AGREEMENT OF PURCHASE AND SALE

Exhibit 10.23A

EXECUTION VERSION

AGREEMENT OF PURCHASE AND SALE

(383 Colorow Drive, Salt Lake City, Utah)

This Agreement of Purchase and Sale (“ Agreement ”) is made as of the 20 ^th day of December 2005 (“ Effective Date ”) between NPS Pharmaceuticals, Inc., a Delaware corporation (“ Seller ”), and BioMed Realty, L.P., a Maryland limited partnership (“ Purchaser ”).

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 an approximately 93,650 rentable square foot, three-story, laboratory and office building located at 383 Colorow Drive, Salt Lake City, Utah 84108 (the “ Building ”). The land underlying the Building is not owned by Seller and is subject to that certain Ground Lease dated the 10 ^th day of December, 2003 (the “ Ground Lease ”), between the Seller, as lessee, and the University of Utah, as ground lessor (“ Ground Lessor ”).

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 Building;

(b) Seller’s leasehold interest in the land described in Exhibit A attached hereto (the “ Land ”), subject to the terms and conditions of the Ground Lease, and all other right, title and interest of Seller in and to (i) all and singular the rights, benefits, privileges, easements, tenements, hereditaments, and appurtenances thereon or in anyway appertaining to such Land; and (ii) all strips and gores and any land lying in the bed of any street, road or alley, open or proposed, adjoining such Land;

(c) All right, title and interest of Seller in and to all improvements and fixtures located on the Land (the “ Improvements ”), except for tangible personal property and other trade fixtures and equipment owned by Seller, which shall not be part of the Improvements or this Agreement and shall remain the property of Seller; provided , however , all electrical, plumbing, HVAC, life safety systems, attached laboratory benches, autoclaves, climatized rooms, and gas and liquid distribution systems, shall be included as part of the Improvements and assigned to Purchaser at Closing. The Building, Land and Improvements are collectively referred to herein as the “ Real Property ; and

(d) The “ Intangible Property ,” being all, right, title and interest of Seller, if any, in and to: (i) 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); (ii) the plans and specifications for the Improvements (to the extent assignable); (iii) warranties, indemnities, applications, permits, approvals and licenses (to the extent applicable in any way to the above referenced Real Property or the Tangible Personal Property and assignable); and (iv) insurance proceeds and condemnation awards or claims thereto to the extent provided be assigned to Purchaser hereunder.

1.2. Purchase Price . The total purchase price to be paid to Seller by Purchaser for the Property shall be NINETEEN MILLION DOLLARS ($19,000,000) (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. Deposit of Earnest Money . Within two (2) business days (in this Agreement, a business day shall mean any day of the year other than any Saturday or Sunday or any other day on which banks

located in San Diego, California generally are closed for business) after the Effective Date, Purchaser shall deposit $250,000 in cash (such amount, including any interest earned thereon, the “ Earnest Money ”) with the Escrow Agent (as defined below). The Escrow Agent shall hold and disburse the Earnest Money in accordance with the escrow provisions in Exhibit B . Prior to the expiration of the Due Diligence Period (as defined below), the Earnest Money shall be promptly returned to Purchaser upon termination of this Agreement pursuant to Section 2.2 . Following the expiration of the Due Diligence Period, the Earnest Money shall be non-refundable, except as otherwise provided herein. Seller shall not deliver any instruction to the Escrow Agent calling for disbursement of the Earnest Money to Seller except following the occurrence of Purchaser’s default hereunder and the expiration of any applicable cure period or as otherwise expressly provided in this Agreement, and Seller further agrees to provide Purchaser with a copy of such instruction concurrently with the delivery thereof to the Escrow Agent. 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.

1.4. Title Company and Escrow Agent . The “ Escrow Agent ” and “ Title Company ” are: LandAmerica Commercial Services, 750 B Street #3000, San Diego, CA 92101, Attn: Paula Mraz (Tel #: (619) 230-6352: Fax#: (619) 233-4684).

1.5. Closing Date . The “ Closing Date ” shall mean December 22, 2005.

ARTICLE 2. INSPECTION

2.1. Seller’s Delivery of Specified Documents . To the extent such items exist and are in Seller’s possession or control, Seller shall provide or make available to Purchaser at the Property the information and documents set forth on Exhibit C attached hereto (the “ Property Information ”) on the Effective Date. Seller agrees to cooperate with Purchaser and make copies, at Purchaser’s expense, of such documentation as Purchaser may request during the course of Purchaser’s review of the Property Information. The terms “ Operating Statements ,” and “ Service Contracts ” are defined in Exhibit C . Seller shall have the continuing obligation during the pendency of this Agreement to provide Purchaser with any document described in Exhibit C and coming into Seller’s or its property manager’s possession or produced by or for Seller after the initial delivery of the Property Information.

2.2. Due Diligence . Purchaser shall have until December 21, 2005 (the “ Due Diligence Period ”) in which to examine, inspect, and investigate the Property, and, in Purchaser’s sole and absolute judgment and discretion, to determine whether the Property is satisfactory to Purchaser to proceed with this transaction. Purchaser may terminate this Agreement pursuant to this Section 2.2 by giving written notice of termination to Seller on or before the last day of the Due Diligence Period, and in the event Purchaser terminates this Agreement, Purchaser shall promptly thereafter return to Seller all documents that Seller shall have provided to Purchaser in connection with the Property, the Earnest Money shall be refunded to Purchaser immediately upon request, and all further rights and obligations of the parties under this Agreement shall terminate except for those that expressly survive such termination.

2.3. 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 in Seller’s possession or control 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 written consent (which consent shall not be unreasonably withheld) and Seller shall have the right to accompany Purchaser during all activities conducted at the Property. Invasive testing shall include but not be limited to any testing, studies or inspections that may disturb the Property in a material respect or interfere with the use of the Building or Seller’s business. If any inspection or test disturbs the Property in a material respect,

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Purchaser will restore the Property to its condition before any such inspection or test. Purchaser shall provide to Seller, at Seller’s expense, copies of the results of all such inspections, studies or tests required by Purchaser. 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 any office where the records of the Property are kept, with at least two (2) days prior notice, for the purpose of examining and making copies, at Purchaser’s sole expense, of all books and records and other materials relating to the Property in Seller’s possession or control. Purchaser shall have the right to conduct a “walk-through” of the Property before the Closing upon at least two (2) days prior notice to Seller. In the course of its investigations, Purchaser may make inquiries concerning the Real Property to third parties, including, without limitation, representatives, contractors, parties to Service Contracts 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 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 negligence or willful misconduct, or Claims arising out of conditions that were present before Purchaser entered the Property, except to the extent that Purchaser’s activities (a) are unreasonable in the context of the information provided to Purchaser, or reasonably evident to Purchaser, with respect to such existing condition, and (b) exacerbate such existing conditions. The foregoing indemnity obligations shall survive the termination of this Agreement and the Closing.

2.4. Ground Lessor Estoppel . Seller shall endeavor to secure and deliver to Purchaser an estoppel certificate from Ground Lessor under the Ground Lease substantially in the form of Exhibit D attached hereto (the “ Ground Lessor Estoppel ”). The Ground Lessor Estoppel shall be delivered to Ground Lessor no later than one (1) day after the Effective Date, and Seller shall apply commercially reasonable efforts to obtain the same, duly executed by Ground Lessor, and deliver the same to Purchaser no later than one (1) day after the Effective Date. Seller shall provide Purchaser with copies of the Ground Lessor Estoppel in the form attached hereto as Exhibit D for Purchaser’s review and comment before delivering the Ground Lessor Estoppel to Ground Lessor. If Ground Lessor fails to deliver the Ground Lessor Estoppel, then Seller may elect to satisfy the requirement to obtain such estoppel by delivering an estoppel certificate in the form attached hereto as Exhibit E .

2.5. Service Contracts; Property Management and Leasing Agreements; Property Employees . During the Due Diligence Period, Purchaser shall notify Seller as to which Service Contracts Purchaser will assume and which Service Contracts shall be terminated by Seller in Purchaser’s sole discretion. Purchaser will assume the obligations arising from and after the Closing Date under those Service Contracts which Purchaser has elected to assume. Seller shall terminate at Closing all Service Contracts that are not so assumed, provided that such termination does not expose Seller to liability. Seller shall terminate at Closing, and Purchaser shall not assume, any property management or leasing agreement affecting the Property.

ARTICLE 3. TITLE AND SURVEY REVIEW

3.1. Delivery of Preliminary Title Report and Survey . Seller shall cause to be delivered to Purchaser on the Effective Date, any existing survey of the Land and the Building in Seller’s possession or control. Purchaser may, in its sole discretion, and at its sole expense, obtain a new ALTA-ACSM Urban survey of the Property (the “ Survey ”) prior to the expiration of the Due Diligence Period, including a certification addressed to Purchaser, substantially in the form attached hereto as Exhibit F . The Survey shall plot all plotable easements benefiting the Property. Purchaser may, in its sole discretion, obtain a preliminary title report (the “ Preliminary Title Report ”) issued by the Title Company. The Preliminary Title Report, the documents referred to therein, and the Survey are referred to herein collectively as the “ Title Documents .”

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3.2. Title Review and Cure . During the Due Diligence Period, Purchaser shall review title to the Property as disclosed by the Title Documents. Purchaser shall be entitled to object to any title matters shown in the Title Documents, in its sole discretion, by a written notice of objections delivered to Seller on or before the expiration of the Due Diligence Period. Purchaser shall notify the Seller before the expiration of the Due Diligence Period which title exceptions (excluding survey matters), if any, will not be accepted by Purchaser (the “ Title Notice ”). If Purchaser fails to notify Seller in writing of its disapproval of any exceptions before the expiration of the Due Diligence Period, Purchaser shall be deemed to have approved the condition of title to the Real Property. If Purchaser notifies Seller in writing that Purchaser objects to any exceptions to title, Seller shall have one (1) business day after receipt of the Title Notice to notify Purchaser of either of the following: (a) that Seller will remove all such objectionable exceptions from title on or before the Closing; (b) that Seller will remove certain objectionable exceptions from title on or before the Closing; or (c) that Seller elects not to cause such exceptions to be removed. If Seller fails to notify Purchaser within such one (1) business day period, then Seller shall be deemed to have made an election under the foregoing clause (c). Notwithstanding the foregoing or any other provision of this Agreement, all monetary obligations (including, without limitation, mechanics’ and materialmens’ liens or claims thereof, any liens or encumbrances that secure obligations for borrowed money and any exceptions or encumbrances to title which are created by or through Seller after the Effective Date) disclosed in the Preliminary Title Report constituting a lien against the Real Property are to be satisfied by Seller before Closing. With respect to any other objections, Seller will reasonably cooperate with Purchaser in curing such objections. The procurement by Seller of a commitment for the issuance of the Title Policy (as defined in Section 5.2(f) hereof) or an endorsement thereto insuring Purchaser, in a manner acceptable to Purchaser, against any title exception which was disapproved pursuant to this Section 3.2 shall be deemed a cure by Seller of such disapproval. If Seller gives Purchaser notice under clause (b) or (c) above, Purchaser shall have one (1) business day after the date of such notice in which to notify Seller that Purchaser will nevertheless proceed with the purchase in accordance with the provisions of this Agreement and take title to the Property subject to such exceptions, or that Purchaser will terminate this Agreement and receive a refund of the Earnest Money. If Purchaser does not terminate this Agreement or deliver a Title Notice to Seller before the expiration of the Due Diligence Period pursuant to Section 2.2 , then Purchaser shall have been deemed to have approved any title exception set forth in the Title Documents that Seller is not obligated to remove and Seller did not agree in writing to remove or cure. If after the expiration of the Due Diligence Period the Title Company revises the Preliminary Title Report or the surveyor revises the Survey, to add or modify exceptions, then Purchaser may terminate this Agreement and receive a refund of the Earnest Money if the provision for their removal or modification satisfactory to Purchaser is not made. In such case, the Closing Date shall be extended for up to ten (10) days in order for Purchaser and Seller to determine if such exception can be resolved and to give Purchaser the opportunity to terminate this Agreement and receive a refund of the Earnest Money if the exception is not removed.

3.3. Permitted Exceptions and Endorsements . “ Permitted Exceptions ” means the following exceptions approved or deemed approved by Purchaser pursuant to this Agreement: real estate taxes not yet due and payable; the Ground Lease; tenants in possession as tenants only under the lease agreement to be entered into between Seller, as tenant, and Purchaser, as landlord, at Closing (the “ NPS Lease ”); the form of which is attached hereto as Exhibit J , and the exceptions approved (or deemed approved) by Purchaser pursuant to the terms of Section 3.2 above. For the avoidance of doubt, the general exceptions in the Preliminary Title Report will be removed upon issuance of the ALTA extended coverage title policy to be issued in this transaction and are not Permitted Exceptions. “ Purchaser’s Endorsements ” shall mean, to the extent such endorsements are available under the laws of the state in which the Property is located: (1) owner’s comprehensive; (2) access; (3) survey (accuracy of survey); (4) location (survey legal matches title legal); (5) separate tax lot; (6) subdivision map act; (7) zoning 3.1, with parking and loading docks; (8) mechanic’s lien; (9) deletion of creditors’ rights exception; (10) endorsement over

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environmental protection liens; (11) utilities endorsement; (12) leasehold endorsement; and (13) such other endorsements as Purchaser may require during the Due Diligence Period based on its review of the Preliminary Title Report and Survey.

3.4. ALTA Statement . Seller shall execute at Closing an ALTA Statement (Owner’s Affidavit) and any other documents, undertakings or agreements, including a mechanic’s lien indemnity, customarily required by the Title Company to enable it to issue the Title Policy (as defined in Section 5.2(f) hereof) in accordance with the provisions of this Agreement.

ARTICLE 4. GROUND LEASE, OPERATIONS AND RISK OF LOSS

4.1. Ground Lease .

(a) Waiver . On or before the Effective Date, Ground Lessor shall have waived its option to purchase right under Article VI of the Ground Lease;

(b) Consent . No later than one (1) business day after the Effective Date, Seller shall use commercially reasonable efforts to obtain a consent from Ground Lessor, consenting to the NPS Lease and the transfer of Seller’s leasehold interest in the Land and Improvements to Purchaser, in form and substance reasonably satisfactory to Purchaser;

(c) Transfer Costs . Seller shall pay, if any, all: (i) transfer fees and other fees, costs and expenses charged by Ground Lessor in connection with the assignment of the Ground Lease, and (ii) recording costs and expenses relating to the recordation of the amendment to the Ground Lease. Each party shall pay the fees charged by its attorneys in connection with the assignment of the Ground Lease;

(d) Cooperation . The parties shall cooperate in good faith and with reasonable diligence to secure the approval of Ground Lessor to the assignment of the Ground Lease to Purchaser and the NPS Lease prior to the expiration of the Due Diligence Period.

4.2. Ongoing Operations . During the pendency of this Agreement:

(a) Preservation of Business . Seller shall cause the Property to be operated only in the ordinary and usual course of business and consistent with past practice, shall, subject to reasonable wear and tear, preserve intact the Property, preserve the good will and advantageous relationships of Seller with customers, suppliers, independent contractors, employees and other persons or entities material to the operation of its business, shall perform its obligations under any agreements affecting the Property and shall not take any action or omission which would cause any of the representations or warranties of Seller contained herein to become inaccurate or any of the covenants of Seller to be breached.

(b) Maintenance of Insurance . Seller shall continue to carry its existing insurance through the Closing Date, and shall not allow any breach, default, termination or cancellation of such insurance policies or agreements to occur or exist.

(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 lease, sublease of space or other occupancy agreements affecting the Real Property, and any and all amendments and supplements thereto, and any and all guaranties and security received by landlord in connection therewith (except the NPS Lease) without Purchaser’s prior written consent.

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(e) Maintenance of Permits . Seller shall maintain in existence all licenses, permits and approvals, if any, in its name necessary or reasonably appropriate to the ownership, operation or improvement of the Property.

(f) Ground Lease . Seller covenants and agrees to comply with the terms of the Ground Lease.

(g) Exclusive Negotiations . Seller shall: (i) remove the Property from the market, and (ii) not actively solicit or negotiate with any other prospective purchasers of the Property.

4.3. Damage . All risk of loss with respect to the Property shall remain with Seller until the Closing and delivery of the Deed (as defined below) vesting title in Purchaser, when full risk of loss with respect to the Property shall pass to Purchaser. Seller shall promptly give Purchaser written notice of any damage to the Property, describing such damage, whether such damage is covered by insurance and the estimated cost of repairing such damage, provided that such damage is known to Seller. If such damage is not material, then the parties shall proceed to close this transaction, and Seller shall, to the extent possible, begin repairs prior to the Closing out of any insurance proceeds received by Seller for the damage, and shall transfer and assign any remaining insurance proceeds or rights thereto to Purchaser at the Closing. If such damage is material, Purchaser may elect (in its sole discretion) by notice to Seller given within ten (10) days after Purchaser is notified of such damage (and the Closing shall be extended, if necessary, to give Purchaser such ten (10) day period to respond to such notice) to proceed in the same manner as in the case of damage that is not material or to terminate this Agreement, in which event the Earnest Money shall be returned to Purchaser. Damage as to any one or multiple occurrences is material if the cost to repair the damage, as reasonably estimated by Seller’s contractor (if Seller has engaged a contractor to perform the work), and otherwise by a contractor approved by both Purchaser and Seller, acting reasonably, exceeds $100,000. An affiliate of Seller may be engaged as Seller’s contractor, provided Seller discloses the relationship of such affiliate to Purchaser.

4.4. Condemnation . Seller shall promptly give Purchaser notice of any eminent domain proceedings that are contemplated, threatened or instituted with respect to the Property. By notice to Seller given within ten (10) days after Purchaser receives notice of proceedings in eminent domain that are contemplated, threatened or instituted by any body having the power of eminent domain with respect to the Property, and if necessary the Closing Date shall be extended to give Purchaser the full ten (10) day period to make such election, Purchaser may terminate this Agreement, in which event the Earnest Money shall be returned to Purchaser, or proceed under this Agreement, in which event Seller shall, at the Closing, assign to Purchaser its entire right, title and interest in and to any condemnation award, and Purchaser shall have the right during the pendency of this Agreement to negotiate and otherwise deal with the condemning authority in respect of such matter.

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) Ground Lease . Ground Lessor’s consent to the assignment of the Ground Lease shall have been obtained; and

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(d) Other Condition . Any other condition set forth in this Agreement to Seller’s obligation to close shall have been satisfied by the applicable 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:

(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) Performance . As of the Closing Date, Seller shall have performed its obligations hereunder and all deliveries to be made by Seller at Closing have been tendered;

(c) Default . As of the Closing Date, Seller shall not be in default under any agreement to be assigned to, or obligation to be assumed by, Purchaser under this Agreement;

(d) Physical Condition . The physical condition of the Property shall be substantially the same on the Closing Date as on the Effective Date, reasonable wear and tear excepted, unless the alteration of said physical condition is caused by Purchaser during the due diligence inspections or the result of a casualty loss or proceeding in eminent domain, in which case the provisions of Sections 4.2 and 4 .3 shall govern;

(e) Ground Lease Condition . (1) Seller shall have obtained and delivered to Purchaser at least one (1) business days prior to the expiration of the Closing Date, (i) the Ground Lessor Estoppel substantially in the form required pursuant to Section 2.4 , and (ii) Ground Lessor’s consent to the assignment of the Ground Lease shall have been obtained, and (2) as of the Closing Date, the Ground Lease shall be in full force and effect and no default, dispute or controversy shall exist under the Ground Lease;

(f) Title . Upon the sole condition of payment of the premium, at Closing, the Title Company shall irrevocably commit to issue to Purchaser an ALTA Owner’s Policy of title insurance, with extended coverage (i.e., with ALTA General Exceptions deleted), 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, insuring Purchaser as owner of good, marketable and indefeasible fee simple title to the Building and the Improvements, and Purchaser as holder of the leasehold interest in the Land pursuant to the Ground Lease, subject only to the Permitted Exceptions, and containing the Purchaser’s Endorsements (the “ Title Policy ”);

(g) Title Exceptions . Seller shall have cured all exceptions that it agreed to cure, or was deemed to have agreed to cure, in accordance with Section 3.2 . In the event Seller has not cured such exceptions, in Purchaser’s sole discretion, Purchaser shall have the option to: (a) extend the Closing for up to thirty (30) days to allow Seller the opportunity to cure such exceptions which Seller has agreed to cure but has not yet cured, or (b) proceed with the Closing and receive a credit from Seller for the total cost to cure such exceptions;

(h) Bankruptcy . No proceeding has been commenced against Seller under the federal Bankruptcy Code or any state law for relief of debtors;

(i) Moratorium . No moratorium, statute or regulation of any governmental agency or order or ruling of any court has been enacted, adopted, or issued which would adversely affect Purchaser’s use or development of the Property;

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(j) Financial Condition . No event shall have occurred that would be reasonably likely to result in a material adverse change in the financial condition of the Seller on the Closing Date as compared to the financial condition of the Seller on the Effective Date;

(k) Board Approval . Purchaser shall have obtained approval from the board of directors of BioMed Realty Trust, as a general partner of Purchaser, to enter into this Agreement and to execute the documents contemplated hereby. Upon the expiration of the Due Diligence Period, this condition shall be deemed to have been satisfied; and

(l) Other Condition . Any other condition set forth in this Agreement to Purchaser’s obligation to close shall have been satisfied by the applicable date.

5.3. Failure of Condition Precedent . So long as a party is not in default beyond applicable notice and cure periods hereunder, if any condition to such party’s obligation to proceed with the Closing hereunder has not been satisfied as of the Closing Date or other applicable date and such condition is not cured within five (5) days after receipt of notice of default from the non-defaulting party, such non-defaulting party may, in its sole discretion, either (i) terminate this Agreement by delivering written notice to the other party on or before the Closing Date or other applicable date whereupon the Earnest Money shall be returned to Purchaser if Seller is the defaulting party or paid to Seller if Purchaser is the defaulting party, or (ii) elect to close, notwithstanding the non-satisfaction of such condition, in which event such party shall be deemed to have waived any such condition.

ARTICLE 6. DEFAULT AND REMEDIES

6.1. Purchaser’s Defaults; Seller’s Remedies .

(a) In the event of a breach by Purchaser of its obligations under this Agreement to effect the Closing, which breach is not cured within five (5) days after Purchaser’s receipt of notice of default from Seller (provided that no such cure period shall extend the Closing Date or apply for a breach of the obligation to close by the Closing Date) and Seller is willing, ready and able to perform its obligations hereunder, Seller’s sole remedy shall be to terminate this Agreement and receive and retain all Earnest Money and any earnings thereon as liquidated damages, not as a penalty. PURCHASER AND SELLER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT OR IMPRACTICAL TO QUANTIFY THE ACTUAL DAMAGES TO SELLER IN THE EVENT OF A BREACH BY PURCHASER, THAT THE AMOUNT OF ALL EARNEST MONEY IS A REASONABLE ESTIMATE OF SUCH ACTUAL DAMAGES, AND THAT SELLER’S EXCLUSIVE REMEDY IN THE EVENT OF A BREACH BY PURCHASER SHALL BE TO RETAIN ALL EARNEST MONEY AND ANY EARNINGS THEREON AS LIQUIDATED DAMAGES.

(b) After Closing, in the event of a breach by Purchaser of its obligations under this Agreement that survive Closing, Seller may exercise any rights and remedies available at law or in equity.

6.2. Seller’s Defaults; Purchaser’s Remedies .

(a) In the event of a material breach by Seller of its obligations under this Agreement, which breach is not cured within five (5) days after Seller’s receipt of notice of default from Purchaser (provided that no such cure period shall extend the Closing Date or apply for a breach of the obligation to close by the Closing Date), Purchaser may elect one of the following two remedies: (a) terminate this Agreement and receive: (i) a refund of the Earnest Money and any earnings thereon, plus (ii) reimbursement from Seller for Purchaser’s reasonable out of pocket costs incurred in connection with the negotiation of this Agreement, Purchaser’s diligence with respect to the Property, and

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Purchaser’s actions in furtherance of the transactions contemplated by this Agreement (provided that said sum recoverable as reimbursement shall not exceed fifty thousand dollars ($50,000)); or (b) enforce specific performance of this Agreement against Seller, including the right to recover reasonable attorneys’ fees. PURCHASER AND SELLER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT OR IMPRACTICAL TO QUANTIFY THE ACTUAL DAMAGES TO PURCHASER IN THE EVENT OF A BREACH BY SELLER, THAT THE AMOUNT OF ALL EARNEST MONEY IS A REASONABLE ESTIMATE OF SUCH ACTUAL DAMAGES, AND THAT IN THE EVENT PURCHASER SELECTS TO ENFORCE ITS REMEDIES UNDER (A) ABOVE, PURCHASER SHALL RECEIVE A REFUND OF ALL EARNEST MONEY AND ANY EARNINGS THEREON, AND PURCHASER’S OUT OF POCKET COSTS.

(b) After Closing, in the event of a breach by Seller of its obligations under this Agreement that survive Closing, Purchaser may exercise any rights and remedies available at law or in equity.

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 immediately record and deliver the Deed and deliver the closing documents 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 San Diego, California requiring 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 substantially in the form of Exhibit G attached hereto (“ Deed ”), sufficient to vest title in Purchaser subject only to the Permitted Exceptions;

(b) Bill of Sale and Assignment of Ground Lease and Contracts . A counterpart of the Bill of Sale and Assignment of Ground Lease and Contracts substantially in the form of Exhibit H attached hereto (“ Bill of Sale ”), executed and acknowledged by Seller;

(c) Closing Certificate . A certificate from Seller in the form of Exhibit I attached hereto that contains an updated list of the Service Contracts to be assumed, each of which Seller shall certify to be true and correct as of Closing.

(d) NPS Lease . A counterpart of the NPS Lease substantially in the form of Exhibit J attached hereto;

(e) State Law Disclosures . Such disclosures and reports as are required by applicable state and local law in connection with the conveyance of real property;

(f) FIRPTA . A Foreign Investment in Real Property Tax Act affidavit executed by Seller;

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(g) Terminations . Subject to Section 2.5 , terminations effective no later than Closing of those Service Contracts which Purchaser has elected not to assume, including any management and leasing agreements affecting the Property;

(h) 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 Purchaser’s counsel and Escrow Agent;

(i) Indemnity . A mechanic’s lien indemnity, if required, in form reasonably satisfactory to the Escrow Agent and the Title Company;

(j) Ground Lease . A copy of each of the documents that Seller is required to deliver in connection with the assignment of the Ground Lease; and

(k) Other Deliveries . Any other Closing deliveries required to be made by or on behalf of Seller hereunder or reasonably required to effect the Closing of this transaction consistent with this Agreement.

7.3. Purchaser’s Deliveries in Escrow . On or before 9:00 AM on the Closing Date, Purchaser shall deliver in escrow to the Escrow Agent the following:

(a) Purchase Price . The Purchase Price, less the Earnest Money that is applied to 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 and Assignment of Ground Lease and Contracts . A counterpart of the Bill of Sale, executed by Purchaser;

(c) NPS Lease . A counterpart of the NPS Lease, executed by Purchaser;

(d) 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

(e) 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.

7.4. NPS Lease . Upon receipt of the fully executed NPS Lease, Title Company shall date the NPS Lease the date of the Closing and deliver a completely executed copy of the NPS Lease to Purchaser and Seller.

7.5. 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.

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(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 escrow fee, if any, which may be charged by the Escrow Agent or the Title Company;

(ii) the transfer fees, if any, associated with the assignment of the Ground Lease pursuant to Section 4.1 ;

(iii) the owner’s title insurance premium for a standard title insurance policy;

(iv) the excise, recording, deed, imposed transfer tax, documentary stamp tax or similar tax which becomes payable by reason of the transfer of the Property under applicable state or local law, including, without limitation, any real estate excise tax;

(v) all of its recording fees.

(d) Purchaser shall pay the fees of any counsel representing Purchaser in connection with this transaction. Purchaser shall also pay the following costs and expenses:

(i) one-half of the escrow fee, if any, which may be charged by the Escrow Agent or the Title Company;

(ii) the costs associated with the issuance of an extended title insurance policy and the Purchaser’s Endorsements;

(iii) the cost of the Survey; and

(iv) all of its recording fees.

7.6. Possession . At the time of Closing, Seller shall continue to possess the Property without interruption.

7.7. Delivery of Books and Records . Immediately after the Closing, Seller shall deliver to the offices of Purchaser or Purchaser’s property manager: originals of the Service Contracts (or copies thereof if originals are not available) and the following to the extent the same exist and are in Seller’s possession or control and pertain to the Property: copies or originals of all books and records of account, contracts, copies of correspondence with suppliers, receipts for deposits, unpaid bills and other papers or documents which pertain to the Property; all permits and warranties; all advertising materials and booklets; and the original “as-built” plans and specifications for the Building and all other available plans and specifications and all operation manuals. Seller shall reasonably cooperate with Purchaser before and after Closing to transfer to Purchaser any such information stored electronically.

ARTICLE 8. PRORATIONS AND ADJUSTMENTS

8.1. Prorations . On or before Closing, Seller shall provide to Purchaser such information and verification reasonably necessary to support the prorations and adjustments under this Article 8 . The items in Subsections (a) through (d) of this Section 8.1 shall be prorated between Seller and Purchaser, based on the actual number of days in the applicable period, as of the close of the day immediately preceding the Closing Date, the Closing Date being a day of income and expense to Purchaser:

(a) Taxes and Assessments . Purchaser shall receive a credit for any accrued but unpaid real estate taxes and assessments (including, without limitation, any assessments imposed by private covenant) applicable to any period before the Closing Date, even if such taxes and assessments are not yet due and payable. Purchaser shall receive a credit for any special assessments which are levied or charged against the Property applicable to any period before the Closing Date, whether or not then due and payable.

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(b) Income . Purchaser shall receive a credit