Exhibit 10.2
CONSENT TO PROPERTY ACCESS AGREEMENT
THIS CONSENT TO PROPERTY ACCESS AGREEMENTS (this "CONSENT") is made as of
September 1, 2006, by ARE-PA REGION NO. 6, LLC, a Delaware limited liability
company, having an address of 000 X. Xxxxxxxx Xxxx., Xxxxx 000, Xxxxxxxx,
Xxxxxxxxxx 00000 ("ARE"), AUXILIUM PHARMACEUTICALS, INC., a Delaware
corporation, having an address of 00 Xxxxxx Xxxxxx Xxxxxxx, Xxxxxxx,
Xxxxxxxxxxxx 00000 ("AUXILIUM"), and NEOSE TECHNOLOGIES, INC., a Delaware
corporation, having an address of 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000
("NEOSE") with reference to the following Recitals.
RECITALS
A. ARE, as buyer, and Neose, as seller, have entered into a Purchase and
Sale Agreement and Joint Escrow Instructions dated as of September __, 2006
("AGREEMENT OF SALE") for the purchase and sale of the property known as 000
Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000 ("PREMISES").
B. ARE, as landlord, and Auxilium, as tenant, have entered into that
certain Lease Agreement of even date herewith ("LEASE"), wherein ARE has leased
the Premises to Auxilium.
C. Pursuant to the terms and conditions of a certain Pre-Closing Property
Access Agreement ("PRE-CLOSING AGREEMENT") between Neose and Auxilium, Neose has
agreed to permit Auxilium to enter the Premises and to commence making certain
alterations and improvements thereto before the date on which the Premises are
conveyed to ARE pursuant to the Agreement of Sale ("CLOSING").
D. Pursuant to the terms and conditions of a certain Post-Closing Property
Access Agreement ("POST-CLOSING AGREEMENT") between Neose and Auxilium, Auxilium
has agreed to permit Neose to remain in occupancy of certain portions of the
Premises and to share certain facilities within the Premises for a defined
period of time after the Closing. The Pre-Closing Agreement and the Post-Closing
Agreement are hereinafter collectively referred to as the "PROPERTY ACCESS
AGREEMENTS."
E. Auxilium and Neose desire to obtain ARE's consent to the Property Access
Agreements.
NOW, THEREFORE, in consideration of the foregoing and the agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, ARE hereby consents to (a)
Auxilium's entry onto the Premises and the making of certain alternations and
improvements by Auxilium before the Closing, and (b) Neose's use and occupancy
of certain portions of the Premises between the Closing and February 28, 2007,
such consent being subject to and upon the following terms and conditions to
which Auxilium and Neose hereby agree:
1. All initially capitalized terms not otherwise defined in this Consent shall
have the meanings set forth in the Lease unless the context clearly
indicates otherwise.
2. This Consent shall not be effective and the Property Access Agreements
shall not be valid unless and until ARE shall have received: (a) fully
executed counterparts of the Property Access Agreements, and (b) a fully
executed counterpart of this Consent.
Auxilium and Neose each represent and warrant to ARE that true, correct,
and complete copies of the Property Access Agreements are attached hereto
as EXHIBIT A.
3. ARE's consent to Auxilium Improvements and Approved Materials shall be as
follows:
a. Prior to the construction or installation of any alterations, addition
or improvements to the Premises by Auxilium before the Closing
(collectively, "AUXILIUM IMPROVEMENTS"), ARE shall have received and
approved, pursuant to the terms and conditions set forth in the Lease,
any drawings for the proposed Auxilium Improvements. The Auxilium
Improvements shall be installed, maintained, repaired, replaced, and
removed in accordance with the terms and conditions of the Lease; and
b. Prior to Auxilium introducing any Approved Materials (as defined in
the Pre- Closing Agreement) into the Premises before the Closing, ARE
shall have received and approved a reasonably detailed itemization of
the Approved Materials, and all documents relating to Auxilium's
proposed use of the Premises.
4. ARE neither approves nor disapproves the terms, conditions, and agreements
contained in the Property Access Agreements, all of which shall be
subordinate and at all times subject to: (a) all of the covenants,
agreements, terms, provisions, and conditions contained in the Lease, (b)
superior ground leases, Mortgages, or any other hypothecation or security
now existing or hereafter placed upon all or any part of the Premises and
to any advances secured thereby and to all renewals, modifications,
consolidations, replacements, and extensions thereof, and (c) all matters
of record affecting the Premises and all Legal Requirements now or
hereafter affecting the Premises.
5. Nothing contained herein or in the Property Access Agreements shall be
construed to modify, waive, impair, or affect any of the terms, covenants,
or conditions contained in the Lease, or to waive any breach thereof, or
any rights or remedies of ARE under the Lease against any person, firm,
association, corporation, or entity liable for the performance thereof, or
to enlarge or increase ARE's obligations or liabilities under the Lease,
and all terms, covenants, and conditions of the Lease are hereby declared
by each of ARE and Auxilium to be in full force and effect. Auxilium shall
remain liable and responsible for the due keeping, performance, and
observance of all the terms, covenants, and conditions set forth in the
Lease on the part of Auxilium to be kept, performed, and observed and for
the payment of the Base Rent, Additional Rent, and all other sums now and
hereafter becoming payable thereunder for all of the Premises.
6. Notwithstanding anything in the Property Access Agreements to the contrary:
a. From and after the Closing and through the expiration of the
Post-Closing Agreement on February 28, 2007 or, if earlier, the date
Neose vacates the Premises, Neose does hereby expressly assume and
agree to be bound by and to perform and comply with, for the benefit
of ARE, each and every obligation of Auxilium under the Lease, except
as specifically set forth otherwise below, to the extent applicable to
the use and occupancy (and not related to the payment of rent or
additional rent) of those portions of the Premises used and occupied
by Neose or shared by Neose and Auxilium, but in no event shall Neose
be liable for
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the acts or omissions of Auxilium under the Lease (except to the
extent due to the acts or omissions of Neose and its agents,
contractors, and employees). ARE and Neose each hereby release the
other, and waive their respective rights of recovery against the other
for direct or consequential loss or damage arising out of or incident
to the perils covered by property insurance carried by such party to
the extent of such insurance and waive any right of subrogation which
that otherwise exist in or accrue to any person on account thereof.
b. Auxilium and Neose agree to each of the terms and conditions of this
Consent, and upon any conflict between the terms of the Property
Access Agreements and this Consent, the terms of this Consent shall
control. In case of a conflict between the terms of this Consent and
the Lease, the terms of the Lease shall control.
c. The Property Access Agreements shall be deemed and agreed to be use
and occupancy agreements only and not a sublease or an assignment and
there shall be no further use and occupancy agreements, subletting, or
assignment of all or any portion of the Premises except in accordance
with the terms and conditions of the Lease.
d. If ARE terminates the Lease as a result of an uncured default by
Auxilium thereunder or the Lease terminates for any other reason
(except a termination by reason of casualty or condemnation), the
Post-Closing Agreement shall automatically terminate concurrently
therewith and the Lease shall become a direct lease between ARE and
Neose with respect to the Spaces as defined in Section 1.1 of the Post
Closing Agreement; provided, however, that such direct lease shall be
amended to reflect the following:
(i) an expiration date of February 28, 2007 or, if earlier, the date
Neose vacates the Premises with no renewal or extension option in
favor of Neose;
(ii) Neose will not be obligated to pay Rent (pursuant to Sections 3,
4, 5, 9, 17 or otherwise of the Lease) on account of Base Rent,
Additional Rent, Operating Expenses or otherwise, for the period
between the date of the termination of the Lease and February 28,
2007, except as provided in clauses (iii), (v), and (vii) below;
(iii) Neose shall be obligated to pay as Additional Rent the per diem
sum of $60 per rentable square foot (on an annualized basis) pursuant
to Section 8 of the Lease arising from Neose's holdover of the
Premises beyond February 28, 2007; such per diem amount shall be based
on the rentable square footage of the Neose Space and Shared Space (as
defined in the Post-Closing Agreement) as reasonably determined by
Landlord;
(iv) Neose shall not be obligated to deposit any security deposit or
other collateral with Landlord pursuant to Section 6 of the Lease;
(v) Neose shall only be obligated for its prorata share ("NEOSE'S
PRORATA SHARE") of the cost of utilities serving the Spaces (as
defined in the Post-Closing Agreement) where Neose's Prorata Share
shall be equal to the ratio that the
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Neose Space and the Shared Space used and occupied by Neose bears to
the entire Premises;
(vi) Except to the extent Neose deems necessary for the continued use
and occupancy of the Spaces by it and subject to the provisions of
this Consent, that Neose shall have no obligation to perform the
obligations set forth in Sections 11(b) (except that Neose shall
maintain, at its sole cost and expense, the generator described in
Section 11(b) (the "GENERATOR") so as to keep the Generator in
operational condition and repair and otherwise comply with applicable
Legal Requirements governing the use and operation of the Generator),
12, 13, 14, or Exhibit C to the Lease.
(vii) Neose shall (A) have no right to make any Alterations to the
Premises except in compliance with the provisions of the Lease, (B)
have no right to use all or any part of the TI Allowance under the
Work Letter contained in Exhibit C to the Lease; (C) not take any
action to adversely affect the validated state of the cGMP Systems and
Building Infrastructure; (D) pay as Additional Rent Neose's Prorata
Share of the costs incurred by ARE to maintain and repair the
Premises; and (E) have no obligation to pay the cost of any capital
repairs or improvements made by Landlord to the Premises after the
Closing (it being understood and agreed that Landlord shall have no
obligation whatsoever to make any such capital improvements);
(viii) Neose shall have no obligation pursuant to Sections 28 or 30 of
the Lease; provided, however, that Neose shall be obligated to
surrender the Spaces in the manner required by the Post-Closing
Agreement and as may be required by Environmental Requirements (as
defined in Section 30 of the Lease) and in the state of repair and
condition in which the Spaces were delivered to Neose on the date of
Closing (ordinary wear and tear excepted);
(ix) Neose shall not be required to maintain property insurance with
respect to the Spaces other than as Neose may elect with respect to
its personal property;
(x) Neose shall not be in default of its obligation under the Lease
(to the extent Neose has obligations under the Lease) if it vacates
the Premises prior to February 28, 2007; and
(xi) ARE shall have no obligation under the Lease or otherwise to
restore all or any part of the Premises based on casualty or
condemnation.
ARE shall not (A) be liable for any prior act or omission of Auxilium
under the Lease before the termination of the Lease or for any other
defaults of Auxilium under the Property Access Agreements, (B) be
subject to any defenses or offsets previously accrued that Neose may
have against Auxilium for any period before the termination of the
Lease, or (C) be bound by any changes or modifications made to the
Property Access Agreements without the prior written consent of ARE as
set forth in this Consent.
e. Neose hereby agrees to indemnify, defend, and hold ARE free and
harmless from and against any and all claims, liabilities, damages,
losses, actual and documented costs or expenses (including reasonable
attorneys' fees) to the
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extent arising from, or relating to, the use and occupancy of the
Premises by Neose after the Closing and any act or omission of Neose
or anyone acting by or on behalf of Neose at or about the Premises in
connection with, or arising out of, the Property Access Agreements or
otherwise. In no event shall Neose be liable for any act or omission
of Auxilium under the Lease (except to the extent due to the acts or
omissions of Neose and its agents, contractors, and employees) nor
shall Neose be obligated to indemnify ARE for (i) any Claims arising
out of any act or omission of Auxilium pursuant to Section 7 of the
Lease (except to the extent due to the acts or omissions of Neose and
its agents, contractors, and employees); (ii) any expenses incurred by
ARE pursuant to Section 12 of the Lease; (iii) any Claims for which
ARE may be entitled to indemnification pursuant to Section 16 of the
Lease except to the extent due to the acts or omissions of Neose and
its agents, contractors, and employees occurring after Closing; or
(iv) any Environmental Claims except to the extent due to the acts or
omissions of Neose and its agents, contractors, and employees
occurring after Closing.
f. Auxilium hereby agrees to indemnify, defend, and hold ARE free and
harmless from and against any and all claims, liabilities, damages,
losses, actual and documented costs or expenses (including reasonable
attorneys' fees) to the extent arising from, or relating to the entry
onto the Premises by Auxilium before the Closing, and any act or
omission of Auxilium or anyone acting by or on behalf of Auxilium at
or about the Premises in connection with, or arising out of, the
Property Access Agreements or otherwise.
g. To induce ARE to permit Neose and Auxilium to use and occupy the
Premises as set forth in the Property Access Agreements, Neose and
Auxilium, on behalf of itself and themselves, and its and their
respective officers, employees, representatives, agents and
contractors (collectively, "RELEASORS"), hereby expressly RELEASE AND
FOREVER DISCHARGE ARE, its members, partners, employees, agents,
contractors, and representatives (collectively, "RELEASEES") from any
and all expenses, losses, costs, liabilities, claims, causes of
action, demands and damages for loss, damage, injury, or death to the
Releasees, or any of them, or damage to the property of Releasors, or
any of them, in connection with, or arising out of, the Property
Access Agreements or otherwise.
7. Any act or omission of Neose or anyone claiming under or through Neose that
violates any of the provisions of the Lease shall be deemed a violation of
the Lease by Auxilium.
8. Upon an uncured default by Auxilium under the Lease, ARE may proceed
directly against Auxilium or anyone else liable, other than Neose (unless
Auxilium's default is due to Neose's default under this Consent), under the
Lease or the Property Access Agreements without first exhausting ARE's
remedies against any other person or entity liable thereon to ARE. If ARE
gives Neose notice that Auxilium is in default under the Lease, Neose shall
thereafter make directly to ARE any payments otherwise due Auxilium under
the Property Access Agreements, which payments will be received by ARE
without any liability to ARE except to credit such payments against amounts
due under the Lease. The mention in this Consent of any particular remedy
shall not preclude ARE from any other remedy in law or in equity.
9. Neose shall pay any broker commissions or fees that may be payable as a
result of the Property Access Agreements and Neose hereby indemnifies and
agrees to hold ARE
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harmless from and against any loss or liability arising therefrom or from
any other commissions or fees payable in connection with the Property
Access Agreements that result from the actions of Neose. Auxilium hereby
indemnifies and agrees to hold ARE harmless from and against any loss or
liability arising from any commissions or fees payable in connection with
the Property Access Agreements that result from the actions of Auxilium.
10. Auxilium and Neose agree that the Property Access Agreements will not be
modified or amended in any way without the prior written consent of ARE,
which consent shall not be unreasonably withheld. It shall be reasonable
for ARE to withhold its consent if, among other reasons, (a) Neose or
Auxilium proposes to extend the term of the Post-Closing Agreement, or (b)
such modification or amendment would (i) adversely affect ARE or its
ownership or operation of the Premises, (ii) change the permitted use of
the Premises, or (iii) affect ARE's status as a real estate investment
trust. Any modification or amendment of the Property Access Agreements
without ARE's prior written consent shall be void and of no force or
effect.
11. This Consent may not be changed orally, but only by an agreement in writing
signed by ARE and the party against whom enforcement of any change is
sought.
12. This Consent may be executed in any number of counterparts, each of which
shall be deemed an original, but all of which when taken together shall
constitute but one and the same instrument.
13. This Consent and the legal relations between the parties hereto shall be
governed by and construed and enforced in accordance with the internal laws
of the Commonwealth of Pennsylvania, without regard to its principles of
conflicts of law.
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IN WITNESS WHEREOF, ARE, Auxilium, and Neose have caused their duly
authorized representatives to execute this Consent as of the date first above
written.
AUXILIUM PHARMACEUTICALS, INC.,
a Delaware corporation,
By: /s/ Xxxxx X. Fickenshear
---------------------------------
Its: Chief Financial Officer
--------------------------------
NEOSE TECHNOLOGIES, INC.,
a Delaware corporation,
By: /s/ Xxxxxx X. Xxxxxx, Ph.D.
---------------------------------
Its: President and CEO
--------------------------------
ARE-PA REGION NO. 6, LLC,
a Delaware limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES,
L.P., a Delaware limited
partnership, managing member
By: ARE-QRS CORP.,
a Maryland corporation,
general partner
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------
Vice President and Assistant Secretary
a --------------------------------------
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EXHIBIT A
COPY OF PROPERTY ACCESS AGREEMENTS
PRE-CLOSING PROPERTY ACCESS AGREEMENT
THIS IS A PRE-CLOSING PROPERTY ACCESS AGREEMENT dated September __, 2006
between Neose Technologies, Inc. ("Neose") and Auxilium Pharmaceuticals, Inc.
("Auxilium") relating to the property located at 000 Xxxxxx Xxxx, Xxxxxxx,
Xxxxxxxxxxxx (the "Property").
BACKGROUND
Neose is the current owner of the Property, and Auxilium desires to become
the lessee of the Property upon its sale to ARE-PA Region No. 6, LLC
("Alexandria"). Simultaneously with the execution hereof, Neose and Alexandria
have entered into a Purchase and Sale Agreement and Joint Escrow Instructions
("Agreement of Sale") for the sale and purchase of the Property, and Auxilium
and Alexandria have entered into a Lease (the "Lease") for the lease of the
Property.
The parties anticipate the closing on the sale of the Property pursuant to
the Agreement of Sale will occur on or about September __, 2006 (the "Closing").
A condition to Closing is that the Lease has been executed and the commencement
date of the term of the Lease will be the date of Closing. Auxilium has
requested and Neose has agreed to permit Auxilium to enter the Property and to
commence making certain alterations and improvements thereto prior to the date
of Closing pursuant to the terms and conditions of this Agreement. In addition,
Neose and Auxilium are simultaneously entering into a Post-Closing Property
Access Agreement pursuant to which, among other things, Neose shall be permitted
to remain in occupancy of certain portion of the Property and Neose and Auxilium
shall share certain facilities within the Property ("Post-Closing Agreement").
In consideration of the mutual premises and covenants contained herein and
intending to be legally bound hereby, the parties agree as follows:
TERMS
ACCESS.
Activities. Subject to the terms and conditions of this Agreement, Auxilium
shall be permitted, with charge, to enter and use the portions of the Property
shaded in Schedule 1.1 (the "Access Area") and have access to the equipment in
the Access Area (the "Access Equipment") prior to the Closing in order to
conduct the activities listed in Sections 1.1.1 and 1.1.2 (collectively, the
"Work), all of which shall be performed at the sole cost and expense of
Auxilium, during normal business hours, as follows:
From and after the date hereof, upon reasonable notice to Neose and without
unreasonably interfering with Neose operations, Auxilium may conduct facility
touring, walk-down, and engineering surveys, without manipulating (e.g., turning
valves or dials, adjusting settings, turning off or on) any equipment absent
Neose consent, and may store such equipment as is approved in advance by Neose
("Approved Equipment") and materials approved in advance by Neose ("Approved
Materials") in the Access Area, other than in the Pilot Plant, and at 000 Xxxxxx
Xxxx, Xxxxxxx, Xxxxxxxxxxxx;
From and after the later of the date hereof and August 18, 2006, Auxilium may
begin engineering modifications, approved in accordance with Section 2.1,
consisting of nitrogen supply and distribution piping, local control of gas at
fermenter, and potential agitation
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modifications of fermenter in the Access Area to Access Equipment, bring any
additional Approved Materials, into the development areas (outside the Pilot
Plant core) as shown in Schedule 1.1, and perform any other modifications that
the parties agree to in writing.
From and after the later of four (4) business days after the date hereof and
August 24, 2006, Auxilium shall have the exclusive use of the cubicles and
offices shown in Schedule 1.1.3.
From and after the later of the date hereof and September 1, 2006, Auxilium
shall have the right to bring Approved Materials into the Pilot Plant and
conduct engineering run batch manufacturing in the Expanded Access Area as
delineated in Schedule 1.1.4.
Interference; Compliance. Auxilium will use commercially reasonable efforts
to ensure that neither the Work, the use of Approved Materials nor Auxilium's
access to the Property will unreasonably interfere with Neose's operations at
the Property or cause any harm or destruction to or contamination of the
Property. Neose and Auxilium shall cooperate with each other in order to
implement such procedures and protocol as are reasonable or necessary to ensure
the safety of each other's personnel and to ensure noninterference with each
party's business operations. Auxilium's use and occupancy of the Property,
including its use of Approved Materials and the conduct of the Work, shall at
all times comply with all applicable laws, regulations, ordinances, safety
requirements and SOPs of Neose ("Laws and Requirements"). Except as expressly
permitted herein or with the prior written consent of Neose, Auxilium will not
bring onto the Property or use any materials other than the Approved Materials.
Auxilium and Neose will comply with the procedures agreed upon by the parties.
MANNER OF WORK.
Auxilium shall take all commercially reasonable precautions to perform all the
Work in such a manner to prevent: (i) damage to the Property and the personal
property of Neose; (ii) the creation of hazardous or dangerous conditions; (iii)
the deposit or release of any hazardous or toxic substances or materials, at,
on, about or under the Property; (iv) unreasonable interferences with Neose's
normal business operations; and (v) the violation of Neose's safety and security
requirements. All Work shall be done in a good and workmanlike manner, in
accordance with all applicable Laws and Requirements and in accordance with
plans and specifications approved by Alexandria and Neose. Neose agrees that
wherever this Agreement requires its approval or consent that its response shall
not be unreasonably withheld, conditioned, delayed or denied and that its
consent or approval shall be granted so long as Auxilium's actions will not
unreasonably interfere with Neose's use and occupancy of the Property or with
any equipment other than the Access Equipment and shall not reasonably be
anticipated to cause a material adverse affect to the structure or the
improvements at the Property or its systems. Auxilium, at its sole costs and
expense, shall obtain any and all necessary governmental approvals and permits
for the conduct of the Work and Neose, at no expense to it, agrees to cooperate
with Auxilium in connection with obtaining any such permits and approvals.
In connection with any Work, Auxilium shall not permit the attachment of any
mechanic's lien, materialman's lien, or any other lien, claim or encumbrance
("Encumbrance") against the Property. In the event of such Encumbrance, Auxilium
shall bear all cost and expense related to the defense or removal of same and
indemnify and hold Neose harmless from any actual and documented cost or expense
(including reasonable attorneys' fees) which Neose may incur in connection
therewith. Prior to performing any Work, Auxilium shall cause its contractors
and
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suppliers to file with the Prothonotary of Xxxxxxxxxx County, Pennsylvania duly
executed waivers of mechanic's liens and/or materialman's liens, as applicable.
The Access Area shall be made available pursuant to this Agreement to Auxilium
on an As-Is, Where-Is basis. Neose shall have no obligation to provide any
improvements, alterations or modifications to the Property, nor shall Neose be
obligated to provide Auxilium with any allowances for any of the foregoing.
Neose shall supply the Access Area with utilities to the extent that any such
utilities are currently being provided to the Access Area. In the event Neose
removes any fixtures or equipment from the Access Area, Neose shall be
responsible, at its sole cost and expense, to repair all damage caused by such
removal.
RESTORATION. If, for any reason, the Closing under the Agreement of Sale is not
consummated on or before September 15, 2006, upon written notice by Neose,
Auxilium will vacate the Property within 5 business days. In the event that
Auxilium has begun an engineering run when such termination notice is received,
Auxilium will vacate the Property within 15 business days. In accordance with
such termination notice, Auxilium will restore the Access Area and Access
Equipment and all parts thereof to their respective conditions prior to
Auxilium's entry, including, but not limited to, removal of all of Auxilium's
property, fixtures and equipment and decontamination of the Property and any and
all parts thereof. In addition, Auxilium shall decontaminate the Property to
remove any contamination of the Property resulting from the Approved Materials
and the equipment, fixtures and other property located therein and all surfaces
of, on, about or beneath any of the foregoing. If the Work shall necessitate a
repair or clean-up, then following Neose's approval of Auxilium's plan to repair
and clean-up the Property, Auxilium, under Neose's supervision, shall repair and
clean-up the Property to its pre-occupancy condition as determined by Neose in
its reasonable discretion.
INSURANCE.
Auxilium shall, at its expense, maintain or cause its contractors to maintain
during the period of access hereunder commercial general liability insurance,
including contractual liability insurance and property damage insurance under
policies issued by insurers licensed to conduct business in the state wherein
the Property is located, with per occurrence limits of not less than $5 Million
for bodily injury, or death and damage to or destruction of property (including
the loss of use thereof), $5 Million combined aggregate, and workers'
compensation at statutory limits. Additionally, Auxilium or its contractors, as
applicable, shall provide the following coverages: contractor's pollution
liability with limits of $1 Million per occurrence and $2 Million aggregate.
Such policies shall name Neose, Alexandria, Alexandria Real Estate Equities,
Inc., and its and their respective officers, directors, members, and employees
as additional insureds. Auxilium shall deliver to Neose certificates of
insurance evidencing such coverage prior to entering upon the Property. Such
certificates shall contain a provision that same shall not be cancelled or the
coverage materially altered without first giving at least thirty days' prior
written notice to Neose.
Any policy or policies of fire, extended coverage or similar property
insurance, which either party obtains in connection with the Property, shall
include a clause or endorsement denying the insurer any rights of subrogation
against the other party for all perils covered by such policy. Any provision of
this Agreement to the contrary notwithstanding, Neose and Auxilium hereby
release the other from any and all liability or responsibility to the other or
anyone claiming through or under them by way of subrogation or otherwise (a)
from any and all liability for any loss or damage to the property of the
releasing party, (b) for any loss or damage that may result, directly or
indirectly, from the loss or damage to such property (including rental value and
business interruption), and (c) from legal liability for any loss or damage to
property
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(no matter who the owner of the property may be), all to the extent that the
releasing party's loss or damage is insured or, if not insured, was insurable
under commercially available "special form" property insurance policies,
including additional coverages typically obtained by owners and users of
comparable facilities, even if such loss or damage or legal liability shall be
caused by or result from the fault or negligence of the other party or anyone
for whom such party may be responsible and even if the releasing party is
self-insured in whole or in part or the amount of the releasing party's
insurance is inadequate to cover the loss or damage or legal liability. It is
the intention of the parties that Neose and Auxilium shall look solely to their
respective insurance carriers for recovery against any such property loss or
damage or legal liability, without such insurance carriers having any rights of
subrogation against the other party.
ELIGIBLE EMPLOYEES. In connection with the transfer of the Property to Auxilium
under the Lease and effective as of the Closing, Neose shall make available for
hire by Auxilium the employees listed in Schedule 5 (each an "Eligible
Employee"). Auxilium shall be permitted to engage the services of any of the
Eligible Employees on such terms and conditions as may be agreed by Auxilium and
the applicable employee, if any. Except with the prior written consent of Neose,
Auxilium shall not, for a period of one year following the Closing, directly or
indirectly (other than by general advertising) solicit for employment or hire
any person who has been employed by Neose at any time during the one-month
period prior to the date hereof, unless such employee is an Eligible Employee or
if such employee's employment has been terminated by Neose. The parties agree
that the confidentiality provisions of the CDA (as defined in Section 13 below)
shall not preclude a party from advising an employee or former employee of Neose
of the terms of this Section 5.
COOPERATION.
Cooperation. Neose and Auxilium shall cooperate with each other in establishing
and implementing such procedures and protocol as are necessary or appropriate to
ensure the safety of the Work and Auxilium's activities at the Property prior to
Closing.
Working Committee. Neose and Auxilium hereby establish a working committee
("Working Committee"), which shall be responsible for the cooperation necessary
to allow Auxilium to conduct the Work and to protect the Property and Neose
employees and for communication and resolution of issues between the parties.
The Working Committee shall consist of two representatives who will be
authorized to act for the parties hereunder (respectively, "Neose's
Representatives" and "Auxilium's Representatives", and together, the
"Representatives"). The Representatives shall be available to attend regularly
scheduled and special meetings with each other in person or by conference call.
It is expected that regular meetings will be held weekly and may also be
attended by employees or representatives of either party other than the
Representatives.
Appointment of Representatives. Auxilium's Representatives will be Ben Del Tito
and Xxxxxxx Xxxxx, and Neose's Representatives will be H. Xxxxx Xxxxx and Xxxx
Xxxxxx. Each Party may remove and replace its Representatives on the Working
Committee at any time, without cause, upon written notice to the other Party.
Each party's Representatives shall have the authority to act on such party's
behalf at all times and with respect to issues relating to the performance of
the Work and the use and occupancy of the Property by Auxilium prior to Closing.
COMMISSIONS. If and when the Lease is fully executed and Closing occurs, Neose
shall be responsible for paying Xxxxxxx, Inc. (Auxilium's broker) and Xxxxxxx
Xxxx Company (Neose's
11
Broker) (collectively, "Brokers") a commission pursuant to a separate agreement
between such Brokers and Neose. Neose and Auxilium represent and warrant to each
other that the Brokers are the sole brokers with whom each has negotiated in
bringing about the Lease and each party agrees to indemnify and hold the other
harmless from any and all claims of other brokers and expenses in connection
therewith arising out of a misrepresentation hereunder.
ASSIGNMENT. Auxilium shall not be permitted to assign its rights or obligations
hereunder.
TERM. This Agreement shall expire and terminate effective as of Closing except
with respect to the obligations of the parties set forth in Sections 7, 10 and
11, which shall survive Closing. In the event Closing does not occur on or
before September 15, 2006, Neose shall be permitted to terminate this Agreement
and all rights of Auxilium in and to the Property upon written notice to
Auxilium whereupon Auxilium shall vacate the Property and restore the Access
Area, the Expanded Access Area and Access Equipment as provided in Section 3.
INDEMNITY.
Auxilium shall indemnify, defend and hold Neose free and harmless from and
against any and all claims, liabilities, damages, losses, actual and documented
costs or expenses (including reasonable attorneys' fees) to the extent arising
from Auxilium's activities on the Property; any act or omission of Auxilium or
anyone acting by or on behalf of Auxilium at or about the Property in connection
with this Agreement or otherwise; any use or the presence at the Property of
Approved Materials; and any failure of Auxilium to comply with the terms of this
Agreement. Neose 's consent to any Work shall not be a basis of liability to and
shall in no way diminish the generality of this indemnity or the scope of any of
Auxilium's obligations or covenants contained in this Agreement.
Neose shall indemnify, defend and hold Auxilium free and harmless from and
against any and all claims, liabilities, damages, losses, actual and documented
costs or expenses (including reasonable attorneys' fees) to the extent arising
from (i) any claim by a third party alleging injury due to the negligence, gross
negligence or willful misconduct of Neose, and (ii) any grossly negligent act or
willful misconduct of Neose or anyone acting by or on behalf of Neose at or
about the Property.
RELEASE. In order to induce Neose to permit Auxilium to access the Property and
conduct activities and the Work thereon, Auxilium, on behalf of itself, its
officers, employees, representatives, agents and contractors (collectively,
"Auxilium Releasors") hereby expressly RELEASE AND FOREVER DISCHARGE Neose, its
employees, agents, contractors and representatives (collectively, "Neose
Releasees") from any and all expenses, losses, costs, liabilities, claims,
causes of action, demands and damages for loss, damage, injury or death to the
Neose Releasees, or any of them (except to the extent resulting from the gross
negligence or willful misconduct of the Neose Releasees), or damage to the
property of Auxilium Releasors, or any of them, arising out of or in connection
with the Auxilium's use and occupancy of the Property arising at any time
including, but not limited to, the performance of Work on the Property.
CONFIDENTIALITY. The parties hereby amend the Confidentiality and Non-Disclosure
Agreement between the parties dated as of Xxxxx 0, 0000 (xxx "XXX") to extend
term of the CDA through the term of this Agreement and the Post-Closing
Agreement, and the CDA shall remain in full force and effect throughout the term
of this Agreement and the Post-Closing Agreement. Nothing herein shall modify
the survival of any provision of the CDA after such term as currently
12
provided therein. This Agreement is subject and subordinate in all respects to
the Consent to Property Access Agreements of even date herewith among
Alexandria, Neose, and Auxilium.
MISCELLANEOUS.
This Agreement may be executed in several counterparts, all of which constitute
one and the same instrument.
This Agreement shall be governed by and construed in accordance with the laws of
the Commonwealth of Pennsylvania.
The language of this Agreement shall be construed according to its normal and
usual meaning and not strictly for or against either Neose or Auxilium. The rule
of construction which allows a court to construe a document more strictly
against its author shall not govern the interpretation of this Agreement.
If any provision of this Agreement, or its application to any situation, shall
be invalid or unenforceable to any extent, the remainder of this Agreement, or
the application thereof to situations other than as to which it is invalid or
unenforceable, shall not be affected thereby, and every provision of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
This Agreement, together with the Post-Closing Agreement and the CDA,
constitutes the entire agreement, and supersedes the letter agreement dated July
26, 2006, between the parties relating to the subject matter hereof, and may be
amended only by written agreement of the parties. No representations,
inducements, promises or agreements, oral or otherwise, between Neose or
Auxilium or any of their respective brokers, employees or agents, not embodied
herein, shall be of any force or effect.
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto, their heirs, executors, administrators, successors and permitted
assigns.
Notices. All notices provided for or permitted under this Agreement shall be in
writing and shall be: (i) delivered personally; (ii) sent by facsimile with
return facsimile confirmation; (iii) sent by commercial overnight courier with
written verification of receipt; or (iv) sent by certified or registered U.S.
mail, postage prepaid and return receipt requested, to the party to be notified,
at the address for such party set forth below, or at such other address of which
such party has provided notice in accordance with the provisions of this
paragraph:
To Auxilium: Auxilium Pharmaceuticals, Inc.
Attn: General Counsel
00 Xxxxxx Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
To Neose: Neose Technologies, Inc.
Attn: General Counsel
000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
13
Notices shall be deemed effective (i) if delivered in person, when delivered;
(ii) if delivered by facsimile, on the date of receipt of facsimile
confirmation; (iii) if delivered by commercial overnight courier, on the date of
written verification of receipt; or (iv) if delivered by certified or registered
U.S. mail, five business days after deposit in the mail.
Neose and Auxilium agree that time is of the essence of this Agreement.
14
IN WITNESS WHEREOF, Neose and Auxilium, intending to be legally bound
hereby, have signed this Agreement as of the day and year first above written.
Neose Technologies, Inc. Auxilium Pharmaceuticals, Inc.
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
15
SCHEDULE 1.1
Access Area
(FLOOR PLAN)
102 Xxxxxx - Pre-Close Agreement
16
Schedule 1.1.3
Cubicles and Offices
(FLOOR PLAN)
102 Xxxxxx - Pre-Close Agreement
17
Schedule 1.1.4
Expanded Access Area
(FLOOR PLAN)
102 Xxxxxx - Pre-Close Agreement
18
Schedule 5
Eligible Employees
19
POST-CLOSING PROPERTY ACCESS AGREEMENT
THIS POST-CLOSING PROPERTY ACCESS AGREEMENT, dated September __, 2006, but
intended to be effective as of (and expressly conditioned on) the Closing (as
defined herein), is between Neose Technologies, Inc. ("Neose") and Auxilium
Pharmaceuticals, Inc. ("Auxilium") relating to the property located at 000
Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx (the "Property").
BACKGROUND
Neose is the current owner of the Property, and Auxilium desires to become
the lessee of the Property upon its sale to ARE-PA Region No. 6, LLC
("Alexandria"). Simultaneously with the execution hereof, Neose and Alexandria
have entered into a Purchase and Sale Agreement and Joint Escrow Instructions
("Agreement of Sale") for the sale and purchase of the Property, and Auxilium
and Alexandria have entered into a Lease (the "Lease") for the lease of the
Property.
The parties anticipate the closing on the sale of the Property pursuant to
the Agreement of Sale will occur on or about September __, 2006 (the "Closing").
Pursuant to a Pre-Closing Property Access Agreement of even date herewith
("Pre-Closing Agreement") between Auxilium and Neose, Neose has agreed to permit
Auxilium to enter the Property and to commence making certain alterations and
improvements thereto prior to the date of Closing. In addition, Neose has
requested and Auxilium has agreed that, following the Closing, Neose shall be
permitted to remain in occupancy of certain portions of the Property and that
Neose and Auxilium shall share certain facilities within the Property in
accordance with the terms and conditions of this Agreement.
TERMS
In consideration of the mutual promises and covenants contained herein and
intending to be legally bound hereby, the parties agree as follows:
NEOSE ACCESS.
Spaces. Upon Closing and consummation of the Lease, Auxilium hereby
gives to Neose from the date of the Closing through February 28, 2007: (a)
the exclusive right to use and occupy the laboratory and office areas of
the Property designated as Neose Space in Schedule 1.1 ("Neose Space"), (b)
the non-exclusive right in common with Auxilium to use and occupy the areas
of the Property designated as Shared Space in Schedule 1.1 ("Shared
Space"), (c) the non-exclusive right in common with Auxilium to use the
Property's parking lot reasonably sufficient to accommodate Neose's access
hereunder ("Parking Space"), (d) the non-exclusive right in common with
Auxilium to use all corridors and other means of access to the Neose Space,
the Shared Space and the Parking Space (together with the Neose Space, the
Shared Space and the Parking Space, the "Spaces") and (e) the non-
exclusive right in common with Auxilium to use the fax machines and copiers
conveyed to Alexandria pursuant to the Agreement of Sale, and which are
being leased by Alexandria to Auxilium pursuant to the Lease. The foregoing
rights to use and occupy the Spaces shall be free of any and all charges.
Each party agrees that access to the Shared Space by both parties may
require schedules to be coordinated and/or changed from time to time to
enable each party to carry out its regular business objective. Neose and
Auxilium shall endeavor to have a working schedule in place by the Closing.
Each party agrees that it shall provide notice to the other as soon as it
is determined that a reasonable change to an agreed schedule is required.
All schedules and reasonable changes to existing schedules shall be
coordinated through the Representatives described below. The Spaces will be
made
20
available to Neose on an "As-Is, Where-Is" basis, without representation or
warranty of any kind and Neose expressly accepts the Spaces on such basis.
Compliance. Neose will use reasonable commercial efforts to ensure
that neither Neose's access to the Property, the occupancy of the Spaces,
nor the conduct of its operations will interfere with Auxilium's operations
at the Property or cause any harm or destruction to or contamination of the
Property. Auxilium will use reasonable commercial efforts to ensure that
Neose will have the right of quiet enjoyment of the Spaces and will be able
to conduct its operations. Neose's use and occupancy of the Property shall
at all times comply with all applicable laws, regulations, ordinances,
safety requirements and SOPs of Auxilium ("Laws and Requirements").
Auxilium and Neose will comply with all procedures agreed upon by the
parties.
Alterations. Neose shall not make any installations, improvements,
additions, alterations, or attachments to the Spaces without the prior
consent of Auxilium, such consent not to be unreasonably withheld or
delayed. Neose, at its sole cost and expense, shall immediately repair any
damage caused to the Spaces by Neose, its employees, invitees or
contractors following the Closing.
Calibrations. Between the Closing and September 15, 2006, Neose and
its calibration vendor, Integrated Service Solutions, shall have the right
of access to the pilot plant, upon reasonable notice and during normal
business hours, for the purpose of executing terminal calibrations and
other calibrations due on Conveyed Equipment.
COOPERATION.
Cooperation. Neose and Auxilium shall cooperate with each other in
order to agree upon and implement such reasonable procedures and reasonable
protocol as are reasonably necessary to ensure the safety of each other's
personnel and to ensure noninterference with each party's business
operations. It is understood that, during the period of this Agreement,
certain equipment designated as Shared Equipment in Schedule 2.1 will be
shared by the parties. The parties agree to cooperate with each other with
respect to the use of the Shared Equipment and any issues with respect to
the use of the Shared Equipment shall be referred to the Working Committee
(as defined below). It is also understood that, until Neose vacates the
Property, Auxilium shall have the right to use up to fifty (50) lines of
the existing telephone system serving the Property.
Facility Employees. Neose and Auxilium agree that the facility
employees listed in Schedule 2.2 (each a "Facility Employee") shall,
regardless of which party employs them, continue to work together in an
integrated manner to perform their current job duties of maintaining the
Property for the benefit of both Neose and Auxilium and the Property, 000
Xxxxxx Xxxx, and 000 Xxxx Xxxx, Xxxxxxx, XX. During the thirty-day period
commencing on the date of Closing, to the extent he remains an employee of
Neose, Neose will, upon reasonable notice and subject to his availability,
make Xxxxx Xxxxxx available to Auxilium to answer questions and otherwise
provide information about the use of the Property, up to an aggregate
maximum of 20 hours.
Working Committee. Neose and Auxilium hereby establish a working
committee ("Working Committee"), which shall be responsible for the
cooperation necessary to allow Auxilium and Neose to protect their
employees and conduct their operations to manage the Facility Employees,
and for communication and resolution of issues between the parties.
21
The Working Committee shall consist of two representatives who will be
authorized to act for the parties hereunder (respectively, "Neose's
Representatives" and "Auxilium's Representatives", and together, the
"Representatives"). The Representatives shall be available to attend
regularly scheduled and special meetings with each other in person or by
conference call. It is expected that regular meetings will be held weekly
and may also be attended by employees or representatives of either party
other than the Representatives.
Appointment of Representatives. Auxilium's Representatives will be Ben
Del Tito and Xxxxxxx Xxxxx, and Neose's Representatives will be Xxxxx Xxxxx
and Xxxx Xxxxxx. Each Party may remove and replace its Representatives on
the Working Committee at any time, without cause, upon written notice to
the other Party. Each party's Representatives shall have the authority to
act on such party's behalf at all times and with respect to issues relating
to this Agreement.
Dispute. In the event the Working Committee shall fail to mutually
resolve any matter it is responsible for hereunder, Neose and Auxilium
agree to submit such matter to the senior management of each party for
mutual resolution. In the event the senior management shall fail to
mutually resolve such matter, Neose and Auxilium agree to submit such
matter pursuant to the Expedited Procedures provisions of the Arbitration
Rules for the Real Estate Industry of the AAA (presently Rules 56 through
60); provided, however, that with respect to any such arbitration, (i) the
list of arbitrators referred to in Rule 57 shall be returned within five
(5) business days from the date of mailing, (ii) the parties shall notify
the AAA, by telephone of any objections to the arbitrator appointed, within
four (4) days after such appointment, and will have no right to object if
the arbitrator so appointed was on the list submitted by the AAA and was
not objected to in accordance with Rule 57, (iii) the notice of hearing
referred to in Rule 58 shall be four (4) days in advance of the hearing,
(iv) the hearing shall be held within seven (7) days after the appointment
of the arbitrator, and (v) the arbitrator shall have no right to award
damages.
INSURANCE.
Neose shall, at its expense, maintain or cause its contractors to
maintain during the period of access hereunder commercial general liability
insurance, including contractual liability insurance and property damage
insurance under policies issued by insurers licensed to conduct business in
the state wherein the Property is located, with per occurrence limits of
not less than $5 Million for bodily injury, or death and damage to or
destruction of property (including the loss of use thereof), $5 Million
combined aggregate, and workers' compensation at statutory limits. Such
policies shall name Auxilium, Alexandria, Alexandria Real Estate Equities,
Inc., and its and their respective officers, directors, members, and
employees as additional insureds. Neose shall deliver to Auxilium and
Alexandria certificates of insurance evidencing such coverage prior to
entering upon the Property. Such certificates shall contain a provision
that same shall not be cancelled or the coverage materially altered without
first giving at least thirty days' prior written notice to Auxilium and
Alexandria.
Any policy or policies of fire, extended coverage or similar
property insurance, which either party obtains in connection with the
Property, shall include a clause or endorsement denying the insurer any
rights of subrogation against the other party for all perils covered by
such policy. Any provision of this Agreement to the contrary
notwithstanding, Neose and Auxilium hereby release the other from any and
all liability or responsibility to the other or anyone claiming through or
under them by way of subrogation
22
or otherwise (a) from any and all liability for any loss or damage to the
property of the releasing party, (b) for any loss or damage that may
result, directly or indirectly, from the loss or damage to such property
(including rental value and business interruption), and (c) from legal
liability for any loss or damage to property (no matter who the owner of
the property may be), all to the extent that the releasing party's loss or
damage is insured or, if not insured, was insurable under commercially
available "special form" property insurance policies, including additional
coverages typically obtained by owners and users of comparable facilities,
even if such loss or damage or legal liability shall be caused by or result
from the fault or negligence of the other party or anyone for whom such
party may be responsible and even if the releasing party is self-insured in
whole or in part or the amount of the releasing party's insurance is
inadequate to cover the loss or damage or legal liability. It is the
intention of the parties that Neose and Auxilium shall look solely to their
respective insurance carriers for recovery against any such property loss
or damage or legal liability, without such insurance carriers having any
rights of subrogation against the other party.
INDEPENDENT CONTRACTORS. Neose and Auxilium are independent contractors
hereunder and, except as otherwise provided herein, shall conduct their
respective businesses as they may determine, and neither party, nor any officer,
employee or agent of either party, shall have the authority to bind the other
party in any way whatsoever, or to accept service of legal process for and on
behalf of the other party pursuant to this Agreement. Neither Neose nor Auxilium
shall be deemed in any way or for any purpose, to have become, by the execution
of this Agreement or any action taken hereunder, a partner of the other party in
its business or a joint venturer or a member of a joint enterprise with the
other party.
TECHNICAL INFORMATION. Pursuant to the Agreement of Sale, Neose is conveying to
Alexandria, to the extent available and in its possession, Neose's
non-proprietary standard operating procedures specifically relating to the
Property and the maintenance of the personal property being conveyed by Neose to
Alexandria at Closing pursuant to the Agreement of Sale ("Conveyed Equipment"),
validation protocols for all Conveyed Equipment and facility systems, and
equipment turnover packages and equipment history files relating to the Conveyed
Equipment and facility systems ("Technical Information"). Neose agrees that
Alexandria may share the Technical Information with Auxilium. Auxilium agrees
that, during the term of this Agreement, the Technical Information will be
retained at the Property and that Neose may make copies of any or all of the
Technical Information. Neose agrees that it shall not remove any of the Conveyed
Equipment or Technical Information (except as necessary to make copies). Neose
further agrees that, upon expiration or earlier termination of this Agreement,
Neose shall leave all the Conveyed Equipment and Technical Information (other
than copies made by Neose) at the Property. Neose acknowledges that, to the
extent Auxilium supplements or modifies the Technical Information after the
Closing, Neose will have no rights with respect to such supplemental or modified
Technical Information.
23
WAREHOUSE FACILITY. Subject to Neose's landlord's consent, and a separate
agreement among such landlord, Auxilium and Neose, Neose will assign or sublet
the warehouse space at 000 Xxxxxx Xxxx, Xxxxxxx, XX to Auxilium effective as of
the Closing for the remainder of the current lease term, at the same current
lease rates and charges, and Auxilium will allow Neose to occupy a portion of
the warehouse space as designated in Schedule 6, free of charge, for the
remainder of the current lease term. Within two (2) days from the date hereof,
Neose shall request the landlord of 000 Xxxxxx Xxxx to consent to the foregoing
described lease assignment or sublease.
SURRENDER. As of February 28, 2007, Neose shall (i) vacate and surrender the
Spaces to Auxilium in broom clean condition, (ii) remove all of Neose's
property, fixtures and equipment (including the components of the existing
telephone system not included as part of the Conveyed Equipment other than
cabling, wires and connections within walls, above ceilings or beneath floors)
from the Spaces, (iii) restore any damage caused by the removal of any property,
fixtures and equipment of Neose, (iv) decontaminate, repair, or clean-up the
Spaces to remove any contamination from the Spaces resulting from Neose's
operations following Closing to standards reasonably acceptable to Auxilium and
(v) remove the exterior hazardous materials shed from the Property and any
contamination resulting from the shed following Closing to standards reasonably
acceptable to Auxilium.
ASSIGNMENT. Auxilium and Neose shall not be permitted to assign their rights or
obligations hereunder.
TERM. This Agreement shall expire and terminate effective as of February 28,
2007, except with respect to the obligations of the parties set forth in
paragraphs 4, 6, 8, 9, and 11 which shall survive termination. If Neose fails to
vacate the Property by 12:00 a.m. on March 1, 2007 for any reason, then for each
and every day that Neose fails to so vacate, it shall pay to Auxilium the sum of
$1,000 per day. This charge shall not limit Auxilium's right to seek such other
remedies as may be available to Auxilium either at law or in equity.
MECHANIC'S LIENS. Neose shall not cause or permit the attachment of any
mechanic's lien, materialman's lien, or any other lien, claim or encumbrance
("Encumbrance") against the Property. In the event of such Encumbrance, Neose
shall bear all cost and expense related to the defense or removal of same and
indemnify and hold Auxilium harmless from any actual and documented cost or
expense (including reasonable attorneys' fees) which Auxilium may incur in
connection therewith.
INDEMNITY.
Neose shall indemnify, defend and hold Auxilium free and harmless from
and against any and all claims, liabilities, damages, losses, actual and
documented costs or expenses (including reasonable attorneys' fees) to the
extent arising from Neose's activities on the Property; any act or omission
of Neose or anyone acting by or on behalf of Neose at or about the Property
in connection with this Agreement or otherwise; and any failure of Auxilium
to comply with the terms of this Agreement.
Auxilium shall indemnify, defend and hold Neose free and harmless from
and against any and all claims, liabilities, damages, losses, actual and
documented costs or expenses (including reasonable attorneys' fees) to the
extent arising from (i) any claim by a third party alleging injury due to
the negligence, gross negligence or willful misconduct of Auxilium, and
24
(ii) any grossly negligent act or willful misconduct of Auxilium or anyone
acting by or on behalf of Auxilium at or about the Property.
RELEASE. In order to induce Auxilium to permit Neose to access the Property,
Neose, on behalf of itself, its officers, employees, representatives, agents and
contractors (collectively, "Neose Releasors") hereby expressly RELEASE AND
FOREVER DISCHARGE Auxilium, its employees, agents, contractors and
representatives (collectively, "Auxilium Releasees") from any and all expenses,
losses, costs, liabilities, claims, causes of action, demands and damages for
loss, damage, injury or death to the Auxilium Releasees, or any of them (except
to the extent resulting from the gross negligence or willful misconduct of the
Auxilium Releasees), or damage to the property of Neose Releasors, or any of
them, arising out of or in connection with the Neose's use and occupancy of the
Property.
SERVICE CONTRACTS.
As of Closing, Neose (i) hereby assigns, transfers and sets over unto
Auxilium, and as of Closing Auxilium hereby accepts, all Neose's rights,
title and interest in and to those certain contracts listed in Part A of
Schedule 13.1, which Contracts pertain solely to the Property or Conveyed
Equipment and are immediately assignable ("Assignable Contracts"), and (ii)
will cooperate with Auxilium to obtain the consent of the other party to,
and assign, transfer, and set over to Auxilium the contracts listed in Part
B of Schedule 13.1, which contracts pertain solely to the Property or
Conveyed Equipment and require consent for assignment ("Consent Contracts"
and together with the Assignable Contracts, the "Contracts"). From and
after the Closing, Neose and Auxilium will use commercially reasonable
efforts to arrange for the transfer to Auxilium the rights and obligations
under the contracts listed in Part C of Schedule 13.1, which rights and
obligations relate solely to the Property or Conveyed Equipment ("Combined
Contracts").
Neose represents and warrants to Auxilium that: (a) the Contracts have
not been assigned previously and are not subject to any lien or
encumbrance, (b) all sums required to be paid as of the date hereof under
the Contracts have been paid, and (c) the copies of the Contracts
previously provided to Auxilium are true correct and complete and
constitute the entire agreement between Neose and the respective
contractors under the Contracts.
Neose shall be responsible for the observance and performance of all
its agreements and obligations under the Contracts arising prior to
Closing.
Auxilium hereby assumes and agrees to perform all of the covenants,
agreements and obligations of Neose arising out of or relating to the
Contracts which first arise and relate to the period from and after the
Closing.
Neose shall to the extent permitted by law, defend, protect, indemnify
and save harmless Auxilium from and against any and all liabilities, suits,
actions, losses, damages, costs and expenses, including without limitation
counsel fees, suffered or incurred by Auxilium resulting from or relating
to any failure by Neose to observe or perform any of its agreements or
obligations under the Contracts prior to Closing.
Auxilium shall defend, protect, indemnify and save harmless Neose from
and against any and all liabilities, suits, actions, losses, damages, costs
and expenses, including without limitation counsel fees, suffered or
incurred by Neose resulting from or relating to any failure
25
by Auxilium to observe or perform any of its agreements or obligations
under the Contracts on or after the Closing.
At Closing, the expenses relating to the Contracts shall be prorated
between Auxilium and Neose and Auxilium shall pay to Neose the amount that
Neose has paid prior to Closing for post-Closing time periods.
MISCELLANEOUS.
This Agreement may be executed in several counterparts, all of which
constitute one and the same instrument.
This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Pennsylvania.
The language of this Agreement shall be construed according to its
normal and usual meaning and not strictly for or against either Neose or
Auxilium. The rule of construction which allows a court to construe a
document more strictly against its author shall not govern the
interpretation of this Agreement.
If any provision of this Agreement, or its application to any
situation, shall be invalid or unenforceable to any extent, the remainder
of this Agreement, or the application thereof to situations other than as
to which it is invalid or unenforceable, shall not be affected thereby, and
every provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
This Agreement, together with the Pre-Closing Agreement and the
Confidentiality and Nondisclosure Agreement dated March 1, 2006, as amended
by the Pre-Closing Agreement, constitutes the entire agreement, and
supersedes the letter agreement dated July 26, 2006, between the parties
relating to the subject matter hereof, and may be amended only by written
agreement of the parties. No representations, inducements, promises or
agreements, oral or otherwise, between Neose or Auxilium or any of their
respective brokers, employees or agents, not embodied herein, shall be of
any force or effect. This Agreement is subject and subordinate in all
respects to the Consent to Property Access Agreements of even date herewith
among Alexandria, Neose, and Auxilium.
This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto, their heirs, executors, administrators, successors and
permitted assigns.
Notices. All notices provided for or permitted under this Agreement
shall be in writing and shall be: (i) delivered personally; (ii) sent by
facsimile with return facsimile confirmation; (iii) sent by commercial
overnight courier with written verification of receipt; or (iv) sent by
certified or registered U.S. mail, postage prepaid and return receipt
requested, to the party to be notified, at the address for such party set
forth below, or at such other address of which such party has provided
notice in accordance with the provisions of this paragraph:
26
To Auxilium: To Auxilium: Auxilium Pharmaceuticals, Inc.
Attn: General Counsel
00 Xxxxxx Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
To Neose: Neose Technologies, Inc.
Attn: General Counsel
000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Notices shall be deemed effective (i) if delivered in person, when delivered;
(ii) if delivered by facsimile, on the date of receipt of facsimile
confirmation; (iii) if delivered by commercial overnight courier, on the date of
written verification of receipt; or (iv) if delivered by certified or registered
U.S. mail, five business days after deposit in the mail.
Neose and Auxilium agree that time is of the essence of this Agreement.
27
IN WITNESS WHEREOF, Neose and Auxilium, intending to be legally bound
hereby, have signed this Agreement as of the day and year first above written.
Neose Technologies, Inc. Auxilium Pharmaceuticals, Inc.
By: By:
------------------------------ ------------------------------------
Name: Name:
---------------------------- ----------------------------------
Title: Title:
--------------------------- ---------------------------------
Schedule 1.1
Neose Space
SCHEDULE 1.1
(FLOOR PLAN)
102 Xxxxxx - Post-Close Agreement
29
Schedule 2.1
Shared Equipment
SCHEDULE 2.1
CONFIDENTIAL
XXXXXX ROAD PROPERTY - SHARED ASSETS
FAS EQUIPMENT FAS
SYSTEM # TAG # TAG # ACQ DATE VENDOR DESCRIPTION LOCATION SERIAL NUMBER
-------- --------- ----- ---------- ----------------- --------------------------------------- -------- --------------
729 M-01 00107 4/24/2000 Xxxxxx Scientific Microscope-Zeiss-Axiostar Lab 1 33485
N/A VT-116 Mini Vortexer Lab 1 2-375976
1,576 KF-02 01078 10/23/2003 Xxxxxx Scientific KFD Titrino 758/B-20 WR LAB 9 10576598
527 ST01 00958 Lunaire Environmental-(4) stability
xxxxxxxx XX LAB 9 Xxxxx # XX 00
000 XX00 00000 Xxxxxxx Environmental- see # 527 notes WR LAB 9 Xxxxx # XX 00
000 XX00 00000 Xxxxxxx Environmental- see # 527 notes WR LAB 9 Xxxxx # XX 00
000 XX00 00000 Xxxxxxx Environmental- see # 527 notes WR LAB 9 Xxxxx # XX 00
1,695 ST05 01164 4/30/2004 Xxxxxx -20 degree C, 208V general purpose free WR Lab 9 P250-104110-RO
1,699 ST06 01163 4/30/2004 Xxxxxx Scientific Ultima II SI Series ultralow-temp freez WR Lab 9 R220-208039-RO
2,191 ST07 01432 4/30/2005 Xxxxxx Scientific 32 cu ft Revco Environmental Chamber QC lab 31958
Page 1 of 1
Schedule 2.2
"Facility Employee"
Xxxxxx Xxxxxxxxxxx
Xxxxx Xxxxx
Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
Xxxxxxx Xxxxx
Xxxxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxxxx Xxxxxxx
31
Schedule 6
Warehouse Facility
(FLOOR PLAN)
201 Xxxxxx - Post-Close Agreement
32
SCHEDULE 13.1
SERVICE CONTRACTS
A. Assignable Contracts are held with the following vendors:
- AT Xxxxxxxx Service Company+
- Xxxxxxxx Group
- Critical Cleaning, Inc.
- Electronic Security Corp.
- Lancer USA+
- Neu-Ion
- Stericycle
- Steris
B. Consent Contracts are held with the following vendors:
- Allied Waste/BFI
- Xxxxxxx Controls+
C. Combined Contracts are held with the following vendors:
- Agilent+*
- Alfa Xxxxx
- Xxxxxxx Coulter+*
- GE Analytical Instruments, Inc.+
- Integrated Service Solutions
- XX Xxxxxxx Co., Inc.
- Klenzoid Water Treatment+
- Xxxxxxx
- Thermo Electron Corporation+
* Consent required for assignment.
+ The agreements with these vendors have been prepaid in full or in part and
a pro-ration must be made upon the transfer of assets pursuant to the
Agreement.
