Exhibit 10.55


 


AGREEMENT
FOR SALE OF REAL ESTATE


(735 Airport Road)


 


This Agreement for Sale of Real Estate (hereinafter referred to as the “Agreement”)
is made and entered into on the 15th day of November,
2005 (the “Effective Date”),


 


BETWEEN


 


735 AIRPORT ROAD, L.L.C., a New Jersey
limited liability company,


 


whose mailing address is 1195 Airport Road, Unit 6B, Lakewood, New
Jersey 08701 (hereinafter referred to as “Seller”),


 


AND


 


VIVUS REAL ESTATE
LLC, a New Jersey limited liability company,


 


whose address is c/o Vivus, Inc., 1172 Castro Street, Mountain
View, California 94040 (hereinafter referred to as “Buyer”).


 


1.                                      Purchase Agreement.  Seller
agrees to sell, and Buyer agrees to purchase, the Property described in Section 2
of this Agreement.


 


2.                                      Property Subject to This
Agreement.  The property to be sold pursuant to this
Agreement (the “Property”) consists of the real property, and all of
Seller’s rights relating thereto, commonly known as 735 Airport Road, in the
Township of Lakewood, County of Ocean, and State of New Jersey (the “Land”),
together with all buildings and improvements thereon, and all and singular the
rights, benefits, privileges, easements, tenements, hereditaments, and
appurtenances thereon or in anywise appertaining to the real property,
including any and all mineral rights, development rights, water rights and the
like; and all right, title, and interest of Seller, if any, in and to all
strips and gores and any land lying in the bed of any street, road or alley,
open or proposed, adjoining the real property. 
The Land is designated on the municipal tax map of the Township of
Lakewood as Block 1160.01 Lot 229, and is more fully described in Exhibit A
attached hereto and made a part hereof.  The Property includes:


 


(i)                                     the
buildings, parking areas, improvements, fixtures and landscaping now situated
on the Land (the “Improvements”); and


 


(ii)                                  any and all furniture, personal property,
machinery, apparatus and equipment owned by Seller and currently used in the
ownership, operation, repair and 


 





















 


maintenance of the Property (collectively the “Personal Property”),
but expressly excluding any property owned by any tenant of the Property; and


 


(iii)                               all assignable warranties and guaranties (if
any) issued in connection with the Improvements or the Personal Property; and


 


(iv)                              all
transferable consents, authorizations, variances or waivers, licenses, permits,
and approvals from any governmental or quasi governmental agency, department,
board, commission, bureau or any other entity or instrumentality in respect of
the Improvements; and


 


(v)                                 to the extent transferable, all of Seller’s
right, title, and interest in and to all intangible personal property related
to the Property, including but not limited to the plans and specifications, surveys,
engineering reports and other
architectural engineering drawings relating to the Improvements, to the extent
that such property is in Seller’s possession or control.


 


3.                                      Purchase Price.  The
purchase price of the Property (the “Purchase Price”) is Three Million
One Hundred Fifty-Five Thousand Five Hundred Fifty-Five and 00/100 Dollars
($3,155.555.00).


 


4.                                      Payment of Purchase Price.  Buyer will pay the Purchase Price as follows:


 


	
  (a)

  	
   

  	
  Upon execution of this Agreement, Buyer
  shall deposit with the Escrow Agent (the “Deposit”)

  	
   

  	
  $

  	
  157,777.75

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  Balance to be paid at closing of title, in
  cash or by electronic wire transfer (subject to adjustments, as provided in Section 18
  of this Agreement).

  	
   

  	
  $

  	
  2,997,777.25

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Total:

  	
   

  	
  $

  	
  3,155,555.00

  



 


5.                                      Deposit Moneys.  The Deposit will be held in trust by
Lindabury, McCormick & Estabrook, P.A. (“Escrow Agent”), in an
interest-bearing trust account.  Escrow
Agent shall deliver the Deposit to Buyer or Seller, as the case may be, under
the following conditions:


 


(a)                                  To
or for the benefit of Seller at the Closing, in which case the interest accrued
on the Deposit shall be paid to Seller and credited against the Purchase Price;
or


 


(b)                                  Subject
to Section 12, if this Agreement is terminated for any reason, then Buyer
shall make a written demand (a “Deposit Demand”) upon Escrow Agent for
the release of the Deposit, and Escrow Agent shall, subject to Seller’s right,
if applicable, to reimbursement of Seller’s Reimbursed Expenses under Section 16(c),
promptly release the Deposit to Buyer.


 


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It is agreed that the duties of Escrow Agent
are only as specifically provided in this Agreement, and subject to the
provisions of this Section 5, are purely ministerial in nature, and that
Escrow Agent will incur no liability whatsoever, except for willful misconduct
or gross negligence, so long as Escrow Agent has not acted in bad faith.  Without limiting the generality of the
foregoing in any way, Buyer and Seller (i) each releases Escrow Agent from
any act done or omitted to be done by Escrow Agent in good faith in the
performance of its duties under this Agreement; and (ii) each acknowledges
and agrees that (a) Escrow Agent is and will remain qualified to serve as
Escrow Agent even though it and will continue to serve as legal counsel to
Seller; (b) Escrow Agent will be entitled to assume that all copies of any
Deposit Demands or other written materials and signatures thereon are genuine;
and (c) Escrow Agent shall not, except in the event of its own willful
misconduct or gross negligence, have any liability or responsibility for giving
any notice required by the terms of this Agreement or reviewing or adjudging
the sufficiency or adequacy of any Deposit Demand, notice or other written matter,
and/or failure to release the Deposit.


 


6.                                      Time and Place of Closing.  The closing of title (the “Closing”)
shall occur at 10:00 a.m. on a date mutually agreed upon by the parties
but in any event no later than December 31, 2005 (the “Closing Date”).  The Closing will be held at the offices of
Buyer’s legal counsel, counsel to Buyer’s Lender (as defined in Section 38)
or such other place as may be agreed upon by the parties.


 


Mutual Conditions.  In addition to all other conditions set forth
herein, the obligation of Seller, on the one hand, and Buyer, on the other
hand, to consummate the transactions contemplated hereunder shall be contingent
upon the following:


 


(a)                                  The
other party’s representations and warranties contained herein shall be true and
correct in all material respects as of the date of this Agreement and the
Closing Date, without giving effect to any knowledge based qualifications.


 


(b)                                 As
of the Closing Date, the other party shall have performed its obligations
hereunder and all deliveries to be made at Closing have been tendered.


 


(c)                                  There
shall exist no pending or threatened, actions, suits, arbitrations, claims,
attachments, proceedings, assignments for the benefit of creditors, insolvency,
bankruptcy, reorganization or other proceedings, pending or threatened against
the other party that would materially and adversely affect the operation or
value of the Property or the other party’s ability to perform its obligations
under this Agreement or that seeks to restrain or prohibit, or obtain damages
on a discovery order.


 


(d)                                 All
other conditions set forth in this Agreement to the other party’s obligation to
close shall have been satisfied.


 


(e)                                  Simultaneous
with the Closing under this Agreement, closing shall occur with respect to the
sale by 745 Airport Road, L.L.C. (“745 LLC”) to Buyer or an entity
designated by Buyer (the “745 Purchaser”) of the real property owned by
745 LLC, commonly known as 745 Airport Road, Lakewood Township, New Jersey
(Block 1160.01 Lot 232)(the 


 


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“745
Property”), pursuant to an Agreement for Sale of Real Estate bearing even
date herewith (the “745 Airport Road Transaction”).  The parties expressly acknowledge and agree
that (i) Seller shall have no obligation to convey title to the Property
hereunder, and may terminate this Agreement, if, for any reason other than the
default of 745 LLC, the closing of the 745 Airport Road Transaction does not
occur on or before the Closing Date; and (ii) Buyer shall have no obligation
to close title to the Property hereunder, and may terminate this Agreement, if,
for any reason other than the default of 745 Purchaser, the closing of the 745
Airport Road Transaction does not occur on or before the Closing Date.


 


7.                                      Transfer
of Ownership.  At the Closing, Seller
will transfer ownership and possession of the Property to Buyer, subject only
to the Permitted Exceptions.  Seller will
deliver to Buyer, a properly executed Deed substantially in the form of Exhibit C
hereto, executed and acknowledged by Seller, conveying to Buyer good and
marketable fee simple title to the Property, subject only to the Permitted
Exceptions, and an Affidavit of Title in customary form, subject to such
modifications as Buyer’s title insurance company may reasonably require.  Seller will also deliver a Foreign Investment
in Real Property Tax Act (“FIRPTA”) affidavit in customary form.  Seller will also deliver a Bill of Sale in the form of Exhibit D
attached hereto executed and acknowledged by Seller, vesting in Buyer good
title in and to the property and rights described therein, free of any claims.


 


Seller shall
also deliver to Buyer the following:


 


(i)                                     Evidence of the authority of the person or
persons signing documents on behalf of Seller reasonably satisfactory to Buyer,
its counsel, and its title company.


 


(ii)                                  At the Closing, Seller shall deliver to Buyer
originals of all leases, all lease files, maintenance records, warranties,
plans and specifications, licenses, permits, certificates of occupancy, copies or
originals of all contracts, and copies of correspondence with tenants and
suppliers, all advertising materials, booklets, keys, and all other items used
in connection with the operation of the Property, to the extent that same exist
and are in Seller’s possession or under its control.


 


(iii)                               A settlement statement executed on behalf of
Seller.


 


(iv)                              A
State of New Jersey Seller’s Residency Certification/Exemption form executed on
behalf of Seller.


 


(v)                                 An assignment of all service contracts
applicable to the Property or, if Buyer elects by written notice to Seller to
have Seller terminate such service contracts, then evidence that such service
contracts have been terminated.


 


(vi)                              A
properly completed 1099-S Reporting Form.


 


(vii)                           An
instrument executed by Owner and Vivus, Inc. which terminates the lease
between Owner and Vivus, Inc. covering the Property (the “Vivus Lease”).


 


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(viii)                        An
instrument sufficient to transfer any assignable warranties relating to the
Property.


 


(ix)                                Such other documents, certificates and
instruments reasonably necessary in order to effectuate the transaction
described herein.


 


8.                                      Surrender
of Vivus Letter of Credit.  Pursuant to the Vivus Lease, Seller is the
beneficiary of Irrevocable Standby Letter of Credit #3030583 in the
amount of $3,324,143, issued by Bank of America for the account of Vivus, Inc.
(the “Vivus Letter of Credit”). 
The parties acknowledge that Buyer intends to use a portion of the cash
deposited by Buyer with Bank of America to collateralize its reimbursement
obligations in respect of the Vivus Letter of Credit (the “Cash Collateral”),
to pay a portion of the Purchase Price. 
In order to facilitate such use of the Cash Collateral by Buyer, Seller
agrees that it will deliver the original Vivus Letter of Credit to Buyer,
without any draw thereon having been made (except as expressly permitted
thereunder), within three (3) business days following Seller’s receipt
from Buyer of a written notice (the “Letter of Credit Surrender Notice”)
which (i) states that all conditions precedent to Buyer’s obligation to
close title to the Property have been satisfied; and (ii) states that all
contingencies to which Buyer’s obligation to close title to the Property are
subject, have been satisfied or waived by Buyer, and (iii) sets forth
Buyer’s proposed Closing Date, which shall not be fewer than five (5), nor more
than ten (10), business days from the date of Seller’s receipt of the Letter of
Credit Surrender Notice, but in any event shall not be later than December 31,
2005.  If, subsequent to Seller’s receipt
of the Letter of Credit Surrender Notice, (x) the Closing contemplated in this
Agreement fails to occur, unless such failure results from (I) the default by
Seller of its obligations under this Agreement, or (II) the failure of the 735
Airport Road Transaction to close (as contemplated in Section 6(e)), and
(y) the Vivus Lease Extension (as defined in Section 12) becomes
effective, then Buyer shall cause Vivus, Inc., within three (3) business
days after having received a written demand therefor by Seller, to deliver to
Seller a replacement irrevocable standby letter of credit in the amount of
$3,324,143 containing the same terms and conditions required in the Vivus Lease
(the “Replacement Vivus Letter of Credit”).  Nothing in this Section 8 shall be
deemed to limit the right of Seller to draw under the Vivus Letter of Credit if
and to the extent that such draw is permitted thereunder.


 


9.                                      Personal Property and Fixtures.  The following personal property and fixtures
are included in the sale contemplated herein: 
All fixtures owned by Seller and attached to the Property, including but
not limited to all heating, ventilating, and air conditioning systems and
equipment, hot water heaters and hot water equipment, plumbing systems and
plumbing equipment, electrical equipment, wiring and lighting fixtures,
wall-to-wall carpeting, linoleum, water pumps and softeners, and other fixtures
attached to the building as of the date of this Agreement.  Any personal property owned by any tenant is
not included in this sale.  Prior to the
Closing Date, representatives of Buyer and Seller will jointly develop a list
of the personal property and fixtures belonging to Seller that will be included
on Schedule A to the Bill of Sale.


 


10.                               Physical Condition of the Property.  Subject to the terms of Sections 13 and 15,
the Property is being sold “as is, where is,” without any representation or
warranty whatsoever by Seller, except as expressly set forth in this Agreement.  Except
as expressly set forth in this 


 


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Agreement, Seller does not make any claims or promises
about the condition or value of any of the Property and any implied
representation or warranty is hereby expressly disclaimed by Seller.


 


11.                               [Reserved]


 


12.                               The Vivus Lease Extension.  The Property is presently leased by Vivus, Inc.
from Seller pursuant to the Vivus Lease, which expires on February 15,
2007.  Simultaneously with the execution
of this Agreement, Seller and Vivus, Inc. have executed and delivered a
conditional amendment to the Vivus Lease, which extends the term of the Vivus
Lease until February 15, 2012 (the “Vivus Lease Extension”);
provided, however, that Vivus, Inc.’s obligation under the Vivus Lease
Extension shall be effective only if both of the following occur:  (i) the Closing of the sale of the
Property contemplated in this Agreement fails to occur by December 31,
2005, for any reason whatsoever other than (x) the default by Seller of
its obligations under this Agreement, or (y) the failure of the 745 Airport
Road Transaction to close (as contemplated in Section 6(e)) on the Closing
Date; and (ii) either party terminates the Agreement by sending written
notice of termination to the other party.


 


13.                                 Title to Property.  Seller agrees to transfer, and Buyer agrees
to accept, ownership of the Property free of all mortgages, security interests,
liens, encumbrances, and claims and rights of others, except for the items
listed in Exhibit E annexed hereto and made a part hereof (the “Permitted
Exceptions”).  Title to the Property
must be good and marketable and insurable, at regular rates, by a title
insurance company selected by Buyer authorized to do business in New Jersey,
subject only to the Permitted Exceptions.


 


14.                               Correcting Title Defects.  If the Property does not comply with Section 13 of this Agreement,
except in the case of a mortgage or lien of a definite and ascertainable
amount, which Seller agrees to remove prior to the Closing, then Buyer shall
notify Seller in writing and Seller shall have a period of thirty (30) days
within which to make it comply.  If the
Property still does not comply after that date, then Buyer may (a) terminate
this Agreement, in which case the Deposit, together with all interest earned
thereon, shall be returned to Buyer, or
(b) proceed to Closing with the right to deduct from the Purchase Price
amounts secured by liens of a definite or ascertainable amount which Seller has
not removed.


 


15.                               Risk of Loss.  As between Seller and Buyer, Seller shall be
responsible for any damage to the Property occurring between the Effective Date
and the Closing Date, except for (a) normal wear and tear; and (b) any
damage caused by Buyer, its agents, employees or representatives in conducting
any inspections, tests, and other due diligence activities with respect to the
Property.  Buyer shall be solely liable
for any damage described in clause (b) above.  Seller shall promptly give Buyer written
notice of any damage to the Property, describing such damage, stating whether
such damage is covered by insurance and the estimated cost of repairing such
damage.  In the event that the Property
is damaged prior to the Closing Date, other than due to a cause described in clause
(a) or (b) above, and the cost of repairing such damage is estimated
to exceed $100,000.00, Buyer may (i) terminate this Agreement, in which
case the Deposit, together with all interest earned thereon, shall be refunded
to Buyer, or (ii) proceed under this Agreement, receive any insurance
proceeds (including any rent loss insurance applicable to any period on and
after the Closing Date) due Seller as a result of such damage or 


 


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destruction
and assume responsibility for such repair, and Buyer shall receive a credit at
Closing for any deductible, uninsured or coinsured amount under said insurance
policies.  If such damage is less than $100,000, then Seller shall be entitled to
collect and retain the insurance proceeds and Buyer shall be entitled to a
credit against the Purchase Price equal to the amount of such damage.  In such event, Seller shall have no
obligation to repair the damage.  The
terms of this section shall apply as between Seller and Buyer; nothing in
this section shall be deemed to affect the respective rights and duties of
Seller and Vivus, Inc., under the Vivus Lease.


 


16.                                 Effect
of Termination of Agreement.


 


(a)                                  Default by Seller.  If
this transaction fails to close as a result of the Seller’s default, then Buyer
shall be entitled either (x) to terminate this Agreement and pursue any claim
for money damages which may be available at law, in which case Escrow Agent
shall promptly return the Deposit, together with all interest accrued thereon,
to Buyer, or (y)to pursue the remedy of specific performance; provided,
however, that except in the case of Seller’s willful default, fraud or
intentional misrepresentation, Seller’s monetary liability shall in no event
exceed the lesser of (i) the Purchase Price, or (ii) Seller’s
equity in the Property, defined for purposes of this subsection as the
difference between the fair market value of the Property and the outstanding
principal balance of the mortgage encumbering the Property.  For purposes of this Section 16, “Seller’s
default” shall not include Buyer’s exercise of its termination rights under
Sections 13, 14 or 15, except in the case of Seller’s (x) failure to remove any
mortgage or lien securing a definite or ascertainable amount, or (y) gross negligence
or willful misconduct.


 


(b)                                  Default by Buyer.  If this transaction fails to close due to the
default of Buyer, then (i) the Vivus Lease Extension shall become
effective as provided in Section 12 and the Vivus Lease shall continue in
full force and effect in accordance with its terms (including the Vivus Lease
Extension and any other amendments to the Vivus Lease), (ii) Vivus will
deliver to Seller, the Replacement Vivus Letter of Credit as provided in Section 8,
(iii) Buyer shall be responsible for Seller’s actual expenses incurred in
the negotiation and performance of this Agreement, including but not limited to
reasonable attorneys’ fees and out-of-pocket disbursements (“Seller’s
Reimbursed Expenses”); and (iv) Escrow Agent shall promptly return to
Buyer, the Deposit, together with all interest accrued thereon, minus Seller’s
Reimbursed Expenses.


 


(c)                                  Termination
Without Default.  If this transaction
fails to close for any reason other than (x) the default by either party (which
is covered by clause (a) or clause (b) of this section) of its
obligations under this Agreement, or (y) the failure of the 735 Airport Road
Transaction to close (as contemplated in Section 6(e)), then (i) the
Vivus Lease Extension shall become effective as provided in Section 12 and
the Vivus Lease shall continue in full force and effect in accordance with its
terms (including the Vivus Lease Extension and any other amendments to the
Vivus Lease), (ii) Vivus will deliver to Seller, the Replacement Vivus
Letter of Credit as provided in Section 8, and (iii) Escrow Agent
shall promptly return the Deposit, together with all interest accrued thereon,
to Buyer.


 


17.                               Assessments for Municipal Improvements.  Certain municipal improvements such as
sidewalks and sewers may result in the municipality charging property owners to
pay for 


 


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the
improvement.  Any unpaid charges
(assessments) against the Property for work completed prior to the Closing Date
will be paid by Seller at or before the Closing.  If the improvement is completed, but the
amount of the charge (assessment) is not determined, then Seller will pay an
estimated amount at the Closing.  When
the amount of the charge is finally determined, Seller will promptly pay any
deficiency to Buyer (if the estimate proves to have been too low), or Buyer
will promptly return any excess to Seller (if the estimate proves to have been
too high).  This provision shall survive Closing.


 


18.                               Real Estate Taxes; Rents, and Other
Adjustments at Closing.


 


(a)                                  Real Estate Taxes.  Real estate taxes and assessments will be
apportioned between Buyer and Seller as follows.  Buyer shall receive a credit for any accrued
but unpaid real estate taxes applicable to any period before the Closing Date,
even if such taxes are not yet due and payable. 
If the amount of any such taxes has not been determined as of the
Closing Date, then such credit shall be based upon 110% of the most recent
ascertainable taxes and shall be re-prorated upon issuance of the final tax
bill.  Seller shall receive a credit for
any unaccrued but paid real estate taxes applicable to any period subsequent to
the Closing Date, even if such taxes are not yet due and payable.  This
provision shall survive Closing.


 


(b)                                  Base Rent and Other Charges.  (i)  Base rent, additional rent,
insurance, standby fire protection charges, and charges (if any) under any
service contracts assigned to Buyer shall be apportioned and adjusted between
Seller and Buyer as of 11:59 p.m. of the day preceding the Closing Date
(the “Adjustment Date”).  Not
fewer than five (5) business days prior to the Closing Date, Seller shall
provide Buyer with a statement of prepaid rents and uncollected rents  At the Closing, Seller shall pay over to
Buyer any base or additional rents collected by Seller which pertain to any
period of time commencing with the Closing Date.


 


(ii)                                  Base rent and payments for insurance and
standby fire protection shall be prorated as of the Closing Date based upon the
following per diem charges:


 


	
  Base Rent

  	
   

  	
  $619.18 per
  day

  
	
  Insurance

  	
   

  	
  $43.84 per
  day

  
	
  Standby Fire
  Protection

  	
   

  	
  $6.58 per
  day

  



 


(iii)                               If,
pursuant to this Section 18(b), any apportionment is made based on an
estimate, and, if, at any time after such apportionment is made, actual figures
become available, then a reapportionment shall be made based on such actual
figures, and a corresponding payment shall be made, as appropriate.


 


(iv)                              The
provisions of this Section 18(b) shall survive Closing.


 


(c)                                  Closing Expenses.  Seller shall pay the New Jersey Realty
Transfer Fee, as well as all filing fees and costs with respect to the
obtaining of the discharge and satisfaction of any and all liens.  Each party shall be responsible for paying
the fees and costs of its own legal counsel. 
The parties shall pro-rate any and all other items of income and expense
in the manner 


 


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set forth in
this Agreement or otherwise adjusted on a pro-rata per diem basis calculated on
the entire yearly charge.


 


(d)                                  Security Deposit.  Simultaneously with the Closing, Seller shall
transfer Vivus, Inc.’s security deposit of $33,667 to Buyer or, at Buyer’s
written direction, to Vivus, Inc., by electronic wire transfer.


 


In the event
that an error is made in any closing adjustment, either party may notify the
other of such error at any time within six (6) months following the
Closing Date and the parties shall equitably resolve the error within thirty
(30) days following the delivery of the notice. 
This provision shall survive Closing.


 


19.                               Possession. 
At the Closing, Buyer will be given possession of the Property, subject only to
Permitted Exceptions.


 


20.                               [Reserved]


 


21.                               Parties Liable.  This Agreement is binding upon all parties
who sign it and all who succeed to their rights and responsibilities.


 


22.                               Notices. 
All notices, requests, demands,
and other communications required or permitted under this Agreement shall be in
writing and shall be given to the recipient at its address specified below or
at such other address as shall be designated by such recipient in conformity
with this section.  All notices,
requests, demands, and other communications provided for hereunder shall be
effective and received (a) if given by mail, then three (3) days
after placing same in the United States certified mail, return receipt
requested, postage prepaid; (b) if given by Federal Express or other
nationally-recognized overnight delivery service, then upon receipt by the
recipient; or (c) if given by facsimile, upon the mechanical confirmation
of delivery.


 


	
  If to Seller:

  	
   

  	
  735 Airport Road, L.L.C.

  
	
   

  	
   

  	
  1195 Airport Road, Unit 6B

  
	
   

  	
   

  	
  Lakewood, NJ 08701

  
	
   

  	
   

  	
  Attention: Mr. Ronald Bennett, Sr.

  
	
   

  	
   

  	
   

  
	
  with copy to:

  	
   

  	
  Robert S. Burney, Esq.

  
	
   

  	
   

  	
  Lindabury, McCormick & Estabrook,
  P.A.

  
	
   

  	
   

  	
  53 Cardinal Drive

  
	
   

  	
   

  	
  P.O. Box 2369

  
	
   

  	
   

  	
  Westfield, NJ 07091-2369

  
	
   

  	
   

  	
   

  
	
  If to Buyer:

  	
   

  	
  Vivus Real Estate LLC

  
	
   

  	
   

  	
  c/o Vivus, Inc.

  
	
   

  	
   

  	
  1172 Castro Street

  
	
   

  	
   

  	
  Mountain View, CA 94040

  
	
   

  	
   

  	
  Attention: CFO

  



 


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  with copy to:

  	
   

  	
  Samuel M. Mizrahi, Esq.

  
	
   

  	
   

  	
  Windels Marx Lane & Mittendorf,
  LLP

  
	
   

  	
   

  	
  120 Albany Street Plaza

  
	
   

  	
   

  	
  New Brunswick, New Jersey 08901

  



 


Each party may, by notice properly given, change
such party’s address for purposes of receipt of notice.  Notices given by a party’s attorney shall be
deemed notice given by the party.


 


23.                               Brokers.  Each party represents and warrants to the
other that no real estate broker has been involved with the negotiation and
consummation of this Agreement.  Buyer
agrees to indemnify Seller from any claims or liabilities asserted by any real
estate broker or agent alleging participation in the transaction contemplated
by this Agreement and claiming authority from Buyer, based upon the actions of
Buyer dealing with, directly or indirectly, any such real estate broker or
agent.  Seller agrees to indemnify Buyer
from any claims or liabilities asserted by any real estate broker or agent
alleging participation in the transaction contemplated by this Agreement and
claiming authority from Seller, based upon the actions of Seller dealing with,
directly or indirectly, any such real estate broker or agent.


 


24.                               1031 Exchange.  Seller reserves the right to include this
transaction as part of a tax deferred exchange under Section 1031 of the
Internal Revenue Code of 1986, as amended, for the benefit of Seller, at no
cost, expense or liability to Buyer. 
Buyer agrees to cooperate with the Seller in any manner necessary to
facilitate such exchange, including but not limited to, the execution of any
and all documents (subject to the reasonable approval of Buyer’s counsel) as
are reasonably necessary in connection therewith. Buyer understands and
acknowledges that the Seller is participating in a Tax Deferred Exchange
Program with Congress Exchange.  Buyer
further agrees and acknowledges that in accordance with the aforesaid Tax
Deferred Exchange Program, Seller may be required to assign its rights and
obligations under this Contract to Congress Exchange to facilitate such
exchange.


 


25.                               Assignment
by Buyer.  Buyer may, in its
discretion, assign its rights and delegate its duties under this Agreement to a
legal entity in which Buyer has an interest; provided, however, that such
assignment shall not operate to release Buyer from its duties under this
Agreement.


 


26.                               ISRA Compliance.  Buyer
will cause Vivus, Inc. to deliver to Seller, prior to the Closing Date,
evidence of compliance (“ISRA Compliance”) with the New Jersey
Industrial Site Recovery Act (“ISRA”) with respect to the transaction
contemplated in this Agreement, in the form of either (a) an approved “negative
declaration,” (b) a “no further action letter,” (c) a letter from the
New Jersey Department of Environmental Protection (“NJDEP”) approving a “de minimis quantity exception,” or (d) a
“remediation agreement” approved by NJDEP. 
In the event that Buyer is unable to deliver to Seller, prior to the
Closing Date, evidence of ISRA Compliance in one of the forms described in
clauses (a) through (d) herein, Buyer may adjourn the Closing Date
for a reasonable period of time sufficient to permit Vivus, Inc. to obtain
evidence of ISRA 


 


10





















 


Compliance in one of the forms described in
clauses (a) through (d) of this Section, provided, that such
adjournment shall not exceed 120 days.


 


27.                               Seller’s
Representations And Warranties.  Seller represents and warrants to
Buyer as follows, all of which shall be true and correct on the Closing Date:


 


(a)                                  Except
as set forth on Exhibit F, (i) there is no current or pending
litigation against Seller or the Property of which Seller has received written
notice, and (ii) to the best of Seller’s knowledge, there is no litigation
threatened against Seller or the Property, in each case, which, if determined
adversely to Seller, could reasonably be expected to adversely affect the
Property.


 


(b)                                 Except as set forth on
Exhibit G, there are no office supply, maintenance or utility
contracts, or any other agreements affecting the Property.


 


(c)                                  As of the date of
this Agreement, the only party with any rights to occupy any portion of the
Property is Vivus, Inc. under the Vivus Lease.


 


(d)                                 Except as disclosed on
Exhibit H, Seller has not received any written notice from any
governmental authority or other person, and Seller has no knowledge of the
violation of any law or ordinance regulating use of the Property, including
those dealing the environment, which has not been cured by Seller to the
satisfaction of the issuer.


 


(e)                                  Seller
has the full right, power and authority and has obtained any and all consents
required to execute and deliver this Agreement and all of the documents to be
delivered by Seller at the Closing, and to consummate or cause to be
consummated the transactions contemplated in this Agreement.  This Agreement has been, and all of the
documents to be delivered by Seller at the Closing will be, authorized and
properly executed and constitutes, or will constitute, as appropriate, the
valid and binding obligation of Seller, enforceable in accordance with their
terms.


 


(f)                                    There is no
agreement to which Seller is a party or, to Seller’s
knowledge, binding on Seller which is in conflict with this Agreement.


 


(g)                                 No
condemnation, eminent domain or similar proceedings are pending, or to Seller’s
threatened, with regard to the Property. 
Seller has not received any notice and has no knowledge of any pending
or threatened liens, special assessments, impositions or increases in assessed
valuations to be made against the Property.


 


28.                               Headings. 
The Section headings of this Agreement are intended only for ease
of reference and are not to be considered in construing the meaning of the
provisions hereof.


 


29.                               No Third Party Beneficiary.  This
Agreement is not intended to give or confer any benefits, rights, privileges,
claims, actions or remedies to any person or entity as a third party
beneficiary.


 


11





















 


30.                               Entire Agreement; Amendments.  This
Agreement embodies the entire agreement between the parties and supersedes all
prior agreements and understandings relating to the Property.  This Agreement may be amended or supplemented
only by an instrument in writing executed by the party against whom enforcement
is sought.


 


31.                               Time is of the Essence.  Either
party may make time of the essence in the performance of this Agreement upon
fifteen (15) days prior written notice to the other party.


 


32.                               Rule of Construction.  The
parties acknowledge that the parties and their respective counsel have reviewed
and negotiated this Agreement and agree that the normal rule of
construction—that any ambiguities are to be construed against the drafting
party—shall not be employed in the interpretation of this Agreement.


 


33.                               Governing Law.  This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New Jersey, without regard to choice of law principles.


 


34.                               Permits and Inspections.  Buyer, at Buyer’s sole cost and expense,
shall obtain all certificates of occupancy and other permits or certificates
required by law for the conveyance of the Property to Buyer and shall deliver
copies of same to Seller on or before the Closing Date.  Buyer shall make any and all repairs and any
and all alterations required to obtain any of the foregoing; provided, however,
that Buyer shall not be obligated to expend more than $25,000 of Buyer’s own
money to make such repairs.  In the event
that the cost of making such repairs exceeds $25,000, Buyer may terminate this
Agreement; provided, however, that Seller may, at its option, elect to pay for
the cost of the repairs in excess of $25,000, without diminution of, or credit
against, the Purchase Price.


 


35.                               Condemnation.  In the event any proceedings in eminent
domain are threatened or instituted by any body having the power of eminent
domain with respect to the Property or any portion thereof, Buyer may, at its
option, by notice to Seller given within ten (10) business days after
Seller notifies Buyer of such proceedings (and, if necessary, the Closing Date
shall be extended to give Buyer the full ten (10) business days’ period to
make such election):  (i) terminate
this Agreement and the Deposit, together with all interest earned thereon,
shall be immediately returned to Buyer, or (ii) proceed under this
Agreement without reduction in Purchase Price, in which event Seller shall, at
the Closing, assign to Buyer its entire right, title and interest in and to any
condemnation award, and Buyer shall have the right, during the pendency of this
Agreement, to negotiate and otherwise deal with the condemning authority in
respect of such matter, subject to Seller’s approval, which shall not be
unreasonably withheld, delayed or conditioned.


 


36.                               Recording
of Agreement.  Neither party shall
have the right to record this Agreement. 
Any attempt to record this Agreement shall be deemed a default hereunder.


 


37.                               Confidentiality.  Neither party shall make any public
announcement or other disclosure of this Agreement or any information related to this Agreement to third parties, before
the Closing, without the prior written specific consent of the other party;
provided, however, that a party may make disclosure of this Agreement to its
attorneys, consultants, engineers, lenders, 


 


12





















 


creditors, officers, employees and agents as necessary to perform its
obligations hereunder and/or any regulatory authorities, including but not
limited to the United States Securities and Exchange Commission.


 


38.                               Buyer’s
Representations and Warranties.  Buyer
represents and warrants to Seller as follows, all of which shall be true and
correct on the Closing Date  All such
representations are made to the best of Buyer’s knowledge:


 


(a)                                  Buyer has the full
right, power and authority and has obtained any and all consents required to
execute and deliver this Agreement and all of the documents to be delivered by
Buyer at the Closing and to consummate or cause to be consummated the
transactions contemplated hereby.  This
Agreement has been, and all of the documents to be delivered by Buyer at the
Closing will be, authorized and properly executed and constitutes, or will
constitute, as appropriate, the valid and binding obligation of Buyer,
enforceable in accordance with their terms.


 


(b)                                 There
is no agreement to which Buyer is a party or, to Buyer’s
knowledge, binding on Buyer which is in conflict with this Agreement.


 


(c)                                  Buyer
represents and warrants to Seller that Buyer has received a commitment letter
dated August 12, 2005, from Crown Bank, N.A. (“Buyer’s Lender”),
pursuant to which Buyer’s Lender has agreed (subject to the terms of such
commitment letter) to make a purchase money mortgage loan to Buyer in the
principal amount of $5,375,000 to allow Buyer to purchase the Property and the
745 Property (“Buyer’s Financing”). 
Subject to the closing of Buyer’s Financing, Buyer will have the
financial wherewithal to pay the balance of the Purchase Price, i.e.,
$3,155,555.00, at the Closing in accordance with Section 4 of this
Agreement.


 


39.                               Execution
in Counterpart.  This Agreement may
be signed in one or more counterpart copies, and all such copies shall
constitute one and the same instrument. 
Delivery of an executed counterpart of a signature page to this
Agreement by facsimile transmission shall be effective as delivery of a
manually executed counterpart.  Any party
so executing this Agreement by facsimile transmission shall promptly deliver a
manually executed counterpart, provided that any failure to do so shall not
affect the validity of the counterpart executed by facsimile transmission.


 


[End of text of Agreement – Signature Page and
Exhibits follow]


 


13





















 


Counterpart
Signature Page


 


IN WITNESS WHEREOF, the parties have executed
and delivered this Agreement on the date and year first written above.


 


 


	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  735 AIRPORT ROAD, L.L.C.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ronald Bennett, Sr.

  
	
   

  	
  Ronald
  Bennett, Sr.

  
	
   

  	
  Managing
  Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BUYER:

  
	
   

  	
   

  
	
   

  	
  VIVUS REAL ESTATE LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Timothy E. Morris

  	
   

  
	
   

  	
  Name:

  	
  Timothy E. Morris

  	
   

  
	
   

  	
  Title:

  	
    Chief
  Financial Officer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ESCROW AGENT:

  
	
   

  	
   

  
	
   

  	
  LINDABURY, McCORMICK & 

  ESTABROOK, P.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert S. Burney, Esq.

  
	
   

  	
  Robert S.
  Burney, Esq.

  
	
   

  	
  Authorized
  Officer

  
								



 





















 


LIST OF
EXHIBITS


 


	
  Exhibit A

  	
   

  	
  Legal Description of Property

  
	
   

  	
   

  	
   

  
	
  Exhibit B

  	
   

  	
  Leases

  
	
   

  	
   

  	
   

  
	
  Exhibit C

  	
   

  	
  Form of Deed

  
	
   

  	
   

  	
   

  
	
  Exhibit D

  	
   

  	
  Form of Bill of Sale

  
	
   

  	
   

  	
   

  
	
  Exhibit E

  	
   

  	
  Permitted Liens

  
	
   

  	
   

  	
   

  
	
  Exhibit F

  	
   

  	
  Litigation Against Seller

  
	
   

  	
   

  	
   

  
	
  Exhibit G

  	
   

  	
  Contracts

  
	
   

  	
   

  	
   

  
	
  Exhibit H

  	
   

  	
  Notices of Violations

  



 





















 


EXHIBIT A


 


Legal
Description of Property


 


All the real property located in the Township of Lakewood, County of
Ocean, State of New Jersey and more particularly described as follows:


 


BEING known and designated as New Lot 229, Block 1160.01, as shown on a
certain map entitled, “Major Subdivision Lot 41A6, Block 1160, tax map sheets
159, 160, 162, and 163, Lakewood Township, Ocean County, New Jersey, Final
Subdivision Map, Section Two,” Donald W. Smith Associates, P.A. and filed
in the Ocean County Clerk’s Office on October 3, 1984, as Map No. I-1443.


 


BEING further described in accordance with a
survey of the premises by Donald W. Smith Associates, P.A. (Nicholas V.
Coppola, L.S.), dated February 20, 1987, and revised March 4, 1988, as
follows:


 


BEGINNING at an iron pin previously set
marking the most Northeasterly corner of Lot 229 herein described, said pin
being distant South 74 degrees 40 minutes 39 seconds East, a distance of 44.05
feet from a monument previously set at a point of curvature in the Southerly
line of Airport Road (60 feet wide), and from said point of beginning running
thence


 


(1)                                  Along the line
dividing Lots 229 and 219.01 (formerly Lot 228), South 29 degrees 21 minutes 36
seconds West, a distance of 309.24 feet to another iron pin previously set at
the Northeasterly corner of Lot 230; thence


 


(2)                                  Along the line
dividing Lots 230 and 229, North 74 degrees 40 minutes 39 seconds West a
distance of 452.81 feet to a point, this course also being the centerline of a
50 foot wide drainage easement; thence


 


(3)                                  North 15 degrees 19
minutes 21 seconds East, a distance of 300.00 feet to a point in the Southerly
line of Airport Road; thence


 


(4)                                  Along said line,
South 74 degrees 40 minutes 39 seconds East, a distance of 527.81 feet to the
point and place of BEGINNING.


 





















 


EXHIBIT B


 


Leases


 


None.


 





















 


EXHIBIT C


 


Form of
Deed


 


	
   

  	
   

  	
  Prepared by:

  
	
   

  	
   

  	
   

  
	
  DEED

  	
   

  	
   

  
	
   

  	
   

  	
  Robert S. Burney, Esq.

  



 


This
Deed is made as of the          day of                         ,
2005


 


BETWEEN


 


735 AIRPORT ROAD, L.L.C., a New
Jersey limited liability company, whose address is 1195 Airport Road, Unit 6B, Lakewood, New
Jersey 08701, referred to as the “Grantor.”


 


AND


 


VIVUS REAL ESTATE
LLC, a New Jersey limited liability company, whose address is c/o Vivus, Inc.,
1172 Castro Street, Mountain View, CA 94040, referred to as the “Grantee.”


 


The
words “Grantor” and “Grantee” shall mean all Grantors and all
Grantees listed above.


 


Transfer of Ownership.  The
Grantor grants and conveys (transfers ownership of) the property described
below to the Grantee.  This transfer is
made for the sum THREE MILLION ONE HUNDRED FIFTY-FIVE THOUSAND FIVE HUNDRED
FIFTY-FIVE AND No/100 DOLLARS ($3,155.555/00). The Grantor acknowledges receipt
of this money.


 


Tax Map Reference. 
(N.J.S.A. 46:15-1.1)  The property
described herein is also known as Block 1160.01, Lot 229 on the Official Tax
Map of the Township of Lakewood, Ocean County, New Jersey.


 


Property.  The
property consists of the tracts and parcels of land and all the buildings and
structures, if any, thereon located in the Township of Lakewood, County of
Ocean, and State of New Jersey together with all and singular, the tenements,
hereditaments and appurtenances thereunto belonging, or in any wise
appertaining and the reversions, remainder, rents, issues, and profits thereof;
and also, all the estate, right, title, interest, property, claim and demand whatsoever,
as well in law as in equity, of Grantor, of, in or to the tracts and parcels
described on Exhibit A attached hereto and made a part hereof and
every part and parcel thereof, with the appurtenances.


 





















 


BEING the same premises conveyed to the Grantor
herein by Deed of Airport Road Associates, dated July 18, 2002, recorded
by the Clerk of Ocean County on August 9, 2002, in Deed Book 10953 at page 202
et seq.


 


SUBJECT TO easements and restrictions of record and
such matters as an accurate survey would reveal.


 


Type of Deed.  The
Grantor promises that the Grantor has done no act to encumber the
property.  This promise is called a “covenant
as to grantor’s acts” (N.J.S.A. § 46:4-6). 
This promise means that the Grantor has not allowed anyone else to obtain
any legal rights which affect the property (such as by making a mortgage or
allowing a judgment to be entered against the Grantor).


 





















 


Signatures.  The
Grantor signs this Deed as of the date at the top of the first page.  If the Grantor is a corporation, this Deed is
signed and attested to by its proper corporate officers and its corporate seal
is affixed.


 


 


	
  Witnessed by:

  	
   

  	
  735 AIRPORT ROAD, L.L.C.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
  Robert S. Burney

  	
   

  	
  Ronald Bennett, Sr.

  
	
   

  	
   

  	
  Managing Member

  
						



 


	
  STATE OF NEW
  JERSEY

  	
  )

  	
   

  
	
   

  	
  )

  	
  SS.:

  
	
  COUNTY OF OCEAN

  	
  )

  	
   

  



 


I CERTIFY that on                    ,
2005, RONALD BENNETT, SR., personally came before me and acknowledged under
oath, to my satisfaction, that:


 


(a)                                  He signed, sealed and delivered the attached
document as Manager of 735 AIRPORT ROAD, L.L.C., the limited liability company
named in this document; and


 


(b)                                 this document was signed and made by the
limited liability company as its voluntary act and deed by virtue of authority
from its Members.


 


(c)                                  this deed was made for $3,155,555.00 as the
full and actual consideration paid or to be paid for the transfer of
title.  (Such consideration is defined in
N.J.S.A. § 46:15-5).


 


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Robert S. Burney, Esq.

  
	
   

  	
   

  	
  Attorney at law of New Jersey

  



 





















 


	
  DEED

  	
   

  	
  Dated:     , 2005

  
	
   

  	
   

  	
   

  
	
  

  735 AIRPORT ROAD, L.L.C.

   

  Grantor

   

  TO

   

  VIVUS REAL ESTATE LLC

   

  Grantee

  	
   

  	
  Record
  and return to:

  



(168199)


 





















 


EXHIBIT D


 


BILL OF
SALE


 


THIS BILL OF SALE is made on the      
day of                 ,
2005.


 


BY 735 AIRPORT ROAD, L.L.C., whose address is 1195 Airport Road,
Unit 6B Lakewood, New Jersey 08701 (hereinafter
referred to as the “Seller”).


 


TO VIVUS REAL ESTATE LLC, whose address  is c/o Vivus, Inc., 1172 Castro Street,
Mountain View, CA 94040  (together with its successors and assigns,
hereinafter referred to as the “Buyer”).


 


The words “Buyer” and “Seller” include
all Buyers and all Sellers named above.


 


1.                                      Transfer of Ownership.  The
Seller hereby assigns and transfers ownership of the property described below
to the Buyer.  The Seller has been paid
One Dollar ($1.00) for making this transfer.


 


2.                                      Property.  The
property (hereinafter referred to as the “Personal Property”) assigned
and transferred to the Buyer hereby consists of the personal property described
on attached Schedule A owned by Borrower and located at 735 Airport
Road, Lakewood, New Jersey (the “Real Property”):


 


3.                                      Promises by Seller.  The
Seller promises that no one else has any legal rights in the Personal
Property.  If anyone claims to have legal
rights in the Personal Property, then the Seller will indemnify, defend and
hold harmless the Buyer against the claim and will pay all costs, reasonable
attorney fees, and damages.


 


4.                                      Warranties and Covenants;
Survival.  All of the terms, covenants, obligations, and
conditions contained in the Agreement for Sale of Real Estate (the “Agreement”)
between Seller and Buyer, dated November 15, 2005, shall inure to the
benefit of and shall bind the respective parties hereto, and their legal
representatives, successors and assigns, respectively, for a period of 12 months
from the date hereof.


 


5.                                      Signatures.  The
Seller agrees to the terms of this Bill of Sale.  If this Bill of Sale is made by a
corporation, then its proper corporate officers sign and its corporate seal is
affixed.


 


	
  WITNESS:

  	
   

  	
  735 AIRPORT ROAD, L.L.C.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
  Robert S. Burney

  	
   

  	
  Ronald Bennett, Sr.

  
	
   

  	
   

  	
  Managing Member

  
					



 





















 


EXHIBIT E


 


Permitted
Exceptions


 


1.                                       Right
of way for Jersey Central Power and Light Company, as contained in Deed Book
1077, page 471.


 


2.                                       Right
of way for Lakewood Water Company, as contained in Deed Book 1077, page 474.


 


3.                                       50-foot
wide drainage easement shown on Map No. I-1443.


 


4.                                       Right
of way for Jersey Central Power and Light Company, as contained in Deed Book
4377, page 546.


 


5.                                       Right
of way for Jersey Central Power and Light Company, as contained in Deed Book
4688, Page 518.


 





















 


EXHIBIT F


 


Litigation
Against Seller


 


None.


 





















 


EXHIBIT G


 


Contracts


 


1.                                       Landscaping
contract with Veccio’s Environmental.


 


2.                                       Snow plowing
contract with Four Seasons.


 





















 


EXHIBIT H


 


Notices
of Violations


 


None.