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EXHIBIT 10.14
Purchase and Sale Agreement dated February 23, 1998 by and between
Proceutics, Inc. and Alexandria Real Estate Equities, Inc.
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PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
FEBRUARY ___, 1998
BY AND BETWEEN
ALEXANDRIA REAL ESTATE EQUITIES, INC.
BUYER
AND
PROCEUTICS, INC.
SELLER
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PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
(this "Agreement") is made and entered into as of February __, 1998, by and
between ALEXANDRIA REAL ESTATE EQUITIES, INC., a Maryland corporation ("Buyer"),
and PROCEUTICS, INC., a Delaware corporation ("Seller"), for the purposes of
setting forth the agreement of the parties and of instructing CHICAGO TITLE
INSURANCE COMPANY ("Escrow Agent"), with respect to the transactions
contemplated by this Agreement.
RECITALS
Upon and subject to the terms and conditions set forth in this
Agreement, Seller desires to sell and Buyer desires to purchase the following
(collectively, the "Property"): (i) the fee interest in that certain real
property located in the City of Norcross, County of Gwinnett, State of Georgia,
as legally described on Exhibit "A" attached hereto, together with all rights,
privileges and easements appurtenant thereto or used in connection therewith,
including, without limitation, all minerals, oil, gas and other hydrocarbon
substances thereon, if any, all development rights, air rights, water, water
rights and water stock relating thereto, all strips and gores, and all of
Seller's right, title and interest in and to any streets, alleys, easements,
rights-of-way, public ways, or other rights appurtenant, adjacent or connected
thereto or used in connection therewith (collectively, the "Land"); (ii) all
buildings, improvements, structures and fixtures now or hereafter included or
located on or in the Land (collectively, the "Improvements"), including, without
limitation, that certain building commonly known as 000 Xxxxxxxxxx Xxxxxxx (the
"Building"), and all alterations, attached equipment, decorations, fixtures,
trade fixtures, additions and improvements, built-in furniture and cabinets,
together with all accessories thereto, including, without limitation, all floor
and wallcovering, built-in cabinet work and paneling, sinks and related plumbing
fixtures, exterior venting fume hoods and walk-in freezers and refrigerators,
clean rooms, climatized rooms, ductwork, conduits and electrical panels and
circuits now or hereafter located on or in the Land or the Improvements; (iii)
all tangible personal property, equipment and supplies (collectively, the
"Personal Property") now or hereafter owned by Seller and located on or about
the Land or the Improvements or attached thereto or used in connection with the
use, operation, maintenance or repair thereof, and designated in Exhibit "B",
attached hereto; and (iv) all intangible property (collectively, the "Intangible
Property") now or hereafter owned by Seller and used in connection with the
operation, maintenance and repair of the Land, the Improvements or the Personal
Property, including,
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without limitation, the Tenant Leases and the Service Contracts (each as
hereinafter defined), building trademarks and building trade names,
architectural, site, landscaping or other building and occupancy permits,
applications, approvals, authorizations and other entitlements, transferable
guarantees and warranties covering the Land and/or Improvements, all contract
rights, books, records, reports, test results, environmental assessments,
as-built plans, specifications and other similar documents and materials
relating to the use or operation, maintenance or repair of the Property or the
construction or fabrication thereof, and all transferable utility contracts, but
specifically excluding any intangible property related to the operation of
Seller's business on the Land and in the Improvements; provided, however, that
the ownership or operation of the Land or the Improvements shall not be
considered Seller's business.
AGREEMENT
In consideration of the mutual covenants contained in this
Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Buyer and Seller hereby agree, and
instruct Escrow Agent, as follows:
1. AGREEMENT TO PURCHASE AND SELL.
Subject to all of the terms and conditions of this Agreement,
Seller agrees to sell, transfer and convey to Buyer, and Buyer agrees to acquire
and purchase from Seller, the Property upon the terms and conditions set forth
herein.
2. PURCHASE PRICE.
The purchase price for the Property (the "Purchase Price")
shall be the sum of Three Million Three Hundred Thousand Dollars ($3,300,000),
payable as follows:
2.1 Deposit. Not later than the date which is three (3)
Business Days (as hereinafter defined) after the later of (i) the later of the
dates set forth next to Buyer's and Seller's signatures to this Agreement (the
"Execution Date"), or (ii) the date of the opening of Escrow (as hereinafter
defined), Buyer shall deposit into Escrow the sum of Ninety-One Thousand Eight
Hundred Seventy-Five Dollars ($91,875) (which amount, together with any and all
interest and dividends earned thereon, shall hereinafter be referred to as the
"Deposit") by wire transfer, or by certified or bank check, payable to the order
of Escrow Agent.
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Escrow Agent shall invest the Deposit in insured money market
accounts, certificates of deposit, United States Treasury Bills or such other
instruments as Buyer may instruct from time to time. In the event of the
consummation of the purchase and sale of the Property as contemplated hereunder,
the Deposit shall be paid to Seller at the Closing (as defined in Section 6
below) and credited against the Purchase Price. In the event the sale of the
Property is not consummated because of the termination of this Agreement by
Buyer in accordance with any right to so terminate provided herein, or the
failure of any condition or any other reason except for a default under this
Agreement solely on the part of Buyer, the Deposit shall be returned to Buyer.
2.2 Balance. On the Closing Date (as defined below), Buyer
shall pay to Seller the balance of the Purchase Price over and above the Deposit
paid by Buyer under Section 2.1 above, by wire transfer of federal funds to
Escrow Agent, net of all prorations and adjustments as provided herein.
3. OPENING OF ESCROW.
Promptly following the Execution Date, Buyer and Seller shall
cause a purchase and sale escrow ("Escrow") to be opened with Escrow Agent by
delivery to Escrow Agent of a fully executed copy of this Agreement (the
"Opening of Escrow"). This Agreement shall constitute escrow instructions to the
Escrow Agent as well as the agreement of the parties. Escrow Agent is hereby
appointed and designated to act as the Escrow Agent and instructed to deliver,
pursuant to the terms of this Agreement, the documents and funds to be deposited
into Escrow as herein provided. The parties hereto shall execute such additional
escrow instructions, not inconsistent with this Agreement as determined by
counsel for Buyer and Seller, as Escrow Agent shall deem reasonably necessary
for its protection, including Escrow Agent's general provisions, if any (as may
be modified by Buyer, Seller and Escrow Agent). In the event of any
inconsistency between this Agreement and such additional escrow instructions,
the provisions of this Agreement shall govern.
4. DUE DILIGENCE
4.1 Property Documents. Not later than the date which is five
(5) Business Days after the Execution Date, Seller shall deliver or make
available to Buyer, at Seller's sole cost and expense, copies of all materials
relating to the Property in Seller's possession or control or in the control or
possession of its agents, including, without limitation, all contracts,
documents, leases,
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reports, books, records and other materials relating to the Property to the
extent currently in Seller's possession or control or in the control or
possession of its agents, as-built plans and specifications, operating
statements, income and expense records, rent rolls, engineering tests, soil
tests, a Phase One environmental/asbestos audit of the Property, a Phase Two
environmental audit of the Property, service contracts, structural and
mechanical reports, maps, plans, agreements, governmental permits and approvals,
appraisals, title policies, surveys, construction warranties, and land studies
(collectively, the "Property Documents").
4.2 Diligence Tests. At all reasonable times from the
Execution Date until the Closing or earlier termination of this Agreement and
upon reasonable notice to Seller, Buyer, its agents and representatives shall be
entitled at Buyer's sole cost and expense to (i) enter onto the Property during
normal business hours to perform any inspections, investigations, studies and
tests of the Property, including, without limitation, physical, structural,
mechanical, architectural, engineering, soils, geotechnical and
environmental/asbestos tests that Buyer deems reasonable; (ii) cause an
environmental assessment of the Property to be performed; and (iii) review all
Property Documents and examine and copy any and all books and records maintained
by Seller or its agents relating to the Property (including, without limitation,
all documents relating to utilities, zoning, and the access, subdivision and
appraisal of the Property); provided, however, that Buyer shall not conduct or
caused to be conducted any testing or inspections to be conducted inside the
Building ("Interior Testing") without Seller's consent, which consent shall not
be unreasonably withheld, conditioned or delayed. Seller shall be deemed to have
consented to any Interior Testing request if no response is received by Buyer
within five (5) business days of a written request for such consent.
4.3 Tenants. Not later than the date which is ten (10) days
after the Execution Date, Seller shall arrange for an introduction of Buyer to
any tenant of the Property and shall otherwise assist and cooperate with Buyer
in providing Buyer access to such tenants. Buyer and its agents, assigns and
employees shall observe and comply with all reasonable requests on the part of
tenants at the Property regarding entry into tenant facilities for purpose of
inspection. Buyer may conduct such inquiries and investigations of any and all
tenants (or prospective tenants) as Buyer, in its sole discretion, deems
advisable or necessary. Not later than the date which is fifteen (15) Business
Days after the Execution Date, Seller shall undertake a good faith effort to
deliver to Buyer estoppel certificates, each substantially in the form of
Exhibit "C" attached hereto, executed by each tenant under the Tenant Leases
(collectively, the "Estoppel Certificates"). Seller shall have no liability if
any such tenant alters or refuses to execute the requested Estoppel Certificate.
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4.4 Property Questionnaires. Not later than the date which is
ten (10) days after the Execution Date, Seller shall deliver to Buyer property
questionnaires in the form attached hereto as Exhibit "D" (the "Property
Questionnaires")completed to the reasonable satisfaction of Buyer.
4.5 Termination Right. Buyer shall have the right at any time
on or before the date which is forty-five (45) calendar days after the Execution
Date (the "Due Diligence Termination Date") to terminate this Agreement if,
during the course of Buyer's due diligence investigations of the Property, Buyer
determines in its sole and absolute discretion that the Property is not
acceptable to Buyer. Buyer may exercise such termination right by delivering
written notice of termination to Seller and Escrow Agent on or before the Due
Diligence Termination Date. Upon such termination, (i) Escrow Agent shall return
the Deposit to Buyer, (ii) Buyer shall pay the cancellation charges of Escrow
Agent and Title Company (as hereinafter defined), and (iii) this Agreement shall
automatically terminate and be of no further force or effect and neither party
shall have any further rights or obligations hereunder, other than pursuant to
any provision hereof which expressly survives the termination of this Agreement.
If Buyer elects to exercise such termination right, all material Property
Documents delivered to Buyer pursuant to Section 4.1 shall be returned to Seller
and, so long as no dispute then exists between Buyer and Seller, Buyer shall
provide to Seller copies of all non-confidential reports prepared by third
parties relating to the Property in connection with this transaction. If Buyer
does not exercise such termination in writing on or before the Due Diligence
Termination Date, then Buyer's right to terminate this Agreement pursuant to
this Section 4.5 shall automatically lapse.
4.6 Insurance. Buyer agrees that from the Execution Date
through the Due Diligence Termination Date, Buyer shall carry, or cause its
agent to carry, workers' compensation and general liability insurance in the
amount of $1,000,000 per occurrence, which insurance shall name Seller as an
additional insured; upon request, Buyer shall provide Seller with proof of such
insurance prior to commencing Buyer's physical inspections of the Property.
4.7 Indemnity and Repair. Buyer agrees to indemnify and hold
harmless Seller from any losses resulting from any actual damage to the Property
or any bodily or personal injury caused by any act of Buyer as a result of the
inspections, investigations or tests performed pursuant to Section 4.2 above
(the "Diligence Losses") with respect to any such Diligence Losses of which
Buyer receives notice not later than the date which is 90 days after the Closing
or earlier termination of this Agreement (the "Indemnity Notice Date"), which
indemnity shall survive the earlier termination of this Agreement (and
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shall not be subject to the limitation on damages contained in Section 11) or
the Closing; provided, however, that Buyer's indemnity hereunder shall not
include any losses, cost, damage or expenses resulting from (x) the acts of
Seller, its agents or representatives, or (y) the discovery of any pre-existing
condition of the Property. In addition, if this Agreement is terminated, Buyer
shall repair any damage to the Property caused by Buyer's entry thereon and
shall restore the Property substantially to the condition in which it existed
prior to such entry; provided, however, that Buyer shall have no obligation to
repair any damage caused by Seller's negligence or willful misconduct or to
remediate, contain, xxxxx or control any Material of Environmental Concern (as
hereinafter defined) or any hazardous defect that existed at the Property prior
to Buyer's entry thereon.
4.8 Title.
4.8.1 Deliveries by Seller. Not later than fifteen
(15) days after the Execution Date, Buyer shall undertake a good faith effort to
cause to be delivered to Buyer an ALTA extended coverage preliminary title
report (the "PTR") issued by Chicago Title Insurance Company (in such capacity,
"Title Company"), together with legible copies of all documents referenced as
exceptions therein. Not later than twenty (20) days after the Execution Date,
Buyer shall undertake a good faith effort to cause to be prepared and delivered
to Buyer (a) a current As-Built American Land Title Association survey of the
Property (the "Survey"), in form reasonably satisfactory to Buyer and the Title
Company , prepared by a surveyor licensed in the State of Georgia and certified
(using a surveyor's certificate in substantially the same form as the
certificate attached hereto as Exhibit "E") to Buyer, Title Company and such
other persons or entities as Buyer may, in its discretion, request, which Survey
shall show any and all matters which Buyer may reasonably require, including,
without limitation, all Improvements, all easements, all roads, all utilities,
the number of parking spaces, access to and from the Land, and drainage ditches,
set-back lines, protrusions, encroachments, and encumbrances affecting the same;
and (b) a UCC Search with regard to the Personal Property (the "UCC Search").
4.8.2 Buyer's Review of Title. Buyer shall have until
the Due Diligence Termination Date to notify Seller in writing of any objection
which Buyer may have to any exception reported in the PTR or matter shown on the
Survey or the UCC Search or any updates thereof; provided, however, that if any
such updates are received by Buyer, Buyer shall have an additional five (5)
Business Days, regardless of the Due Diligence Termination Date, following
Buyer's receipt of such update and legible copies of all documents referenced
therein to notify Seller of objections to items shown on any such update.
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Exceptions reported in the PTR and matters shown on the Survey or the UCC Search
(or any updates thereof) not objected to by Buyer as provided above shall be
deemed to be "Permitted Exceptions." Seller shall have until the fifth (5th)
business day after the date on which Buyer delivers such objections, if any, to
Seller, to notify Buyer in writing as to (a) whether Seller will not remove or
cure the objections, (b) whether Seller will remove from title to the Property
any exceptions and matters so objected to by Buyer, or (c) whether Seller will
obtain for Buyer title insurance insuring over such exceptions or matters, such
insurance to be in form and substance satisfactory to Buyer. If Seller informs
Buyer that Seller is unwilling or unable to remove or satisfactorily insure over
any exceptions or matters objected to by Buyer, Buyer will have five (5)
business days to either (a) terminate this Agreement (in which case Escrow Agent
shall return the Deposit to Buyer, the parties shall equally share the
cancellation charges of Escrow Agent and Title Company, and neither party shall
thereafter have any rights or obligations to the other hereunder), (b) discharge
any objected to exceptions or matters which can be discharged by the payment of
money and to deduct from the cash portion of the Purchase Price the amount
reasonably necessary to do so, or (c) proceed to a timely Closing without a
reduction in the Purchase Price whereupon such objected to exceptions or matters
shall be deemed Permitted Exceptions. Seller shall in any event be required to
discharge and remove any and all liens and encumbrances affecting the Property
which secure an obligation to pay money (other than installments of real estate
taxes not delinquent as of the Closing) and, even though Buyer does not
expressly disapprove such liens, such liens and encumbrances shall not be
Permitted Exceptions.
4.8.3 Condition of Title at Closing. Upon the
Closing, Seller shall sell, transfer and convey to Buyer indefeasible fee simple
title to the Land and the Improvements thereon by a duly executed and
acknowledged limited warranty deed in the form of Exhibit "F" attached hereto
(the "Deed"), subject only to the Permitted Exceptions. Prior to Closing, Seller
shall not take any action or commit or voluntarily suffer any acts which would
give rise to a variance from the current legal description of the Land, or cause
the creation of any exception or encumbrance against or respecting the Land
without the prior written consent of Buyer, which consent Buyer may withhold in
its sole discretion. Nothing in this Section 4.8.3 shall preclude Buyer from
disapproving title matters in accordance with the provisions of Section 4.8.2
above.
5. CONDITIONS PRECEDENT TO CLOSING.
5.1 Buyer's Conditions. The obligation of Buyer to render
performance under this Agreement is subject to the following conditions
precedent (and conditions concurrent, with respect to deliveries to be made by
the parties
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at Closing) ("Buyer's Conditions"), which conditions may be waived, or the time
for satisfaction thereof extended, by Buyer only in a writing executed by Buyer;
provided, however, that any such waiver shall not affect Buyer's ability to
pursue any remedy it may have with respect to any breach hereunder by Seller:
5.1.1 000 Xxxxxxxxxx Xxxxxxx. Concurrent herewith,
Buyer has entered into a purchase and sale agreement with CytRx Corporation, a
Delaware corporation for the adjoining property commonly known as 000 Xxxxxxxxxx
Xxxxxxx (the "CytRx Purchase Agreement"). The transaction contemplated by the
CytRx Purchase Agreement shall close concurrently with the transaction
contemplated by this Agreement.
5.1.2 Title. Title Company shall be prepared and
irrevocably committed to issue (a) to Buyer an American Land Title Association
extended coverage owner's policy of title insurance in favor of Buyer in an
amount equal to the Purchase Price showing indefeasible fee simple title to the
Property vested in Buyer, with those endorsements reasonably requested by Buyer,
subject only to the Permitted Exceptions (collectively, the "Owner's Title
Policy").
5.1.3 Seller's Due Performance. All of the
representations and warranties of Seller set forth herein shall be true and
correct as of the Closing Date, and Seller, on or prior to the Closing Date,
shall have complied with and/or performed all of the obligations, covenants and
agreements required on the part of Seller to be complied with or performed
pursuant to the terms of this Agreement, including, without limitation, the
deliveries required to be made by Seller pursuant to Section 6.2 hereof. On the
Closing Date, Seller shall deliver a certificate, in the form of Exhibit "G"
attached hereto (the "Seller's Certificate"), to Buyer certifying that (i) all
of the representations, covenants and warranties of Seller made in or pursuant
to this Agreement are true, accurate, correct and complete as of the Closing,
and (ii) all conditions to the Closing that Seller was to satisfy or perform
have been satisfied and performed.
5.1.4 Physical Condition of Property. Subject to the
provisions of Section 10 below, the physical condition of the Property shall be
substantially the same on the Closing Date as on the Execution Date, except for
reasonable wear and tear and any damages due to any act of Buyer or Buyer's
representatives.
5.1.5 Bankruptcy. No action or proceeding shall have
been commenced by or against Seller under the federal bankruptcy code or any
state law for the relief of debtors or for the enforcement of the rights of
creditors and no attachment, execution, lien or levy shall have attached to or
been issued with respect to the Property or any portion thereof.
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5.1.6 Estoppel Certificates. Buyer shall have
received a fully executed original of each Estoppel Certificate.
5.1.7 Property Questionnaires. Buyer shall have
received Property Questionnaires for the Property, completed to the reasonable
satisfaction of Buyer, and no such Property Questionnaire shall indicate any
fact or circumstance that Buyer reasonably believes (based on advice of counsel)
would be likely to result in Buyer losing its status as a real estate investment
trust, as defined in Section 856 of the Internal Revenue Code (as amended), if
the transactions contemplated hereby are consummated.
5.1.8 No Moratoria. No moratorium, statute,
regulation, ordinance, or federal, state, county or local legislation, or order,
judgment, ruling or decree of any governmental agency or of any court shall have
been enacted, adopted, issued, entered or pending which would adversely affect
Buyer's intended use of the Property.
5.2 Failure of Buyer's Conditions. Subject and without
limitation to Buyer's rights hereunder, including, without limitation, Section
11.2 hereof, if any of the Buyer's Conditions have not been fulfilled within the
applicable time periods, Buyer may:
5.2.1 Waive and Close. Waive the Buyer's Condition
and close Escrow in accordance with this Agreement, without adjustment or
abatement of the Purchase Price; or
5.2.2 Cure and Close. With regard to Buyer's right to
cure title matters pursuant to Section 4.8.2 only, cure the failure of the
Buyer's Condition and reduce the Purchase Price by an amount equal to the cost
of cure; or
5.2.3 Terminate. Terminate this Agreement by written
notice to Seller and to Escrow Agent, in which event Escrow Agent shall return
the Deposit to Buyer, Buyer shall pay the cancellation charges of Title Company
and Escrow Agent, and neither party shall thereafter have any rights or
obligations to the other hereunder, except those provisions which expressly
survive Closing or earlier termination of this Agreement.
5.3 Seller's Conditions. The obligation of Seller to render
performance under this Agreement is subject to the following conditions
precedent (and conditions concurrent with respect to deliveries to be made by
the parties at Closing) ("Seller's Conditions"), which conditions may be waived,
or the time
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for satisfaction thereof extended, by Seller only in a writing executed by
Seller:
5.3.1 Buyer's Due Performance. All of the
representations and warranties of Buyer set forth in Section 8 hereof shall be
true and correct as of the Closing Date, and Buyer, on or prior to the Closing
Date, shall have complied with and/or performed all of the obligations,
covenants and agreements required on the part of Buyer to be complied with or
performed pursuant to the terms of this Agreement.
5.4 Failure of Seller's Conditions. Subject to Seller's rights
hereunder in the event of a default by Buyer which results in the failure of a
Seller's Condition, Seller may terminate this Agreement by delivery of written
notice to Buyer and Escrow Agent, in which event Escrow Agent shall return the
Deposit to Buyer, Buyer shall pay the cancellation charges of Title Company and
Escrow Agent, and neither party shall thereafter have any rights or obligations
to the other hereunder, except those provisions which expressly survive Closing
or earlier termination of this Agreement.
6. CLOSING.
6.1 Closing Date. Subject to the provisions of this Agreement,
the Closing shall take place on the fifteenth (15th) day after the Due Diligence
Termination Date, or on such other date as the parties hereto may agree. As used
herein, the "Closing" shall mean the recordation of the Deed in the Official
Records of the County of Gwinnett, State of Georgia (the "Official Records"),
and the "Closing Date" shall mean the date upon which the Closing actually
occurs.
6.2 Deliveries by Seller. Not less than two (2) Business Days
prior to the Closing Date, Seller, at its sole cost and expense, shall deliver
or cause to be delivered into Escrow the following documents and instruments,
each dated as of the Closing Date and executed by Seller, in addition to the
other items and payments required by this Agreement to be delivered by Seller:
6.2.1 Deed. The original executed, witnessed and
notarized Deed conveying the Property to Buyer or its nominee;
6.2.2 Nonforeign Affidavit. Two (2) originals of the
Nonforeign Affidavit in the form of Exhibit "H" attached hereto, each executed
by Seller;
6.2.3 Assignment of Leases. Three (3) original
counterparts of the Assignment of Leases in the form of Exhibit "I" attached
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hereto, each executed by Seller, pursuant to which Seller shall assign all of
Seller's rights and remedies under the Tenant Leases, including, without
limitation, the right to any security deposits and prepaid rent, to Buyer
pursuant to an assignment and assumption of leases and security deposits;
6.2.4 Xxxx of Sale and Assignment. Three (3) original
counterparts of the Xxxx of Sale and Assignment in the form of Exhibit "J"
attached hereto, each executed by Seller, pursuant to which Seller shall
transfer to Buyer all the Personal Property and the Intangible Property,
including, without limitation, the Property Documents, but excluding the Tenant
Leases, in each case free of all liens and encumbrances;
6.2.5 Seller's Certificate. Three (3) original
Seller's Certificates, each executed by Seller;
6.2.6 Tenant Leases. An original, fully executed
counterpart of each of the Tenant Leases and any amendments, modifications,
supplements and restatements thereto;
6.2.7 Proof of Authority. Such proof of Seller's
authority and authorization to enter into this Agreement and the transaction
contemplated hereby, and such proof of the power and authority of the
individual(s) executing or delivering any instruments, documents or certificates
on behalf of Seller to act for and bind Seller as may be reasonably required by
Title Company or Buyer;
6.2.8 New Leases. At the Closing, Seller shall
deliver to Buyer four (4) counterparts of the Building Lease (as hereinafter
defined) executed by all parties other than Buyer, in the form of Exhibit "O" to
be attached hereto (the "Building Lease"). In addition to the Building Lease,
Seller shall deliver to Buyer written leases or sub-leases in form and substance
reasonably satisfactory to Buyer executed by all parties who will remain in
occupancy as tenants or sub-tenants following the Closing, including, without
limitation, any month-to-month tenants (together with the Building Lease, the
"Permitted Leases"). The Permitted Leases shall be approved by Buyer prior to
their execution;
6.2.9 Affidavit of Seller's Residence. Three (3)
originals of the Affidavit of Seller's Residence, in the form of Exhibit "P"
attached hereto, each completed and executed by Seller; and
6.2.10 Other. Such other documents and instruments,
signed and properly acknowledged by Seller, if appropriate, as may be
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reasonably required by Buyer, Escrow Agent or otherwise in order to effectuate
the provisions of this Agreement and the Closing of the transactions
contemplated herein, including, without limitation, reasonable or customary
title affidavits and indemnities.
6.3 Deliveries by Buyer. On or before the Closing, Buyer, at
its sole cost and expense, shall deliver or cause to be delivered into Escrow
the following: (i) the balance of the Purchase Price pursuant to Section 2
hereof and Buyer's share of prorations and Closing Costs (as hereinafter
defined), as provided in Sections 6.5 and 6.6, respectively, by wire transfer of
immediately available funds; (ii) three (3) original executed counterparts of
the Assignment of Leases; (iii) all counterparts of the Permitted Leases; and
(iv) such other documents and instruments, signed and properly acknowledged by
Buyer, if appropriate, as may reasonably be required by Escrow Agent or
otherwise in order to effectuate the provisions of this Agreement and the
closing of the transactions contemplated herein.
6.4 Actions by Escrow Agent. Provided that Escrow Agent shall
not have received written notice from Buyer or Seller of the failure of any
condition to the Closing or of the termination of the Escrow and this Agreement,
when Buyer and Seller have deposited into Escrow the documents and funds
required by this Agreement, and Title Company is unconditionally and irrevocably
committed to issue the Owner's Title Policy concurrently with the Closing,
Escrow Agent shall, in the order and manner herein below indicated take the
following actions:
6.4.1 Recording. Following Title Company's
acknowledgement that it is prepared and irrevocably committed to issue the
Owner's Title Policy to Buyer, cause the Deed and any other documents which the
parties hereto may mutually direct to be recorded in the Official Records and
obtain conformed copies thereof for distribution to Buyer and Seller.
6.4.2 Funds. Upon receipt of confirmation of the
recordation of the Deed and such other documents as were recorded pursuant to
Section 6.4.1 above, disburse all funds deposited with it by Buyer as follows:
(a) Pursuant to the Closing Statement (as hereinafter
defined), retain for Escrow Agent's own account all escrow fees and costs,
disburse to Title Company the fees and expenses incurred in connection with the
issuance of the Owner's Title Policy, and disburse to any other persons or
entities entitled thereto the amount of any other Closing Costs;
(b) Disburse to Seller an amount equal to the
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Price, less or plus the net debit or credit to Seller by reason of the
prorations and allocation of Closing Costs provided for in this Section 6.
Seller's portion (as provided in Section 6.6 below) of the escrow fees, title
fees and other Closing Costs shall be paid pursuant to clause (a) above; and
(c) Disburse to Buyer any remaining funds in the
possession of Escrow Agent after payments pursuant to (a) and (b) above have
been completed.
6.4.3 Owner's Title Policy. Cause Title Company to
issue the Owner's Title Policy to Buyer.
6.4.4 Delivery of Documents. Deliver to Buyer and
Seller one original of each of all documents deposited into Escrow, other than
the Deed and the Nonforeign Affidavit.
6.5 Prorations. Rentals, revenues, and other income, if any,
from the Property, taxes, assessments, improvement bonds, service or other
contract fees, utility costs, and other expenses affecting the Property shall be
prorated between Buyer and Seller as of the Closing Date. For purposes of
calculating prorations, Buyer shall be deemed to be in title to the Property,
and therefore entitled to the income and responsible for the expenses, after
12:01 a.m. on the Closing Date. Delinquent rentals as of the Closing Date shall
not be prorated and Seller hereby irrevocably assigns, as of the Closing Date,
its entire right to collect the same to Buyer, provided, however, that any
delinquent rentals actually collected by Buyer after the Closing Date shall be
remitted to Seller after deducting Buyer's actual costs (including attorney's
fees and costs) in the collection of such delinquent rentals and after applying
such amounts to any rentals due and owing and attributable or allocable to the
period after the Closing. On the Closing Date, Buyer shall be fully credited for
(i) security deposits which were paid by tenants to Seller, (ii) reimbursement
expenses and other sums owed by Seller to tenants for work or disputes which
occurred prior to the Closing Date or for work to be performed or allowances to
be granted to any tenants upon or after the Closing Date pursuant to any Tenant
Leases in existence as of the Closing Date, (iii) any commissions or brokerage
fees payable upon or after the Closing Date in connection with any Tenant Leases
in existence as of the Closing Date, and (iv) rentals already received by Seller
attributable to periods after the Closing Date. All non-delinquent real estate
taxes or assessments on the Property shall be prorated based on the actual
current tax xxxx, but if such tax xxxx has not yet been received by Seller by
the Closing Date or if supplemental taxes are assessed after the Closing for the
period prior to the Closing, the parties shall make any necessary adjustment
after the Closing by cash payment to the party entitled thereto so that Seller
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shall have borne all taxes, including all supplemental taxes, allocable to the
period prior to the Closing and Buyer shall bear all taxes, including all
supplemental taxes, allocable to the period after the Closing. If any expenses
attributable to the Property and allocable to the period prior to the Closing
are discovered or billed after the Closing, the parties shall make any necessary
adjustment after the Closing by cash payment to the party entitled thereto so
that Seller shall have borne all expenses allocable to the period prior to the
Closing and Buyer shall bear all expenses allocable to the period from and after
the Closing. The provisions of this Section 6.5 shall survive the Closing for a
period of one (1) year.
Ten (10) days prior to the Closing, Escrow Agent shall deliver
to each of the parties for their review and approval a preliminary closing
statement (the "Preliminary Closing Statement") based on an income expense
statement prepared by Seller, approved by Buyer, and delivered to Escrow Agent
prior to said date, setting forth (i) the proration amounts allocable to each of
the parties pursuant to this Section 6.5 and (ii) the Closing Costs allocable to
each of the parties pursuant to Section 6.6 hereof. Based on each of the party's
comments, if any, regarding the Preliminary Closing Statement, Escrow Agent
shall revise the Preliminary Closing Statement and deliver a final, signed
version of a closing statement to each of the parties at the Closing (the
"Closing Statement").
6.6 Closing Costs. Each party shall pay its own costs and
expenses arising in connection with the Closing (including, without limitation,
its own attorney and advisor fees), except the following costs (the "Closing
Costs"), which shall be allocated between the parties as follows:
(i) Seller shall pay all documentary transfer,
stamp, sales and other taxes related to the transfer of the Property, one-half
(1/2) of Escrow Agent's escrow fees and costs, and all premiums, costs and fees
related to the delivery of the Owner's Title Policy, the cost of the Survey (if
not already paid), and all recording fees related to the transfer of ownership
of the Property.
(ii) Buyer shall pay one-half (1/2) of Escrow Agent's
escrow fees and costs.
6.7 Deliveries Outside of Escrow. Seller shall deliver
possession of the Property to Buyer upon the Closing, subject to the Tenant
Leases. Further, Seller hereby covenants and agrees to deliver to Buyer, on or
prior to the Closing, the following items:
6.7.1 Approvals. Originals of the Approvals, or, if
Seller is
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not able to deliver originals after diligent efforts to locate such originals,
copies of the Approvals certified to be true, complete and correct (as
hereinafter defined);
6.7.2 Intangible Property. The Intangible Property,
including, without limitation, the original Property Documents and the original
Tenant Leases; and
6.7.3 Personal Property. The Personal Property,
including, without limitation, all keys, pass cards, remote controls, security
codes, computer software and other devices relating to access to the
Improvements as required by the Permitted Leases.
7. SELLER'S REPRESENTATIONS AND WARRANTIES.
Seller represents and warrants to and agrees with Buyer that,
as of the date hereof and as of the Closing Date:
7.1 Title.
7.1.1 Ownership. Seller is the legal and equitable
owner of the Property, with full right to convey the same. Seller has not
granted any options or rights of first refusal or rights of first offer to third
parties to purchase or otherwise acquire an interest in the Property.
7.1.2 Encumbrances. To Seller's Knowledge, the
Property is free and clear of all liens, encumbrances, claims, rights, demands,
rights of way, easements, leases (other than the Tenant Leases), agreements,
covenants, conditions, and restrictions of any kind, except for (A) the
Permitted Exceptions, and (B) the Tenant Leases.
7.1.3 Streets. To "Seller's Knowledge" (as
hereinafter defined), there are no existing, proposed, or contemplated plans to
widen, modify, or realign any street or highway which affects the size of, use
of, or set-backs on the Property.
7.2 Property Documents. To Seller's Knowledge, the Property
Documents required to be delivered by Seller pursuant to the terms hereof
constitute all of the material documents relating to the Property, and each such
Property Document as delivered by Seller constitutes a true, correct and
complete copy of such Property Document. There are no commitments or agreements
known to Seller affecting the Property which have not been disclosed by Seller
to Buyer in writing.
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7.3 Leases.
7.3.1 The schedule attached hereto as Exhibit "K"
(the "Schedule of Leases") is a true, correct and complete statement, as
applicable, of all (i) the leases, tenancies and occupancies, including any
extensions, modifications, amendments or guarantees thereof in effect at the
Property (the "Tenant Leases"), (ii) the tenants at the Property, (iii) the
dates of the Tenant Leases (including the commencement and expiration dates
thereof), (iv) the annual base rents payable, the base year for escalations, the
currently escalated rents and contributions to common area maintenance,
operating expenses and insurance under the Tenant Leases, (v) the security
deposits held by or deposited with Seller under the Tenant Leases, (vi) any and
all options to extend, renew or cancel any Tenant Leases or to expand or
decrease the space covered by any Tenant Lease (including any rights of first
refusal), and (vii) any and all concessions, allowances, credits, rebates,
offsets or other cases for relief or adjustment, including, without limitation,
any unpaid reimbursements for tenant improvements and any "free" or "reduced"
rent.
7.3.2 There are no security deposits or arrearages in
rent or additional rent under any of the Tenant Leases except as set forth on
the Schedule of Leases. No rent has been prepaid under any Tenant Lease except
as set forth on the Schedule of Leases.
7.3.3 All of the services required to be supplied to
each tenant and maintained in connection with the Property are presently being
supplied and maintained and will continue to be supplied and maintained up to
and as of the Closing Date.
7.3.4 Seller has received no notices of any failure
of Seller to supply any services which Seller is required to furnish pursuant to
any Tenant Lease, and Seller has received no notice from any tenant (i) to
cancel any Tenant Lease, (ii) that such tenant is or may become unable or
unwilling to perform any or all of its obligations under its Tenant Lease,
whether for financial or other reasons, or that an action or proceeding,
voluntary or involuntary, is pending or threatened against such tenant under any
section or sections of any bankruptcy or insolvency law, or (iii) that such
tenant disputes the base rent or escalation rents or the computation of
escalation rents pursuant to its Tenant Lease.
7.3.5 Seller has received no notices of any items of
work, repair, maintenance or construction to be completed by Seller pursuant to
any Tenant Lease for the benefit of any tenant and Seller has no knowledge of
any
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such work to be done.
7.3.6 As of the Closing Date, no tenant shall be
entitled to any additional work during the term of its Tenant Lease, except as
set forth in the leases described on the Schedule of Leases.
7.3.7 The Tenant Leases are in full force and effect
and Seller has received no notice of any default by the landlord thereunder and
has no knowledge of any fact or facts which would now or with the giving of
notice or the passage of time or both be a default under the terms thereof,
except as otherwise set forth on the Schedule of Leases.
7.3.8 As of the Closing Date, there will be no
brokerage or other leasing commissions payable in connection with any of the
tenants or the Tenant Leases or any new leases or amendments of existing Tenant
Leases.
7.3.9 All of the Tenant Leases are assignable to
Buyer in connection with its purchase of the Property without the necessity for
any approval, consent or additional payment.
7.4 Condition of Property. The Property is in good condition
and repair and free from any defects, including, without limitation,
environmental, erosion, drainage or soil problems, physical, structural,
mechanical, construction or electrical defects, defects in the parking lot
pavement, or defects in utility systems. There is no material fact which has not
been disclosed to Buyer in writing which has or could reasonably be expected to
have a material adverse effect upon the Property, or the use or value thereof.
This Agreement, together with the Property Documents and any matters heretofore
disclosed to Buyer in writing by Seller, do not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements contained herein not materially misleading.
7.5 Special Assessments or Condemnation. There are not
presently pending (i) any special assessments, except those shown as exceptions
on the PTR, or (ii) condemnation actions against the Property or any part, and
Seller has not received notice of any contemplated special assessments or
eminent domain proceedings that would affect the Property.
7.6 Utilities. All water, sewer, electric, gas, telephone, and
drainage facilities, and all other utilities required by law or for the normal
operation of the Property are installed to the property lines of the Property,
have been connected to the Improvements pursuant to valid permits, are in good
working order, and are adequate to service the Property.
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7.7 Service Contracts. There are no service, maintenance,
repair, management, leasing, or supply contracts or other contracts (including,
without limitation, janitorial, elevator and landscaping agreements) affecting
the Property, oral or written, except as set forth on the schedule attached
hereto as Exhibit "L" (the "Service Contracts") and, except as set forth on such
schedule, all Service Contracts are cancellable without cost at the option of
Seller or the then owner of the Property upon not more than thirty (30) days
prior written notice. All of the Service Contracts are assignable to Buyer in
connection with its purchase of the Property without the necessity for any
approval, consent or additional payment.
7.8 Employees. There are no employees who are employed by
Seller nor any manager of the Property in the operation, management or
maintenance of the Property.
7.9 Defaults. Seller is not in default of Seller's obligations
or liabilities pertaining to the Property or the Property Documents; nor, to
Seller's Knowledge, are there facts, circumstances, conditions, or events which,
after notice or lapse of time, would constitute a default. Seller has not
received notice or information that any party to any of the Property Documents
considers a breach or default to have occurred; nor does Seller know of any
reason that there is likely to be a default under any of the documents.
7.10 Consents and Releases. Seller has obtained all required
consents, releases, and permissions to convey good, marketable and indefeasible
title to Buyer.
7.11 Authority. This Agreement and all other documents
delivered prior to or at the Closing (i) have been duly authorized, executed,
and delivered by Seller; (ii) are binding obligations of Seller; (iii) are
collectively sufficient to transfer all of Seller's rights to the Property; and
(iv) do not violate the formation documents of Seller. Seller further represents
that it is a corporation, duly organized and existing in good standing under the
laws of the State of Delaware, with its principal place of business in Georgia.
7.12 Bankruptcy. No filing or petition under the United States
Bankruptcy Law or any insolvency laws, or any laws for composition of
indebtedness or for the reorganization of debtors has been filed with regard to
Seller.
7.13 Foreign Investment In Real Property Tax Act. Seller is
not a foreign person within the meaning of 42 USCS ss. 1445(f)(3).
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7.14 Existing Approvals. The documents set forth on Exhibit
"M" attached hereto (collectively, the "Approvals") are in full force and effect
and, to Seller's Knowledge, constitute all necessary or appropriate
certifications, approvals, consents, authorizations, licenses, permits,
easements, rights of way, and all valid, final and unconditional certificates of
occupancy, or the equivalent permitting required by the applicable licensing
agency, required by any governmental authority in connection with the ownership,
development, use and maintenance of the Property. To Seller's Knowledge, all of
the Approvals are transferable to Buyer without the necessity of any approval or
consent or additional payment and no such transfer will affect the validity
thereof.
7.15 Insurance. There are currently in effect casualty and
liability insurance policies with respect to the Property. All premiums due on
such insurance policies have been paid by Seller and Seller will maintain such
insurance policies from the date hereof through the Closing Date or earlier
termination of this Agreement. Seller has not received and has no knowledge of
any notice or request from any insurance company requesting the performance of
any work or alteration with respect to the Property. Seller has received no
notice from any insurance company concerning, nor is Seller aware of, any
defects or inadequacies in the Property which, if not corrected, would result in
the termination of insurance coverage or increase its cost.
7.16 Litigation. Except as set forth on the schedule attached
hereto as Exhibit "N", there are no actions, suits or proceedings before any
judicial or quasi-judicial body, by any governmental authority or other third
party, pending, or to Seller's Knowledge, threatened, against or affecting all
or any portion of the Property and to Seller's Knowledge, there is no basis for
any such action. There are no actions, suits or proceedings pending,
contemplated or threatened by Seller in connection with all or any portion of
the Property or Seller's ownership, rights, use, development or maintenance
thereof, including, without limitation, tax reduction proceedings; and from and
after the date hereof, Seller shall not commence or allow to be commenced on its
behalf any action, suit or proceeding with respect to all or any portion of the
Property without the prior written consent of Buyer. No attachments, execution
proceedings, assignments for the benefit of creditors, insolvency, bankruptcy,
reorganization or other proceedings are pending, or, to Seller's knowledge,
threatened, against Seller. In the event any proceeding of the character
described in this Section 7.18 is initiated prior to the Closing, Seller shall
promptly advise Buyer in writing.
7.17 Compliance with Laws. The Property is in full compliance
with all existing laws, rules, regulations, ordinances and orders of all
applicable
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xxxxxxx, xxxxx, xxxx and other governmental authorities in effect as of the date
of this Agreement (collectively, "Laws"), including, without limitation, all
Laws with respect to zoning, building, fire and health codes, environmental
protection and sanitation and pollution control. Seller has received no notice
of, and has no knowledge of, any condition currently or previously existing on
the Property or any portion thereof which may give rise to any violation of any
existing Law applicable to the Property if it were disclosed to the authorities
having jurisdiction over the Property.
7.18 No Restriction on Access. To Seller's Knowledge, no fact
or condition exists which would prohibit or adversely affect the right of access
to or from the Property from or to the existing highways and roads (all of such
existing highways and roads being duly opened and dedicated to the municipality
having jurisdiction thereof) and Seller has no knowledge of any pending or
threatened restriction or denial, governmental or otherwise, upon such ingress
and egress.
7.19 Storm Drainage. All storm water flowing from the Property
drains either into a public system or onto a permitted location and through
easements for the benefit of the Property.
7.20 Soils. Seller has no knowledge of any soil conditions
adversely affecting the Property or any part thereof or Buyer's intended use.
7.21 No Conflicts. The execution and delivery of this
Agreement, the consummation of the transactions herein contemplated, and
compliance with the terms of this Agreement will not conflict with, or, with or
without notice or the passage of time or both, result in a breach of any of the
terms or provisions of, or constitute a default under, any indenture, deed of
trust, mortgage, loan agreement, or other document, or instrument or agreement,
oral or written, to which Seller is a party or by which Seller or the Property
is bound, or any applicable regulation of any governmental agency, or any
judgment, order or decree of any court having jurisdiction over Seller or all or
any portion of the Property.
7.22 Toxic or Hazardous Materials.
7.22.1 Definitions.
(a) "Environmental Claim" means any claim, action,
cause of action, investigation or notice (written or oral) by any person or
entity alleging potential liability (including, without limitation, potential
liability for investigatory costs, cleanup costs, governmental response costs,
natural resources
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damages, property damages, personal injuries, or penalties) arising out of,
based on or resulting from (i) the manufacture, treatment, processing,
distribution, use, transport, handling, deposit, storage, disposal, leaking or
other presence, or release into the environment of any "Material of
Environmental Concern" (as hereinafter defined) in, at, on, under or about any
location, whether or not owned or operated by Seller or (ii) circumstances
forming the basis of any violation, or alleged violation, of any "Environmental
Law" (as defined below).
(b) "Environmental Laws" means all federal, state and
local laws and regulations relating to pollution or protection of human health
or the environment (including, without limitation, laws and regulations relating
to emissions, discharges, releases or threatened releases of Materials of
Environmental Concern, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Materials of Environmental Concern.
(c) "Material of Environmental Concern" means
chemicals, pollutants, contaminants, wastes, toxic substances, petroleum and
petroleum products.
7.22.2 Representations and Warranties. Seller
represents and warrants to and agrees with Buyer that, as of the date hereof,
and as of the Closing Date: (i) each of the Property and Seller is in full
compliance with all applicable Environmental Laws relating to the Property,
which compliance includes, but is not limited to, the possession by Seller of
all permits and other governmental authorities required under applicable
Environmental Laws, and compliance with the terms and conditions thereof; (ii)
Seller has not received any communication (written or oral), whether from a
governmental authority, citizens group, employee or other third party, that
alleges that Seller is not in such full compliance and there are no
circumstances that may prevent or interfere with such full compliance in the
future; (iii) there is no Environmental Claim pending or, to Seller's Knowledge,
threatened with regard to the Property; (iv) there are no past or present
actions, activities, circumstances, conditions, events or incidents relating to
the Property, including, without limitation, the manufacture, treatment,
processing, distribution, use, transport, handling, deposit, storage, disposal,
leaking, or other presence or release of any Material of Environmental Concern,
that could form the basis of any Environmental Claim against (a) Seller or (b)
any other person or entity, including, without limitation, persons or entities
whose liability for any such Environmental Claim Seller has or may have retained
or assumed either contractually or by operation of law; and (v) without in any
way limiting the generality of the foregoing, (a) Seller has not stored,
disposed or arranged for
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the disposal of Materials of Environmental Concern on the Property, except in
accordance with applicable Environmental Laws, as disclosed on Exhibit "Q"
attached hereto (b) there are no underground storage tanks located on the
Property, (c) there is no asbestos contained in or forming part of any
Improvement, including, without limitation, any building, building component,
structure or office space on the Property, and (d) no polychlorinated biphenyls
(PCBs) are used or stored at the Property.
7.22.3 Indemnification. Seller agrees to indemnify,
reimburse, defend, and hold Buyer harmless from, for and against all demands,
claims, actions or causes of action, assessments, losses, damages, liabilities,
costs and expenses, including, without limitation, interest, penalties,
reasonable attorneys' fees, charges, disbursements and expenses actually
incurred, and reasonable consultants' fees, charges, disbursements and expenses,
asserted against, resulting to, imposed on, or incurred by Buyer, directly or
indirectly, in connection with (i) the breach of any representation or warranty
set forth in Section 7.21.2 of this Agreement or (ii) any event or condition,
whether known or unknown to Seller or disclosed in any report provided to Buyer,
which results, directly or indirectly, in an Environmental Claim, to the extent
such event or condition occurred, existed, or arose out of conditions that
occurred or existed, or were caused, in whole or in part, on or before the
Closing.
7.23 Survival. All of the representations, warranties and
agreements of Seller set forth in this Agreement shall be true upon the
execution of this Agreement, shall be deemed to be repeated at and as of the
Closing Date without the necessity of a separate certificate with respect
thereto and shall survive the delivery of the Deed and other Closing instruments
and documents for two (2) years. If Seller is unable to reaffirm any warranty or
representation in Section 7 because of a change in facts or circumstances not
caused by Seller, Seller will identify the change in either a notice given
pursuant to Section 9.2 or in the reaffirmation delivered at Closing and the
sole and exclusive remedy of Buyer available as a result of such change shall be
to terminate this Agreement by giving written notice to Seller not later than
the date of Closing, whereupon Escrow Agent shall return the Deposit to Buyer,
Seller will pay the cancellation charges of Escrow Agent and neither party will
have any further rights, duties or obligations under this Agreement, except
those obligations which expressly survive termination.
7.24 Seller's Knowledge. As used in this Agreement, the phrase
"to Seller's Knowledge" and words of similar import shall mean the best
knowledge of Xxxx Xxxxxxxx and Xxxx Xxxxxxx, after reasonable inquiry and
investigation of the files and materials readily available to such persons.
Seller represents and warrants that the foregoing persons are those persons
affiliated with Seller possessing the greatest experience and familiarity with
the Property, and that no other person presently or previously affiliated
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with Seller possesses any equal or greater familiarity and experience with the
Property.
7.25 As-Is. Except as expressly set forth herein, including,
without limitation elsewhere in this Article 7, and except for those warranties
in the Deed, Seller shall convey the Property to Buyer in its present "AS-IS"
condition, without any warranties, expressed or implied.
8. BUYER'S REPRESENTATIONS AND WARRANTIES.
Buyer represents and warrants to and agrees with Seller that,
as of the date hereof, and as of the Closing Date:
8.1 No Conflicts. The execution and delivery of this
Agreement, the consummation of the transactions herein contemplated, and
compliance with the terms of this Agreement will not conflict with, or, with or
without notice or the passage of time or both, result in a breach of any of the
terms or provisions of, or constitute a default under, any indenture, deed of
trust, mortgage, loan agreement, or other document or instrument to which Buyer
is a party or by which Buyer is bound, or any applicable regulation of any
governmental agency, or any judgment, order or decree of any court having
jurisdiction over Buyer or all or any portion of the Property.
8.2 Due Organization; Consents. Buyer is a corporation duly
organized and existing in good standing under the laws of the State of Maryland
with its principal place of business in the State of California. All requisite
corporate action has been taken by Buyer in connection with entering into this
Agreement, and will be taken prior to the Closing in connection with the
execution and delivery of the instruments referenced herein and the consummation
of the transactions contemplated hereby. No consent of any partner, shareholder,
beneficiary, creditor, investor, judicial or administrative body, governmental
authority or other party is required in connection herewith which has not been
obtained.
8.3 Buyer's Authority; Validity of Agreements. Buyer has full
right, power and authority to purchase the Property from Seller as provided in
this Agreement and to carry out its obligations hereunder. The individual(s)
executing this Agreement and the instruments referenced herein on behalf of
Buyer have the legal power, right and actual authority to bind Buyer to the
terms hereof and thereof. This Agreement is and all other documents and
instruments to be executed and delivered by Buyer in connection with this
Agreement shall be duly authorized, executed and delivered by Buyer and shall
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be valid, binding and enforceable obligations of Buyer.
9. ADDITIONAL COVENANTS OF SELLER.
In addition to the covenants and agreements of Seller set
forth elsewhere in this Agreement, Seller covenants and agrees that between the
date hereof and the Closing Date:
9.1 Title. Seller shall not directly or indirectly sell,
assign or create any right, title or interest whatsoever in or to the Property,
or create or permit to exist thereon any lien, charge or encumbrance other than
the Permitted Exceptions, or enter into any agreement to do any of the
foregoing, including, without limitation, any new Tenant Leases (or renewals,
modifications or extensions of any Tenant Leases) or Service Contracts, without
the prior written consent of Buyer, except that Seller may enter into the
Permitted Leases as contemplated by Section 6.2.8.
9.2 Notice of Change in Circumstances. Seller shall promptly
notify Buyer of any change in any condition with respect to the Property or any
portion thereof or of any event or circumstance of which Seller becomes aware
subsequent to the date of this Agreement which (a) materially, adversely affects
the Property or any portion thereof or the use or operation of the Property or
any portion thereof, (b) makes any representation or warranty of Seller to Buyer
under this Agreement untrue or misleading, or (c) makes any covenant or
agreement of Seller under this Agreement incapable or less likely of being
performed, it being expressly understood that Seller's obligation to provide
information to Buyer under this Section 9.2 shall in no way relieve Seller of
any liability for a breach by Seller of any of its representations, warranties,
covenants or agreements under this Agreement.
9.3 No Defaults; Maintenance of Property. Seller shall not
default with respect to the performance of any obligation relating to the
Property, including, without limitation, the payment of all amounts due and the
performance of all obligations with respect to the Tenant Leases, the Service
Contracts and any existing indebtedness relating to the Property. Seller shall
operate and maintain the Property in accordance with Seller's past practice and
all applicable Laws affecting the Property or any portion thereof.
9.4 Exclusive Negotiations. Seller shall (i) remove the
Property from the market, (ii) cease and refrain from any and all negotiations
with any other prospective optionees or purchasers of the Property, and (iii)
advise Buyer of any negotiations with current or potential tenants at the
Property.
9.5 Development Activities. Seller shall not take any actions
with
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respect to the development of the Property, including, without limitation,
applying for, pursuing, accepting or obtaining any permits, approvals or other
development entitlements from any governmental or other regulatory entities or
finalizing or entering into any agreements relating thereto without the prior
written consent of Buyer (which consent may be granted or withheld in Buyer's
sole and absolute discretion). Seller hereby agrees to reasonably cooperate with
Buyer, at no expense to Seller, in Buyer's efforts to obtain such governmental
approvals as Buyer deems necessary to permit Buyer to operate the Property as
Buyer wishes.
9.6 No Pre-Paid Rent. Seller shall not accept any rent from
any Tenant (or any new tenant under any new lease to which Buyer has consented)
for more than one (1) month in advance of the payment date.
9.7 Service, Management and Employment Contracts. Seller shall
not enter into, extend, renew or replace any existing service, property
management or employment contracts in respect of the Property without the prior
written consent of Buyer (which consent may be withheld in Buyer's sole and
absolute discretion), unless the same shall be cancellable without penalty or
premium, upon not more than thirty (30) days' notice from the owner of the
Property and Seller shall immediately notify Buyer of any such entrance,
extension, renewal or replacement
9.8 New Leases. Seller shall advise Buyer of any and all
negotiations with current or potential tenants of the Property. Seller shall not
enter into any new lease or extend any Tenant Lease without Buyer's prior
written consent, which consent may be withheld in Buyer's sole and absolute
discretion.
10. RISK OF LOSS.
10.1 Condemnation. If, prior to the Closing Date, all or any
portion of the Property is taken by condemnation or eminent domain (or is the
subject of a pending or contemplated taking which has not been consummated),
Seller shall immediately notify Buyer of such fact after obtaining notice
thereof. In such event, Buyer shall have the option to terminate this Agreement
upon written notice to Seller given not later than thirty (30) days after
receipt of such notice from Seller. Upon such termination, Escrow Agent shall
return the Deposit to Buyer, the parties shall equally share the cancellation
charges of Escrow Agent and Title Company, and neither party shall have any
further rights or obligations hereunder, other than pursuant to any provision
hereof which expressly survives the termination of this
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Agreement. If Buyer does not elect to terminate this Agreement, Seller shall
assign and turn over to Buyer, and Buyer shall be entitled to receive and keep,
all awards for the taking by condemnation or Buyer shall be deemed to have
accepted the Property subject to the taking without reduction in the Purchase
Price.
10.2 Casualty. Prior to the Closing and notwithstanding the
pendency of this Agreement, the entire risk of loss or damage by earthquake,
flood, landslide, fire, hurricane, tornado or other casualty shall be borne and
assumed by Seller. If, prior to Closing any part of the Property is damaged or
destroyed by earthquake, flood, landslide, fire, hurricane, tornado or other
casualty (the "Casualty"), Seller shall immediately notify Buyer of such fact.
In such event, Buyer shall have the option to terminate this Agreement in
accordance with the preceding section upon written notice to Seller given not
later than thirty (30) days after receipt of any such notice from Seller. If
Buyer does not elect to terminate this Agreement, Seller shall assign and turn
over, and Buyer shall be entitled to receive and keep, all insurance proceeds
payable with respect to such destruction (which shall then be repaired or not at
Buyer's option and cost), plus Seller shall pay over to Buyer an amount equal to
the deductible amount with respect to the insurance and the parties shall
proceed to Closing pursuant to the terms hereof without modification of the
terms of this Agreement and without any reduction in the Purchase Price. If
Buyer does not elect to terminate this Agreement by reason of any casualty,
Buyer shall have the right to participate in any adjustment of the insurance
claim. At Buyer's sole option, if the Casualty causes less than $50,000 total
damage, (a) Seller shall, at Seller's sole cost, restore the Property to at
least the same condition as of the effective date of this Agreement, and the
Closing shall be postponed, or (b) Seller shall assign and turn over, and Buyer
shall be entitled to receive and keep, all insurance proceeds payable with
respect to such destruction (which shall then be repaired), plus Seller shall
pay over to Buyer an amount equal to the deductible amount with respect to the
insurance and the parties shall proceed to Closing pursuant to the terms hereof
without modification of the terms of this Agreement and without any reduction in
the Purchase Price.
11. LIQUIDATED DAMAGES; SPECIFIC PERFORMANCE.
11.1 Liquidated Damages. IN THE EVENT THAT THE ESCROW AND THIS
TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT OF THE DEFAULT OF BUYER IN THE
PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT, BUYER AND SELLER AGREE THAT
SELLER'S ACTUAL DAMAGES WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX.
THE PARTIES THEREFORE AGREE THAT IN THE EVENT THAT ESCROW AND THIS TRANSACTION
FAIL TO
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CLOSE SOLELY AS A RESULT OF THE DEFAULT OF BUYER IN THE PERFORMANCE OF ITS
OBLIGATIONS HEREUNDER AND SELLER IS READY, WILING AND ABLE TO PERFORM ITS
OBLIGATIONS HEREUNDER, SELLER, AS SELLER'S SOLE AND EXCLUSIVE REMEDY, IS
ENTITLED TO LIQUIDATED DAMAGES IN THE AMOUNT OF THE DEPOSIT (INCLUSIVE OF
INTEREST AND DIVIDENDS EARNED THEREON) THEN HELD BY ESCROW AGENT. IN THE EVENT
ESCROW FAILS TO CLOSE SOLELY AS A RESULT OF BUYER'S DEFAULT AND SELLER IS READY,
WILLING AND ABLE TO PERFORM ITS OBLIGATIONS HEREUNDER, THEN (1) THIS AGREEMENT
AND THE RIGHTS AND OBLIGATIONS OF BUYER AND SELLER HEREUNDER AND THE ESCROW
CREATED HEREBY SHALL TERMINATE, (2) ESCROW AGENT SHALL, AND IS HEREBY AUTHORIZED
AND INSTRUCTED TO, RETURN PROMPTLY TO BUYER AND SELLER ALL DOCUMENTS AND
INSTRUMENTS TO THE PARTIES WHO DEPOSITED THE SAME, AND (3) ESCROW AGENT SHALL
DELIVER THE DEPOSIT (INCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON) THEN
HELD BY ESCROW AGENT TO SELLER PURSUANT TO SELLER'S INSTRUCTIONS, AND THE SAME
SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES. SELLER AND BUYER ACKNOWLEDGE
THAT THEY HAVE READ AND UNDERSTAND THE PROVISIONS OF THIS SECTION 11.1, AND BY
THEIR INITIALS IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS TERMS.
--------------------- ----------------------
Seller's Initials Buyer's Initials
11.2 Default by Seller. In the event that the Closing of the
transaction contemplated in this Agreement does not occur by reason of any
default by Seller, then (i) Escrow Agent shall return the Deposit to Buyer and
(ii) Buyer shall be entitled to pursue, as its exclusive remedies, either (a)
the specific performance of this Agreement, provided that such action is filed
within sixty (60) days of the alleged default by the Seller, or (b) recovery of
the expenses and losses incurred by Buyer, directly or indirectly, as a result
of Seller's breach in an amount not to exceed $125,000 plus all of Buyer's due
diligence costs, attorneys' fees and costs actually incurred; provided, however,
that any claims by Buyer for fraud are not subject to this recovery limit.
12. BROKERS.
Seller and Buyer each hereby represent, warrant to and agree
with each other that there are no broker or finder fees or commissions payable
in connection with the transaction contemplated hereby, other than those
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payable to Atlanta Real Estate Partners which shall be paid by Seller in
accordance with a separate agreement. Seller shall indemnify, protect, defend
and hold Buyer harmless from and against any and all claims, losses, damages,
costs and expenses (including reasonable attorneys' fees, charges and
disbursements) actually incurred by Buyer by reason of any breach or inaccuracy
of the representation, warranty and agreement of Seller contained in this
Section 12. Buyer shall indemnify, protect, defend and hold Seller harmless from
and against any and all claims, losses, damages, costs and expenses (including
reasonable attorneys' fees, charges and disbursements) actually incurred by
Seller by reason of any breach or inaccuracy of the representation, warranty and
agreement of Buyer contained in this Section 12. The provisions of this Section
12 shall survive the Closing or earlier termination of this Agreement and not be
subject to the limitations contained in Section 11.
13. CONFIDENTIALITY.
13.1 Buyer. Buyer agrees that until the Closing, except as
otherwise provided herein or required by law and except for the exercise by
Buyer of any remedy hereunder, Buyer shall (a) keep confidential the pendency of
this transaction and the documents and information supplied by Seller to Buyer,
(b) disclose such information only to Buyer's agents, employees, contractors,
consultants or attorneys, as well as lenders (if any), investment bankers,
venture capital groups, investors, title company personnel and Tenants, with a
need to know in connection with Buyer's review and consideration of the
Property, provided that Buyer shall inform all persons receiving such
information from Buyer of the confidentiality requirement and (to the extent
within Buyer's control) cause such confidence to be maintained, and (c) upon the
termination of this Agreement prior to the Closing, return to Seller promptly
upon request all copies of documents and materials supplied by Seller.
Disclosure of information by Buyer shall not be prohibited if that disclosure is
of information that is or becomes a matter of public record or public knowledge
as a result of the Closing of this transaction or from sources other than Buyer
or its agents, employees, contractors, consultants or attorneys.
13.2 Seller. Seller agrees that both prior to and after the
Closing, except as otherwise provided herein (including the Estoppel
Certificates) or required by law, and except for the exercise by Seller of any
remedy hereunder, Seller shall (a) keep confidential the pendency of this
transaction with Buyer and the identity of Buyer and the relationship between
Buyer and the entity to which Buyer may assign this Agreement or which Buyer
designates as the party to whom Seller shall convey the Property at the Closing,
and (b) disclose such information only to Seller's agents, employees,
contractors, consultants or
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attorneys, as well as Tenants and title company personnel, with a need to know
such information in connection with effecting this transaction, provided that
Seller shall inform all such persons receiving such confidential information
from Seller of the confidentiality requirement and (to the extent within
Seller's control) cause such confidence to be maintained. Disclosure of the
pendency of this transaction by Seller shall not be prohibited if that
disclosure is of information that is or becomes a matter of public record or
public knowledge as a result of the Closing of this transaction or from sources
other than Seller or its agents, employees, contractors, consultants or
attorneys.
14. INDEMNIFICATION.
Buyer hereby agrees to indemnify, defend and hold Seller
harmless from and against any claims, demands, obligations, losses, costs,
damages, liabilities, judgments or expenses (including reasonable attorneys'
fees, charges and disbursements) arising out of or in connection with the
ownership, operation or maintenance of the Property after the Closing. Seller
hereby agrees to indemnify, defend and hold Buyer harmless from and against any
claims, demands, obligations, losses, costs, damages, liabilities, judgments or
expenses (including reasonable attorneys' fees, charges and disbursements)
arising out of or in connection with the ownership, operation or maintenance of
the Property prior to the Closing. Each party shall do, execute and deliver, or
shall cause to be done, executed and delivered, all such further acts and
instruments which the other party may reasonably request in order to more fully
effectuate the indemnifications provided for in this Agreement. The provisions
of this Section 14 shall survive the Closing.
15. MISCELLANEOUS PROVISIONS.
15.1 Governing Law. This Agreement and the legal relations
between the parties hereto shall be governed by and construed and enforced in
accordance with the laws of the State of Georgia, without regard to its
principles of conflicts of law.
15.2 Entire Agreement; Modifications; Waiver.
15.2.1 Entire Agreement. This Agreement, including
the exhibits and schedules attached hereto, constitutes the entire agreement
between Buyer and Seller pertaining to the subject matter hereof and supersedes
all prior agreements, understandings, letters of intent, negotiations and
discussions, whether oral or written, of the parties, and there are no
warranties, representations or other agreements, express or implied, made to
either party by the other party in connection with the subject matter hereof
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except as specifically set forth herein or in the documents delivered pursuant
hereto or in connection herewith. Without limiting the foregoing, upon the
execution of this Agreement, that certain Letter of Intent, dated as of December
2, 1997, between Buyer and Seller, shall terminate and be of no further force or
effect.
15.2.2 Modification. No supplement, modification,
waiver or termination of this Agreement shall be binding unless executed in
writing by the party to be bound thereby. No waiver of any provision of this
Agreement shall be deemed or shall constitute a waiver of any other provision
hereof (whether or not similar), nor shall such waiver constitute a continuing
waiver unless otherwise expressly provided.
15.3 Notices. All notices, consents, requests, reports,
demands or other communications hereunder (collectively, "Notices") shall be in
writing and may be given by (i) personal delivery which shall be deemed given
when received, (ii) reputable overnight courier which shall be deemed given the
business day following the date on the courier's receipt of pick-up, subject to
acts of God or war, governmental restrictions, strikes, or other reasons beyond
the control of either Buyer or Seller.
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To Buyer: Alexandria Real Estate Equities, Inc.
000 X. Xxx Xxxxxx Xxx., Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Corporate Secretary
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With A Copy to: Alexandria Real Estate Equities, Inc.
00000 Xxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With A Copy To: Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To Seller: Proceutics, Inc.
c/o CytRx Corporation
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With A Copy To: Xxxxxx & Bird
0000 X. Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxx Xxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000 0000
To Escrow Agent: Chicago Title Insurance Company
-----------------------------------
-----------------------------------
Attention:
-------------------------
Telephone:
-------------------------
Facsimile:
-------------------------
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15.4 Expenses. Subject to the allocation of Closing Costs
provided in Section 6.6 hereof, whether or not the transactions contemplated by
this Agreement shall be consummated, all fees and expenses incurred by any party
hereto in connection with this Agreement shall be borne by such party.
15.5 Assignment.
15.5.1 Seller's Right to Assign. Seller shall not
have the right, power, or authority to assign, pledge or mortgage this Agreement
or any portion of this Agreement, or to delegate any duties or obligations
arising under this Agreement, voluntarily, involuntarily, or by operation of
law, without Buyer's prior written consent.
15.5.2 Buyer's Right to Assign. Except as otherwise
provided in this Agreement, Buyer shall have the right, power, and authority to
assign this Agreement (including, without limitation, an assignment for security
purposes) or any portion of this Agreement or to delegate any duties or
obligations arising under this Agreement, voluntarily, involuntarily or by
operation of law, without Seller's consent. Upon an assignment, Buyer shall be
relieved of all obligations under this Agreement and the Escrow, except the
indemnification obligations of Buyer pursuant to Section 4.7 and Section 12 of
this Agreement, which shall expressly survive assignment.
15.6 Severability. Any provision or part of this Agreement
which is invalid or unenforceable in any situation in any jurisdiction shall, as
to such situation and such jurisdiction, be ineffective only to the extent of
such invalidity and shall not affect the enforceability of the remaining
provisions hereof or the validity or enforceability of any such provision in any
other situation or in any other jurisdiction.
15.7 Successors and Assigns; Third Parties. Subject to and
without waiver of the provisions of Section 15.5 hereof, all of the rights,
duties, benefits, liabilities and obligations of the parties shall inure to the
benefit of, and be binding upon, their respective successors and assigns. Except
as specifically set forth or referred to herein, nothing herein expressed or
implied is intended or shall be construed to confer upon or give to any person
or entity, other than the parties hereto and their successors or assigns, any
rights or remedies under or by reason of this Agreement.
15.8 Counterparts. This Agreement may be executed in as many
counterparts as may be deemed necessary and convenient, and by the
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different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed an original, but all such counterparts shall
constitute one and the same instrument.
15.9 Headings. The section headings of this Agreement are for
convenience of reference only and shall not be deemed to modify, explain,
restrict, alter or affect the meaning or interpretation of any provision hereof.
15.10 Time of the Essence. Time shall be of the essence with
respect to all matters contemplated by this Agreement.
15.11 Further Assistance. In addition to the actions recited
herein and contemplated to be performed, executed, and/or delivered by Seller
and Buyer, Seller and Buyer agree to perform, execute and/or deliver or cause to
be performed, executed and/or delivered at the Closing or after the Closing any
and all such further acts, instruments, deeds and assurances as may be
reasonably required to consummate the transactions contemplated hereby.
15.12 Number and Gender. Whenever the singular number is used,
and when required by the context, the same includes the plural, and the
masculine gender includes the feminine and neuter genders.
15.13 Construction. This Agreement shall not be construed more
strictly against one party hereto than against any other party hereto merely by
virtue of the fact that it may have been prepared by counsel for one of the
parties.
15.14 Post-Closing Access to Records. Upon receipt by Seller
of Buyer's reasonable written request at anytime and from time to time within a
period of one (1) year after the Closing, Seller shall make available (or cause
its property manager or asset manager, as applicable, to make available) to
Buyer and its accountants and designees, for inspection and copying during
normal business hours and at Buyer's sole cost and expense, (i) all accounting
records relating to the Property (but not confidential records relating to
Seller's business conducted on the Property) for the calendar year period ended
December 31, 1997, and for the period from January 1, 1998 through the Closing
Date, including, without limitation, all general ledgers, cash receipts,
cancelled checks and other accounting documents or information reasonably
requested by Buyer and related to the Property, and (ii) all other records
related to the Property, in either case whether in the possession or control of
Seller or Seller's property manager, asset manager or other agent.
15.15 Exhibits. All exhibits attached hereto are hereby
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incorporated by reference as though set out in full herein.
15.16 Attorneys' Fees. In the event that either party hereto
brings an action or proceeding against the other party to enforce or interpret
any of the covenants, conditions, agreements or provisions of this Agreement,
the prevailing party in such action or proceeding shall be entitled to recover
all costs and expenses of such action or proceeding, including, without
limitation, reasonable attorneys' fees, charges and disbursements actually
incurred, and the reasonable fees and costs of expert witnesses actually
incurred.
15.17 Business Days. As used herein, the term "Business Day"
shall mean a day that is not a Saturday, Sunday or legal holiday. In the event
that the date for the performance of any covenant or obligation under this
Agreement shall fall on a Saturday, Sunday or legal holiday, the date for
performance thereof shall be extended to the next Business Day.
[Remainder of page intentionally blank.]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
BUYER:
ALEXANDRIA REAL ESTATE EQUITIES, INC.,
a Maryland corporation
Execution Date: ________, 1998 By:
---------------------------------------
Name:
-------------------------------------
Its:
--------------------------------------
SELLER:
PROCEUTICS, INC.,
a Delaware corporation
Execution Date: ________, 1998 By:
---------------------------------------
Name:
-------------------------------------
Its:
--------------------------------------
ESCROW AGENT:
The undersigned Escrow Agent accepts the foregoing Agreement of Purchase and
Sale and Joint Escrow Instructions and agrees to act as Escrow Agent under this
Agreement in strict accordance with its terms.
CHICAGO TITLE INSURANCE COMPANY Date: , 1998
By:
---------------------------------------
Name:
-----------------------------
Its:
------------------------------
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LIST OF EXHIBITS
EXHIBIT "A" LEGAL DESCRIPTION [TO BE PROVIDED BY SELLER]
EXHIBIT "B" PERSONAL PROPERTY INVENTORY
EXHIBIT "C" ESTOPPEL CERTIFICATE
EXHIBIT "D" PROPERTY QUESTIONNAIRE
EXHIBIT "E" SURVEYOR'S CERTIFICATE
EXHIBIT "F" DEED
EXHIBIT "G" SELLER'S CERTIFICATE
EXHIBIT "H" NONFOREIGN AFFIDAVIT
EXHIBIT "I" ASSIGNMENT OF LEASES
EXHIBIT "J" XXXX OF SALE AND ASSIGNMENT
EXHIBIT "K" SCHEDULE OF LEASES
EXHIBIT "L" SERVICE CONTRACTS
EXHIBIT "M" APPROVALS
EXHIBIT "N" LITIGATION
EXHIBIT "O" NEW LEASE - 000 XXXXXXXXXX XXXXXXX
EXIBHIT "P" AFFIDAVIT OF SELLER'S RESIDENCE
EXHIBIT "Q" DISCLOSED STORAGE OR DISPOSAL OF MATERIALS OF
ENVIRONMENTAL CONCERN [TO BE PROVIDED BY SELLER]
