PURCHASE AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into by and between (i)
AQUILA BIOPHARMACEUTICALS, INC., A DELAWARE CORPORATION ("SELLER") and (ii)
ALEXANDRIA REAL ESTATE EQUITIES, INC., A MARYLAND CORPORATION ("Purchaser"),
to provide for the purchase and sale of the property herein described.
IN CONSIDERATION OF TEN DOLLARS ($10.00), and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller and Purchaser agree as follows:
ARTICLE I - SALE OF PROPERTY
SECTION 1. 1 . Seller shall sell to Purchaser, and Purchaser shall
purchase from Seller, upon the terms and conditions hereinafter set forth,
all of Seller's right, title, and interest (if any) in and to the following
property: (i) those two (2) parcels of land located in Rockville, Montgomery
County, Maryland, and described in 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, all development rights, air rights,
water, water rights and water stock relating thereto (the "Land"); (ii) the
building and improvements located on the Land (the "Improvements"), which are
commonly known as 1500 East Gude Drive, 3 Taft Court and 3-1/2 Taft Court,
including all fixtures used in connection with the operation or occupancy of
the Land and the improvements, such as heating, air conditioning, electrical,
plumbing, security and mechanical systems and facilities used to provide any
utility services, refrigeration, waste disposal and other services; (iii) all
appliances, furnishings, furniture, fixtures, machinery, heating, ventilating
and air conditioning equipment, maintenance equipment, supplies, tools, and
other personal property attached to, located at or used in connection with
the management, operation, maintenance and repair of the Land and/or
Improvements, a complete list of which is attached hereto as EXHIBIT "B";
(iv) any land lying in the bed of any street, road, avenue or alley, open or
closed, in front of or adjoining the Land, to the center line thereof; and
(v) ( 1 ) all tenant leases, (2) rents and profits from and after the Closing
Date, (3) all security and/or tenant deposits, and other deposits, as more
fully described in Section 10.2 hereof, and (4) all intangible property now
or hereafter owned by Seller and UseD in connection with the Land, the
Improvements or the personal property, including, without limitation, the
Service Contracts (as hereinafter defined), building and trademark and trade
names, business licenses, architectural, site, landscaping and other permits,
applications, approvals, authorizations and other entitlements, guarantees
and warranties, all contract rights, books, records, reports, test results,
environmental assessments, as-built plans, specifications and other similar
documents and materials relating to the use, operation, maintenance or repair
of the Property or the construction or fabrication thereof, all utility
contracts, and all franchises, relating to the
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operation of the Property which are owned by Seller, to the extent same are
assignable. (All of the foregoing real and personal property is herein
collectively referred to as the "Property").
ARTICLE II - PURCHASE PRICE; DEPOSIT
SECTION 2.1. The purchase price for the Property shall be SIX MILLION
FIVE HUNDRED THOUSAND DOLLARS ($6,500,000.00) (the "Purchase Price"),
subject, however, to the adjustments and prorations provided for herein.
SECTION 2.2. The Purchase Price shall be paid to Seller by Purchaser by
wire transfer of immediately available funds for credit at Closing, and the
Deposit (as hereinafter defined) shall be applied to the Purchase Price.
SECTION 2.3. Purchaser shall, not later than three (3) business days
after the receipt by Purchaser of a fully executed original of this
Agreement, deliver to Chicago Title Insurance Company (the "Escrow Agent"
and/or the "Title Company"), with its business offices located at 51 Monroe
Street, Penthouse III, Rockville, Maryland 20850, as escrow agent, as a good
faith earnest money deposit hereunder, the amount of Three Hundred
Twenty-Five Thousand Dollars ($325,000.00) (such deposit and all interest
thereon is hereinafter referred to as the "Deposit"), by wire transfer of
immediately available funds. Escrow Agent shall deposit the funds comprising
the Deposit in a money market account, overnight repurchase agreements, or
other similar federally-insured investments, as directed by Purchaser and
reasonably approved by Seller. Within four (4) business days of receipt of
the Deposit, Escrow Agent shall give written notice to Seller and Purchaser
of its receipt of the Deposit, and of the name of the institution and the
account number in which the Deposit shall be held. The Deposit shall be held
and delivered by the Escrow Agent in accordance with the provisions of this
Agreement.
ARTICLE III - RIGHT OF ACCESS TO PROPERTY - FEASIBILITY
SECTION 3.1 Purchaser, and Purchaser's attorneys, accountants,
employees, agents, contractors, and representatives shall have the right at
any time and from time to time after the Execution Date (as defined in the
last paragraph of this Agreement) to examine and review all data and
financial information relating to the Property, to make studies, perform
financial analyses and inspect the Property for defects, to survey and make
other tests, including, without limitation, physical, structural, mechanical,
architectural, engineering, soils, geo-technical and environmental/asbestos
tests, all at Purchaser's sole cost and expenses. Any and all entries by
Purchaser and/or its representatives, agents, employees or contractors upon
the Property shall be subject to the rights of tenants in and to the
Improvements and the Land. All such studies shall be conducted in a
reasonable manner by Purchaser, and by its representatives, agents, employees
or contractors, and all entries
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into the Improvements shall be conducted during normal business hours. In the
event that Purchaser's studies require access to occupied space of a tenant,
then Purchaser shall give Seller not less than twenty-four (24) hours
telephone notice of its desire to inspect the premises; in the event that
Purchaser's studies do not require access to occupied space of a tenant, then
Purchaser shall give Seller reasonable advance telephone notice of its
inspection of the premises. Purchaser shall conduct its studies in a manner
so as not to unreasonably interfere with the business operations of Seller or
of any of the tenants of the Property. Neither Purchaser nor Purchaser's
representatives, agents, employees or contractors shall disclose to tenants
of the Property the possible sale of the Property by Seller. Seller (or a
representative of Seller) shall have the right to accompany Purchaser and/or
its representatives, agents, employees or contractors to any meeting with a
tenant. Seller agrees to cooperate with Purchaser in such investigations and
reviews, at no cost to Seller. Purchaser, its representatives, agents,
employees, and contractors shall maintain public liability insurance policies
insuring against claims arising as a result of the studies of the Property
being conducted by Purchaser. Before entering the Property to conduct any
studies therein, Purchaser shall supply Seller with individual insurance
certificates naming Seller as an additional insured. Purchaser shall conduct
no destructive testing or examinations on the Property without first
acquiring Seller's prior written consent to the scope, nature and locations
of such tests and examinations, which consent shall not be unreasonably
withheld, conditioned or delayed (but subject to the rights of tenants of the
Property at all times). Purchaser shall, and hereby does, indemnify, defend
and hold Seller harmless from any loss, costs (including reasonable
attorneys' fees), liability or damages which Seller or the Property may
suffer or incur resulting from the activities of Purchaser or Purchaser's
employees, agents, representatives and contractors, including without
limitation, liability for mechanics' lien claims. Purchaser shall promptly
repair any and all damage to the Property caused by Purchaser, or by any of
Purchaser's employees, agents, representatives or contractors in the course
of their studies, inspections, and other activities on the Property prior to
the Closing Date. The obligations of Purchaser described in this Section
shall survive termination or expiration of this Agreement.
SECTION 3.2 Not later than three (3) Business Days after the Execution
Date, Seller shall deliver or make available to Purchaser, copies of all
contracts, documents, leases, reports, books, records and other materials
relating to the Property which are within its possession or control,
including, without limitation, as-built plans and tests, soil tests,
structural and mechanical reports, environmental studies, maps, plans,
agreements, governmental permits and approvals, surveys, construction
warranties, an appraisal of the Land and Improvements performed in 1991, and
land studies; and expressly including a copy of the year-end 1996 Operating
Statements for the Property and a copy of the year-to-date 1997 Operating
Statements for the Property as described in Section 6.1.(I) hereof; current
rent roll for the Property as described in Section 6.1(J) hereof; copies of
all Leases as identified in Section 6.1 (J) hereof; copies of the most recent
bills for real estate taxes and
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insurance premiums received by Seller which pertain to the Property; copies
of all Service Contracts as identified in Section 6.1 (K) hereof; and a copy
of Seller's Owner's Title Insurance Policy pertaining to the Property (but
expressly excluding any internal evaluations or attorney-client privileged
materials) (collectively, the "Seller's Documents").
SECTION 3.3 Promptly after the Execution Date, Seller shall submit to
bioMerieux, Inc. ("BMI") and to BTRL Contracts and Services, Inc. ("BTRL"),
both of the tenants of the Property under the Leases, an estoppel
certificate, substantially in the form of attached EXHIBIT "G". Each of said
estoppel certificates is referred to individually hereinafter as an "Estoppel
Certificate", or collectively as the "Estoppel Certificates". Within
twenty-five (25) days after the Execution Date, Seller shall deliver to
Purchaser an Estoppel Certificate executed by BMI, provided that so long as
Seller has used reasonable efforts to acquire same from BMI, it shall not be
deemed to be in default of any of its obligations under this Agreement in the
event that BMI refuses to deliver the Estoppel Certificate substantially in
the form of attached EXHIBIT "G", or to deliver any estoppel certificate at
all. Within the aforesaid twenty-five (25) day period after the Execution
Date, Seller shall also deliver to Purchaser an Estoppel Certificate from
BTRL if the same is received by Seller. Within the Study Period, (as such
term is hereinafter defined), Purchaser shall review, and shall approve or
disapprove, each of the Estoppel Certificates delivered by Seller to
Purchaser, in Purchaser's sole discretion. Other than as set forth herein,
Seller shall have no obligation to acquire estoppel certificates from tenants
in connection with the sale of the Property to Purchaser.
SECTION 3.4 Notwithstanding anything herein to the contrarY, if Purchaser
determines in its sole and absolute discretion that the Property, or any
information acquired by Purchaser as a result of its studies concerning same
(including, without limitation, any information contained in any of the
Estoppel Certificates acquired by Seller and delivered to Purchaser, or any
information contained in the Title Commitment, the Survey or the UCC Searches
acquired by Purchaser which Seller does not expressly agree to cure in the
manner provided in Section 4.1), is unacceptable to Purchaser in any respect,
then in any such event, Purchaser shall have the right at its sole option to
terminate this Agreement by written notice sent to and received by Seller on
or before 5:00 p.m. East Coast time on the thirtieth (30th) calendar day
following the receipt by Purchaser of a fully executed original of this
Agreement. The period between such date and 5:00 p.m. East Coast time on the
thirtieth (30th) calendar day following such date is herein referred to as
the "Study, Period". Upon termination of this Agreement by Purchaser during
the Study Period as aforesaid, Purchaser will return to Seller all of the
Seller's Documents previously delivered to Purchaser; Purchaser shall repair
any damage to the Property caused by its studies and investigations; the
Deposit shall be returned to Purchaser; and the parties shall be relieved of
all furtherr obligations hereunder (except as otherwise expressly set forth
herein). If Purchaser terminates this Agreement prior to the end of the Study
Period as permitted hereby,
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Purchaser shall keep confidential all information and material pertaining to
the Property which was acquired by it during the Study Period (other than as
required by applicable law or regulation), which obligation of
confidentiality shall expire on the second (2nd) anniversary following the
date of termination of this Agreement by Purchaser.
If Seller shall not receive Purchaser's notice terminating this Agreement
prior to 5:00 p.m. East Coast time on the last day of the Study Period, then
this Agreement shall remain in full force and effect and the parties shall
proceed to Closing in the manner set forth herein.
Notwithstanding anything to the contrary contained in this Agreement,
wherever a reference is made herein to a return of the Deposit to Purchaser
after a termination of this Agreement, if there exists on the date the
Deposit is to be returned to Purchaser any damage to the Property which
Purchaser is obligated to repair, a portion of the Deposit in an amount
reasonably determined by the parties to be sufficient to repair said damage
shall continue to be held by Escrow Agent in escrow until the damage is
repaired, after which time it shall be returned promptly to Purchaser. Seller
shall have the right to use said funds to repair the Property in the event
that all such damage to the Property has not been repaired by Purchaser
within thirty (30) days after the date of termination of this Agreement;
provided, however, the establishment of said escrow shall not limit or in any
way mitigate Purchaser's obligation to pay for the full cost of repairing all
damage to the Property caused by its studies, tests and examinations.
ARTICLE IV - TITLE AND PROPERTY CONDITION
SECTION 4.1. Not later than twenty (20) days after the Execution Date,
Purchaser shall have obtained a Commitment for Title Insurance (the "Title
Commitment") issued by the Title Company, together with legible copies of all
documents referenced as exceptions therein describing encumbrances, liens
and/or defects in title that would affect the value or use of the Property.
Not later than twenty-five (25) days after the Execution Date, Purchaser also
shall have obtained (a) a current As-Built American Land Title Association
survey of the Property (the "Survey"), in form reasonably satisfactory to
Purchaser, the Title Company and any lenders designated by Purchaser (the
"New Lenders"), prepared and certified to Purchaser, the Title Company, the
New Lenders, and such other persons or entities as Purchaser may, in its
discretion, request, by a surveyor licensed in the State of Maryland, showing
any and all matters which Purchaser and the New Lenders 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 included in the sale (the "UCC Search").
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Purchaser shall have until the last day of the Study Period to notify
Seller in writing of any objection which Purchaser may have to any exception
reported in the Title Commitment or matter shown on the Survey or the UCC
Search (or any updates thereof, but, as to such updates, only as to matters
arising during the period of time after the effective date of the Title
Commitment the Survey, or the UCC Search [as applicable]; provided, however,
that if any such updates are received by Purchaser, Purchaser shall have an
additional five (5) Business Days, regardless of the occurrence of the last
day of the Study Period, following Purchaser's receipt of such update to
notify Seller of objections to items shown on any such update). Exceptions
reported in the Title Commitment and matters shown on the Survey or the UCC
Search (or any updates thereof) not objected to by Purchaser as provided
above, as well as any other matters or exceptions which existed prior to the
effective date of the Title Commitment, the Survey or the UCC Search (as
applicable) which were not reported therein, shall be deemed to be "Permitted
Exceptions." Seller shall notify Purchaser within three (3) Business Days of
receipt of written notice of Purchaser's objection to title whether it shall
take action to remove from title to the Property any exceptions and matters
so objected to by Purchaser. The failure of Seller to so notify Purchaser
shall be deemed an election by Seller to take no action. If Seller elects not
to take such action, then any such matter objected to by Purchaser shall be
deemed a Permitted Exception unless Purchaser terminates this Agreement by
the date which is the later to occur of (i) three (3) Business Days after
receipt of Seller's notice electing whether to take such remedial action (or
the expiration of the aforesaid 3 Business Day period during which Seller
failed to respond), or (ii) the last day of the Study Period. As a condition
to Closing, Seller shall take all action necessary either (y) to remove from
title to the Property any exceptions and matters so objected to by Purchaser
which Seller has elected to cure in the manner set forth above, or in the
alternative, (z) to obtain for Purchaser title insurance insuring over such
exceptions or matters which Seller has elected to cure, such insurance to be
in form and substance satisfactory to Purchaser, as determined in its
reasonable discretion. If, prior to the Closing, Seller is unable to remove
or satisfactorily insure over any exceptions or matters objected to by
Purchaser which Seller has elected to cure in the manner set forth above, and
Purchaser is unwilling to take title subject thereto, then, Purchaser may
terminate this Agreement (in which case Escrow Agent shall return the Deposit
to Purchaser, Purchaser shall repair any damage to the Property caused by
Purchaser or its representatives, employees, agents or contractors, and
neither party shall thereafter have any rights or obligations to the other
hereunder); PROVIDED, HOWEVER, that if such objected to exceptions or matters
as described above are not removed by the Closing Date (after Seller elected
to do so) Purchaser may elect, upon written notice delivered to Seller on or
prior to such date, to (a) extend the Closing Date to allow Seller a
reasonable period of time to remove such objected to exceptions or matters or
(b) proceed to a timely Closing 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
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real estate taxes not delinquent as of the Closing) and, even though
Purchaser does not expressly disapprove such liens and encumbrances, such
liens shall not be Permitted Exceptions.
SECTION 4.2. Seller covenants and agrees not to create or consent to the
imposition of any lien, encumbrance, easement, reservation, limitation,
covenant, condition or restriction upon the Property between the Execution
Date and the Closing Date without obtaining the prior written consent of
Purchaser.
SECTION 4.3. CONDITION OF PROPERTY. Other than as expressly set forth in
this Agreement, at the Closing, Seller shall deliver the Property to
Purchaser in the same "AS IS, WHERE IS" condition which existed on the date
hereof, ordinary wear and tear excepted and in the condition permitted by the
terms of Article XI.
ARTICLE V - CLOSING
SECTION 5.1. Purchaser hereby authorizes the Title Company to act as the
settlement agent for purposes of conducting the Closing. Closing of this
Agreement (the "Closing") shall be held at the office of the Title Company
which are located at 51 Monroe Street, Penthouse III, Rockville, Maryland
20850. If all conditions precedent as set forth in this Agreement are fully
satisfied (except those conditions for the benefit of Purchaser, if any,
which Purchaser in its sole discretion may waive in writing, and those
conditions for the benefit of Seller, if any, which Seller in its sole
discretion may waive in writing), Purchaser and Seller shall make full
settlement hereunder pursuant to the terms hereof on a date and at a time
selected by Purchaser, and mutually convenient to both Seller and Purchaser,
but in no event shall said date be later than fifteen (15) days following the
expiration date of the Study Period. Purchaser shall give to Seller at least
five (5) days prior written notice of its proposed date and time of Closing.
Purchaser acknowledges that Seller's business offices are in Massachusetts,
and accordingly, Purchaser agrees to use all reasonable efforts to cause the
Title Company to deliver to Seller for execution the deed of conveyance, the
settlement statement, and all other documents necessary for the consummation
of the transactions contemplated by this Agreement, in advance of the
proposed date of Closing, and, under such circumstances, Closing shall occur
without the necessity of a formal meeting of both Seller and Purchaser in the
offices of the Title Company as otherwise described herein. The date of
Closing is sometimes referred to as the "Closing date" in this Agreement.
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ARTICLE VI - SELLER'S AND PURCHASER'S
REPRESENTATIONS AND WARRANTIES
SECTION 6.1. Seller represents, warrants and covenants to Purchaser that,
as of the Execution Date:
(A) Seller is a corporation duly formed, validly existing and in good
standing under the laws of the state of its incorporation, is in good
standing and is qualified to do business in the State of Maryland. Seller has
the authority and power to enter into this Agreement and to consummate the
transaction provided for herein, and such action will not breach any court
order, the organizational documents of Seller or other existing agreement or
agreements to which Seller is a party. No governmental or third party
approvals or consents are required for Sellers execution and delivery of this
Agreement, or performance of its obligations hereunder, and Sellers execution
and performance hereof do not and shall not violate, and are not restricted
by, any other contractual obligations or any legal requirements to which
Seller is a party or by which Seller is bound.
(B) There is no action, suit, proceeding or investigation pending or, to
Seller's actual knowledge, threatened before any agency, court or other
governmental authority which relates specifically to Seller, the Property or
Seller's operation thereof (other than minor property damage and personal
injury cases in the nature of slip and fall cases which are being handled in
due course by Seller's insurance carrier, if any). On the Effective Date,
(but not necessarily on the Closing Date), no such minor property damage or
personal injury cases exist. If any such minor property damage or personal
injury cases exist on the Closing Date, Seller shall so advise Purchaser (but
the existence thereof shall not be a breach of Seller's representations or
warranties as set forth herein). There are no actions, suits or proceedings
pending, contemplated or threatened to be initiated 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 Execution Date, 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 Purchaser, which consent shall not be unreasonably
withheld, delayed or conditioned. No attachments, execution proceedings,
assignments for the benefit of creditors, insolvency, bankruptcy,
reorganization or other proceedings are pending, or, to Seller's actual
knowledge, threatened, against Seller. In the event any proceeding of the
character described herein is initiated prior to the Closing, Seller shall
promptly advise Purchaser in writing.
(C) There is no condemnation proceeding affecting the Property currently
pending, Seller has not received notice of any contemplated condemnation
proceedings nor, to Seller's actual knowledge, is any such proceeding
threatened.
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(D) To Seller's actual knowledge, Seller has obtained all permits,
licenses and consents necessary to own, operate, develop, use and maintain
the Property as commercial office buildings. To Seller's actual knowledge,
all such permits, licenses and consents are, or will be on the Closing Date,
in full force and effect. The list of documents set forth on EXHIBIT "H"
attached hereto (collectively, the "Approvals") are the permits, licenses,
certifications, approvals, consents, and authorizations in the possession of
Seller which are applicable to its operation of the Property. To Seller's
actual knowledge, the Approvals are in full force and effect. To Seller's
actual knowledge, all of the Approvals are transferable to Purchaser without
the necessity of any approval or consent or additional payment (other than a
de minimis payment) and no such transfer will affect the validity thereof.
Seller has not received notice of any failure of the Property to comply with
any applicable governmental requirements in regard to the use, occupation and
construction thereof, including, but not limited to, environmental, zoning,
platting and other land use requirements and Seller has not received notice
of and has no actual knowledge of any violations or investigations relating
thereto.
(E) Seller has not received notice of any default or breach by Seller
under any covenants, conditions, restrictions, rights-of-way or easements
which may affect the Property, and, to Seller's actual knowledge, no such
default or breach now exists.
(F) To Seller's actual knowledge, there are no presently pending special
or general assessments against the Property, and no new special or general
assessments are threatened against the Property.
(G) To Seller's actual knowledge, all Exhibits hereto are current,
complete and correct in all material respects.
(H) Seller has not received notice of any proposed increase in the
assessed valuation of the Property.
(I) The actual income and expenses of the Property for (i) the full
calendar year l996 and (ii) the partial calendar year 1997 are fully, truly
and accurately set forth in all material respects on EXHIBIT "C" which is
attached hereto.
(J) EXHIBIT "D" attached hereto contains a current, correct and complete
rent roll including a list of all leases (sometimes, "Leases") with tenants
of the Property as of the Execution Date. Seller has delivered to Purchaser a
current, correct and complete copy of each of the Leases, including all
amendments thereto and guarantees thereof. The information contained in
EXHIBIT "D;)" (as updated by Seller to Purchaser from time to time) is and
will continue to be current, correct and complete in all material respects.
Each of the Leases listed in EXHIBIT "D:)" is in full force and effect. To
Seller's actual
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knowledge, Seller is not in default under any of the Leases in any material
respect. Except as otherwise provided in EXHIBIT "D", as of the Execution
Date (but not as of the date of Closing), none of the tenants under the
Leases is in default in the payment of any rent under its Lease, or, to
Seller's actual knowledge, in the performance or observance of any covenant
or condition to be kept, observed or performed by the tenant under such
Lease. Except as otherwise provided in EXHIBIT "D)" or in a Lease, none of
such tenants is or will be entitled to any rent rebate, concession, deduction
or offset. No tenant has paid any rent, additional rent or other charge for a
period of more than thirty (30) days in advance, which shall not be adjusted
by and between Seller and Purchaser at Closing. Seller has no actual
knowledge of any claims, defenses or counterclaims that would affect payment
of rent or other sums or performance of any obligations by the tenants under
the Leases except as described in EXHIBIT "D". Seller has received no notices
of any failure of Seller to supply any services which Seller is required to
furnish pursuant to any Lease. Seller has received no notices of any items of
work, repair, maintenance or construction to be completed by Seller pursuant
to any Lease for the benefit of any tenant and Seller has no knowledge of any
such work to be done. Except as set forth on the Exhibit "D", as of the
Execution Date (but not as of the date of Closing), Seller has received no
notice from any tenant (i) to cancel any Lease prior to its natural date of
expiration, (ii) that such tenant is or may become unable or unwilling to
perform any or all of its obligations under its 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 Lease. Seller has received no notice of any default by the landlord under
any Lease and has no actual 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 EXHIBIT "D".
As of the Closing Date, there will be no brokerage or other leasing
commissions payable in connection with any of the existing tenants or the
Leases, or with any new leases or amendments of existing Leases which were
acquired without Purchaser's prior written consent [which consent shall be
granted or withheld in the manner set forth in Section 7.1(D)]. Purchaser
acknowledges that it shall be obligated to pay any brokerage or other leasing
commissions payable in connection with any new leases for space in the
Improvements, or any amendments of existing Leases, executed after the
Execution Date with Purchaser's prior written consent as aforesaid.
For all purposes of Seller's representations and warranties contained in
this Section 6.1(J), any reference to "tenant" shall be deemed a reference
only to BMI (and any references to Leases shall be deemed a reference only to
the Lease with BMI), unless
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BTRL is still a tenant of the Property on the Closing Date, in which event
all such representations and warranties shall apply to BTRL as well as to BMI.
(K) EXHIBIT "E" attached hereto contains a current, complete and
correct list and copy of all contracts or agreements ("Service Contracts") to
which Seller is a party relating to the management, leasing, operation,
maintenance or repair of the Property in effect on the Execution Date. Except
as set forth in EXHIBIT "E", all of such Service Contracts may be terminated
by Seller or the then owner of the Property without cost or penalty (other
than a de minimis payment) upon no more than thirty (30) days written notice
without cause. Seller is not in default under any such Service Contracts to
its actual knowledge.
(L) All bills and claims for labor and construction performed and
materials, equipment or services furnished to or for the benefit of the
Property for all periods prior to the Closing Date which could result in a
valid mechanic's lien being filed against the Property will be paid in full
as of the Closing Date, or, if not paid, will be bonded to the reasonable
satisfaction of Purchaser and the Title Company. As of the Closing Date,
there will be no mechanic's liens or materialmen's liens (whether or not
perfected) on the Property.
(M) To Seller's actual knowledge, except as set forth in EXHIBIT "F"
attached hereto, (i) no toxic materials, hazardous waste or hazardous
substance (as these terms are defined in the Resource Conservation and
Recovery Act of 1976, as amended (42 U.S.C. Section 6901 ET. SEQ.) or in the
Comprehensive Environmental Response, Compensation, and Liability Act of
1980, as amended (42 U.S.C. Section 9601 ET. SEQ.)) including, without
limitation, any asbestos or asbestos-related products or materials and any
oils, lead, lead based products or materials, petroleum-derived compounds or
pesticides (hereinafter referred to as the "Hazardous Materials") are located
on or about the Property, other than commercially reasonable amounts of such
materials which are used by tenants of the Property in the ordinary conduct
of their businesses as permitted by their Leases, and oil and gas stored in
vehicles located on the Property; (ii) the Property has not been used for the
storage, manufacture or disposal of Hazardous Materials or as a dump site for
Hazardous Materials; and (iii) Seller has complied with all federal, state
and local environmental laws and regulations affecting the Property. Further,
no complaint, order, citation or notice with regard to air emissions, water
discharges, noise emissions, Hazardous Materials or any other environmental,
health or safety matters affecting the Property or any portion thereof from
any person, government or entity has been received by Seller, and to Seller's
actual knowledge, no such complaint, order, citation, or notice has been
issued (but not received) by Seller. To Seller's actual knowledge, any
Hazardous Materials used by tenants of the Property as set forth in
subsection (i) above, are stored and used on the Property in accordance with
applicable law pertaining to the hazardous nature of such materials. To
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Seller's actual knowledge, except as set forth in EXHIBIT "F", the Property
does not contain any underground tanks for the storage or disposal of
Hazardous Materials.
(N) All fixtures, equipment and personal property listed in EXHIBIT
"B" and included in this sale are, and at Closing will be, owned by Seller
(except to the extent that such items are consumed or are discarded after
becoming broken, damaged or obsolete in the ordinary course of Seller's
operation of the Property), and at Closing all of the foregoing will be free
and clear of any chattel mortgages, conditional bills of sale, security
agreements or financing statements and other liens and encumbrances of any
kind.
(O) 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 (other than extension rights or
options to renew leasehold interests as may be set forth in the Leases).
(P) Seller has received no notice of any 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, which
pertains to Seller, and Seller has filed no such notice or petition.
(Q) Seller is not a foreign person within the meaning of 42 USCS
Section 1445(f)(3).
(R) There are currently in effect such insurance policies as are
listed on EXHIBIT "I" attached hereto. All premiums due on such insurance
policies have been paid by Seller and Seller will maintain such insurance
policies from the Execution Date through the Closing Date or earlier
termination of this Agreement. Seller has not received and has no actual
knowledge of any notice or request from any insurance company requesting the
performance of any repair work or alteration with respect to the Property
which has not been complied with. Seller has received no notice from any
insurance company concerning, nor does Seller have actual knowledge of, any
defects or inadequacies in the Property which, if not corrected, would result
in the termination of the insurance coverage identified on EXHIBIT "I", or
increase its cost.
(S) There are no employees who are employed by Seller in the
operation, management or maintenance of the Property for whom Purchaser shall
have any obligation after the Closing Date.
(T) Seller has not received written notice that any party to any of
the Property Documents considers a breach or default by Seller to have
occurred.
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As used in this Agreement, the term "Seller's actual knowledge" means the
actual (and not the constructive) current knowledge of Stephen J. DiPalma,
Chief Financial Officer of Seller, and does not imply any inspection,
examination or other inquiry undertaken by Seller or said individual to
determine the accuracy of any representation, warranty or other statement
made "to Seller's actual knowledge" in this Agreement, or in any of the
documents to be executed by Seller and delivered to Purchaser at Closing.
SECTION 6.2. Purchaser represents, warrants and covenants to Seller that,
as of the Execution Date:
(A) Purchaser is a corporation duly formed, validly existing and in
good standing under the laws of the state of its incorporation, and is in
good standing and qualified to do business in the State of Maryland.
Purchaser has the authority and power to enter into this Agreement and to
consummate the transactions provided for herein, and such action will not
breach any court order, the organizational documents of Purchaser or other
existing agreement or agreements to which Purchaser is a party.
(B) This Agreement constitutes the valid and binding obligation of
Purchaser.
(C) No governmental or third party approvals or consents are required
for Purchaser's execution and delivery of this Agreement, or performance of
its obligations hereunder, and Purchaser's execution and performance hereof
do not and shall not violate, and are not restricted by, any other
contractual obligations or any legal requirements to which Purchaser is a
party or by which Purchaser is bound.
SECTION 6.3. All of the representations, warranties and covenants of
Seller contained in this Article VI or elsewhere herein are material
inducements to Purchaser's execution of this Agreement and to its agreement
to purchase the Property, and all of the representations, warranties and
covenants of Purchaser contained in this Article VI or elsewhere herein are
material inducements to Seller's execution of this Agreement and to its
agreement to sell the Property. At Closing, Seller and Purchaser each shall
reconfirm to the other party in writing, by certification in the form which
is attached hereto as EXHIBIT "L", its representations and warranties made
herein as of the Closing Date, including any non-material modifications
thereto which are necessitated by a change of circumstances, and shall
deliver said written certification to the other party. All representations
and warranties of both parties hereunder shall be deemed to be continuing
representations and warranties, and shall continue in force through Closing
and shall survive the Closing of the sale and purchase of the Property under
this Agreement for a period of one (1) year from the Closing Date, at which
time they shall expire and be of no further force or effect. If any
representations or warranties of Seller are not correct as of the Closing
Date, then Purchaser at its sole option and discretion may elect to (i)
terminate this Agreement whereupon the
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Deposit shall be promptly returned to Purchaser, and both Seller and
Purchaser shall perform the obligations required of each of them upon
a termination of this Agreement as otherwise described herein, after
which this Agreement shall be null and void, or (ii) waive in writing
such inaccuracies or nonperformance and proceed hereunder without
regard thereto, or (iii) institute actions against Seller for specific
performance or other relief in equity [provided, if said failure of
such representations and/or warranties to be true is not the result of
the willful action or inaction of Seller in disregard of its obligations
to Purchaser as set forth in this Agreement, and if Seller can cause said
representation or warranty to become true, then Seller shall not be obligated
to perform any work to the Property or to expend any monies other than as
expressly set forth herein, and Seller shall be obligated only to deliver the
Property to Purchaser on the Closing Date in the same "AS IS, WHERE IS"
condition which existed on the Execution Date, excepting therefrom changes
in the condition of the Property caused by ordinary wear and tear or as set
forth in Article XI.] Similarly, if any representations or warranties of
Purchaser are not correct as of the Closing Date, then Seller at its sole
option and discretion may elect to proceed in the same manner as Purchaser
as set forth in subsections (i)-(iii) above.
SECTION 6.4. Other than as expressly set forth in this Article VI or
elsewhere in this Agreement, Purchaser shall have no claim for any damage or
remedy by reason of the existence or nonexistence of (i) any fact not
represented herein, or (ii) any condition of the Property, the nature of any
tenancy or the terms of any Leases, or any other circumstance surrounding the
Property or its sale by Seller to Purchaser, which is not specifically
addressed by this Agreement.
ARTICLE VII - SELLER'S OBLIGATIONS PENDING CLOSING
SECTION 7.1. During the continuance of this Agreement, until the Closing
Date, Seller covenants to perform the following obligations:
(A) Seller shall continue to operate the Property as commercial
office buildings in the same manner as presently operated. In this respect,
Seller shall (1) continue to repair and maintain the Property (including the
repair, maintenance and, if necessary, the replacement of equipment,
furniture, furnishings, fixtures and appliances) in the same manner as
presently repaired and maintained, in all material respects (but subject to
the provisions of Section 4.3); (2) not knowingly violate any lawful order or
directive of a governmental agency with respect to the Property; (3) manage
the Property by collecting rents and otherwise enforcing the Leases and
rental agreements of the various tenants; (4) perform all obligations
required of it pursuant to the Service Contracts; and (5) maintain, keep in
effect, and pay the premiums for the insurance on the Property which is in
effect on the Execution Date.
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(B) Seller will not directly or indirectly sell, assign, convey or
create any right, title, or interest in the Property to any third party, or
enter into any agreement to do any of the foregoing, without first acquiring
the prior written consent of Purchaser thereto, as Purchaser shall determine
in its sole discretion (except as otherwise expressly provided herein).
Except for the Permitted Exceptions, Seller will not create or permit to
exist any lien, encumbrance, or charge on the Property, without discharging
the same at or prior to Closing (except as otherwise expressly provided
herein).
(C) Seller will not enter into any new contracts, or amend or
terminate any existing Service Contracts which may not be canceled on thirty
(30) days' notice, or permit any major management or operational changes
relating to the management, leasing, operation, maintenance or repair of the
Property, without Purchaser's prior written approval which approval shall not
be unreasonably withheld, conditioned or delayed.
(D) Seller will not enter into any new leases, or amend or terminate
any existing Leases between the Execution Date and the expiration date of the
Study Period without Purchaser's prior written consent, which consent shall
not be unreasonably withheld, conditioned or delayed; Seller will not enter
into any new leases, or amend or terminate any existing Leases between the
expiration date of the Study Period and the Closing Date without Purchaser's
prior written consent, which consent may be granted, conditioned or withheld
as Purchaser shall determine in its sole discretion. Purchaser shall be
deemed to have acted unreasonably in not approving a new lease or an
amendment of an existing Lease between the Execution Date and the expiration
date of the Study Period if the proposed use of the premises is for lab
and/or related office purposes, and the rent to be paid by the proposed
tenant is consistent with the fair market rental value of said premises.
(E) Seller shall promptly notify Purchaser of any change in any
condition with respect to the Property or any portion thereof or of any event
or circumstance of which Seller acquires actual knowledge subsequent to the
Execution Date 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 Purchaser
under this Agreement untrue or misleading, or (c) makes any covenant or
agreement of Seller under this Agreement incapable or unlikely of being
performed, it being expressly understood that Seller's obligation to provide
information to Purchaser under this Section 7.1 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.
(F) Seller shall have the right to maintain the Property on the
market, and to commence and/or continue any and all negotiations with any
other
16
prospective optionees or purchasers of the Property, until such time as the
Study Period has expired and the parties are proceeding to Closing in
accordance with the terms of this Agreement. At all times after the Execution
Date, Seller shall advise Purchaser of the status of any negotiations with
potential tenants at the Property.
ARTICLE VIII - CLOSING REQUIREMENTS
SECTION 8.1. At Closing, Seller shall do the following:
(A) Deliver to Purchaser all Seller's Documents including the
original Leases (to the extent said original instruments are in the
possession or control of Seller, otherwise copies shall be delivered to
Purchaser), to the extent not previously delivered pursuant to Article III
above;
(B) Execute and deliver to Purchaser an assignment of all Service
Contracts;
(C) Execute and deliver to the Title Company an affidavit in form and
substance satisfactory to the Title Company and consistent with customary
practices in Montgomery County, Maryland, permitting the Title Company to
delete from Purchaser's title policy exceptions for mechanics' liens and
parties in possession (other than tenants under recorded leases, if any, and
specifically identified tenants then occupying space in the Property under
unrecorded leases);
(D) Execute and deliver to Purchaser and the Title Company a sworn
statement that Seller is not a "foreign person" and containing such other
information as may be required by Section 1445(b)(2) of the Internal Revenue
Code, and regulations thereunder;
(E) Execute and deliver to Purchaser an assignment of all Leases, and
assign and deliver any deposits related thereto in the form attached hereto
as EXHIBIT "M" [with security and/or tenant deposits being equal to the
deposits made by current tenants, accrued interest, if any, earned by tenants
in accordance with their respective Leases and local law, and deposit refunds
plus interest due, but not yet paid, less any monies expended by Seller (or
its predecessors-in-interest, as landlord) from said security and/or tenant
deposits to cure defaults by tenants of the Property];
(F) Execute and deliver to Purchaser an assignment of (i) the Project
Plans, and (ii) all licenses, franchises, permits and contract rights
relating to the operation of the Property, to the extent the same are
assignable;
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(G) Execute and deliver to Purchaser (i) a good and sufficient bill
of sale in the form attached hereto as EXHIBIT "N" conveying to Purchaser
good title to all personal property described on EXHIBIT "B";
(H) Execute and deliver to Purchaser a certification that all
representations and warranties set forth in Section 6.1 are true and correct
on the Closing Date (as same may be modified in a non-material manner
resulting from a change in circumstances);
(I) Such proof of Seller's authority and authorization to enter into
this Agreement and the transactions contemplated hereby, and such proof of
the power and authority of the individual(s) executing any instruments,
documents or certificates on behalf of Seller as may be reasonably required
by Title Company, Purchaser or the New Lenders;
(J) Such other documents and instruments, signed and properly
acknowledged by Seller, if appropriate, as may be reasonably required by
Purchaser, Escrow Agent, the New Lenders or otherwise in order to effectuate
the provisions of this Agreement and the Closing of the transactions
contemplated herein (but only to the extent that any such document does not
enlarge or extend the obligations of Seller as provided in this Agreement);
and
(K) Seller shall deliver possession of the Property to Purchaser upon
the Closing, subject to the rights of tenants under the Leases. Further,
Seller hereby covenants and agrees to deliver to Purchaser, on or prior to
the Closing, the following items:
(a) Originals of the Approvals (to the extent same are in
Seller's possession or under its control);
(b) The Intangible Property, including, without limitation,
the original Seller's Documents (to the extent same are
in Seller's possession or under its control and have not
been previously delivered); and
(c) 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.
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(L) Execute and/or deliver such other documents as Seller and
Purchaser may have agreed for Seller to deliver at Closing.
(M) Execute and deliver to Purchaser a Special Warranty Deed to the
Land and Improvements in the form attached hereto as EXHIBIT "J".
SECTION 8.2. At Closing, Purchaser shall deliver the Purchase Price to
Seller, and shall do the following:
(A) Execute and deliver to Seller an assumption of all Seller's
obligations from and after the Closing Date set forth in the Service
Contracts which are assigned by Seller to Purchaser pursuant to
Section 8.1(B) hereof;
(B) Execute and deliver to Seller an assumption of all Seller's
obligations from and after the Closing Date set forth in Leases which are
assigned by Seller to Purchaser pursuant to Section 8.1(E) hereof
(including, without limitation, all obligations relating to deposits held by
landlord under said Leases and delivered by Seller to Purchaser);
(C) Deliver to Seller and the Title Company evidence reasonably
satisfactory to Seller and the Title Company that (i) Purchaser is duly
formed and validly existing in the state of its formation and is in good
standing and qualified to do business under the laws of the State of
Maryland, and (ii) Purchaser has the authority and power to enter into this
Agreement and to consummate the transaction provided for herein, (iii) the
consummation of the transaction provided for herein will not breach the
organizational documents of Purchaser, and (iv) the individuals executing all
documents in connection herewith on behalf of Purchaser have the authority
and power so to do;
(D) Execute and deliver to Seller a certification that all
representations and warranties set forth in Section 6.2 are true and correct
on the Closing Date;
(E) Execute and/or deliver such other documents as Seller and
Purchaser may have agreed for Purchaser to deliver at Closing;
(F) Such proof of Purchaser's authority and authorization to enter
into this Agreement and the transactions contemplated hereby, and such proof
of the power and authority of the individual(s) executing any instruments,
documents or certificates on behalf of Purchaser as may be reasonably
required by Title Company or Seller; and
19
(G) Such other documents and instruments, signed and properly
acknowledged by Purchaser, if appropriate, as may be reasonably required by
Seller, Escrow Agent, or otherwise in order to effectuate the provisions of
this Agreement and the Closing of the transactions contemplated herein (but
only to the extent that any such document does not enlarge or extend the
obligations of Purchaser as provided in this Agreement).
The delivery to the Title Company of the Purchase Price, the executed
deed of conveyance, bill of sale, assignment of the Leases and security
deposits, assignment of the Service Contracts, and all other documents and
instruments required to be delivered by either party to the other by the
terms of this Agreement shall be deemed to be a good and sufficient tender of
performance of the terms hereof.
ARTICLE IX - CONDITIONS TO OBLIGATIONS OF PURCHASER
AND SELLER TO CLOSE
SECTION 9.1. The obligations of Purchaser to close hereunder shall be
conditioned upon the fulfillment of the following conditions at or prior to
Closing:
(A) Seller shall have performed all agreements, undertakings and
obligations and complied with all conditions required by this Agreement to be
performed and/or complied with by Seller in all material respects.
(B) All representations and warranties made by Seller set forth in
Article VI shall be true and correct on the Closing Date, in all material
respects, as if made on and as of the Closing Date.
(C) 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.
(D) BTRL is no longer in possession of any portion of the Property,
or alternatively, Seller shall have performed its obligations to Purchaser to
acquire an Estoppel Certificate from BTRL prior to the expiration of the
Study Period in conformance with the requirements of Section 3.3 (the
contents of which Purchaser shall have approved or disapproved in connection
with its determination whether to proceed to Closing or to terminate the
Agreement prior to the expiration of the Study Period).
(E) No damage, destruction or loss to the Property in excess of
$100,000.00, whether or not covered by insurance, shall have occurred and not
be repaired prior to the Closing Date.
20
In the event that any of the conditions set forth above in this Section
9.1 have not been fulfilled in all material respects on the Closing Date,
Purchaser shall have the right, at its option, to terminate this Agreement by
giving written notice to Seller, in which event Purchaser shall return the
Seller's Documents to Seller and repair any damage to the Property caused by
its studies and investigations, the Deposit shall be returned to Purchaser
and the parties hereto shall be relieved of all obligations hereunder, except
that the foregoing shall not relieve Seller of any liability to Purchaser for
the breach of any representation or warranty set forth in this Agreement in
the manner set forth in Section 6.3, or for a default in the performance of
its obligations set forth in this Agreement in the manner set forth in
Article XII.
SECTION 9.2. The obligations of Seller to close hereunder shall be
conditioned upon the fulfillment of the following conditions at or
prior to Closing:
(A) Purchaser shall have performed all agreements, undertakings
and obligations and complied with all conditions required by this
Agreement to be performed and/or complied with by Purchaser in all
material respects.
(B) All representations and warranties made by Purchaser set forth in
Article VI shall be true and correct on the Closing Date, in all material
respects, as if made on and as of the Closing Date.
In the event that any of the conditions set forth above in this Section
9.2 have not been fulfilled in all material respects on the Closing Date,
Seller shall have the right, at its option, to terminate this Agreement by
giving written notice to Purchaser, in which event the Deposit shall be
returned to Purchaser and the parties hereto shall be relieved of all
obligations hereunder, except that the foregoing shall not relieve Purchaser
of any liability to Seller for the breach of any representation or warranty
set forth in this Agreement in the manner set forth in Section 6.3 hereof, or
for a default in the performance of its obligations set forth in this
Agreement in the manner set forth in Article XII.
SECTION 9.3. Either party shall have the right at its option to waive in
writing any conditions of this Agreement which are included for its benefit,
and to proceed hereunder without regard to any nonperformance or
non-satisfaction thereof.
ARTICLE X - PRORATION AND ADJUSTMENTS; CLOSING COSTS
SECTION 10.1. All items of income and expense including, but not limited to
water and sewer connection charges, rents and other payments under the Leases,
water and sewer charges, charges for electricity, gas, fuel oil, telephone, and
other utilities and license fees (of transferable licenses), and charges under
all Service Contracts in effect on the Closing Date shall be adjusted and
apportioned between the parties hereto as of 11:59 P.M.
21
on the day immediately preceding the Closing, and the net amount thereof
shall be added to or deducted from, as the case may be, the amount of the
Purchase Price to be paid at the time of Closing. Taxes, general and special,
are to be adjusted as aforesaid (and assumed by Purchaser as of the Closing
Date) according to the certificate of taxes issued by the appropriate
governmental taxing authorities having jurisdiction of the Property,
including, without limitation, assessments for any improvements which are
levied or assessed prior to the Closing Date. In making the adjustments
required by this Section, Seller shall receive credit for all prepaid
expenses and similar items that are due on or after the Closing Date, and
Seller shall be charged with any unpaid charges for the period prior to the
Closing Date. In adjusting for uncollected rents, no adjustment shall be made
in Seller's favor for rents which are accrued or are unpaid as of the time of
Closing, but Purchaser shall make reasonable efforts (without being obligated
to incur any costs or expenses which are not reimbursable by Seller) to
collect any arrearages of rent existing on the Closing Date, and shall pay
Seller such accrued and unpaid rents as and when collected by Purchaser after
Closing (less reasonable expenses of collection thereof), it being understood
that Purchaser shall not be deemed to have collected any such arrearages
attributable to the period prior to the Closing Date until such time as the
tenant(s) from whom the late rent is collected shall become current in the
payment of all rents accruing after the Closing Date. Notwithstanding the
foregoing, Seller shall have the right after the Closing Date to commence an
action against any tenant to collect amounts due Seller from any such tenant
with respect to periods of time prior to the Closing Date, provided that
Seller shall not be entitled to dispossess any such tenant as a result of
such action.
On the Closing Date, Purchaser shall be fully credited for (i)
reimbursement expenses and other sums owed by Seller to tenants for work
which occurred prior to the Closing Date which Seller is obligated to
reimburse tenants, or for work to be performed or allowances to be granted to
any tenants upon or after the Closing Date pursuant to any Leases in
existence as of the Execution Date (provided that Purchaser agrees to pay for
any such work to be performed or allowances to be granted to any tenants
under leases approved by Purchaser between the Execution Date and the Closing
Date), (ii) any commissions or brokerage fees payable upon or after the
Closing Date in connection with any Leases in existence as of the Execution
Date (provided that Purchaser agrees to pay for any such commissions or
brokerage fees under leases approved by Purchaser between the Execution Date
and the Closing Date), and (iii) rentals already received by Seller
attributable to periods after the Closing Date. If real estate tax bills have
not yet been received by Seller by the Closing Date or if supplemental taxes
are assessed (or taxes are reduced) 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 shall
have borne all taxes, including all supplemental taxes, allocable to the
period prior to the Closing and Purchaser 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
22
Closing, then, if and only to the extent that Seller is obligated for the
payment of said expenses pursuant to the terms of this Agreement, 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 Purchaser shall have borne all
expenses allocable to the period on and after the date of Closing. The
provisions of this Section 9.2 shall survive the Closing for a period of one
(1) year.
Not later than three (3) Business 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 Purchaser, 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 10.1 and
(ii) the Closing Costs allocable to each of the parties pursuant to Section
10.4 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").
SECTION 10.2 Seller represents that EXHIBIT "D" sets forth a complete
list of all security deposits and other deposits (and the interest thereon,
if any) held by Seller under the Leases as of the Execution Date, to the
extent not theretofore lawfully applied to cure a default by any tenants in
accordance with the Leases (hereinafter collectively referred to as the
"Security Deposits"). At the Closing, (i) the Purchase Price shall be
adjusted to the credit of Purchaser in an amount equal to the total of the
Security Deposits as of the Closing Date, and (ii) Seller shall assign in
writing to Purchaser all of Seller's right, title and interest in and to the
Security Deposits, and Purchaser shall assume in writing Seller's obligation
for the refund or other proper application thereof as set forth in Sections
8.1 and 8.2 respectively.
SECTION 10.3. At Closing, the net adjustment, if in favor of Seller,
shall be paid to Seller in the same manner as the Purchase Price or, if in
favor of Purchaser, shall be paid by setoff against the Purchase Price.
SECTION 10.4. All costs associated with (i) the issuance of an owner's
title insurance policy (without issuance of any endorsements to standard
coverage), (ii) the preparation of the Survey, and (iii) State, county and
municipal recordation tax and transfer tax with respect to the deed of
conveyance of the Property to Purchaser shall be borne and paid one-half
(1/2) by Seller and one-half (1/2) by Purchaser. Seller and Purchaser shall
pay, respectively, the fees and expenses of its own attorneys in connection
with negotiation and settlement of this Agreement. Purchaser shall pay any
and all other fees and expenses associated with Closing unless Seller is
otherwise expressly obligated by the terms of this Agreement to pay same,
including, without limitation the costs of issuance of a mortgagee's
23
title insurance policy and any endorsements to standard title insurance
coverage provided to either Purchaser or its mortgagee, and the cost of the
UCC Searches. If, on the Closing Date, title to the Property is not in the
form required by this Agreement and the cause thereof is within the
reasonable control of Seller, and such matters are not timely addressed by
and at the sole expense of Seller in the manner required hereby, then, if
Purchaser terminates this Agreement by reason of any such title matters,
Seller will promptly pay all costs incurred for the title examination and
survey of the Property in an amount not to exceed Eight Thousand Eight
Hundred Dollars ($8,800.00).
ARTICLE XI - CASUALTY LOSS; CONDEMNATION
SECTION 11.1. If, prior to Closing, all or any portion of the Property is
taken by condemnation or eminent domain, (or is the subject of a pending
taking which has not been consummated but only to the extent such a taking
would materially interfere with the use and operation of the Property by
Purchaser), Seller shall so notify Purchaser within three (3) days after the
occurrence of such event. In such event, Purchaser shall have the option to
terminate this Agreement upon written notice to Seller given not later than
fifteen (15) days after receipt of such notice from Seller. If Purchaser
elects to terminate this Agreement under Article IX or Article XI, then the
Seller's Documents will be returned to Seller, any damage to the Property
caused by Purchaser studies thereon shall be repaired by Purchaser, and the
Deposit shall be returned to Purchaser and neither party shall have any
further liability to the other (except as expressly provided herein). If
Purchaser does not elect to terminate this Agreement as aforesaid, it shall
accept title to the Property without any abatement of the Purchase Price
whatsoever, in which event, at the Closing, all of the condemnation award, or
right to such condemnation award, which have not been applied on account of
any reasonably necessary repairs or restorations, shall be assigned by Seller
to Purchaser and any moneys theretofore received by Seller in connection with
such condemnation shall be paid over to Purchaser, except for rent loss
coverage for periods prior to the Closing Date and proceeds used for
reasonably necessary restorations or repairs.
SECTION 11.2. 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 in the manner set forth herein. If prior to Closing any
part of the Property is damaged or destroyed by earthquake, flood, landslide,
fire, hurricane, tornado or other casualty, Seller shall promptly notify
Purchaser of such fact. In such event, and only in the event that the cost of
restorations or repairs of said damage exceeds $100,000.00, Purchaser shall
have the option to terminate this Agreement upon written notice to Seller
given not later than fifteen (15) days after receipt of any such notice from
Seller. If Purchaser does not elect to terminate this Agreement, Seller shall
assign and turn over, and Purchaser shall be entitled to receive and keep,
all insurance proceeds payable with respect to such destruction (which shall
then be repaired or not at Purchaser's option and cost), plus Seller shall
pay over to Purchaser at Closing an
24
amount equal to the deductible amount with respect to the casualty insurance
(except for rent loss coverage for periods prior to the Closing Date, and
insurance proceeds and the deductible amount applied by Seller for reasonably
necessary restorations or repairs) 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 Purchaser does
not elect to terminate this Agreement by reason of any casualty, Purchaser
shall have the right to participate in any adjustment of the insurance claim.
Purchaser shall accept title to the Property without any abatement of the
Purchase Price whatsoever, in which event, at the Closing, the insurance
proceeds or right to such proceeds shall be assigned by Seller to Purchaser
and any moneys theretofore received by Seller in connection with such fire or
other casualty shall be paid over to Purchaser, except for rent loss coverage
for periods prior to the Closing Date and proceeds used by Seller for
reasonably necessary restorations or repairs incurred prior to the Closing
Date. At Closing, Purchaser shall be entitled to a credit of Two Thousand
Five Hundred Dollars ($2,500.00) for Seller's deductible under its casualty
insurance policy, less any amount of expenses incurred by Seller prior to the
Closing Date for reasonably necessary restorations or repairs of the
Property. Seller represents to Purchaser that the deductible under its
casualty insurance policy covering the Improvements is Two Thousand Five
Hundred Dollars ($2,500.00).
ARTICLE XII - SELLER'S AND PURCHASER'S REMEDIES
SECTION 12.1. IN THE EVENT THAT THIS TRANSACTION FAILS TO CLOSE AS A
RESULT OF THE DEFAULT OF PURCHASER IN THE PERFORMANCE OF ITS OBLIGATIONS
UNDER THIS AGREEMENT, PURCHASER 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 THIS TRANSACTION FAILS TO CLOSE AS A RESULT OF
THE DEFAULT OF PURCHASER IN THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER AND
SELLER IS READY, WILLING 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 EARNED THEREON)
THEN HELD BY ESCROW AGENT. IN THE EVENT THIS TRANSACTION FAILS TO CLOSE AS A
RESULT OF PURCHASER'S DEFAULT AND SELLER IS READY, WILLING AND ABLE TO
PERFORM ITS OBLIGATIONS HEREUNDER, THEN (1) ESCROW AGENT SHALL, AND IS HEREBY
AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY TO PURCHASER AND SELLER ALL
DOCUMENTS AND INSTRUMENTS TO THE PARTIES WHO DEPOSITED THE SAME, (2) ESCROW
AGENT SHALL DELIVER THE DEPOSIT (INCLUSIVE OF INTEREST 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, AND (3) THIS AGREEMENT
AND THE RIGHTS AND
25
OBLIGATIONS OF PURCHASER AND SELLER HEREUNDER AND THE ESCROW CREATED HEREBY
SHALL TERMINATE UPON THE COMPLETION OF THE OBLIGATIONS SET FORTH IN CLAUSES
(1) AND (2) ABOVE. SELLER AND PURCHASER ACKNOWLEDGE THAT THEY HAVE READ AND
UNDERSTAND THE PROVISIONS OF THIS SECTION 12.1, AND BY THEIR INITIALS
IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS TERMS.
/s/ /s/
_____________________ _____________________________
Seller's Initials Purchaser's initials
SECTION 12.2. If Seller defaults hereunder prior to Closing, and provided
Purchaser is not in default hereunder, then Purchaser shall have the right
either (i) to terminate this Agreement by giving written notice to Seller,
whereupon Escrow Agent shall return the Deposit to Purchaser, this Agreement
shall be null and void and the parties shall have no further liability to one
another; or (ii) in lieu of terminating this Agreement, to pursue any remedy
available to Purchaser hereunder, at law or in equity, including specific
performance of this Agreement, without any reduction in the Purchase Price;
provided, however, unless said failure by Seller is the result of the willful
action or inaction of Seller in disregard of its obligations to Purchaser as
set forth in this Agreement, Seller shall not be obligated to perform any
work to the Property or to expend any monies other than as expressly set
forth herein, and Seller shall be obligated only to deliver the Property to
Purchaser on the Closing Date in the same "AS IS, WHERE IS" condition which
existed on the Execution Date, and subject further to any changes in the
condition of the Property caused by ordinary wear and tear or as set forth in
Article XI.
ARTICLE XIII - INDEMNIFICATION
SECTION 13.1 Except for and subject to any limitation expressly set forth
herein, Seller hereby agrees to indemnify, defend and hold harmless Purchaser
from and against any and all claims, demands, liabilities, costs, expenses,
penalties, damages and losses, including, without limitation, reasonable
attorneys' fees and court costs, resulting from or in any way relating to
Seller's ownership, maintenance, operation or leasing of the Property prior
to the Closing Date, or from business done, transactions entered into or
other events occurring prior to the Closing Date with respect to the
ownership, management, operation, maintenance and repair of the Property,
other than the debts, liabilities, claims and obligations which are being
adjusted between Seller and Purchaser as of the Closing Date pursuant to this
Agreement. Seller shall do, execute and deliver, or shall cause to be done,
executed and delivered, all such further acts and instruments which Purchaser
may reasonably request in order to more fully effectuate the indemnification
provided for in this Agreement. The provisions of this Section 13.1 shall
survive the Closing for a period of one (1) year from the Closing Date.
26
SECTION 13.2 Except for and subject to any limitation expressly set forth
herein, Purchaser hereby agrees to indemnify, defend and hold harmless Seller
from and against any and all claims, demands, liabilities, costs, expenses,
penalties, damages and losses, including, without limitation, reasonable
attorneys' fees and court costs, resulting from or in any way relating to
Purchaser's ownership, maintenance, operation or leasing of the Property on
or after the Closing Date, or from business done, transactions entered into
or other events occurring on or after the Closing Date with respect to the
ownership, management, operation, maintenance and repair of the Property,
other than the debts, liabilities, claims and obligations which are being
adjusted between Seller and Purchaser as of the Closing Date. Purchaser shall
do, execute and deliver, or shall cause to be done, executed and delivered,
all such further acts and instruments which Seller may reasonably request in
order to more fully effectuate the indemnification provided for in this
Agreement. The provisions of this Section 13.2 shall survive the Closing for
a period of one (1) year from the Closing Date.
ARTICLE XIV - AGENCY
SECTION 14.1 Seller and Purchaser each represents and warrants to the
other that it has not dealt with any real estate broker, agent, or finder,
other than Scheer Partners, Inc. and CB Commercial Real Estate Group, Inc.
(together, the "Brokers") in connection with this Agreement or the
transactions contemplated by this Agreement. Seller represents and warrants
to Purchaser that it shall pay all commissions, fees, and other payments due
to the Brokers, as a result of the transactions contemplated by this
Agreement, pursuant to a separate written agreement executed by and between
said parties. Seller and Purchaser shall mutually indemnify and defend the
other against any costs, claims or expenses, including reasonable attorney's
fees, arising out of the breach on their respective part of any of their
above representations in this paragraph. The obligations of Seller and
Purchaser set forth above shall survive the Closing and the execution and
delivery of the deed and shall not be merged therein for a period of one (1)
year from the Closing Date.
ARTICLE XV - CONFIDENTIALITY
SECTION 15.1 Purchaser agrees that until the Closing, except as otherwise
provided herein or required by law and except for the exercise by Purchaser
of any remedy hereunder, Purchaser shall (a) keep confidential the pendency
of this transaction, the documents and information supplied by Seller to
Purchaser and all studies and reports obtained by Purchaser as part of its
due diligence investigations of Seller and the Property, (b) disclose such
information only to Purchaser's agents, employees, contractors, consultants
or attorneys, as well as lenders (if any), investment bankers, venture
capital groups, investors and title company personnel, with a need to know in
connection with Purchaser's review and consideration of the Property,
provided that Purchaser shall inform all persons receiving such information
from Purchaser of the confidentiality requirement and (to the extent within
27
Purchaser's control) cause such confidence to be maintained, and (c) upon the
termination of this Agreement prior to the Closing, return promptly to Seller
all Seller's Documents and all other documents and materials supplied by
Seller. Disclosure of information by Purchaser 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 Purchaser or its agents, employees, contractors,
consultants or attorneys.
SECTION 15.2. Seller agrees that both prior to and after the Closing,
except as otherwise provided herein 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 Purchaser and the identity
of Purchaser and the relationship between Purchaser and the entity to which
Purchaser may assign this Agreement or which Purchaser 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 attorneys, as well as 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.
ARTICLE XVI - MISCELLANEOUS
SECTION 16.1. APPLICABLE LAW.
This Agreement shall be construed in accordance with and governed by the
laws of the State of Maryland.
SECTION 16.2. INTEGRATION; SURVIVAL.
This Agreement constitutes the entire agreement between Seller and
Purchaser pertaining to the subject matter hereof and supersedes all prior
agreements and understandings pertaining thereto. No covenant, representation
or condition not expressed in this Agreement shall affect or be deemed to
interpret, change or restrict the express provisions hereof. Except as
otherwise expressly set forth herein, the rights, powers, privileges, duties,
obligations, commitments, representations and warranties set forth herein
shall survive the Closing and the execution and delivery of the deed and
shall not be merged therein for a period of one (1) year from the Closing
Date.
28
SECTION 16.3. AMENDMENT.
This Agreement may be modified or amended only with the written approval
of Seller and Purchaser.
SECTION 16.4. WAIVER.
No failure by Seller or Purchaser to insist upon the strict performance
of any covenant, duty, agreement, or condition of this Agreement or to
exercise any right or remedy consequent upon a breach thereof shall
constitute a waiver of any such breach or of such or any other covenant,
agreement, term or condition. No waiver shall affect or alter the remainder
of this Agreement, but each and every covenant, agreement, term and condition
hereof shall continue in full force and effect with respect to any other then
existing or subsequent breach.
SECTION 16.5. COUNTERPARTS.
This Agreement may be executed in counterparts, all of which taken
together shall constitute one agreement binding on all the parties
notwithstanding that all the parties are not signatories to the original or
the same counterpart. Each party shall become bound by this Agreement
immediately upon affixing its signature hereto, independently of the
signature of any other party. The parties agree that this Agreement (and any
subsequent agreement of modification or amendment thereto) may be transmitted
between them by facsimile machine. The parties intend that faxed signatures
constitute original signatures and that a faxed copy of the Agreement
containing the signatures (original or faxed) of all the parties is binding
on the parties.
SECTION 16.6. NOTICES.
All notices hereunder shall be in writing and shall be delivered by hand
or overnight delivery service or, if mailed, sent by United States registered
or certified mail, postage prepaid, return receipt requested, addressed to
the appropriate party at its address set forth below, or at such other
address as such parties shall have last designated by written notice to the
other. Notices, demands, consents, approvals, and other communications shall
be deemed given on the second (2nd) business day after being postmarked, if
sent by mail, or on the date when received by the party to whom it is
addressed (or the date on which delivery is refused, if attempted), if
delivered by hand or by overnight delivery service. Seller or Purchaser each
shall have the right to send any and all notices by electronic facsimile
transmission ("Fax") to a party at the receiving number set forth below each
party's name in this Section 16.6, as well as by sending such notices by
another means of delivery as set forth herein. Any such notices transmitted
by Fax shall be deemed given on the date of completion of the Fax (as
evidenced by the telecopier confirmation sheet of the
29
sender) provided that such Fax is confirmed within two (2) business days by a
duplicate notice sent in a manner otherwise provided herein.
To Seller: AQUILA BIOPHARMACEUTICALS, INC.
365 Plantation Street
Worcester, Massachusetts 01605
Attention: Stephen DiPalma
Telephone: (508) 797-5777, ext. 513
Facsimile: (508) 797-4014
With a copy to: Shulman, Rogers, Gandal, Pordy &
Ecker, P.A.,
11921 Rockville Pike, Third Floor,
Rockville, Maryland 20852,
Attention: Edward M. Hanson, Esquire
Telephone: (301) 230-5210
Facsimile: (301) 230-2891
To Purchaser: Alexandria Real Estate Equities, Inc.
251 South Lake Drive, Suite 700
Pasadena, California 91101
Attention: Joel S. Marcus
Peter Nelson
Telephone: (818) 578-0777
Facsimile: (818) 578-0770
With a copy to: Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue
Los Angeles, CA 90071 -3144
Attention: Rand April
Telephone: (213) 687-5060
Facsimile: (213) 687-5600
With a copy to: Alexandria Real Estate Equities, Inc.
11440 West Bernardo Court, Suite 170
San Diego, California 92127
Attention: Alan D. Gold
Telephone: (619) 592-6801
Facsimile: (619) 592-6814
30
SECTION l6.7. SUCCESSORS BOUND.
The provisions of this Agreement shall extend to, bind and inure to the
benefit of the parties hereto and their respective personal representatives,
heirs, successors, and permitted assigns.
SECTION 16.8. ASSIGNMENT OF RIGHTS.
This Agreement may be assigned by Purchaser to any third party without
Seller's prior written consent, provided that, prior to the effective date of
any such assignment (i) Purchaser shall deliver an executed copy of the
instrument of assignment to Seller and (ii) the assignee shall execute,
acknowledge and deliver to Seller (in a form reasonably satisfactory to Seller)
an agreement whereby the assignee agrees to be bound by and to perform all of
the obligations of purchaser as set forth in this Agreement. Such an assignment
shall in no way relieve Purchaser of its duty to perform fully all of its
obligations under this Agreement, and Purchaser and its assigns shall thereafter
be jointly and severally liable for the obligations of the purchaser as
described herein. Any assignment made in violation of this Section shall be
without force or effect.
SECTION 16.9. TIME.
Time is of the essence in the performance of the obligations of each party
as set forth in this Agreement. In the computation of any period of time
provided for in this Agreement or by law, the day of the act or event from which
said period of time runs shall be excluded, and the last day of such period
shall be included, unless it is not a business day, in which case the period
shall be deemed to run until the end of the next day which is a business day.
For all purposes of this Agreement, a "business day" means any day other than a
Saturday, Sunday, or other day on which commercial banks are authorized or
required to close under the laws of the State of Maryland.
SECTION 16. 10. EXHIBITS.
All Exhibits to this Agreement are incorporated herein by reference.
SECTION 16.11. CAPTIONS.
The captions of the various sections and paragraphs of this Agreement have
been inserted only for the purpose of convenience; such captions are not a part
of this Agreement and shall not be deemed in any manner to modify, explain,
enlarge or restrict any of the provisions of this Agreement.
31
SECTION 16.12. INVALIDITY.
If any term, covenant, or condition of this Agreement or the application
thereof to any person or circumstances shall be invalid or unenforceable (other
than a provision imposing limited liability upon a party), the remainder of this
Agreement, or the application of such term, covenant or condition to persons or
circumstances other than those to which it is held invalid or unenforceable,
shall not be affected thereby, and each term, covenant and condition shall be
valid and enforceable to the fullest extent permitted by law.
SECTION 16. 13. ESCROW AGENT.
Escrow Agent's signature hereto constitutes acknowledgment of receipt of
the Deposit only. Seller and Purchaser agree that Escrow Agent assumes no
responsibility for, and shall not be liable for, the performance of the
obligations of either Seller or Purchaser as contained in this Agreement. Escrow
Agent is only obligated to hold the Deposit in escrow and to deliver it in the
manner described herein. Escrow Agent may act upon any instrument or other
writing (and upon signatures of the parties hereto) believed by it in good faith
to be genuine, without any further duty of independent verification. In the
event of any dispute with respect to the transactions described in this
Agreement, Escrow Agent shall be entitled to deliver the Deposit to a court
with appropriate jurisdiction without first acquiring the approval or either
Seller or Purchaser, thereby relieving itself from all further duties or
responsibilities with respect thereto.
SECTION 16.14. POST CLOSING ACCESS TO RECORDS. Upon receipt by Seller of
Purchaser's reasonably written request at any time and from time to time within
a period of one (1) year after the Closing, Seller shall, at Seller's principal
place of business, during Seller's normal business hours, make available to
Purchaser for inspection and copying (at Purchaser's sole cost and expense) all
of Seller's books and records for the period for which Purchaser is required to
have audited financial statements prepared with respect to the Property as may
be required by the Securities and Exchange Commission and/or Purchaser's
auditors to the extent that such books and records and related information are
in Seller's possession or control. Seller agrees to provide to Purchaser's
auditor a representation letter, in substantially the form of EXHIBIT "K"
attached hereto, regarding such books and records. The provisions of this
Section 16.14 shall survive the Closing for a period of one (1) year.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties on
the day and year noted below for each, and the "Execution Date" of this
Agreement shall be the latest date on which Seller and Purchaser shall have
executed this Agreement.
SELLER:
AQUILA BIOPHARMACEUTICALS, INC.
WITNESS:
/s/ Stephen Di Palma By: /s/ ALISON TAUNTON-RIGBY
- ----------------------- ------------------------------
Name: ALISON TAUNTON-RIGBY
----------------------------
Title: PRESIDENT & CEO
---------------------------
DATED: 9/29/97
-----------------
PURCHASER:
ALEXANDRIA REAL ESTATE
EQUITIES, INC.
WITNESS:
/s/ Gary A. Kreitzer By: /s/ ALAN D. GOLD
- ----------------------- ------------------------------
Name: ALAN D. GOLD
----------------------------
Title: PRESIDENT
---------------------------
DATED: SEPT 29, 1997
-----------------
ACKNOWLEDGMENT BY ESCROW AGENT
The undersigned joins in the execution of this Agreement solely to serve as
the "Escrow Agent" pursuant to this Agreement and agrees to hold the Deposit in
escrow and to disburse same in accordance with the provisions of this Agreement.
Chicago Title Insurance Company
By: /s/ Charles S. Carroccio Jr.
----------------------------
Name: Charles S. Carroccio Jr.
--------------------------
Title: Office Counsel
-------------------------
Date: October 1, 1997
----------------
LIST OF EXHIBITS
Exhibit "A" - Legal Description of the Land
Exhibit "B" - List of Personal Property being Conveyed to Purchaser
Exhibit "C" - Operating Statements for the Property (full 1996;
partial 1997)
Exhibit "D" - Rent Roll and Description of Leases
Exhibit "E" - List of Service Contracts (with copies thereof)
Exhibit "F" - Qualifications to Seller's Representation re: Hazardous
Materials
Exhibit "G" - Form of Tenant Estoppel Certificate
Exhibit "H" - List of Approvals
Exhibit "I" - List of Insurance Policies Maintained by Seller in
connection with its Ownership of the Property
Exhibit "J" - Form of Special Warranty Deed
Exhibit "K" - Form of Representation Letter
Exhibit "L" - Form of Certificate of Seller and Purchaser
Exhibit "M" - Form of Assignment of Leases
Exhibit "N" - Form of Bill of Sale
EXHIBIT "A"
DESCRIPTION OF LAND
Those two (2) certain properties located in Montgomery County, Maryland more
particularly described as follows:
Lot numbered Five (5) in Block lettered "A" in the subdivision known as "RED
GATE INDUSTRIAL PARK" as shown on a plat thereof recorded in Plat Book 102,
Plat 11503 among the Land Records of Montgomery County, Maryland, more
commonly known as 3 Taft Court, Rockville, Maryland 20850.
Lot numbered Nine (9) in Block lettered "B" in the subdivision known as "RED
GATE INDUSTRIAL PARK" as shown on a plat thereof recorded in Plat Book 114
at Plat 13548 among the Land Records of Montgomery County, Maryland, together
with Access Easement for Lot Nine (9) across Lot Ten (10) as shown on the
plat recorded at Plat Book 114 at Plat 13548 among the Land Records of
Montgomery County, Maryland, more commonly known as 1500 East Gude Drive,
Rockville, Maryland 20850.
EXHIBIT "B"
LIST OF PERSONAL PROPERTY BEING CONVEYED TO PURCHASER
NONE
EXHIBIT C
TOTAL 1997 thru
1996 8/31/97
---------- -----------
RENTAL INCOME:
BBI @ 3 Taft Court 268,840 193,013
CBC @ 1500 EGD & 3 1/2 Taft 92,671 317,730
Expense reimbursement 42,089 73,405
---------- -----------
Totals 403,600 584,148
RENTAL EXPENSES:
Mortgage payments 112,731 366,224
Depreciation 136,976 103,188
Real estate taxes 101,437 69,772
Insurance 16,165 10,777
Building maintenance 7,195 6,827
Building cleaning 2,430 0
Building security 23,542 0
---------- -----------
Totals 400,476 556,788
---------- -----------
Net rental income/(loss) 3,124 27,360
---------- -----------
---------- -----------
EXHIBIT "D"
RENT ROLL AND DESCRIPTION OF LEASES
EXHIBIT "E"
List of Service Contracts (with copies thereof)
NONE
EXHIBIT F
There is one underground tank used to store diesel fuel for emergency
generators located behind 3 Taft Court.
EXHIBIT "G"
Form of Tenant Estoppel Certificate
ESTOPPEL CERTIFICATE
THIS TENANT ESTOPPEL CERTIFICATE ("CERTIFICATE"), dated as of
_______________, 1997, is executed by ______ ("TENANT") in favor of
Alexandria Real Estate Equities, Inc., a Maryland corporation, together with
its nominees, assignees and assigns (collectively, "BUYER") and in the favor
of _______________-_______________________, a _______________ corporation,
together with its nominees, designees and assigns (collectively, "LENDER").
RECITALS
A. Buyer and Aquila BioPharmaceuticals, Inc., a Delaware corporation
("LANDLORD"), have entered into that certain Purchase Agreement, dated as of
_____________, 1997 (the "PURCHASE AGREEMENT"), whereby Buyer has agreed to
purchase, among other things, the improved real property located in the City
of Rockville, County of Montgomery, State of Maryland, more particularly
described on Exhibit "A" attached to the Purchase Agreement (the "PROPERTY").
B. Tenant and Landlord (or its predecessor-in-interest) have entered
into that certain Lease Agreement, dated as of ________________ (together
with all amendments, modifications, supplements, guarantees and restatements
thereof, the "Lease"), for a portion of the Property.
C. Pursuant to the Lease, Tenant has agreed that upon the request of
Landlord, Tenant would execute and deliver an estoppel certificate certifying
the status of the Lease.
D. In connection with the Purchase Agreement, Landlord has requested that
Tenant execute this Certificate with an understanding that Lender will rely on
the representations and agreements below in granting to Buyer a loan.
NOW, THEREFORE, Tenant certifies, warrants, and represents to Buyer and
Lender as follows:
AGREEMENT
SECTION 1. LEASE.
Attached hereto as Exhibit "1" is a true, correct and complete copy of
the Lease, including the following amendments, modifications, supplements,
guarantees and restatements thereof, which together represent all of the
amendments, modifications, supplements, guarantees and restatements thereof:
____________________________________________________________________________
______________________________________________________________________.
(If none, please state "None.")
SECTION 2. LEASED PREMISES.
Pursuant to the Lease, Tenant leases those certain premises (the "LEASED
PREMISES:") consisting of approximately _________________ (___________)
rentable square feet within the Property, as more particularly described in
the Lease. In addition, pursuant to the terms of the Lease, Tenant has the
[non-exclusive] right to use [____________ parking spaces/the parking area]
located on the Property during the term of the Lease. [Cross-out the preceding
sentence or portions thereof if inapplicable.]
SECTION 3. FULL FORCE OF LEASE.
The Lease has been duly authorized, executed and delivered by Tenant, is
in full force and effect has not been terminated and constitutes a legally
valid instrument, binding and enforceable against Tenant in accordance with
its terms, subject only to applicable limitations imposed by laws relating to
bankruptcy and creditor's rights.
SECTION 4. COMPLETE AGREEMENT.
The Lease constitutes the complete agreement between Landlord and Tenant
for the Leased Premises and the Property, except as modified by the Lease
amendments noted above (if any), has not been modified, altered or amended.
SECTION 5. ACCEPTANCE OF LEASED PREMISES.
Tenant has accepted possession and is currently occupying the Leased
Premises.
SECTION 6. LEASE TERM.
The term of the Lease commenced on _________________ and ends on
_______________, subject to the following options to extend: ________________
__________________________________________________________________.
(If none, please state "None.")
SECTION 7. PURCHASE RIGHTS.
Tenant has no option, right of first refusal, right of first offer, or
other right to acquire or purchase all or any portion of the Leased Premises or
all or any portion of, or interest in, the Property, except as follows:_________
_______________________________________________________________________________.
(If none, please state "None.")
SECTION 8. RIGHTS OF TENANT.
Except as expressly stated in this Certificate, Tenant:
(a) has no right to renew or extend the term of the Lease;
(b) has no option or other right to purchase all or any part of the Leased
Premises or all or any part of the Property;
(c) has no right, title, or interest in the Leased Premises, other than as
Tenant under the Lease.
SECTION 9. RENT.
(a) The obligation to pay rent under the Lease commenced on
____________. The rent under the Lease is current, and Tenant is not in
default in the performance of any of its obligations under the Lease.
(b) Tenant is currently paying base rent under the Lease in the
amount of _______________ Dollars ($_________) per month. Tenant has not
received and is not, presently, entitled to any abatement, refunds, rebates,
concessions or forgiveness of rent or other charges, free rent, partial rent,
or credits, offsets or reductions in rent, except as follows:________________
_____________________________________________________.
(If none, please state "None.")
(c) Tenant's estimated share of operating expenses, common area
charges, insurance, real estate taxes and administrative and overhead
expenses is ______ percent (____%) and is currently being paid at the rate
of ___________________ Dollars ($______) per month, payable to
_________________.
(d) There are no existing defenses or offsets against rent due or
to become due under the terms of the Lease, and there presently is no default
or other wrongful act or omission by Landlord under the Lease or otherwise in
connection with Tenant's occupancy of the Leased Premises, nor is there a
state of facts which with the passage of time or the giving of notice or both
could ripen into a default on the part of Tenant, or to the best knowledge of
Tenant, could ripen into a default on the part of Landlord under the Lease,
except as follows: _________________________________________________________
____________________________________________________________________________
(If none, please state "None.")
SECTION 10. SECURITY DEPOSIT.
The amount of Tenant's security deposit held by Landlord under the Lease is
______________________ Dollars ($______).
SECTION 11. PREPAID RENT.
The amount of prepaid rent, separate from the security deposit, is
_____________________ Dollars ($______ ), covering the period from
_________________ to _________________________.
SECTION 12. INSURANCE.
All insurance, if any, required to be maintained by Tenant under the Lease
is presently in effect.
SECTION 13. PENDING ACTIONS.
There is not pending or, to the knowledge of Tenant, threatened against
or contemplated by the Tenant, any petition in bankruptcy, whether voluntary
or otherwise, any assignment for the benefit of creditors, or any petition
seeking reorganization or arrangement under the federal bankruptcy laws or
those of any state.
SECTION 14. TENANT IMPROVEMENTS.
As of the date of this Certificate, to the best of Tenant's knowledge,
Landlord has performed all obligations required of Landlord pursuant to the
Lease; no offsets, counterclaims, or defenses of Tenant under the Lease exist
against Landlord; and no events have occurred that, with the passage of time
or the giving of notice, would constitute a basis for offsets, counterclaims,
or defenses against Landlord, except as follows:_______________________________
____________________________________________________________________________.
(If none, please state "None.")
SECTION 15. ASSIGNMENTS BY LANDLORD.
Tenant has received no notice of any assignment, hypothecation or pledge
of the Lease or rentals under the Lease by Landlord. Tenant hereby consents
to an assignment of the lease and rents to be executed by Landlord to Buyer
or Lender in connection with the Loan and acknowledges that said assignment
does not violate the provisions of the Lease. Tenant acknowledges that the
interest of the Landlord under the Lease is to be assigned to Buyer or Lender
solely is security for the purposes specified in said assignment and Buyer or
Lender shall have no duty, liability or obligation whatsoever under the Lease
or any extension or renewal thereof, either by virtue of said assignment or
by any subsequent receipt or collection of rents thereunder, unless Buyer or
Lender shall specifically undertake such liability in writing. Tenant agrees
that upon receipt of a written notice from Buyer or Lender of a default by
Landlord under the Loan, Tenant will thereafter pay rent to Buyer or Lender
in accordance with the terms of the Lease.
SECTION 16. ASSIGNMENTS BY TENANT.
Tenant has not sublet or assigned the Leased Premises or the Lease or
any portion thereof to any sublessee or assignee. No one except Tenant and
its employees will occupy the Leased Premises. The address for notices to be
sent to Tenant is as set forth in the Lease.
SECTION 17. ENVIRONMENTAL MATTERS.
The operation and use of the Leased Premises does not involve the
generation, treatment, storage, disposal or release into the environment of
any hazardous materials, regulated materials and/or solid waste, except those
used in the ordinary course of operating Tenant's business and in all events
are generated, used stored and disposed of in accordance with all applicable
laws.
SECTION 18. SUCCESSION OF INTEREST.
Tenant agrees that, in the event Buyer or Lender succeeds to interest of
Landlord under the Lease:
(a) Buyer or Lender shall not be liable for any act or omission of
any prior landlord (including Landlord);
(b) Buyer or Lender shall not be liable for the return of any
security deposit;
(c) Buyer or Lender shall not be bound by any rent or additional
rent which Tenant might have prepaid under the Lease for more than the
current month;
(d) Buyer or Lender shall not be bound by any amendments or
modifications of the Lease made without prior consent of Buyer or Lender;
(e) Buyer or Lender shall not be subject to any offsets or defenses
which Tenant might have against any prior landlord (including Landlord); or
(f) Buyer or Lender shall not be liable under the Lease to Tenant
for the performance of Landlord's obligations under the Lease beyond Buyer or
Lender's interest in the Property.
SECTION 19. NOTICE OF DEFAULT.
Tenant agrees to give Buyer and Lender a copy of any notice of default
under the Lease served upon Landlord at the same time as such notice is given
to the Landlord. Tenant further agrees that if Landlord shall fail to cure
such default within the applicable grace period, if any, provided in the
Lease, then Buyer or Lender shall have an additional sixty (60) days within
which to cure such default, or if such default cannot be cured within such
sixty (60) day period, such sixty (60) day period shall be extended so long
as Buyer or Lender has commenced and is diligently pursuing the remedies
necessary to cure such default (including, but not limited to, commencement
of foreclosure proceedings, if necessary to effect (such cure), in which
event the Lease shall not be terminated while such remedies are being pursued.
SECTION 20. NOTIFICATION BY TENANT.
From the date of this Certificate and continuing until ___________,
Tenant agrees to immediately notify Buyer and Lender, in writing by
registered or certified mail, return receipt requested, at the following
addresses, on the occurrence of any event or the
discovery of any fact that would make any representation contained in this
Certificate inaccurate:
If To Buyer: Alexandria Real Estate Equities, Inc.
251 South Lake Avenue, Suite 535
Pasadena, California 91101
Attention: Joel S. Marcus
With A Copy To: Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue, Suite 3400
Los Angeles, California 90071
Attention: Rand S. April
If To Lender:
-----------------------------------------
-----------------------------------------
-----------------------------------------
Attention:
------------------------------
Tenant makes this Certificate with the knowledge that it will be relied
upon by Buyer and Lender in agreeing to purchase the Property.
Tenant has executed this Certificate as of the date first written above
by the person named below, who is duly authorized to do so.
TENANT
-------------------------------------
By:
----------------------------------
Name:
Its:
EXHIBIT H
None
EXHIBIT I
Package Policy, including:
Property & Casualty
General Liability
Rent Loss
Boiler & Machinery
Umbrella Liability
Excess Umbrella Liability
EXHIBIT J"
FORM OF SPECIAL WARRANTY DEED
SPECIAL WARRANTY DEED
-------------------------
Tax Account No./Parcel ID
Made this __ day of ________________ , 1997, by and between
AQUILA BIOPHARMACEUTICALS, INC., a Delaware corporation, party of the
first part, and ALEXANDRIA REAL ESTATE EQUITIES, INC., a Maryland corporation,
party of the second part:
Witnesseth, that in consideration of SIX MILLION FIVE HUNDRED THOUSAND
DOLLARS ($6,500,000.00), the receipt of which is hereby acknowledged, and
which the party of the first part certifies under the penalty of perjury as
the actual consideration paid, the said party of the first part does hereby
grant, convey, bargain and sell unto the party of the second part, its
successors and assigns in fee simple absolute all that improved property
situate, lying and being in Montgomery County, State of Maryland and more
particularly described on EXHIBIT "A", attached hereto and made a part hereof
for all purposes (the "PROPERTY");
SUBJECT to covenants, easements, rights of way and restrictions of record.
TO HAVE AND TO HOLD the Property hereby intended to be conveyed,
together with the buildings and improvements thereupon erected, made or
being, and all and every title, rights, privileges, appurtenances and
advantages "thereunto belonging, or in any wise appertaining, unto and for the
proper use only, benefit and behoof forever of said party of the second part,
its successors and assigns, in fee simple absolute.
AND the said party of the first part covenants that it will warrant
specially the property hereby conveyed, and that it will execute such further
assurances of the Property as may be requisite or necessary.
IN TESTIMONY WHEREOF, the said party of the first part has set its hand and
seal the year and day first above written.
AQUILA BIOPHARMACEUTICALS, INC.,
a Delaware corporation
(SEAL)
- ---------------------------- ----------------------------------
By:
(SEAL)
- ---------------------------- ----------------------------------
By:
STATE OF _______________ )
COUNTY OF _______________) SS.
I HEREBY CERTIFY that on this ___ day of _____________, 1997, before
me, the undersigned officer, a Notary Public in and for the State and County
aforesaid, personally appeared __________________, who acknowledged himself
to be the ______________________ of AQUILA BIOPHARMACEUTICALS, INC., and that
he, as such officer, being duly authorized so to do, executed the foregoing
instrument for the purposes therein contained by signing the name of said
corporation by himself as such officer.
WITNESS MY HAND AND NOTARIAL SEAL.
----------------------------------
, Notary
EXHIBIT "K"
FORM OF REPRESENTATION LETTER
EXHIBIT K
Date
Ernst & Young LLP
2049 Century Park East
Suite 1700
Los Angeles, CA 90067
Re: The statement of revenue and certain expense of "NAME OF PROPERTY"
In connection with your audits of the statement of revenue and certain expenses
of "NAME OF PROPERTY" for the period, we recognize that obtaining
representations from us concerning the information contained in this letter is a
significant procedure in enabling you to form an opinion whether the statement
of revenue and certain expenses presently fairly, in all material respects, the
results of operations of "NAME OF PROPERTY" in conformity with generally
accepted accounting principles and accordingly, we make the following
representations, which are true to the best of our knowledge and belief.
GENERAL
We recognize that, as members of management of "NAME OF PROPERTY" we are
responsible for the fair presentation of its statement of revenue and certain
expenses. We believe the statement of revenue and certain expenses is fairly
presented in conformity with generally accepted accounting principles applied on
a consistent basis.
We have provided to your representatives all financial records and related data.
We had no plans or intentions that would have materially affect all carrying
value or classification of the property's assets and liabilities.
INTERNAL CONTROL
There are no material transactions that have not been properly recorded in the
accounting records underlying the statement of revenue and certain expenses.
There are no material weaknesses in internal control, including any for which we
believe the cost of corrective actions exceeds the benefits. There have been no
significant changes in internal controls since the date of acquisition.
Page 2
Ernst & Young LLP ________________, 1997
RISKS AND UNCERTAINTIES
To the best of our knowledge there are no risks and uncertainties related to
certain significant estimates and current vulnerabilities due to certain
concentrations that have not been disclosed.
RECEIVABLES
Adequate provision has been made for material losses, costs and expenses that
may be incurred subsequent to the date of acquisition for uncollectible
accounts and discounts, etc., that may be incurred in the collection of
receivables at that date.
CONTINGENT LIABILITIES
There are no unasserted claims or assessments, including those our lawyers
have advised us of, that are probable of assertion and must be disclosed.
There have been no violations or possible violations of laws or regulations
in any jurisdiction whose effects should be considered for disclosure in the
statement of revenue and certain expenses or as a basis for recording a loss
contingency.
There are no other material liabilities or gain or loss contingencies that
are required to be accrued or disclosed.
IRREGULARITIES
There have been no irregularities involving management or employees who have
significant roles in internal control. There have been no irregularities
involving other employees that could have a material effect on the statement of
revenue and certain expenses.
There are no instances where any officer of employee of "NAME OF PROPERTY" has
an interest in a company that which "NAME OF PROPERTY" does business that
would be considered a "conflict of interest." Such an interest would be
contrary to "NAME OF PROPERTY" policy.
SUBSEQUENT EVENT
No event or transactions have occurred since the date of acquisition or are
pending that would have a material effect on the financial statement at that
date or for the period then ended, or that are of such signifcance in relation
to "NAME OF PROPERTY" affairs to require mention in a note to the statement of
revenue and certain expenses in order to make them not misleading regarding
the results of operations of "NAME OF PROPERTY".
Page 3
Ernst & Young LLP ________________, 1997
We understand that your audits were conducted in accordance with generally
accepted auditing standards as defined and described by the American Institute
of Certified Public Accountants and were, therefore, designed primarily for the
purpose of expressing an opinion on the statement of revenue and certain
expenses of "NAME OF PROPERTY" taken as a whole, and that your tests of the
accounting records and other auditing procedures were limited to those that you
considered neccessary for that purpose.
Very truly yours,
- ------------------------------
By:
---------------------------
By:
------------------------
By:
-----------------
- ------------------------------
By:
---------------------------
By:
------------------------
By:
-----------------
- ------------------------------
By:
---------------------------
By:
------------------------
By:
-----------------
EXHIBIT "L"
FORM OF CERTIFICATE OF SELLER AND PURCHASER
SELLER'S [PURCHASER'S] CERTIFICATE
The undersigned hereby certifies to ALEXANDRIA REAL ESTATE EQUITIES,
INC. ("Buyer") [AQUILA BIOPHARMACEUTICALS, INC. ("Seller")] that, as of the
date hereof,
(i) all of the representations, covenants and warranties of AQUILA
BIOPHARMACEUTICALS, INC. ("Seller") [ALEXANDRIA REAL ESTATE EQUITIES, INC.
("Buyer")] made in or pursuant to that certain Purchase Agreement, dated as
of ________________, 1997, between Seller and Buyer (the "Agreement") are
true, accurate, correct and complete in all material respects, except as
otherwise expressly disclosed in the schedule of exceptions attached to this
Certificate;
(ii) all conditions to the Closing (as such term is defined in the
Agreement) that Seller [Buyer] was to satisfy or perform have been satisfied and
performed in all material respects, except as otherwise expressly disclosed in
the schedule of exceptions attached to this Certificate; and
(iii) all conditions to the Closing that Buyer [Seller] was to satisfy or
perform to obligate Seller [Buyer] to consummate the Closing have been satisfied
and performed in all material respects, except as otherwise expressly disclosed
in the schedule of exceptions attached to this Certificate.
Dated: AQUILA BIOPHARMACEUTICALS, INC.
--------------- [ALEXANDRIA REAL ESTATE EQUITIES, INC.]
By:
------------------------------------
Name:
Title:
EXHIBIT "M"
FORM OF ASSIGNMENT OF LEASES
ASSIGNMENT OF LEASES AND SECURITY DEPOSITS
THIS ASSIGNMENT OF LEASES AND SECURITY DEPOSITS ("ASSIGNMENT") is entered
into as of the __day of _____________, 1997, by and between AQUILA
BIOPHARMACEUTICALS, INC., a Delaware corporation ("ASSIGNOR"), and ALEXANDRIA
REAL ESTATE EQUITIES, INC., a Maryland corporation ("ASSIGNEE").
R E C I T A L S
WHEREAS, Assignor (or its predecessor-in-interest), as landlord, has
entered into those certain leases identified on Exhibit " __" attached hereto
and incorporated herein by reference (collectively, together with all
amendments, modifications, supplements, restatements and guarantees thereof,
the "LEASES"), for certain property located in the City of Rockville, County of
Montgomery, State of Maryland;
WHEREAS, Assignor and Assignee have entered into that certain Purchase
Agreement, dated as of , 1997 (the "PURCHASE AGREEMENT"); and
WHEREAS, the Purchase Agreement requires Assignor and Assignee to execute
this Assignment;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor and Assignee hereby agree
as follows:
AGREEMENT
1. ASSIGNMENT AND ASSUMPTION. Assignor hereby irrevocably assigns, sets
over, transfers and conveys to Assignee all of Assignor's right, title and
interest in and to (i) the Leases and (ii) all security deposits made under the
Leases (the "SECURITY DEPOSITS"), which assignment shall be effective from and
after the date hereof for the remainder of the term of each of the Leases.
Subject to the terms and conditions of the Purchase Agreement, Assignee hereby
accepts this Assignment of the Leases and Security Deposits and the rights
granted herein. Assignee hereby expressly assumes, for itself and its
successors, assigns and legal representatives, the Leases and all of the
obligations and liabilities, fixed and contingent, of Assignor thereunder
accruing from and after the date hereof with respect to the Leases and agrees to
(a) be fully bound by all of the terms, covenants, agreements, provisions,
conditions, obligations and liability of Assignor thereunder, which accrue from
the date hereof, and (b) keep, perform and observe all of
the covenants and conditions contained therein on the part of Assignor to be
kept, performed and observed, from and after the date hereof.
2. INDEMNIFICATIONS. Assignor hereby agrees to indemnify, protect,
defend and hold Assignee harmless from and against any and all claims,
losses, damages, costs and expenses (including, without limitation,
reasonable attorney's fees and disbursements) incurred or suffered by
Assignee in connection with the Leases and arising prior to the Closing (as
defined in the Purchase Agreement). Assignee hereby agrees to indemnify,
protect, defend and hold Assignor harmless from and against any and all
claims, losses, damages, costs and expenses (including, without limitation,
reasonable attorney's fees and disbursements) incurred or suffered by
Assignor in connection with the Leases and arising on or after the Closing.
3. GENERAL PROVISIONS.
a. SUCCESSORS. This Assignment shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, legal representatives,
successors and assigns.
b. COUNTERPARTS. This Assignment may be executed in as many
counterparts as may be deemed necessary and convenient, and by the 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.
c. GOVERNING LAW. This Assignment and the legal relations of the
parties hereto shall be governed by and construed and enforced in accordance
with the laws of the State of Maryland, without regard to its principles of
conflicts of law.
IN WITNESS WHEREOF, this Assignment was made and executed as of the date
first above written.
ASSIGNOR
AQUILA BIOPHARMACEUTICALS, INC.
a Delaware corporation
By:
----------------------------
Name:
Its:
ASSIGNEE
ALEXANDRIA REAL ESTATE EQUITIES,
INC., a Maryland corporation
By:
----------------------------
Name:
Its:
EXHIBIT " "
(to Exhibit "M" -- Assignment of Leases)
LIST OF LEASES
1. [Name of Lease], dated as of ______, by and between
____________________ and ______________.
2. [Name of Lease], dated as of ______ , by and between
____________________ and ______________.
3. [Name of Lease], dated as of ______ , by and between
____________________ and ______________.
EXHIBIT "N"
FORM OF BILL OF SALE
BILL OF SALE
THIS BILL OF SALE ("BILL OF SALE") is made as of the ____ day of
______________, 1997, by AQUILA BIOPHARMACEUTICALS, INC., a Delaware
corporation ("SELLER"), to ALEXANDRIA REAL ESTATE EQUITIES,
[INC., a Maryland partnership ("BUYER").
R E C I T A L S
WHEREAS, Seller is the owner of that certain real property located in
the City of Rockville, County of Montgomery, State of Maryland (the "REAL
PROPERTY"), as more particularly described on Exhibit "A" attached hereto and
incorporated herein by reference;
WHEREAS, Buyer and Seller have entered into that certain Purchase
Agreement (the "PURCHASE AGREEMENT"), dated as of _______________, 1997, with
respect to, among other things, the acquisition of the "Personal Property"
and the "Intangible Property" (each as defined below), and certain other
property; and
WHEREAS, the Purchase Agreement requires Seller to convey all of
Seller's right, title and interest in, to and under the Personal Property and
the Intangible Property to Buyer;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller hereby agrees as follows:
A G R E E M E N T
1. Unless the context otherwise requires, all capitalized terms used but
not otherwise defined herein shall have the respective meanings provided
therefor in the Purchase Agreement.
2. Seller does hereby unconditionally, absolutely, and irrevocably grant,
bargain, sell, transfer, assign, convey, set over and deliver unto Buyer all
of Seller's right, title and interest in and to:
a. all of that certain tangible personal property now owned by
Seller and located on the Land or Improvements or attached thereto, and used
in connection with the use, operation, maintenance or repair thereof,
(collectively, the "PERSONAL PROPERTY"), all as more particularly described
on Exhibit "B" attached hereto and incorporated herein by reference; and
b. all of that certain intangible property now or hereafter owned
by Seller and used in connection with the Land, the Improvements or the
Personal Property, including, without limitation, the Leases and the Service
Contracts, building names, architectural, site, landscaping or other permits,
applications, authorizations and other entitlement, transferable guarantees
and warranties covering the Land and/or Improvements, together with all
transferable 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 (collectively, the "INTANGIBLE PROPERTY" and,
together with the Personal Property, the "PROPERTY").
3. Buyer hereby expressly assumes, for itself and its successors,
assigns and legal representatives, the Leases and the Service Contracts and
all of the obligations and liabilities, fixed and contingent, of Seller
thereunder accruing from and after the date hereof with respect thereto and
agrees to (a) be fully bound by all of the terms, covenants, agreements,
provisions, conditions, obligations and liability of Seller thereunder, which
accrue from the date hereof, and (b) keep, perform and observe all of the
covenants and conditions contained therein on the part of Seller to be kept,
performed and observed, from and after the date hereof.
4. Seller represents and warrants that the Property is free and clear of
all options, liens, mortgages, pledges, security interests, covenants, prior
assignments, encumbrances and claims of any nature, other than the Permitted
Exceptions.
5. Seller hereby agrees to indemnify, protect, defend and hold Buyer
harmless from and against any and all claims, losses, damages, costs and
expenses (including, without limitation, reasonable attorney's fees and
disbursements) incurred or suffered by Buyer in connection with the Property
and arising prior to the Closing. Buyer hereby agrees to indemnify, protect,
defend and hold Seller harmless from and against any and all claims, losses,
damages, costs and expenses (including, without limitation, reasonable
attorney's fees and disbursements) incurred or suffered by Seller in
connection with the Property and arising on or after the Closing.
6. This Bill of Sale shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, legal representatives,
successors and assigns.
7. This Bill of Sale and the legal relations of the parties hereto shall
be governed by and construed and enforced in accordance with the laws of the
State of Maryland, without regard to its principles of conflicts of law.
IN WITNESS WHEREOF, this Bill of Sale was made and executed as of the date
first above written.
SELLER:
AQUILA BIOPHARMACEUTICALS, INC.,
a Delaware corporation
By:
----------------------------
Name:
Its:
BUYER:
ALEXANDRIA REAL ESTATE EQUITIES, INC.,
a Maryland corporation
By:
----------------------------
Name:
Its: