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Exhibit
10.33
AGREEMENT OF SALE
THIS AGREEMENT OF SALE (the "Agreement" ) is made this
22nd day of December, 2006 (the "Agreement Date" ) by LV
ASSOCIATES, L.P., a Pennsylvania limited partnership (the
"Seller" ) and VIROPHARMA INCORPORATED, a Delaware
corporation (the "Buyer" ).
BACKGROUND
A. Seller is the owner of that certain lot or parcel of ground
known as 397 Eagleview Boulevard, located in Uwchlan Township,
Chester County, Pennsylvania (the " Overall Premises "),
which Overall Premises is depicted on the plan attached hereto as
Exhibit "A" (the " Plan "). The Overall Premises is
currently improved with an office building containing approximately
32,000 square feet of space (the " Existing Building ") with
related parking areas and site improvements (together with the
Existing Building, the " Existing Improvements ").
B. Seller intends to subject the Overall Premises to a
condominium regime (the " Condominium ") pursuant to a
Declaration of Condominium of Lot 8 Condominium, a copy of which is
attached hereto as Exhibit "B" (the " Declaration ").
Pursuant to the Declaration, Seller, as "Declarant", will create
two (2) condominium units, one (1) unit being the
footprint of the Existing Building and all improvements constructed
thereon, and the second unit being the building footprint of an
additional building to be constructed by Seller. The balance of the
Overall Premises will be "common elements" to be maintained and
operated by the condominium association to be created pursuant to
the Declaration.
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C. Seller desires to sell to the Buyer
the condominium unit containing the Existing Building, together
with such unit’s percentage interest in the common elements
of the Condominium (the "Premises" ), and Buyer desires to
acquire the Premises from Seller, upon the terms and conditions
contained in this Agreement.
NOW, THEREFORE , in consideration of the mutual covenants
and agreements contained herein, the parties hereto, intending to
be legally bound hereby, agree as follows:
1. SALE OF PREMISES. Seller agrees to sell to
Buyer, and Buyer agrees to purchase from Seller, subject to the
terms, covenants and conditions set forth herein, the Premises.
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All units in the Condominium will be restricted under the
Declaration to non residential use. Based on this intent, Buyer
hereby waives all rights under Chapter 34 of the Pennsylvania
Revised Uniform Condominium Act (68 Pa. C.S.A., §3401 through
§3414) including, without limitation, the right to
(i) receive a public offering statement containing the
information described in Section 3402 of the Act,
(ii) require Seller to place the deposit monies in escrow in
accordance with Section 3408 of the Act, and (iii) any of
the warranties described in Section 3411 of the Act. It is
understood and agreed by Buyer that, until the first recorded
conveyance of a unit in the Condominium from Seller to any third
party, Seller shall have the right, acting alone, to amend any of
the Condominium Documents, provided Seller must first obtain
Buyer’s consent, which shall not be unreasonably withheld,
delayed or conditioned, if such amendment will materially and
adversely affect the rights of Buyer.
2. PURCHASE PRICE. Buyer shall pay in exchange for
the Premises Seven Million Six Hundred Fifty Thousand Dollars
($7,650,000.00) (the "Purchase Price" ).
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3. MANNER OF PAYMENT OF PURCHASE
PRICE. The Purchase Price shall be paid in the following
manner:
A. Deposit. On or before January 2, 2007,
Buyer shall deliver to Seller’s attorney, Kaplin Stewart (the
"Escrow Agent" ), a deposit in the amount of Two Hundred
Fifty Dollars ($250,000.00) (the "Deposit" ). The Deposit
shall be held by the Escrow Agent in a non-interest bearing
attorney trust account until consummation or termination of this
Agreement. If the Closing is completed hereunder, on the Closing
Date the Escrow Agent shall pay the Deposit to Seller, which sum
shall be credited against the Purchase Price at Closing.
B. Security Deposit. Buyer is currently a tenant
at the Premises under a lease with Seller. At Closing, Seller shall
either refund any existing security deposit paid by Buyer under
such lease, or credit the same against the Purchase Price.
C. Payment of Balance of Purchase Price. At the
Closing, Buyer shall pay to Seller the Purchase Price (subject to
adjustments and apportionments set forth in this Agreement and less
the Deposit and any security deposit as provided in B. above) by
wire transfer of immediately available federal funds.
4. INVESTIGATION.
A. Buyer shall have a period commencing on the date
hereof and expiring at 5:00 P.M. Eastern Standard Time on the date
that is twenty-two (22) days after the date of this Agreement
(such period being referred to herein as the "Investigation
Period" ) to inspect and/or cause one or more surveyors,
attorneys, engineers, architects, environmental consultants and/or
other experts of the Buyer’s choice to inspect, examine,
survey, appraise and otherwise do that which, in the reasonable
opinion of the Buyer, is necessary for the Buyer to satisfy itself
with regard to the physical condition of the Premises (the
"Investigations" ); provided, however, that in no event may
Buyer conduct any drilling, boring, test pits or other invasive
tests or
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studies, nor may Buyer perform any tests or
studies that will damage all or any part of the Premises, without
the express prior written consent of Seller, which consent may be
withheld in Seller’s sole discretion. If at any time prior to
the expiration of the Investigation Period the Buyer determines
that it is not satisfied with the results of the Investigations, in
Buyer’s sole discretion, and notifies the Seller in writing
of its election to terminate this Agreement prior to the end of the
Investigation Period, this Agreement shall automatically become
null and void, the Escrow Agent shall return the Deposit to Buyer,
and all of the parties to this Agreement shall be released from any
and all further obligation or liability hereunder, other than
obligations that expressly survive termination of this Agreement.
Notwithstanding the foregoing, if Buyer terminates this Agreement
for any reason, including the reasons set forth in this
Section 4, as a condition to Escrow Agent’s return of
the Deposit, Buyer shall deliver to Seller, at no cost to Seller,
true and complete copies of all surveys, plans, reports (title,
environmental, engineering etc.) and other materials prepared by
third parties on behalf of Buyer in connection with its acquisition
of the Premises, other than documents prepared by legal
counsel.
B. Conditions of Entry. Prior to entry upon the
premises as permitted by this Section 4, or under another
provision of this Agreement, Buyer shall obtain, and shall maintain
so long as Buyer intends to enter upon the Premises, commercial
general liability insurance coverage, on an occurrence basis, for
damage to property and injury to persons, including death, with
minimum limits of $2,000,000.00 for each type of coverage. Seller
and any lenders holding mortgages encumbering the Overall Premises
shall be named as additional insureds under such coverage and Buyer
shall furnish Seller with certificates evidencing such coverage
upon request. In addition, Buyer agrees to repair any physical
damage to the Premises caused by the Buyer’s or the
Buyer’s agents’, representatives’ or
employees’ entry onto the Premises. Buyer shall give
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Seller not less than one (1) business day
advance written notice by facsimile of its intent to enter upon the
Premises. Buyer shall use its best efforts to not interrupt the
operation or conduct of any business or activity on the Premises or
Overall Premises, and Buyer’s rights shall be subject to the
rights of all tenants under leases affecting the Overall Premises.
Buyer agrees to indemnify and hold the Seller harmless from and
against any and all expenses, claims, losses, costs and liabilities
(including reasonable attorneys fees) arising from, caused by or
incurred in connection with the Buyer’s entry onto the
Premises or Overall Premises. The foregoing indemnity and hold
harmless agreement shall survive Closing or the termination of this
Agreement.
C. Delivery of Materials. Within three
(3) business days after the Agreement Date, Seller shall
deliver to Buyer, without representation or warranty, a copy of
Seller’s existing survey and environmental report for the
Overall Premises.
5. TITLE.
A. Title Report. Within twenty (20) days
after the Agreement Date, Buyer shall (i) obtain a title
report and commitment to issue an owner’s policy of title
insurance with respect to the Premises (the "Title Report" )
from a title company licensed in Pennsylvania and selected by Buyer
(the "Title Company" ), (ii) upon receipt of the Title
Report, furnish to Seller a copy thereof together with copies of
any matters which are listed as exceptions on the Title Report, and
(iii) notify Seller in writing of any conditions, defects,
liens, encumbrances or other items appearing as exceptions in the
Title Report which are unsatisfactory to Buyer (hereinafter
referred to as "Title Objections" ). Within ten
(10) days after receipt of the Title Objections, Seller shall
notify Buyer of which Title Objections Seller is unable or
unwilling to cure (the "Response Notice" ). Within ten
(10) days after receipt of the Response Notice, Buyer shall
either (1) waive such Title Objections that Seller is unable
or unwilling to cure or (2) terminate
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this Agreement by giving written notice thereof
to Seller, in which event the Escrow Agent shall refund the Deposit
to Buyer, this Agreement shall be null and void and neither of the
parties shall have any further obligations or liability under this
Agreement. Failure to give notice of either election shall
constitute Buyer’s waiver of the Title Objections.
B. Status of Title. The Premises are to be
conveyed free and clear of any liens, encumbrances, easements,
restrictions and agreements, excepting only the Permitted
Exceptions (hereinafter defined). Seller shall furnish such
customary title affidavits as the Title Company may reasonably
require for the removal of standard title objections that are
customarily removed by such affidavits. Permitted Exceptions as
used herein shall mean (i) any exceptions originally appearing
in the Title Report which are not objected to in writing by Buyer
to Seller or which are objected to, but such objection is
thereafter waived or deemed waived, (ii) such matters that
would be disclosed by an accurate survey of the Premises,
(iii) real estate taxes not yet due and payable, (iv) the
terms of any applicable laws, ordinances or other legal
requirements, (v) the standard pre-printed exceptions in the
Title Report and (vi) the Declaration. Seller shall not make
any material modifications to the Declaration without the prior
written consent of Buyer.
C. Inability to Convey Title. If Seller is unable
to convey title at Closing in accordance with the requirements of
this Agreement, Buyer shall have as its exclusive remedy the
option:
(1) Of taking such title to the Premises as Seller is
able to convey without abatement of the Purchase Price; or
(2) Of terminating Buyer’s obligations under this
Agreement, in which event the Escrow Agent shall refund the Deposit
to Buyer and this Agreement shall be null and void and neither
party shall have any further obligations hereunder.
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6. CLOSING. Closing on the sale
of the Premises to Buyer (herein referred to as "Closing" )
shall be held at Seller’s offices, within ten (10) days
after written notice by Buyer to Seller, but not later than the
date that is fifteen (15) days after the end of the
Investigation Period (the "Closing Date" ).
7. POSSESSION. Possession of the Premises shall be
given on the Closing Date by special warranty deed executed and
delivered by Seller conveying fee simple title to the Premises
subject to the Permitted Exceptions.
8. TENDER WAIVED. Formal tender of an executed
deed and purchase money is hereby waived.
9. APPORTIONMENTS. At Closing, the following
apportionments shall be made: (i) real estate taxes shall be
apportioned on a per diem basis on the basis of the fiscal
or calendar year of each taxing authority. If the Premises is not
separately assessed at Closing, the real estate taxes assessed on
the land comprising the Overall Premises shall be allocated on a
per acre basis, and the real estate taxes allocated to the Premises
shall be prorated as provided above, and the real estate allocated
to improvements shall be allocated entirely to the Premises and
shall be prorated as provided above; (ii) any water, sewer or
other utility charges assessed against or incurred with respect to
the Premises shall be apportioned on a per diem basis;
(iii) all real estate transfer taxes imposed by any
governmental body or bodies shall be borne equally by Buyer and
Seller and (iv) rents received by Seller from Buyer for the
month in which Closing occurs.
10. REPRESENTATIONS AND WARRANTIES.
A. Representations and Warranties of Seller.
(1) In order to induce Buyer to enter into this Agreement and
purchase
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the Premises, Seller hereby warrants
and
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