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Genentech / Biogen Idec - Purchase And Sale Agreement And Joint Escrow Instructions
PURCHASE AND SALE AGREEMENT AND
JOINT ESCROW INSTRUCTIONS
by and between
BIOGEN IDEC INC.,
a Delaware corporation
"SELLER"
and
GENENTECH, INC.,
a Delaware corporation
"BUYER"
TABLE OF CONTENTS
1. Sale of the Property............................................... 2
2. Purchase Price..................................................... 3
3. Retention Amount................................................... 3
4. Conditions to Parties' Obligations................................. 4
4.1 Buyer's Pre-Closing Conditions............................ 4
4.2 Closing Conditions........................................ 6
4.3 Failure of Conditions..................................... 7
4.4 Investigations; Indemnity................................. 8
4.5 Transition Services Agreement............................. 9
5. Remedies/Liquidated Damages........................................ 9
5.1 Buyer's Default........................................... 9
5.2 Seller's Default.......................................... 10
6. Closing and Escrow................................................. 11
6.1 Escrow Instructions....................................... 11
6.2 Date of Closing........................................... 11
6.3 Conveyance................................................ 11
6.4 Closing Documents......................................... 11
7. Employees.......................................................... 12
7.1 Hired Personnel........................................... 12
7.2 Personnel Files........................................... 13
8. ADT Allocation and Incentive Amendment............................. 13
9. Seller's Maintenance of the Property............................... 13
10. Casualty and Condemnation.......................................... 14
11. Limited Liability.................................................. 15
12. Release............................................................ 15
13. AS-IS Condition of Property........................................ 18
14. Prorations......................................................... 20
15. Closing Costs...................................................... 21
16. Brokers............................................................ 21
17. Notices............................................................ 21
18. Drafting Ambiguities............................................... 22
(i) 19. Assignment......................................................... 23
20. Severability....................................................... 23
21. California Law..................................................... 23
22. Entire Agreement/Modifications/Survival............................ 23
23. Confidentiality.................................................... 23
24. Counterparts....................................................... 24
25. Dispute Costs...................................................... 24
26. Seller's Representations........................................... 24
26.1 Due Authorization......................................... 24
26.2 Litigation................................................ 24
26.3 Condemnation.............................................. 24
26.4 Qualification/Validation Documents........................ 24
26.5 Foreign Person............................................ 25
26.6 Bankruptcy................................................ 25
26.7 Violation of Law.......................................... 25
26.8 No Other Sale Contracts................................... 25
26.9 Agreement of Covenants.................................... 25
26.10 Documents and Materials................................... 25
27. Buyer's Representations............................................ 26
27.1 Authorization............................................. 26
27.2 Authority................................................. 26
27.3 Bankruptcy................................................ 26
27.4 Inspections............................................... 26
28. Time of the Essence; and Business Days............................. 26
29. Agreement Date..................................................... 27
30. No Third Party Beneficiaries....................................... 27
31. Discharge of Seller's Bonds........................................ 27
32. Drafts not an Offer to Enter into a Legally Binding Contract....... 27
33. Natural Hazard Disclosure Requirement Compliance................... 27
34. Retention of Certain Materials..................................... 28
35. Non-Solicitation of Employees...................................... 28
36. Purchase of TD Equipment........................................... 29
(ii) EXHIBITS
EXHIBIT A LEGAL DESCRIPTION OF THE REAL PROPERTY
EXHIBIT B-1 LIST OF PERSONAL PROPERTY
EXHIBIT B-2 LIST OF EXCLUDED PROPERTY
EXHIBIT C ASSIGNMENT AND ASSUMPTION OF INTANGIBLES, INTELLECTUAL
PROPERTY AND ASSUMED CONTRACTS
EXHIBIT D GRANT DEED
EXHIBIT E BILL OF SALE
EXHIBIT F ASSUMED CONTRACTS
EXHIBIT G-1 LIST OF HIRED PERSONNEL
EXHIBIT G-2 LIST OF SELLER RETAINED PERSONNEL
EXHIBIT G-3 LIST OF SELLER PERSONNEL WHO MAY BE CONTACTED BY BUYER
EXHIBIT H PERSONNEL AGREEMENT
EXHIBIT I ALLOCATION AGREEMENT
EXHIBIT J QUALIFICATION AND VALIDATION DOCUMENTS
EXHIBIT K LIST OF SELLER'S BONDS
SCHEDULE 3 REMAINING WORK
SCHEDULE 4.5 TRANSITION SERVICES
(iii)
PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
TO: First American Title Insurance Company Escrow No. NCS-164829-SD
411 Ivy Street San Diego, CA 92101 Escrow Officer: Lynn Graham
Title Order No. NCS-164829-SD
Title Officer: Ralph M. Snyder
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (the "AGREEMENT") is made and entered into as of June 16, 2005 (the "AGREEMENT DATE"), by and between BIOGEN IDEC INC., a Delaware corporation ("Seller"), and GENENTECH, INC., a Delaware corporation ("BUYER"), with reference to the facts set forth in the Recitals below:
R E C I T A L S :
A. Seller is the owner of the approximately sixty (60) acre parcel of real property located at 1 Antibody Way, Oceanside, California, as legally described in Exhibit A attached hereto and made a part hereof (the "REAL PROPERTY"), together with (i) all improvements, structures and other property which is affixed to the Real Property so as to constitute fixtures under California law (collectively, the "IMPROVEMENTS"), (ii) all goods, equipment (including all plans, specifications, drawings, documents, manuals, maintenance and service logs and the like relating to the operation, care, validation, maintenance and repair thereof), materials, inventory, supplies and other personal property owned by Seller and located on the Real Property on May 25, 2005, including, without limitation, the items identified on Exhibit B-1 attached hereto and made a part hereof (but expressly excluding the personal property identified on Exhibit B-2 attached hereto and made a part hereof, which shall not constitute a portion of the Personal Property and which shall be retained by Seller) and all plans, specifications and drawings of the Improvements owned by Seller (collectively, the "PERSONAL PROPERTY") (iii) all of Seller's right, title, and interest, in and to any development rights, entitlements, permits, easements, tenements, hereditaments, mineral rights, oil and gas rights, water, water rights, air rights, and privileges appurtenant to the Real Property, (collectively, the "APPURTENANCES"), (iv) all warranties, guarantees (including, without limitation, all contractor, builder, subcontractor, manufacturer, and vendor/supplier warranties and guarantees), indemnities, bonds, licenses, permits, approvals, intangible rights and privileges and other intangible property related exclusively to the Real Property, the Personal Property and/or the Improvements and rights relating to the construction or design of the Improvements and/or Personal Property (collectively, the "INTANGIBLES"), provided that Intangibles shall not include any intellectual property whatsoever, (v) a non-exclusive, royalty free (as between Buyer or any successive owner of the Property and Seller) right as to those intellectual property rights which are (a) inherent in and/or readily discoverable by Buyer (or any successive owner of the Property) in the actual items of equipment and/or systems (including any design or configuration of such equipment and/or systems) constituting Personal Property or Improvements (as well as any software installed or embedded thereon as of immediately prior to the Closing), (b) owned by or licensed to Seller as of immediately prior to the Agreement Date, (c) transferable without the consent of any third party, and (d) specifically required and necessary for Buyer (or any successive owner of the Property) to operate the actual items of equipment and/or systems constituting Personal Property or Improvements (as well as any software installed or embedded thereon as of immediately prior to the Closing) (collectively, the "INTELLECTUAL PROPERTY" and for purposes of this definition, "Buyer" and "Seller" shall include their respective affiliates), (vi) rights to use the construction or design drawings relating to the Improvements (the "DRAWINGS"), and (vii) all of Seller's right, title and interest, to the extent transferable pursuant to their terms, in the contracts listed on the attached Exhibit C (the "ASSUMED CONTRACTS"). The Real Property, the Improvements, the Personal Property, the Appurtenances, the Intangibles, the Drawings, the Intellectual Property and the Assumed Contracts are collectively referred to herein as the "PROPERTY."
B. Seller desires to sell to Buyer and Buyer desires to purchase from Seller the Property, in accordance with the terms and provisions hereinafter contained in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Buyer hereby agree that the terms and conditions of this Agreement and the instructions to First American Title Insurance Company ("ESCROW HOLDER") with regard to the escrow created pursuant hereto are as follows:
1. Sale of the Property. Seller shall sell to Buyer and Buyer shall purchase from Seller the Property at the Closing (defined in Section 6.2 below), subject to and on the terms and conditions contained herein. Buyer acknowledges that title to the Real Property is subject to certain covenants, conditions and agreements recorded against title to the Real Property in the Official Records (defined below) (collectively, the "MASTER DEVELOPER INSTRUMENTS") in favor of Ivey Ranch Development Company, LLC ("MASTER DEVELOPER"), all of which shall continue to affect title to the Real Property after the Closing. The Master Developer Instruments impose certain obligations on the owner of the Real Property, including, without limitation, a certain right of first refusal (the "MASTER DEVELOPER OPTION") to purchase the Real Property on the terms and conditions more particularly described in a certain Agreement of Covenants dated as of September 1, 2000, by and between Master Developer and Seller and recorded in the Official Records of San Diego County, California ("OFFICIAL RECORDS") on September 1, 2000 as Document No. 2000-0473723. The Master Developer Option is prior and superior to any rights to purchase the Property granted to Buyer hereunder and it shall be a condition to the Closing that the Master Developer Option not have been exercised by Master Developer. As of the Agreement Date, Master Developer has provided a written waiver of the Master Developer Option to Seller and Buyer in form and content satisfactory to the parties. Notwithstanding such waiver, in the event of any purported exercise by Master Developer of the Master Developer Option prior to the Closing, Buyer may, by written notice delivered to Seller and Escrow Holder within three (3) business days of Buyer's receipt of such written notice of Master Developer Option exercise, elect to terminate this Agreement. Upon delivery of such termination election notice, this Agreement shall be deemed terminated and the parties shall have no further
- 2 - obligations hereunder except for Seller's and Buyer's Post-Termination Obligations (as defined in Section 4.1.3 below).
2. Purchase Price. The purchase price for the Property is Four Hundred Eight Million One Hundred Thirty Thousand Dollars ($408,130,000.00) (the "PURCHASE PRICE"). At the Closing, the Purchase Price, as adjusted for the prorations referenced in Section 14 below and the other costs to be paid by Buyer pursuant to this Agreement, shall be paid by Buyer to Seller in cash, in immediately available funds via wire transfer in accordance with Section 4.2.2.1 below. Prior to Closing, Buyer and Seller shall, for purposes of determining the sales tax and real property transfer tax applicable to the transactions contemplated under this Agreement at Closing, use their best efforts to agree upon an allocation of the Purchase Price among the (i) Real Property, Improvements and Appurtenances, (ii) Personal Property, and (iii) other Property. Buyer and Seller hereby agree that the minimum aggregate amount of the Purchase Price allocable to the Real Property, Improvements and Appurtenances for the above purposes shall not be less than the currently assessed value for each component of the Property on the tax rolls of the San Diego County Tax Assessor's Office. The allocation mutually agreed to by Buyer and Seller (if such mutual agreement is reached) shall be conclusive and binding upon Buyer and Seller for the purposes described in this Section 2.
3. Retention Amount. Buyer and Seller acknowledge that the design and construction of certain of the Improvements is not completed and is not expected to be completed prior to the Closing Date and that performance remains under the construction contracts, architect's agreements and other agreements related to the design and construction of the Improvements (collectively, the "CONSTRUCTION CONTRACTS"), including, without limitation, certain design/build construction contracts and other contracts (collectively, as amended, the "DPR DESIGN/BUILD AGREEMENTS") between Seller and DPR Construction, Inc. ("DPR"). The scope of all work under the Construction Contracts which is to be completed under this Agreement is identified on the attached Schedule 3 (the "REMAINING WORK"). At Closing, a portion of the Purchase Price, equal to the balance of all amounts remaining to be paid by Seller under the Construction Contracts (the "RETENTION AMOUNTS") will be retained in Escrow (defined below) with Escrow Holder after the Closing Date to pay for the Remaining Work. Buyer has no right, title or interest in the Retention Amounts. Seller shall cause the Remaining Work to be completed, at its sole cost and expense, in accordance with the terms of the Construction Contracts in effect as of the Agreement Date, and Seller shall perform its obligations under the Construction Contracts in accordance with the terms of the Construction Contracts. The actual Retention Amounts to be withheld in Escrow at Closing shall be identified by Seller in writing to Escrow Holder. The Retention Amounts shall be paid to the person entitled thereto under the Construction Contracts (each, a "RETENTION AMOUNT PAYEE") in whole or, from time-to-time, in part after the Closing upon satisfaction of the requirements under the Construction Contracts for such payment(s). Escrow Holder shall pay to each Retention Amount Payee within five (5) days after receipt of written instruction from Seller to Escrow Holder, together with a copy of such Retention Amount Payee's applicable application for payment, such amounts identified by Seller in such written instruction. All Retention Amounts shall be released by Escrow Holder to Seller upon: (i) Escrow Holder's receipt of an unconditional waiver and release upon final payment, or conditional waiver and release upon final payment (conditioned
- 3 - only upon disbursement to the applicable Retention Amount Payee of the portion of the Retention Amounts represented by such waiver, meeting the requirements of California Civil Code Sections 3262(3) and 3262(4), as applicable), in each case executed by the applicable Retention Amount Payee, provided, however, that such waivers shall only be required from those Retention Amount Payees who are entitled to a statutory claim of lien under California Civil Code Section 3110; and (ii) Escrow Holder's receipt of Seller's written approval of such disbursement. Disbursements for Remaining Work shall be subject to retainage in accordance with the terms of the Construction Contracts. Effective as of the Closing, Seller reserves a license for itself, DPR, each Retention Amount Payee and their respective agents and subcontractors to enter onto the Real Property, upon reasonable prior written notice to Buyer (provided, however, that for purposes of this sentence only, such notice shall be delivered to the attention of David Broad at Buyer's address set forth in Section 17 hereof, with a copy to Patrick Yang as set forth in Section 17 hereof or such other person or address as may otherwise be indicated by Buyer to Seller in writing in accordance with Section 17 hereof) and in accordance with Buyer's reasonable security, health and safety, and operational requirements, for the purpose of completing, or verifying the completion of, the work under the Construction Contracts. Seller shall use reasonable efforts, and shall cause DPR, each Retention Amount Payee and their respective agents and subcontractors to use reasonable efforts, to minimize any disruption of Buyer's operations at the Property. Seller shall indemnify, defend and hold harmless Buyer and its agents, contractors and representatives against all losses, costs, claims, liabilities and damages (including reasonable attorney's fees) for any injury to persons and damage to property caused by the acts or omissions of Seller, DPR, each Retention Amount Payee and their respective agents and subcontractors in completing such work under the Construction Contracts other than arising out of the negligence or intentional misconduct of Buyer, its employees or agents. Buyer and Seller shall cooperate reasonably to record a notice of completion upon completion of said work. In the event Seller exercises any right under the Construction Contracts to take over completion of the Remaining Work, Seller shall be entitled to disbursement of the Retention Amounts to pay the cost of such work, substantially on the disbursement terms under subsections (i) and (ii) above. The parties agree to act reasonably and in good faith in connection with the matters identified in this Section 3. The provisions of this Section 3 shall survive the Closing.
4. Conditions to Parties' Obligations.
4.1 Buyer's Pre-Closing Conditions. Notwithstanding anything to the contrary contained in this Agreement, but subject to the provisions below of this Section 4.1 and the express representations and warranties set forth in Section 26 hereof, Buyer hereby acknowledges and agrees that Buyer has satisfied itself as to, and has waived its right to terminate this Agreement based upon, each and every one of the following: (i) all aspects of the physical condition of the Property, including, without limitation, the presence or absence of any Hazardous Materials (as defined below) thereon or therein and/or any defects in the design, construction, manufacturing or operation of any element or portion of the Property; (ii) except as provided below in Section 4.1.2 below, the status of title to the Property; (iii) the economic feasibility of the Property for Buyer's intended use; and (iv) the terms and conditions of the Master Developer Instruments and any agreements, instruments or undertakings between Seller
- 4 - and the City of Oceanside, California ("CITY") pertaining in any way to the use, development or operation of the Real Property and/or the Improvements, as the same are of public record; and (v) the terms and conditions of the Assumed Contracts.
4.1.1 Approval of Title. Seller has delivered or caused to be delivered to Buyer, and Buyer has approved, with the exception of any delinquent supplemental real property taxes shown on Schedule B, Item 2, First American Title Insurance Company's (the "TITLE COMPANY") Commitment for Title Insurance for the Property, Order No. NCS-164829-SD dated May 26, 2005, together with all documents evidencing exceptions to title referred to therein issued by Title Company (such preliminary title commitment and the underlying documents thereto shall be collectively referred to herein as the "TITLE REPORT").
4.1.2 Title Supplements. Seller has ordered an ALTA survey of the Property (the "SURVEY") to be prepared by a licensed surveyor, at Buyer's sole cost and expense. If, after the Agreement Date, the Title Company issues any supplement to the Title Report ("TITLE SUPPLEMENT") which discloses any material title exceptions for matters shown in the Survey and not previously disclosed in the Title Report or any prior supplement thereto, then Buyer shall have until the date that is five (5) business days after receipt of such Title Supplement to either approve of the exceptions contained therein, or to notify Seller in writing, specifying such new, material exceptions to which Buyer objects and the basis for such objection ("TITLE OBJECTION NOTICE"). Buyer's failure to timely deliver a Title Objection Notice shall be deemed to be Buyer's approval of the matters shown in or disclosed by the Title Supplement. Seller shall have a period of five (5) business days after Seller's receipt of the Title Objection Notice (a) to remove, or agree to remove prior to the Closing, some or all of those exceptions to which Buyer has objected in the Title Objection Notice, and to inform Buyer of the same, or (b) to advise Buyer, in writing, that Seller will not agree to remove some or all of those exceptions to which Buyer has objected in the Title Objection Notice; the foregoing election by Seller being at Seller's sole option and discretion ("TITLE RESPONSE NOTICE"). If Buyer elects to deliver a Title Objection Notice, the scheduled Closing Date shall be adjusted as necessary to permit the time periods specified above with respect to Buyer's election to deliver any applicable Title Objection Notice, and for Seller's election to deliver any Title Response Notice, as contemplated hereinabove.
4.1.3 Effect of Failure to Cure. If Seller fails to timely deliver to Buyer the Title Response Notice, it shall be conclusively deemed that Seller has elected not to remove any of those exceptions to which Buyer has objected as specified in the Title Objection Notice. If Seller advises Buyer in its Title Response Notice that it will not remove or agree to remove some or all of those exceptions to which Buyer has objected in the Title Objection Notice (or Seller is deemed to have so advised Buyer), then Buyer shall have until 5:00 p.m. (Pacific Time) on the date that is three (3) business days after Buyer's receipt of the Title Response Notice (or the expiration of the period in which Seller may deliver the Title Response Notice if Seller fails to timely deliver the same) to advise Seller, in writing, whether Buyer elects to terminate this Agreement or to waive such objections and proceed with the acquisition of the Property. Buyer's failure to timely notify Seller of Buyer's election to terminate this Agreement within the period provided in the immediately preceding sentence shall be deemed to be Buyer's election to
- 5 - waive its objections and proceed with the acquisition of the Property. Failure by Seller to remove (which may include "bonding around" such matters or obtaining endorsements to Buyer's title policy, in each case at Seller's cost, to remove such matters from Buyer's title policy) those specified exceptions which Seller has expressly agreed to remove in the Title Response Notice within the specified period shall be deemed to be a failure of this condition, in which event, unless Buyer withdraws its objections in writing, this Agreement shall terminate, and the parties shall have no further obligations hereunder except for the indemnities contained in Sections 4.4 and 16 below, Buyer's covenants made herein which are expressly intended to survive any such termination and Buyer's obligations under Section 4.3 below to deliver to Seller the Seller's Documents (defined below) (collectively, "BUYER'S POST-TERMINATION OBLIGATIONS") and Seller's continuing obligations under the Confidentiality Agreement (as defined in Section 22 below), or with respect to Section 16 (Brokers), and Section 25 (Dispute Costs) (collectively "SELLER'S POST-TERMINATION OBLIGATIONS"). If Buyer elects to deliver a Title Objection Notice, the scheduled Closing Date shall be adjusted as necessary to permit the time periods specified above to elapse as contemplated hereinabove. Notwithstanding the foregoing, on or prior to Closing, Seller shall (i) remove or cause to be removed any liens affecting the Property securing repayment of borrowed monies or mechanics' liens which Seller has created or suffered to exist, excluding, however, any liens securing payment of non-delinquent real or personal property taxes and assessments (ii) provide such reasonable assurances as the Title Company shall reasonably require to issue the CLTA 101.4 title insurance endorsement referenced in Section 4.2.1.2 below.
4.2 Closing Conditions.
4.2.1 Buyer's Closing Conditions. Buyer's obligation to consummate the purchase of the Property shall be subject to the satisfaction or waiver by Buyer of the following conditions (collectively, the "BUYER'S CLOSING CONDITIONS"):
4.2.1.1 Seller shall have delivered to Escrow Holder or Buyer, as appropriate, all of the documents referred to in Section 6.4.1 below.
4.2.1.2 At the Closing, the Title Company shall be irrevocably committed to issue to Buyer the CLTA Title Policy (defined below) in the form required under Section 4.1 above, including a CLTA 101.4 endorsement; provided, however, Buyer may elect to obtain additional endorsements to the CLTA Title Policy and/or the ALTA Policy (as defined below) but such election shall not be a condition to the Close of Escrow or result in any delay therein, as more fully provided in Section 15 below.
4.2.1.3 Seller's representations contained in Section 26 of this Agreement shall have been true and correct in all material respects when made and shall be true and correct in all material respects as of the Closing Date.
4.2.1.4 Seller shall not be in default of its obligations hereunder.
- 6 -
4.2.2 Seller's Closing Conditions. Seller's obligation to consummate the sale of the Property is conditioned upon the satisfaction or Seller's written waiver on or prior to the Closing Date of the following conditions (collectively, the "SELLER'S CLOSING CONDITIONS"):
4.2.2.1 Not later than 10:00 a.m. on the Closing Date, Buyer shall deliver into the escrow with Escrow Holder (for payment to Seller), in immediately available funds, cash in an amount of the Purchase Price, as adjusted for the costs, expenses and prorations required to be paid by Buyer hereunder.
4.2.2.2 Buyer shall not be in material default of its obligations hereunder.
4.2.2.3 Each of the documents required to be delivered by Buyer pursuant to Section 6.4.2 shall have been timely delivered as provided therein.
4.2.2.4 All of Buyer's representations and warranties contained herein shall be true and correct in all material respects when made and shall be true and correct in all material respects as of the Closing Date.
4.3 Failure of Conditions.
4.3.1 Seller's Cure Right. If any or all of the Buyer's Closing Conditions are not satisfied or waived by Buyer on or before the date established for the Closing, then Buyer shall notify Seller in writing of those Buyer's Closing Conditions which have not been satisfied or otherwise waived by Buyer (the "BUYER'S CLOSING CONDITIONS FAILURE NOTICE"). Seller shall have three (3) business days after Buyer has delivered to Seller the Buyer's Closing Conditions Failure Notice (and the Closing shall be extended, if necessary to give Seller such three (3) business day period) to notify Buyer in writing of Seller's election either to (a) take such actions as may be necessary to cure such matters to Buyer's reasonable satisfaction prior to the date of Closing (as same may be extended), or (b) advise Buyer that Seller will not cure such matters (the "SELLER'S CONDITIONS NOTICE"). If Seller elects not to cure such matters (or fails to timely deliver Seller's Conditions Notice), then within two (2) business days after Buyer's receipt of the Seller's Conditions Notice or the expiration of the period during which Seller may deliver Seller's Conditions Notice (and the Closing shall be extended, if necessary to give Buyer such two (2) business day period), Buyer, at its sole option, may elect to do any of the following: (1) Buyer may elect to terminate this Agreement by delivering written notice thereof to Seller, in which event the parties shall have no further obligations hereunder except for Buyer's and Seller's Post-Termination Obligations; (2) if the Buyer's Closing Condition in question is either of those conditions specified in Sections 4.2.1.2 or 4.2.1.3 and Seller is not in any material manner responsible for the deviation or failure of such Buyer's Closing Condition, then Buyer may elect to terminate this Agreement by delivering written notice thereof to Seller, in which event the parties shall have no further obligations hereunder except for Buyer's and Seller's Post-Termination Obligations; (3) if the Buyer's Closing Condition in question is either of those conditions specified in Sections 4.2.1.1 or 4.2.1.4, or if the Buyer's Closing Condition in question is either of those conditions specified in Sections
-7 - 4.2.1.2 or 4.2.1.3 and Seller is actually responsible for the deviation or failure of such Closing Condition, then Buyer may pursue the remedies available to it pursuant to Section 5.2 below; or (4) Buyer may elect to waive Buyer's Closing Condition(s) in question and proceed with the purchase of the Property. If Seller elects to cure such matters as set forth in the Buyer's Closing Conditions Failure Notice, Seller shall promptly take any and all actions as may be necessary to cure same and the date of the Closing may be extended for a period of time reasonably acceptable to both Seller and Buyer to enable Seller to accomplish same. Failure by Buyer to notify Seller within the specified time periods set forth herein, shall be deemed an approval by Buyer of each such matter, in which event all such conditions and contingencies shall be conclusively deemed to be satisfied and approved. If any of the Seller's Closing Conditions are not satisfied or otherwise waived by Seller prior to the Closing Date, Seller may elect, in its sole and absolute discretion, to terminate this Agreement and, to the extent the same is the result of a default by Buyer hereunder, Seller may pursue its rights and remedies under Section 5.1 hereof.
4.3.2 Return of Documents. Notwithstanding anything to the contrary contained herein, if Buyer terminates this Agreement pursuant to Section 4.1 or for any other reason, Buyer shall destroy all materials, tests, audits, surveys, reports, studies and the results of any and all investigations and inspections conducted by Buyer (collective, the "BUYER'S DOCUMENTS") with respect to the Property and Buyer shall also return to Seller any and all documents, leases, agreements, reports and other materials given to Buyer by or on behalf of Seller (collectively, the "SELLER'S DOCUMENTS") within ten (10) days after such termination of this Agreement. The foregoing covenants of Buyer shall survive any such termination of this Agreement.
4.4 Investigations; Indemnity. Prior to the Closing, Buyer shall be entitled to conduct inspections and investigations into the physical condition of the Property in accordance with this Section 4.4. Prior to entering the Property (and on each and every occasion), Buyer shall deliver to Seller prior written notice thereof or verbal notice wherein Buyer actually speaks with a representative of Seller (not a voicemail message) and shall afford Seller a reasonable opportunity to have a representative of Seller present to accompany Buyer while Buyer performs its evaluations, inspections, tests and other investigations of the physical condition of the Property. Prior to any entry to perform any necessary on-site inspections, tests or investigations, Buyer shall give Seller prior written notice thereof or verbal notice wherein Buyer actually speaks with a representative of Seller (not a voicemail message), including the identity of the company or party(s) who will perform such inspections, tests or investigations and the proposed scope of the inspections, tests or investigations. Seller shall approve or disapprove any proposed inspections, tests or investigations and the party(s) performing the same promptly after receipt of such notice, which approval shall not be unreasonably withheld. Seller's failure to advise Buyer of its disapproval of any proposed inspections, tests or investigations and the party(s) performing the same prior to the time for such entry onto the Property identified in Buyer's notice shall be deemed Seller's approval thereof. Notwithstanding anything to the contrary contained herein, Buyer shall not be permitted to undertake any intrusive or destructive testing of the Property, including without limitation a "Phase II" environmental assessment, without in each instance first obtaining Seller's written consent thereto, which consent shall not be unreasonably withheld. Upon request, Buyer shall promptly deliver to Seller copies of any reports relating to
- 8 - any inspections, tests or investigations of the Property performed by or on behalf of Buyer. Buyer shall keep the Property free from all liens and shall indemnify, defend (with counsel reasonably satisfactory to Seller), protect, and hold Seller and each of the parties comprising Seller and each of their members, officers, trustees, employees, representatives, agents, lenders, related and affiliated entities, successors and assigns harmless from and against any and all claims, demands, liabilities, judgments, penalties, losses, costs, damages, and expenses (including, without limitation, attorneys' and experts' fees and costs) relating to or arising in any manner whatsoever from the negligence or willful misconduct by Buyer or Buyer's agents or representatives in performing or undertaking any studies, evaluations, inspections, investigations or tests relating to or in connection with the Property (exclusive of the financial effects of the discovery of the presence of any Hazardous Materials (as defined in Section 12 below) or any other defect), or entries by Buyer or its agents or representatives in, on or about the Property. Notwithstanding any provision to the contrary in this Agreement, the indemnity obligations of Buyer under this Agreement shall survive any termination of this Agreement or the delivery of the Grant Deed and the transfer of title. In addition to the foregoing indemnity, if there is any damage to the Property caused by Buyer's and/or its agents' or representatives' entry in or on the Property, Buyer shall immediately restore the Property substantially to the same condition existing prior to Buyer's and its agents' or representatives' entry in, on or about the Property.
4.5 Transition Services Agreement. Seller and Buyer shall execute and deliver at the Closing a Transition Services Agreement incorporating substantially the terms as attached hereto as Schedule 4.5.
5. Remedies/Liquidated Damages.
5.1 Buyer's Default. IF BUYER FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY AS PROVIDED IN THIS AGREEMENT BY REASON OF ANY MATERIAL DEFAULT OF BUYER, SELLER SHALL BE RELEASED FROM ITS OBLIGATION TO SELL THE PROPERTY TO BUYER AND THE AMOUNT OF FIFTY MILLION DOLLARS ($50,000,000) SHALL BE PAID BY BUYER TO SELLER AND RETAINED BY SELLER AS LIQU...
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