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EXHIBIT 10.7
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (this "Agreement") is made to be
effective as of the date described in Paragraph 8.17 hereof, by and between D.C.
PITCAIRN HOLDINGS, INC., a Colorado corporation ("Seller"), having an office at
1018 Center Avenue, Fort Collins, Colorado 80526, and ATRIX LABORATORIES, INC.,
a Delaware corporation ("Purchaser"), having an office at 2579 Midpoint Drive,
Fort Collins, Colorado 80525.
W I T N E S S E T H:
ARTICLE I
PURCHASE AND SALE
1.01. AGREEMENT OF PURCHASE AND SALE. Subject to the terms and
conditions hereinafter set forth and for the consideration stated herein, Seller
agrees to sell and Purchaser agrees to purchase the following:
(a) All that certain tract or parcel of land in Larimer
County, Colorado more particularly described in Exhibit A attached and
made a part hereof, together with the improvements thereon, with a
street address of 701 Centre Drive, Fort Collins, Colorado, together
with all rights, title and interest of Seller in and to all rights,
tenements, hereditaments, easements, appendages, ways, privileges and
appurtenances, if any, pertaining thereto, including any right, title
and interest of Seller in and to the adjacent streets, alleys and
rights-of-way (the "Real Property and Improvements");
(b) All electrical fixtures, plumbing fixtures, heating
fixtures, air conditioning fixtures, and all other improvements and
fixtures owned by the Seller and located on or used in connection with
the Real Property and Improvements including, without limitation, those
certain installed freezer, refrigeration units, autoclave, despatch
oven, and steam generators. (the "Fixtures");
(c) All of Seller's right, title and interest in and to all
assignable warranties and guaranties, if any, issued to Seller in
connection with the Real Property and Improvements and Fixtures (the
"Warranties and Guaranties"); and
(d) All of Seller's right, title and interest in and so all
assignable contracts and agreements relating to the upkeep, repair,
maintenance or operation of said property which will extend beyond the
Closing Date, as hereinafter defined (the "Operating Agreements").
1.02. PROPERTY DEFINED. The property and interests described in
Sections 1.01(a) through 1.01(d) above are hereinafter sometimes collectively
referred to as the "Property."
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1.03. PERMITTED EXCEPTIONS. The Property shall be conveyed subject to
the Permitted Exceptions as defined in Section 2.04.
1.04. EARNEST MONEY. On the Effective Date, as hereinafter defined,
Purchaser shall deposit with Transnation Title Insurance Company (the "Title
Company") the sum of Twenty-Five Thousand Dollars ($25,000.00) (the "Earnest
Money") in cash, or by federal funds wire transfer, cashiers or certified check,
to be held in escrow by the Title Company as earnest money in accordance with
the terms of this Agreement. The Earnest Money shall be held by Title Company in
the highest available interest bearing account at a federally insured depository
approved by Seller. The Earnest Money and any interest thereon shall be applied
against the Purchase Price, as hereinafter defined, or shall be paid to Seller
or Purchaser as otherwise provided for in this Agreement. All references to
Earnest Money shall include the interest earned thereon, if any.
1.05. PURCHASE PRICE.
(a) Seller shall sell and Purchaser shall purchase the
Property for a total of Two Million Nine Hundred Thousand and No/100
Dollars ($2,900,000.00) (the "Purchase Price").
(b) The Purchase Price shall be payable as follows:
(i) The Earnest Money shall be applied against the
Purchase Price at Closing, as hereafter defined.
(ii) Purchaser shall pay Seller Two Million Eight
Hundred Seventy Five Thousand and No/100 Dollars
($2,875,000.00) at Closing, in cash or by federal funds wire
transfer. Such amount shall be adjusted to reflect customary
closing costs, prorations, adjustments and interest earned on
the Earnest Money, if any.
ARTICLE II
INSPECTION PERIOD AND CONTINGENCIES
2.01. REVIEW OF MATERIALS. Within five (5) days from the Effective
Date, as hereinafter defined, Seller shall deliver to Purchaser the following
documents and information; Seller makes no representations or warranties with
respect to such documents or information:
(a) a title commitment (the "Title Commitment") issued by the
Title Company evidencing title in and to the Real Property and
Improvements vested in Seller, evidencing all matters affecting title
to the Real Property and Improvements and binding the Title Company to
issue to Purchaser at the Closing an ALTA 1992 Owner's Policy of Title
Insurance in the amount of the Purchase Price ("Owners Title Policy")
for the
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Real Property and Improvements, together with copies of all instruments
referenced in Schedule B of the Title Commitment;
(b) the most recent survey of the Real Property and
Improvements in Seller's possession, if any (the "Survey," which term
shall include any update thereof or a new survey) which Survey may, at
Purchaser's expense, be recertified to Purchaser and Title Company; and
in the event Purchaser cannot obtain a recertification of the Survey,
Purchaser may obtain a new Survey at its expense.
(c) copies of all Operating Agreements in Seller's possession,
including any amendments and letter agreements relating thereto;
(d) plans and specifications for the Property in Seller's
possession, if any;
2.02. RIGHT OF INSPECTION. During the period commencing on the
Effective Date through and including July 19, 1996 (the "Inspection Period"),
Purchaser shall have the right to make a physical inspection and conduct such
other due diligence as Purchaser deems necessary with respect to the Property
and to examine records maintained by Seller relating to the Property at such
place or places as said records may be located; provided, however, Purchaser
agrees to indemnify and hold Seller harmless from and against any claim for
damages or injuries arising therefrom. The physical inspection of the Property
and such other due diligence with respect thereto by Purchaser shall include,
without limitation, (i) such engineering and structural tests and inspections as
Purchaser deems necessary, (ii) obtaining evidence that all permits and licenses
necessary for Purchaser's intended use of the Property have been or can be
obtained without undue effort or expense and (iii) performing such environmental
testing as Purchaser deems appropriate. All inspections shall occur at
reasonable times agreed upon by Seller and Purchaser and shall be conducted (a)
so as not to unreasonably interfere with use of the Property by Seller or its
tenants, and (b) so as not to violate any operating guidelines for the property.
A representative of Seller shall accompany Buyer or Buyer's agents on all
inspections.
2.03. RIGHT OF TERMINATION. Seller agrees that in the event Purchaser
determines that the Property is not suitable for its purposes in the sole and
absolute discretion of Purchaser, Purchaser shall have the right to terminate
this Agreement by sending written notice thereof (the "Termination Notice") to
Seller prior to the expiration of the Inspection Period. Upon delivery by
Purchaser of such Termination Notice prior to the expiration of the Inspection
Period, this Agreement shall terminate and the Earnest Money shall forthwith be
returned to Purchaser. If Purchaser fails to send Seller a Termination Notice
prior to the expiration of the Inspection Period, Purchaser's right to terminate
this Agreement pursuant to this Section shall expire and the Agreement shall
remain in full force and effect and the Earnest Money shall become
non-refundable subject to Purchaser's right to terminate this Agreement pursuant
to Sections 2.04 or 5.02. Simultaneously with the delivery of the Termination
Notice, Purchaser shall deliver to Seller all documents and materials in its
possession relating to the Property.
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2.04. TITLE STATUS AND INSURANCE.
(a) Title Insurance. Purchaser shall have until June 25, 1996
to examine the Title Commitment and the Survey (as defined and provided
for in Section 2.01(b)) and to object in writing to any matters
reflected therein. If Purchaser makes any timely objection to either
the Title Commitment or the Survey, then Seller, within a reasonable
period of time not to exceed five (5) business days from the date of
receipt of such objection, may (but Seller shall in no way be obligated
to do so) cure such objection and have the Title Commitment or Survey
updated to reflect such cure. If Purchaser makes any objection to title
or the Survey and Seller elects not to cure the same, or is unable to
do so within the period set forth above, Seller shall so notify
Purchaser, and Purchaser's remedy shall be to either (i) waive such
objection and purchase the Property subject thereto without reduction
in the Purchase Price, and matters previously objected to by Purchaser
and so waived by Purchaser shall become additional Permitted
Exceptions; or (ii) terminate this Agreement by notifying Seller
thereof within two (2) days after Seller notifies Purchaser of Seller's
inability or election not to cure such objection and receive a refund
of the Earnest Money. If Purchaser does not so timely elect to
terminate this Agreement, Purchaser shall be deemed to have waived its
objection to title and such matters shall become additional Permitted
Exceptions. If Purchaser fails to timely notify Seller of any
objections to title or to the Survey, it shall be deemed that Purchaser
has found the Title Commitment, Survey and all matters reflected
therein acceptable.
The Title Commitment shall set forth the requirements of the
Title Company to delete standard printed exceptions. At the Closing,
Seller shall cause the Title Company to issue a new Title Commitment
containing only the Permitted Exceptions. Seller shall cooperate with
Purchaser to cause the Title Company to delete standard printed
exceptions from the Title Commitment, but Seller shall not be obligated
to incur any additional expenses or liability to accomplish such
deletions.
(b) Permitted Exceptions. The "Permitted Exceptions" shall
mean (i) those matters set forth on the Title Commitment and approved
by Purchaser (or deemed to be waived or approved by Purchaser) and
those matters apparent upon an inspection of the Real Property and
Improvements; (ii) real property taxes and assessments for the year of
Closing and subsequent years; (iii) building, zoning and other
applicable ordinances and regulations of the County of Larimer; (iv)
taxes, assessments, fees or charges, if any, resulting from the
inclusion of the Property in any special district or; and (v) such
other matters as are caused by or acquiesced in by Purchaser or its
agents.
2.05. APPROVAL BY BOARD OF DIRECTORS OF PURCHASER. This Agreement and
Purchaser's obligations hereunder are expressly contingent upon the approval of
the terms and conditions of this Agreement by the Board of Directors of
Purchaser (the "Board") on or before ten days from the Effective Date. In the
event that Purchaser fails to deliver written notice to Seller, on or before ten
days from the Effective Date indicating that the Board has approved of the terms
and conditions of this Agreement, this Agreement shall be automatically
terminated and upon such
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termination, the parties hereto shall be relieved of all their obligations
hereunder and the Earnest Money shall be promptly returned to Purchaser.
ARTICLE III
CLOSING
3.01. TIME AND PLACE. The closing of this transaction (the "Closing")
shall take place at the offices of the law firm of Hasler, Fonfara and Maxwell,
LLC, 125 South Howes Street, 6th Floor, Fort Collins, Colorado 80521, on July
29, 1996 or such other date as Purchaser and Seller may mutually agree upon (the
"Closing Date").
3.02. SELLER'S AND PURCHASER'S OBLIGATIONS AT CLOSING. At Closing:
(a) Seller shall deliver to Purchaser a duly executed and
acknowledged: (i) general warranty deed conveying the Real Property and
Improvements, subject to the Permitted Exceptions; (ii) bill of sale
conveying the Fixtures; and (iii) assignment of Operating Agreements,
Warranties and Guaranties, and Purchaser shall join in the execution of
such assignment for the purpose of assuming all of Seller's obligations
under the Operating Agreements for all periods subsequent to the
Closing Date.
(b) Purchaser shall pay to Seller the Purchase Price, less any
amount which may be deducted therefrom pursuant to the terms of this
Agreement.
(c) Seller shall deliver to Purchaser, at Seller's expense,
the Owner's Title Policy, or an agreement by the Title Company
reasonably acceptable to Purchaser to issue Owner's Title Policy.
(d) General real estate taxes for the then current year
relating to the Property shall be prorated as of the Closing Date. If
the Closing Date shall occur before the tax rate is fixed for the then
current year, the apportionment of taxes shall be upon the basis of the
tax rate for the immediately preceding year applied to the latest
assessed valuation of the Property. All delinquent installments of
special taxes or assessments assessed or levied prior to the Closing
Date shall be paid in full by Seller and all non-delinquent
installments thereof and those assessed or levied after the Closing
Date shall be paid by Purchaser.
(e) All other income from, and expenses of, the Property,
including but not limited to rents, utility charges, maintenance
charges and service charges shall be prorated as of the Closing Date
with Seller being responsible for the costs thereof through the day
before the Closing Date and Purchaser being responsible for such costs
thereafter.
(f) Seller agrees to pay the costs of the Owner's Title
Policy, plus one-half of any escrow or closing fees charged by Title
Company. Purchaser agrees to pay one-
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half of any escrow or closing fees charged by the Title Company, and
the cost to obtain any recertification of the Survey or a new Survey,
if applicable. The Purchaser shall also be responsible for the payment
of recording costs, and the documentary fee due upon the transfer of
the Property and subsequent recording of documents. Each of the parties
hereto do hereby agree to be responsible for their respective
attorney's fees incurred in connection with the purchase and sale of
the Property. Any and all other expenses or charges in connection with
the Closing shall be paid for by the parties in accordance with
applicable custom in the State of Colorado.
(g) Personal property taxes for the then current year relating
to the Property shall be prorated as of the Closing. Purchaser shall
each pay all sales and use taxes relating to the Property, if any.
(h) Possession of the Property shall be given to Purchaser,
subject to the Permitted Exceptions, and the new Montfort Lease, as
hereafter defined.
(i) Seller shall deliver to Purchaser all keys to all locks on
the Property in Seller's possession.
(j) Seller shall deliver to Purchaser such documentary and
other evidence as may be reasonably required by Purchaser or the Title
Company evidencing the status and capacity of Seller and the authority
of the person or persons who are executing the various documents on
behalf of Seller in connection with this Agreement.
(k) Purchaser shall deliver to Seller such documentary and
other evidence as may be reasonably required by Seller or the Title
Company evidencing the status and capacity of Purchaser and the
authority of the person or persons who are executing the various
documents on behalf of Purchaser in connection with this Agreement.
(l) Seller shall deliver a FIRPTA Affidavit to Purchaser.
Notwithstanding anything contained herein to the contrary, in making
the foregoing apportionments, Purchaser shall be responsible for taxes and other
expenses incurred with respect to the day of Closing.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
4.01. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER. Purchaser
hereby represents and warrants to Seller, which representation and warranty
shall be deemed to be restated at Closing, that Purchaser is a duly organized
and validly existing under the laws of the State of Delaware and the execution
and delivery by Purchaser of and Purchaser's performance under this Agreement
are within Purchaser's powers and upon approval of the Board of Directors of
Purchaser as provided in Paragraph 2.05, shall be duly authorized by all
requisite
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action. Seller hereby represents and warrants to Purchaser, which representation
and warranty shall be deemed to be restated as Closing, that Seller is a
corporation duly organized and validly existing under the laws of the State of
Colorado and the execution and delivery by Seller of and Seller's performance
under this Agreement are within Seller's powers and have been duly authorized by
all requisite action.
4.02. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER. Purchaser
hereby covenants to Seller, which covenants shall survive Closing, as follows:
(a) Purchaser may, in connection with its investigation of the
Property during the Inspection Period, inspect the Property for the
presence of asbestos, PCB emissions and hazardous waste and any other
hazardous substance and if Purchaser conducts such inspections,
Purchaser shall notify Seller in writing of the results of such
inspection; and
(b) Purchaser shall not acquire the Property with the assets
of an employee benefit plan as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended.
4.03. REPRESENTATIONS, WARRANTIES, COVENANTS OF SELLER. Seller hereby
represents and warrants to Purchaser, which representations and warranties shall
be deemed to be restated at Closing, that:
(a) There is no pending or, to the best of Seller's knowledge,
threatened litigation or condemnation proceeding affecting the
Property;
(b) To Seller's knowledge, the Real Property and Improvements
are not in violation of any Law or Regulation relating to Hazardous
Substances or Materials;
(c) To Seller's knowledge, there has never been any above
ground or underground storage tanks containing materials which are
regulated by any Law or Regulation on the Real Property.
(d) All Fixtures are owned by Seller and shall be conveyed to
Purchaser free and clear of all liens and encumbrances.
The representations and warranties set forth herein shall
survive the Closing.
4.04. DEFINITIONS. For the purposes hereof, the following definitions
shall apply:
"Law or Regulation" means and includes the Comprehensive Environmental
Response and Liability Act ("CERLA" or the Federal Superfund Act) as amended by
the Superfund Amendments and Reauthorization Act of 1986 ("SARA") 42 U.S.C.,
Sections 9601-9675; the Federal Resource Conservation and Recovery Act of 1976
("RCRA"); the Clean Water Act, 33 U.S.C., Section 1321, et seq.; the Clean Air
Act, 42 U.S.C., Section 7401, et seq. all as the same may be from time to time
amended and any other federal, state, county, municipal, local
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or other statute, law, ordinance or regulation which may relate to or deal with
human health or the environment including, without limitation, all regulations
promulgated by a regulatory body pursuant to any such statute, law or ordinance.
"Hazardous Substances or Materials" means asbestos, ureaformaldehyde,
polychlorinated biphenyls, nuclear fuel or materials, chemical waste,
radioactive materials, explosives, known carcinogens, petroleum products or
other dangerous, toxic, or hazardous pollutant, contaminant, chemical, material
or substance defined as hazardous or as a pollutant or contaminant in, or the
release or disposal of which is regulated by, any Law or Regulation.
ARTICLE V
DEFAULT
5.01. DEFAULT BY PURCHASER. In the event that Purchaser should fail to
consummate this Agreement for any reason, except Seller's default or the
termination of this Agreement by either Seller or Purchaser as herein expressly
provided, Seller shall be entitled to terminate this Agreement and receive the
Earnest Money, as liquidated damages for the breach of this Agreement, it being
agreed between the parties hereto that the actual damages to Seller in the event
of such breach are impractical to ascertain and the amount of the Earnest Money
is a reasonable estimate thereof. Seller shall not be entitled to bring an
action for specific performance and/or additional damages.
5.02. DEFAULT BY SELLER. In the event that Seller should fail to
consummate this Agreement for any reason, except Purchaser's default or the
termination of this Agreement by Seller or Purchaser as herein expressly
provided, Purchaser shall be entitled, either (a) to recover actual (but not
consequential) damages from Seller and to recover the Earnest Money, or (b) to
bring an action to enforce specific performance of this Agreement. In no event
shall Purchaser be entitled to seek or obtain damages from Seller, except as set
forth in the prior sentence.
ARTICLE VI
RISK OF LOSS
6.01. In the event of any damage, destruction to or condemnation of the
Property subsequent to the Effective Date of this Agreement and prior to the
date of Closing, the estimated cost of repair to or condemnation proceeds of
which is in excess of $5,000.00, Purchaser, at its option, and, as its sole
remedy, may either terminate this Agreement, whereupon the Earnest Money shall
be returned to Purchaser in full, or Purchaser may elect to consummate the sale,
in which event Seller's right to all insurance or condemnation proceeds
resulting from such damage, destruction or condemnation shall be assigned in
writing by Seller to Purchaser and Seller shall have no further obligation to
Purchaser with regard to such damage, destruction or condemnation. In the event
of any damage, destruction to or condemnation of the Property subsequent to the
Effective Date of this Agreement and prior to
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the date of Closing, the estimated cost of repair of which is equal to or less
than $5,000.00, Purchaser shall have no right to terminate this Agreement as a
result thereof, provided Seller's right to all insurance proceeds and
condemnation proceeds resulting from such damage, destruction or condemnation
shall be assigned in writing by Seller to Purchaser.
ARTICLE VII
COMMISSIONS
7.01. In the event of Closing hereunder, and only in such event, Seller
agrees to pay The Land Exchange, Inc. ("Broker"), a real estate commission equal
to two and one-half percent (2.5%) (the "Fee") of the Purchaser Price at
Closing. In the event the Closing does not take place for whatever reason,
neither the Fee nor any portion thereof shall be payable to Broker. Except for
the Fee, Seller and Purchaser each hereby warrant and represent to the other
that it has not become obligated for the payment of any commission or fee
arising out of the sale provided for herein. Except for the Fee each party
agrees that should any claim be made for brokerage commissions or finder's fees
by any broker or finder by, through or on account of any acts of said party or
its representatives, said party will indemnify and hold the other party free and
harmless from and against any and all loss, liability, cost, damage and expense,
including reasonable attorneys' fees, in connection therewith. The provisions of
this paragraph shall survive Closing. Notwithstanding the foregoing, Purchaser
expressly acknowledges that Dan Nelson, who is an officer and director of
Seller, is a licensed real estate broker in the State of Colorado employed by
RE/MAX Advanced, Inc. Dan Nelson is representing the Seller in this transaction
and will be separately compensated by Seller.
ARTICLE VIII
MISCELLANEOUS
8.01. "AS IS, WHERE IS" DISCLAIMER OF WARRANTIES: PURCHASER
ACKNOWLEDGES AND AGREES: EXCEPT AS PROVIDED EXPRESSLY HEREIN, NEITHER SELLER NOR
ANYONE ACTING FOR OR ON BEHALF OF SELLER, HAS MADE ANY REPRESENTATION, WARRANTY,
STATEMENT OR PROMISE TO PURCHASER CONCERNING THE PROPERTY, THE QUALITY, VALUE,
PHYSICAL ASPECTS OR CONDITION THEREOF, ANY DIMENSIONS OR SPECIFICATIONS OF THE
PROPERTY, THE FEASIBILITY, DESIRABILITY, CONVERTIBILITY OF THE PROPERTY FOR OR
INTO ANY PARTICULAR USE, THE CURRENT OR PROJECTED INCOME OR EXPENSES OF THE
PROPERTY OR ANY OTHER MATTER WITH RESPECT TO THE PROPERTY; THAT ENTERING INTO
THIS AGREEMENT, PURCHASER HAS NOT RELIED UPON ANY REPRESENTATION, STATEMENT OR
WARRANTY OF SELLER, EXCEPT AS PROVIDED HEREIN OR ANYONE ACTING FOR OR ON BEHALF
OF SELLER, OTHER THAN AS EXPRESSLY CONTAINED IN THIS AGREEMENT, AND THAT ALL
MATTERS CONCERNING THE PROPERTY HAVE BEEN INDEPENDENTLY VERIFIED BY PURCHASER
AND THAT PURCHASER IS PURCHASING THE PROPERTY BASED UPON ITS OWN INSPECTION AND
EXAMINATION THEREOF; THAT
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PURCHASER IS PURCHASING THE PROPERTY "AS IS" AND "WHERE IS"; AND THAT, EXCEPT AS
PROVIDED IN THIS AGREEMENT, PURCHASER DOES HEREBY WAIVE AND SELLER DOES HEREBY
DISCLAIM ALL WARRANTIES OF ANY KIND OR TYPE WHATSOEVER WITH RESPECT TO THE
PROPERTY, WHETHER EXPRESSED OR IMPLIED, INCLUDING BY WAY OF DESCRIPTION BUT NOT
LIMITATION, THOSE OF MARKETABILITY, MERCHANTABILITY OF TITLE, FITNESS FOR A
PARTICULAR PURPOSE, TENANTABILITY, HABITABILITY, USE AND ALL WARRANTIES RELATING
TO COMPLIANCE BY THE PROPERTY WITH ANY APPLICABLE GOVERNMENTAL LAWS AND
REGULATIONS INCLUDING, WITHOUT LIMITATION, BUILDING AND ZONING CODES, THE SOIL
CONDITIONS OF THE PROPERTY, AND THE COMPLIANCE BY THE PROPERTY WITH ANY
ENVIRONMENTAL REQUIREMENTS. FURTHER, PURCHASER HEREBY SPECIFICALLY ASSUMES THE
RISK OF CONFIRMING THAT THE PROPERTY IS SERVED BY SUFFICIENT UTILITIES
INCLUDING, WITHOUT LIMITATION, WATER, SEWER, GAS, ELECTRIC AND TELEPHONE
SERVICE. THE TERMS OF THIS PARAGRAPH WILL SURVIVE THE CLOSING AND CONVEYANCE OF
THE PROPERTY TO PURCHASER BY SELLER.
8.02. NON-BUSINESS DAYS. If the Closing Date or any other date set
forth in this Agreement is to occur on a holiday or other non-business day or if
any period of time set forth in this Agreement expires on a holiday or
non-business day, then such closing or other date shall be the next business day
thereafter. As used in this paragraph the terms "holiday" or "non-business day"
shall mean those dates upon which nationally chartered banks of the United
States of America are not required to be open for business.
8.03. JURISDICTION. The parties hereto consent to exclusive venue and
jurisdiction in the district court in and for the County of Larimer, Colorado or
the United States District Court for the District of Colorado in any action
commenced relating to this Agreement or the transactions contemplated hereby.
8.04. RECORDATION. The parties acknowledge and agree that neither this
Agreement nor any memorandum hereof shall be recorded in the Office of the Clerk
and Recorder of Larimer County, Colorado and in the event of any recordation of
this Agreement by Purchaser, this Agreement shall, at Seller's sole option, be
rendered null and void and of no further force and effect whatsoever.
8.05. DISCHARGE OF OBLIGATIONS. The acceptance of the deed by Purchaser
at Closing shall be deemed to be a full performance and discharge of every
agreement and obligation on the part of Seller to be performed pursuant to the
provisions of this Agreement, except those, if any, which are herein
specifically stated to survive Closing.
8.06. ASSIGNMENT. Purchaser may not assign its right under this Agreement except
with the prior written consent of Seller, which consent may be given or withheld
in Seller's sole discretion.
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8.07. NOTICES.
(a) Any notice to be given by either party to this Agreement
shall be given in writing and may be effected by personal delivery or
sent by certified, United States Mail, postage prepaid, or sent by
nationally recognized overnight courier service, or sent by telecopy
confirmed by mailing (by first class or express mail, postage prepaid)
written confirmation at substantially the same time as such telecopy
transmission. All such communications shall be mailed, sent or
delivered, addressed to the party for whom it is intended at its
address set forth below:
If to Seller: D.C. Pitcairn Holdings
Attention: Dan Nelson, Vice President
1018 Centre Avenue
Fort Collins, Colorado 80526
Facsimile #(970) 221-5999
With copies thereof to: Timothy W. Hasler, Esq.
Hasler, Fonfara and Maxwell, LLP
P.O. Box 2267
Fort Collins, Colorado 80522
Facsimile # (970) 493-9703
If to Purchaser: Mr. Michael R. Duncan, Vice President
Atrix Laboratories, Inc.
2579 Midpoint Drive
Fort Collins, Colorado 80527
Facsimile #(970) 482-9735
With a copy thereof to: Stephen J. Ismert, Esq.
Kutak Rock
717 17th Street, Suite 2900
Denver, Colorado 80202
Facsimile #(303) 292-7799
(b) Any notice sent in compliance with the requirements of
this Section shall be deemed received on the date the same is either
(i) received by the party or parties to whom such notice is addressed,
or (ii) deposited in a United States Post Office or other official
depository of the United States mail, or (iii) confirmation generated
by the sender's facsimile machine that indicates the completion of the
facsimile transmission to the recipient, whichever is the first to
occur.
8.08. MODIFICATION. This Agreement cannot be changed orally, and no
agreement shall be effective to waive, change, modify or discharge it in whole
or in part unless such agreement
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is in writing and is signed by the parties against whom enforcement of any
waiver, change, modification or discharge is sought.
8.09. TIME OF ESSENCE. Seller and Purchaser agree that time is of the
essence with respect to this Agreement.
8.10. SUCCESSORS AND ASSIGNS. The terms and provisions of this
Agreement are to apply to and bind the permitted successors and assigns of the
parties hereto.
8.11. ENTIRE AGREEMENT. This Agreement, including the Exhibits,
contains the entire agreement between the parties pertaining to the subject
matter hereof and fully supersedes all prior agreements and understandings
between the parties pertaining to such subject matter.
8.12. ATTORNEYS' FEES. In the event of any controversy, claim or
dispute between the parties affecting or relating to the subject matter or
performance of this Agreement, the prevailing party shall be entitled to recover
from the non-prevailing party all of its reasonable expenses, including
reasonable attorneys' and accountants' fees.
8.13. COUNTERPARTS. This Agreement may be executed in several
counterparts, and all such executed counterparts shall constitute the same
agreement. It shall be necessary to account for only one such counterpart in
proving this Agreement.
8.14. SEVERABILITY. If any provision of this Agreement is determined by
a court of competent jurisdiction to be invalid or unenforceable, the remainder
of this Agreement shall nonetheless remain in full force and effect.
8.15. PARAGRAPH HEADINGS. Paragraph headings contained herein are for
convenience only and shall not be considered in interpreting this Agreement.
8.16. BINDING EFFECT. This Agreement shall not be binding upon any
party hereto unless and until both Seller and Purchaser have executed this
Agreement.
8.17. EFFECTIVE DATE OF AGREEMENT. Purchaser's agreement to negotiate
with Seller for the purchase of the Property shall become void and of no effect
unless Purchaser's offer to acquire the Property as evidenced by Seller's
execution of this Agreement and delivery thereof to Purchaser occurs on or
before 5:00 p.m. on June 10, 1996. The date of delivery to the Purchaser shall
be deemed the effective date (the "Effective Date") of this Agreement.
8.18. INTERSTATE LAND SALES ACT. It is the intent of Seller and
acknowledged by Purchaser that the sale of the Real Property will be exempt from
the provisions of the federal Interstate Land Sales Act under the exemption
applicable to the sale or lease of lots (a) to any person who acquires such lots
for the purpose of engaging in the business of constructing residential,
commercial or industrial buildings or for the purpose of resale of such lots to
persons engaged in such business; or (b) which are zoned by the appropriate
governmental authority for industrial or commercial developments or which is
restricted to such use by a declaration of
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covenants, conditions and restrictions, which are recorded in the official
records of the appropriate county. Purchaser hereby represents and warrants that
Purchaser is acquiring the Real Property and Improvements for such purposes.
8.19. PRESS RELEASES. Neither Seller nor Purchaser shall issue any
press release or other announcement to the general public concerning this
Agreement or the transaction contemplated hereby prior to the Closing Date
without the prior written consent of the other party.
8.20. CHOICE OF LAW. The Agreement and rights and obligations of the
parties shall be governed by Colorado law.
8.21. SELLER'S CONTINGENCY REGARDING MONTFORT LEASE. Purchaser
expressly acknowledges that the Building and Improvements are subject to an
existing lease with Montfort, Inc. (the "Existing Montfort Lease"). Montfort,
Inc. has agreed to terminate the Existing Montfort Lease provided Montfort is
able to negotiate a new lease with Purchaser on terms acceptable to Montfort,
Inc. (the "New Montfort Lease"). Seller's obligations under this Agreement are
contingent upon the termination of the "Existing Montfort Lease" prior to
Closing and the release of Seller from all liability in connection therewith.
Purchaser shall keep Seller advised as to Purchaser's progress in negotiating
the New Montfort Lease.
8.22. PURCHASER'S RIGHT TO TERMINATE AGREEMENT AND CONTINGENCY
REGARDING MONFORT LEASE. In the event that Purchaser determines that it will be
unable to enter into a lease agreement for a portion of the Real Property and
Improvements with Montfort, Inc., with terms and covenants acceptable to
Purchaser, in Purchaser's sole and absolute discretion, Purchaser shall have the
right to terminate this Agreement by sending written notice thereof to Seller at
any time prior to July 25, 1996. Upon the delivery by Purchaser of said notice,
this Agreement shall terminate and the Earnest Money shall forthwith be returned
to Purchaser.
8.23. TAX-DEFERRED EXCHANGE TRANSACTION. At the request of Seller,
Purchaser shall cooperate with Seller in the achievement of a tax-deferred real
estate exchange pursuant to Section 1031 of the Internal Revenue Code and the
Treasury Regulations promulgated thereunder. A material part of the
consideration to Seller is Purchaser's promise of cooperation. Purchaser shall
not be required to incur any additional liability or expense in connection with
Seller's tax-deferred exchange transaction.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement effective as of the date set forth in Paragraph 8.17 hereof.
[End of Document Text]
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PURCHASER:
Executed by Purchaser this ATRIX LABORATORIES, INC., a Delaware
10th day of June, 1996. corporation
By:__________________________________________
Name: John E. Urheim
Title: Vice-chairman and CEO
SELLER:
Executed by Seller this D. C. PITCAIRN HOLDINGS, INC., a Colorado
11 day of June, 1996 corporation
By___________________________________________
Name:________________________________________
Title:_______________________________________
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EXHIBIT A
Lots 1 and 2
Centre for Advanced Technology
Replat of the 8th filing
County of Larimer
State of Colorado
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