EXHIBIT 10.18
AGREEMENT FOR SALE OF REAL
ESTATE
THIS AGREEMENT FOR SALE OF REAL
ESTATE (“Agreement”) is made this day of February,
2009, by and between BIOPURE CORPORATION, a Delaware
Corporation with a principal office located at 11 Hurley Street,
Cambridge, MA 02141 (“Seller”), and SPEAR REALTY,
LLC , a Pennsylvania Limited Liability company with a principal
office located at 520 Springfield Street, Coopersburg, PA 18036
(“Purchaser”).
In consideration of the promises and
the mutual covenants and agreements herein contained, and for other
good and valuable consideration, receipt whereof is hereby
acknowledged, the parties hereto agree as follows:
1. PURCHASE AND SALE .
Subject to the terms and conditions contained in this Agreement,
Seller hereby agrees to sell and convey to Purchaser and Purchaser
agrees to purchase all those certain tracts or parcels of ground
(and all improvements and fixtures thereon) known as
674 Souder Road consisting of a free standing plant facility
with a building of approximately 18,000 square feet and onsite
parking located on approximately 5.09 acres, and an adjoining
vacant parcel of land consisting of approximately 2.62 acres, both
located in Franconia Township, Montgomery County, together with all
personal property, equipment and fixtures listed in Schedule
1 attached hereto, also as more fully described in Schedule
2 attached hereto and incorporated herein (collectively, the
“Property”).
2. PRICE AND TERMS . The
purchase price shall be One Million Two Hundred Thousand Dollars
($1,200,000) consisting of One Million Forty Thousand Dollars
($1,040,000.00) for the 5.09 acre parcel and improvements erected
thereon and One Hundred Sixty Thousand Dollars ($160,000.00) for
the adjoining 2.62 acre parcel of vacant land. The sale shall also
include all personal property, equipment and fixtures (except for
personal computer systems and files) as more fully set forth in the
attached Schedule 1 for an additional price of Two Hundred
Twenty Nine Thousand Five Hundred Dollars ($229,500.00). This
amount shall be paid by Purchasers through a credit in the amount
of rent due from Seller during the initial term of the Commercial
Lease Agreement attached hereto as Schedule 3 , which credit
will be used to reduce the base rent due from Seller.
(a) Seller shall be given an option
to buy back the personal property, equipment and fixtures sold
hereunder pursuant to the terms and conditions set forth in the
attached Commercial Lease Agreement set forth at Schedule 3
.
(b) Seller shall be given a right of
first refusal to purchase the Property from Buyer upon the terms
and conditions contained in the attached Commercial Lease Agreement
set forth at Schedule 3 .
(c) A Ten Thousand Dollar
($10,000.00) deposit shall be paid by Purchaser at the signing of
this Agreement. An additional One Hundred Ninety Thousand Dollars
($190,000.00) shall be due and payable from Purchaser within two
(2) days of the conclusion of the feasibility period
hereinafter set forth, if Purchaser elects to proceed (see
paragraph 7 (b) below). All deposit monies shall be held in an
interest bearing escrow account by Purchaser’s title
insurance company with interest to follow application of the sales
proceeds. One Hundred Thousand Dollars ($100,000.00) of the deposit
monies will become nonrefundable at the conclusion of the
feasibility period, except in the event of Seller’s breach of
the terms and conditions of this Agreement, in which case all such
monies shall be refundable.
3. CLOSING . The closing of
the transactions contemplated by this Agreement (the
“Closing”) shall occur concurrently with the execution
of the attached Commercial Lease Agreement set forth at Schedule
3 hereof (see Paragraph 4 “Conditions and
Contingencies” below). Closing on the sale shall occur on or
before March 2, 2009 at the law offices of Stephen Howard,
Esq., 605 N. Broad Street, Lansdale, PA 19446, or at such other
time and place as the parties may hereafter mutually
agree.
(a) The balance of the purchase
monies for the Property in the amount of One Million Dollars
($1,000,000.00) shall be due and payable at closing in the form of
a cashier’s check, certified check or by wire transfer of
funds to Seller’s account, as deemed acceptable by Seller. In
the event Seller selects a wire transfer of funds, it shall provide
appropriate wiring instructions to Purchaser at least two days in
advance of the closing.
(b) Time shall be of the essence in
regard to the closing on the sale of Property hereunder. It shall
not be necessary for any of the parties or their representatives to
personally appear at the closing (see Paragraph 22
below).
4. CONDITIONS AND
CONTINGENCIES .
(a) The obligations of the parties
hereunder are expressly conditional and contingent upon the full
execution of and performance of all obligations by the parties
under this Agreement and the Commercial Lease Agreement attached
hereto at Schedule 3 .
(b) Purchaser, at its own expense,
shall, prior to Closing, be permitted to conduct environmental
testing and any additional testing Purchaser deems necessary or
appropriate to determine the environmental condition of the
Property and to establish that the Property does not have any
environmental concerns or hazards. If Purchaser shall determine
that the environmental testing is not to Purchaser’s
satisfaction for any reason whatsoever or the Property contains
evidence of hazardous substances or materials, Purchaser shall
serve written notice of such findings on Seller. In this event,
Purchaser shall have the option to (i) take the Property as is
without reduction in Purchase Price; or (ii) to terminate this
Agreement upon written notice to Seller, declaring it null and
void.
(c) See paragraph 7 below for
additional provisions dealing with Purchaser’s due diligence
to perform inspections and testing as needed.
5. TITLE .
(a) The Property is to be conveyed
on the Closing Date by Special Warranty Deed conveying to the
Purchaser good and marketable fee simple title and such as will be
insured by a reputable title company, at regular rates, subject to
building restrictions, zoning regulations, easements,
rights-of-way, reservations and other restrictions of record or
visible on the Property and subject to payment of any existing
notes and/or mortgage liens affecting the Property as disclosed in
the title report of Buyer’s title insurance company, which
notes and/or mortgages shall be paid in full by Seller at the
Closing.
(i) On or before the Closing,
Purchaser shall deliver to Sellers (i) a title report for the
Property prepared by a title company of Purchaser’s choice
(the “Title Company”),
together with legible copies of all documents
listed therein as exceptions, which title report shall be
accompanied by the Purchaser’s notice identifying all matters
contained in such title report that Purchaser deems to be
objections or defects in title to the Property. In no event shall
any of the items mentioned in paragraph 5(a) above be considered a
defect or objection for purposes of this paragraph. Without
limiting the generality of the foregoing, Purchaser’s notice
of title objections or defects may also include, if applicable, any
unwillingness on the part of the Purchaser’s Title Company to
issue access, survey accuracy and, if applicable, contiguity and
Form 100 and 300 endorsements, all in standard form, to the title
policy respecting the Property.
(b) Should Seller be unable or
unwilling to correct any of Purchaser’s objections or defects
to title as required in paragraph 5(a)(i), Seller shall be deemed
for purposes of this Agreement to be unable to deliver good and
marketable title. If Seller is unable to deliver good and
marketable title, Purchaser shall have the option of taking such
title as Seller can give without abatement of price, or of
declaring Seller in default and terminating this
Agreement.
(c) The Property shall be subject to
the terms and conditions of the Commercial Lease Agreement attached
hereto as set forth at Schedule 3 .
6. COSTS .
(a) Purchaser shall pay for the
following:
(i) Premium for title insurance, if
any;
(ii) Fees and charges paid in
advance to Purchaser’s mortgagee, if any; and
(iii) Purchaser’s normal
counsel and inspection fees, closing and settlement costs and
accruals;
(b) Seller shall pay for preparation
of the deed and acknowledgements thereof.
(c) Purchaser and Seller each pay
one-half (1/2) of the state and local realty transfer
taxes.
(d) Seller shall pay all of its
normal closing and settlement costs, including unpaid taxes to the
Closing Date and counsel fees.
(e) Real estate taxes, and any other
lienable items shall be apportioned as of the Closing Date with
pre-closing items accruing to Seller. See paragraph 14 below for
additional terms dealing with real estate taxes and municipal
service fees.
7. DELIVERY OF INFORMATION TO
PURCHASER; ENTRY ON THE PROPERTY; RIGHT OF TERMINATION
.
(a) On or before the full execution
of this Agreement, Seller shall deliver to Purchaser all reports,
surveys, documents, certificates, agreements, licenses and all
other information regarding the Property including all
documentation in Seller’s possession regarding the
environmental issues specified in paragraph 4(d) above and any
other leases affecting the Property.
(b) The period that commences on the
date of full execution of this Agreement and ends on the Closing is
hereafter referred to as the “Feasibility Period.”
During the Feasibility Period and for so long as this Agreement
remains in effect, the Purchaser, or its agent(s) or designee(s),
shall have the right, at reasonable times and in a reasonable
manner, to enter upon and inspect the Property at their sole risk,
and the Seller shall make the Property available for inspection.
The Purchaser shall have the right to have an engineer of its
choice inspect the Property and to make any necessary tests thereon
at Purchaser’s expense, including (without limitation)
environmental tests. Any entry on the Property by Purchaser or its
agents or representatives pursuant to this paragraph 7 shall be
subject to the following terms and conditions:
(i) Purchaser agrees to indemnify,
defend and hold harmless Seller from and against any and all
claims, suits, actions, liabilities, losses, damages and expenses
(including, without limitation, reasonable attorney’s fees)
arising from any act or omission of Purchaser or any of its
employees, contractors, subcontractors, agents or invitees while
in, on or about the Property; provided that notwithstanding the
foregoing, Purchaser shall have no responsibility to Seller for any
damage to persons or property or any release arising from or out of
any negligence or willful misconduct on the part of Seller or its
employees or contractors.
(ii) Purchaser agrees to repair any
damage caused by such inspections to substantially the same
condition as prior to the inspection.
(c) In the event that the results of
Purchaser’s inspection are not acceptable to Purchaser
because the premises are not zoned as hereafter represented,
because of environmental concerns as described in paragraph 4(c) or
failure of Seller to deliver good and marketable title as described
in paragraph 5(a), Purchaser may terminate this Agreement by
immediately delivering written notice of such election to Seller
prior to Closing.
8. FIXTURES . All existing
plumbing, heating, air conditioning, lighting fixtures, systems
appurtenant thereto, utility fixtures and all permanent fixtures,
including screens, storm sash, door awnings, blinds, trees,
shrubbery, plantings, and mechanical systems and features
attached
