**EXHIBIT 10.74****PURCHASE AND SALE AGREEMENT**     **THIS PURCHASE AND SALE AGREEMENT**(this “Agreement”) is entered into as of January 29,2007 by and among Rogers Street, LLC, a Delaware limited liability company and Lyme/HoustonDevelopment I, LP, a Delaware limited partnership and Kendall Square LLC, a Delaware limitedliability company (collectively, the “Seller”) and BioMed Realty, L.P., a Maryland limitedpartnership (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 officec/o Lyme Properties LLC, 101 Main Street, 18th floor, Cambridge, MA 02142 Attn: RobertL. Green, with a facsimile number of (617) 225-2133. Any written consent or approval given byKendall Square LLC shall be deemed to have been given by Seller.     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:     “Actual Remaining Cost” shall have the meaning set forth in Section 2.2(b).     “Architect” shall mean Arrowstreet, Inc.     “Architect’s Services” shall mean the Architect’s services listed on the attachedSchedule 7.2(b)(iv)-7(B).     “Architect’s Statement” shall have the meaning set forth in Section 6.1(e).     “Arrowstreet Agreement” shall mean that certain Agreement between Owner and Architecteffective as of January 17, 2000 between Rogers Street, LLC and the Architect, as amended.     “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).     “Assignment and Assumption of Ground Lease” shall mean an Assignment and Assumption ofGround Lease in substantially the form attached hereto as Schedule 8.2(b).
 

 
     “Assignment of Reserved Development Rights” shall have the meaning set forth inSchedule 4.1 attached hereto.     “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.     “CER Declaration” shall mean the Declaration of Covenants, Easements and Restrictionsof Kendall Square, dated as of July 17, 2002 and recorded in the Middlesex South District Registryof Deeds on July 19, 2002 as Instrument No. 983 in Book 35927, Page 246, as affected by Certificateof Confirmation by Kendall Square LLC, dated March 8, 2005 and recorded with the Middlesex SouthDistrict Registry of Deeds in Book 44817, Page 554.     “CER Declaration Estoppel Certificate” shall have the meaning set forth in Section6.1(i).     “Certificate” shall have the meaning set forth in Section 6.1(k).     “CES” shall mean Commonwealth Energy System.     “CES Documents” shall mean the following agreements between Kendall Square LLC (or itspredecessor in interest) and CES (or its predecessor in interest):Release and Indemnity Agreementdated as of August 18, 1998, Remediation Agreement dated as of August 18, 1998, as amended byAmendment Number One dated April 30, 2002, and those two side letters dated April 4, 2002 and April9, 2002.     “CES Estoppel” shall have the meaning set forth in Section 6.1(j).     “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 Statement” shall have the meaning set forth in Section 8.4(n).     “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.     “Construction Personal Property” shall mean materials or other items used inconnection with the construction of the Major Line Item Project that are or will become theproperty of Seller.     “Contract Substantial Completion Date” shall have the meaning set forth in theContractor’s Statement.     “Contractor” shall mean Linbeck, Inc.     “Contractor’s Services” shall mean the change orders, pending change orders anddisputed claims of Contractor listed on the attached Schedule 7.2(b)(iv)-7(A).     “Contractor’s Statement” shall have the meaning set forth in Section 6.1(d).     “Damage Cap” shall have the meaning set forth in Section 10.4.     “Deeds” shall mean the Massachusetts Deeds and the Texas Deed.     “Defending Party” shall have the meaning set forth in Section 11.21.     “Deposit” shall have the meaning set forth in Section 3.1.     “Disputed Architect Claims” shall have the meaning set forth in the Architect’sStatement.     “Disputed Contractor Claims” shall have the meaning set forth in the Contractor’sStatement.     “Due Diligence Materials” shall have the meaning set forth in Section 5.2.     “Effective Date” shall mean the date of this Agreement.     “Environmental Insurance Policies” shall mean the environmental insurance policieslisted on the attached Schedule 7.2(a).     “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.
 

 
     “Escrow Agreement” shall have the meaning set forth in Section 3.1.     “Hazardous Materials” shall have the meaning set forth in Section 11.19.     “Houston Real Property” shall mean the real property described on Exhibit A-1attached hereto and all buildings, structures and other improvements located thereon, together withand subject to all privileges, rights, easements and appurtenances belonging to or burdening suchproperty (including the Permitted Exceptions) and all right, title and interest of Seller, if any,in and to any streets, alleys, passages or other rights-of-way or appurtenances included in,adjacent to or used in connection with such property.     “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).     “Kendall Square Real Property” shall mean the real and other property respectivelydescribed on Exhibit A-2 attached hereto and all buildings, structures and otherimprovements located thereon, together with and subject to all privileges, rights, easements andappurtenances belonging to or burdening such property (including the Permitted Exceptions) and allright, title and interest of Seller, if any, in and to any streets, alleys, passages or otherrights-of-way or appurtenances included in, adjacent to or used in connection with such property.     “Kendall Square South Garage” shall mean that portion of the Kendall Square RealProperty described as such in Exhibit A-2.     “KS South Primary Condominium Estoppel Certificate” shall have the meaning set forthin Section 6.1(h)-1.     “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 and listed on theattached Schedule 7.2(b)(iv)-1 (parking leases and parking rights, other than thoseterminable upon no more than 90 days notice, are described in Schedule 4.1 and the DueDiligence Materials).     “Linbeck Contract” shall mean that certain construction contract dated March 15, 2006between Rogers Street, LLC and Contractor, as amended.     “Listed Permits” shall mean the licenses, permits, approvals, certificates andentitlements respectively listed on Schedule 7.2(b)(iv)-6 attached hereto.     “Major Event” shall have the meaning set forth in Section 6.3(a).
 

 
     “Major Line Item” shall have the meaning set forth in Section 2.2(b).     “Major Line Item Contracts” shall mean the Linbeck Contract, the Arrowstreet Agreementand any contract with any Person on account of the construction of the Major Line Item Projectunder which more than One Hundred Thousand Dollars ($100,000) remains to be paid as of theEffective Date.     “Major Line Item Project” shall mean the improvements to be constructed on a portionof the Rogers Street Real Property located at 301 Binney Street in Cambridge, Massachusetts.     “Massachusetts Deeds” shall mean a quitclaim deed in the form attached hereto asSchedule 8.2(a)-1 and a unit deed in the form attached hereto as Schedule 8.2(a)-2.     “Master Deed” shall mean the KS South Primary Condominium Master Deed, dated November5, 2003, recorded in the Middlesex South District Registry of Deeds on November 6, 2003 asInstrument No. 1337 in Book 41380, Page 431, as the same may be amended from time to time.     “Microbia Documents” shall have the meaning set forth in Section 6.4(a).     “Miscellaneous Consultant Agreements” shall mean the contracts and agreements that arerespectively listed 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.     “Non-Refundable Deposit” shall have the meaning set forth in Section 3.1.     “Notice of Right of First Offer” shall have the meaning set forth in Schedule4.1 attached hereto.     “Other Matters” shall mean the contracts and matters that are respectively listed onthe attached Schedule 7.2(b)(iv)-3.     “Parcel E-1H” shall mean those premises collectively described as the “Retail Unit”and the “Health Club Unit” in the Turnkey Space Agreement.     “Parcel E East Development Rights” shall mean the right to develop approximately135,530 square feet (as defined in applicable Cambridge zoning ordinances) of space in accordancewith the Notice of Right of First Offer, all of which may be developed on so-called
 

 
Parcel E East and/or some of which may be developed on so-called Parcel G (as such terms aredefined in the Special Permit).     “Permits” shall mean any licenses, permits, approvals, certificates or entitlementsissued in connection with the improvements that Seller has constructed on the Real Property(including, but not limited to, the Major Line Item Project), 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 Major Line Item Contracts, the Miscellaneous ConsultantAgreements, the Property Management Agreements, the Master Deed, the CER Declaration or any OtherMatters to be assigned to Purchaser under this Agreement; (e) the lien of general real estatetaxes, personal property taxes and all water, sewer, utility, trash and other similar charges andassessments which are not yet due and payable; (f) any lien, encumbrance or governmental obligationwhich either affects solely the property of a tenant under a Lease or is the obligation of suchtenant to discharge, cure or comply with; (g) all laws, regulations and ordinances restrictionsincluding, without limitation, all environmental, use, building and zoning laws affecting theProperties or the ownership, use or operation thereof now in effect or which may be in force andeffect on the Closing Date with respect to such Properties; (h) any notice of contract; (i) theTwining Notice (including, without limitation, any notice delivered by Seller and any exercise byTwining thereunder), (j) the matters generally described in Section 6.10 and (k) allmatters (other than Seller Mortgages) that the Title Company is willing to insure over to thereasonable satisfaction of Purchaser without material additional premium or indemnity (other thanadditional premium or indemnity that Seller in its sole discretion elects to pay or give). Withoutlimitation, Permitted Exceptions include all of the matters respectively referred to inSchedule 4.1 attached. The notice of lease (as amended) and lease referred to therein setforth as Item #36 in such Schedule 4.1 shall be terminated at Closing, and shall not be a PermittedException, unless Purchaser assumes Seller’s existing mortgage financing with respect to theKendall Square South Garage.     “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 Real Property, the MajorLine Item Contracts, the Miscellaneous Consultant Agreements, the Property Management Agreements,the Master Deed, the CER Declaration, the Environmental Insurance Policies, the Other Matters,matters referred to in Schedule 4.1, the Brokerage Agreements, the Plans andSpecifications, the Principal Guaranty, the Thypin Rent Dispute and the Thypin EnvironmentalArbitration, any assignable rights that each Seller may have in any verbal agreements relating tothe Real Property, the tangible personal property used or to be used in connection with the RealProperty, including the tangible personal property listed on the attached Schedule7.2(c)(v), the Construction Personal Property and in all surveys, blue prints, drawings andother documentation for or with respect to the Property; all marketing artwork, booklets, manualsand promotional and advertising materials concerning the Property (including any websites,photographs, videos or other tangible or intellectual property concerning the Property) in eachcase to the extent available and in the possession and control of Seller; all tenant data,correspondence with past, present and prospective tenants, vendors suppliers and utility companiesin each case to the extent available and in the possession and control of Seller; such otherexisting books, records and documents used solely in connection with the construction or operationof the Real Property to the extent available and in the possession and control of Seller; allintellectual property with respect to the Real Property, including but not limited to, trade namesand trademarks associated with the Real Property or by which the Real Property is commonly known ordesignated, and all claims and causes of action with respect to any of the foregoing arising fromand after the Closing; provided, however, that Seller (x) makes no representations or warrantieswhatsoever with respect to any of the Personal Property (except as and to the extent expressly setforth in Section 7.2) and (y) Purchaser acknowledges and agrees that Seller and/or theSeller Parties may use photographs or other reproductions of the Property after the Closing formarketing or other reasonable purposes. For the avoidance of doubt, Purchaser expresslyacknowledges that trademarks, trade names, copyrights or other intellectual property in and to thelegal or trade names of any direct or indirect owner of Seller or Assignor, including withoutlimitation the names “Lyme,” “Lyme Properties,” and “Rogers Street,” (but excluding the name“Kendall Square”) shall not be transferred from Seller to Purchaser, nor shall the following betransferred or conveyed as Personal Property: (i) any information or documents related to thetransaction of which this Agreement is a part, (ii) any projections and other internalmemoranda or materials, (iii) financial statements of Seller, appraisals, budgets, strategic plansfor the Real Property, internal analyses and submissions relating to Seller’s obtaining of internalauthorizations and the like, (iv) any attorney and accountant work product or any other materialssubject to any legal privilege in favor of Seller, (v) any interest rate protection “rate swap”agreements to which any Seller is a party (including without limitation that certain ISDA MasterAgreement dated September 19, 2006 between SMBC Derivative Products Limited and Rogers Street, LLC)or (vi) any OCIP insurance policy or policies (including security deposits associated therewith)with respect to the Kendall Square Real Property or the Rogers Street Real Property.     “Plans and Specifications” shall mean the plans and specifications with regard to theconstruction of improvements on the Rogers Street Real Property, a list of which is attached heretoas Schedule 7.2(b)(vi).
 

 
     “Post-Closing Escrow Agreement” shall have the meaning set forth in Section10.5.     “Post-Closing Escrow Funds” shall have the meaning set forth in Section 10.5.     “Principal Guaranty” shall mean that guaranty dated November 5, 2003 given byPrincipal Life Insurance Company to Kendall Square LLC related to a certain Site Work Payment andto Parcel E-1H.     “Property” shall mean the Real Property and the Personal Property.     “Property Management Agreements” shall mean the contracts and agreements that arelisted on the attached Schedule 7.2(b)(iv)-8.     “Property Manager” shall mean the counterpart of Seller under each of the PropertyManagement Agreements.     “Property Manager’s Statement” shall have the meaning set forth in Section6.1(g).     “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 (a) an affirmative assurance thatPurchaser will succeed to all existing rights of the declarant under the Master Deed and of thedeveloper under the CER Declaration, in form and substance reasonably acceptable to Purchaser and(b), the following, to the extent such endorsements are generally available for real property suchas the Real Property in the Commonwealth of Massachusetts: (1) owner’s comprehensive; (2) access;(3) “same as” survey; (4) subdivision; (5) zoning 3.1; (6) deletion of standard mechanic’s lienexception 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 Houston Real Property, the Kendall Square Real Propertyand the Rogers Street Real Property.     “Reconciliation Amount” shall have the meaning set forth in Section 2.2(c).
 

 
     “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.     “Remaining Contract Amount” shall have the meaning set forth in the Architect’sStatement.     “Remaining GMP Amount” shall have the meaning set forth in the Contractor’s Statement.     “Remaining Site Work Payment” shall have the meaning set forth in Schedule6.1(h)-2.     “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 Real Propertyincluding the reports listed on the attached Schedule 7.2(b)(iv)-5. The Reports areConfidential Information.     “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.     “Rogers Street Ground Landlord” shall mean the landlord under the Rogers Street GroundLease.     “Rogers Street Ground Landlord’s Consent to Assignment” shall have the meaning setforth in Section 6.1(f).     “Rogers Street Ground Lease” shall mean the ground lease described as such inExhibit A.     “Rogers Street Ground Lease Estoppel Provisions” shall have the meaning set forth inSection 6.1(c).     “Rogers Street Real Property” shall mean the leasehold described on ExhibitA-3 attached hereto and all buildings, structures and other improvements located thereon,together with and subject to all privileges, rights, easements and appurtenances belonging to orburdening such property (including the Permitted Exceptions) and all right, title and interest ofSeller, if any, in and to any streets, alleys, passages or other rights-of-way or appurtenancesincluded in, adjacent to or used in connection with such property.     “Science Park Property” shall mean the real and personal property of affiliates ofSeller at Science Park at Yale, New Haven, Connecticut.     “Science Park Purchase and Sale Agreement” shall mean that certain Real EstatePurchase and Sale Agreement with respect to the Science Park Property, dated as of even dateherewith, by and among Purchaser and affiliates of Seller.
 

 
     “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 each oftheir 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.     “Special Permit” shall have the meaning set forth in Schedule 7.2(b)(iv)-6.     “Statements” shall mean, collectively, the Contractor’s Statement and the Architect’sStatement.     “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.     “Tenant Estoppel Certificate” shall have the meaning set forth in Section6.1(c).     “Tenants” shall mean the tenants under the Leases at the Property.     “Texas Deed” shall mean a special warranty deed from Lyme/Houston Development I, LP toPurchaser in the form attached hereto as Schedule 8.2(a)-3.     “Threshold Amount” shall have the meaning set forth in Section 10.1.
 

 
     “Thypin Environmental Arbitration” shall have the meaning set forth in Schedule7.2(b).     “Thypin Guaranty Indemnity” shall mean an indemnification in the form attached asSchedule 8.3(j).     “Thypin Rent Dispute” shall have the meaning set forth in Schedule 7.2(b).     “Title Commitments” shall mean commitments in customary form evidencing the TitleCompany’s commitment to issue a Title Policy 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 Policy” shall mean an ALTA Owner’s Policy of title insurance, with extendedcoverage (i.e., with ALTA General Exceptions deleted), dated as of the date and time of therecording of the Deeds and of the recording of the Assignment and Assumption of Ground Lease in theamount of the allocated Purchase Price for the respective Real Property, insuring Purchaser as (a)owner of good, marketable and indefeasible fee simple title (or in the case of the Rogers StreetReal Property, good and marketable leasehold title) to respective Real Property and (b) declarantunder the Master Deed and developer under the CER Declaration, subject only to the PermittedExceptions and including the Purchaser’s Endorsements (provided that any Title Policy with respectto Real Property located in the State of Texas shall be issued on Form T-1 promulgated by the TexasDepartment of Insurance and not include any Purchaser’s Endorsements other than and endorsementwith respect to access and an endorsement in the form of Form T-19.1 promulgated by the TexasDepartment of Insurance).     “Turnkey Estoppel Certificate” shall have the meaning set forth in Section6.1(h).     “Turnkey Space Agreement” shall have the meaning set forth in Schedule7.2(b)(iv)-3 attached hereto.     “Turnkey Space Agreement Remaining Amount” shall have the meaning set forth inSchedule 6.1(h)-3.     “Twining” shall have the meaning set forth in Section 6.6.     “Twining Estoppel Certificate” shall have the meaning set forth in Section6.1(h).     “Twining Ground Lease” shall mean that Residential Project Development Ground Lease,Parcel E – West, Kendall Square, Cambridge, MA, between Kendall Square LLC as
 

 
landlord and Twining as tenant dated as of November 5, 2003, notice of which is recorded withthe Middlesex South District Registry of Deeds in Book 41380, Page 550.     “Twining Notice” shall have the meaning set forth in Section 6.6.     “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(l).     “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, the 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 Four Hundred Ninety Million Dollars ($490,000,000), plus or minus the ReconciliationAmount described below (the “Purchase Price”). Subject to the adjustments andapportionments set forth in this Agreement, the Purchase Price shall be paid on the Closing Date bywire transfer of immediately available federal funds to such account(s) of Seller as Sellerdesignates in writing to Purchaser. Seller and Purchaser agree that the Purchase Price shall beallocated as follows:        (1) Rogers Street Real Property: $348,000,000 (2) Houston Real Property $9,000,000 and(3) Kendall Square Real Property $133,000,000.      With respect to the allocation of the Purchase Price to the Kendall Square Real Property, thesum of Thirteen Million Six Hundred Thousand Dollars ($13,600,000) has been allocated to the ParcelE East Development Rights and the sum of Six Million Dollars ($6,000,000) has been allocated toParcel E-1H. The foregoing allocation is not intended and shall not be construed to allow Sellerto sell or Purchaser to buy less than all of the Property.     (b) The Purchaser and the Seller acknowledge and agree that portions of the Major Line ItemProject are still under construction. Accordingly, the Purchaser and Seller have agreed upon theamounts that remain to be expended with respect to the line items (each such line item, a“Major Line Item”) set forth in Schedule 2.2(b). The Seller shall provide to thePurchaser, prior to the Closing, the following statements and Certificates corresponding to suchline items: (i) the Contractor’s Statement showing the Remaining GMP Amount with respect to theLinbeck Contract, (ii) the Architect’s Statement showing the Remaining Contract Amount with respectto the Arrowstreet Agreement, (iii) either (a) the estoppel certificates required under Section6.1(c) with respect to any Lease under which a tenant improvement allowance is provided (assuch
 

 
tenant improvement allowances are described in any such Lease) stating the amount of suchallowances that have been funded under such Leases as of the respective dates of such estoppelcertificates or (b) in the event that such estoppel certificates do not provide the amount of suchallowances that have been funded, then a Seller’s Estoppel Certificate setting forth such amountsas of the date of such certificate (and Seller shall provide reasonable back-up materials withrespect to any such amounts if a Seller’s Estoppel Certificate is given), (iv) either (a) theTurnkey Estoppel Certificate stating the amount of the Turnkey Space Agreement Remaining Amountthat remains to be paid or (b) in the event that the Turnkey Estoppel Certificate does not providethe amount of the Turnkey Space Agreement Remaining Amount that remains to be paid, then a Seller’sEstoppel Certificate setting forth such amount as of the date of such certificate (and Seller shallprovide reasonable back-up materials with respect to such amount if a Seller’s Estoppel Certificateis given) and (v) either (a) the Twining Estoppel Certificate stating the amount of the RemainingSite Work Payment that remains to be paid or (b) in the event that the Twining Estoppel Certificatedoes not provide the amount of the Remaining Site Work Payment that remains to be paid, then aSeller’s Estoppel Certificate setting forth such amount as of the date of such certificate (andSeller shall provide reasonable back-up materials with respect to such amount if a Seller’sEstoppel Certificate is given). Such Statements, estoppel certificates, statements or receiptsrespectively shall be the “Actual Remaining Cost” of the item in question.     (c) The “Reconciliation Amount” shall be arrived at as follows: 1. If the Remaining GMP Amount is greater than the corresponding line itemin Schedule 2.2(b), then the Purchase Price shall be decreased by thedifference; and if such Amount is less than such line item, then the Purchase Priceshall be increased by the difference;  2. If the Remaining Contract Amount is greater than the corresponding lineitem in Schedule 2.2(b), then the Purchase Price shall be decreased by thedifference; and if such Amount is less than such line item, then the Purchase Priceshall be increased by the difference;  3. If the amount of any tenant improvement allowances remaining to befunded under the Leases is greater than the corresponding line item in Schedule2.2(b), then the Purchase Price shall be decreased by the difference; and ifsuch amount is less than such line item the Purchase Price shall be increased bythe difference;  4. If the amount of the Turnkey Space Agreement Remaining Amount thatremains to be paid is greater than the corresponding line item set forth inSchedule 2.2(b), then the Purchase Price shall be decreased by thedifference; and if the Turnkey Space Agreement Remaining Amount that remains to bepaid is less than such line item, then the Purchase Price shall be increased by thedifference; and  5. If the amount of the Remaining Site Work Payment that remains to bepaid is greater than the corresponding line item in Schedule 2.2(b), thenthe Purchase Price shall be increased by the difference; and if such amount is lessthan such line item the Purchase Price shall be decreased by the difference.     (d) If Seller expends any funds with respect to any Major Line Items listed as (1) through (4)above following the applicable date of the document used to determine the Actual
 

 
Remaining Cost with respect to such Major Line Item, then reasonable evidence of suchexpenditures shall be provided to Purchaser and the Purchase Price shall be increased by the amountof such expenditures as part of the Reconciliation Amount.**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, Nine Million Dollars ($9,000,000.00), (ii) on the third (3rd) Business Day afterthe date of the expiration of the Study Period, if Purchaser fails to terminate this Agreement inaccordance with Section 5.2, Nine Million Dollars ($9,000,000) (individually orcollectively, as the case may be at any time, the “Deposit”), such that the total Depositat such time shall be Eighteen Million Dollars ($18,000,000). Five Million Dollars ($5,000,000) ofthe Deposit shall be the “Non-Refundable Deposit”, which shall be payable to Sellerpursuant to this Agreement. The Deposit shall be held by Escrow Agent in a segregated “moneymarket” interest bearing account pursuant to an escrow agreement (the “Escrow Agreement”)in the form attached 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 engineer reasonably acceptable to Purchaser; and (b) cause the TitleCompany to prepare and furnish Title Commitments to Purchaser and Seller for the Real Propertytogether with copies of all instruments referred to thereon as exceptions to title. Purchasershall deliver an original of
 

 
any Survey and a copy of the 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 withrespect to any part of the Real Property, then Purchaser shall waive any right to object to anymatter set forth in the Title Commitments or Surveys, as the case may be (but such waiver shallapply only with respect to such parts of the Real Property for which a Title Commitment or Surveywas not obtained), 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.     **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 the applicableTitle Commitment issued at Closing or affirmatively insures against the same in a manner reasonablyacceptable to Purchaser, in each case without any additional cost to Purchaser, whether suchinsurance is made available in consideration of payment, bonding, indemnity of Seller or otherwise,or (b) delivers (i) its own funds (or directs that a portion of the Purchase Price be delivered) inan amount needed to fully discharge any such matter or condition to the Title Company withinstructions 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 otherinvasive 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 any improvementslocated on the Real Property as are in Seller’s possession or control (collectively, the “DueDiligence Materials”) and to otherwise conduct such due diligence review of the Property andthe Major Line Item Project as Purchaser, in its absolute discretion, deems appropriate all at itssole cost. Where this Agreement uses words such as “made available to Purchaser”, “provided toPurchaser”, “disclosed to Purchaser” and the like, the presence of any information in the eRoomprior to the commencement of the Restricted Period shall mean that such information was madeavailable, 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 elected) to assume,to the extent that the parties to such agreements agree to such assumption. Seller shall terminateat 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 then Purchaser shall beentitled to terminate this Agreement by giving written notice thereof to Seller prior to theexpiration of the Study Period, or if before the end of the Study Period this Agreement isterminated on account of Section 6.5(e) hereof, then in either such event theNon-Refundable Deposit shall promptly be paid to the Seller and the remainder of the Deposit shallpromptly be returned to Purchaser and, except for the Surviving Obligations, Seller and Purchasershall have no further obligations or liabilities to each other hereunder. If Purchaser fails togive such notice prior to the expiration of the Study Period, it shall conclusively be deemed tohave elected to waive its right to terminate this Agreement under this Section 5.2 andshall be obligated to purchase the Property in accordance with the terms hereof. If Purchaserterminates this Agreement under this Section 5.2 or under any other provision of thisAgreement, Purchaser shall promptly deliver to Seller copies of all reports, studies andinvestigations relating to the Property in Purchaser’s possession or under its control, the same tobe without warranty or representation by Purchaser or cost to Seller; provided, however, thatPurchaser shall have no obligation to deliver copies of any of the following to Seller: (i) anyinformation 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 ofPurchaser, appraisals, budgets, strategic plans for the Property prepared by or on behalf ofPurchaser, internal analyses and submissions
 

 
relating to Purchaser’s obtaining of internal authorizations and the like and (iv) anyattorney and accountant work product or any other materials subject to any legal privilege in favorof 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
 

 
not less than ten (10) Business Days prior written notice of the proposed disclosure, togetherwith a copy of such legal opinion.     **Section 5.5.****Other Documents**. Seller shall use commercially reasonableefforts (as defined below) to obtain the following prior to the commencement of the RestrictedPeriod: a Miscellaneous Consultant Consent from each party to the Miscellaneous ConsultantAgreements (other than the Seller or any predecessor-in-interest of Seller thereunder). Seller’ssole obligation with respect to the Miscellaneous Consultant Consents shall be to use commerciallyreasonable efforts to obtain the same (which, for purposes of this Section 5.5, shall meanrequesting the applicable document from the intended signatory thereto, and in no event shallinclude the expenditure of any funds, the amendment of any Miscellaneous Consultant Agreement orthe commencement, settlement or other resolution of any litigation, arbitration or similarproceeding), and Purchaser’s sole remedy with respect to Seller’s failure to obtain any suchdocument (or any issue disclosed in any such document) shall be to terminate this Agreement inaccordance 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) Seller shall have performed and complied in all material respects with all of the terms ofthis Agreement to be performed and complied with by such Seller, as the case may be, prior to or atthe 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 Propertythe Purchaser’s ability to use the Property for its intended uses; and (2) casualty or condemnation(which shall be governed by Section 6.3).     (c) Purchaser shall have received estoppel certificates (each, a “Tenant EstoppelCertificate”) from the following Tenants of the Rogers Street Real Property: Schering PloughResearch Institute and Microbia, Inc. or shall have been provided with a Seller’s EstoppelCertificate as permitted by the following sentence, in each case dated no earlier than theEffective Date (the “Estoppel Requirement”). If Rogers Street, LLC is unable to obtain an
 

 
estoppel certificate from Microbia, Inc., in order to meet the Estoppel Requirement, RogersStreet, LLC shall provide to the Purchaser substitute a Seller’s Estoppel Certificate with respectto such Lease. With respect to any Tenant for whom Rogers Street, LLC delivers a Seller’s EstoppelCertificate, Rogers Street, LLC’s statements therein shall be deemed to be representations andwarranties as though set forth under and subject to Article 7 of this Agreement. Rogers Street,LLC shall be entitled to continue to deal with such Tenant after Closing to attempt to obtain aTenant Estoppel Certificate from such Tenant. If Purchaser subsequently receives a Tenant EstoppelCertificate from any Tenant for whom Rogers Street, LLC has delivered a Seller’s EstoppelCertificate, Rogers Street, LLC shall thereupon be released from liability with respect to theSeller’s Estoppel Certificate given with respect to such Tenant to the extent that the informationcontained in the Tenant Estoppel Certificate obtained from the Tenant is materially consistent withthe information contained in Seller’s Estoppel Certificate. All Tenant Estoppel Certificatesrequired hereby shall be substantially in the form of the Seller’s Estoppel Certificate or, if theapplicable Lease provides a form tenant estoppel certificate that includes all of the materialprovisions of the Seller’s Estoppel Certificate, then in the form so provided in such Lease, as thecase may be; but such form may contain modifications and additions so long as it sets forth thematerial provisions of the form attached hereto. Except as provided in Section 6.1(k)below with respect to any Certificate delivered to Purchaser before the commencement of theRestricted Period, no Tenant Estoppel Certificate (or Seller’s Estoppel Certificate deliveredhereunder) shall count towards the Estoppel Requirement if it (A) discloses any material default byRogers Street, LLC or the respective Tenant that was not disclosed to Purchaser before thecommencement of the Restricted Period or (B) contains information that is materially inconsistentwith the information set forth in the Leases as made available to Purchaser before the commencementof the Restricted Period or (C) sets forth claims or disputes not disclosed to Purchaser before thecommencement of the Restricted Period, and in each case has a material adverse effect on the valueof the Rogers Street Real Property following the Closing; or (D) discloses any information thatwould make any Seller Representation untrue in any material respect. Tenant Estoppel Certificatesor Seller’s Estoppel Certificates that set forth claims, disputes or landlord defaults with respectto construction or other matters having an individual value of not more than Five Hundred ThousandDollars ($500,000) and an aggregate value (with respect to all Tenant Estoppel Certificates andSeller’s Estoppel Certificates) of not more than One Million Dollars ($1,000,000) and that wouldnot entitle the Tenant under the applicable Lease to terminate such Lease pursuant to the termsthereof as of the date of such Certificates shall conclusively be deemed not to have a materialadverse effect on the value of the Rogers Street Real Property following the Closing; but TenantEstoppel Certificates or Seller’s Estoppel Certificates that set forth claims, disputes or landlorddefaults with respect to construction or other matters having an individual value greater than FiveHundred Thousand Dollars ($500,000) or an aggregate value (with respect to all Tenant EstoppelCertificates and Seller’s Estoppel Certificates) greater than One Million Dollars ($1,000,000) orthat would entitle the Tenant under the applicable Lease to terminate such Lease pursuant to theterms thereof as of the date of such Certificates shall conclusively be deemed to have a materialadverse effect on the value of the Rogers Street Real Property following the Closing. Theforegoing deemed material adverse effect shall apply to all Tenant Estoppel Certificates andSeller’s Estoppel Certificates, whether the same are delivered to Purchaser before or following thecommencement of the Restricted Period (notwithstanding the provisions of Section 6.1(k)below). If any Tenant Estoppel Certificate or Seller’s Estoppel Certificate provided to Purchaser
 

 
prior to the Closing contains 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(k) below with respect to any Certificate delivered to Purchaser before thecommencement of the Restricted Period, an estoppel certificate that would otherwise satisfy therequirements for an acceptable estoppel certificate above, except for an alleged “landlord default”or any Tenant claims or disputes in excess of the foregoing amounts set forth in such certificateshall be deemed acceptable and shall count toward the Estoppel Requirement if (x) Rogers Street,LLC cures such asserted landlord default at or prior to the Closing, or (y) Rogers Street, LLC isdisputing such landlord default in good faith, such alleged default reasonably could not result ina termination of the respective Lease, and Rogers Street, LLC at its sole discretion deposits withthe Escrow Agent at the Closing funds reasonably adequate to effect the cure of such landlorddefault post-Closing and pay Tenant all amounts due under the Lease or that otherwise may be due tothe Tenant under applicable law, if any, as a result thereof, such funds to be held in escrow bythe Escrow Agent until such dispute is resolved in landlord’s favor or such landlord default iscured, and if such dispute is not resolved in landlord’s favor within ninety (90) days after theClosing, Purchaser may use and apply so much of the escrow funds as shall be necessary to cure theapplicable default and pay Tenant all amounts due under the Lease or that may otherwise be due tosuch person under applicable law, if any, as a result thereof, and any remaining balance shall bepromptly remitted to Rogers Street, LLC. Purchaser shall reasonably cooperate with Rogers Street,LLC’s efforts to effect such cure after the Closing at no material cost to Purchaser (unless suchcost is reimbursed to Purchaser).     (d) Purchaser shall have received a statement from the Contractor dated no earlier than theEffective Date substantially in the form attached hereto as Schedule 6.1(d) (the“Contractor’s Statement”) setting forth therein the Remaining GMP Amount with respect tothe Linbeck Contract (as such terms are defined in Schedule 6.1(d)). Such form may containmodifications and additions so long as it in substance sets forth the Remaining GMP Amount, and theother material provisions of the form attached hereto. Except as provided in Section6.1(k) below with respect to any Certificate delivered to Purchaser before the commencement ofthe Restricted Period, no Contractor’s Statement shall satisfy this condition if it (A) disclosesany material default by Rogers Street, LLC or the Contractor that was not disclosed to Purchaserbefore the commencement of the Restricted Period or (B) contains information that is materiallyinconsistent with the information set forth in the Linbeck Contract as made available to Purchaserbefore the commencement of the Restricted Period or (C) sets forth Disputed Contractor Claims(including Disputed Contractor Claims for an increase in the contract amount or an extension of anydeadline) not disclosed to Purchaser before the commencement of the Restricted Period that wouldeither (i) have a material adverse effect on the value of the Rogers Street Real Property with anaggregate value of more than One Million Dollars ($1,000,000) or (ii) increase the Purchaser’s costto complete the Major Line Item Project after the Closing by more than One Million Dollars($1,000,000) or (iii) cause the Contract Substantial Completion Date to occur more than one (1)month past August 31, 2007 or (D) discloses any information that would make any SellerRepresentation untrue in any material respect.
 

 
     (e) Purchaser shall have received a statement from the Architect dated no earlier than theEffective Date substantially in the form attached hereto as Schedule 6.1(e) (the“Architect’s Statement”) setting forth therein the Remaining Contract Amount with respectto the Arrowstreet Agreement (as such terms are defined in Schedule 6.1(e)). Such form maycontain modifications and additions so long as it in substance sets forth the Remaining ContractAmount, and the other material provisions of the form attached hereto. Except as provided inSection 6.1(k) below with respect to any Certificate delivered to Purchaser before thecommencement of the Restricted Period, no Architect’s Statement shall satisfy this condition if it(A) discloses any material default by Rogers Street, LLC or the Architect that was not disclosed toPurchaser before the commencement of the Restricted Period or (B) contains information that ismaterially inconsistent with the information set forth in the Arrowstreet Agreement as madeavailable to Purchaser before the commencement of the Restricted Period or (C) sets forth DisputedArchitect Claims not disclosed to Purchaser before the commencement of the Restricted Period thatwould either (i) have a material adverse effect on the value of the Rogers Street Real Propertywith an aggregate value of more than One Million Dollars ($1,000,000) or (ii) increase thePurchaser’s cost to complete the Major Line Item Project after the Closing by more than One MillionDollars ($1,000,000) or (iii) delay the completion of the Major Line Item Project by more thanthree (3) months or (D) discloses any information that would make any Seller Representation untruein any material respect.     (f) Purchaser shall have received from the Rogers Street Ground Landlord the “RogersStreet Ground Landlord’s Consent to Assignment” substantially in the form of Schedule6.1(f), which includes therein the “Rogers Street Ground Landlord Estoppel Provisions”,dated no earlier than the Effective Date. The Rogers Street Ground Landlord Estoppel Provisionsrequired hereby shall be substantially in the form set forth in the Rogers Street Ground Landlord’sConsent to Assignment; but such form may contain modifications and additions so long as it setsforth the material provisions of the form attached hereto. Except as provided in Section6.1(k) below with respect to any Certificate delivered to Purchaser before the commencement ofthe Restricted Period, no Rogers Street Ground Landlord Estoppel Provisions shall satisfy thiscondition to Closing if the same (A) discloses any material default by Rogers Street, LLC that wasnot disclosed to Purchaser before the commencement of the Restricted Period or (B) containsinformation that is materially inconsistent with the information set forth in the Rogers StreetGround Lease as made available to Purchaser before the commencement of the Restricted Period or (C)sets forth 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 Rogers Street RealProperty following the Closing; or (D) discloses any information that would make any SellerRepresentation untrue in any material respect. Rogers Street Ground Landlord Estoppel provisionsthat set forth other claims, disputes or defaults by Rogers Street, LLC not disclosed to Purchaserwith respect to construction or other matters having a value of not more than Five Hundred ThousandDollars ($500,000) and that would not entitle the landlord under the Rogers Street Ground Lease toterminate the Rogers Street Ground Lease pursuant to the terms thereof as of the date of suchCertificate shall conclusively be deemed not to have a material adverse effect on the value of theRogers Street Property following the Closing; but Rogers Street Ground Landlord Estoppel Provisionsthat set forth other claims, disputes or defaults by Rogers Street, LLC not disclosed to Purchaserwith respect to construction or other matters having a value greater than Five Hundred ThousandDollars ($500,000) or that would
 

 
entitle the landlord under the Rogers Street Ground Lease to terminate the Rogers StreetGround Lease pursuant to the terms thereof as of the date of such Certificates shall conclusivelybe deemed to have a material adverse effect on the value of the Rogers Street Real Propertyfollowing the Closing. The foregoing deemed material adverse effect shall apply to the RogersStreet Ground Lease Landlord Provisions, whether the same are delivered to Purchaser before orfollowing the commencement of the Restricted Period (notwithstanding the provisions of Section6.1(k) below). If any Rogers Street Ground Landlord’s Consent to Assignment (including theRogers Street Ground Landlord Estoppel Provisions contained therein) provided to Purchaser containsany information that is inconsistent with any Seller Representation, the Seller Representationshall be deemed modified by the information contained in such Certificate, and for the avoidance ofdoubt, 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(k) below with respect toany Certificate delivered to Purchaser before the commencement of the Restricted Period, anestoppel certificate that would otherwise satisfy the requirements for an acceptable estoppelcertificate above, except for an alleged tenant default under the Rogers Street Ground Lease or anylandlord claim or disputes under such Rogers Street Ground Lease in excess of the foregoing amountsset forth in such certificate shall be deemed acceptable and shall satisfy this condition toClosing if (x) Rogers Street, LLC cures such asserted tenant default at or prior to the Closing, or(y) Rogers Street, LLC is disputing such tenant default in good faith, such alleged undiscloseddefault reasonably could not result in a termination of the Rogers Street Ground Lease, and RogersStreet, LLC at its sole discretion deposits with the Escrow Agent at the Closing funds reasonablyadequate to effect the cure of such tenant default post-Closing and pay the Rogers Street GroundLandlord all amounts due under the Rogers Street Ground Lease or that otherwise may be due to theRogers Street Ground Landlord under applicable law, if any, as a result thereof, such funds to beheld in escrow by the Escrow Agent until such dispute is resolved in favor of Rogers Street, LLC,or such tenant default is cured, and if such dispute is not resolved in Rogers Street, LLC’s favorwithin nine (9) months after the Closing, Purchaser may use and apply so much of the escrow fundsas shall be necessary to cure the applicable default and pay the Rogers Street Ground Landlord allamounts due under the Rogers Street Ground Lease or that may otherwise be due to such landlordunder applicable law, if any, as a result thereof, and any remaining balance shall be promptlyremitted to Rogers Street, LLC. Purchaser shall reasonably cooperate with Rogers Street, LLC’sefforts to effect such cure after the Closing at no material cost to Purchaser (unless such cost isreimbursed to Purchaser). Without limiting the generality of the provisions of this Agreement,Purchaser acknowledges the matters disclosed by Seller on the attached Schedule 7.2(b) withrespect to the Thypin Rent Dispute and the Thypin Environmental Arbitration. Notwithstandinganything set forth in this Section 6.1(f), in no event shall any Rogers Street GroundLandlord Estoppel Provisions be deemed to not satisfy the requirements for an acceptable estoppelcertificate under this Section 6.1(f) due to the Rogers Street Ground Landlords’s statementof any such matters with respect to the Thypin Rent Dispute and/or the Thypin EnvironmentalArbitration (or any reservation of rights by the Rogers Street Ground Landlord on account thereof)that are expressly disclosed on the attached Schedule 7.2(b) or in the eRoom in the foldertitled “Thypin Issues”.     (g) Purchaser shall have received a statement from each Property Manager dated no earlier thanthe Effective Date, substantially in the form attached hereto as Schedule 6.1(g) (the“Property Manager’s Statement”) with respect to each Property Management Agreement to
 

 
which it is a party. Such form may contain modifications and additions so long as it insubstance sets forth the material provisions of the form attached hereto. Except as provided inSection 6.1(k) below with respect to any Certificate delivered to Purchaser before thecommencement of the Restricted Period, no Property Manager’s Statement shall satisfy this conditionif it (A) discloses any material default by Seller or such Property Manager that was not disclosedto Purchaser before the commencement of the Restricted Period or (B) contains information that ismaterially inconsistent with the information set forth in the applicable Property ManagementAgreement as made available to Purchaser before the commencement of the Restricted Period or (C)sets forth Disputed Manager Claims not disclosed to Purchaser before the commencement of theRestricted Period having an individual value greater than One Hundred Thousand Dollars ($100,000)or an aggregate value (with respect to all Property Manager’s Statements) greater than ThreeHundred Thousand Dollars ($300,000) or (D) discloses any information that would make any SellerRepresentation untrue in any material respect.     (h) Purchaser shall have received the following, each dated no earlier than the EffectiveDate, a statement from each grantee of rights under the Master Deed substantially in the formattached hereto as Schedule 6.1(h)-1 (the “KS South Primary Condominium EstoppelCertificate”) with respect to the Master Deed and the by-laws associated therewith, a statementfrom Twining with respect to the Twining Ground Lease and the Assignment of Reserved DevelopmentRights substantially in the form attached hereto as Schedule 6.1(h)-2 (the “TwiningEstoppel Certificate”) and a statement from Twining with respect to the Turnkey SpaceAgreement substantially in the form attached hereto as Schedule 6.1(h)-3 (the “TurnkeyEstoppel Certificate”). Such forms may contain modifications and additions (including, withoutlimitation, modifications and additions on account of the matters set forth in Section 6.10below) so long as they in substance set forth the material provisions of the applicable formattached hereto. Except as provided in Section 6.1(k) below with respect to anyCertificate delivered to Purchaser before the commencement of the Restricted Period, no Certificatedelivered under this Section 6.1(h) (nor any Seller’s Estoppel Certificate deliveredhereunder) shall satisfy this condition if it (A) discloses any material default by Seller that wasnot disclosed to Purchaser before the commencement of the Restricted Period or (B) containsinformation that is materially inconsistent with the information set forth in, as applicable, theMaster Deed, such by-laws, the Turnkey Space Agreement, the Twining Ground Lease or the Assignmentof Reserved Development Rights as made available to Purchaser before the commencement of theRestricted Period or (C) sets forth Disputed Claims not disclosed to Purchaser before thecommencement of the Restricted Period having an individual value greater than Two Hundred FiftyThousand Dollars ($250,000) or an aggregate value (with respect to all Certificates delivered underthis Section 6.1(h)) greater than Five Hundred Thousand Dollars ($500,000) or (D) disclosesany information that would make any Seller Representation untrue in any material respect. If oneor more such Certificates required under this Section 6.1(h) is not obtained by theClosing, at its election Seller shall either give a Seller’s Estoppel Certificate with respectthereto or adjourn the Closing for up to sixty (60) days in order to obtain such Certificate(s)(and if Seller does not so obtain such Certificate(s) during such sixty (60) day period, thenSeller shall provide a Seller’s Estoppel Certificate on account thereof). If Seller elects to givea Seller’s Estoppel Certificate, such Seller’s Estoppel Certificate shall be substantially in theform of Schedule 6.1(h)-1, Schedule 6.1(h)-2, or Schedule 6.1(h)-3, asapplicable, but shall also contain the following provisions: “This Estoppel is delivered by Sellerto Purchaser pursuant to a Real Estate Purchase
 

 
and Sale Agreement between Seller and Purchaser dated___, ___, 2007 (the “PurchaseAgreement”) which provides for a Seller Estoppel Certificate, and Seller’s liability hereundershall be subject to all time, dollar and other limitations on Seller’s liability set forth in thePurchase Agreement and to the other provisions of the Purchase Agreement that apply to a SellerEstoppel Certificate. Whenever a representation herein is qualified by the phrase “to Seller’sknowledge”, or by words of similar import, such knowledge shall be limited as provided in thePurchase Agreement. No officer, director, owner, manager, trustee, or agent of Seller shall haveany liability hereunder. As used herein, knowledge means the actual knowledge possessed by Selleras of the date hereof without having any duty to make, or having made, any inquiry.” Seller shallbe entitled to continue to deal with any applicable party thereunder after Closing to attempt toobtain a Certificate. If Purchaser subsequently receives a Certificate from any Person for whomSeller has delivered a Seller’s Estoppel Certificate, Seller shall thereupon be released fromliability with respect to the Seller’s Estoppel Certificate given with respect to such Person tothe extent that the information contained in the Certificate so obtained is materially consistentwith the information contained in the Seller’s Estoppel Certificate.     (i) Purchaser shall have received a statement from each parcel owner under the CER Declaration(other than with respect to Parcel A and Parcel D of Kendall Square, which are owned by affiliatesof Purchaser) dated no earlier than the Effective Date, substantially in the form attached heretoas Schedule 6.1(i) (the “CER Declaration Estoppel Certificate”) with respect to theCER Declaration. Such form may contain modifications and additions so long as it in substance setsforth the material provisions of the form attached hereto. Except as provided in Section6.1(k) below with respect to any Certificate delivered to Purchaser before the commencement ofthe Restricted Period, no CER Declaration Estoppel Certificate (nor any Seller’s EstoppelCertificate delivered hereunder) shall satisfy this condition if it (A) discloses any materialdefault by Seller that was not disclosed to Purchaser before the commencement of the RestrictedPeriod or (B) contains information that is materially inconsistent with the information set forthin the CER Declaration as made available to Purchaser before the commencement of the RestrictedPeriod or (C) sets forth Disputed Claims not disclosed to Purchaser before the commencement of theRestricted Period having an individual value greater than Two Hundred Fifty Thousand Dollars($250,000) or an aggregate value (with respect to all CER Declaration Estoppel Certificates)greater than Five Hundred Thousand Dollars ($500,000) or (D) discloses any information that wouldmake any Seller Representation untrue in any material respect. If one or more such CER DeclarationEstoppel Certificates is not obtained by the Closing, at its election Seller shall either give aSeller’s Estoppel Certificate with respect thereto or adjourn the Closing for up to sixty (60) daysin order to obtain such CER Declaration Estoppel Certificate(s) (and if Seller does not so obtainsuch CER Declaration Estoppel Certificate(s) during such sixty (60) day period, then Seller shallprovide a Seller’s Estoppel Certificate on account thereof). If Seller elects to give a Seller’sEstoppel Certificate, such Seller’s Estoppel Certificate shall be substantially in the form ofSchedule 6.1(i) but shall also contain the following provisions: “This Estoppel isdelivered by Seller to Purchaser pursuant to a Real Estate Purchase and Sale Agreement betweenSeller and Purchaser dated ___, ___, 2007 (the “Purchase Agreement”) which provides fora Seller Estoppel Certificate, and Seller’s liability hereunder shall be subject to all time,dollar and other limitations on Seller’s liability set forth in the Purchase Agreement and to theother provisions of the Purchase Agreement that apply to a Seller Estoppel Certificate. Whenever arepresentation herein is qualified by the
 

 
phrase “to Seller’s knowledge”, or by words of similar import, such knowledge shall be limitedas provided in the Purchase Agreement. No officer, director, owner, manager, trustee, or agent ofSeller shall have any liability hereunder. As used herein, knowledge means the actual knowledgepossessed by Seller as of the date hereof without having any duty to make, or having made, anyinquiry.” Seller shall be entitled to continue to deal with any applicable parcel owner(s) underthe CER Declaration after Closing to attempt to obtain a CER Declaration Estoppel Certificate. IfPurchaser subsequently receives a CER Declaration Estoppel Certificate from any Person for whomSeller has delivered a Seller’s Estoppel Certificate, Seller shall thereupon be released fromliability with respect to the Seller’s Estoppel Certificate given with respect to such Person tothe extent that the information contained in the CER Declaration Estoppel Certificate so obtainedis materially consistent with the information contained in the Seller’s Estoppel Certificate.     (j) Purchaser shall have received a statement from CES dated no earlier than the EffectiveDate, substantially in the form attached hereto as Schedule 6.1(j) (the “CESEstoppel”) with respect to the CES Documents. Such form may contain modifications andadditions so long as it in substance sets forth the material provisions of the form attachedhereto. Except as provided in Section 6.1(k) below with respect to any Certificatedelivered to Purchaser before the commencement of the Restricted Period, no CES Estoppel (nor anySeller’s Estoppel Certificate Delivered hereunder) shall satisfy this condition if it (A) disclosesany material default by Seller that was not disclosed to Purchaser before the commencement of theRestricted Period or (B) contains information that is materially inconsistent with the informationset forth in the CES Documents as made available to Purchaser before the commencement of theRestricted Period or (C) sets forth Disputed Claims not disclosed to Purchaser before thecommencement of the Restricted Period having a value greater than Five Hundred Thousand Dollars($500,000) or (D) discloses any information that would make any Seller Representation untrue in anymaterial respect. If the CES Estoppel is not obtained by the Closing, at its election Seller shalleither give a Seller’s Estoppel Certificate with respect thereto or adjourn the Closing for up tosixty (60) days in order to obtain the CES Estoppel (and if Seller does not so obtain such CESEstoppel during such sixty (60) day period, then Seller shall provide a Seller’s EstoppelCertificate on account thereof). If Seller elects to give a Seller’s Estoppel Certificate, suchSeller’s Estoppel Certificate shall be substantially in the form of Schedule 6.1(j) butshall also contain the following provisions: “This Estoppel is delivered by Seller to Purchaserpursuant to a Real Estate Purchase and Sale Agreement between Seller and Purchaser dated ___,___, 200___(the “Purchase Agreement”) which provides for a Seller Estoppel Certificate, andSeller’s liability hereunder shall be subject to all time, dollar and other limitations on Seller’sliability set forth in the Purchase Agreement and to the other provisions of the Purchase Agreementthat apply to a Seller Estoppel Certificate. Whenever a representation herein is qualified by thephrase “to Seller’s knowledge”, or by words of similar import, such knowledge shall be limited asprovided in the Purchase Agreement. No officer, director, owner, manager, trustee, or agent ofSeller shall have any liability hereunder. As used herein, knowledge means the actual knowledgepossessed by Seller as of the date hereof without having any duty to make, or having made, anyinquiry.” Seller shall be entitled to continue to deal with CES after Closing to attempt to obtaina CES Estoppel. If Purchaser subsequently receives a CES Estoppel, Seller shall thereupon bereleased from liability with respect to the Seller’s Estoppel Certificate given with
 

 
respect to CES to the extent that the information contained in the CES Estoppel so obtained ismaterially consistent with the information contained in the Seller’s Estoppel Certificate.     (k) If Seller is unable to obtain any of the documents described in Section 6.1 (c)through (j) above (each of the foregoing, a “Certificate”) or otherwise to meet anycondition to Purchaser’s obligation to perform, Seller shall have the option, by written notice toPurchaser, to extend the Closing Date from time to time for not more than sixty (60) days in theaggregate from the original Closing Date. Except as otherwise expressly set forth in Section6.1(c) above, in the event that any Certificate is delivered to Purchaser before thecommencement of the Restricted Period, and thereafter Purchaser does not terminate this Agreementpursuant to Section 5.2, then notwithstanding anything set forth in this Agreement to thecontrary, any such Certificate shall be deemed to satisfy any requirement applicable thereto setforth in this Agreement, and Purchaser shall have no right to object to the form, content orsubstance of such Certificate or any matter disclosed therein as not meeting the conditions forClosing and any such nonconformity shall be deemed waived. Seller shall use commerciallyreasonable efforts to obtain each of the Certificates.     (l) 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 other than differing Remaining GMP Amounts and Remaining Contract Amounts under theLinbeck Contract or the Arrowstreet Agreement (with respect to the Statements) or increased fundingof an applicable tenant improvement allowance (with respect to any Lease) and (y) such additionaldisclosure would cause such Updated Certificate not to comply with Section 6.1(c),(d), (e), (f), (g), (h), (i) or (j) (asapplicable), then such Updated Certificate shall be treated as an Update in accordance withSection 7.3(c), and Purchaser’s only remedy with respect thereto shall be to terminate thisAgreement pursuant to the terms of Section 7.3(c) prior to the expiration of the UpdateTermination Period applicable thereto.     (m) 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 Five MillionDollar ($5,000,000) threshold amount set forth in this Section 6.1(m)), the aggregateamount of all adverse matters disclosed in the Certificates to which a dollar amount is applicablein each such Certificate shall not exceed Five Million Dollars ($5,000,000).     (n) Upon satisfaction of the conditions set forth in the Title Commitment, the Title Companyis irrevocably committed to issue the Title Policy to Purchaser.     (o) The physical condition of the Property shall be substantially the same on the Closing Dateas on the Effective Date (except as a result of construction activities that are substantially inconformity with the Plans and Specifications made available to Purchaser during the Study Period),unless the alteration of said physical condition is the result of condemnation or fire or othercasualty, in which case the provisions of Section 6.3 shall govern.     (p) No proceeding shall have been commenced against any party included within Seller under thefederal Bankruptcy Code or any state law for relief of debtors.
 

 
     (q) As of the Closing Date, the Leases shall be in full force and effect and no default shallexist under any Lease.     (r) Each applicable party included within the term Seller shall have obtained all consents andapprovals set forth in Schedule 6.1(r), if any, except for such items as Purchaserreasonably determines 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.**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 percent(15%) of the Purchase Price allocable to the Real Property (a “Major Event”), Purchasershall have the option exercisable within ten (10) Business Days after Purchaser and Seller make adetermination or agree on such estimate either (a) to terminate this Agreement by written notice toSeller, whereupon all rights and obligations hereunder of each party shall cease and terminate andbe of no further force or effect except for the return of the Deposit to Purchaser and theSurviving Obligations, or (b) to elect to take title to the Real Property without any reduction in,abatement of, or credit against the Purchase Price (except as expressly set forth in Section6.3(b) below), notwithstanding such Condemnation, destruction or damage; if Purchaserfails to make either such election within such period, Purchaser shall be deemed to have electedoption (b). If the parties fail to agree to the reasonable estimate of the proceeds from suchCondemnation or the cost to repair the damage or destruction within thirty (30) days after thedate of the applicable Condemnation or casualty, then Seller and Purchaser may submit the disputeto the American Arbitration Association in Boston pursuant to the Expedited Procedures of theCommercial 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 all insurance proceeds with respect to such Major Event, net of theamount of the reasonable costs and expenses incurred by Seller (including, but not limited to,reasonable legal fees and closing costs under a sale in lieu of or in anticipation of the exerciseof a taking) in collecting same (“Net Proceeds”), and give Purchaser, without duplication,a credit against the Purchase Price in the amount of the Net Proceeds already received by Sellerprior to Closing (provided, however, Seller shall receive, without duplication, a credit againstsuch Purchaser credit for any such costs and expenses not recovered prior to Closing) and (y) therights to settle any Condemnation proceeding or the loss under all policies of insurance applicableto the Major Event, and Seller shall at Closing and thereafter execute and deliver to Purchaser allrequired proofs of loss, 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.     (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, except as set forth below with respect to the MicrobiaDocuments, Seller shall not enter into any new lease or any material modification of any Lease orlease (including the Rogers Street Ground Lease and the Twining Ground Lease) that would be bindingon Purchaser after Closing or grant any material consent or approval under any Lease or lease(including the Rogers Street Ground Lease and the Twining Ground Lease) which consent or approvalmust be requested in writing and delivered in writing in order to be effective without Purchaser’sprior written consent, which consent shall not be unreasonably withheld, conditioned or delayed;provided, however, that notwithstanding the foregoing, Seller shall not be required to obtainPurchaser’s consent to enter into any modification, renewal or extension of
 

 
any Lease or lease, or to grant any consent under any Lease or lease, to the extent that thesame is required pursuant to the applicable terms of the Lease or lease; provided, further, thatPurchaser may withhold its consent in its sole discretion if, assuming the Closing were to occur,any action could jeopardize BioMed Realty Trust, Inc.’s, a Maryland corporation (“Purchaser’sREIT Entity”), status as a real estate investment trust within the meaning of Sections 856through 860 of the Code or cause the Purchaser’s REIT Entity to be in receipt of income that doesnot constitute “rent from real property” within the meaning of Section 856(d) of the Code. Whenseeking such consent from Purchaser, Seller shall provide Purchaser with a description of theproposed transaction and, if Purchaser does not notify Seller in writing of its disapproval withintwo (2) Business Days, Purchaser shall be deemed to have consented to the transaction described insuch notice. If Purchaser disapproves such request, then Purchaser’s written notice shall specifyin reasonable detail the reasons for such disapproval. If the Closing occurs, Purchaser shallreimburse Seller at Closing for all Lease Expenses related to any new Lease or materialmodification of an existing Lease. Purchaser acknowledges receipt of a draft Fourth Amendment toLease for Microbia, Inc. dated as of January 7, 2007 for space at 320 Bent Street, Cambridge,Massachusetts and a draft Lease for Microbia, Inc. dated as of January 12, 2007 for space at 301Binney Street, Cambridge, Massachusetts (such amendment and lease collectively being the“Microbia Documents”). Notwithstanding the provisions of this Section 6.4(a),Purchaser has approved such drafts of the Microbia Documents and Purchaser’s consent shall not benecessary in connection with the execution thereof by Rogers Street, LLC so long as the final formsof such documents contain no material adverse changes to any terms set forth in the drafts of theMicrobia Documents that have been provided to the Purchaser.     (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 Major Line Item Contracts, Miscellaneous ConsultantAgreements, Property Management Agreements, the Master Deed, the CER Declaration, the EnvironmentalInsurance Policies, or Other Matters that would be binding on Purchaser after the Closing, or grantany material consent or approval under any of the Major Line Item Contracts which consent orapproval must be requested in writing and delivered in writing in order to be effective that wouldbe binding on Purchaser after Closing, without the written consent of Purchaser, which consentshall not be unreasonably withheld, conditioned or delayed; provided, however, that Purchaser’sconsent shall not be required with respect to any contract that is not binding on Purchaser or thatcan be terminated without penalty on not more than thirty (30) days prior written notice; provided,further, that Purchaser may withhold its consent in its sole discretion if, assuming the Closingwere to occur, any action could jeopardize Purchaser’s REIT Entity’s 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. If Purchaser does not notify Seller inwriting of its disapproval within two (2) Business Days after notice thereof from Seller, Purchasershall be deemed to have consented to such requested action. If Purchaser disapproves any suchrequest, then Purchaser’s written notice shall specify in reasonable detail the reasons for suchdisapproval. Without limitation of the foregoing, change orders and/or approvals for additionalarchitectural and engineering services approved under the Major Line Item Contracts (includingthose to implement Tenant improvements Seller as Landlord has agreed to implement under any Lease)shall be deemed non-material
 

 
modifications of such contracts that do not require the approval of Purchaser to the extentthe same are (x) reimbursable by Tenants under the Leases, (y) to be paid for out of a tenantimprovement allowance for which a balance remains under a Lease or (z) not reimbursable by Tenants,but have a value of One Hundred Thousand Dollars ($100,000) or less in each instance and OneMillion Dollars ($1,000,000) or less in the aggregate.     (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 and any contracts or other agreementsaffecting the Property (including, without limitation, the Major Line Item Contracts, theMiscellaneous Consultant Agreements, the Property Management Agreements, the Master Deed, the CERDeclaration, the Environmental Insurance Policies and the Other Matters), (iii) continue to insurethe Property substantially as it is currently insured, (iv) continue to pursue the development andconstruction of the Major Line Item Project in a diligent and prudent manner consistent with theMajor Line Item Contracts, the Miscellaneous Consultant Agreements and the Other Matters, (v) nottransfer any development rights under the Master Deed or the CER Declaration, and (vi) not take anyaction that would cause any of the Seller Representations to become inaccurate in any materialrespect or any of the covenants of Seller to be materially breached. Without limiting thegenerality of the foregoing, Seller shall pay all accounts payable, and any debts or obligationsowed by Seller relating to the Property when due (“when due,” “coming due” or likewords means the time for payment set forth in any contract, or if no time is set forth then withinthirty days (30) of the date when an invoice for payment is received by Seller).     (d) Seller shall not remove from the Real Property any Construction Personal Property or otherPersonal Property used in connection with the operation of the Real Property (other than as isprudent in the ordinary course of operating the Property) unless it is replaced with a comparableitem of equal quality and quantity as existed as of the time of such removal (but nothing hereinshall be deemed to make Seller responsible for the acts of others at the Real Property).     (e) Seller shall provide Purchaser with copies of all notices of default given under the MajorLine Item Contracts.     (f) 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.     (g) Seller shall provide Purchaser with copies of all written notices under the LinbeckContact or the Arrowstreet Agreement from, respectively, the Contractor and the Architect for theperiod after the Effective Date with respect to the Rogers Street Real Property or the constructionof the Major Line Item Project.
 

 
     (h) 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.     **Section 6.5**. **Science Park Agreement**. Purchaser and Seller herebyacknowledge and agree that (a) Purchaser and certain affiliates of Seller have this day enteredinto the Science Park Purchase and Sale Agreement with respect to the Science Park Property, (b) itshall be a condition precedent to the Closing hereunder that Purchaser and Seller close thepurchase and sale of the Science Park Property pursuant to the Science Park Purchase and SaleAgreement concurrently herewith, (c) it shall be a condition precedent to the closing of thepurchase and sale of the Science Park Property under the Science Park Purchase and Sale Agreementthat the Closing hereunder shall have occurred concurrently therewith, (d) in the event that eitherthe Closing or the Closing Date hereunder or the closing or the closing date under the Science ParkPurchase and Sale Agreement is adjourned or extended, the other automatically shall be so adjournedor extended, (e) in the event that this Agreement or the Science Park Purchase and Sale Agreementis terminated, the other automatically shall be terminated (and if both agreements are soterminated due to a termination by Purchaser pursuant to Section 5.2 of either suchagreement, then the Non-Refundable Deposit shall promptly be paid to Seller pursuant to Section5.2(c) of this Agreement), (f) a default by Purchaser under this Agreement or the Science ParkPurchase and Sale Agreement shall be considered a default by Purchaser under both such agreements(subject to all applicable remedies under each such agreement) and (g) a default by Seller underthis Agreement or such affiliates of Seller under the Science Park Agreement shall be considered adefault by Seller and such affiliates of Seller (as applicable) under both such agreements (subjectto all applicable remedies under each such agreement). Notwithstanding the foregoing, Seller, inSeller’s sole and absolute discretion, may elect to waive the conditions set forth in clause (b)above by providing written notice of such election to Purchaser, such that the Closing may occurhereunder without the closing of the purchase and sale of the Science Park Property pursuant to theScience Park Purchase and Sale Agreement, but in no event shall this Section 6.5 ever beconstrued to allow Seller to waive any closing condition in its favor such that Purchaser isrequired to close under the Science Park Purchase and Sale Agreement but is not permitted to closeunder this Agreement.     **Section 6.6**. **Twining Notice**. If not previously delivered, promptly afterthe Effective Date Seller shall deliver an offer substantially in the form attached as Schedule6.6 (the “Twining Notice”) pursuant to the Notice of Right of First Offer betweenSeller and TP/P Kendall Square LLC, a Delaware limited liability company (“Twining”),including proposing parking and other matters set forth therein, to trigger Twining’s right offirst offer under such Notice of Right of First Offer with respect to the Parcel E East DevelopmentRights, and in connection with the Twining Notice Seller may also request that Twining make anoffer to purchase Parcel E-1H (notwithstanding the fact that Twining has no right thereto undersuch Notice of Right of First Offer). In the event that Twining elects to purchase the Parcel EEast Development Rights and/or Parcel E-1H and closes its purchase thereof prior to Closing, thensuch parcel(s) or development rights shall not be conveyed to Purchaser hereunder and the PurchasePrice shall be decreased in accordance with the allocation(s) set forth with respect to suchparcel(s) or development rights in Section 2.2(a). In the event that (a) Twining does notelect to purchase the Parcel E East Development Rights and/or Parcel E-1H or (b) does elect topurchase the Parcel E
 

 
East Development Rights and/or Parcel E-1H but does not close its purchase thereof prior toClosing, Purchaser (as successor-in-interest of Kendall Square LLC) shall perform such transactionand upon the closing, if any, thereunder shall be entitled to payment from Twining on account ofTwining’s exercise thereof (and if Twining duly exercises its rights to so purchase the Parcel EEast Development Rights and/or Parcel E-1H, its deposit in connection therewith shall be assignedto and assumed by Purchaser at the Closing under this Agreement, and if Twining relinquishes suchdeposit, then Purchaser shall also be entitled to such deposit). In the event that Twining waivesor elects, or is deemed to have elected, not to exercise its rights to purchase any such parcel(s)or development rights, then Purchaser shall assume and perform the same following such waiver orelection by Twining. The provisions of this Section 6.6 shall survive the Closing.     **Section 6.7**. **Thypin Rent Dispute and Environmental Arbitration**. Purchasershall assume responsibility for the Thypin Rent Dispute and the Thypin Environmental Arbitrationfrom and after the Closing. Upon the Closing, Purchaser and Seller shall reasonably cooperate inpromptly transferring to Purchaser, and thereafter reasonably cooperating with each other, inPurchaser’s assumption of responsibility for the Thypin Rent Dispute and the Thypin EnvironmentalArbiration. Such cooperation shall include, without limitation, cooperation by Seller’s counselthat is currently representing Seller in connection with such matters and Seller’s continuingcooperation with Purchaser and Purchaser’s counsel with respect to furnishing responses todiscovery requests, assisting Purchaser with responses to interrogatories, furnishing testimony atdepositions and at trial and generally being available to Purchaser and its counsel to provideinformation with respect to such matters, all of the foregoing to be furnished without charge toPurchaser. By assuming the Thypin Environmental Arbitration, Purchaser shall only assume sucharbitration proceeding and matters related thereto, but shall not assume any additional obligationor liability with respect to environmental matters other than those obligations and liabilitiesthat Purchaser has either expressly assumed under this Agreement or assumes under applicable law onaccount of its ownership of the Property.     **Section 6.8**. **Twining Documents**. Twining is entitled to an amendment to theMaster Deed and a unit deed in accordance with the Assignment of Development Rights. Withoutlimiting the generality of any other provision of this Agreement, in the event that Sellerexecutes, delivers and records prior to Closing any such documents that are required to beexecuted, delivered and recorded under the Assignment of Development Rights, such actions shall not(x) constitute a default under this Agreement by Seller, (y) affect the Purchase Price or (z)affect any other obligation of Purchaser under this Agreement. Seller is entitled to a unit deedconveying Parcel E-1H in accordance with the Turnkey Space Agreement. In the event that suchconveyance occurs prior to Closing, subject to the provisions of Section 6.6 above, thenthe units constituting Parcel E-1H shall be a portion of the Property and, at Closing Seller shallprovide Purchaser with a unit deed for Parcel E-1H conveying such parcel to Purchaser in accordancewith this Agreement.**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 the other partyor any other Person acting by, under or through the other party. Purchaser acknowledges the legalsignificance of the foregoing and acknowledges that such agreement is a material inducement toSeller’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 analyses of theProperty as Purchaser, in its absolute discretion, may deem appropriate. PURCHASER IS PURCHASINGTHE PROPERTY “AS-IS, WHERE IS AND WITH ALL FAULTS” IN ITS PRESENT CONDITION, SUBJECT TO REASONABLEUSE, WEAR, TEAR, CONSTRUCTION ACTIVITIES AND NATURAL DETERIORATION BETWEEN THE DATE HEREOF AND THECLOSING 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 ANYLATENT OR PATENT DEFECTS IN THE PROPERTY OR (ii) HAVE MADE ANY REPRESENTATION WHATSOEVER REGARDINGTHE PROPERTY OR ANY PART THEREOF, THE CONSTRUCTION OR ANY OTHER THING RELATING TO THE SUBJECTMATTER OF THIS AGREEMENT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, AND (iii) PURCHASER, IN EXECUTING,DELIVERING AND PERFORMING THIS AGREEMENT, HAS NOT AND DOES NOT RELY UPON ANY STATEMENT,INFORMATION, OR REPRESENTATION TO WHOMSOEVER MADE OR GIVEN, WHETHER TO PURCHASER OR OTHERS, ANDWHETHER DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, MADE BY ANY PERSON, EXCEPT AS EXPRESSLY SETFORTH HEREIN. IN ADDITION TO THE FOREGOING, PURCHASER REPRESENTS THAT BEFORE THE EXPIRATION OF THESTUDY PERIOD PURCHASER WILL HAVE EXAMINED THE PROPERTY, THE REPORTS, THE DUE DILIGENCE MATERIALSAND SUCH CONSTRUCTION, DESIGN AND OTHER MATTERS AS IT DEEMS APPROPRIATE, AND WILL BE FAMILIAR WITHTHE PHYSICAL AND ENVIRONMENTAL CONDITION OF THE PROPERTY AND WILL HAVE CONDUCTED SUCH OTHERINVESTIGATION OF THE AFFAIRS AND CONDITION OF THE PROPERTY AS PURCHASER CONSIDERS APPROPRIATE.NEITHER SELLER, NOR ANY AFFILIATE OF SELLER, NOR ANY AGENT, DIRECT OR INDIRECT PARTNER, DIRECT ORINDIRECT MEMBER, EMPLOYEE OR REPRESENTATIVE OF THE FOREGOING HAVE MADE OR WILL BE ALLEGED TO HAVEMADE ANY ORAL OR WRITTEN REPRESENTATIONS, WARRANTIES, PROMISES OR GUARANTIES WHATSOEVER TOPURCHASER, WHETHER EXPRESS OR IMPLIED, AND, IN PARTICULAR, NO SUCH REPRESENTATIONS, WARRANTIES,PROMISES OR GUARANTIES HAVE BEEN MADE OR WILL BE MADE OR WILL BE ALLEGED TO HAVE BEEN MADE WITHRESPECT TO THE PHYSICAL CONDITION, CONSTRUCTION, DESIGN, ENVIRONMENTAL CONDITION OR OPERATION OFTHE PROPERTY, THE ACTUAL OR PROJECTED REVENUE AND EXPENSES OF THE PROPERTY, THE PERMITS, ZONING ANDOTHER LAWS, REGULATIONS AND RULES
 

 
APPLICABLE TO THE PROPERTY OR THE COMPLIANCE OF THE PROPERTY THEREWITH, THE CONSTRUCTION,DESIGN, CONDITION OR SAFETY OF THE PROPERTY, OR ANY IMPROVEMENTS THEREON OR ANY UTILITIES ANDSERVICES WITH RESPECT THERETO OR THE CONDITIONS OF ANY SOILS AND GEOLOGY, LOT SIZE, OR SUITABILITYOF THE PROPERTY OR ITS IMPROVEMENTS FOR A PARTICULAR PURPOSE, THE QUANTITY, QUALITY OR CONDITION OFANY PERSONAL PROPERTY OR FIXTURES, THE USE OR OCCUPANCY OF THE PROPERTY OR ANY PART THEREOF OR ANYOTHER MATTER OR THING AFFECTING OR RELATED TO THE PROPERTY OR THE TRANSACTIONS CONTEMPLATED HEREBY,EXCEPT AS, AND SOLELY TO THE EXTENT SPECIFICALLY SET FORTH HEREIN. EXCEPT AS, AND SOLELY TO THEEXTENT, SPECIFICALLY SET FORTH HEREIN, NEITHER SELLER, NOR ANY AGENT, DIRECT OR INDIRECT PARTNER,DIRECT OR INDIRECT MEMBER, EMPLOYEE OR REPRESENTATIVE OF THE FOREGOING HAVE MADE OR WILL MAKE ANYORAL OR WRITTEN REPRESENTATIONS, WARRANTIES, PROMISES OR GUARANTIES WHATSOEVER TO PURCHASER,WHETHER EXPRESS OR IMPLIED, AND, IN PARTICULAR, THAT NO SUCH REPRESENTATIONS, WARRANTIES, PROMISESOR GUARANTIES HAVE BEEN MADE OR WILL BE ALLEGED TO HAVE BEEN MADE WITH RESPECT TO THE TRUTH,ACCURACY OR COMPLETENESS OF ANY MATERIALS, REPORTS, DATA OR OTHER INFORMATION, INCLUDING WITHOUTLIMITATION THE 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 CONSTRUCTION OF THE PROPERTY MAY NOT BE INCOMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT OF 1990, AS AMENDED AND OTHER LAWS, AND SELLERMAKES NO REPRESENTATIONS WITH RESPECT TO SAME. WITHOUT LIMITING THE FOREGOING, NEITHER SELLER, NORANY AGENT, DIRECT OR INDIRECT PARTNER, DIRECT OR INDIRECT MEMBER, EMPLOYEE OR REPRESENTATIVE OF THEFOREGOING HAS MADE ANY REPRESENTATION OR WARRANTY WHATSOEVER REGARDING HAZARDOUS MATERIALS OF ANYKIND OR NATURE ON, ABOUT OR WITHIN THE PROPERTY OR THE PHYSICAL CONDITION OF THE PROPERTY ANDPURCHASER AGREES TO ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED TO,CONSTRUCTION OR DESIGN DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS MAY NOT HAVE BEENREVEALED BY PURCHASER’S INVESTIGATIONS OR ANY OTHER INFORMATION PURCHASER HAS REVIEWED.NOTWITHSTANDING ANY OF THE FOREGOING, THE FOREGOING REPRESENTATION OF PURCHASER IS NOT INTENDED TOLIMIT, AND IS SUBJECT TO, 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)(vi), (b)(vii) or (c)(v) ofSection 7.2; and provided further that the foregoing shall not diminish Purchaser’s rightsunder Section 5.2. Notwithstanding anything to the contrary set forth in this Agreement,if prior to the Closing Purchaser has or obtains knowledge (or is deemed to have knowledge) thatany of Seller’s representations or warranties set forth in Section 7.2 are untrue in anyrespect, and Purchaser nevertheless proceeds with the Closing despite such knowledge or deemedknowledge (as opposed to exercising its rights, to the extent applicable, under Section10.3), then such knowledge shall be attributed to Purchaser and the breach by Seller of therepresentations and warranties as to which Purchaser shall have such knowledge shall be waived byPurchaser, such representations and warranties shall be deemed modified to conform them to theinformation about which Purchaser had or is deemed to have had such knowledge and Seller shall haveno liability to Purchaser, or its successors or assigns in respect thereof.     **Section 7.2.****Seller’s Representations**. Each of the entities included in theterm Seller warrants and represents to Purchaser as of the date hereof as follows as to suchentity, each given representation and warranty being made severally by and solely by the respectiveSeller with respect to matters concerning that Seller or property owned by such Seller:     (a) **Representations Concerning Seller**     (i) (A) Each Seller (other than Lyme/Houston Development I, LP) is a limited liabilitycompany duly formed, validly existing and in good standing under the laws of the State ofDelaware and is duly registered as a foreign limited liability company in the Commonwealthof Massachusetts;          (B) Lyme/Houston Development I, LP is a Delaware limited partnership duly formed,validly existing and in good standing under the laws of the State of Delaware and is dulyregistered as a foreign limited partnership in the State of Texas;          (C) The Person(s) executing this Agreement on behalf of each Seller has been dulyauthorized to do so and this Agreement constitutes the valid and legally
 

 
binding obligation of such entity, enforceable against such entity in accordance withits 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) to eachSeller’s knowledge, any law or any order, writ, injunction or decree of any court orgovernmental authority, or (3) subject to the Twining Notice, any matters set forth inSchedule 6.1(r) and obtaining applicable Certificates, any agreement or instrumentto which any Seller is a party or by which any Seller is bound or (b) results in thecreation or imposition of any lien, charge or encumbrance upon its property pursuant to anysuch agreement or instrument;     (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) **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 has
 

 
received no written notice from any governmental authority requiring the correction ofany condition 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 Major LineItem Contracts, the Miscellaneous Consultant Agreements, the Property Management Agreements,the Master Deed, the CER Declaration, the Environmental Insurance Policies, 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 Brokerage Agreements, the Major Line Item Contracts, theMiscellaneous Consultant Agreements, the Property Management Agreements, the Master Deed,the CER Declaration, the Environmental Insurance Policies or the Other Matters either by orto any such entity alleging a material default, which default has not been cured or waived;(b) Contractor’s Services have been listed on the attachedSchedule 7.2(b)(iv)- 7(A);(c) Architect’s Services have been listed on the attached Schedule 7.2(b)(iv)-7(B),(d) the Leases, the Major Line Item Contracts, the Property Management Agreements, theMaster Deed, the Environmental Insurance Policies and the CER Declaration are in full forceand effect and enforceable in accordance with their terms; and (e) assuming that Purchaserdoes not assume the Seller Mortgage, the Leases, the Major Line Item Contracts, theMiscellaneous Consultant Agreements, the Environmental Insurance Policies, the Other Mattersand the Permitted Exceptions constitute all of the material agreements to which Seller is aparty in connection with the construction of the Major Line Item Project or the use oroperation of the Real Property that will be binding on Purchaser or the Real Propertyfollowing the Closing (to the extent assumed pursuant to the terms of this Agreement).     (v) Rogers Street, LLC has provided or made available to Purchaser true, correct andcomplete copies of the Plans and Specifications.     (vi) 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.     (vii) Except as set forth in this Agreement with respect to the Twining Notice, Sellerand the Seller Parties have no commitment or legal obligation, absolute or contingent, toany Person other than Purchaser to sell, assign, transfer or effect a sale of any of theProperty (other than inventory in the ordinary course of business), to sell or effect asale of capital stock or partnership interests, as applicable, of the Seller or any SellerParty, to effect any merger, consolidation, liquidation or dissolution or otherreorganization of Seller or any Seller Parties, or to enter into any agreement or cause theentering into of any agreement with respect to any of the foregoing.     (viii) Except as set forth in Schedule 7.2(b)(viii), Seller has not conveyedany development rights under the Master Deed or the CER Declaration.
 

 
     (ix) Except as (x) set forth in deed covenants that are recorded with the MiddlesexSouth Registry of Deeds, (y) set forth in parking leases, notices of which are recordedwith said Deeds and (z) as may be granted to Twining in connection with the Twining Notice,no Person has parking rights with respect to the Kendall Square Real Property (other thanagreements that are terminable by Seller upon 30 days’ notice).     (x) Except as set forth in Schedule 7.2(b)(x), the only Major Line ItemContracts are the Arrowstreet Agreement and the Linbeck Contract.         (c) **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.     **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)(vi), (b)(vii) or (c)(v) of Section 7.2) is untrue, inaccurate orincorrect to the extent that this Agreement, the Reports, Due Diligence Materials, documents,studies, reports and other information made available by Seller to Purchaser or its agents prior tothe commencement of the Restricted Period, or any Certificate contains information which isinconsistent 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, 2007 (such periodof time being the “Claim Period”), and no action or proceeding thereon shall be valid orenforceable, at law or in equity, unless (x) Purchaser provides written notice of any potentialclaim to Seller within the Claim Period, which notice shall describe such potential claim inreasonable detail based upon the information available to Purchaser at such time and (y) a legalproceeding is commenced within forty-five (45) days after Seller’s receipt of such notice.
 

 
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)(vi), (b)(vii) or (c)(v)of Section 7.2). Purchaser further agrees that no claim may or shall be made for anyalleged breach of any representations or warranties made by Seller under or relating to thisAgreement unless the amount of such claim or claims, individually or in the aggregate, exceeds theThreshold Amount, and such claim or claims shall never, individually or in the aggregate shallnever 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 or extendthe Closing or the Closing Date as provided in this Agreement, the Closing shall be consummatedprior to 10:00 a.m. Boston, Massachusetts time on the Closing Date. Unless the parties otherwiseagree in writing, the Closing shall be conducted through a customary escrow arrangement with theTitle Company 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.
 

 
     **Section 8.2.****Seller’s Deliveries**. At the Closing (or at such later time asset forth in clause (m) 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 Massachusetts Deeds and the Texas Deed;     (b) The Assignment and Assumption of Ground Lease with respect to the Rogers Street RealProperty;     (c) A non-foreign person affidavit sworn to by Real Property Seller as required by Section1445 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 Policy 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 Tenant Estoppel Certificates, any Seller’s Estoppel Certificates, the Rogers StreetGround Landlord’s Consent to Assignment and any other Certificates to be delivered pursuant toSection 6.1;     (h) The Statements and the Property Manager’s Statements;     (i) The Post-Closing Escrow Agreement;     (j) Any transferable bonds, warranties or guaranties that relate to the Property and are inSeller’s possession and control, cash security for the Com Energy letter of credit described inSection 8.4(c) and any letter of credit security deposits delivered to Seller under theLeases, and each such document or instrument that is reasonably required to transfer any such itemsto Purchaser (and Seller shall deliver any of the foregoing directly to any lender that Purchaserdesignates in writing to Seller at least five (5) Business Days before the Closing);     (k) 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 rents thereundershould be paid;     (l) A notice letter to parties to the Brokerage Agreements, the Major Line Item Contracts, theMiscellaneous Consultant Agreements, the Property Management Agreements, the EnvironmentalInsurance Policies, the Master Deed, the CER Declaration and the Other Matters notifying them ofthe assignment of such documents; and
 

 
     (m) 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 the Leases, the Miscellaneous ConsultantAssignments, the Major Line Item Contracts, the Brokerage Agreements, the EnvironmentalInsurance Policies, the Other Matters and any and all building plans, surveys, site plans,engineering plans and studies, utility plans, landscaping plans, drawings andspecifications, marketing artwork, warranties book and other documentation concerning all orany part of the Property (provided, however, Seller may keep copies of any of theforegoing); provided however, at Purchaser’s request, Seller will provide any of suchinformation in electronic format, if the same is in the possession or control of Sellerunless the same is in a proprietary format of a computer program, other computer software orunder a licensing agreement that Seller 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) A duly executed counterpart of the Assignment and Assumption of Ground Lease;     (f) A duly executed counterpart of the Post-Closing Escrow Agreement;     (g) Duly executed counterparts of the Statements and the Property Manager’sStatements;     (h) Duly executed counterparts of the Miscellaneous Consultant Consents; and     (i) A duly executed Thypin Guaranty Indemnity.     **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
 

 
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. No prorations shall bemade with respect to the Major Line Items, as such matters are treated in accordance withSection 2.2 of this Agreement.     (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) reasonablyallocable thereto, promptly after the collection thereof by Purchaser. In no eventshall 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 forthin the 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 amount received byPurchaser, net of costs of collection, if any, to the extent properly allocable toperiods prior to the Adjustment Point shall promptly be paid by Purchaser to Seller(or such parties as may be directed by Seller). In the event that a tenant requiresan audit with respect to an over-billing or under-billing that relates to the timeperiod prior to the Adjustment Point, Purchaser shall promptly notify Seller andSeller may either (i) conduct such audit at its sole cost and expense, in which caseSeller shall consult with Purchaser in the conduct of same and Purchaser shallreasonably cooperate with Seller and provide Seller with reasonable access to anybooks and records reasonably necessary to conduct such audit or (ii) decline toconduct such audit, in which case Seller shall reimburse Purchaser for thereasonable costs incurred by Purchaser to conduct such audit relating to the timeperiod prior to the Adjustment Point. Seller shall maintain all books and recordsthat may be relevant to any audit for the time period required by the respectiveLease, and provide Purchaser and the respective Tenant access thereto in connectionwith any audit that is 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.
 

 
 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/Letters of Credit**. Purchaser shall be credited at Closingwith: (i) all cash security or other deposits held by or on behalf of Seller with respect to theProperty (other than any security deposits held in the form of a letter of credit or other non-cashsecurity); (ii) any rent prepaid beyond the Closing Date; and (iii) any interest earned as of theClosing on cash security deposits or prepaid rent held by or on behalf of Seller, to the extentthat such interest is refundable to Tenants under the terms of the applicable Lease or applicablelaw. The cost of transferring any letter of credit security deposits and the letter of creditdescribed in the following sentence shall be divided evenly between Seller and Purchaser.Reference is made to that certain letter of credit in the amount of One Million Dollars($1,000,000) with respect to CES matters which Kendall Square LLC has provided and which is securedby One Million Dollars ($1,000,000) of cash held as collateral by the issuing bank. Such cashcollateral on account of such letter of credit shall be conveyed to Purchaser along with the otherproperty of Kendall Square LLC at Closing. On account of such cash collateral transfer a credit ofOne Million Dollars ($1,000,000) shall be provided to Seller at Closing. Notwithstanding theforegoing, if Purchaser can effectuate an arrangement with the beneficiary of such letter of creditprior to Closing such that (x) Purchaser provides replacement security to such Person and (y) theSeller’s letter of credit is returned to Seller at Closing, then no such cash collateral transferor credit to Seller shall be required at Closing. Seller shall reasonably cooperate with Purchaserin Purchaser’s efforts to provide such replacement security to such Person.     (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. If themost recent tax bill received by Seller before the Closing is not the actual current tax bill, thenSeller and Purchaser shall initially prorate the taxes at the Closing by applying 100% of the taxrate for the period covered by the most current available tax bill to the latest assessedvaluation, and shall reprorate the taxes retroactively when the actual current tax bill is thenavailable. All real estate taxes accruing before the Closing shall be charged to Seller and allsuch taxes accruing on and after the Closing shall be charged to Purchaser. Any refunds of realestate taxes made after the Closing shall first be applied to the unreimbursed third-party costsincurred by Seller or Purchaser in obtaining the refund, then shall be paid to Seller (for theperiod prior to the Closing) and to Purchaser (for the period commencing on and after the Closing).If any proceeding to determine the assessed value of the Real Property or the real estate taxespayable with respect to the Real Property has been commenced before the Effective Date and shall becontinuing as of the Closing, Seller shall be authorized to continue to prosecute such proceedingand Purchaser agrees to cooperate as reasonably requested with Seller and to execute any and alldocuments reasonably requested by Seller in furtherance of the foregoing. Notwithstanding anythingherein to the contrary, Seller shall be liable for any “rollback” or similar taxes on the HoustonReal Property resulting from any exemption claimed by Seller with respect to the Houston RealProperty at any time during which such Houston Real Property was owned by Seller.
 

 
     (f) **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 expenditures made during themonth in which the Closing occurs on which such fees are based divided by 30 and then multiplied bythe number of days in the month prior to and including the date of Closing) and appropriateadjustment made pursuant to Section 8.4(n) below.     (g) **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(n) below made based on actual readings andinvoices closer to the Closing and reasonably extrapolated to be as of the Closing.     (h) **License and Permit Fees.** Assignable license and permit fees.     (i) **Expenses of Operation.** Other expenses of operation and similar items, includingwithout limitation, advertising and marketing expenses.     (j) **Customary Apportionments.** Any other operating expenses and any other itemsrelating to the 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 at theClosing.     (k) **CER Declaration.** Any common area maintenance charges with respect to the KendallSquare Real Property which are payable under the CER Declaration described in Schedule 4.1.     (l) **Rogers Street Ground Lease.** Any amounts payable by Rogers Street, LLC as thetenant under the Rogers Street Ground Lease (based on amounts Rogers Street, LLC claims are duewithout regard to the Thypin Rent Dispute).     (m) **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
 

 
has paid or will pay in full, prior to Closing (but subject to apportionment hereunder), allbills and invoices for labor, goods, material and services of any kind relating to the RealProperty and utility charges (except if and to the extent such utility charges are billed directlyto tenants), that are due and payable on or prior to the Closing, and Purchaser will pay in full,after the Closing (but subject to apportionment hereunder), all bills and invoices for labor,goods, material and services of any kind relating to the Real Property and utility charges (exceptif and to the extent such utility charges are billed directly to tenants), that are due and payableafter Closing.     (n) **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 occurs, and aftersuch period neither Seller nor Purchaser shall have any further rights or obligations under thisSection 8.4.     (o) **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 with respect to the Deeds and theAssignment and Assumption of Ground Lease, and (ii) the cost of recording the Deeds and, if any,the Assignment and Assumption of Ground Lease. Purchaser and Seller shall each pay one-half of theEscrow Agent’s fees for acting as escrow agent. All other customary real property purchase andsale closing costs shall be paid by Seller or Purchaser in accordance with the custom in thejurisdiction where the Real Property is located.**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(s) in accordance with a separate agreementbetween Seller and Seller’s Broker(s). Seller’s Broker(s) shall indemnify Seller and Purchaseragainst all claims, costs and liability relating to any broker or other Person claiming by, throughor under Seller’s Broker(s). By execution of this Agreement, Seller’s Broker(s) agrees to theforegoing matters. Seller and Purchaser respectively shall indemnify and hold harmless the otheron account of all claims of any other brokers or finders claiming by, through, under or on accountof dealings with them in any way related to this purchase and sale, including, without limitation,
 

 
reasonable attorneys’ fees and disbursements incurred by the indemnified party. Theprovisions of this paragraph 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 Real Property occurring prior toClosing which are not prohibited by this Agreement (therefore there is no breach), (b) if thedollar amount of the damages resulting from any breach of representation or failure to perform anycovenant together with all dollar amounts of all other damages resulting from any breach ofrepresentation or failure to perform any other covenant is less than Two Hundred Thousand Dollars($200,000) (in which case the breach is deemed waived by Purchaser, the “Threshold Amount”)or (c) if otherwise waived by Purchaser, then Purchaser’s sole and exclusive remedy shall beeither: (i) if and only if the breach by Seller is a breach of any of Seller’s covenants hereunder,sue for specific performance with respect to the performance of same, subject to any limitationsexpressly set forth in this Agreement; (ii) terminate this Agreement at the Closing (as it may beadjourned under this Agreement) in which event this Agreement, without further action of theparties, shall become null and void and no party shall have any further rights or obligations underthis Agreement, except for the return of the Deposit to the Purchaser and the SurvivingObligations; or (iii) waive such default and proceed to Closing without any reduction in, abatementof, or credit against the Purchase Price; if Purchaser fails to make any such election, Purchasershall be deemed to have elected 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.     (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 beFive Million Five Hundred Thousand Dollars ($5,500,000) (the “Damage Cap”); provided,however, that Seller shall not have any liability for any such damages or Claims until theaggregate amount of same is in excess of the Threshold Amount (in which case the amount of saiddamages or Claims up to the Threshold Amount are deemed waived by Purchaser); and provided further,that Seller shall not be liable for any consequential, special, punitive or indirect damages. Theprovisions of this Section 10.4 shall survive Closing or earlier termination of thisAgreement.
 

 
     **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, 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, ENVIRONMENTAL RELEASES, RESPONSE ACTIONS, FEES AND LIABILITIES OF EVERY NAME AND NATUREWHATSOEVER, BOTH AT LAW AND IN EQUITY, KNOWN AND UNKNOWN (ANY OF THE FOREGOING, A “CLAIM”),WHICH THEY AND THEIR SUCCESSORS AND ASSIGNS MAY NOW OR HEREAFTER HAVE WITH RESPECT TO MATTERSEXISTING AS OF THE CLOSING DATE AGAINST ANY OTHER PARTY AND EACH OTHER’S DIRECT OR INDIRECT OWNERS,OR THE MANAGERS, MEMBERS, PARTNERS, BENEFICIAL OWNERS, OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS ORAGENTS, RESPECTIVELY, OF THE FOREGOING, ARISING IN CONNECTION WITH OR IN ANY MANNER RELATED TO THISAGREEMENT, THE PROPERTY, OR THE TRANSACTIONS CONTEMPLATED HEREBY, EXCEPTING SOLELY THE SURVIVINGOBLIGATIONS AND OBLIGATIONS ARISING UNDER THE ASSIGNMENT AND ASSUMPTION AGREEMENT AND ANY OTHERINSTRUMENT OR AGREEMENT DELIVERED 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, and itsupersedes all prior discussions, understandings or agreements between the parties. All Exhibitsand Schedules attached hereto are a part of this Agreement and are incorporated herein byreference.     **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 required instruments and documents that “Purchaser” (as opposed to suchRelated Entities or Joint Venture Entities) may be required to deliver hereunder. The partiesacknowledge that this will result in the execution of additional conveyancing documents. As usedin this Agreement, the term “Purchaser” shall be deemed to include the initial Purchaserand any permitted designee of the initial Purchaser and all such Purchaser entities shall bejointly and severally liable under this Agreement. Subject to the foregoing, this Agreement shallinure to the benefit of and shall be binding upon Seller and Purchaser and their respectivesuccessors 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 theCommonwealth of Massachusetts, without giving effect to the conflicts of laws principles thereof.**EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING**
 

 
**TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.**Any legal action or proceedingwith respect to this Agreement or any of the transactions contemplated herein may be brought in thecourts of the State of Massachusetts located in the County of Suffolk or of the United States ofAmerica for the District of Massachusetts, and, by execution and delivery of this Agreement, eachof the parties hereto hereby accepts generally and unconditionally, 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.     **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       and with a copy to: Pillsbury Winthrop Shaw Pittman LLP    1650 Tysons Boulevard    McLean, Virginia 22102-4859    Attn: David L. Miller, P.C.    Fax: 703.770.7901       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 orother refusal to accept any notice, shall be deemed to be the receipt of the notice as of the dateof 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 essence withrespect to a particular date or time period, or any modification or extension thereof, which isprovided 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 for in this Agreement shall exceed the maximum interestpermitted under controlling law, as established by final judgment of a court, then such interestshall instead be at the maximum permitted interest rate 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 Seller’s liabilityset forth elsewhere in this Agreement: (a) Purchaser’s recourse against any party included withinthe term Seller under this Agreement or any agreement, document, certificate or instrumentdelivered by such party hereunder, or under any law, rule or regulation relating to the Property,shall be limited to such party’s interest in the Property (or, following the Closing, to the netproceeds of the sale of the Property actually received by such party); (b) the liability of eachparty that constitutes Seller shall not be joint and several but shall only relate to the propertythat is being sold by each respective party that constitutes Seller; and (c) in no event shall anyof the Seller Parties have any personal liability hereunder or otherwise. The acceptance of theDeeds, the Assignment and Assumption of Ground Lease, and all other performance of Seller at theClosing shall constitute full performance of all of Seller’s obligations hereunder other than theSurviving 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 the parties hereto as expressed in this Agreement, such provision shall begiven force and effect to the fullest possible extent, and that the remainder of this Agreementshall be construed as if such illegal, invalid, unlawful, void, or unenforceable provision were notcontained herein, and that the rights, obligations, and interests of the parties under theremainder of this Agreement 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 any registry of deeds or registry district ofthe Land Court, including without limitation any lis pendens. If Purchaser breaches the foregoingprovision, this Agreement shall, at Seller’s election, terminate, and Seller shall retain theDeposit in accordance with Section 10.2 in addition to such other remedies Seller may haveat law or in equity. Purchaser hereby irrevocably appoints Seller as its true and lawfulattorney-in-fact, coupled with an interest, for the purpose of executing and recording suchdocuments and performing such other acts as may be necessary to terminate any recording or filingof 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 or
 

 
final versions of this Agreement between Seller and Purchaser shall be deemed to create anybinding obligations in connection with the transaction contemplated hereby, and no contract orobligation on the part of Seller or Purchaser shall arise unless and until this Agreement is fullyexecuted by each of Seller and Purchaser. Once executed and delivered by Seller and Purchaser,this Agreement shall be binding upon them notwithstanding the failure of Escrow Agent or any brokeror other Person 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 case relating to the protection of human health, safety and/or theenvironment, including, but not limited to, any materials, wastes or substances that are includedwithin the definition of (A) “hazardous waste” in the federal Recourse Conservation andRecovery Act; (B) “hazardous substances” in the federal Comprehensive EnvironmentalResponse, Compensation and Liability Act; (C) “pollutants” in the federal Clean Water Act;(D) “toxic substances” in the federal Toxic Substances Control Act; (E) “oil orhazardous materials” in the laws or regulations of any state or commonwealth, and (F) anysubstance, material, waste, pollutant or contaminant listed or defined as hazardous or toxic underany Environmental Law. The term “Environmental Laws” includes without limitation the ResourceConservation and Recovery Act and the Comprehensive Environmental Response Compensation andLiability Act and other federal laws governing the environment as in effect on the date of thisAgreement, together with their implementing regulations, guidelines, rules or orders as of the dateof this Agreement, and all state, regional, county, municipal and other local laws, regulations,ordinances, rules or orders that are equivalent or similar to the federal laws recited above orthat purport to regulate Hazardous Materials. The provisions of this Section 11.19 shallsurvive the Closing or any termination 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 the
 

 
Property and its operation that may be reasonably necessary for Purchaser to produce thefinancial statements required under Rule 3-14 of regulation S-X of the U.S. securities laws(including providing a letter in the form attached hereto as Schedule 11.20). In additionto the above, 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 Asserting Partyand the Defending Party are named in the same litigation and representation of both of them by thesame 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 with diligence and continuity, the Asserting Party may employ its own counsel and suchemployment shall be 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 which a reasonable andprudent owner of properties similar to the Property located where such Property is located wouldcause 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 Loans**.     Purchaser may elect to assume Seller’s existing mortgage financing with respect to the KendallSquare South Garage, the Rogers Street Real Property and the Houston Real Property. Seller willreasonably cooperate with Purchaser (at no cost to Seller) regarding such efforts. If Purchaser soassumes such financing, then (a) Purchaser shall receive a credit for the principal amount of suchloan, interest accrued thereon and unpaid through the Closing Date and any other amounts due andpayable, but unpaid, on the Closing Date allocable to such loan and (b) Seller shall receive acredit (and Purchaser shall be debited) for all amounts in reserve and/or impound accounts held bythe lender under such financing as of the Closing Date, to the extent that all of Seller’s rightsin such amounts are transferred to the Purchaser in connection with such assumption. In connectionwith any such assumption, prior to Closing Seller shall be presented with evidence reasonablyacceptable to Seller that the obligations and liabilities of Seller and any guarantor of such loanshall 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.]
 

 
**IN WITNESS WHEREOF**, Seller and Purchaser hereto have executed this Agreement as of the datefirst written above.             **SELLER**:             ROGERS STREET, LLC, a Delaware limited liability company             By: The Lyme Timber Company, a New Hampshire limited  partnership, its sole Manager               By: Woodland Management Associates LLC, aNew Hampshire limited liability company,Its General Partner                 By: /s/ GEORGE LIGHTBODY                 Name: George Lightbody        Its: CFO        Date: 1/28, 2007                        LYME/HOUSTON DEVELOPMENT I, LP, a