Exhibit 10.3
AGREEMENT OF PURCHASE AND
SALE
( 2600 and
2620 Trade Centre Avenue, Longmont, Colorado )
This Agreement of Purchase and Sale
(“ Agreement ”) is made as of the 9th day of
August, 2006 (“ Effective Date ”) between Circle
Capital Longmont LLC, a Delaware limited liability company (“
Seller ”), and Array BioPharma Inc., a Delaware
corporation (“ Purchaser ”).
Seller’s predecessor in
interest and Purchaser entered into a written lease agreement,
dated February 28, 2000, as amended by Addendum to Lease Agreement
#1 dated May 24, 2001, Addendum to Lease Agreement #2, dated
February 11, 2002, Addendum to Lease Agreement dated November 30,
2004, Addendum #4 to Lease Agreement dated August 1, 2005 (“
Addendum #4 to 2620 Lease ”), Addendum #5 to Lease
Agreement dated as of November 30, 2005, Addendum #6 to Lease
Agreement dated December 22, 2005, Addendum #7 to Lease Agreement
dated February 28, 2006, and Addendum #8 to Lease Agreement dated
as of March 1, 2006 (collectively, the “ 2620
Lease ”), pertaining to an approximately 43,200 square
foot building located at 2620 Trade Centre Avenue, Longmont,
Colorado (“ 2620 Building ”).
Seller’s predecessor in
interest and Purchaser entered into a written lease agreement,
dated February 11, 2002, as amended by Addendum #1 to Lease
Agreement dated November 30, 2004, and Addendum to Lease Agreement
#2, dated August 4, 2005 (collectively, the “ 2600
Lease ”), pertaining to an approximately 28,800 square
foot building located at 2600 Trade Centre Avenue, Longmont,
Colorado (“ 2600 Building ”).
The 2620 Lease and the 2600 Lease
shall be collectively referred to hereinafter as the “
Leases ”.
The 2620 Building and the 2600
Building shall be collectively referred to hereinafter as the
“ Buildings ”.
Under Addendum #4 to 2620 Lease,
Purchaser was granted an option, under certain terms, to purchase
the Buildings (the “ Purchase Option
”).
Purchaser has notified Seller of its
desire to purchase the Buildings from Seller. Subject to the
terms and conditions of this Agreement, Seller will sell to
Purchaser, and Purchaser will purchase from Seller, the Property
(as defined below), including the Buildings.
ARTICLE 1.
PROPERTY/PURCHASE
PRICE
1.1.
Property . Subject to the terms and conditions of
this Agreement, Seller agrees to sell to Purchaser, and Purchaser
agrees to purchase from Seller, the following property
(collectively, the “ Property ”):
(a)
The “ Real Property
,” being the land described in Exhibit A attached
hereto, the Building, all improvements and fixtures (other than
fixtures owned by Purchaser pursuant to the Leases) located thereon
(the “ Improvements ”); all and singular the
rights, benefits, privileges, easements, tenements, hereditaments,
and appurtenances thereon or in
anyway appertaining to such real
property; and all right, title, and interest of Seller in and to
all strips and gores and any land lying in the bed of any street,
road or alley, open or proposed, adjoining such real property;
and
(b)
The “ Intangible
Property ,” being all, right, title and interest of
Seller, if any, in and to all intangible personal property now or
hereafter used exclusively in connection with the operation,
ownership, maintenance, management, or occupancy of the Real
Property (to the extent assignable); the plans and specifications
for the Improvements (to the extent assignable); warranties,
indemnities, applications, permits, approvals and licenses (to the
extent applicable in any way to the above referenced Real Property
and assignable).
1.2.
Purchase Price
. The total purchase price to
be paid to Seller by Purchaser for the Property shall be Six
Million Seven Hundred Eighty-Six Thousand Dollars ($6,786,000)
(the “ Purchase Price ”). The Purchase
Price, as adjusted for prorations, deposits and other adjustments
as provided herein, shall be paid to Escrow Agent by wire transfer
of immediately available funds or in cash.
1.3.
Title Company and Escrow
Agent . The “
Escrow Agent ” and “ Title Company
” is: LandAmerica Commercial Services, 750 B. Street,
Suite 3000, San Diego California 92101, Attn: Katherine I.
Leicht (Tel#: (619) 230-6346; Fax#: (619) 233-0369).
1.4.
Closing Date
. The “ Closing
Date ” shall mean 12:00 noon (MDT) on August 9,
2006.
ARTICLE 2.
INSPECTION
2.1.
Access . Upon reasonable prior notice to Seller,
Purchaser and its agents, employees, consultants, lenders and
representatives shall have reasonable access to the Property and
all books and records for the Property that are located at the
property manager’s offices located at: 1375 Ken Pratt
Boulevard, Suite C, Longmont, CO 80501 (“ Manager’s
Office ”), for the purpose of conducting surveys,
appraisals, architectural, engineering, structural, mechanical,
geotechnical and environmental inspections and tests, and any other
inspections, studies, or tests reasonably required by Purchaser;
provided, however, Purchaser may not conduct any invasive testing
without Seller’s prior consent (which consent shall be at
Seller’s sole discretion). If any inspection or test
disturbs the Property in a material respect, Purchaser will restore
the Property to its condition before any such inspection or
test. During the pendency of this Agreement, Purchaser and
its agents, employees, consultants, lenders and representatives
shall have a continuing right of reasonable access to the Property
and the Manager’s Office, with reasonable prior notice, for
the purpose of examining and making copies of all books and records
and other materials relating to the Property. In the course
of its investigations, Purchaser may make reasonable inquiries to
third parties, including, without limitation, representatives,
contractors, property managers and municipal, local and other
government officials and representatives in accordance with the
terms of this Agreement, and Seller consents to such
inquiries. Purchaser hereby indemnifies, protects, defends
(with counsel reasonably acceptable to Seller) and holds Seller and
the Property free and harmless from and against any and all costs,
losses, liabilities, damages, lawsuits, judgments, actions,
proceedings, penalties, demands, attorneys’ fees,
mechanic’s liens, or expenses of any kind or nature
whatsoever (“ Claims ”), to the extent
caused
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by any entry and/or activities upon
the Property by Purchaser, Purchaser’s agents, contractors
and/or subcontractors; provided, however, Purchaser shall not
indemnify Seller against any Claims caused by Seller’s gross
negligence or willful misconduct.
2.2
Service Contracts; Property
Management and Leasing Agreements; Property Employees
. Seller shall terminate at
Closing, and Purchaser shall not assume, any property management or
third party leasing agreements affecting the Property. Seller
and Purchaser hereby agree and acknowledge that Seller currently
has contracts with the following service providers at the
Property: (i) SureLockPlus (Fire Alarm Monitoring); (ii)
MaiCon (Parking Lot Lighting); (iii) Window King (Window washing);
(iv) Longmont Sweeping (Parking lot sweeping); and (v) CoCal
Landscape (Grounds Maintenance) (collectively, the “Service
Contracts”). Seller shall amend or terminate the
Service Contracts such that the Service contracts do not affect the
Property on August 31, 2006. Until such time as the Service
Contracts are appropriately amended or terminated, Seller shall
arrange to have the service providers maintain the Property in
accordance with the terms of the Service Contracts and, upon
request of Purchaser, enforce the Service Contracts for the benefit
of Purchaser with respect to the Property. Seller shall have
no liability for any acts or omission of the service providers
under the Service Contracts. Seller hereby acknowledges that
Purchaser paid for its proportionate share of the amounts due under
the Service Contracts through August 31, 2006, along with
Purchaser’s August rent payments under the Leases. All
amounts paid by Purchaser to Seller under the Leases and allocated
to the Service Contracts shall be final and shall not be pro-rated
at Closing. The provisions of this Paragraph 2.2 shall
survive Closing.
ARTICLE 3.
TITLE AND SURVEY
REVIEW
3.1.
Delivery of Preliminary Title
Report and Survey .
Seller shall cause to be delivered to Purchaser on or prior to the
date that is five (5) days after the Effective Date, any existing
survey of the Property in Seller’s possession or control (the
“ Survey ”). Purchaser may update the
Survey, at Purchaser’s sole discretion. Purchaser has
obtained a commitment to insure title to the Property (the “
Title Commitment ”) issued by the Title Company
together with copies of the items listed on Scheduled B-2 (the
“ Exception Documents ”). The Title
Commitment, Exception Documents, and the Survey are referred to
herein collectively as the “ Title Documents
.”
3.2.
Title Review and Cure
. Prior to the Closing Date,
Purchaser shall review title to the Property as disclosed by the
Title Documents.
3.3.
Permitted Exceptions
. “ Permitted
Exceptions ” means the following exceptions approved or
deemed approved by Purchaser pursuant to this Agreement: (i)
real property taxes and assessments for the calendar year of the
Closing (as defined below) and subsequent years; (ii) any taxes,
assessments, fees or charges by reason of the inclusion of the
Property in any statutory district of record; (iii) covenants, as
amended and supplemented, of record; (iv) utility, landscape and
drainage easements of record; (v) any covenants contained in the
applicable subdivision plat; (vi) applicable zoning and building
code laws and regulations; (vii) liens and encumbrances created by,
through or under Purchaser; (viii) all matters disclosed by the
Survey
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or would be disclosed by an update
thereto; and (ix) the Leases, unless otherwise terminated pursuant
to the terms contained herein.
ARTICLE 4.
OPERATIONS
4.1.
Ongoing Operations
. During the pendency of this
Agreement:
(a)
Preservation of
Business . Seller
shall cause the Property to be operated in a manner consistent with
the terms and conditions of the Leases.
(b)
Maintenance of
Insurance . Seller
shall continue to carry its existing insurance as required by the
Leases through the Closing Date.
(c)
New Contracts
. Without Purchaser’s
prior written consent in each instance, Seller will not enter into
or amend, terminate, waive any default under, or grant concessions
regarding any contract or agreement that will be an obligation
affecting the Property or binding on Purchaser after the
Closing.
(d)
Leasing Arrangements
. Seller will not enter into
any new lease or other occupancy agreement affecting the
Improvements without Purchaser’s prior written consent in
each instance.
(e)
Maintenance of Permits
. Seller shall maintain in
existence all licenses, permits and approvals, if any, in
accordance with past business practices.
ARTICLE 5.
CONDITIONS
PRECEDENT
5.1.
Conditions to Seller’s
Obligation to Close . In addition to all other conditions set
forth herein, the obligation of Seller to consummate the
transactions contemplated hereunder shall be contingent upon the
following:
(a)
Representations
. Purchaser’s
representations and warranties contained herein shall be true and
correct as of the date of this Agreement and the Closing
Date;
(b)
Performance
. As of the Closing Date,
Purchaser shall have performed its obligations hereunder and all
deliveries to be made by Purchaser at Closing have been
tendered;
(c)
Other Condition
. Any other condition set
forth in this Agreement to Seller’s obligation to close shall
have been satisfied by the applicable date; and
(d)
Leases . There shall have been no material Events
of Default by Purchaser under the Leases, which have not been
remedied by Purchaser as of the Closing Date.
5.2.
Conditions to Purchaser’s
Obligation to Close . In addition to all other conditions set
forth herein, the obligation of Purchaser to consummate the
transactions contemplated hereunder shall be contingent upon the
following:
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(a)
Representations
. Seller’s
representations and warranties contained herein shall be true and
correct as of the date of this Agreement and the Closing
Date;
(b)
Deliveries
. All deliveries to be made by
Seller at Closing have been tendered;
(c)
Bankruptcy
. No proceeding has been
commenced against Seller under the federal Bankruptcy Code or any
state law for relief of debtors; and
(d)
Title . At Closing, the Title Company shall
irrevocably commit to issue to Purchaser an ALTA Owner’s
Policy of title insurance, dated as of the date and time of the
recording of the Deed (as defined below), vesting title in
Purchaser, in the amount of the Purchase Price (the “
Title Policy ”).
5.3
Termination of Leases/Expansion
Option . Effective
as of Closing, the Leases, including any “Expansion
Option” thereunder (as defined in Addendum #4 of the 2620
Lease), shall terminate and the parties shall execute a termination
of the Leases in a form reasonably acceptable to Seller and
Purchaser. Purchaser and Seller agree that neither party
shall have any obligation under, or take any further action with
respect to, the Expansion Option from the Effective Date of this
Agreement until the Closing Date and that all applicable time
periods for giving notice under Section 10 of Addendum #4 of the
2620 Lease shall be tolled from the Effective Date until the
Closing Date.
ARTICLE 6.
DEFAULT AND
REMEDIES
6.1.
Purchaser’s Defaults;
Seller’s Remedies . In the event of a material breach by
Purchaser of its obligations under this Agreement, Seller shall
have the right of specific performance and additional actual
damages.
6.2.
Seller’s Defaults;
Purchaser’s Remedies . In the event of a material breach by
Seller of its obligations under this Agreement, Purchaser shall
have the right of specific performance and additional actual
damages.
ARTICLE 7.
CLOSING
7.1.
Closing and Escrow
. The consummation of the
transaction contemplated herein (“ Closing ”)
shall occur on the Closing Date at the offices of the Escrow
Agent. Closing shall occur through an escrow with the Escrow
Agent. Funds shall be deposited into and held by Escrow Agent
in a closing escrow account with a bank satisfactory to Purchaser
and Seller. Upon satisfaction or completion of all closing
conditions and deliveries, Escrow Agent shall record and deliver
the Deed (as defined below) and deliver the closing document s to
the appropriate parties and make disbursements according to the
closing statements executed by Seller and Purchaser. Provided
such supplemental escrow instructions are not in conflict with this
Agreement as it may be amended in writing from time to time, Seller
and Purchaser agree to execute such supplemental escrow
instructions as may be appropriate to enable Escrow Agent to comply
with the terms of this Agreement. The parties understand that
the Closing shall occur in
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Longmont, Colorado and that all
necessary deliveries to escrow must be completed by 11:00 A.M. on
the Closing Date.
7.2.
Seller’s Deliveries in
Escrow . On or
before 11:00 A.M. on the Closing Date, Seller shall deliver in
escrow to the Escrow Agent the following:
(a)
Deed . That certain special warranty deed
(“ Deed ”) in the form attached as Exhibit
C hereto sufficient to vest title in Purchaser, subject only to
the Permitted Exceptions;
(b)
Bill of Sale
. A Bill of Sale (“
Bill of Sale ”) executed and acknowledged by Seller in
the form attached as Exhibit D hereto;
(c)
State Law Disclosures
. Such disclosures and reports
as are required by applicable state and local law in connection
with the conveyance of real property;
(d)
FIRPTA . A Foreign Investment in Real Property
Tax Act affidavit executed by Seller;
(e)
Authority . Evidence of the existence, organization
and authority of Seller and of the authority of the persons
executing documents on behalf of Seller required by and reasonably
satisfactory to the Title Company;
(f)
Owner’s
Affidavit . An
Owner’s Affidavit, if required, in the form attached as
Exhibit E hereto; and
(g)
Other Deliveries
. Any other Closing deliveries
required to be made by or on behalf of Seller hereunder or
reasonably required by the Title Company to effect the Closing of
this transaction consistent with this Agreement.
7.3.
Purchaser’s Deliveries in
Escrow . On or
before 9:00 a.m. on the Closing Date, Purchaser shall deliver in
escrow to the Escrow Agent the following:
(a)
Purchase Price
. The Purchase Price, plus or
minus applicable prorations, deposited by Purchaser with the Escrow
Agent in immediate, same-day federal funds wired for credit into
the Escrow Agent’s escrow account;
(b)
Bill of Sale
. Counterpart of the Bill of
Sale, executed by Purchaser;
(c)
State Law Disclosures
. Such disclosures and reports
as are required by applicable state and local law in connection
with the conveyance of real property; and
(d)
Other Deliveries
. Any other Closing deliveries
required to be made by or on behalf of Purchaser hereunder or
reasonably required to effect the Closing of this transaction
consistent with this Agreement.
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7.4.
Closing Statements/Closing
Costs .
(a)
Seller and Purchaser shall deposit
with the Escrow Agent executed closing statements consistent with
this Agreement in the form required by the Escrow Agent.
(b)
Seller and Purchaser shall execute
such returns, questionnaires and other documents as shall be
required with regard to all applicable real property transaction
taxes imposed by applicable federal, state or local law or
ordinance.
(c)
Seller shall pay the fees of any
counsel representing Seller in connection with this
transaction. Seller shall also pay the following costs and
expenses:
(i)
one-half of the closing and escrow
fees, if any, which may be charged by the Escrow Agent or the Title
Company;
(ii)
one-half of the owner’s title
insurance premium for the Title Policy, excluding any endorsements
Purchaser wishes to purchase from Title Company;
(iii)
one-half of the cost of an updated
Survey;
(iv)
one-half of all of the recording
fees; and
(v)
a brokerage commission due to CRESA
Partners in an amount equal
