Purchase And Sale Agreement And Joint Escrow Instructions

Exhibit 10.2

PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS

( 46 Galli Drive Novato, CA )

THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (this " Agreement" ) is effective as of January 24, 2006 (the " Effective Date" ) is entered into by and between WIRRULLA NOVATO LLC, a Washington limited liability company (" Seller" ), and BIOMARIN PHARMACEUTICAL INC., a Delaware corporation (" Buyer" ).

ARTICLE I

PURCHASE AND SALE OF PROPERTY

Section 1.1 Sale. Seller hereby agrees to sell and convey to Buyer, and Buyer hereby agrees to purchase from Seller (the " Transaction" ), subject to the terms and conditions set forth herein, the following: (a) that certain land located in the City of Novato, County of Marin, State of California located at 46 Galli Drive (APN No. 157-452-14) and being more particularly described in Exhibit " A" attached hereto (the " Real Property" ); (b) all of Seller' s right, title and interest in and to all rights, privileges and easements appurtenant to the Real Property (collectively, the " Appurtenances" );

(c) all of Seller' s right, title and interest in and to all improvements, structures, systems, utilities and equipment, if any, utilized by Seller in the ownership and/or operation of the Real Property and located on the Real Property (collectively, the " Improvements" ); (d) the personal property owned by Seller, if any, located on the Real Property and used exclusively in the operation or maintenance of the Real Property, as described on Schedule 1 attached hereto (the " Personal Property" ); and

(e) all of Seller' s right, title and interest in and to that certain lease between Buyer, as tenant, and Seller, as landlord, dated June 25, 1998, as amended by that certain First Amendment to Lease dated April 14, 2000 (the " Lease" ).

(f) any intangible personal property now or hereafter owned by Seller and related to the Real Property or Personal Property if any, including, without limitation, any utility contracts, plans, reports, studies, service or maintenance contracts or other agreements or rights relating to the ownership, use and operation of the Property (as defined below), entitlement and development rights to the extent the foregoing are assignable by Seller (collectively, the " Intangible Property" ).

All of the items referred to in subparagraphs (a), (b), (c), (d), (e) and (f) above are collectively referred to as the " Property ."

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Section 1.2 Purchase Price. (a) The purchase price of the Property is Seventeen Million Dollars ($17,000,000.00) (the " Purchase Price" ).

(b) The Purchase Price shall be paid as follows: (i) Seller has opened escrow (the " Escrow" ) with California Land Title located at 7250 Redwood Boulevard, Suite 208, Novato, California 94945, Attention: Patty Bennett, Telephone No. (415) 892-5800 (the " Escrow Holder" or the " Title Company" ). No later than two (2) business days following the Effective Date, Buyer shall deposit One Hundred Thousand Dollars ($100,000.00) (the " Initial Deposit" ) into the Escrow by wire transfer of immediately available funds. The Initial Deposit shall be held in an interest bearing account and all interest thereon shall be deemed a part of the Deposit.

(ii) In the event that Buyer delivers the Approval Notice (as defined herein) to Seller in accordance with Section 2.2 below, then within two (2) business days following the delivery of the Approval Notice to Seller, Buyer shall deposit into Escrow by wire transfer of immediately available funds an additional One Hundred Thousand Dollars ($100,000.00) (the " Additional Deposit" ). The Initial Deposit and the Additional Deposit shall hereinafter be referred to, collectively, as the " Deposit ." Upon the delivery of the Approval Notice to Seller, the Deposit shall be non-refundable to Buyer in accordance with Section 10.2 ; provided however, that the Deposit shall be refunded to Buyer if (a) this Agreement is terminated pursuant to Article VI , (b) Buyer terminates this Agreement for a Seller default in accordance with Section 10.3 or (c) this Agreement is terminated following the failure of a condition precedent to the Closing other than because of a default by Buyer. In the event the Transaction is consummated, the Deposit shall be credited against the Purchase Price at Closing.

(iii) The balance of the Purchase Price, subject to any adjustments by reason of any applicable prorations and the allocation of the closing costs described in Section 9.5 , shall be delivered by Buyer into the Escrow in immediately available funds not less than one (1) business day prior to the Closing Date (as defined below) and paid by the Escrow Holder to Seller in immediately available funds via wire transfer at the consummation of the Transaction, as evidenced by the recordation of the Deed (as defined below) in the Official Records of Marin County on the date on which Title Company is prepared to insure title (the " Closing" ). Section 1.3 Existing Lease . Buyer and Seller shall continue to perform their respective obligations under the Lease until Closing. In the event of a termination of this Agreement, the Lease shall continue in full force and effect.


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ARTICLE II

TITLE AND SURVEY MATTERS

Section 2.1 Conditions Precedent. Buyer' s obligation to purchase the Property is conditioned upon the following:

(a) Buyer' s review and approval of a commitment for title insurance, together with copies of the underlying documents (the " Title Report" ), and a current " as built" survey in sufficient detail to support the issuance of the Title Policy (as defined below) (the " Survey" ), which Survey shall include a field note description properly certified to Buyer and Escrow Holder. Buyer shall be responsible for ordering the Survey. (i) Buyer shall have twenty (20) days from the Effective Date (the " Title Review Period" ) within which to notify Seller of any exceptions to title as shown in the Title Report or Survey which Buyer disapproves. If any title matter first contained in or first referred to on any supplemental reports or updates to the Title Report is received after the expiration of the Title Review Period, Buyer shall have the right to approve of any such matter by sending written notice to Seller within three (3) business days after receipt thereof. Any exceptions which are not timely approved by Buyer pursuant to this section shall be referred to collectively as the " Title Objections ." If Buyer fails to timely notify Seller of its approval of any matters shown in the Title Report or Survey or any updates or supplements thereto, Buyer shall conclusively be deemed to have disapproved such matters. Any such matter timely approved in writing by Buyer shall constitute a " Permitted Exception" hereunder. If Buyer does not timely notify Seller of any Permitted Exceptions then, at Seller' s sole discretion, Seller may elect (but shall not be obligated) to remove or cause to be removed any of the Title Objections at Seller' s expense, or to cause any Title Objections to be insured against by the Title Company (which removal will be deemed effected by the issuance of title insurance insuring against the effect of the Title Objections in a manner reasonably acceptable to Buyer) and the Transaction shall proceed to Closing in accordance with the terms of this Agreement. Seller shall notify Buyer in writing (" Seller' s Title Notice" ) within three (3) business days after receipt of Buyer' s notice of Title Objections (" Seller' s Cure Notice Period" ) whether Seller elects to remove such Title Objections or to cause the Title Company to insure against the same. Seller' s failure to deliver Seller' s Title Notice to Buyer, or failure to address any Title Objection in any such notice, shall be deemed to be Seller' s refusal to cure such Title Objection.

(ii) Notwithstanding the foregoing, Seller agrees to remove by Closing as exceptions to title to the Property (i) all delinquent taxes and assessments and interest and penalties thereon, if any, (ii) all delinquent installments and accrued interest due on any bonds affecting the Property, (iii) all other monetary liens and encumbrances affecting the Property caused by Seller, such as mortgages, deeds of trust and mechanics' liens, and (iv) any other encumbrances affecting the Property that are created by Seller after the Effective Date and have not been approved in writing by Buyer (the " Liquidated Defects" ). The Liquidated Defects shall not include any (x) liens arising from the direct actions of Buyer or work ordered by Buyer and (y) any unpaid taxes, utility charges or any other expenses or assessments that are to be paid directly by Buyer to a person other than Seller under the Lease. If, prior to Closing, Seller fails to cure, remove or, in a manner acceptable to Buyer, insure over such Liquidated Defects, then Buyer may terminate this Agreement by notice to Seller, in which event the provisions of Section 10.3 shall apply, or take title subject to the Liquidated Defects and deduct from the Purchase Price the reasonable amount necessary to pay off the Liquidated Defects in full, including related interest and penalties.


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(iii) If Seller refuses to cause one or more Title Objections to be cured as provided above, prior to or at the Closing other than those it is required to remove pursuant to subsection (a)(ii) above, Buyer may elect by notice to Seller within three (3) business days after Buyer' s receipt of Seller' s Title Notice to terminate this Agreement, in which event the Deposit shall be returned to Buyer and, thereafter, the parties shall have no further rights or obligations hereunder except for those provisions which expressly survive the termination of this Agreement. Buyer' s failure to send such notice of termination to Seller on or before such date shall constitute Buyer' s election not to waive any Title Objections which Seller is unwilling to cure, in which event this Agreement shall terminate and the provisions of Section 10.3 shall apply.

(b) Buyer' s inspection and approval of the physical condition of the Property pursuant to Article III hereof.

(c) Buyer' s review and approval of service contracts, and other contracts or agreements of significance to the Property, including those contracts listed on Schedule 2 attached hereto (hereinafter collectively referred to as " Contracts" ).

(d) Buyer' s board of directors (the " Board" ) approval of the Transaction by the requisite vote of the Board.

(e) Buyer' s ability to obtain financing for the Transaction on terms and conditions satisfactory to Buyer in its sole discretion.

(f) Buyer' s review and approval of all books, records, correspondence, financial data, and all other documents and matters, public or private, maintained by Seller or its agents, and relating to receipts and expenditures pertaining to the Property for the three most recent full calendar years and the current calendar year and all of the other documents, information, records, reports and other items described that are in its possession or under its control and are not reasonably determined by Seller to be confidential or proprietary in nature, including all of the items described on Schedule 3 attached hereto (the " Due Diligence Documentation" ). Seller agrees to deliver to Buyer (via overnight delivery) within five (5) business days after the Effective Date, copies of any soil tests, surveys, reports and engineering studies and any other documents related to the environmental condition of the Property or which might assist Buyer' s in its feasibility study which are in Seller' s or Seller' s agent' s possession including, but not limited to those items listed on Schedule 3 .

Section 2.2 Contingency Period. (a) Buyer shall have until 5:00 p.m. PST on the date that is thirty (30) days after the Effective Date in which to review and approve or disapprove (in Buyer' s sole discretion) the matters described in Section 2.1(b)-(f) above (such period being referred to herein as the " Contingency Period" ). Buyer shall send a copy of its notice to proceed to Closing (the " Approval Notice" ), if any, to Seller and the Escrow Holder and, upon delivery of such Approval Notice, the conditions described in Sections 2.1(b)-(f) shall be deemed either


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satisfied or waived by Buyer. If Buyer does not send an Approval Notice prior to the expiration of the Contingency Period, this Agreement shall terminate, Buyer shall be entitled to the return of the Deposit, the Escrow Holder shall return to the parties, respectively, the documents they have deposited into Escrow and the parties shall have no further liability to one another arising from this Agreement except for those provisions which expressly survive termination of this Agreement.

(b) If this Agreement is terminated pursuant to Section 2.2(a) , Seller shall pay one-half of all Escrow charges to the Escrow Holder and Buyer shall pay all title charges and one-half of all Escrow charges to the Escrow Holder by deduction from the Deposit.

ARTICLE III

BUYER' S EXAMINATION

Section 3.1 Buyer' s Independent Investigation. (a) Buyer acknowledges and agrees that (i) as the tenant under the Lease, Buyer has been in sole possession of the Real Property since the commencement of the term thereunder and (ii) Buyer has been given or will be given before the end of the Contingency Period, a full opportunity to inspect and investigate, at Buyer' s sole cost and expense, each and every aspect of the Property, either independently or through agents of Buyer' s choosing, including, without limitation:

(i) all matters relating to title, together with all governmental and other legal requirements such as taxes, assessments, zoning, use permit requirements and building codes; (ii) any easements and/or access rights affecting the Property; and (iii) the Contracts.

(b) Buyer shall give Seller reasonable advance notice prior to any entry to perform any on-site testing at the Property, including the identity of the company or persons who will perform such testing and the proposed scope of the testing. In the event that Buyer proposes to perform any destructive or invasive testing, Seller shall approve or disapprove, in its reasonable discretion, the proposed destructive or invasive testing within three (3) business days after receipt of such notice. Seller' s failure to provide such notice shall be deemed Seller' s refusal to permit such testing. If Buyer or its agents, employees or contractors take any sample from the Property in connection with any such approved testing, at Seller' s request, Buyer shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Seller or its representative may be present to observe any testing or other inspection performed on the Property. Buyer shall maintain, and shall require its contractors to maintain, commercial general liability insurance in an amount of at least $1,000,000 per occurrence, and Buyer shall provide Seller with evidence of such insurance coverage upon request by Seller. Buyer shall comply with all applicable federal, state and local


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laws, statutes, regulations, ordinances or policies in conducting any inspection of the Property. Buyer shall provide Seller with copies of any reports or studies prepared by a third-party which are obtained or commissioned by Buyer in connection with Buyer' s investigation of the Property, at Seller' s request and at no charge to Seller. (c) Buyer hereby agrees that its delivery of the Approval Notice to Seller shall constitute an acknowledgement that Buyer has (i) had and/or will have, pursuant to this Agreement, an adequate opportunity to conduct whatever studies, tests and investigations relating to the Property as Buyer deems necessary, desirable or appropriate including, without limitation, economic reviews and analyses, soil tests, engineering analyses, environmental analyses and analysis of any applicable records of the planning, building, public works or any other governmental or quasi-governmental entity having or asserting jurisdiction over the Property; (ii) reviewed and read (or elected not to do so) and has understood all material instruments and documents affecting the Property and/or its value which Buyer deems relevant, including, without limitation, all documents referred to in the Title Report, the Contracts, the Due Diligence Documentation, operating statements, demographic studies and market analyses; and (iii) made or will make or its consultants have made or will make, pursuant to this Agreement, all such independent studies, analyses and investigations, as Buyer has deemed necessary, including without limitation, those relating to environmental matters.

(d) BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 5.1 BELOW, (1) SELLER IS SELLING AND BUYER IS PURCHASING THE PROPERTY ON AN " AS IS WITH ALL FAULTS" BASIS AND (2) BUYER IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, FROM SELLER, ITS AGENTS, OR BROKERS AS TO ANY MATTERS CONCERNING THE PROPERTY. Except as set forth in Section 5.1 , Seller disclaims the making of any representations or warranties, express or implied, regarding the Property or its value or matters affecting the Property, including, without limitation, the physical condition of the Property, title to or the boundaries of the Property, soil condition, Hazardous Materials, compliance with the Americans With Disabilities Act of 1990 or other building, health, safety, land use and zoning laws, regulations and orders, structural and other engineering characteristics, traffic patterns and all other information pertaining to the Property. Buyer acknowledges that it (i) has entered into this Agreement with the intention of making and relying upon its own investigation of the physical, environmental, economic and legal condition of the Property and (ii) is not relying upon any representations and warranties made by Seller or anyone acting or claiming to act on Seller' s behalf (other than as provided in Section 5.1 ) concerning the Property or its value. Buyer further acknowledges that it has not received from Seller any accounting, tax, legal, architectural, engineering, property management or other advice with respect to the Transaction and is relying solely upon the advice of its own accounting, tax, legal, architectural, engineering, property management and other advisors.

(e) Except as otherwise stated in Section 5.2 , Buyer, for itself and its agents, affiliates, successors and assigns, hereby releases and forever discharges Seller, its agents, partners, affiliates, successors and assigns (collectively, the " Seller Indemnitees" ) from any and all rights, claims and demands at law or in equity, whether known or unknown at the time of this


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agreement, which Buyer has or may have in the future, arising out of the physical, environmental, economic or legal condition of the Property; provided however, the foregoing shall not limit Seller' s obligations under the Lease. Buyer hereby specifically acknowledges that Buyer has carefully reviewed this subsection and discussed its import with legal counsel and that the provisions of this subsection are a material part of this Agreement.

Section 3.2 Indemnification. Buyer hereby agrees to hold harmless, protect, defend and indemnify Seller and its officers, members, employees, contractors, agents, advisors and affiliates and its and their respective successors and assigns and the Property from and against actions, suits, sums paid in settlement of any of the foregoing, judgments, losses, damages, injuries, liabilities, penalties, enforcement actions, fines, taxes, liens, encumbrances, costs or expenses (including, without limitation, reasonable attorneys' fees) whether direct or indirect, known or unknown (collectively, " Claims" ) arising out of (a) any injuries to persons (including death) or damage to the Property or (b) any mechanics' , workers' or other liens on the Property, in either case by reason of the inspection, physical testing or activities conducted on the Property by Buyer or Buyer' s agents, under the terms of this Agreement, except as, and to the extent that, such Claims shall arise by reason of Seller' s or Seller' s agents' negligence. This Section 3.2 shall survive the Closing and the termination of the Agreement.

ARTICLE IV

TITLE

Section 4.1 Conditions of Title.

(a) At the Closing, Seller shall convey title to the Real Property to Buyer by good and sufficient grant deed in the form of Exhibit " B" attached hereto (the " Deed" ).

(b) At the Closing, Seller shall transfer title to the Personal Property, if any, by a bill of sale in the form attached hereto as Exhibit " C" (the " Bill of Sale" ). (c) At the Closing, Seller shall transfer title to the Contracts and Intangible Property, if any, by an assignment and assumption of Contracts, Warranties and Guaranties and other intangible property in the form attached hereto as Exhibit " D" (the " Assignment and Assumption Agreement" ). Section 4.2 Evidence of Title.

(a) Delivery of title shall be evidenced by the Title Company being committed to issue, at Closing, an Owner' s American Land Title Association Policy of Title Insurance, Form B-1970 in the amount of the Purchase Price showing title to the Real Property and the Appurtenances vested in Buyer, subject to no exceptions other than the following (the " Title Policy" ): (i) Non-delinquent liens for real estate taxes and assessments; and; (ii) The Permitted Exceptions and any additional exceptions to title which would be disclosed by an inspection and/or survey of the Property.


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(b) Buyer may, at its option and expense, obtain such endorsements to the Title Policy as Buyer may desire; provided, that issuance of such endorsements shall not be a condition precedent to Buyer' s obligations hereunder.

ARTICLE V

SELLER' S REPRESENTATIONS, WARRANTIES AND COVENANTS Section 5.1 Representations and Warranties of Seller. Seller represents and warrants to Buyer that: (a) Seller is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Washington and is qualified to do business in the State of California. This Agreement (i) is and at the time of Closing will be duly authorized, executed and delivered by Seller, (ii) constitutes and at the time of Closing will constitute the legal, valid and binding obligations of Seller, and (iii) does not and at the time of Closing will not violate any provision of any agreement or judicial order to which Seller is a party or to which Seller or the Property is subject. All documents, agreements and instruments executed by Seller which are to be delivered to Buyer at Closing (i) are or at the time of Closing will be duly authorized, executed ...