperty to Purchaser (a) results or will result in a breach of or constitutes or willconstitute a default under (1) the charter documents or by-laws of any Seller, (2) toSeller’s knowledge, any law or any order, writ, injunction or decree of any court orgovernmental authority, or (3) subject to any matters set forth in Schedule 6.1(n)and obtaining applicable Certificates, any agreement or instrument to which any Seller is aparty or by which any Seller is bound or (b) results in the creation or imposition of anylien, charge or encumbrance upon its property pursuant to any such agreement orinstrument;
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          (v) No authorization, consent, or approval of any governmental authority (includingcourts) is required for the execution and delivery by Seller of this Agreement or theperformance of its obligations hereunder;          (vi) Seller is not a “foreign person” as defined in Section 1445 of the Code; (b) **Seller’s Representations Concerning the Real Property**          (i) Except as may be set forth in the attached Schedule 7.2(b), to eachSeller’s knowledge, such entity has received no written notice from any governmentalauthority that there currently is any condemnation or eminent domain proceeding pending orthreatened against the Real Property.          (ii) Except as may be set forth in the attached Schedule 7.2(b), to eachSeller’s knowledge, such entity has not received any written notice of any pending orthreatened litigation against such entity that would, in the reasonable judgment of suchentity and if determined adversely to such entity, materially and adversely affect Purchaseror the Real Property following Closing.          (iii) Except as may be set forth in the attached Schedule 7.2(b), and except asset forth in the Due Diligence Materials, to each Seller’s knowledge, such entity hasreceived no written notice from any governmental authority requiring the correction of anycondition with respect to the Real Property on account of a material violation of anyapplicable federal, state, county or municipal law, code, rule or regulation, which has notbeen cured or waived.          (iv) To each Seller’s knowledge, (a) each applicable entity has made available toPurchaser copies that are complete in all material respects of the Leases, the Ground Leasesthe Miscellaneous Consultant Agreements, the Environmental Insurance Policy, the OtherMatters, the Brokerage Agreements, the Reports and the Permits, and except as may be setforth in the attached Schedule 7.2(b), no written notice of default has been givenunder any of the Leases, the Ground Leases, the Brokerage Agreements, the MiscellaneousConsultant Agreements, the Environmental Insurance Policy or Other Matters either by or toSeller alleging a material default, which default has not been cured or waived; (b) theLeases, the Ground Leases, the Environmental Insurance Policy and the Other Matters are infull force and effect and enforceable in accordance with their terms; and (c) assuming thatPurchaser does not assume the Seller Mortgage, the Leases, the Ground Leases, theMiscellaneous Consultant Agreements, the Environmental Insurance Policy, the Other Mattersand the Permitted Exceptions constitute all of the material agreements to which Seller is aparty in connection with the use or operation of the Property that will be binding onPurchaser or the Real Property following the Closing (to the extent assumed pursuant to theterms of this Agreement).          (v) Schedule 7.2(b)(iv)-4 lists all brokerage fees and expenses based uponagreements entered into by any Seller for which Purchaser will be liable after the Closing.
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          (vi) No Ground Lease has ever had a term longer than ninety nine (99) years.          (vii) 110 Munson is not an “establishment”, as such term is used in the ConnecticutTransfer Act, Sections 22a-134, et seq., Connecticut General Statutes.          (viii) Seller and the Seller Parties have no commitment or legal obligation, absoluteor contingent, to any Person other than Purchaser to sell, assign, transfer or effect asale of any of the Property (other than inventory in the ordinary course of business), tosell or effect a sale of capital stock or partnership interests, as applicable, of theSeller or any Seller Party, to effect any merger, consolidation, liquidation or dissolutionor other reorganization of Seller or any Seller Parties, or to enter into any agreement orcause the entering into of any agreement with respect to any of the foregoing. (c) **Seller’s Representations Concerning the Personal Property**          (i) Except as may be set forth in the attached Schedule 7.2(b), to eachSeller’s knowledge, such entity has received no written notice from any governmentalauthority that there currently is any condemnation or eminent domain proceeding pending orthreatened against the Personal Property.          (ii) Except as may be set forth in the attached Schedule 7.2(b), to eachSeller’s knowledge, such entity has not received any written notice of any pending orthreatened litigation against such entity that would, in the reasonable judgment of suchentity and if determined adversely to such entity, materially and adversely affect Purchaseror the Personal Property following Closing.          (iii) Except as may be set forth in the attached Schedule 7.2(b), to eachSeller’s knowledge, such entity has received no written notice from any governmentalauthority requiring the correction of any condition with respect to the Personal Property onaccount of a material violation of any applicable federal, state, county or municipal law,code, rule or regulation, which has not been cured or waived.          (iv) To each Seller’s knowledge, such entity has neither assigned norotherwise transferred its right, title or interest in and to the Personal Property, nor doesany Person hold any lien granted by Seller on the Personal Property other than through aSeller Mortgage (which Seller Mortgage lien shall be terminated at Closing).          (v) The attached Schedule 7.2(c)(v) sets forth all material tangible personalproperty owned or leased by Seller that is used or held for use by Seller in connection withthe operation, management, maintenance or use of the Real Property.
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     **Section 7.3.****Knowledge; Breach****.**     (a) For all purposes of this Agreement, including Section 7.2, “knowledge” withrespect to each of the entities included in the term Seller shall mean matters as to which DavidClem, Robert L. Green or George Lightbody have actual knowledge without any duty orresponsibilities to make any inquiry, review or investigation.     (b) As used in this Agreement the phrase “deemed to know” (or words of similar import) shallhave the following meaning: Purchaser shall be “deemed to know” that a representation or warrantyof Seller (other than the representations or warranties set forth in clauses (b)(i), (b)(ii),(b)(iii), (b)(iv)(a), (b)(v), (b)(vi), (b)(vii), (b)(viii) or (c)(v) of Section 7.2) isuntrue, inaccurate or incorrect to the extent that this Agreement, the Reports, Due DiligenceMaterials, documents, studies, reports and other information made available by Seller to Purchaseror its agents prior to the commencement of the Restricted Period, or any Certificate containsinformation which is inconsistent with such representation or warranty.     (c) Seller shall have the right to amend and otherwise modify the Certificates and theSchedules and Exhibits attached hereto and amend and otherwise modify the representations andwarranties made by Seller prior to the commencement of the Restricted Period by written noticethereof to Purchaser, and if Purchaser fails to terminate this Agreement as provided in Section5.2, this Agreement shall conclusively be deemed amended to incorporate all such amendments andmodifications. Following the commencement of the Restricted Period and prior to the Closing,Seller shall have the right to amend and otherwise modify the Certificates and the Schedules andExhibits attached hereto and amend and otherwise modify the representations and warranties made bySeller by written notice thereof to Purchaser (an “Update”). With respect to any Update,Purchaser shall have five (5) Business Days (the “Update Termination Period”) commencingupon Purchaser’s receipt of written notice of such Update, during which Purchaser may terminatethis Agreement (except for the Surviving Obligations), but only on account of such Update, bywritten notice to Seller and receive a refund of the Deposit. In the event that any UpdateTermination Period commences less than five (5) Business Days prior to the Closing, then theClosing may be adjourned by Purchaser for a period of up to five (5) Business Days such thatPurchaser may review such Update and the Closing shall be adjourned until the next Business Dayfollowing the expiration of such period. In the event that Purchaser does not terminate thisAgreement during an applicable Update Termination Period, then Purchaser shall have no right toterminate this Agreement on account of such Update, and this Agreement shall conclusively be deemedamended to incorporate such Update.     (d) Seller and Purchaser agree that, each shall, subject always to Article 10 and thelimitations set forth therein, be liable for the direct, but not consequential or punitive, damagesresulting from any breach of its representations and warranties expressly set forth in Article 7hereof or in any document or certificate delivered in connection herewith; provided, however, that:(i) such representations and warranties are personal to Seller and Purchaser and, notwithstandingany other provision of this Agreement, may not be assigned to or enforced by any other Person;provided, however, that Purchaser may assign the Seller Representations and Purchaser’s rightsunder this Article 7 to any Permitted Assignee; and (ii) the representations and warranties ofSeller set forth in this Agreement or expressly set forth as such in any document or certificatedelivered by Seller in connection herewith shall survive the Closing for a period of time expiringon the earlier of (x) nine (9) months following the Closing or (y) December 31,
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2007 (such period of time being the “Claim Period”), and no action or proceedingthereon shall be valid or enforceable, at law or in equity, unless (x) Purchaser provides writtennotice of any potential claim to Seller within the Claim Period, which notice shall describe suchpotential claim in reasonable detail based upon the information available to Purchaser at such timeand (y) a legal proceeding is commenced within forty-five (45) days after Seller’s receipt of suchnotice. Notwithstanding the foregoing, Seller shall have no liability for any such breach: (a)regarding which Purchaser or its attorneys, agents or consultants are deemed to know the facts orcircumstances prior to Closing; or (b) that was disclosed in this Agreement or any exhibit hereto,in the Due Diligence Materials, or in any other document, study or report delivered or madeavailable by Seller to Purchaser or its attorneys, consultants or agents at or before the Closing(provided that the provisions of this clause (b) shall not apply to the representations orwarranties set forth in clauses (b)(i), (b)(ii), (b)(iii), (b)(iv)(a), (b)(v), (b)(vi), (b)(vii),(b)(viii) or (c)(v) of Section 7.2). Purchaser further agrees that no claim may or shallbe made for any alleged breach of any representations or warranties made by Seller under orrelating to this Agreement unless the amount of such claim or claims, individually or in theaggregate, exceeds the Threshold Amount, and such claim or claims shall never, individually or inthe aggregate shall never exceed the Damage Cap.     **Section 7.4****Status of Reports****.**Purchaser understands and acknowledges thatany Reports or other information provided to Purchaser is without any representation or warranty,express or implied, as to the completeness or accuracy of the facts, presumptions, conclusions orother matters contained therein. Purchaser has been expressly advised by Seller to conduct anindependent investigation and inspection of the Property utilizing experts as Purchaser deems to benecessary for an independent assessment of all liability and risk with respect to the Property.Except for Seller’s Representations, Purchaser shall rely only upon Purchaser’s own investigationsand inquiries with respect to all such liability and risk, including all liability and risk withrespect to the presence of hazardous materials in, on or around the Property.**ARTICLE 8****Closing**     **Section 8.1.****Closing Date**. Subject to express rights to adjourn the Closingor extend the Closing Date as provided in this Agreement, the Closing shall be consummated prior to10:00 a.m. Boston, Massachusetts time on the Closing Date. Unless the parties otherwise agree inwriting, the Closing shall be conducted through a customary escrow arrangement with the TitleCompany and, on or before the Closing Date the Seller shall deliver to the Title Company thedocuments listed in Section 8.2 and the Purchaser shall deliver to the Title Company thedocuments and funds described in Section 8.3.     PURCHASER RECOGNIZES THAT IT IS A MATERIAL CONDITION TO THE OBLIGATIONS OF SELLER UNDER THISAGREEMENT THAT THE CLOSING BE CONSUMMATED PRIOR TO 10:00 A.M. BOSTON, MASSACHUSETTS TIME ON THECLOSING DATE. ACCORDINGLY, PURCHASER AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, PURCHASERSHALL NOT BE ENTITLED TO ANY ADJOURNMENT OF THE CLOSING, TIME BEING OF THE ESSENCE AS TO THEPERFORMANCE OF THE OBLIGATIONS OF PURCHASER HEREUNDER ON OR PRIOR TO SUCH DATE.
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     **Section 8.2.****Seller’s Deliveries**. At the Closing (or at such later time asset forth in clause (o) below), Seller shall deliver or cause to be delivered to Purchaser, atSeller’s sole expense, the following items, each executed and acknowledged to the extentappropriate:     (a) The Deed for 110 Munson from the 110 Munson Seller (additionally, Seller shall deliverconveyance tax statements for the City of New Haven and the State of Connecticut with checks in theappropriate amounts to pay all applicable conveyance taxes);     (b) The Ground Lease Assignment with respect to each of the Ground Leases;     (c) A non-foreign person affidavit sworn to by Seller (other than Assignor 1 and Assignor 2)as required by Section 1445 of the Code;     (d) Such evidence or documents as may be reasonably required by the Title Company so that theTitle Company may deliver the Title Policies without exceptions relating to: (i) mechanics’ ormaterialmen’s liens; (ii) parties in possession; and (iii) the status and capacity of Seller andthe authority of the Person or Persons who are executing the various documents on behalf of Sellerin connection with the sale of the Property to Purchaser;     (e) A duly-executed Closing Statement;     (f) The Assignment and Assumption Agreement;     (g) The Ground Lease Assignments;     (h) The Tenant Estoppel Certificates and any Seller’s Estoppel Certificates;     (i) The Ground Landlord Consents;     (j) The ARDA Consent;     (k) The TDA Consents;     (l) The Post-Closing Escrow Agreement;     (m) Any transferable bonds, warranties or guaranties that relate to the Property and inSeller’s possession and control, and any letter of credit security deposits delivered to Sellerunder the Leases and each such document or instrument that is reasonably required to transfer anysuch items to Purchaser (and Seller shall deliver any of the foregoing directly to any lender thatPurchaser designates in writing to Seller at least five (5) Business Days before the Closing);     (n) A notice letter to all Tenants notifying them of the transfer of the Leases and anysecurity deposits and last months’ rent, so called, and the address to which such rents thereundershould be paid; and
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     (o) A notice letter to parties to the Brokerage Agreements, the Ground Leases, theMiscellaneous Consultant Agreements, the Environmental Insurance Policy and the Other Mattersnotifying them of the assignment of such documents.     (p) The following shall be delivered to Purchaser within ten (10) Business Days following theClosing:          (i) To the extent that the following are in the possession or control of Seller, theoriginal (or copies if only a copy is available) of Leases, the Ground Leases, theMiscellaneous Consultant Assignments, the Brokerage Agreements, the Environmental InsurancePolicy, the Other Matters and any and all building plans, surveys, site plans, engineeringplans and studies, utility plans, landscaping plans, drawings and specifications, marketingartwork, warranties book and other documentation concerning all or any part of the Property(provided, however, Seller may keep copies of any of the foregoing); provided however, atPurchaser’s request, Seller will provide any of such information in electronic format, ifthe same is in the possession or control of Seller unless the same is in a proprietaryformat of a computer program, other computer software or under a licensing agreement thatSeller is not transferring.     **Section 8.3.****Purchaser’s Deliveries**. At the Closing, Purchaser shall deliverto Seller the following items each executed and acknowledged to the extent appropriate:     (a) Immediately available federal funds sufficient to pay the Purchase Price (less the Depositand subject to apportionments and adjustments as set forth herein) and Purchaser’s share of allescrow costs and closing expenses;     (b) Such evidence or documents as may reasonably be required by the Title Company evidencingthe status and capacity of Purchaser and the authority of the Person or Persons who are executingthe various documents on behalf of Purchaser in connection with the purchase of the Property;     (c) A duly executed counterpart of the Closing Statement;     (d) A duly executed counterpart of the Assignment and Assumption Agreement;     (e) Duly executed counterparts of the Ground Lease Assignments;     (f) A duly executed counterpart of the Post-Closing Escrow Agreement; and     (g) Duly executed counterparts of the Miscellaneous Consultant Consents.     **Section 8.4.****Costs and Prorations**.     (a) **General**. The following listed items allocable to the Property will be adjusted tothe payment period that includes the date of Closing and shall be prorated between Seller andPurchaser as of the Closing Date in accordance with this Section 8.4. All such itemsattributable
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to the period prior to the Closing Date shall be credited or charged to Seller, and all such itemsattributable to the period commencing on the Closing Date shall be credited or charged toPurchaser. The provisions of this Section 8.4 shall survive the Closing.     (b) **Rents**: Rents and other charges payable by tenants under the Leases(“Rents”) shall be apportioned as and when collected. Any Rents collected by Purchaser(which shall include Rents collected by any agent acting for Purchaser) subsequent to the Closing(whether due and payable prior to or subsequent to the Closing Date) shall be adjusted as of the11:59 p.m. on the Closing Date (the “Adjustment Point”), and any portion thereof properlyallocable to periods prior to the Adjustment Point, net of costs of collection properly allocablethereto, if any, shall be paid by Purchaser to Seller (or such parties as may be directed bySeller) promptly after the collection thereof by Purchaser, but subject to the further provisionsof this Section in the case of Rents due prior to the Adjustment Point. If prior to the Closingany entity within the term Seller have collected any Rents (which shall include Rents collected byany agent acting for such parties) which are properly allocable in whole or in part to periodssubsequent to the Adjustment Point, the portion thereof so allocable to periods subsequent to theAdjustment Point, net of costs of collection properly allocable thereto, if any, shall be creditedto Purchaser by Seller at the Closing. As used in this Section the term “costs ofcollection” shall mean and include reasonable attorneys’ fees and other costs incurred byPurchaser or Seller in collecting any Rents, but shall not include the regular fees payable to anyproperty manager for the Property, the payroll costs of any of Seller’s employees or any otherinternal costs or overhead of Seller or Purchaser. 1. Ten (10) business days prior to the Closing, Seller shall deliver to Purchasera list of all tenants which are delinquent in payment of Rents, which list shall setforth the amount of each such delinquency, the period to which each such delinquencyrelates and the nature of the amount due itemizing separately, as applicable, fixedmonthly rent, tax reimbursements, common area maintenance, operating expenseescalations, electric charges, charges for tenant services, charges for overtimeservices, percentage rent and other charges, if any. Any amount collected by Purchaserafter the Closing Date, from tenants who owe Rents for periods prior to the ClosingDate, shall be applied (i) first, in payment of Rents for the month in which theClosing Date occurs (the “Closing Month”) and in payment of Rents for theperiods following the Closing Month and (ii) second, in payment of Rents for theperiods preceding the Closing Month. Each such amount, less any costs of collection(including reasonable counsel fees) reasonably allocable thereto, shall be adjusted andprorated as provided above, and the party who receives such amount shall promptly payover to the other party the portion thereof to which it is so entitled.  2. Purchaser shall use commercially reasonable efforts to bill and collect anydelinquencies set forth on the list delivered by Seller pursuant to this Section for aperiod of six (6) months after the Closing and the amount thereof, as, when and to theextent collected by Purchaser, shall, if due to Seller pursuant to the provisions ofthis Section, be paid by Purchaser to Seller (or such parties as directed by Seller),less any costs of collection (including reasonable counsel fees) reasonably allocablethereto, promptly after the collection thereof by Purchaser. In no event
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   shall Purchaser be obligated to institute any actions or proceedings or to seek theeviction of any tenant in order to collect any such delinquencies. Thereafter,Seller shall have the right to sue tenants to collect such delinquencies andPurchaser shall cooperate (but shall not be obligated to spend any money unlessSeller have agreed to reimburse Purchaser therefor) with Seller to the extentreasonably necessary, provided, however, Seller shall have no right to cause anysuch tenant to be evicted or to exercise any other “landlord” remedy (as set forth inthe Lease) against such tenant other than to sue for collection.  3. Following the Closing and upon the written request of Seller, as applicable,Purchaser shall submit or cause to be submitted to Seller, within thirty (30) daysafter the end of each calendar quarter up to and including the calendar quarter whichincludes the date that is six (6) months after the Closing Date, but only so long asany delinquencies shall be owed to Seller, a statement which sets forth all collectionsmade by Purchaser from the tenants which owe such delinquencies through the end of suchcalendar quarter. Seller shall have the right from time to time following the Closinguntil ninety (90) days after receipt by Seller of the last quarterly statement requiredhereunder, at Seller’s expense, to examine and audit so much of the books and recordsof Purchaser as relate to such delinquencies in order to verify the collectionsreported by Purchaser in such quarterly statements.  4. Purchaser agrees not to waive or settle any delinquency owed in whole or inpart to Seller without the prior written consent of Seller, which consent may begranted or withheld in Seller’s reasonable discretion.  5. With respect to that portion of Rents which are payable on an annual,semiannual or other non-monthly basis, all such payments which become due after theClosing, to the extent allocable to periods prior to the Adjustment Point, shall bepaid by Purchaser to Seller (or such parties as may be directed by Seller) promptlyafter receipt thereof, subject to costs of collection, if any, properly allocablethereto. With respect to that portion of Rents that are attributable to payments ofexpenses such as common area maintenance charges, association charges or advertisingand promotional charges, such Rents shall be apportioned based on which party paid orwill pay the correlating expenses for the relevant period. With respect to thatportion of Rents which are billed on an index-based formula or on an estimated basisduring the fiscal or other period for which paid, at the end of such fiscal or otherperiod Purchaser shall determine whether the items in question have been over billed orunder billed (or over- or under-estimated, as applicable). If there has been an overbilling or over-estimation and an over billed/estimated amount has been received,Seller shall, promptly after request by Purchaser, pay to Purchaser the portion of suchover billed/estimated amount which is properly allocable to the period prior to theAdjustment Point (to the extent such amount was actually received), and promptlythereafter Purchaser shall reimburse the entire over billed/estimated amount to thetenants which paid the same. If there has been an under billing or under-estimation,the additional amount shall be billed by Purchaser to the tenants and any amountreceived by Purchaser, net of costs of collection, if any, to the extent properlyallocable to periods prior to the
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   Adjustment Point shall promptly be paid by Purchaser to Seller (or such parties asmay be directed by Seller). In the event that a tenant requires an audit withrespect to an over-billing or under-billing that relates to the time period prior tothe Adjustment Point, Purchaser shall promptly notify Seller and Seller may either(i) conduct such audit at its sole cost and expense, in which case Seller shallconsult with Purchaser in the conduct of same and Purchaser shall reasonablycooperate with Seller and provide Seller with reasonable access to any books andrecords reasonably necessary to conduct such audit or (ii) decline to conduct suchaudit, in which case Seller shall reimburse Purchaser for the reasonable costsincurred by Purchaser to conduct such audit relating to the time period prior to theAdjustment Point. Seller shall maintain all books and records that may be relevantto any audit for the time period required by the respective Lease, and providePurchaser and the respective Tenant access thereto in connection with any audit thatis permitted by such Lease.  6. Notwithstanding anything to the contrary set forth in this Section, Seller (orsuch parties as may be directed by Seller) shall be entitled to receive, and Purchasershall pay to Seller (or such parties as may be directed by Seller) promptly afterreceipt thereof, net of costs of collection and reasonable attorneys’ fees, if any,properly allocable thereto, (i) all amounts payable by tenants on account of all realestate and personal property taxes, general and special assessments, water and sewercharges, license fees and other fees and charges assessed or imposed by governmentalauthorities upon the Properties (the “Impositions”) which, pursuant to theterms of this Section, it is Seller’s obligation to pay and discharge (to the extentSeller either paid such amounts or Purchaser received a credit therefor pursuant tothis Section), which amounts shall be apportioned between Seller and Purchaser in thesame manner as the Impositions to which they relate and (ii) all amounts payable bytenants on account of utilities which, pursuant to the terms of this Section, it isSeller’s obligation to pay and discharge (to the extent Seller either paid such amountsor Purchaser received a credit therefor pursuant to this Section), which amounts shallbe apportioned between Seller and Purchaser in the same manner as the utilities towhich they relate. Notwithstanding anything to the contrary set forth in this Section,Purchaser shall be entitled to receive, and Seller shall pay to Purchaser promptlyafter receipt thereof, net of costs of collection and reasonable attorneys’ fees, ifany, properly allocable thereto, (i) all amounts payable by tenants on account ofImpositions which, pursuant to the terms of this Section, it is Purchaser’s obligationto pay and discharge (to the extent Purchaser either paid such amounts or Sellerreceived a credit therefor pursuant to this Section), which amounts shall beapportioned between Seller and Purchaser in the same manner as the Impositions to whichthey relate and (ii) all amounts payable by tenants on account of utilities which,pursuant to the terms of this Section, it is Purchaser’s obligation to pay anddischarge (to the extent Purchaser either paid such amounts or Seller (or a partydesignated by Seller) received a credit therefor pursuant to this Section), whichamounts shall be apportioned between Seller and Purchaser in the same manner as theutilities to which they relate.
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 7. Any advance rental deposits or payments held by Seller on the Closing Date andapplicable to periods of time subsequent to the Adjustment Point, and any securitydeposits held by Seller on the Closing Date, together with any interest thereon, ifany, which, under the terms of the applicable Leases, is payable to the tenantsthereunder, shall be paid or credited to Purchaser at the Closing.     (c) **Cash Security Deposits**. Purchaser shall be credited at Closing with: (i) all cashsecurity or other deposits held by or on behalf of Seller with respect to the Property (other thanany security deposits held in the form of a letter of credit or other non-cash security); (ii) anyrent prepaid beyond the Closing Date; and (iii) any interest earned as of the Closing on cashsecurity deposits or prepaid rent held by or on behalf of Seller, to the extent that such interestis refundable to Tenants under the terms of the applicable Lease or applicable law. The cost oftransferring any letter of credit security deposits shall be divided evenly between Seller andPurchaser.     (d) **Taxes**. All real estate taxes assessed against the Real Property shall be proratedbetween Seller and Purchaser on an accrual basis based upon the actual current tax bill and inaccordance with the custom of the local Bar Association. If the most recent tax bill received bySeller before the Closing is not the actual current tax bill, then Seller and Purchaser shallinitially prorate the taxes at the Closing by applying 100% of the tax rate for the period coveredby the most current available tax bill to the latest assessed valuation, and shall reprorate thetaxes retroactively when the actual current tax bill is then available. All real estate taxesaccruing before the Closing shall be charged to Seller and all such taxes accruing on and after theClosing shall be charged to Purchaser. Any refunds of real estate taxes made after the Closingshall first be applied to the unreimbursed third-party costs incurred by Seller or Purchaser inobtaining the refund, then shall be paid to Seller (for the period prior to the Closing) and toPurchaser (for the period commencing on and after the Closing). If any proceeding to determine theassessed value of the Real Property or the real estate taxes payable with respect to the RealProperty has been commenced before the Effective Date and shall be continuing as of the Closing,Seller shall be authorized to continue to prosecute such proceeding and Purchaser agrees tocooperate as reasonably requested with Seller and to execute any and all documents reasonablyrequested by Seller in furtherance of the foregoing.     (e) **Lease Expenses**. Seller shall pay all Seller Lease Expenses and Purchaser shallpay all Purchaser Lease Expenses. At Closing, Purchaser shall reimburse Seller for any and allPurchaser Lease Expenses to the extent the same have been paid by Seller prior to Closing. Inaddition, at Closing, Purchaser shall assume Seller’s obligations to pay, when due (whether on astated due date or by acceleration) any Lease Expenses unpaid as of the Closing including withoutlimitation the commissions listed on the attached Schedule 7.2(b)(iv)-4 to become due astherein provided, and Purchaser hereby agrees to indemnify, defend and hold Seller harmless fromand against any and all claims for such Lease Expenses which remain unpaid for any reason at thetime of Closing, which obligations of Purchaser shall survive the Closing. Each party shall makeavailable to the other all records, bills, vouchers and other data in such party’s controlverifying Lease Expenses and the payment thereof. With respect to any construction management feesdue to Seller as the landlord under the Leases, all such fees shall be prorated between Seller andPurchaser as of the Closing based upon the information available to the parties at such time, withthe actual amount thereof subsequently determined (based on the actual
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expenditures made during the month in which the Closing occurs on which such fees are baseddivided by 30 and then multiplied by the number of days in the month prior to and including thedate of Closing) and appropriate adjustment made pursuant to Section 8.4(l) below.     (f) **Utilities.** Utilities and fuel charges, including water, telephone, sewer, steam,electricity, gas, oil charges and any assignable deposits with utility companies will be adjustedon the basis of current bills and readings obtained by Seller prior to the Closing, withappropriate adjustments pursuant to Section 8.4(l) below made based on actual readings andinvoices closer to the Closing and reasonably extrapolated to be as of the Closing.     (g) **License and Permit Fees.** Assignable license and permit fees.     (h) **Expenses of Operation.** Other expenses of operation and similar items, includingwithout limitation, advertising and marketing expenses.     (i) **Ground Leases.** Any amounts payable by any of the tenants under the Ground Leases.     (j) **Customary Apportionments.** Any other operating expenses and any other itemsrelating to a Real Property which, in accordance with customary business practice, customarilywould be apportioned between sellers and buyers of real estate. Notwithstanding the foregoing,Seller shall pay all costs of procuring and recording all instruments necessary to be delivered orrecorded in order to place title to the Real Property in the condition required hereunder atClosing.     (k) **Bills and Invoices.** Except as otherwise specifically provided in this Agreementor in any other written agreement that may be entered into between Seller and Purchaser, Seller haspaid or will pay in full, prior to Closing (but subject to apportionment hereunder), all bills andinvoices for labor, goods, material and services of any kind relating to the Real Property andutility charges (except if and to the extent such utility charges are billed directly to tenants),that are due and payable on or prior to the Closing, and Purchaser will pay in full, after theClosing (but subject to apportionment hereunder), all bills and invoices for labor, goods, materialand services of any kind relating to the Real Property and utility charges (except if and to theextent such utility charges are billed directly to tenants), that are due and payable afterClosing.     (l) **Closing Statement**. Purchaser and Seller shall cooperate to produce prior to theClosing Date a schedule of prorations and closing costs that is as complete and accurate asreasonably possible (the “Closing Statement”). If any of the aforesaid prorations cannotbe calculated accurately on the Closing Date, then they shall be estimated to the extent possibleas of the Closing and calculated as soon after the Closing Date as is feasible. All adjustments toinitial estimated prorations shall be made by the parties with due diligence and cooperation withinsixty (60) days following the Closing, or such later time as may be required to obtain necessaryinformation for proration, by prompt cash payment to the party yielding a net credit from suchprorations from the other party. So long as the parties have reasonably cooperated with respect tosuch adjustments, the provisions of this Section 8.4 shall survive the Closing through thefinal day of the calendar year following the calendar year in which the Closing
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occurs, and after such period neither Seller nor Purchaser shall have any further rights orobligations under this Section 8.4.     (m) **Closing Costs**. Purchaser and Seller shall each pay their own legal fees relatedto the preparation of this Agreement and all documents required to settle the transactioncontemplated hereby. Purchaser shall pay (i) all costs associated with its due diligence,including the cost of appraisals, architectural, engineering, credit and environmental reports,(ii) all title insurance premiums and charges and all title examination costs, and (iii) all surveycosts. Seller shall pay (i) all documentary stamp taxes owing, if any, with respect to the Deedand the Ground Lease Assignments, and (ii) the cost of recording the Deed and the Ground LeaseAssignments. Purchaser and Seller shall each pay one-half of the Escrow Agent’s fees for acting asescrow agent. All other customary real property purchase and sale closing costs shall be paid bySeller or Purchaser in accordance with the custom in the jurisdiction where the Real Property islocated.**ARTICLE 9****Real Estate Commission**     **Section 9.1.****Commissions**. If and when, but only if and when, the Closing iscompleted and the Purchase Price is paid in full, Seller shall be obligated to pay a real estatecommission and/or brokerage fee to Seller’s Broker in accordance with a separate agreement betweenSeller and Seller’s Broker. Seller’s Broker shall indemnify Seller and Purchaser against allclaims, costs and liability relating to any broker or other Person claiming by, through or underSeller’s Broker. By execution of this Agreement, Seller’s Broker agrees to the foregoing matters.Seller and Purchaser respectively shall indemnify and hold harmless the other on account of allclaims of any other brokers or finders claiming by, through, under or on account of dealings withthem in any way related to this purchase and sale, including, without limitation, reasonableattorneys’ fees and disbursements incurred by the indemnified party. The provisions of thisparagraph shall survive the Closing or termination of this Agreement.**ARTICLE 10****Termination and Default**     **Section 10.1.****Failure to Perform by Seller**. Notwithstanding anything to thecontrary contained in this Agreement, if Seller fails to perform in any material respect anycovenant of Seller, as applicable, in accordance with the terms of this Agreement or if any ofSeller’s Representations shall not be true, correct and complete in any material respect uponClosing, except (a) for changes due to the operation of the Property occurring prior to Closingwhich are not prohibited by this Agreement (therefore there is no breach), (b) if the dollar amountof the damages resulting from any breach of representation or failure to perform any covenanttogether with all dollar amounts of all other damages resulting from any breach of representationor failure to perform any other covenant is less than Fifty Thousand Dollars ($50,000) (in whichcase the breach is deemed waived by Purchaser, the “Threshold Amount”) or (c) if otherwisewaived by Purchaser, then Purchaser’s sole and exclusive remedy shall be either: (i) if and only
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if the breach by Seller is a breach of any of Seller’s covenants hereunder, sue for specificperformance with respect to the performance of same, subject to any limitations expressly set forthin this Agreement; (ii) terminate this Agreement at the Closing (as it may be adjourned under thisAgreement) in which event this Agreement, without further action of the parties, shall become nulland void and no party shall have any further rights or obligations under this Agreement, except forthe return of the Deposit to the Purchaser and the Surviving Obligations; or (iii) waive suchdefault and proceed to Closing without any reduction in, abatement of, or credit against thePurchase Price; if Purchaser fails to make any such election, Purchaser shall be deemed to haveelected the remedy set forth in Section 10.1(iii).     **Section 10.2****.****Notice to Seller****.**Notwithstanding anything herein to thecontrary, Purchaser shall give Seller written notice specifying any failure to perform by Seller ofany of Seller’s covenants hereunder or breach of any Seller Representation hereunder, which noticeshall be given within five (5) Business Days of the date Purchaser obtains actual knowledge of suchbreach or failure to perform (or on or prior to the Closing Date, if the date Purchaser obtainssuch actual knowledge is within 5 Business Days of the Closing Date); if Purchaser fails to deliversuch notice within such five-day period (or by Closing, if earlier), such failure or breach shallbe deemed waived by Purchaser. Upon receipt of such notice, Seller shall have until Closing (andmay adjourn the Closing for up to sixty (60) days if such adjournment is reasonably necessary tocure such breach or failure to perform) to cure such breach or failure to perform. At the optionof Seller, Seller may cure such breach or failure to perform by giving Purchaser a credit againstthe Purchase Price at the Closing for a reasonable estimate of the dollar amount to cure same ifquantifiable in excess of the Threshold Amount, but such credit shall only be that amount thatexceeds the Threshold Amount.     **Section 10.3****.****Failure to Perform by Purchaser**.     (a) Notwithstanding anything to the contrary contained in this Agreement, if Purchaser failsto perform in accordance with the terms of this Agreement, or materially breaches itsrepresentations or warranties (such failure or breach shall also be deemed a failure of a conditionprecedent to Seller’s obligations to consummate their respective obligations under this Agreement),the Deposit shall be forfeited to Seller as liquidated damages (which shall be Seller’s sole andexclusive remedy against Purchaser), at which time this Agreement shall be null and void and noparty shall have any rights or obligations under this Agreement, except for the SurvivingObligations. Seller and Purchaser acknowledge and agree that (i) the Deposit is a reasonableestimate of and bears a reasonable relationship to the damages that would be suffered and costsincurred by Seller as a result of having withdrawn the Property from sale and the failure ofClosing to occur due to a default of Purchaser under this Agreement; (ii) the actual damagessuffered and costs incurred by Seller as a result of such withdrawal and failure to close due to adefault of Purchaser under this Agreement would be extremely difficult and impractical todetermine; (iii) Purchaser seeks to limit its liability under this Agreement to the amount of theDeposit in the event this Agreement is terminated and the transaction contemplated by thisAgreement does not close due to a default of Purchaser under this Agreement; and (iv) the Depositshall be and constitutes valid liquidated damages; provided, however, Purchaser and Seller agreethat the liquidated damages do not apply to any indemnity obligation of the Purchaser under thisAgreement.
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     (b) Notwithstanding anything herein to the contrary, Seller shall give Purchaser writtennotice specifying any failure to perform by Purchaser of any of Purchaser’s covenants hereunder orbreach of any of Purchaser’s representations and warranties hereunder, which notice shall be givenwithin five (5) Business Days of the date Seller obtains actual knowledge of such breach or failureto perform (or on or prior to the Closing Date, if the date Seller obtains such actual knowledge iswithin five (5) Business Days of the Closing Date); if Seller fails to deliver such notice withinsuch five-day period (or by Closing, if earlier), such failure or breach shall be deemed waived bySeller. Upon receipt of such notice, Purchaser shall have until Closing (and may adjourn theClosing for up to five (5) Business Days if such adjournment is reasonably necessary to cure suchbreach or failure to perform) to cure such breach or failure to perform. The provisions of thisSection 10.3(b) shall not apply to any failure of Purchaser to perform at Closing, whichshall be a default under this Agreement for which no notice and cure period is provided.     **Section 10.4****.****Damage Cap**. Notwithstanding anything to the contrary containedin this Agreement, and subject to the limitation of Purchaser’s remedies set forth in Section10.1, the maximum aggregate liability of the Seller in the aggregate for any and all damages orClaims hereunder or in connection herewith, including without limitation, any Claims forindemnification hereunder and Claims under any documents delivered in connection herewith, shall beTwo Million Dollars ($2,000,000) (the “Damage Cap”); provided, however, that Seller shallnot have any liability for any such damages or Claims until the aggregate amount of same is inexcess of the Threshold Amount (in which case the amount of said damages or Claims up to theThreshold Amount are deemed waived by Purchaser); and provided further, that Seller shall not beliable for any consequential, special, punitive or indirect damages. The provisions of thisSection 10.4 shall survive Closing or earlier termination of this Agreement.     **Section 10.5.****Post-Closing Escrow**. As security for Seller’s obligations, ifany, during the Claim Period, at the Closing Seller shall either (i) deposit in an accountdesignated by the Escrow Agent an amount equal to the Damage Cap in immediately available funds, or(ii) deliver to the Escrow Agent a letter of credit in a form reasonably acceptable to Purchaser inthe stated amount of the Damage Cap (such funds, together with any interest earned thereon, net ofinvestment costs, or such Letter of Credit, the “Post-Closing Escrow Funds”). SuchPost-Closing Escrow Funds shall be held by Escrow Agent pursuant to the Escrow Instructions in theform attached hereto as Schedule 10.5 (the “Post-Closing Escrow Agreement”) untilthe expiration of the Claim Period (unless, prior to the expiration of the Claim Period, a claimfor such Post-Closing Escrow Funds is made by Purchaser, in which event the Post-Closing EscrowFunds shall continue to be held in accordance with the terms of the Post-Closing Escrow Agreement)and disbursed in accordance with the terms of such Post-Closing Escrow Agreement.     **SECTION 10.6.****RELEASE****.**WITHOUT LIMITING ANY PROVISION IN THIS AGREEMENT,SELLER AND PURCHASER, FOR THEMSELVES AND THEIR SUCCESSORS AND ASSIGNS AND THEIR AFFILIATES, HEREBYRELEASE AND FOREVER DISCHARGE EACH OTHER AND EACH OTHER’S DIRECT AND INDIRECT OWNERS, AND THEMANAGERS, MEMBERS, PARTNERS, BENEFICIAL OWNERS, OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS ANDAGENTS, RESPECTIVELY,
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OF THE FOREGOING, FROM ANY AND ALL CLAIMS, ACTS, DEBTS, DEMANDS, ACTIONS, CAUSES OF ACTION,SUITS, SUMS OF MONEY, GUARANTIES, BONDS, COVENANTS, CONTRACTS, ACCOUNTS, AGREEMENTS, PROMISES,REPRESENTATIONS, RESTITUTIONS, OMISSIONS, VARIANCES, DAMAGES, OBLIGATIONS, COSTS, ENVIRONMENTALRELEASES, RESPONSE ACTIONS, FEES AND LIABILITIES OF EVERY NAME AND NATURE WHATSOEVER, BOTH AT LAWAND IN EQUITY, KNOWN AND UNKNOWN (ANY OF THE FOREGOING, A “CLAIM”), WHICH THEY AND THEIRSUCCESSORS AND ASSIGNS MAY NOW OR HEREAFTER HAVE WITH RESPECT TO MATTERS EXISTING AS OF THE CLOSINGDATE AGAINST ANY OTHER PARTY AND EACH OTHER’S DIRECT OR INDIRECT OWNERS, OR THE MANAGERS, MEMBERS,PARTNERS, BENEFICIAL OWNERS, OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS OR AGENTS, RESPECTIVELY, OFTHE FOREGOING, ARISING IN CONNECTION WITH OR IN ANY MANNER RELATED TO THIS AGREEMENT, THE PROPERTY,OR THE TRANSACTIONS CONTEMPLATED HEREBY, EXCEPTING SOLELY THE SURVIVING OBLIGATIONS AND OBLIGATIONSARISING UNDER THE ASSIGNMENT AND ASSUMPTION AGREEMENT AND ANY OTHER INSTRUMENT OR AGREEMENTDELIVERED IN CONNECTION WITH THE CLOSING.     **SECTION 10.7.****SURVIVAL****.**The provisions of this Article 10 shall survive theClosing or earlier termination of this Agreement.**ARTICLE 11****Miscellaneous**     **Section 11.1.****Entire Agreement**. This Agreement constitutes the entireagreement between the parties hereto with respect to the transactions contemplated herein exceptfor any contemporaneous agreements between the parties hereto, if any, and it supersedes all priordiscussions, understandings or agreements between the parties. All Exhibits and Schedules attachedhereto are a part of this Agreement and are incorporated herein by reference.     **Section 11.2.****Binding On Successors and Assigns**. Subject to Section11.3, this Agreement shall be binding upon and inure to the benefit of the parties hereto andtheir respective successors and assigns.     **Section 11.3.****No Assignment**. Neither this Agreement nor any interesthereunder shall be assigned or transferred by Seller or Purchaser; provided, however, thatPurchaser may assign its rights hereunder at Closing to any Permitted Assignee, and Purchaser maydesignate one or more Related Entities or Joint Venture Entities to take title to all or anyportion of the Property and to execute and deliver the documents to be executed and delivered byPurchaser hereunder in connection with the Closing. For purposes of clarity, Purchaser shall havethe right to assign its right to take title to all or any portion of the Property under thisAgreement to one or more Related Entities or Joint Venture Entities solely for the purposes of suchentity taking title to all or any portion of the Property and executing such documents, but thePurchaser named herein (i.e., BioMed Realty, L.P.) shall not be released hereunder and shallcontinue to be liable for all covenants and obligations of “Purchaser” hereunder and shall executeand deliver at Closing any
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required instruments and documents that “Purchaser” (as opposed to such Related Entities orJoint Venture Entities) may be required to deliver hereunder. The parties acknowledge that thiswill result in the execution of additional conveyancing documents. As used in this Agreement, theterm “Purchaser” shall be deemed to include the initial Purchaser and any permitteddesignee of the initial Purchaser and all such Purchaser entities shall be jointly and severallyliable under this Agreement. Subject to the foregoing, this Agreement shall inure to the benefitof and shall be binding upon Seller and Purchaser and their respective successors and assigns.     **Section 11.4.****Waiver**. The excuse or waiver of the performance by a party ofany obligation of the other party under this Agreement shall only be effective if evidenced by awritten statement signed by the party so excusing or waiving. No delay in exercising any right orremedy shall constitute a waiver thereof, and no waiver by Seller or Purchaser of the breach of anycovenant of this Agreement shall be construed as a waiver of any preceding or succeeding breach ofthe same or any other covenant or condition of this Agreement.     **Section 11.5.****Governing Law**.     This Agreement shall be governed and interpreted in accordance with the laws of the State ofConnecticut, without giving effect to the conflicts of laws principles thereof. **EACH OF THEPARTIES HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALLRIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THETRANSACTIONS CONTEMPLATED HEREBY.**Any legal action or proceeding with respect to this Agreement orany of the transactions contemplated herein may be brought in the courts of the State ofConnecticut for the Judicial District in which the Property is situated or of the United States ofAmerica for the District of Connecticut, and, by execution and delivery of this Agreement, each ofthe parties hereto hereby consents generally and unconditionally, to the exclusive jurisdiction ofthe aforesaid courts. Each of the parties hereto hereby irrevocably waives, in connection with anysuch action or proceeding, any objection, including, without limitation, any objection to thelaying of venue or based on the grounds of forum non conveniens, which it may now or hereafter haveto the bringing of any such action or proceeding in such respective jurisdictions.     **Section 11.6.****Counterparts**. This Agreement may be executed, includingexecuted by facsimile or electronic signature, in any number of counterparts and it shall besufficient that the signature of each party appear on one or more such counterparts. Allcounterparts shall collectively constitute a single agreement. A facsimile or electronic signatureto this Agreement shall be sufficient to prove the execution hereof by any Person.
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     **Section 11.7.****Notices**. All notices or other communications required orprovided to be sent by either party shall be in writing and shall be: (i) sent by United StatesPostal Service, certified mail, return receipt requested, (ii) sent by any nationally knownovernight delivery service for next day delivery, (iii) delivered in person or (iv) sent byfacsimile (with a copy delivered by any of the methods set forth in the foregoing (i), (ii) and(iii)). All notices shall be deemed to have been given upon receipt. All notices shall beaddressed to the parties at the addresses below:       To Seller: At the address set forth first above       with a copy to: Lyme Properties, LLC    23 Main Street    Hanover, New Hampshire 03755    Attn: George Lightbody    Fax: 603.643.0331       and with a copy to: Lyme Properties, LLC    23 Main Street    Hanover, New Hampshire 03755    Attn: David Clem    Fax: 603.643.0331       and with a copy to: The Lyme Timber Company    16 On the Common    P.O. Box 266    Lyme, New Hampshire 03768    Attn: David Roby    Fax: 617.225.2133       and with a copy to: DLA Piper US LLP    33 Arch Street, 26th Floor    Boston, Massachusetts 02110    Attn: Daniel A. Taylor, Esq.    Fax: 617.406.6100       To Purchaser: At the address set forth first above       with a copy to: Latham & Watkins LLP    600 West Broadway, Suite 1800    San Diego, California 92101    Attn: Steven Levine, Esq.    Fax: 619.696.7419     Any address or name specified above may be changed by notice given to the addressee by theother party in accordance with this Section 11.7. The inability to deliver notice becauseof a changed address of which no notice was given as provided above, or because of rejection or
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other refusal to accept any notice, shall be deemed to be the receipt of the notice as of thedate of such inability to deliver or rejection or refusal to accept. Any notice to be given by anyparty hereto may be given by the counsel for such party.     **Section 11.8.****Attorneys’ Fees**. In the event of a proceeding or action by oneparty against the other party with respect to the interpretation or enforcement of this Agreement,the prevailing party shall be entitled to recover reasonable costs and expenses includingreasonable attorneys’ fees and expenses, whether at the investigative, pretrial, trial or appellatelevel. The prevailing party shall be determined by the court based upon an assessment of whichparty’s major arguments or position prevailed.     **Section 11.9.****IRS Real Estate Sales Reporting**. Purchaser and Seller herebyagree that the Escrow Agent shall act as “the person responsible for closing” the transaction whichis the subject of this Agreement pursuant to Section 6045(e) of the Code and shall prepare and fileall informational returns, including IRS Form 1099-S, and shall otherwise comply with theprovisions of Section 6045(e) of the Code.     **Section 11.10.****Time Periods**. Any reference in this Agreement to the time forthe performance of obligations or elapsed time shall mean consecutive calendar days, months, oryears, as applicable. In the event the time for performance of any obligation hereunder expires ona day that is not a Business Day, the time for performance shall be extended to the next BusinessDay.     **Section 11.11.****Modification of Agreement**. No modification of this Agreementshall be deemed effective unless expressly provided for herein or in writing expressly purportingto modify or amend this Agreement and signed by both Seller and Purchaser.     **Section 11.12.****Descriptive Headings; Word Meaning**. The descriptive headingsof the paragraphs of this Agreement are inserted for convenience only and shall not control oraffect the meaning or construction of any provisions of this Agreement. Words such as “herein”,“hereinafter”, “hereof” and “hereunder” when used in reference to this Agreement, refer to thisAgreement as a whole and not merely to a subdivision in which such words appear, unless the contextotherwise requires. The singular shall include the plural and the masculine gender shall includethe feminine and neuter, and vice versa, unless the context otherwise requires. The word“including” shall not be restrictive and shall be interpreted as if followed by the words “withoutlimitation.”     **Section 11.13.****Time of the Essence**. Time is of the essence of this Agreementand all covenants and deadlines hereunder. Without limiting the foregoing, Purchaser and Sellerhereby confirm their intention and agreement that time shall be of the essence of each and everyprovision of this Agreement, notwithstanding any subsequent modification or extension of any dateor time period that is provided for under this Agreement. The agreement of Purchaser and Sellerthat time is of the essence of each and every provision of this Agreement shall not be waived ormodified by any conduct of the parties, and the agreement of Purchaser and Seller that time is ofthe essence of each and every provision of this Agreement may only be modified or waived by theexpress written agreement of Purchaser and Seller that time shall not be of the
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essence with respect to a particular date or time period, or any modification or extensionthereof, which is provided under this Agreement.     **Section 11.14.****Construction of Agreement**. This Agreement shall not beconstrued more strictly against one party than against another merely by virtue of the fact that itmay have been prepared primarily by counsel for one of the parties, it being recognized that eachof Purchaser and Seller have contributed substantially and materially to the preparation of thisAgreement. Other than contemporaneous instruments executed and delivered of even date, if any,this Agreement contains all of the agreements between the parties relating in any way to thepremises and supersedes all prior agreements and dealings between them. There are no oralagreements between the parties relating to this Agreement or the premises. The enumeration ofspecific examples of a general provision shall not be construed as a limitation of the generalprovision. Unless a party’s approval or consent is required by the express terms of this Agreementnot to be unreasonably withheld, such approval or consent may be withheld in the party’s solediscretion. Nothing herein shall be construed as creating the relationship between the parties ofprincipal and agent, or of partners or joint venturers or any relationship other than seller andbuyer. This Agreement and all consents, notices, approvals and all other related documents may bereproduced by any party by any electronic means or by facsimile, photographic, microfilm,microfiche or other reproduction process and the originals may be destroyed; and each party agreesthat any reproductions shall be as admissible in evidence in any judicial or administrativeproceeding as the original itself (whether or not the original is in existence and whether or notreproduction was made in the regular course of business), and that any further reproduction of suchreproduction shall likewise be admissible. If any payment in the nature of interest provided forin this Agreement shall exceed the maximum interest permitted under controlling law, as establishedby final judgment of a court, then such interest shall instead be at the maximum permitted interestrate as established by such judgment.     **Section 11.15.****Limitations on Liability**. Notwithstanding anything to thecontrary in this Agreement, and subject always to any additional limitations on each Seller’sliability set forth elsewhere in this Agreement: (a) Purchaser’s recourse against each Seller underthis Agreement or any agreement, document, certificate or instrument delivered by any Sellerhereunder, or under any law, rule or regulation relating to the Property, shall be limited to eachSeller’s interest in the Property (or, following the Closing, to the net proceeds of the sale ofthe Property actually received by each Seller); (b) the liability of each party that constitutesSeller shall be joint and several; and (c) in no event shall any of the Seller Parties have anypersonal liability hereunder or otherwise. The acceptance of the Deed, the Ground LeaseAssignments and all other performance of Seller at the Closing shall constitute full performance ofall of Seller’s obligations hereunder other than the Surviving Obligations.     **Section 11.16.****Severability** The parties hereto intend and believe that eachprovision in this Agreement comports with all applicable local, state and federal laws and judicialdecisions. If, however, any provision in this Agreement is found by a court of law to be inviolation of any applicable local, state, or federal law, statute, ordinance, administrative orjudicial decision, or public policy, or if in any other respect such a court declares any suchprovision to be illegal, invalid, unlawful, void or unenforceable as written, then it is the intentof all parties hereto that, consistent with and with a view towards preserving the economic andlegal arrangements among
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the parties hereto as expressed in this Agreement, such provision shall be given force andeffect to the fullest possible extent, and that the remainder of this Agreement shall be construedas if such illegal, invalid, unlawful, void, or unenforceable provision were not contained herein,and that the rights, obligations, and interests of the parties under the remainder of thisAgreement shall continue in full force and effect.     **Section 11.17.****No Recording**. The provisions hereof shall not constitute alien on the Property. Neither Purchaser nor its agents or representatives shall record or filethis Agreement or any notice or memorandum hereof in the New Haven Land Records, including withoutlimitation any lis pendens. If Purchaser breaches the foregoing provision, this Agreement shall,at Seller’s election, terminate, and Seller shall retain the Deposit in accordance with Section10.2 in addition to such other remedies Seller may have at law or in equity. Purchaser herebyirrevocably appoints Seller as its true and lawful attorney-in-fact, coupled with an interest, forthe purpose of executing and recording such documents and performing such other acts as may benecessary to terminate any recording or filing of this Agreement in violation of this provision.     **Section 11.18.****No Implied Agreement**. Neither Seller nor Purchaser shall haveany obligations in connection with the transaction contemplated by this Agreement unless each ofSeller and Purchaser, each acting in its sole discretion, elects to execute and deliver thisAgreement to the other parties. No correspondence, course of dealing or submission of drafts orfinal versions of this Agreement between Seller and Purchaser shall be deemed to create any bindingobligations in connection with the transaction contemplated hereby, and no contract or obligationon the part of Seller or Purchaser shall arise unless and until this Agreement is fully executed byeach of Seller and Purchaser. Once executed and delivered by Seller and Purchaser, this Agreementshall be binding upon them notwithstanding the failure of Escrow Agent or any broker or otherPerson to execute this Agreement.     **Section 11.19.****Environmental Release by Purchaser**. Without limiting anyprovision in this Agreement, Purchaser, for itself and any of its successors and assigns and theiraffiliates, hereby irrevocably and absolutely waives its right to recover from, and foreverreleases and discharges, and covenants not to file or otherwise pursue any legal action (whetherbased on contract, statutory rights, common law or otherwise) against, any Seller Party withrespect to any and all suits, actions, proceedings, investigations, demands, claims, liabilities,obligations, fines, penalties, liens, judgments, losses, injuries, damages, settlement expenses orcosts of whatever kind or nature, whether direct or indirect, known or unknown, contingent orotherwise (including any action or proceeding brought or threatened or ordered by any governmentalauthority), including, without limitation, attorneys’ and experts’ fees and expenses, andinvestigation and remediation costs that may arise on account of or in any way be connected withany Property or any portion thereof including, without limitation, the physical, environmental andstructural condition of the Property or any law or regulation applicable thereto, or any othermatter relating to the use, presence or discharge of Hazardous Materials on, under, in, above orabout the Property. For purposes of this Agreement, the term “Hazardous Materials” meansany substance, chemical, compound, product, solid, gas, liquid, waste, byproduct, pollutant,contaminant or other material that is hazardous, toxic, ignitable, corrosive, carcinogenic orotherwise presents a risk of danger to human, plant or animal life or the environment or that isdefined, determined or identified as such in any federal, state or local law, rule or regulation(whether now existing or hereafter enacted or promulgated) and any judicial or administrative orderor judgment, in each
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case relating to the protection of human health, safety and/or the environment, including, butnot limited to, any materials, wastes or substances that are included within the definition of (A)“hazardous waste” in the federal Recourse Conservation and Recovery Act; (B) “hazardoussubstances” in the federal Comprehensive Environmental Response, Compensation and LiabilityAct; (C) “pollutants” in the federal Clean Water Act; (D) “toxic substances” in thefederal Toxic Substances Control Act; (E) “oil or hazardous materials” in the laws orregulations of any state or commonwealth, and (F) any substance, material, waste, pollutant orcontaminant listed or defined as hazardous or toxic under any Environmental Law. The term“Environmental Laws” includes without limitation the Resource Conservation and Recovery Act and theComprehensive Environmental Response Compensation and Liability Act and other federal lawsgoverning the environment as in effect on the date of this Agreement, together with theirimplementing regulations, guidelines, rules or orders as of the date of this Agreement, and allstate, regional, county, municipal and other local laws, regulations, ordinances, rules or ordersthat are equivalent or similar to the federal laws recited above or that purport to regulateHazardous Materials. The provisions of this Section 11.19 shall survive the Closing or anytermination of this Agreement.     **Section 11.20.****Regulation S-X**. Seller shall, and shall request that theiraccountants, assist Purchaser, at Purchaser’s request and sole cost and expense (which costs andexpenses Purchaser covenants to pay promptly when due), by providing information relating to theProperty and its operation that may be reasonably necessary for Purchaser to produce the financialstatements required under Rule 3-14 of regulation S-X of the U.S. securities laws (includingproviding a letter in the form attached hereto as Schedule 11.20). In addition to theabove, Seller shall otherwise reasonably cooperate with Purchaser concerning the foregoing.Subject to Seller’s obligations with respect to its representations and warranties hereunder,Purchaser agrees to indemnify the Seller Parties and hold them harmless from and against any andall Claims arising out of the preparation or use by Purchaser of any such information provided bySeller or Seller’s accountants pursuant to this Section 11.20 (but excluding any Claimsarising out of the mere discovery of information by Purchaser). The provisions of this Section11.20 shall survive the Closing or any termination of this Agreement.     **Section 11.21.****Indemnification Procedures**.     (a) For purposes of this Section 11.21 the term “Asserting Party” shall meanthe party against whom a Claim is asserted and who seeks indemnification under this Agreement, andthe term “Defending Party” shall mean the party from whom indemnification is sought underthis Agreement.     (b) If a Claim is made against the Asserting Party which the Asserting Party believes to becovered by the Defending Party’s indemnification obligation under this Agreement, the AssertingParty shall promptly notify the Defending Party of the Claim and, in such notice, shall offer tothe Defending Party the opportunity to assume the defense of the Claim within ten (10) BusinessDays after receipt of the notice (with counsel reasonably acceptable to the Asserting Party). Ifthe Defending Party timely elects to assume the defense of the Claim, the Defending Party shall doso on behalf of both the Asserting Party and the Defending Party, unless both the
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Asserting Party and the Defending Party are named in the same litigation and representation ofboth of them by the same counsel would be inappropriate.     (c) If the Defending Party timely elects to assume the defense of the Claim, the DefendingParty shall have the right to settle the Claim on any terms it considers reasonable as long as thesettlement shall not require the Asserting Party to render any performance or pay any considerationwithout its consent and provides for an unconditional release from all liability with respect tosuch Claim of the Asserting Party.     (d) If the Defending Party fails timely to elect to assume the defense of the Claim, or if theDefending Party timely elects to assume the defense of the Claim but thereafter fails to defend theClaim with diligence and continuity, the Asserting Party shall have the right, after giving priorwritten notice to the Defending Party, to take over the defense of the Claim and to settle theClaim on any terms it considers reasonable. Any such settlement shall be valid as against theDefending Party.     (e) If the Defending Party assumes the defense of a Claim, the Asserting Party may employ itsown counsel but such employment shall be at the sole expense of the Asserting Party. If theDefending Party assumes the defense of a Claim but the same counsel may not represent both theAsserting Party and the Defending Party, or if the Defending Party fails timely to assume thedefense of the Claim or, after having elected to assume the defense fails to defend the Claim withdiligence and continuity, the Asserting Party may employ its own counsel and such employment shallbe at the sole expense of the Defending Party.     (f) Whether or not the Defending Party elects to assume the defense of a Claim, the DefendingParty shall cooperate with the Asserting Party in the defense of the Claim. If the Defending Partyelects to assume the defense of a Claim, the Asserting Party will cooperate with the DefendingParty in such defense.     (g) If the Asserting Party is obligated to pay amounts for which it is entitled to beindemnified hereunder, then Defending Party shall be obligated, unless such amounts shall bereimbursed to the Asserting Party within ten (10) days of demand therefor, to pay interest on suchamounts thereafter until paid at a per annum rate equal to 2% above the rate announced as its“prime rate” by Citibank, N.A. (or any successor bank thereto).     (h) If the Asserting Party is obligated to perform repairs or other work in connection withany Claims for which it is entitled to indemnification hereunder then, except in the case of anyemergency situation which involves immediate threat of damage or injury to persons or property (asto which no such notice shall be required to be given until the earliest practicable opportunity),the Asserting Party shall give a written notice to Defending Party setting forth the general natureof such repairs or other work and, if the Defending Party fails to commence or, in the case of theforegoing emergency situation assume the continuation of such repairs or other work within ten (10)days after such written notice or, having commenced such repairs or other work, fails to diligentlyprosecute such repairs or other work to completion, then such Asserting Party shall be entitled to(and shall at all times) perform such repair or other work in a manner
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which a reasonable and prudent owner of properties similar to the Property located where suchProperty is located would cause such work to be performed.     (i) The provisions of this Section 11.21 shall survive the Closing or termination ofthis Agreement for so long as and be applicable to any indemnity herein that survives the Closingor termination of this Agreement.     **Section 11.22.****Existing Loan**.     Purchaser may elect to assume Seller’s existing mortgage financing with respect to the RealProperty. Seller will reasonably cooperate with Purchaser (at no cost to Seller) regarding suchefforts. If Purchaser so assumes such financing, then (a) Purchaser shall receive a credit for theprincipal amount of such loan, interest accrued thereon and unpaid through the Closing Date and anyother amounts due and payable, but unpaid, on the Closing Date allocable to such loan and (b)Seller shall receive a credit (and Purchaser shall be debited) for all amounts in reserve and/orimpound accounts held by the lender under such financing as of the Closing Date, to the extent thatall of Seller’s rights in such amounts are transferred to the Purchaser in connection with suchassumption. In connection with any such assumption, prior to Closing Seller shall be presentedwith evidence reasonably acceptable to Seller that the obligations and liabilities of Seller andany guarantor of such loan shall be discharged and released effective as of the Closing.     **Section 11.23.****New Lender**. Seller (at no cost or liability to Seller or anySeller Parties) shall reasonably cooperate with Purchaser in Purchaser’s efforts to engage a NewLender in connection with the transactions contemplated herein. The foregoing shall in no regardconstitute a financing contingency.     **Section 11.24****.****Further Assurances****.**In case at any time after the ClosingDate any reasonable further action is necessary to carry out the purposes of this Agreement,including, without limitation, the transfer of the Property to Purchaser and obtaining allcustomary post-closing consents, Seller and Purchaser will take or cause to be taken such furtheraction (including the execution and delivery of such further instruments and documents) as theother party reasonably may request, all without further consideration.[The balance of this page has intentionally been left blank. Signature pages follow.]
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     **IN WITNESS WHEREOF**, Seller and Purchaser hereto have executed this Agreement as of the datefirst written above.           **SELLER**:               SP-K DEVELOPMENT, LLC, a Delaware limited liability company             By: Lyme Properties LLC, a New Hampshire limited liability company, its sole Manager               By: /s/ GEORGE LIGHTBODY                 Name: George Lightbody        Its: CFO        Date: 1/28, 2007           SP-B1 DEVELOPMENT, LLC, a Delaware limited liability company             By: Lyme Properties LLC, a New Hampshire limited liability company, its sole Manager               By: /s/ GEORGE LIGHTBODY                 Name: George Lightbody        Its: CFO        Date: 1/28, 2007           SP-A DEVELOPMENT, LLC, a Delaware limited liability company             By: Lyme Properties LLC, a New Hampshire limited liability company, its sole Manager               By: /s/ GEORGE LIGHTBODY                 Name: George Lightbody        Its: CFO        Date: 1/28, 2007
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           SP-B2 DEVELOPMENT, LLC, a Delaware limited liability company             By: Lyme Properties LLC, a New Hampshire limited liability company, its sole Manager               By: /s/ GEORGE LIGHTBODY                 Name: George Lightbody        Its: CFO        Date: 1/28, 2007           SP-D DEVELOPMENT, LLC, a Delaware limited liability company             By: Lyme Properties LLC, a New Hampshire limited liability company, its sole Manager               By: /s/ GEORGE LIGHTBODY                 Name: George Lightbody        Its: CFO        Date: 1/28, 2007           SP-E DEVELOPMENT, LLC, a Delaware limited liability company             By: Lyme Properties LLC, a New Hampshire limited liability company, its sole Manager               By: /s/ GEORGE LIGHTBODY                 Name: George Lightbody        Its: CFO        Date: 1/28, 2007
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           SP-J DEVELOPMENT, LLC, a Delaware limited liability company             By: Lyme Properties LLC, a New Hampshire limited liability company, its sole Manager               By: /s/ GEORGE LIGHTBODY                 Name: George Lightbody        Its: CFO        Date: 1/28, 2007           110 MUNSON STREET, LLC, a Delaware limited liability company             By: Lyme Properties LLC, a New Hampshire limited liability company, its sole Manager               By: /s/ GEORGE LIGHTBODY                 Name: George Lightbody        Its: CFO        Date: 1/28, 2007           SP-C DEVELOPMENT, LLC, a Delaware limited liability company             By: Lyme Properties LLC, a New Hampshire limited liability company, its sole Manager               By: /s/ GEORGE LIGHTBODY                 Name: George Lightbody        Its: CFO        Date: 1/28, 2007        LYME PROPERTIES LLC, a New Hampshire limited liability company           By: /s/ GEORGE LIGHTBODY             Name: George Lightbody      Its: CFO      Date: 1/28, 2007
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       **PURCHASER**:       BIOMED REALTY, L.P.       By: /s/ GARY A. KREITZER         Name: Gary A. Kreitzer    Title: Executive Vice President    Date: Jan 29, 2007       By: /s/ JONATHAN P. KLASSEN         Name: Jonathan P. Klassen    Title: Vice President    Date: Jan 29, 2007       **BROKER:**       Lyme Properties LLC       By: /s/ GEORGE LIGHTBODY         Name: George Lightbody    Its: CFO
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