EXHIBIT 10.6
AGREEMENT FOR PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
(Xxxxxx Xxxxx Science Center Lot 29)
This Agreement for Purchase and Sale and Joint Escrow Instructions
(this "Agreement") is entered into as of April 30, 2003 (the "Effective Date"),
by and between Neurocrine Biosciences, Inc., a Delaware corporation ("Seller"),
and Pfizer Inc., a Delaware corporation ("Buyer"), who agree and, to the extent
applicable, instruct Chicago Title Company ("Escrow Holder") as follows:
RECITALS
This Agreement is made with reference to and in contemplation of the following
recital of essential facts:
A. Seller is the owner of certain unimproved real property
located in the Xxxxxx Xxxxx Science Center designated Lot 29 thereof, in the
City of San Diego, State of California (the "Real Property"). The legal
description of Real Property is set forth on the attached Exhibit A, as such
legal description may be modified by the Lot Line Adjustment (as defined in
Section 5.8 below).
B. The Real Property is currently utilized by Seller and DPR
Construction, Inc. ("DPR"), and their respective employees and contractors, as a
parking field, with DPR's use thereof subject to the covenants, terms and
conditions of that certain Parking License dated as of July 10, 2002 (the
"Parking License"). Concurrent with the close of escrow pursuant to this
Agreement, Seller and Buyer have agreed to (1) either terminate the Parking
License or assign Seller's interest therein, as licensor, to Buyer, and (2) to
enter into a lease or license for a portion of the Real Property for Seller's
parking requirements associated with its business operations in the building
located on Xxx 00 xx xxx Xxxxxx Xxxxx Xxxxxxx Xxxxxx ("Xxx 00"), which is
adjacent to the Real Property and which Buyer has agreed to purchase from the
current owner thereof.
C. Buyer intends to purchase and Seller intends to sell that
certain Property, consisting of the Real Property and all of Seller's interest
in the rights, improvements and appurtenances thereto, as more fully set forth
in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals, which are hereby
incorporated into this Agreement, and the mutual covenants set forth herein, and
for other good and valuable consideration, the adequacy of which is hereby
acknowledged, the parties hereby agree as follows:
1. Purchase and Sale. In accordance with and subject to the
terms, provisions, and conditions of this Agreement, Seller shall sell, and
Buyer shall buy, Seller's interest in and to (a) the Real Property, (b) all
improvements, now or later constructed in, on or under the Real Property (the
"Improvements"), (c) all appurtenances, streets, easements, rights of way,
cross-use agreements, licenses, or other interests in, on, across, in front of,
abutting, or adjoining the Real Property, and (d) all of Seller's transferable
rights in contracts (but not including any insurance contracts), agreements,
warranties, guarantees, permits and authorizations to the extent applicable to
the operation, maintenance or repair of the Real Property or the Improvements,
if any, and all transferable approvals issued by governmental authorities
respecting the Real Property and interests appurtenant
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thereto and all other intangible property (together with the items referenced in
subpart (c) of this Section 1, the "Intangible Property"), subject to no liens,
restrictions, and encumbrances of record except for those approved in writing by
Buyer or disapproved and subsequently waived by Buyer in accordance with Section
5.3 hereof.
2. Escrow
2.1. Opening of Escrow. Within five (5) business days of
Buyer and Seller's execution of this Agreement, Buyer and Seller shall cause an
escrow ("Escrow") to be opened with Escrow Holder, at 000 X Xxxxxx, Xxx Xxxxx,
Xxxxxxxxxx 00000 for the purpose of facilitating the consummation of this
Agreement. Buyer and Seller shall open the Escrow by delivering to Escrow Holder
a fully executed original (or executed counterparts) of this Agreement and
within five (5) days after the opening of Escrow, Buyer shall deposit by wire
transfer payable to Escrow Holder, or other immediately available funds, in the
amount of One Hundred Thousand Dollars ($100,000.00) (the "Deposit"). Escrow
Holder shall immediately invest the Deposit in an interest bearing account with
a financial institution reasonably satisfactory to Buyer and Seller. All
interest income resulting from the Deposit shall be credited to Buyer. The
provisions of this Agreement constitute instructions to Escrow Holder; provided,
however, Buyer and Seller also shall execute any supplemental mutual
instructions as Escrow Holder may reasonably require, consistent with this
Agreement. Any inconsistency between any such further mutual instructions and
this Agreement must be resolved in a manner consistent with this Agreement and
the provisions of this Agreement prevail unless any such inconsistent provision
is expressly waived by Buyer and Seller in a writing specifically referring to
the fact of the inconsistency and the intent to waive it. Seller shall have no
obligations to Buyer for any acts or omissions of Escrow Holder or any
institution in which the Deposit is invested by Escrow Holder.
2.2. Closing Dates. The Closing of the sale of the
Property to Buyer and the commencement of Buyer's lease or license of a portion
of the Property to Seller for parking (the "Closing") shall occur concurrently
on November 24, 2003 (the "Closing Date") . Escrow Holder shall close Escrow in
accordance with Section 9 below (the "Close of Escrow"), after having received
all of Buyer and Seller's Deliveries in accordance with Sections 7 and 8.
If the Closing does not occur on or before the Closing Date, then Buyer or
Seller, if not in default under this Agreement, may at any time thereafter give
written notice to Escrow Holder to cancel the Escrow, whereupon the Escrow and
the subject transaction become terminated and all monies and documents in Escrow
Holder's possession must be distributed by Escrow Holder in accordance with the
provisions of this Agreement and such additional mutual instructions as the
parties may provide. Such cancellation of Escrow will not prejudice or limit any
legal or equitable rights of Buyer or Seller.
3. Purchase Price. The purchase price payable by Buyer for the
Property is $4,480,000 (the "Purchase Price"), and shall be payable as follows:
3.1. Application of Deposit. The Deposit, plus interest
accrued thereon, shall be applied by Escrow Holder to the Purchase Price for the
Property at the Closing.
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3.2 Payment of Balance of Purchase Price. On or before
the Closing Date, Buyer shall deposit with Escrow Holder cash or other
immediately available funds in the amount of the balance of the Purchase Price,
plus the other sums required of Buyer under this Agreement to pay costs and
prorations.
4. Intentionally Deleted.
5. Conditions Precedent to Obligations of Buyer. Buyer's
obligations under this Agreement are subject to Buyer's written notification to
Seller and Escrow Holder that the following conditions precedent (collectively,
"Buyer's Conditions") have been satisfied, approved, or waived by Buyer,
determined in Buyer's sole discretion, on or before the expiration of ninety
days following the Effective Date (the "Feasibility Study Period"). Unless Buyer
notifies Seller or Escrow Holder in writing on or before the expiration of the
Feasibility Study Period that the applicable Buyer's Conditions have been
satisfied, then (a) such Buyer's Condition(s) shall be deemed to have been
disapproved by Buyer, (b) this Agreement and the Escrow shall be deemed
terminated and neither Buyer nor Seller shall have any further obligation to the
other under this Agreement, (c) all costs associated with the cancellation of
the Escrow shall be shared equally by Buyer and Seller, and (d) Escrow Holder
shall, without requiring any further instructions from Seller, immediately
return the Deposit plus interest accrued thereon to Buyer, less Buyer's share of
cancellation costs, if any, described in (c) above.
5.1. Due Diligence Deliveries By Seller. Buyer hereby
acknowledges that Buyer has received from Chicago Title Company ("Title
Company") prior to the Effective Date, that certain preliminary title report
issued by Title Company, dated as of November 21, 2002, and identified as Order
No. 23038780, incorporating the legal description of the Property (as Parcels 1
and 2 thereof) together with legible copies of all documents referenced therein
and all easements described therein plotted as part of such report (the
"Preliminary Report"). Within ten (10) days following the date hereof, Buyer
shall cause the Preliminary Report to be modified to describe the Real Property
only. Buyer further acknowledges prior receipt of plans, drawings,
specifications and renderings of the Property, as well as the as-built ALTA
survey dated August 6, 1998, which is the most current ALTA survey of the Real
Property prepared for Seller. No later than ten (10) business days following the
Effective Date, Seller will to the extent, known by Seller and/or to the extent
in Seller's possession or reasonably obtainable by Seller, provide Buyer with a
copy of the following documentation ("Due Diligence Deliveries") regarding the
Property:
(a) All soils reports, engineering and
architectural studies, grading plans, topographical maps, feasibility studies,
surveys and similar data concerning the Property;
(b) Property tax bills, utility bills, any
property/casualty insurance policies or certificates of insurance covering or
affecting the Property and similar operating records concerning the Property for
the past three (3) years, including copies of (i) to the extent within Seller's
possession or control, any claims filed against such insurance policies for the
three years preceding and up to the Effective Date, and (ii) any certificate of
insurance evidencing that the Property is currently covered in a
commercially-reasonable amount for loss by fire or other casualty;
(c) Summary of any current or pending litigation
matters relating to the Property, together with all pleadings relating thereto;
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(d) Copies of all contracts currently in full
force and effect, or which are anticipated to be in full force and effect at
such time as operational control of the Property is transferred to Buyer upon
expiration or earlier termination of the Lease, including but not limited to
vendor, service, and/or management contracts affecting the Property, and
non-proprietary reports, in form reasonably acceptable to Buyer, categorizing
and quantifying all Property-related expenses (e.g., utilities, maintenance,
repairs and landscaping) for calendar years 2000, 2001 and 2002 and on a monthly
basis thereafter.
(e) Documentation, invoices, statements and all
other relevant information pertaining to any commercial/land owners'
association(s) and/or common area maintenance agreements relating to calendar
years 2000, 2001 and 2002.
In addition, upon reasonable advance notice Seller shall make available during
normal business hours at Seller's office for Buyer's review all studies,
reports, maps, surveys, permits, licenses and other documents relating to the
Property in Seller's possession, including, but not limited to, any
environmental, health and safety documents relating to the Property ("EHS
Documents") as described on the attached Exhibit B; provided, however, that
Seller shall not make available for Seller's review pursuant to this Section 5.1
and the Due Diligence Deliveries shall not include (i) any confidential internal
memorandum of Seller with respect to the value of the Property or other
documents relating to Seller's or Neurocrine's finances or business (including,
without limitation, balance sheets, internal financial reports, lease proposals
and the operating agreement or partnership agreement of Seller), (ii) any
appraisals of the Property, (iii) any offers or solicitations to purchase, sell
or lease the Property, and (iv) any loan documents of Seller or any
correspondence between Seller and lenders. The documents available for review by
Buyer pursuant to this Section 5.1 are for Buyer's use in connection with
Buyer's investigation of the Property and Buyer acknowledges that some of such
documents were prepared by or at the direction of others and that, except as
otherwise expressly provided in this Agreement, Seller is not making any
representation or warranty of any kind with respect to such documents, including
their accuracy, completeness or suitability for reliance thereon by Buyer.
5.2. Buyer's Investigations. Prior to expiration of the
Feasibility Study Period, Buyer shall determine whether the physical,
developmental, and economic status and feasibility of the Property is acceptable
to Buyer. The matters subject to Buyer's approval under this Section include
engineering studies, soils tests, environmental surveys, physical inspections,
and market analyses as well as Buyer's evaluation of the condition of the
Improvements and the operation and future prospects of the Property and such
other matters as Buyer deems prudent, including by way of example and not
limitation, the right to examine the books and records regarding the Property to
be made available to Buyer in accordance with Section 5.1 above, the right to
conduct the environmental/biological audit described in Exhibit B and such other
environmental/biological studies and investigations regarding the condition of
the Property as shall be reasonably approved by Seller, and the right to,
subject to the conditions set forth below review and approve the zoning, land
use and other governmental regulations, laws, permits and approvals that apply
to the Property. Such inspections, tests and studies concerning the Property
shall be performed at Buyer's sole cost and expense. In the event Buyer
disapproves, in its sole and absolute discretion, any of its inspections, tests
and studies concerning the Property, Buyer shall have the right to terminate
this Agreement upon written notice to Seller at any time prior to the end of the
Feasibility Study Period.
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In order to facilitate Buyer's investigation and analysis under this Section,
Seller grants Buyer (and Buyer's agents, employees, and independent contractors)
the right, subject to the terms and conditions set forth below, to enter the
Property: (1) prior to the expiration of the Feasibility Study Period, to
conduct such inspections, reviews, examinations and tests on the Property as
Buyer deems necessary or desirable to investigate the physical condition or
economic status of the Property; and (2) prior to the Closing Date, for Buyer's
design and pre-construction activities relating to Buyer's intended use and
development of the Property after the Closing Date; provided that such design
and pre-construction activities shall not involve the storage of any materials
or equipment on the Property, nor shall such design or pre-construction
activities include any excavation, grading or construction of improvements to
the Property. Buyer's right to enter the Property at any time prior to the
Closing Date shall be subject to the following terms, covenants and conditions:
(a) Buyer shall not be in default of this Agreement;
(b) Buyer shall provide Seller with at least one (1) business
day's prior notice of any entry on the Property by Buyer for the purposes of
performing any tests or investigations;
(c) The persons or entities performing the inspections on behalf
of Buyer shall be properly licensed and qualified and shall have obtained all
appropriate permits for performing relevant tests on the Property and shall have
delivered to Seller, prior to performing any tests on the Property or entering
upon the Property, evidence of proper and adequate insurance reasonably
satisfactory to Seller;
(d) Seller shall have the right to approve of any proposed
physical testing or drilling of the Property, which approval may be withheld by
Seller in its reasonable discretion;
(e) Seller shall have right to have one (1) or more
representatives of Seller accompany Buyer and Buyer's representatives, agents,
consultants or contractors while they are on the Property;
(f) Any entry by Buyer or its representatives, agents, consultants
or contractors shall not unreasonably interfere with Neurocrine's use of the
Property;
(g) Buyer, at Buyer's sole cost and expense, shall immediately
restore the Property to its condition existing immediately prior to Buyer's
inspections if, for any reason, the Property is not transferred by Seller to
Buyer. Until restoration is complete, Buyer shall take all steps necessary to
ensure that any conditions on the Property created by Buyer's inspections do not
interfere with the normal operation of the Property, or create any dangerous,
unhealthy, unsightly or noisy conditions on the Property. The restoration
obligation contained in this Section 5.2(g) shall survive the termination of
this Agreement;
(h) Buyer shall indemnify and hold Seller harmless from and
against any and all loss or liability resulting from the activities of Buyer,
its employees, agents consultants or contractors upon the Property provided,
however, that Buyer's indemnity hereunder shall not include any losses, cost,
damage or expenses resulting from (a) the acts of Seller or Seller's employees,
agents, contractors or invitees, or (b) the discovery of any pre-existing
condition of the Property; and further provided that Buyer shall have no
obligation to repair any damage caused by Seller's negligence or willful
misconduct or to remediate, contain, xxxxx or control any Hazardous Material or
any defect that
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existed at the Property prior to Buyer's entry thereon. Buyer shall, at its sole
cost and expense, promptly repair any damage caused by such inspections, tests
and studies if, for any reason, the Property is not transferred by Seller to
Buyer. The indemnity obligations contained in this Section 5.2(h) shall survive
Close of Escrow or any termination of this Agreement;
(j) Buyer's inspections, and the results thereof, shall remain
confidential pursuant to the terms of this Agreement.
(k) Seller and Buyer each shall designate one (1) representative
to act for them in scheduling and arranging visits to and inspections of the
Property and in coordinating the delivery of and/or access to the due diligence
materials pursuant to Section 5.1 above. Pursuant to this Section 5.2(k), Buyer
hereby designates Xxx Serbia as its representative and Seller hereby designates
Xxxx Xxxxx as its representative. Each party shall have the right to change its
respective representative by notice to the other party given in accordance with
Section 27.11 below.
5.3. Status of Title. If Buyer disapproves of any of the
exceptions to title identified in the Preliminary Report (each a "Disapproved
Title Exception") before the expiration of the Feasibility Study Period and
evidences its disapproval by giving written notice of such disapproval to Escrow
Holder and Seller within the Feasibility Study Period ("Title Disapproval
Notice"), this contingency shall be deemed to have failed unless, within five
(5) business days after Seller's receipt of the Title Disapproval Notice, Seller
provides Buyer with evidence satisfactory to Buyer, in Buyer's sole discretion,
that each of the Disapproved Title Exceptions will be eliminated on or before
the Closing Date. If Seller fails to timely provide such evidence, Buyer
nevertheless has the right to waive its prior disapproval within fifteen (15)
days after the date Buyer gave its written notice of such disapproval.
Nevertheless, Seller shall use commercially reasonable efforts to eliminate each
Disapproved Title Exception unless and until this Agreement is terminated. In
the event Buyer does not timely deliver a Title Disapproval Notice, Buyer shall
be deemed to have approved the exceptions to title identified in the Preliminary
Report and to have irrevocably waived its right to rely on a Disapproved Title
Exception as a basis for terminating this Agreement or otherwise limit its
obligations hereunder. The Disapproved Title Exceptions shall not include
non-delinquent real property taxes and assessments.
5.4. Representations and Warranties of Seller. The
representations and warranties of Seller contained in Section 17 and elsewhere
in this Agreement were true in all material respects when made, and are true in
all material respects as of the Closing Date and Buyer shall have received a
certificate signed by an authorized officer of Seller to that effect ("Seller's
Date Down Certificate").
5.5. No Adverse Actions. As of the Closing Date, there may
not then be pending or threatened, any litigation, administrative proceeding,
investigation or other form of governmental enforcement, executive or
legislative proceeding in any way related to, directed at or otherwise affecting
the Buyer's development, use, operation or occupancy of the Property which, if
determined adversely, would (i) restrain the consummation of any of the
transactions herein referred to, (ii) declare illegal, invalid, or non binding
any of the covenants or obligations of the parties herein, (iii) have material
and adverse effect on Buyer's ability to operate the Property or (iv) adversely
and materially affect the value of the Property.
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5.6. Release from Contracts. Before the Closing Date,
Seller shall have provided evidence reasonably satisfactory to Buyer that on the
Closing Date, Buyer will not be subject to any property management agreements or
other service contracts applicable to the Property, except as approved in
writing by Buyer. Such evidence reasonably required by Buyer may include a
specific release by the parties to such agreements releasing Buyer and the
Property from any and all claims.
5.7. Owner's Policy. Escrow Holder in its capacity as
title insurer must be unconditionally committed to issue Buyer, in accordance
with Section 11 of this Agreement, as of each of the Closing Date, an ALTA
Extended Coverage Owner's Policy of Title Insurance, insuring Buyer in the
amount of the Purchase Price that title to the Real Property and Improvements,
is vested in Buyer on the Close of Escrow, subject only to those exceptions to
title described in the Preliminary Report other than the Disapproved Title
Exceptions, accompanied by appropriate endorsements regarding, and deletions of,
the standard mechanic's lien and survey exceptions, and such additional
affirmative coverage reasonably required by Buyer (the "Title Policy"). Buyer
shall cooperate reasonably with Seller's and Escrow Holder's (in its capacity as
title insurer) efforts to comply with this Section 5.7, including, without
limitation, timely responding to reasonable inquiry from Seller or Escrow Holder
and executing any documents necessary to issue the title policy as may be
reasonably requested.
5.8. Lot Line Adjustment. Before the expiration of the
Feasibility Study Period, Buyer shall have the right, at Buyer's sole cost and
expense, to obtain all governmental approvals for and arrange with the owner of
Lot 30 for the recording of a lot line adjustment or other document transferring
a portion of Lot 30 to the Real Property, as necessary to increase the square
footage that can be developed on the Real Property as an
administrative/laboratory building to at least 78,000 square feet (calculated in
accordance with the Planned Industrial Development ("PID") regulations governing
the Real Property) (the "Lot Line Adjustment"). Buyer shall have the right to
terminate this Agreement upon written notice to Seller at any time prior to the
end of the Feasibility Study Period if Buyer is unable to timely complete the
Lot Line Adjustment, otherwise such contingency shall be deemed waived as of the
expiration of the Feasibility Study Period.
5.9. Termination or Assignment of Parking License. Buyer
may elect, in Buyer's sole discretion, to cause Seller to terminate the Parking
License upon the Close of Escrow; provided that for such election to be
effective, Buyer must provide written notice to Seller of such election at least
seventy (70) days prior to the Closing Date. If Buyer fails to timely elect to
terminate the Parking License, Seller shall assign its interest in the Parking
License to Buyer, and Buyer shall assume all obligations of Seller thereunder,
as of the Closing Date. As a condition to such assignment, Seller shall be
released by Buyer and DPR from any liability of licensor to the extent accruing
under the Parking License after the assignment thereof to Buyer.
5.10. Lot 30 Closing. Buyer shall have closed escrow and
acquired Xxx 00 xxxx Xxxxxxx Xxxx Xxxxxx LLC simultaneously with the Closing.
5.11. Approvals. Before the expiration of the Feasibility
Study Period, this Agreement shall be approved by the Board of Directors of
Seller and by the Pfizer Leadership Team of Buyer.
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5.12. Cooperation. Buyer shall use reasonable and good
faith efforts to cooperate with any reasonable request by Seller related to the
fulfillment or performance necessary to satisfy Buyer's Conditions
5.13. Waivers. Any one or more of the foregoing Buyer's
Conditions set forth in Sections 5.2 through 5.8 inclusive (but not 5.9 or
5.10), may be waived by Buyer on or before the Closing Date (unless another date
is specified or, by the terms hereof, applicable), but no such waiver is
effective unless specifically contained in a written instrument executed by
Buyer and delivered to Seller and Escrow Holder. Except to the extent set forth
to the contrary in the next sentence, no waiver of Buyer's Conditions set forth
in the preceding sentence may be implied from any act or omission of Buyer nor
may a waiver of any one item constitute a waiver of any other item.
6. Status
6.1. As-Is Purchase. Except for the warranties,
representations and indemnifications of Seller expressly set forth in this
Agreement, Seller hereby specifically disclaims any warranty, guaranty or
representation, oral or written, past, present or future, of, as to or
concerning (i) the nature and condition of the Property, including, but not by
way of limitation, the water, soil, geology, environmental conditions (including
the presence or absence of any Hazardous Materials (defined in Section 18.13
below)), and the suitability thereof for any and all activities and uses which
Buyer may elect to conduct thereon; (ii) the nature and extent of any
right-of-way, possessory interest, lien, encumbrance, restrictions, reservation,
covenant or condition affecting the Property; and (iii) the compliance of the
Property or its operation with any laws, ordinances or regulations of any
government or quasi-governmental body or private associate having jurisdiction
over the Property. The sale of the Property as provided for herein is made on an
"AS IS" basis, and Buyer expressly acknowledges that, in consideration of the
agreements of Seller herein, and except for the warranties and representations
of Seller expressly set forth herein, SELLER MAKES NO WARRANTY OR
REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING,
BUT IN NO WAY LIMITED TO, ANY WARRANTY OF CONDITION, HABITABILITY,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY.
6.2. Release. Excluding any claim that Buyer may have
against Seller as a result of any breach by Seller of any of Seller's
representations or warranties set forth in this Agreement or pursuant to any
indemnification by Seller set forth in this Agreement, effective as of Close of
Escrow, Buyer, for itself and its agents, affiliates, successors and assigns,
hereby releases and forever discharges Seller and its officers, directors,
shareholders, members, partners, agents, affiliates, successors and assigns
(collectively, "Seller's Parties") from, and waives any right to proceed against
Seller or Seller's Parties for, any and all costs, expenses, claims, liabilities
and demands (including attorneys' fees and costs) at law or in equity, whether
known or unknown, arising out of the physical, environmental, economic, legal or
other condition of the Property, including any claims for contribution pursuant
to the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, or any other Hazardous Material Laws (as defined in Section
18.13 below) which Buyer has or may have in the future. Without limiting the
foregoing, Buyer hereby specifically waives the provisions of Section 1542 of
the California Civil Code which provide:
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"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
By initialing below in this Section 6.2, Buyer hereby specifically acknowledges
that Buyer has carefully reviewed this Section 6.2, and discussed its import
with legal counsel, is fully aware of its consequences, and that the provisions
of this Section 6.2 are a material part of this Agreement:
BUYER'S INITIALS
JLL
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7. Conditions Precedent to Obligations of Seller. Seller's
obligations under this Agreement are subject to Seller's written notification to
Buyer and Escrow Holder that the following conditions precedent (collectively,
"Seller's Conditions") have been satisfied, approved, or waived by Seller,
determined in Seller's sole discretion, on or before the Closing Date.
7.1. Lot 30 Closing. Buyer shall have closed escrow and
acquired title to Xxx 00 xxxx Xxxxxxx Xxxx Xxxxxx LLC simultaneously with the
Closing.
7.2. Approvals. Before the expiration of the Feasibility
Study Period, this Agreement shall be approved by the Board of Directors of
Seller and by the Pfizer Leadership Team of Buyer.
7.3. No Proceedings. No suit, action or other proceeding
(instituted by any party other than Seller) shall be pending which seeks, nor
shall there exist any judgment the effect of which is, to restrain the purchase
of the Property by Buyer;
7.4. Buyer's Representations True and Correct. Buyer's
representations and warranties set forth herein shall be true and correct in all
material respects when made, and are true in all material respects as of the
Closing Date, and Seller shall have received a certificate signed by an
authorized representative of Buyer to that effect ("Buyer's Date Down
Certificate"); and
7.5. Performance of Covenants. Buyer shall have performed
all of Buyer's covenants and agreements contained in this Agreement that are
required to be performed by Buyer prior to or on Close of Escrow.
7.6. Waivers. Any one or more of the foregoing Seller's
Conditions set forth in Sections ERROR! REFERENCE SOURCE NOT FOUND. through 7.5
may be waived by Seller on or before the Closing Date (unless another date is
specified), but no such waiver is effective unless specifically contained in a
written instrument executed by Seller and delivered to Buyer and Escrow Holder.
No waiver of Seller's Conditions set forth in the preceding sentence may be
implied from any act or omission of Seller nor may a waiver of any one item
constitute a waiver of any other item.
8. Buyer's Deliveries. Buyer shall deliver to Escrow Holder, on
or before each of the Closing Date, for disbursement, delivery or recordation,
as provided in this Agreement, the following funds, instruments, and documents
(validly executed where applicable), the delivery of which is material to the
consummation of the subject transaction:
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8.1. Cash or Cash Equivalent. Cash or other immediately
available funds in the amount required of Buyer under this Agreement at least
two (2) business days preceding the Closing Date, including, without limitation,
sufficient funds to meet Buyer's obligations under Section 1 above, and Sections
10 and 11 below.
8.2. Buyer's Date Down Certificate. The Buyer's Date Down
Certificate in accordance with Section 7.4 above.
8.3. Other Documents. Any documents reasonably required of
Buyer by Title Company or Escrow Holder in order to consummate the subject
transaction.
9. Seller's Deliveries. Seller shall execute and deliver to
Escrow Holder on or before the Closing Date, as applicable, for disbursement,
delivery or recordation, as provided in this Agreement, the following
instruments and documents, the delivery of which is material to the consummation
of the subject transaction:
9.1. Deed. A grant deed duly executed and acknowledged by
Seller, conveying good and marketable title to the Real Property and any
Improvements in the form of Exhibit C attached hereto and incorporated herein
(the "Deed").
9.2. Seller's Date Down Certificate. The Seller's Date
Down Certificate (as defined in Section 5.4 above).
9.3. Evidence of Authorization. Evidence in form and
substance reasonably satisfactory to Buyer and its legal counsel that Seller is
authorized to enter into and consummate the transactions contemplated by this
Agreement.
9.4. FIRPTA Affidavit. A FIRPTA affidavit from Seller, in
the form of attached Exhibit D, duly executed and acknowledged by Seller,
certifying under penalty of perjury (a) Seller's United States taxpayer
identification number and (b) that Seller is not a foreign person, in accordance
with Section 1445 of the Internal Revenue Code of 1986, as amended (the Foreign
Investment in Real Property Tax Act). If Seller shall fail to deposit into
Escrow the Non-Foreign Person Certificate as required by this Agreement, Buyer
may at its option either (i) delay Close of Escrow until such time as Seller has
complied with the conditions set forth herein, and such adjournment shall not
place Buyer in default of its obligations hereunder, or (ii) withhold from the
purchase price and remit to the Internal Revenue Service, a sum equal to ten
percent (10%) of the gross selling price of the Property or such other sum as
shall be required in accordance with the withholding obligations imposed upon
Buyer pursuant to Section 1445 of the Code. Such withholding shall not place
Buyer in default under this Agreement, and Seller shall not be entitled to claim
that such withholding shall excuse Seller's performance under this Agreement.
9.5. Termination or Assignment of Parking License. In the
event Buyer timely elects to terminate the Parking License in accordance with
Section 5.9 above, Seller shall deliver to Escrow evidence of Seller's
termination of the Parking License on or before the Closing Date. In the event
Buyer elects to assume Seller's rights and interests in the Parking License, or
Buyer fails to timely elect to terminate the Parking License in accordance with
Section 5.9 above, Seller and Buyer shall deliver to Escrow an original fully
executed assignment agreement providing for the assignment of Seller's rights
and interests in the Parking License to Buyer, Buyer's assumption of the
licensor's
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duties and obligations under Parking License, and the release of Seller from all
licensor liabilities accruing on or after the Closing Date.
9.6. Assignment, etc. All assignments, and other documents
and instruments, as reasonably requested by Buyer, that may be necessary in
order for Seller to comply with its obligations under this Agreement and to
effectuate the transactions contemplated by this Agreement, in each case duly
executed by Seller, conveying to Buyer all portions and aspects of the Property.
9.7. Other Documents. All other documents reasonably
required of Seller by Title Company or Escrow Holder in order to consummate the
subject transaction.
10. Closing Escrows. On the Closing Date, and provided Escrow
Holder has received all the documents, instruments and funds required to be
delivered by Buyer and Seller in accordance with Sections 8 and 9, above, and
provided Title Company is prepared to issue the Title Policy on the Close of
Escrow and that all other conditions to the Close of Escrow have been satisfied
(or waived by the party to this Agreement who benefits from such condition), and
provided Escrow Holder is prepared to perform all of the following, Escrow
Holder shall promptly perform all of the following:
10.1. Recording. Cause the Deed and any other documents
which Buyer and Seller may mutually direct, to be recorded with the Official
Records of San Diego County, California.
10.2. Seller's Deliveries. Disburse to Buyer all of the
other deliveries of Seller made pursuant to Section 9, above.
10.3. Buyer's Deliveries. Disburse to Seller all of the
deliveries of Buyer made pursuant to Section 8, above.
10.4. Costs and Prorations. Pay the costs and apply the
prorations in accordance with Sections 11 and 12, below.
10.5. Issuance of Owner's Policy. Cause the Title Policy to
be issued and delivered to Buyer.
10.6. Disbursement of Purchase Price. Disburse to Seller,
or in accordance with Seller's instructions (after making appropriate
adjustments for costs and prorations as provided in this Agreement), all funds
deposited with Escrow Holder by Buyer in payment of the Purchase Price.
11. Costs. Buyer and Seller shall pay costs and expenses
associated with the transaction contemplated by this Agreement as follows: (a)
Buyer and Seller shall each pay one half of Escrow Holder's fee, (b) Seller
shall pay applicable county transfer and stamp taxes, surtaxes and fees payable
in connection with the recordation of the Deed, (c) Buyer and Seller shall each
pay one-half of city transfer and stamp taxes, surtaxes and fees payable in
connection with the recordation of the Deed (d) Seller shall pay the cost of the
Title Policy and (e) Buyer and Seller shall each pay one-half of Escrow Holder's
reasonable and customary charges for document drafting, recording and
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miscellaneous charges. Buyer and Seller shall pay their own legal fees and costs
in connection with this Agreement and the transaction contemplated by this
Agreement.
12. Prorations. The following shall be prorated between Buyer and
Seller, as of the Close of Escrow, on the basis of the actual number of days
during the month in which the Close of Escrow occurs: (a) general and special
county and city real property taxes and special assessments ("Taxes"); (b)
utilities; and (c) any service agreements transferred to Buyer at the Close of
Escrow. The amount of any utility deposit, or any other deposit transferred to
Buyer pursuant hereto, shall be credited to Seller and debited to Buyer.
Proration of Taxes must be based on the most recent official tax bills or notice
of valuation available to the general public for the fiscal year in which the
Close of Escrow (such obligation to survive the Close of Escrow) occurs, and to
the extent the tax bills do not accurately reflect the actual Taxes assessed
against the Property (or any portion of the Property), then Buyer and Seller
shall adjust such actual Taxes between Buyer and Seller, outside of Escrow, as
soon as reasonably possible following the Close of Escrow. In the event that
after the Closing, there shall be a retroactive increase in any Taxes imposed on
the owner of the Property: (i) if such increase shall relate to the tax year in
which the Close of Escrow occurred, such increase shall be prorated by Seller
and Buyer on a per diem basis based on their respective periods of ownership
during the period such increase is effective, (ii) if such increase shall relate
to any tax year subsequent to the tax year during which the Close of Escrow
occurred, such increase shall be the obligation of Buyer, and (iii) if such
increase shall relate to any tax year prior to the tax year during which the
Close of Escrow occurred, such increase shall be the obligation of Seller. In
addition to the foregoing apportionments, Seller shall receive all other income
accrued prior to the a Close of Escrow and shall pay all other expenses accrued
or incurred in the operation of the Property prior to the Close of Escrow and
Buyer shall receive all other income accruing on or after the Close of Escrow
and shall pay all other expenses incurred or accrued in the operation of the
Property on or after the Close of Escrow. If and to the extent Escrow Holder
requires any information or instructions from Buyer and Seller in order to
perform such prorations, Buyer and Seller shall furnish Escrow Holder with
further mutual instructions. Escrow Holder shall not be concerned with any
prorations that are to be made after the Close of Escrow pursuant to this
Agreement.
13. Failure of Escrow to Close. In the event Escrow fails to close
by reason of the failure of any of Buyer's Conditions to be timely satisfied
with respect to the Property, or by reason of any default by Seller under this
Agreement, Buyer shall be entitled to the immediate return of the Deposit plus
interest accrued thereon, less one half of Escrow Holder's and Title Company's
cancellation costs. In the event Seller fails to return to Buyer any funds
previously delivered to Seller which Buyer is entitled to receive under the
provisions of this Section or fails to deliver written instructions to Escrow
Holder to release any such funds held by Escrow Holder within five (5) business
days of written demand therefor, Buyer shall be entitled to collect from Seller,
in addition to such amounts, interest on such amounts at the rate of 10 percent
per annum from the date of written demand until the date such amounts are
actually paid.
14. Additional Covenants.
14.1. Required Entitlements. Seller shall use reasonable
efforts to assist Buyer, at Buyer's expense, in the preparation and processing
of all documentation reasonably required in connection with obtaining the
Buyer's Preferred Entitlements.
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14.2. Parking Plan. The parties shall use best efforts to
promptly agree during the Feasibility Study Period to a parking plan to provide
for Seller's use, as the tenant of Lot 30, of (a) at least 18 parking spaces on
the Real Property for Seller's employees and visitors during the period between
the Closing Date and the date when Buyer's construction activities on the Real
Property prevent such parking on the Real Property (the "Disruption Date"), (b)
at least 43 parking spaces (in addition to existing spaces on Lot 30) elsewhere
in the Xxxxxx Xxxxx Science Center, in reasonable proximity to Lot 30, for
Seller's employees and visitors during the period between the Disruption Date
and the expiration or earlier termination of Seller's lease of Lot 30 from
Buyer, and (c) an increase in the number of spaces provided in (a) and (b) above
equal to any decrease in the permitted number of parking spaces on Lot 30
resulting from the Lot Line Adjustment. The parking plan shall also provide that
in the event that Buyer's construction activities on the Real Property results
in excessive mud and dirt accumulation on vehicles owned by Seller's employees,
Buyer will arrange for distribution of free car wash coupons to such employees.
Buyer's obligations under this Section 14.2 shall survive the Close of Escrow.
14.3. Seller's Continuing Disclosure. Until the Closing
Date, Seller shall promptly disclose to Buyer Seller's actual knowledge of any
adverse or potentially adverse occurrence with respect to the Property,
including without limitation any such occurrence which would be inconsistent
with any of Seller's representations and warranties in Section 17, and shall
amend in writing the EHS Schedule, if applicable. Seller's "actual knowledge"
shall mean the actual knowledge, following due inquiry, of the following
officers of Seller and their successors, Xxxx Xxxxx, Xxxx Xxxxxx, Xxxx Xxxxx and
Xxxxx Xxxxxx, whom Seller represents are the most likely persons within Seller's
organization to receive notice relating to the condition of the Property.
14.4. Confidentiality. Buyer shall keep all information and
reports obtained from Seller or relating to the Property or the proposed
transaction confidential and shall not disclose any such confidential
information to any third party (other than Buyer's agents, employees or
advisors) without obtaining Seller's prior written consent. Seller shall keep
all information relating to the proposed transaction confidential and shall not
disclose any such confidential information to any third party (other than
Seller's agents, employees or advisors) without obtaining Buyer's prior written
consent.
14.5. Exclusivity. During the term of this Agreement,
Seller will deal exclusively and only with Buyer with regard to the sale of the
Property. Seller will not provide due diligence materials to any other party,
nor will it solicit any other offers for the purchase of the Property or
otherwise entertain, discuss or negotiate as to any unsolicited offer or other
expression of interest during the term of this Agreement.
15. Remedies.
15.1. Buyer's Remedies for Seller's Default. If Seller
breaches this Agreement, then Buyer may, at Buyer's election, (a) terminate this
Agreement and Buyer's obligations under this Agreement, in which event Escrow
Holder shall (without Escrow Holder's requiring any further instruction from
Seller) return to Buyer the Deposit (and any interest accrued on the Deposit)
pursuant to Section 12 above, and Buyer may pursue any legal or equitable remedy
available to Buyer, including without limitation a claim for damages which shall
include all costs incurred by Buyer in connection with its due diligence
investigation of the Property and costs incurred in
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connection with applying for or obtaining financing for the acquisition or
development of the Property, and/or (b) enforce specific performance of the
provisions of this Agreement.
15.2. Seller's Remedies for Buyer's Default. IN THE ABSENCE
OF A DEFAULT BY SELLER AND SO LONG AS ALL OF BUYER'S CONDITIONS HAVE BEEN TIMELY
SATISFIED, IF BUYER BREACHES THIS AGREEMENT, THEN SELLER SHALL BE ENTITLED TO
RECEIVE, AS LIQUIDATED DAMAGES AND AS ITS SOLE REMEDY, THAT PORTION OF THE
DEPOSIT THEN REMAINING IN ESCROW (TO THE EXTENT SUCH FUNDS HAVE BEEN DEPOSITED
INTO ESCROW AND HAVE BECOME NON REFUNDABLE TO BUYER PURSUANT TO THE PROVISIONS
OF THIS AGREEMENT). BUYER SHALL HAVE NO OTHER LIABILITY TO SELLER UNDER THIS
AGREEMENT FOR DAMAGES, SPECIFIC PERFORMANCE OR OTHERWISE PROVIDED, HOWEVER, THAT
THIS PROVISION SHALL NOT LIMIT SELLER'S RIGHT TO OBTAIN REIMBURSEMENT FOR
ATTORNEYS' FEES AND COSTS, AFFECT BUYER'S RESTORATION OBLIGATIONS, OR WAIVE OR
AFFECT BUYER'S INDEMNITY OBLIGATIONS AND SELLER'S RIGHTS TO THOSE INDEMNITY
OBLIGATIONS UNDER THIS AGREEMENT. THE PAYMENT OF THE DEPOSIT AS LIQUIDATED
DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF
CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE
LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671,
1676 AND 1677. SELLER HEREBY WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE
SECTION 3389. BUYER AND SELLER ACKNOWLEDGE AND RECITE THAT SUCH SUM IS
REASONABLE CONSIDERING ALL OF THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS
AGREEMENT, INCLUDING THE RELATIONSHIP OF SUCH SUM TO THE RANGE OF HARM TO SELLER
THAT COULD BE ANTICIPATED AND THE ANTICIPATION THAT PROOF OF CAUSATION,
FORESEEABILITY, AND ACTUAL DAMAGES WOULD BE COSTLY OR INCONVENIENT. BUYER AND
SELLER ACKNOWLEDGE THAT IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX
THE ACTUAL DAMAGE THAT SELLER WOULD INCUR IF BUYER BREACHES THIS AGREEMENT.
BUYER AND SELLER ACKNOWLEDGE AND RECITE THAT THEY POSSESS APPROXIMATELY EQUAL
BARGAINING STRENGTH AND SOPHISTICATION. IN PLACING THEIR INITIALS BELOW, BUYER
AND SELLER SPECIFICALLY CONFIRM THE ACCURACY OF SUCH FACTS AND THE FACT THAT
EACH OF BUYER AND SELLER WAS REPRESENTED BY LEGAL COUNSEL WHO EXPLAINED THE
CONSEQUENCES OF THIS PARAGRAPH AT THE TIME THIS AGREEMENT WAS MADE.
SELLER'S INITIALS BUYER'S INITIALS
PWH JLL
---------- ----------
16. Possession; Documents. Except as otherwise provided in the
Lease, Possession of the Property shall be delivered by Seller to Buyer on the
Close of Escrow. At the Close of Escrow, Seller shall deliver to Buyer as a part
of the purchase of the Property, originals of all documents which relate to the
Property and will remain in effect following the Close of Escrow.
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17. Survival. Except as expressly provided to the contrary
elsewhere in this Agreement, the covenants, conditions, representations and
warranties of this Agreement shall survive for a period of 18 months after the
Closing Date and the recordation and delivery of the Deed.
18. Seller's Representations and Warranties. The truth and
accuracy of the following shall constitute a condition to the Close of Escrow
and Seller represents and warrants that the following are complete and accurate
as of the Effective Date and, shall, except to the extent set forth to the
contrary below or in writing to Buyer prior to the Close of Escrow, be complete
and accurate as of the Closing Date.
18.1. Legal Power, Right, Authority and Enforceability.
Seller has the legal power, right and authority to enter into this Agreement and
to consummate the transactions contemplated by this Agreement. All requisite
action (corporate, partnership, trust or otherwise) has been taken by Seller in
connection with entering into this Agreement and the consummation of the
transactions contemplated by this Agreement. The individual executing this
Agreement on behalf of Seller has the legal power, right, and actual authority
to bind Seller to the terms and conditions of this Agreement. This Agreement and
all documents required by this Agreement to be executed by Seller shall be
valid, legally binding obligations of and enforceable against Seller in
accordance with their terms.
18.2. No Conflict or Breach. Neither the execution and
delivery of this Agreement, nor the incurrence of the obligations set forth in
this Agreement, nor the consummation of the transactions contemplated by this
Agreement, nor compliance with the provisions of this Agreement will conflict
with or result in a breach of any of the provisions of, or constitute a default
under, any bond, note or other evidence of indebtedness, contract, indenture,
mortgage, deed of trust, loan, agreement, lease or other agreement or instrument
to which Seller is a party or by which Seller is bound.
18.3. FIRPTA. Seller is not a foreign person within the
meaning of Section 1445 of the Internal Revenue Code of 1986, as amended (the
Foreign Investment in Real Property Tax Act).
18.4. Litigation. To the best of Seller's knowledge, there
are no actions, suits, claims, legal proceedings or any other proceedings
affecting the Property or any portion of the Property, at law or in equity,
before any court or governmental agency, domestic or foreign.
18.5. Violation of Laws. Seller has not received any
notices of violation of any federal, state, county or municipal or other
governmental agency law, ordinance, regulation, order, rule or requirement
relating to the Property, or any portion of the Property, the violation of which
could be reasonably anticipated by Seller to have a material adverse effect on
the Property, and Seller has no reason to believe that any such notice may or
will be, issued, entered or received.
18.6. Eminent Domain. There is no pending or, to the best
of Seller's knowledge, threatened proceeding in eminent domain or otherwise,
which would affect the Property, or any portion of the Property, nor does Seller
know of the existence of any facts which might give rise to any such action or
proceeding.
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18.7. Governmental Changes. Seller has no actual knowledge
of any plan, study or effort of any governmental authority or agency which could
be reasonably anticipated by Seller to have a material adverse effect on the use
of the Property, or any material portion of the Property, for its intended uses.
18.8. Street Changes. Seller has not received written
notice of any existing, proposed or contemplated plan to widen, modify or
realign any street or highway contiguous to the Property, or any portion of the
Property.
18.9. Delinquent Assessments. To the best of Seller's
knowledge, there is no delinquent special assessment relating to the Property,
except as shown in the Preliminary Title Report.
18.10. Public Improvements. Seller has received no notice of
any intended public improvements which will result in any charge being levied or
assessed against, or in the creation of any lien upon, the Property, or any
portion of the Property, except as shown in the Preliminary Title Report.
18.11. Title Matters. To Seller's actual knowledge, there
are no liens (including without limitation mechanics' liens) or encumbrances on,
or claims to, or covenants, conditions, restrictions, easements, encroachments,
rights, rights of way or other matters affecting the Property, except for those
items described in the Title Policy.
18.12. Hazardous Matters. Except as may be disclosed to
Buyer in writing on a Schedule of Environmental and Hazardous Waste Exceptions
(the "EHS Schedule") to be delivered to Buyer by Seller no later than 30 days
after opening of Escrow and updated in accordance with Section 13.6, and except
for the conditions acknowledged by Buyer in Section 20.5 below, Seller does not
know of the existence of any hazardous wastes, toxic substances or other
pollutants or, contaminants on, in or under the Property in such quantity which
could be reasonably anticipated by Seller to (1) be detrimental to human health
or the environment, (2) be in violation of any governmental laws or regulations,
or (3) have a material adverse effect on the value of the Property or Buyer's
intended use of the Property.
18.13. Hazardous Materials. Except as may be disclosed on
the EHS Schedule:
18.13.1. Seller has no actual notice that the
Property is identified on (1) the current or proposed National Priorities List
under 40 C.F.R. Section 300, (2) the current or proposed Comprehensive
Environmental Response and Liability Information System ("CERCLIS") List, or (3)
a list arising from a state or local statue similar to the Comprehensive
Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C.A.
Section 96.01 et seq. ("CERCLA").
18.13.2. Seller has not used nor is Seller using the
Property for the use, production, manufacturing, processing, generation,
storage, disposal, management, shipping or transportation of the following
materials (collectively, the "Hazardous Materials"): (i) solid or hazardous
wastes, as defined in the U.S. Resource Conservation and Recovery Act, or in any
applicable federal, state or local law or regulation; (ii) hazardous substances,
pollutants, or contaminants as defined in CERCLA, or in any applicable federal,
state or local law or regulation;
16
(iii) toxic substances, as defined in the Toxic Substance Control Act, 15 U.S.C.
Section 2601 et seq., or in any applicable state or local law or regulation;
(iv) insecticides, fungicides or rodenticides, as defined in the Federal
Insecticide, Fungicide or Rodenticide Act, 7 U.S.C. Section 135 et seq., or in
any applicable state or local law or regulation; (v) radioactive materials,
biohazardous wastes, or infectious agents, each as defined in the California
Health and Safety Code, or in any applicable federal, state or local law or
regulation; or (vi) crude oils, petroleum or products or fractions thereof.
18.13.3. There has been no release (as defined in
CERCLA, or in any other applicable federal, state or local law or regulation
relating to Hazardous Materials Laws (as defined in Section 19 below)) of
Hazardous Materials by Seller or, to Seller's actual knowledge, by any other
person at, on, in, under or in any way affecting the Property.
18.13.4. Seller has not received any notice of any
violation affecting the Property under any Hazardous Materials Laws.
18.14. Access. There is reasonable access to and from the
Property.
18.15. Representations Generally. Except to the extent
disclosed in writing to Buyer, no representation, warranty or statement of
Seller in this Agreement or made by Seller in any document furnished or to be
furnished to Buyer pursuant to this Agreement contains or will contain any
untrue statement of a material fact. All such representations, warranties and
statements of Seller are based upon correct, accurate and complete information
as of the time furnished to Buyer, and there has been no material adverse change
in such information subsequent to such time. If Seller obtains actual knowledge
of a material adverse change in such information prior to the Close of Escrow,
Seller shall immediately notify Buyer of such change. As used in this Agreement,
"Seller's actual knowledge" has the meaning set forth in Section 14.6. Except
for those representations and warranties expressly set forth in this Agreement,
the parties understand and acknowledge that no person acting on behalf of Seller
is authorized to make, and by execution hereof Buyer acknowledges that no person
has made, any representation or warranty regarding the Property, or the
transaction contemplated herein, or regarding the zoning, construction, physical
condition or other status of the Property. No representation, warranty,
agreement, statement, guaranty or promise, if any, made by any person acting on
behalf of Seller which is not contained in this Agreement shall be valid or
binding on Seller.
19. Indemnification.
19.1. Seller's Indemnification. Without in any way
affecting Buyer's rights against Seller with respect to any breach or
misrepresentation by Seller set forth in Section 18 or elsewhere in this
Agreement, Seller hereby agrees, except to the extent caused or contributed to
by the Buyer Indemnified Parties (as defined below), at its sole cost and
expense, to indemnify, defend and hold Buyer, its subsidiary and affiliated
companies and the officers, directors, employees, agents, successors, and
assigns of each of them (the "Buyer Indemnified Parties") harmless for, from and
against any claims, suits, liabilities (including, without limitation, strict
liabilities), actions, proceedings, obligations, debts, damages, losses, costs,
expenses, diminutions in value, fines, penalties, charges, fees, expenses,
judgments, awards, amounts paid in settlement and damages of whatever kind or
nature (including without limitation, reasonable attorneys' fees, court costs
and other costs of defense) (collectively "Losses") arising with respect to the
Property prior to the Closing Date under any Hazardous Material Law (as defined
below), and any other losses, which
17
may be incurred by or asserted against the Buyer Indemnified Parties directly or
indirectly resulting from the presence of any Hazardous Materials on the
Property (except to the extent caused by any Buyer Indemnified Parties),
including, without limitation (a) all foreseeable consequential damages; (b) the
costs of any remediation of the Property, and the preparation and implementation
of any closures, remedial or other required plans; and (c) all reasonable costs
and expenses incurred by each of the Buyer Indemnified Parties in connection
with (a) and (b), including reasonable attorneys' fees and court costs.
Notwithstanding the presence of Hazardous Materials on the Property giving rise
to Buyer's rights under this Section 19.1, Seller's remediation obligations
hereunder shall be limited to those necessary for the Property to be in
compliance with applicable Hazardous Materials Laws, and notwithstanding
anything to the contrary herein, Seller shall have no obligation under this
Agreement, or at law, for any conditions disclosed in Section 20.5 below. The
liability of Seller under this Indemnification shall survive close of Escrow
indefinitely, and shall not be subject to the time limitations on survival set
forth in Section 17 above.
For purposes of this Section, the term "Hazardous Material Laws" together means
and includes any present and future federal, state and local law, statute,
ordinance, rule, regulation and the like, as well as common law relating to the
environment and environmental conditions and/or the protection of human health
or relating to liability for or costs of remediation or prevention of releases,
including without limitation, the Resource Conservation and Recovery Act of
1976, 42 U.S.C. Section 6901, et seq., the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601-9657, as amended
by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. Section
11001, et seq., the Federal Water Pollution Control Act, 33 U.S.C. Sections
1251, et seq., the Clean Air Act, 42 U.S.C. Sections 741, et seq., the Clean
Water Act, 33 U.S.C. Section 7401, et seq., the Toxic Substances Control Act, 15
U.S.C. Sections 2601-2629, the Safe Drinking Water Act, 42 U.S.C. Sections
300f-300j, the Solid Waste Disposal Act, 42 U.S.C. Section 3251, et seq., the
Hazardous Materials Transportation Act, 49 U.S.C. 1801, et seq., the California
Health and Safety Code, the California Water Codess. Sections 13000, et seq.;
and the California Civil Code Section 3479, et seq., and all other federal,
state or local statutes and ordinances and the regulations, orders, decrees now
or hereafter promulgated thereunder that regulate or impose liability in
connection with the use, distribution, storage, handling or release of Hazardous
Substances, with respect to the specific property at issue. "Hazardous Material
Laws" also includes, but is not limited to, any present and future federal,
state and local laws, statutes, ordinances, rules, regulations and the like, as
well as common law, conditioning transfer of Property upon a negative
declaration or other approval of a governmental authority of the environmental
condition of the property; requiring notification or disclosure of releases or
other environmental condition of the Property to any governmental authority or
other person or entity, whether or not in connection with transfer of title to
or interest in property; imposing conditions or requirements relating to
Hazardous Materials in connection with permits or other authorization for lawful
activity; relating to nuisance, trespass or other causes of action related to
the Hazardous Materials; and relating to wrongful death, personal injury, or
property or other damage in connection with the physical condition or use of the
Property by reason of the presence of Hazardous Materials in, on, under or above
the Property.
19.2. Buyer's Indemnification. Without in any way affecting
Seller's rights against Buyer with respect to any breach or misrepresentation by
Seller set forth in Section 20 or elsewhere in this Agreement, Buyer hereby
agrees, except to the extent caused or contributed to by the Seller Indemnified
Parties (as defined below), at its sole cost and expense, to indemnify, defend
and hold Seller and its affiliated companies and shareholders, and the officers,
directors, employees, agents, successors, and assigns of each of them (the
"Seller Indemnified Parties") harmless for, from and
18
against any Losses arising with respect to the Property after the Closing Date
under any Hazardous Material Law (as defined below), and any other losses, which
may be incurred by or asserted against the Seller Indemnified Parties directly
or indirectly resulting from the violation of any Hazardous Material Law by
Buyer or any person under Buyer's control (which shall not be deemed to include
any of the Seller Indemnified Parties), including, without limitation (a) all
foreseeable consequential damages; (b) the costs of any remediation of the
Property, and the preparation and implementation of any closures, remedial or
other required plans; and (c) all reasonable costs and expenses incurred by each
of the Seller Indemnified Parties in connection with (a) and (b), including
reasonable attorneys' fees and court costs. The liability of Seller under this
Indemnification shall survive close of Escrow indefinitely, and shall not be
subject to the time limitations on survival set forth in Section 17 above.
20. Buyer's Representations and Warranties. The truth and accuracy
of the following shall constitute a condition to the Close of Escrow and Buyer
represents and warrants that the following are complete and accurate as of the
date of this Agreement, shall be complete and accurate as of the Close of
Escrow, and shall survive the Close of Escrow.
20.1. Legal Power, Right and Authority. Buyer is a
corporation duly organized and existing in good standing under the laws of the
State of Delaware and is qualified to do business in California. Buyer has the
legal power, right and authority to enter into this Agreement and to consummate
the transactions contemplated by this Agreement.
20.2. Action. All requisite actions have been taken by the
Pfizer Leadership Team (under a delegation of authority from the board of
directors) of Buyer in connection with obtaining due authority to enter into
this Agreement and to consummate the transactions contemplated by this
Agreement.
20.3. Individual(s) Executing. The individual(s) executing
this Agreement on behalf of Buyer is/are duly authorized to do so by the Pfizer
Leadership Team (under a delegation of authority from the board of directors)
and has/have the legal power, right, and actual authority to bind Buyer to the
terms and conditions of this Agreement. This Agreement constitutes the binding
obligation of Buyer and is enforceable against Buyer in accordance with all of
its terms.
20.4. No Conflict or Breach. Neither the execution and
delivery of this Agreement, nor the incurrence of the obligations set forth in
this Agreement, nor the consummation of the transactions contemplated by this
Agreement, nor compliance with the terms of this Agreement will conflict with or
result in a breach of any of the terms, conditions or provisions of, or
constitute a default under, any bond, note or other evidence of indebtedness or
any contract, indenture, mortgage, deed of trust, loan, agreement, lease or
other agreement or instrument to which Buyer is a party or by which the Property
or any of Buyer's properties may be bound.
20.5. Buyer's Investigation. Buyer has (or will have)
examined, inspected and conducted its own independent investigation of all
matters with respect to the physical and environmental condition of the
Property, taxes, bonds, permissible uses, zoning, covenants, conditions and
restrictions and Buyer's intended use of the Property and all other matters
which in Buyer's judgment bear upon the value and suitability of the Property
for Buyer's purposes. Buyer acknowledges that, except for the detailed
representations, warranties and indemnifications provided herein, Seller has not
made any representation of any kind in connection with soils, environmental
19
or physical conditions on, or bearing on, the use of the Property, and Buyer is
relying solely on Buyer's own inspection and examination of such items and not
on any representation of Seller. Buyer understands and acknowledges that: (a)
property located within one thousand feet (1000') of the Property is currently
being used for commercial engineering and manufacturing in the field of nuclear
power, including the use, operation and/or production of high-temperature
gas-cooled nuclear reactors, radioisotope and radiopharmaceutical substances,
fusion, and research and development activities related thereto; (b) at one
time, the Property was part of the real property covered by Special Nuclear
Materials License No. SNM-696 issued by the U.S. Nuclear Regulatory Commission
("NRC") and License No. 0145-80 issued by the California Department of Health
Services, Radiological Health Branch ("CDHS"); in 1988, upon request of General
Atomics, the license-holder, the NRC released approximately 277 acres, including
the Property from License No. SNM-696 for unrestricted use, after an
investigation and evalutation of the released property (which release is
evidenced by notice from the NRC dated June 22, 1988, and the subsequent
amendment to the license; (c) to Seller's knowledge, remedial clean-up action on
the Property was required by the NRC or CDHS prior to release of the Property,
but Seller does not have the requisite information to determine the exact nature
or condition of the Property or the effects such uses have had on the physical
condition of the Property.
20.6. Facilities Benefit Association. Notwithstanding the
representations and warranties of Seller, Buyer acknowledges that the City of
San Diego ("City") has caused to be filed in the Official Records, documents
setting forth boundaries for a Facilities Benefit Association entitled the North
University City Facilities Financing Plan and Facilities Benefit Assessment, as
revised from time to time ("FBA"), which includes the Property. Buyer
acknowledges that, under the terms and provisions of the FBA, the City is
empowered to assess certain fees against the Property at the time an application
for a building permit is made, and Buyer covenants and warrants that Buyer shall
pay all FBA and other fees assessed against the Property with respect to any
additional development or redevelopment of the Property after the Closing Date,
including, without limitation, administration, application and processing fees
school fees, real property taxes and other exactions imposed on the Property in
connection with such additional development or redevelopment. Buyer acknowledges
that Seller is under no obligation to secure any additional allocation or
reallocation of development rights applicable to the Property.
20.7. No Assignment. Buyer has not made (i) a general
assignment for the benefit of creditors; (ii) filed any voluntary petition in
bankruptcy or suffered the filing of an involuntary petition by Buyer's
creditors; (iii) suffered the appointment of a receiver to take possession of
all or substantially all of Buyer's assets; (iv) suffered the attachment or
other judicial seizure of all, or substantially all, of Buyer's assets; (v)
admitted in writing its inability to pay its debts as they become due; or (vi)
made an offer of settlement, extension or composition to its creditors
generally.
21. Operation of Property; New Leases and Service Agreements;
Pre-Closing Investigation. At all times during the term of the Escrow, Seller
shall operate and maintain the Property in the ordinary course of its business,
and otherwise in a commercially reasonable manner and in conformity with
Seller's current and previous practices. Until the Close of Escrow or
termination of this Agreement (1) Seller shall not enter into any new service
agreements with respect to the Property or any portion of the Property which
shall continue beyond the Close of Escrow, including without limitation,
property management agreements, without the prior written consent of Buyer and
(2) Seller shall not directly or indirectly, solicit, accept or extend offers or
otherwise market the Property, nor allow others access to the Property except in
the normal course of business and not in
20
connection with any other prospective sale, lease, or other transfer of the
Property without the prior consent of Buyer, which consent Buyer shall not
unreasonably withhold, condition or delay.
22. Condemnation. If, prior to the Close of Escrow, any material
portion of the Property is taken by eminent domain (or is the subject of a
pending or contemplated taking which has not been consummated), then (1) Seller,
if Seller has actual knowledge thereof, shall notify Buyer of such fact, and (2)
Buyer shall have the option to terminate this Agreement with respect to the
Property if such taking occurs prior to the Closing Date which termination shall
be effective upon notice to Seller given no later than fifteen (15) days after
receipt of Seller's notice. If this Agreement is so terminated, then (i) Seller
shall pay all costs of Escrow Holder associated with the cancellation of the
Escrow pursuant to this Section, (ii) neither Buyer nor Seller shall have any
further rights or obligations under this Agreement (except to the extent set
forth in the preceding sentence or indemnities under this Agreement with respect
to events occurring prior to such termination, which indemnities shall survive
any such termination), and (iii) Escrow Holder shall, without requiring any
further instruction from Seller, immediately return to Buyer the Deposit and all
interest accrued thereon consistent with the foregoing. If Buyer does not so
terminate this Agreement, then (A) neither Buyer nor Seller shall have the right
to terminate this Agreement by reason of such taking, and (B) Buyer and Seller
shall proceed to the Close of Escrow pursuant to the terms of this Agreement,
without modification of the terms of this Agreement except that (1) Buyer shall
receive a credit against the purchase price for any awards for such taking
received by Seller prior to the Closing Date and shall be entitled to an
assignment of all of Seller's rights to and interest in any condemnation award
payable by reason of such taking, and (2) Seller shall not compromise, settle or
adjust any claims to such awards without Buyer's prior written consent.
23. Destruction. If the Property is damaged by fire or other
casualty on or before the Closing Date, and the estimated cost of repair is less
than ONE MILLION DOLLARS ($1,000,000), the Purchase Price shall be reduced by
the cost of repair as approved by Buyer. In the event of any such damage where
the cost of repair exceeds ONE MILLION DOLLARS ($1,000,000), Seller immediately
shall notify Buyer of such damage and Buyer shall have the right to terminate
this Agreement by giving written notice ( the "Termination Notice") of such
election to Seller no later than ten (10) business days after receipt of
Seller's notice of such damage. If this Agreement is so terminated, then (i)
Seller shall pay all costs associated with the cancellation of the Escrow
pursuant to this Section, (ii) neither Buyer nor Seller shall have any further
rights or obligations under this Agreement (except to the extent of any
indemnities under this Agreement with respect to events occurring prior to such
termination, which indemnities shall survive any such termination), and (iii)
Escrow Holder shall, without requiring any further instruction from Seller,
immediately return to Buyer the Deposit and all interest accrued thereon.
Notwithstanding the foregoing, if Buyer timely elects to terminate this
Agreement pursuant to the foregoing right, then Seller may elect to repair the
Property in order to return it to its condition prior to the damage by giving
written notice to Buyer of such election no later than ten (10) business days
after receipt of Buyer's Termination Notice and, if Seller so elects, the
Termination Notice shall be deemed null and void; provided, however, that such
repairs shall be diligently performed by Seller and shall be completed prior to
the Closing Date. In the event that Buyer fails to timely deliver the
Termination Notice following any event of damage giving rise to such a notice,
then neither Buyer nor Seller shall have the right to terminate this Agreement
by reason of such damage and Buyer shall elect one of the following two options
prior to the Closing Date:
21
(1) The parties hereto shall proceed to the Close of
Escrow pursuant to the terms of this Agreement, without modification of the
terms of this Agreement, in which event Buyer shall be entitled to an assignment
of the proceeds of all insurance relating to such fire or other casualty and a
credit in the amount of Seller's deductible under such policy(ies); or
(2) The parties hereto shall proceed to the Close of
Escrow pursuant to the terms of this Agreement, but modified to provide that the
Purchase Price shall be reduced by the Determined Cost of Repair (as defined
below), and to extend the Closing Date to the extent necessary to obtain a
Determined Cost of Repair.
"Determined Cost of Repair" means, for purposes of this Section, the good faith
estimate of the cost to repair the Property and to return it to its condition
prior to the damage by fire or other casualty, as agreed to in writing by Buyer
and Seller. In the event Buyer and Seller do not agree as to a Determined Cost
of Repair within five days after either party requests such a determination,
Buyer and Seller each shall appoint a licensed contractor and give written
notice of the name and address of such contractor to the other party. The two
contractors thus appointed shall, within five (5) days after appointment of the
last of the two contractors to be appointed, appoint a third contractor and
deliver written notice of the name and address of such contractor to Buyer and
Seller. Should either Buyer or Seller fail to appoint a contractor as required
by this paragraph, the contractor appointed by the other party shall appoint two
other contractors. Should the two contractors appointed by Buyer and Seller
fail, for any reason, to appoint a third contractor within the time required,
either Buyer or Seller may petition the Superior Court of San Diego County,
California for the appointment of the third contractor. Within ten (10) days
after appointment of the third contractor, the three contractors shall confer
and each shall submit in writing to Buyer and Seller his honest and best
estimate of the cost of repair of the Property, as described above, and the
estimated cost agreed on in writing by any two of the three appointed
contractors shall be conclusive and binding on Buyer and Seller, and shall
establish the Determined Cost of Repair. Should no two of the three contractors
agree on the estimated cost of repair of the Property, both the highest cost
estimate and the lowest cost estimate submitted by the three contractors shall
be disregarded and the remaining cost estimate shall be binding and conclusive
on the parties as the Determined Cost of Repair. Notwithstanding anything to the
contrary herein, if the Determined Cost of Repair exceeds One Million Dollars
($1,000,000), then Seller may terminate this Agreement by written notice to
Buyer, given to Seller no later than ten (10) business days following the final
determination of the Determined Cost of Repair in order for such notice to be
effective. If this Agreement is so terminated by Seller, then (i) Seller shall
pay all costs associated with the cancellation of the Escrow pursuant to this
Section, (ii) neither Buyer nor Seller shall have any further rights or
obligations under this Agreement (except to the extent of any indemnities under
this Agreement with respect to events occurring prior to such termination, which
indemnities shall survive any such termination), and (iii) Escrow Holder shall,
without requiring any further instruction from Seller, immediately return to
Buyer the Deposit and all interest accrued thereon; provided, however, that
Buyer may elect to cancel such termination right of Seller by electing the first
option set forth above in this Section 23, which cancellation shall only be
effective if delivered within ten (10) days following Buyer's receipt of
Seller's notice of its election to terminate this Agreement.
24. Designee. This Agreement shall be binding upon the heirs,
executors, administrator, and successors and assigns of Seller and Buyer.
Notwithstanding the forgoing, except as otherwise expressly provided below,
neither party may assign its rights and obligations under this Agreement without
the prior written consent of the other party (which consent may be withheld in
each party's
22
sole discretion). Either party may assign its rights and obligations under this
Agreement to effectuate an exchange pursuant to Section 26 below. In addition,
Buyer or Seller may assign their rights and obligations under this Agreement to
an Affiliate (as defined below) not less than ten (10) days prior to the Close
of Escrow without the other party's consent (but with written notice to the
other party). Any assignment in violation of this Section shall be void. For
purposes of this Section 23, an "Affiliate" means (a) an entity that directly or
indirectly controls, is controlled by or is under common control with Buyer or
Seller, as applicable; or (b) an entity at least a majority of whose economic
interest is owned by Buyer or Seller, as applicable; and "control" means the
power to direct the management of such entity through voting rights, ownership
or contractual obligations. No assignment pursuant to this Section 23 shall be
effective against the other party until the assigning party delivers to the
other party a fully executed copy of the assignment instrument, which instrument
must be reasonably satisfactory to the non-assigning party in both form and
substance, and pursuant to which the assignee (i) assumes and agrees to perform
for the benefit of the non-assigning party the obligations of the assigning
party under this Agreement and (ii) makes the warranties and representations
required of the assigning party under this Agreement. No assignment by shall
result in the assigning party being released from any obligations under this
Agreement. Any assignment in violation of this Section shall be void.
25. Brokers. To the best knowledge of Buyer and Seller no real
estate broker, agent, finder, or other person is responsible for bringing about
or negotiating this Agreement other than Colliers International and Phase 3
Properties, whose commissions and compensation shall be the sole responsibility
of Seller pursuant to a separate agreement. Each of Buyer and Seller represent
that it has not dealt with any other real estate broker, agent, finder, or other
person, relative to this Agreement in any manner. Each party to this Agreement
hereby indemnifies the other party to this Agreement against all liabilities,
damages, losses, costs, expenses, reasonable attorneys' fees and claims arising
from (1) any breach of such representation by such indemnifying party set forth
in the preceding sentence, and/or (2) any claims that may be made against such
indemnified party by any real estate broker, agent, finder, or other person
(other than as set forth above), alleging to have acted on behalf of or to have
dealt with such indemnifying party. Buyer hereby warrants and represents that it
has not been represented by any broker or "finder" in connection with its
purchase of the Property, except for Colliers International. Seller shall have
no liability to any broker as a result of the rent payable to Buyer pursuant to
the Lease.
26. Like Kind Exchange. Seller may elect to enter into a tax
deferred exchange under Section 1031 of the Internal Revenue Code (an
"Exchange"). Subject to the provisions of this Section 26, Buyer shall
reasonably cooperate with Seller, at no cost or expense to Buyer, in
consummating the sale of the Property by Seller in an Exchange transaction
pursuant to a written exchange agreement and related documents entered into by
Seller and a qualified intermediary, which shall be in a form reasonably
acceptable to Buyer and shall be executed and delivered on or before the Closing
Date. Seller shall indemnify, protect, defend and hold Buyer harmless from and
against any and all actions, losses, liabilities, damages, claims, demands,
causes of action, costs and expenses ("Claims") of any kind or nature whatsoever
arising out of, in connection with, or in any manner related to such Exchange
that would not have been incurred but for the structuring of the sale of the
Property by Seller as an Exchange, without limitations, any Claims suffered by
or asserted against Buyer by the Internal Revenue Service or any other taxing
authority in connection with such Exchange. Seller agrees that, and Buyer's
obligations under this Section 26 shall be expressly conditional upon, each of
the following: (a) the Exchange or any action necessary or required for any
proposed Exchange shall not delay the Close of Escrow beyond the Closing Date;
(b) Buyer
23
shall not be required to accept title to any real or personal property other
than the Property in connection with such Exchange; and (c) if Seller uses a
qualified intermediary to effectuate the Exchange, any assignment of the rights
or obligations of Seller hereunder shall not relieve, release or absolve Seller
of its obligations to Buyer hereunder. The rights and obligations of the parties
under this Section 26 shall survive the Closing or any sooner termination of
this Agreement.
27. Miscellaneous.
27.1. Attorneys' Fees. The prevailing party(ies) in any
litigation, arbitration, mediation, bankruptcy, insolvency, or other proceeding
("Proceeding") relating to the enforcement or interpretation of this Agreement
may recover from the unsuccessful party(ies) all costs, expenses, and actual
attorneys' fees (including expert witness and other consultants' fees and costs)
relating to or arising out of (i) the Proceeding (whether or not the Proceeding
proceeds to judgment), and (ii) any post-judgment or post-award proceeding
including, without limitation, one to enforce or collect any judgment or award
resulting from the Proceeding. All such judgments and awards shall contain a
specific provision for the recovery of all such subsequently incurred costs,
expenses, and actual attorneys' fees.
27.2. Governing Law. This Agreement is governed by and
construed in accordance with the laws of the State of California, irrespective
of California's choice-of-law principles.
27.3. Further Assurances. Each party to this Agreement
shall execute and deliver all instruments and documents and take all actions as
may be reasonably required or appropriate to carry out the purposes of this
Agreement.
27.4. Venue and Jurisdiction. All actions and proceedings
arising in connection with this Agreement must be tried and litigated
exclusively in the State and Federal courts located in the County of San Diego,
State of California, which courts have personal jurisdiction and venue over each
of the parties to this Agreement for the purpose of adjudicating all matters
arising out of or related to this Agreement. Each party authorizes and accepts
service of process sufficient for personal jurisdiction in any action against it
as contemplated by this paragraph by registered or certified mail, return
receipt requested, postage prepaid, to its address for the giving of notices set
forth in this Agreement.
27.5. Counterparts and Exhibits. This Agreement may be
executed in counterparts, each of which is deemed an original and all of which
together constitute one document. All exhibits attached to and referenced in
this Agreement are incorporated into this Agreement.
27.6. Time of Essence. Time and strict and punctual
performance are of the essence with respect to each provision of this Agreement.
27.7. Modification. This Agreement may be modified only by
a contract in writing executed by the party to this Agreement against whom
enforcement of the modification is sought.
24
27.8. Headings. The paragraph headings in this Agreement:
(a) are included only for convenience, (b) do not in any manner modify or limit
any of the provisions of this Agreement, and (c) may not be used in the
interpretation of this Agreement.
27.9. Prior Understandings. This Agreement and all
documents specifically referred to and executed in connection with this
Agreement: (a) contain the entire and final agreement of the parties to this
Agreement with respect to the subject matter of this Agreement, and (b)
supersede all negotiations, stipulations, understandings, agreements,
representations and warranties, if any, with respect to such subject matter,
which precede or accompany the execution of this Agreement.
27.10. Interpretation. Whenever the context so requires in
this Agreement, all words used in the singular may include the plural (and vice
versa) and the word "person" includes a natural person, a corporation, a firm, a
partnership, a joint venture, a trust, an estate or any other entity. The terms
"includes" and "including" do not imply any limitation. For purposes of this
Agreement, the term "day" means any calendar day and the term "business day"
means any calendar day other than a Saturday, Sunday or any other day designated
as a holiday under California Government Code Sections 6700-6701. Any act
permitted or required to be performed under this Agreement upon a particular day
which is not a business day may be performed on the next business day with the
same effect as if it had been performed upon the day appointed. No remedy or
election under this Agreement is exclusive, but rather, to the extent permitted
by applicable law, each such remedy and election is cumulative with all other
remedies at law or in equity.
27.11. Partial Invalidity. Each provision of this Agreement
is valid and enforceable to the fullest extent permitted by law. If any
provision of this Agreement (or the application of such provision to any person
or circumstance) is or becomes invalid or unenforceable, the remainder of this
Agreement, and the application of such provision to persons or circumstances
other than those as to which it is held invalid or unenforceable, are not
affected by such invalidity or unenforceability.
27.12. Notices. Each notice and other communication required
or permitted to be given under this Agreement ("Notice") must be in writing.
Notice is duly given to another party upon: (a) hand delivery to the other
party, (b) receipt by the other party when sent by facsimile to the address and
number for such party set forth below (provided, however, that the Notice is not
effective unless a duplicate copy of the facsimile Notice is promptly given by
one of the other methods permitted under this paragraph), (c) three business
days after the Notice has been deposited with the United States postal service
as first class certified mail, return receipt requested, postage prepaid, and
addressed to the party as set forth below, or (d) the next business day after
the Notice has been deposited with a reputable overnight delivery service,
postage prepaid, addressed to the party as set forth below with
next-business-day delivery guaranteed, provided that the sending party receives
a confirmation of delivery from the delivery-service-provider.
If to Buyer: Pfizer Inc.
00000 Xxxxxxx Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
(000) 000-0000 - (Telecopy)
Attn: Xxx Serbia
25
With copies to: Pfizer Inc.
00000 Xxxxxxx Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
(000) 000-0000 - (Telecopy)
Attn: D. Xxxxxxxxx Xxx, Esq.
Xxxxxxx Xxxx Seidenwurm & Xxxxx, LLP
000 X Xxxxxx, Xxxxx. 0000
Xxx Xxxxx, XX 00000
(000) 000-0000 - (Telecopy)
Attn: Xxxxxxx X. Xxxxxxxxxx, Esq.
If to Seller: Neurocrine Biosciences, Inc.
Attn: Xxxx Xxxxxx, Executive Vice President
00000 Xxxxxxx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000
(000) 000-0000 - (Telecopy)
With a copy to: Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
00000 Xx Xxxxxx Xxxx
Xxx Xxxxx, XX 00000
(000) 000-0000 - (Telecopy)
Attn: W. Xxxxx Xxxx, Esq.
Each party shall make a reasonable, good faith effort to ensure that it will
accept or receive Notices to it that are given in accordance with this
paragraph. A party may change its address for purposes of this paragraph by
giving the other party(ies) written notice of a new address in the manner set
forth above.
27.13. Waiver. Any waiver of a default or provision under
this Agreement must be in writing. No such waiver constitutes a waiver of any
other default or provision concerning the same or any other provision of this
Agreement. Except to the extent set forth to the contrary set forth in this
Agreement, no delay or omission by a party in the exercise of any of its rights
or remedies constitutes a waiver of (or otherwise impairs) such right or remedy.
A consent to or approval of an act does not waive or render unnecessary the
consent to or approval of any other or subsequent act.
27.14. Drafting Ambiguities. Each party to this Agreement
and its legal counsel have reviewed and revised this Agreement. The rule of
construction that ambiguities are to be resolved against the drafting party or
in favor of the party receiving a particular benefit under an agreement may not
be employed in the interpretation of this Agreement or any amendment to this
Agreement.
27.15. Third Party Beneficiaries. Nothing in this Agreement
is intended to confer any rights or remedies on any other person or entity other
than the parties to this Agreement and their respective successors-in-interest
and permitted assignees, unless such rights are expressly granted in this
Agreement to another person specifically identified as a "third party
beneficiary."
26
27.16. Counterparts. This Agreement and any amendments or
supplements to it, and the Escrow Instructions herein referred to, may be
executed in counterparts, and all counterparts together shall be construed as
one document.
27.17. Confidentiality. Neither Buyer nor Seller shall make
any public announcement or disclosure of the economic terms of this Agreement to
outside brokers or third parties, before Close of Escrow on the Property,
without the specific prior written consent of the other, except for such
disclosures to the parties' lenders, creditors, partners, members, officers,
employees, agents, consultants, attorneys, accountants, and exchange
facilitators as may be necessary to permit each party to perform its obligations
hereunder or under any related exchange documents, or as required to comply with
applicable laws and rules of any exchange upon which a party's shares may be
traded. Buyer's and Seller's obligations under this Section 27.17 shall
terminate upon the termination of this Agreement (other than by the Close of
Escrow).
[Remainder of Page Intentionally Blank; Signature Page Follows]
27
[Signature Page to Xxx 00 Xxxxxxxx Xxxxxxxxx]
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of the date
first above written.
BUYER: Pfizer Inc., a Delaware corporation
By: /s/ Xxxx X. Xxxxxxxxx
_________________________________________
Name: Xxxx X. Xxxxxxxxx
_______________________________________
Its: Vice President
_______________________________________
SELLER: Neurocrine Biosciences, Inc., a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
_________________________________________
Name: Xxxx X. Xxxxxx
_______________________________________
Its: EVP & CFO
_______________________________________
28
CONSENT AND ACCEPTANCE OF ESCROW HOLDER:
The undersigned hereby consents to and accepts the instructions set
forth in the above Agreement for Purchase and Sale and Joint Escrow
Instructions.
Chicago Title Insurance Company
By: __________________________
Its: __________________________
29
EXHIBIT A - LEGAL DESCRIPTION OF PROPERTY
XXX 00 XX XXXXXX XXXXX XXXXXXX XXXXXX, XXXX XX. 0, IN THE CITY OF SAN DIEGO,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 12845,
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JULY 23, 1991.
AND
A NON-EXCLUSIVE EASEMENT FOR DRIVEWAY, FOR VEHICULAR AND PEDESTRIAN INGRESS AND
EGRESS OVER A PORTION OF LOT 30 AS FOLLOWS:
BEING A PORTION OF XXX 00 XX XXXXXX XXXXX XXXXXXX XXXXXX, XXXX XX. 0, IN THE
CITY OF SAN DIEGO, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP
THEREOF NO. 12845 RECORDED ON JULY 23, 1991 ON FILE IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWESTERLY CORNER OF LOT 30, ALSO BEING A POINT ON A
NON-TANGENT 799.00 FOOT RADIUS CURVE CONCAVE SOUTHEASTERLY, A RADIAL FROM SAID
POINT BEARS SOUTH 63 degrees 04'32" EAST; THENCE ALONG THE ARC OF SAID CURVE
SOUTHERLY 33.36 FEET THROUGH A CENTRAL ANGLE OF 02 degrees 23'32"; THENCE
LEAVING SAID CURVE SOUTH 63 degrees 05'28" EAST 69.30 FEET; THENCE NORTH 26
degrees 55'08" EAST 42.47 FEET TO A POINT ON NORTHERLY LOT LINE OF SAID LOT;
THENCE ALONG SAID LOT LINE NORTH 70 degrees 30'59" WEST 70.60 FEET TO THE POINT
OF BEGINNING.
APN 000-000-00
1
EXHIBIT B -- EHS DOCUMENTS
1. To the extent held by Seller, all permits, planning permissions,
registrations, or authorizations issued pursuant to federal, state or local law
relating to the Seller's operation on the Property registrations or other
documentation issued by any governmental agency with jurisdiction over
environmental matters authorizing the business operations undertaken on the
Property.
2. All non-privileged correspondence, notifications, reports, and
applications filed by Seller or any affiliates or subsidiaries with federal,
state or local agencies in the regarding any environmental or health and safety
matter relating to operations on the Property.
3. All relevant documents of record relating to government inspections,
investigations, information requests, claims of violation or liability under any
environmental law or occupational health and safety law, i.e. reports of
government agencies, notices of violation administrative orders, and consent
orders, received during the prior three (3) years, or otherwise current in
effect or unabated, related to operations on the Property.
4. All relevant documents of record relating to non-governmental claims
under any environmental law, occupational health and safety law, or tort law
arising from operations on the Property.
5. All corporate, operating group, or facility driven (self audit)
environmental and health and safety audit reports and plan of action and
resolution of findings relating to operations on the Property.
6. All documentation for the previous three years relating to the
handling, storage, transportation, treatment and disposal of hazardous
substances, off-site or on-site from the Property. "Hazardous Substances"
includes all petroleum products, radioactive materials, commercial chemical
products, toxic or infectious materials, hazardous waste, and rejected or
returned goods. Such documentation includes, but is not limited to, the reports
to government agencies, manifests, characterizations, and contracts with vendors
for the previous 3 years.
7. All documents regarding historic or ongoing environmental
investigations or remediation undertaken by or for the Seller with respect to
the Property.
8. All documents related to historic or recent spills or releases to the
environment of Hazardous Substances or pharmaceutical materials from process
equipment, waste handling or disposal facilities, above or below ground
transmission lines, underground storage tanks, above ground storage tanks,
containers, container storage areas, waste storage areas, waste disposal areas,
and motor vehicles and the loading and/or unloading areas.
9. All documents related to the presence, condition, management,
disposition and replacement of asbestos containing materials, polychlorinated
biphenyls, underground storage tanks, lead paint, radioactive materials, and
ozone depleting substances. Such documentation includes existing plans to
address or manage these materials currently and in the future.
1
10. All documents for the previous five years related to water supply or
supplies including the information on the source or sources of water, permits,
usage records, analyses, treatment records, monitoring reports, and submissions
to government agencies.
11. All documents for the previous three years related to the handling and
treatment of sanitary industrial wastewater (including stormwater), past and
present, onsite or offsite; including but no limited to monitoring records,
treatment studies, analyses, evaluations of off-site impacts, and submissions to
government agencies.
12. All records for the previous five years related to the calculation,
monitoring, analysis, modeling, off-site impact, treatment and control of air
emissions, past and present.
13. All documents including surveys and audits performed by insurers and
consultants pertaining to fire safety.
14. All documents related to complaints from neighbors regarding noise,
odor, lights vibration or any other environmental matter.
2
EXHIBIT C -- FORM OF GRANT DEED
RECORDING REQUESTED BY: )
AND WHEN RECORDED MAIL TO: )
)
)
)
--------------------------------------------------------------------------------
Tax Parcel No. ________ Above Space for Recorder's Use
The undersigned, Grantor, declares:
Documentary transfer tax is $______,
( ) Computed on full value of property conveyed, or
( ) Computed on full value less value of liens and
encumbrances remaining at time of sale.
( ) Unincorporated area.
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
Science Park Center LLC, a California limited liability company, hereby grants
to Pfizer Inc., a Delaware corporation, the following described real property
("Property") situated in the City of San Diego, County of San Diego, State of
California.
See Exhibit "A" attached hereto and incorporated herein by
this reference.
This conveyance is made and accepted and the Property is hereby granted
and conveyed subject to all matters of record.
IN WITNESS WHEREOF, the Grantor has caused its name to be affixed
hereto and this instrument to be executed by those thereunto duly authorized.
Dated:_______________ GRANTOR: Neurocrine Biosciences, Inc.,
a Delaware corporation
By:: __________________________________
Xxxx X. Xxxxxx, Executive Vice President
and Chief Financial Officer
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EXHIBIT D - FIRPTA AFFIDAVIT
TRANSFEROR'S CERTIFICATION
OF NON-FOREIGN STATUS
To inform PFIZER INC., a Delaware corporation (the "TRANSFEREE") that
withholding of tax under Section 1445 of the Internal Revenue Code of 1986, as
amended ("CODE") will not be required upon the transfer by NEUROCRINE
BIOSCIENCES, INC., a Delaware corporation ("TRANSFEROR"), of real property to
the Transferee, the undersigned hereby certifies the following on behalf of the
Transferor:
l. The Transferor is not a foreign corporation, foreign partnership,
foreign trust, foreign estate or foreign person (as those terms are defined in
the Code and the Income Tax Regulations promulgated thereunder); and
2. The Transferor's U.S. employer or tax (social security) identification
number is 00-0000000.
The Transferor understands that this Certification may be disclosed to the
Internal Revenue Service by the Transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
Under penalty of perjury I declare that I have examined this Certification and
to the best of my knowledge and belief it is true, correct and complete, and I
further declare that I have authority to sign this document on behalf of the
Transferor.
"TRANSFEROR"
NEUROCRINE BIOSCIENCES, INC.
a Delaware corporation
By:: __________________________________
Xxxx X. Xxxxxx, Executive Vice President and
Chief Financial Officer
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