**Exhibit10.21**

 

AGREEMENTOF PURCHASE AND SALE

AND JOINT ESCROW INSTRUCTIONS

This AGREEMENT OFPURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS (“Agreement”) is made as of theEffective Date (as defined herein), by and between deCODE Chemistry Inc., anIllinois corporation (“Seller”), and WOODRIDGE HOLDINGS LLC, an Oregon limitedliability company or its assigns (“Buyer”).

RECITALS:

A.                                   Selleris the owner of that certain improved real property located at 2501 W. DaveyRoad, Woodridge, Will County, Illinois 60517, and more particularly describedon Exhibit “A” attached hereto and incorporated herein by this reference(the “Property”). Under the terms of this Agreement, the Property shall also bedeemed to include all improvements, transferable mineral rights, assignabledevelopment rights, air rights, sewer rights, fixtures, Seller’s interest insigns and signage rights, heating, ventilation and air-conditioning systems,elevator systems, easements, rights-of-way, appurtenances and assignablepermits, authorizations, licenses, warranties, and Service Contracts (asdefined below) pertaining thereto and all fixtures actually owned by Sellerthereon. Notwithstanding the foregoing, it is agreed and understood that thoseitems of property and equipment described on Exhibit “B” attached heretoand made a part hereof are not included in the sale and will be retained bySeller.

B.                                     Buyernow desires to purchase from Seller, and Seller now desires to sell to Buyer,the Property.

NOW, THEREFORE, inconsideration of the covenants contained herein, and for other good andvaluable consideration, the receipt and sufficiency of which are herebyacknowledged, Buyer and Seller hereby agree as follows:

1.                                       Purchaseand Sale.  Seller hereby agrees tosell, and Buyer hereby agrees to buy, the Property upon the terms andconditions set forth herein.

2.                                       PurchasePrice.  The “Purchase Price” for theProperty will be Twenty-Five Million Dollars ($25,000,000). Concurrent with theopening of Escrow (as defined below), Buyer shall deposit with Escrow Holder(as defined below) a promissory note (“Note”) signed by Terrell GroupManagement LLC, an affiliate of Buyer in the form attached hereto as Exhibit“C” and made a part hereof in the amount of One Hundred Thousand Dollars($100,000) which Note will be converted to cash upon delivery by Buyer of theDue Diligence Contingency Satisfaction Notice (as defined below). The cashproceeds of the Note are to be held in an interest-bearing account, with anyinterest accruing thereon while held in Escrow being added to said sum(collectively, the “Deposit”). The Deposit will be returned to Buyer if Buyerdoes not deliver the Due Diligence Contingency Satisfaction Notice prior to theDue Diligence Contingency Date (as defined below), but shall otherwise be nonrefundableto Buyer. At least one (1) business day prior to the Closing Date, Buyer willdeposit with Escrow Holder the balance of the Purchase Price, plus Buyer’sshare of prorations and closing costs described below, by means of federal wiretransfer or other method satisfactory to Escrow Holder so that immediatelyavailable funds will be available to Escrow Holder for the benefit of Seller atthe opening of business on the Closing Date.

3.                                       Escrow.

(a)                                  Nolater than two (2) business days following the parties’ execution of thisAgreement, the parties shall proceed to open an escrow (“Escrow”) with ChicagoTitle Insurance Company (the “Escrow Holder”), by depositing therein afully-executed original of this Agreement along with the Deposit from Buyer. Buyerand Seller shall execute any further standard escrow instructions reasonablyrequired by Escrow Holder; provided, this Agreement shall control in the eventof any inconsistency between this Agreement and such additional escrowinstructions.

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(b)                                 Buyerand Seller hereby agree that the Escrow Holder will be the “real estatereporting person” for purposes of this Agreement, if necessary, pursuant toInternal Revenue Code (“IRC”) Section 6045(e).

4.                                       Deliveryof Title.  Prior to the Closing Date,Seller shall deposit with Escrow Holder a duly executed and acknowledgedStatutory Form of Special Warranty Deed in the form attached hereto as Exhibit“D” and made a part hereof, conveying the Property to Buyer subject onlyto: (a) a lien to secure payment of real estate taxes and assessments, notdelinquent; (b) all matters of record not disapproved by Buyer, as described inParagraph 5 below; and (c) any tenant leases not disapproved by Buyer affectingthe Property. Notwithstanding the foregoing, any monetary liens encumbering theProperty, other than non-delinquent real estate taxes and assessments, shall beremoved from title or bonded against by Seller on or before the Closing (asdefined below), at Seller’s sole cost and expense, unless otherwise agreed toor waived by Buyer in writing. Title shall be evidenced by the issuance at theClosing, by the Title Company, of an extended ALTA owner’s policy of titleinsurance (the “Title Policy”) in the amount of the Purchase Price showingtitle to the Property vested in Buyer. Buyer shall pay the difference betweenthe cost of a standard form owner’s policy of title insurance and the cost ofthe Title Policy and, except the cost of any required survey, shall satisfy anyTitle Company requirements in connection therewith.

5.                                       DueDiligenceContingency Date.  Buyershall have until 5:00 p.m. on the date that is thirty (30) days after theEffective Date (the “Due Diligence Contingency Date”) to notify Seller, bynotice to Seller and Escrow Holder, in writing, that Buyer is satisfied withits review of the Property (the “Due Diligence Contingency Satisfaction Notice”).Unless such notice is delivered by the Due Diligence Contingency Date, thisAgreement shall automatically terminate, Escrow Holder shall return the Depositto Buyer, and neither party hereto shall have any further rights or obligationshereunder (except as otherwise expressly provided herein).

(a)                                  Title.  Buyer shall have until the Due DiligenceContingency Date to disapprove in writing the legal description of the Propertyattached hereto as Exhibit “A”, along with any matters of title asdisclosed by a current standard preliminary title report or title commitmentissued by the Title Company and legible copies, if obtainable, of the recordeddocuments referred to in such preliminary title report or title commitment, allof which shall be delivered to Buyer promptly following the opening of Escrowor by the survey to be provided by Seller.

(b)                                 Reviewof Documents.  Seller shall promptlydeliver to Buyer, legible copies of the following information with respect tothe Property to the extent in Seller’s possession:

(i)                                     AllLeases and any amendments and/or modifications thereto, including a currentrent roll for the Property;

(ii)                                  Themonthly income and expense records for the Property for the period of timewhich is two (2) years prior to the Effective Date (including property taxbills), in the form customarily maintained by Seller and to the extent same areavailable to Seller;

(iii)                               Certificatesof occupancy and any other governmental permits or entitlements in Seller’spossession relating to the Property, if any;

(iv)                              Allservice contracts and other agreements in Seller’s possession relating to theoperation of the Property (collectively, the “Service Contracts”), if any;

(v)                                 Copiesof any existing Survey and/or plans and specifications regarding the Propertywhich are in Seller’s possession, if any;

(vi)                              EstoppelCertificate for the Lease (as defined herein), which shall be substantially inthe form of Exhibit “E” attached hereto and incorporated herein by thisreference.

(vii)                           Copiesof the working drawings and “as built” drawings relating to all improvements tothe Property within the possession or control of Seller.

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(viii)                        Allinformation within the possession or control of Seller relating to theenvironmental condition of the Property including all environmental reportsprepared for Seller or any affiliate of Seller;

(ix)                                Anyappraisals of the Property within the possession or control of Seller or anyaffiliate of Seller;

(x)                                   Copiesof all proposals and reports, studies, plans, permits, specifications anddrawings relating to the Property within the possession or control of Seller orany affiliate of Seller;

(xi)                                Aninventory of all personal property used or useful in the operation of theProperty;

(xii)                           Theexisting ALTA survey of the Property prepared by Spaceco Inc. dated May 23,2002.

(xiii)                        Copies ofall insurance policies of Seller relating to the Property.

Seller agrees todeliver the above-referenced documents to Buyer within seven (7) days after theEffective Date. If this Agreement is terminated for any reason, Buyer covenantsto immediately return to Seller all documentation theretofore delivered toBuyer by or on behalf of Seller, and Buyer shall also deliver to Seller,promptly upon Buyer’s receipt, copies of any and all reports, studies, Surveysor similar matters commissioned by Buyer with respect to the Property.

(c)                                  Inspectionsand Studies.  Buyer shall have untilthe Due Diligence Contingency Date to conduct inspections, economic feasibilityanalyses, investigations with regard to zoning, building codes and othergovernmental regulations, architectural inspections, Hazardous Materials (asdefined below), engineering tests, surveys, and soils, seismic and geologicalreports with respect to the Property (including all structural and mechanicalsystems, and leased areas), as Buyer may elect to make or obtain. All suchinspections, tests and studies shall be at Buyer’s sole cost and expense. Buyerand its consultants shall have the right to enter upon the Property, followingthe opening of Escrow and until the Due Diligence Contingency Date, to conductsuch inspections, tests and studies; provided, that such entry onto theProperty shall not interfere with any tenant’s or Seller’s quiet enjoyment ofthe Property and shall be conducted, in accordance with all Applicable Law (asdefined below), only following prior reasonable notice to Seller’s localproperty manager to permit such property manager to accompany any such entry. Buyerassumes all risk and expense relating to Buyer’s entry on the Property, andBuyer hereby agrees to indemnify, defend (with counsel reasonably acceptable toSeller), protect and hold Seller and Seller’s officers, directors, shareholders,partners (either general or limited), employees, agents and representatives(collectively, “Seller’s Agents”), as well as the Property, harmless from andagainst any and all claims, liabilities, damages, costs or expenses resultingfrom said inspections, including, without limitation, reasonable attorneys’fees and costs, and court costs. The indemnification obligations of Buyer setforth in this Paragraph 5(c) shall survive the Closing or any expiration orearlier termination of this Agreement. Prior to Buyer entering the Property toconduct the inspections and tests described above, Buyer, at Buyer’s sole costand expense, shall cause each of its agents and contractors to obtain andmaintain, and deliver to Seller, evidence of general liability and workmen’scompensation insurance in such commercially reasonable limits as requested bySeller, and naming Seller as an additional insured party and which insuranceshall provide coverage against claim for personal injury or property damagecaused or incurred by Buyer or its agents, employees or contractors inconnection with such inspections and tests. If for any reason Buyer does notcomplete the purchase of the Property from the Seller, Buyer shall deliver toSeller copies of all inspection, test and study reports which it has obtainedin connection with the Property without cost to Seller.

(d)                                 Leaseback                                        Duringthe period from the Effective Date until the Due Diligence Contingency Date,Buyer and Seller shall exercise their best efforts to negotiate and agree upona lease of the Property to Seller (the “Lease”) and upon the form and substanceof a Letter of Credit securing Seller’s obligations under the Lease. The Leasewill be guaranteed by

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MediChem LifeSciences, Inc. and by deCODE Genetics, Inc. (collectively “Guarantor”). TheLease will be an absolute net lease, with Seller responsible for the payment ofall expenses relating to the Property, including but not limited to structuraland nonstructural, foreseen and unforeseen, ordinary and extraordinary changesand repairs which may be required to keep all parts of the Property in goodrepair and condition, and all other expenses relating to the Property,including but not limited to all taxes, insurance, utilities, all maintenance,roofing, glass, structural repair costs, site and site utilities, landscaping,HVAC, structural members, modifications or changes mandated by any regulatoryauthority having jurisdiction over the Property, all to be paid directly bySeller as tenant. The Property will be leased in an AS IS – Where Is ConditionWith All Faults, with no warranty or representation of any kind, express orimplied, pertaining to the Property, the condition thereof (environmental orotherwise), the value thereof or any other matter pertaining to the Property.The Lease will include such customary provisions relating to insurance to beprovided by the tenant and mutually acceptable to Seller, Buyer and Buyer’sLender. The Lease will provide for base monthly rent of One Hundred Sixty-ThreeThousand Eighty Three and 33/100 Dollars ($163,083.33) over an initial term ofseventeen (17) years, with annual rent increases of two and one half percent(2.5%). Seller will have two (2) five (5) year renewal options each at the thenprevailing market rate for properties used for purposes similar to the currentuse of the Property by tenants similar to Seller. The Letter of Credit will bein effect for the first ten (10) years of the term of the Lease. The Letter ofCredit shall be for an initial term of not less than one (1) year and shallfrom time to time, be renewed and remain in full force and effect until the endof the tenth Lease Year. The Letter of Credit will be in the amount of$5,000,000. At such time as deCODE Genetics, Inc.’s consolidated financialstatements (as reported to the Securities and Exchange Commission on the form10 Q filed by deCODE Genetics) establishes that deCODE Genetics, Inc. hasoperated at a cumulative net profit during any four (4) consecutive quarterlyperiods during the Term, the amount of the Letter of Credit shall be reduced to$4,000,000. Upon the occurrence of an event of default under the terms of theLease and termination of tenant’s right to occupy the Property under applicablelaw, Buyer will have the right to draw the entire balance of the Letter ofCredit. The cash proceeds from the Letter of Credit will be maintained in aseparate interest bearing account, with the interest added to and made a partof the separate account. Buyer may withdraw funds from this account from timeto time to reimburse Buyer for any losses relating to the default, includingbut not limited to lost rent and retenanting costs for the Property. If Buyer’sdamages as a result of the default are less than the cash proceeds of theLetter of Credit, the remaining balance in the separate account shall be paidto Seller. If Buyer’s damages as a result of the default are more than the cashproceeds of the Letter of Credit, the tenant and Guarantor’s liability fordamages will not, however, be limited to the amount of the Letter of Credit butshall include all damages actually suffered by Buyer as a result of the uncuredevent of default. Seller, as tenant, shall have the right, under the terms ofthe Lease, to build out, at Seller’s sole expense, up to 28,000 square feet oflab expansion space existing within the building. Buyer shall have the right,but not the obligation, to purchase the tenant improvements and lease back toSeller at an effective rate comparable to the rate applicable to the improvedbuilt-out space at the Property, or upon such other terms as the parties maymutually agree.

(e)                                  GroundLease Right.  As part of the Lease,Seller, as tenant shall have the option during the first five years of the Term(“Ground Lease Right”) to enter into a separate ground lease for approximately4.5 acres of buildable land which is currently landscaped undeveloped land onthe Property (the “Ground Lease Parcel”). The approximate location of theGround Lease Parcel is depicted on Exhibit “E” attached hereto. Upon Sellerrequest, the Ground Lease Parcel shall be removed from the leased Property. Selleras Ground Lessee and Buyer as Ground Lessor shall enter into a Ground Lease(the “Ground Lease”) for the Ground Lease Parcel. The Ground Lease shallcontain terms and conditions common to ground leases upon which the tenantintends to build a new structure and shall contain the following specificterms: (a) the term of the Ground Lease shall be twenty (20) years with five(5) five consecutive (5) year renewal options; (b) the initial rent will be anamount equal to eight percent (8%) of the “then current land value” of theGround Lease Parcel as of the date of exercise of the Ground Lease Right, (andthe “then current land value” shall be an amount equal to $6.00 per square footas of the commencement date of the Lease, and increase 2.5% per year from thecommencement date of the Lease until the exercise of the Ground Lease Right[for example, if the then current land value of the Ground Lease Parcel is$6.00 per square foot, the 4.5 acre Ground Lease Parcel would be worth$1,176,120 and the annual rent would be $94,090 ($1,176,120 x 8%)]; and (c) theGround Lease will be guaranteed in the same manner as the Lease, but thereshall be no letter of credit nor security deposit. If Seller, as tenant, hasnot exercised the Ground Lease Right

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within five (5)years after the commencement date of the Lease, Seller may remove the GroundLease Parcel from the Lease and sell the Ground Lease Parcel, provided,however, that prior to removal of the Ground Lease Parcel, Buyer shall offerthe Ground Lease Parcel to Seller, as tenant by written notice to Seller. Thewritten notice shall set forth the price and terms pursuant to which Buyer iswilling to sell the Ground Lease Parcel. If Seller does not, within thirty (30)days after the date of the notice, accept the offer, Buyer may proceed to sellthe Ground Lease Parcel upon any terms acceptable to Buyer, free and clear ofany claim of Seller, as tenant under the terms of the Lease, provided, however,that Buyer may not sell the Ground Lease Parcel for a price that is less thanninety percent (90%) of the price set forth in the written notice to theSeller, as tenant without providing a new notice and offer to Seller to buy theGround Lease Parcel for such new price (‘revised offer”), and Seller shall havean additional thirty (30) days in which to accept the revised offer and furtherprovided, if Buyer has not sold the Ground Lease Parcel within two (2) years ofthe date of the notice to Seller, before Buyer can sell the Ground LeaseParcel, Buyer must begin the sale process again by a new notice to Seller.

(f)                                    FinancingContingency.  Buyer shall have sixty(60) days from the date Buyer delivers the Due Diligence ContingencySatisfaction Notice (the “Finance Contingency Date”) to notify Seller, bynotice to Seller and Escrow Holder, in writing, that Buyer has obtainedfinancing for its purchase of the Property, satisfactory to Buyer in Buyer’ssole discretion (the “Finance Contingency Satisfaction Notice”). Unless suchnotice is delivered by the Finance Contingency Date, this Agreement shallautomatically terminate, Escrow Holder shall release the Deposit to Buyer, andneither party hereto shall have any further rights or obligations hereunder (exceptas otherwise expressly provided herein).

6.                                       Costsand Prorations.  All rents, deposits,taxes, utilities and other payments by or actually to Seller relating to theProperty shall be prorated as of the midnight preceding the Closing on either a365-day year or a 30-day month, whichever is most convenient for Escrow Holder.It is agreed that since Seller is obligated to pay all real estate taxes duringthe term of the Lease, there shall be no proration at Closing for real estatetaxes for 2006 or 2007 and such taxes shall be paid by Seller as tenant beforethe due date and in the manner provided for in the Lease. Any securitydeposits, cleaning deposits, and/or prepaid rents actually held by Seller andnot applied shall be credited to Buyer. Seller shall be responsible for payingthe premium for the standard portion of the Title Policy, and Buyer shall beresponsible for paying any costs associated with any extended ALTA Title Policyrequested by or for the benefit of Buyer or any other endorsements. If Selleris required by the Title Company to obtain a new Survey of the Property inorder to issue the Title Policy without any survey objections, the costs of thenew Survey shall be the responsibility of Seller. Buyer and Seller shall eachpay one-half (1/2) of any Escrow fees. Documentary transfer taxes, conveyancetaxes and/or any sales taxes, as well as all recording fees or charges for thedeed or release of existing mortgages or liens, are also the responsibility ofSeller. All other costs and expenses not specifically allocated herein shall bepaid in accordance with the custom of the County in which the Property islocated. Seller shall pay a real estate commission equal to four percent (4%)of the Purchase Price, payable one half (1/2) to Buyer’s agent, Joe DeJager andMonte Haynes of GVA Kidder Matthews (“Buyer’s Broker”), and one half (1/2) toSeller’s agent Sandra Griggs and Chris Crnkovich of GVA Williams (“Seller’sBroker”).

7.                                       ClosingDocuments and Conditions; and Closing.

(a)                                  Followingthe opening of Escrow, Seller shall operate and maintain the Property in theordinary course of business (consistent with Seller’s prior practice),reasonable wear and tear excepted and will not enter into any new agreementsaffecting the Property through and until the Closing. The Closing (“Closing” or“Closing Date”) shall occur no later than fifteen (15) days after issuance ofthe Finance Contingency Satisfaction Notice.

(b)                                 Asconditions precedent to Seller’s obligations under this Agreement (unlessotherwise waived, in writing, by Seller), and before the Closing Date, Buyershall deliver to Escrow Holder: an executed closing, settlement or disbursementstatement prepared by Escrow Holder and reasonably agreed to by Seller; thebalance of the Purchase Price to Escrow Holder, to which the Deposit hasalready been applied, pursuant to Paragraph 2 above; and such other documentsas may be reasonably required by Escrow Holder and/or the Title Company inorder to consummate the transaction contemplated by this Agreement.

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(c)                                  Asconditions precedent to Buyer’s obligations under this Agreement (unlessotherwise waived, in writing, by Buyer), and on the Closing Date, Seller shalldeliver to Buyer: possession of the Property, subject to any leases approved byBuyer; and to Escrow Holder, on or before the Closing Date: the executed,original statutory form Special Warranty Deed, an executed closing statementprepared by Escrow Holder; the Estoppel Certificate if not previously deliveredto Buyer; the executed, original Assignment and Assumption of Leases andSecurity Deposits, in the form attached hereto as Exhibit “G”; theexecuted, original Assignment and Assumption of Service Contracts for theProperty, which shall be substantially in the form of Exhibit “H”attached hereto and incorporated herein by this reference; a FIRPTA Certificate(as defined below), which shall be substantially in the form of Exhibit “I”attached hereto and incorporated herein by this reference; and such otherdocuments as may be reasonably required by Escrow Holder in order to consummatethe transaction contemplated by this Agreement.

(d)                                 Unlessotherwise mutually agreed to by Seller and Buyer in writing, andnotwithstanding the Closing Date set forth in Paragraph 1 above, the “Closing”of this transaction shall mean, and shall be conclusively deemed to occur on,the date the Escrow Holder is prepared to issue the Title Policy and record theWarranty Deed in the County Recorder’s Office of the County in which theProperty is located and Escrow Holder concurrently releases the PurchasePrice to Seller.

(e)                                  Ifeither party desires to transfer the Property through an exchange transactionunder Internal Revenue Code Section 1031 (the “Exchanging Party”), the otherparty (the “Other Party”) agrees to cooperate with such exchange so long as (a)the Other Party bears no expense in connection with such cooperation, (b) theOther Party incurs and assumes no additional risk or liability, (c) theexchange will not result in any impairment or restriction of any remedies orrights of the Other Party, (d) the Closing is not delayed as a result of theexchange, and (e) the Other Party is not required to take or hold title to anyexchange property. The Exchanging Party shall indemnify, protect, hold harmlessand defend the Other Party from and against any and all claims, damages, costs,liabilities, losses and expenses (including reasonable attorney fees) arisingout of the exchange transaction. This indemnity shall survive the Closing.

8.                                       Damageor Destruction and Condemnation.  Ifall or any portion of the Property is damaged or destroyed prior to theClosing, or if any condemnation or eminent domain proceedings (the “Proceedings”)are instituted or threatened by written notice against the Property after theContingency Date but prior to the Closing, and the costs of repair orreconstruction or the extent of the Proceedings are reasonably estimated to bein excess of One Million Dollars ($1,000,000), Buyer or Seller shall have theright to terminate this Agreement by giving written notice thereof to the otherparty within five (5) business days after Seller notifies Buyer of the event ofany damage or destruction or the Proceedings, whereupon neither Buyer norSeller shall have any further rights or obligations hereunder following thereturn of the Deposit to Buyer (except as otherwise provided herein). IfNeither Seller or Buyer terminates this Agreement, as aforesaid, this Agreementshall continue in full force and effect without modification or reduction inthe Purchase Price.

9.                                       Representationsand Warranties.

(a)                                  Sellerhereby represents and warrants to Buyer that Seller is a duly formed andvalidly existing Illinois corporation, maintaining a place of business inWoodridge, Illinois.

(b)                                 Buyerhereby represents and warrants to Seller that Buyer is a duly formed andvalidly existing limited liability company, qualified to do business and ingood standing in the State of Oregon

(c)                                  Buyerand Seller, each for itself only, hereby represent and warrant to each otherthat: each has the requisite power and authority to execute, deliver andperform this Agreement and to consummate the transaction contemplated hereby;the execution and delivery of this Agreement by Buyer and Seller, theperformance and compliance with all of the terms and conditions hereof to beperformed and complied with by Buyer and Seller, and the consummation by Buyerand Seller of the transaction contemplated hereby have been duly authorized byall requisite action on the part of Buyer and Seller; this Agreement and alldocuments and agreements ancillary hereto and all documents required herebyhave been, or

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when executed anddelivered by Buyer and Seller shall have been, duly and validly executed anddelivered by Buyer and Seller, and shall constitute the legal, valid andbinding obligations of Buyer and Seller, enforceable in accordance with theirrespective terms.

(d)                                 Buyerand Seller, each for itself only, hereby represent and warrant to each otherthat the execution, delivery and performance of this Agreement by Buyer andSeller, and the consummation by Buyer and Seller of the transactioncontemplated hereby, do not require the consent, waiver, approval, license orauthorization of any foreign, federal, state or local public authority or anyother person or entity.

(e)                                  Sellerhereby represents and warrants that it is not aware of the existence of anyHazardous Materials used or stored in violation of Applicable Law or therelease of any Hazardous Materials on or in the Property and that Seller hasnot received any notice from any governmental authority of the presence of anyHazardous Materials on or in the Property or the release of any HazardousMaterials on or in the Property in violation of any Applicable Law.

For the purposesof this Agreement, the term “Hazardous Materials” means any substance: (i) thepresence of which requires investigation, remediation or disclosure under anypresent or future federal, state or local statute, regulation, ordinance,order, action, policy or common law (collectively, “Applicable Law”); (ii) thepresence of which causes or threatens to cause a nuisance or other harm uponthe Property or to adjacent properties or poses or threatens to pose a hazardto the health or safety of persons on or about the Property; and/or (iii)including, without limitation, waste, pollutants, oil or other hazardoussubstances, including, without limitation, petroleum or petroleum products,radioactive, flammable or explosive substances, asbestos and/orasbestos-containing materials, polychlorinated biphenyls and all materials andwastes which are or become classified as “hazardous substances,” “hazardousmaterials” and/or “toxic substances” under any Applicable Law, as the same maybe amended from time to time, including, but not limited to, the ResourceConservation and Recovery Act (RCRA) (42 U.S.C. §6901, et.seq.),the Comprehensive Environmental Response, Compensation and Liability Act(CERCLA) (42 U.S.C. §9601, et.seq.), the Toxic SubstancesControl Act (15 U.S.C. §2601, et.seq.), the Clean Water Act (33U.S.C. §1251, et. seq.), and the Clean Air Act (42 U.S.C. §7401, et.seq.).

(f)                                    Eachparty warrants to the other that no brokers have been involved in the purchaseand sale hereunder other than Buyer’s Broker and Seller’s Broker. Seller andBuyer agree to indemnify, defend and hold harmless from the other from andagainst any claims for broker’s commission other than the commission due andpayable to Buyer’s Broker and Seller’s Broker, whose commission shall be paidby the Seller as provided herein.

(g)                                 Theforegoing representations and warranties of Seller and Buyer set forth in thisParagraph 9 shall survive the Closing or any expiration or earlier terminationof this Agreement.

Except for therepresentations and warranties set forth above, Buyer acknowledges and agreesto purchase the Property in its “**AS IS - WHERE IS CONDITIONWITH ALL FAULTS**”. Seller or its agents have made no warranty orrepresentation of any kind, expressed or implied, pertaining to the Property,the condition thereof (environmental or otherwise), the value thereof or anyother matter pertaining to the Property.

10.                                 Defaultand Legal Fees.

(a)                                  Uponthe bringing of any action or suit by a party hereto against another partyhereto by reason of any alleged default hereunder or to interpret or enforceany terms hereof, the prevailing party shall be entitled to recover as anelement of its costs of suit, and not as damages, reasonable attorneys’ feesand costs, and court costs, whether or not the suit proceeds to final judgment,settlement or otherwise.

(b)                                 INTHE EVENT THE CLOSING DOES NOT OCCUR AS HEREIN PROVIDED BY REASON OF ANYDEFAULT BY BUYER, BUYER AND SELLER AGREE THAT IT WOULD BE IMPRACTICAL ANDEXTREMELY DIFFICULT TO ESTIMATE

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THE DAMAGES WHICHSELLER MAY SUFFER. THEREFORE, BUYER AND SELLER HEREBY AGREE THAT A REASONABLEESTIMATE OF THE TOTAL NET DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT THATBUYER DEFAULTS AND FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY IS, AND SHALLBE, AS SELLER’S SOLE AND EXCLUSIVE REMEDY (WHETHER AT LAW OR IN EQUITY), ANAMOUNT EQUAL TO THE DEPOSIT (EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT). SAIDAMOUNT SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES FOR THE BREACH OF THISAGREEMENT BY BUYER, ALL OTHER CLAIMS TO DAMAGES OR OTHER REMEDIES BEING HEREINEXPRESSLY WAIVED BY SELLER (EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT). UPONANY DEFAULT BY BUYER, THIS AGREEMENT MAY BE TERMINATED BY SELLER, AND NEITHERPARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER, EACH TO THEOTHER, EXCEPT FOR: (i) THE RIGHT OF SELLER TO COLLECT SUCH LIQUIDATED DAMAGESFROM BUYER AND/OR ESCROW HOLDER; (ii) BUYER’S OBLIGATION TO RETURN THEDOCUMENTS DESCRIBED IN, AND SUBJECT TO THE TERMS OF, PARAGRAPH 5 ABOVE; (iii)THE RIGHT OF SELLER TO ENFORCE ITS REMEDIES UNDER THE INDEMNIFICATIONOBLIGATIONS OF BUYER CONTAINED IN THIS AGREEMENT; AND (iv) THE RIGHT OF SELLERTO COLLECT ANY ATTORNEYS’ FEES AND COSTS, AND COURT COSTS, INCURRED UNDER THISAGREEMENT, INCLUDING, BUT NOT LIMITED TO, IN ENFORCING THIS PARAGRAPH 10(b).

(c)                                  INTHE EVENT THE CLOSING DOES NOT OCCUR AS HEREIN PROVIDED BY REASON OF ANYDEFAULT BY SELLER, BUYER AND SELLER AGREE THAT BUYER SHALL BE ENTITLED TO SEEK,AS ITS SOLE AND EXCLUSIVE REMEDY AT ITS ELECTION EITHER: (I) THE REMEDY OFSPECIFIC PERFORMANCE OF SELLER’S OBLIGATIONS TO CONVEY THE PROPERTY TO BUYER;OR (II) TERMINATE THIS AGREEMENT IN WHICH EVENT THE EARNEST MONEY SHALL BERETURNED TO BUYER. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY ACTUAL,PUNITIVE, SPECULATIVE OR CONSEQUENTIAL DAMAGES.
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|--------|--------|-----------------------|--------|------------------------|--------|
|   |   | BUYER’S INITIALS |   | SELLER’S INITIALS |

 

11.                                 Notices.  All notices or other communications requiredor permitted hereunder must be in writing to be effective, and shall bepersonally delivered or sent by registered or certified mail, return receiptrequested, or delivered via overnight mail (via Federal Express or similarovernight courier), or delivered via telecopier or electronic mail (e-mail),and shall be deemed received upon the earliest of: (a) the date of delivery, ifpersonally delivered or delivered via overnight mail, (b) three (3) businessdays after the date of posting by the U.S. or Canadian postal service, ifmailed, or (c) the date when sent, if sent by telecopier or e-mail. Any noticeor other communication sent by telecopier or e-mail shall be confirmed withinone (1) business days by letter mailed or delivered to the receiving partyaccording to the foregoing. All such notices or communications shall beaddressed as follows:
| To Seller:      | deCode Chemistry, Inc.                                                                           |
|-----------------|--------------------------------------------------------------------------------------------------|
|            | 2501 W. Davey Road                                                                               |
|            | Woodridge, Illinois 60517                                                                        |
|            | Attn: Chris Tauer                                                                                |
|            | Telecopier No. (630) 783-4705             |
|            | e-mail: ctauer@decode.com                                                                        |
|            |                                                                                             |
|            |                                                                                             |
| With a copy to: | Brown & Brown P.C.                                                                           |
|            | 513 Central Avenue – Fifth Floor                                                            |
|            | Highland Park, Illinois 60035                                                                    |
|            | Attn: Kenneth H. Brown                                                                           |
|            | Telecopier No. (847) 433-6735                                                                    |
|            | e-mail: khb@brownbrownlaw.com                                                                    |

 

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| To Buyer:          | Woodridge Holdings LLC             |
|--------------------|------------------------------------|
|               | c/o Terrell Group Management       |
|               | 5300 Meadow Road, Suite 400        |
|               | Lake Oswego, Oregon 97035          |
|               | Attn: Scott Miller                 |
|               | Telecopier No. 503-459-4204        |
|               | e-mail: scott@terrellgroup.com     |
|               |                               |
|               |                               |
| With a copy to:    | Josselson & Potter             |
|               | 425 NW 10th Avenue, Suite 306 |
|               | Portland, Oregon 97209             |
|               | Attn: Irving Potter                |
|               | Telecopier No. 503-228-0171        |
|               | e-mail: irving@jprlaw.com          |
|               |                               |
| To Escrow  Holder: | Chicago Title Insurance Company    |
|               | 171 N. Clark Street                |
|               | Chicago, Illinois 60601            |
|               | Attn:                              |                                                                 |   |
|               | Telecopier No.                     |                                                    |   |
|                    |                                    |  |  |  |  |

 

12.                                 Successorsand Assigns; and Assignment.

(a)                                  Buyermay assign this Agreement and/or any of Buyer’s rights hereunder to anythird-party individual or entity, without Seller’s consent (but upon writtennotice to Buyer and Escrow Holder. No transfer, whether with or without Seller’sconsent, shall operate to release Buyer or alter Buyer’s primary liability toperform the obligations of Buyer under this Agreement or cause the Seller toincur any costs or other economic detriment in connection with the transfer.

(b)                                 ThisAgreement shall be binding upon and shall inure to the benefit of the permittedsuccessors and assigns of the parties hereto.

13.                                 EntireAgreement and Exhibits.  ThisAgreement, together with all Recitals and Exhibits attached hereto, containsthe entire agreement between the parties hereto with respect to the subjectmatter hereof, and no addition or modification of any term or provision shallbe effective unless set forth in writing and executed by both Buyer and Seller.

14.                                 Timeof Essence.  Time is of the essenceof each and every term, condition, obligation and provision hereof.

15.                                 GoverningLaw.  This Agreement shall beconstrued and enforced in accordance with the laws of the State of Illinois. Buyerand Seller hereby consent and agree to the jurisdiction of the state or federalcourts sitting in the County of Will, State of Illinois, and waive anyobjection based on venue or forum non conveniens with respect to anyaction instituted therein, and further agree that any dispute concerning therelationship between the parties hereto or this Agreement, or otherwise, shallbe heard only in the courts described above.

16.                                 FIRPTACompliance.  Seller is not a foreigncorporation or person within the meaning of Section 1445 of the IRC, asamended. Based upon the foregoing, and at or prior to the Closing, Seller shalldeliver to Escrow Holder a “FIRPTA Certificate” certifying Seller’s non-foreignstatus.

17.                                 Interpretationof Agreement.  Terms, captions,headings and titles of this Agreement are solely for convenience of referenceand shall not affect its interpretation. This Agreement will be construedwithout regard to any presumption or other rule requiring construction againstthe party drafting the document, and shall be construed neither for nor

9

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against Seller orBuyer, but will be given a reasonable interpretation in accordance with theplain meaning of its terms and the intent of the parties hereto. All terms andwords used in this Agreement, regardless of the number or gender in which theyare used, will be deemed to include any other number and any other gender asthe context may require. This Agreement will have no binding force or effectuntil its execution and delivery by both Seller and Buyer.

18.                                 CounterpartExecution.  This Agreement may beexecuted in one or more counterparts, each of which shall be deemed anoriginal. Signature by facsimile shall be binding as if an original.

19.                                 Recordation.  Neither Seller nor Buyer shall record thisAgreement or a memorandum or notice of this Agreement in any public officewithout the express written consent of the other party. A breach by eitherparty of this covenant shall constitute a material default under thisAgreement.

20                                    ParagraphHeadings.  The paragraph headingscontained in this Agreement are for convenience only and shall in no wayenlarge or limit the scope or meaning of the paragraph.

21.                                 FurtherAssurances.  Buyer and Seller agreeto execute all documents and instruments reasonably required to consummate thetransaction contemplated by this Agreement.

22.                                 Severability.  If any portion of this Agreement is held tobe unenforceable by a court of competent jurisdiction, the remainder of thisAgreement shall remain in full force and effect.

23                                    IndependentCounsel.  Buyer and Seller eachacknowledge that they have been represented by independent counsel inconnection with this Agreement, they have executed this Agreement with theadvice of counsel and that this Agreement is the result of negotiation betweenthe parties and the advice and assistance of their respective attorneys.

24.                                 NoWaiver.  Except as expressly setforth in this Agreement, no covenant, term or condition of this Agreement shallbe deemed to have been waived by Seller or Buyer unless the waiver is inwriting and executed by the party to be charged.

25.                                 Dischargeand Survival.  The delivery of thedeed by the Seller and its acceptance by the Buyer shall be deemed to be infull performance and discharge of every covenant and obligation on the part ofthe Seller to be performed under this Agreement, except the obligations thatare designated as surviving the Closing or any termination of this Agreement. Noaction shall be commenced after the Closing on any covenant or obligationexcept the obligations designated as surviving Closing or any termination ofthis Agreement.

26.                                 EffectiveDate. This Agreement shall become effective upon the date that it is signedby the later of Seller and Buyer, and is referred to as the “Effective Date.”

IN WITNESSWHEREOF, Seller and Buyer executed this Agreement as of the Effective Date.
| SELLER: | deCODE CHEMISTRY INC.                      |
|---------|--------------------------------------------|
|    | an Illinois corporation                    |
|    |                                       |
|    | By:                                        |   /s/ Chris Tauer |   |
|    | Name:                                      | Chris Tauer |   |
|    | Title:                                     | US Controller |   |
|    | Date of Acceptance:  February 5, 2007 |
|         |                                            |  |  |  |  |

 

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| BUYER: | WOODRIDGE HOLDINGS LLC              |
|--------|-------------------------------------|
|   | An Oregon limited liability company |
|   |                                |
|   |                                |
|   | By:                                 | /s/ Patrick Terrell |   |
|   | Name: Patrick Terrell               |
|   | Its: manager                        |
|   | Dated:  February 2, 2007       |

 

11

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LEGAL DESCRIPTIONOF PROPERTY

THE PROPERTY IS LOCATED IN THE COUNTY OF WILL, STATEOF ILLINOIS, AND IS DESCRIBED AS FOLLOWS:

[To Be Attached]

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EQUIPMENT ANDPROPERTY EXCLUDED FROM SALE

[To Be Attached]

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FORM OF PROMISSORYNOTE

[To Be Attached]

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SPECIAL WARRANTYDEED

[To Be Attached]

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ESTOPPELCERTIFICATE

TENANT:                                                                                                                                         

DATE OF LEASE:                                                                                                                           

AMENDED:                                                                                                                                     

PREMISES:                                                                                                                                     

Re: Lease dated                              ,        , between                                           (“Landlord”), and                                              (“Tenant”).

The undersignedTenant hereby certifies to                                                     ,a                                                     (“Buyer”), as follows:

1.                                       TheTenant is the tenant/lessee under the above-referenced lease (“Lease”) coveringthe above-referenced premises (“Premises”).

2.                                       TheLease constitutes the entire agreement between Landlord and Tenant with respectto the Premises, and the Lease has not been modified, changed, altered oramended in any respect, except as set forth above.

3.                                       Theterm of the Lease commenced on                                              ,        , and, including any currentlyexercised option or renewal term, will expire on                                              ,        . Tenant has acceptedpossession of the Premises and is the actual occupant in possession and has notsublet, assigned or hypothecated Tenant’s leasehold interest therein. Allimprovements to be constructed on the Premises by Landlord have been completedand accepted by Tenant and any tenant construction allowances have been paid infull by Landlord.

4.                                       Asof the date of this Estoppel Certificate, there exists no breach or default,nor state of facts which, with notice, the passage of time, or both, wouldresult in a breach or default on the part of either Tenant or Landlord.

5.                                       Tenantis currently obligated to pay annual rental of $                    in monthly installments of $                                ,and monthly installments of annual rental have been paid through                            ,        . No other rent has been paidin advance and Tenant has no claim or defense against Landlord under the Leaseor otherwise and is asserting no offsets or credits against either the rent orLandlord. Tenant has no claim against Landlord for any security or otherdeposits, except $                          which was paid pursuant to the Lease.

6.                                       Tenanthas no option or preferential right to purchase all or any part of the Premises(or the real property of which the Premises are a part) nor any other right orinterest with respect to the Premises, other than as Tenant under the Lease.

7.                                       Tenanthas no option, right of first offer or right of first refusal to lease oroccupy any other space within the property of which the Premises are a part,except as set forth in the Lease. Tenant has no right to renew or extend theterms of the Lease, except as expressly set forth in the Lease.

8.                                       Tenanthas made no agreement with Landlord nor any agent, representative or employeeof Landlord concerning free rent, partial rent, rebate of rental payments orany other type of rental or other concession, except as expressly set forth inthe Lease.

9.                                       Therehas not been filed by or against Tenant a petition in bankruptcy, voluntary orotherwise, any assignment for the benefit of creditors, any petition seekingreorganization or arrangement under the bankruptcy laws of the United Stateswith respect to Tenant.

This EstoppelCertificate is made to Landlord and Buyer in connection with the

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prospectivepurchase by Buyer, or Buyer’s assignee, of that certain real propertycontaining the Premises. This Estoppel Certificate may be relied on by Landlordand Buyer, and any other party who acquires an interest in the Premises, inconnection with such purchase or any person or entity which may finance suchpurchase.
| Dated:              |                                        ,  200      . |
|---------------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                |
|                |
| “TENANT”: |                                                                                                                                                                                                                                                                                  |   |
|                |                                                                                                                                                                                                                                                                                  |   |
|                |                                                                                                                                                                                                                                                                                  |
|                |                                                                                                                                                                                                                                                                                  |
|                | By:                                                                                                                                                                                                                                                                                   |  - DO NOT SIGN  --- EXHIBIT ONLY       |   |
|                | Name:                                                                                                                                                                                                                                                                                 |   |   |
|                | Title:                                                                                                                                                                                                                                                                                |   |   |
|                     |                                                                                                                                                                                                                                                                                       |  |  |  |  |  |  |  |

 

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ASSIGNMENT ANDASSUMPTION OF LEASES AND SECURITY DEPOSITS

FOR VALUABLECONSIDERATION, the receipt of which is hereby acknowledged,                                                                                                                ,a                                                                 (“Assignor”), hereby assigns and transfers to                                                         ,a                                                (“Assignee”), all of Assignor’s right, title and interest in and to all leasesand security deposits set forth on Schedule “2” attached hereto andincorporated herein by this reference (collectively, the “Leases”), pertainingto the real property described on Schedule “1” attached hereto andincorporated herein by this reference (the “Property”).

NOW, THEREFORE,Assignor hereby assigns, sells, transfers, sets over and delivers to Assigneeall of Assignor’s estate, right, title and interest in and to the Leases, andAssignee hereby accepts the Leases in their current “AS-IS/WHERE-IS” condition “WITHALL FAULTS” as of the date of this assignment.

Assignee herebyassumes the performance of all of the terms, covenants and conditions imposedupon Assignor under the Leases accruing or arising on or after the date hereof.

Assignee herebyagrees to indemnify, defend and hold harmless Assignor from and against anyclaims (including reasonable attorneys’ fees and costs, and court costs) by anylessee/tenant under the Leases by reason of Assignee’s failure to perform itsobligations under the Leases, including Assignee’s obligations with respect tothe security deposits assigned to Assignee hereunder.

In the event ofthe bringing of any action or suit by a party hereto against another partyhereto by reason of any breach of any of the covenants, conditions, agreementsor provisions on the part of the other party arising out of this assignment,then in that event the prevailing party shall be entitled to have and recoverof and from the other party all costs and expenses of the action or suit,including reasonable attorneys’ fees and costs, and court costs.

This assignmentshall be binding upon and inure to the benefit of the successors, assigns,personal representatives, heirs and legatees of the respective parties hereto.

This assignmentshall be governed by, interpreted under, and construed and enforced inaccordance with, the laws of the State of Illinois.

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This assignmentmay be executed in one or more counterparts, each of which shall be anoriginal, and all of which when taken together shall constitute one and thesame instrument.

IN WITNESSWHEREOF, Assignor and Assignee executed and delivered this assignment as ofthis                    day of                                              ,200    .
| “ASSIGNOR”: |   |   | ,      |
|-----------------------|--------|--------|--------|
|                  |   | a      |   |   |
|                  |   |   |   |   |
|                  |   | By:    |   |   |
|                  |   | Name:  |   |   |
|                  |   | Title: |   |   |
|                  |
|                  |
| “ASSIGNEE”: |   | ,      |
|                  |
|                  |   | a      |   |   |
|                  |   |   |   |   |
|                  |   |   |   |   |
|                  |   | By:    |   |   |
|                  |   | Name:  |   |   |
|                  |   | Its:   |   |   |
|                       |        |        |        |  |  |  |  |  |  |  |  |  |  |

 

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LEGAL DESCRIPTIONOF PROPERTY

[To Be Attached]

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LIST OF LEASES ANDSECURITY DEPOSITS

[To Be Completed]

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ASSIGNMENT ANDASSUMPTION OF SERVICE CONTRACTS

FOR VALUABLECONSIDERATION, the receipt of which is hereby acknowledged,                                                                                                                     ,a                                                                 (“Assignor”), hereby assigns and transfers to                                                                  ,a                                      (“Assignee”), all of Assignor’s right, title and interest in and to all servicecontracts and agreements set forth on Schedule “2” attached hereto andincorporated herein by this reference (collectively, the “Service Contracts”),pertaining to the real property described on Schedule “1” attachedhereto and incorporated herein by this reference (the “Property”).

NOW, THEREFORE,Assignor hereby assigns, sells, transfers, sets over and delivers to Assigneeall of Assignor’s estate, right, title and interest in and to the ServiceContracts, and Assignee hereby accepts the Service Contracts in their current “AS-IS/WHERE-IS”condition “WITH ALL FAULTS” as of the date of this assignment.

Assignee herebyassumes the performance of all of the terms, covenants and conditions imposedupon Assignor under the Service Contracts accruing or arising on or after thedate hereof.

Assignee herebyagrees to indemnify, defend and hold harmless Assignor from and against anyclaims (including reasonable attorneys’ fees and costs, and court costs) underthe Service Contracts by reason of Assignee’s failure to perform itsobligations under the Service Contracts.

In the event ofthe bringing of any action or suit by a party hereto against another partyhereto by reason of any breach of any of the covenants, conditions, agreementsor provisions on the part of the other party arising out of this assignment,then in that event the prevailing party shall be entitled to have and recoverof and from the other party all costs and expenses of the action or suit,including reasonable attorneys’ fees and costs, and court costs.

This assignmentshall be binding upon and inure to the benefit of the successors, assigns,personal representatives, heirs and legatees of the respective parties hereto.

This assignmentshall be governed by, interpreted under, and construed and enforced inaccordance with, the laws of the State of                                    .

----

This assignmentmay be executed in one or more counterparts, each of which shall be anoriginal, and all of which when taken together shall constitute one and thesame instrument.

IN WITNESSWHEREOF, Assignor and Assignee executed and delivered this assignment as ofthis                 day of                                     ,200       .
| “ASSIGNOR”: |   |   | ,      |
|-----------------------|--------|--------|--------|
|                  |   | a      |   |   |
|                  |   |   |   |   |
|                  |   |   |   |   |
|                  |   | By:    |   |   |
|                  |   | Name:  |   |   |
|                  |   | Title: |   |   |
|                  |
|                  |
| “ASSIGNEE”: |   | ,      |
|                  |   | a      |   |   |
|                  |   |   |   |   |
|                  |   |   |   |   |
|                  |   | By:    |   |   |
|                  |   | Name:  |   |   |
|                  |   | Its:   |   |   |
|                       |        |        |        |  |  |  |  |  |  |  |  |  |  |

 

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FIRPTA CERTIFICATE

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LOCATION OF GROUNDLEASE PARCEL

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