EXHIBIT 10.25
PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS (this
"Agreement") is made as of June 18, 2004 (the "Effective Date"), by
ILLUMINA, INC., a Delaware corporation, with a principal executive office at
0000 Xxxxx Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 ("Seller"), and Xxxxxxxx
Property Advisors, Inc, a California corporation, with a principal executive
office at 00000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000
("Purchaser").
W I T N E S S E T H:
ARTICLE I
PURCHASE AND SALE
SECTION 1.1 Agreement of Purchase and Sale. Subject to the terms and
conditions hereinafter set forth, Seller agrees to sell and convey to Purchaser,
and Purchaser agrees to purchase from Seller, all of Seller's right, title and
interest in and to the following:
(a) those certain tracts or parcels of land commonly known as
9855 through 0000 Xxxxx Xxxxxx Xxxxx, and described as Xxxxxxx 0, 0 xxx 0 xx
Xxxxxx Map 18286, all located in the City and County of San Diego, California,
and more particularly described in Exhibit A attached hereto and made a part
hereof, together with all rights and appurtenances pertaining to such property,
including any right, title and interest of Seller in and to relating to such
property, easements, covenants, adjacent streets, alleys or rights-of-way
relating to such property (the property described in clause (a) of this Section
1.1 being herein referred to collectively as the "Land");
(b) the buildings, structures, fixtures and other improvements
affixed to or located on the Land (collectively, the "Improvements");
(c) any and all of Seller's right, title and interest in and
to all tangible personal property listed on Exhibit B attached hereto (the
property described in clause (c) of this Section 1.1 being herein referred to
collectively as the "Personal Property");
(d) any and all of Seller's right, title and interest in and
to: (i) all assignable contracts and agreements (collectively, the "Operating
Agreements") listed and described on Exhibit C attached hereto and made a part
hereof, relating to the upkeep, repair, maintenance or operation of the Land,
Improvements or Personal Property; (ii) all assignable existing warranties and
guaranties (express or implied) issued to Seller by any contractor or
manufacturer in connection with the Improvements or the Personal Property; (iii)
all assignable existing permits, licenses, approvals and authorizations issued
by any governmental authority in connection with the Property; and (iv) to the
extent assignable, all trade names and general intangibles relating to the Land
or Improvements listed and described on Exhibit D attached hereto (the property
described in clause (d) of this Section 1.1 being sometimes herein referred to
collectively as the Intangibles").
SECTION 1.2 Property Defined. The Land and the Improvements are
hereinafter sometimes referred to collectively as the "Real Property". The Land,
the Improvements, the Personal Property and the Intangibles are hereinafter
sometimes referred to collectively as the "Property."
SECTION 1.3 Purchase Price. Seller agrees to sell and Purchaser agrees
to purchase the Property for the amount of Forty Two Million Dollars
($42,000,000.00) (the "Purchase Price") of which Thirty Seven Million Eight
Hundred Thousand Dollars ($37,800,000.00) shall be allocated to Parcels 1 and 2,
and Four Million, Two Hundred Thousand Dollars ($4,200,000.00) shall be
allocated to Parcel 3.
SECTION 1.4 Deposit. On or before two (2) business days after execution
of this Agreement and delivery of a fully executed copy of this Agreement to
Chicago Title Company (the "Escrow Agent"), having its office at 000 X Xxxxxx,
Xxx Xxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx Xxxxxxxx, Purchaser shall deposit
with Escrow Agent the sum of One Hundred Thousand Dollars ($100,000.00) in good
funds, either by certified bank or cashier's check or by federal wire transfer.
The Escrow Agent shall hold the deposit in an interest-bearing account
reasonably acceptable to Seller and Purchaser, in accordance with the terms and
conditions of this Agreement. All interest on such sum shall be deemed income of
Purchaser, and Purchaser shall pay all costs and fees imposed on the deposit
account. The deposit and all accrued interest (collectively, the "Deposit")
shall be distributed in accordance with the terms of this Agreement.
SECTION 1.5 Payment of Purchase Price. On the business day of the
Closing (as defined in Section 4.1 below) Purchaser shall deposit with Escrow
Agent by cashier's check or wire transfer, a sum equal to the Purchase Price, as
increased or decreased by prorations and adjustments as herein provided, plus an
amount equal to Purchaser's share of closing costs as provided herein, and less
an amount equal to the Deposit and the Option Deposit (as defined in Section 4.1
below), if any.
SECTION 1.6 Deposit as Liquidated Damages. FROM AND AFTER THE
EXPIRATION OF THE INSPECTION PERIOD AND THE TITLE INSPECTION PERIOD, AS SUCH
TERMS ARE DEFINED HEREINBELOW (THE "APPROVAL DATE"), IN THE EVENT THE SALE OF
THE PROPERTY AS CONTEMPLATED HEREUNDER IS NOT CONSUMMATED DUE TO ANY DEFAULT
UNDER THIS AGREEMENT ON THE PART OF PURCHASER AND ALL CONDITIONS PRECEDENT TO
CLOSING HAVE BEEN WAIVED OR SATISFIED, THEN THE DEPOSIT AND OPTION DEPOSIT, IF
ANY, SHALL BE PAID TO AND RETAINED BY SELLER AS LIQUIDATED DAMAGES. THE PARTIES
ACKNOWLEDGE THAT SELLER'S ACTUAL DAMAGES IN THE EVENT THAT THE SALE IS NOT
CONSUMMATED WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE.
THEREFORE, BY SEPARATELY INITIALLING THIS SECTION 1.6 BELOW, THE PARTIES
ACKNOWLEDGE THAT THE DEPOSIT, AND OPTION DEPOSIT, IF ANY, HAS BEEN AGREED UPON,
AFTER NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF SELLER'S DAMAGES AND
AS SELLER'S EXCLUSIVE REMEDY AGAINST PURCHASER IN THE EVENT THE CLOSING DOES
NOT OCCUR AND AS SELLER'S SOLE AND EXCLUSIVE REMEDY AGAINST PURCHASER ARISING
FROM SUCH FAILURE OF THE SALE TO CLOSE. IN ADDITION, PURCHASER SHALL PAY ALL
TITLE, SURVEY AND ESCROW CANCELLATION CHARGES. NOTWITHSTANDING THE FOREGOING, IN
NO EVENT SHALL THIS SECTION 1.6 LIMIT THE DAMAGES RECOVERABLE BY EITHER PARTY
AGAINST THE OTHER PARTY DUE TO (A) THE OTHER PARTY'S OBLIGATION TO INDEMNIFY
SUCH PARTY, IF ANY, IN ACCORDANCE WITH THIS AGREEMENT, OR (B) THIRD PARTY
CLAIMS. BY THEIR SEPARATELY INITIALING THIS SECTION 1.6 BELOW, PURCHASER AND
SELLER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTOOD THE ABOVE PROVISION
COVERING LIQUIDATED DAMAGES, AND THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO
EXPLAINED THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION AT THE TIME THIS
AGREEMENT WAS EXECUTED.
Purchaser's Initials /s/ ADG Seller's Initials /s/ TK
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SECTION 1.7 Escrow Agent. Escrow Agent shall hold and dispose of the
Deposit and Option Deposit, if any, in accordance with the terms of this
Agreement. Seller and Purchaser agree that the duties of the Escrow Agent
hereunder are purely ministerial in nature and shall be expressly limited to the
safekeeping and disposition of the Deposit and Option Deposit, if any, in
accordance with this Agreement. Escrow Agent shall incur no liability in
connection with the safekeeping or disposition of the Deposit and Option
Deposit, if any, for any reason other than Escrow Agent's misconduct or
negligence. In the event that Escrow Agent shall be in doubt as to its duties or
obligations with regard to the Deposit and Option Deposit, if any, or in the
event that Escrow Agent receives conflicting instructions from Purchaser and
Seller with respect to the Deposit or Option Deposit, if any, Escrow Agent shall
not be required to disburse the Deposit and Option deposit, if any, and may, at
its option, continue to hold the Deposit and Option Deposit, if any, until both
Purchaser and Seller agree as to its disposition, or until a final judgment is
entered by a court of competent jurisdiction directing its disposition, or
Escrow Agent may interplead the Deposit and Option Deposit, if any, in
accordance with the laws of the state in which the Property is located.
Escrow Agent shall not be responsible for any interest on the Deposit
or Option Deposit, if any, except as is actually earned, or for the loss of any
interest resulting from the withdrawal of the Deposit prior to the date interest
is posted thereon.
Escrow Agent shall execute this Agreement solely for the purpose of
being bound by the provisions of Sections 1.4, 1.5, 1.6,1.7 and 4.1 hereof.
ARTICLE II
TITLE
SECTION 2.1 Title Inspection Period. During the period beginning upon
the Effective Date and ending at 5:00 p.m. (local time at the Property) on June
30, 2004 (hereinafter referred to as the "Title Inspection Period"), Purchaser
shall have the right to review: (a) a current preliminary title report on the
Real Property (the "PTR") issued by Chicago Title Company (the
"Title Company"), accompanied by copies of all documents referred to in the
report; (b) copies of the most recent property tax bills for the Property; and
(c) an ALTA survey of the Real Property prepared by a licensed surveyor (the
"Survey"). Item (a) shall be obtained by Purchaser within five (5) days after
the Effective Date. Item (c) shall be obtained by Purchaser prior to the end of
the Title Inspection Period. Item (b) shall be delivered by Seller to Purchaser
within five (5) days after the Effective Date.
SECTION 2.2 Title Examination. Purchaser shall notify Seller in writing
(the "Title Notice") prior to the expiration of the Title Inspection Period
which exceptions to title (including survey matters), if any, will not be
accepted by Purchaser. If Purchaser fails to notify Seller in writing of its
disapproval of any exceptions to title by the expiration of the Title Inspection
Period, Purchaser shall be deemed to have approved the condition of title to the
Real Property. If Purchaser notifies Seller in writing that Purchaser objects to
any exceptions to title, Seller shall have two (2) business days after receipt
of the Title Notice to notify Purchaser of either of the following: (a) that
Seller will remove such objectionable exceptions from title on or before the
Closing; or (b) that Seller elects not to cause such exceptions to be removed.
If Seller fails to notify Purchaser within such two-business-day period, then
Seller shall be deemed to have made an election under the foregoing clause (b).
Notwithstanding the foregoing or any other provision of this Agreement, all
monetary obligations disclosed in the PTR are to be satisfied by Seller. The
procurement by Seller of a commitment for the issuance of the Title Policy (as
defined in Section 2.5 hereof) or an endorsement thereto insuring Purchaser
against any title exception which was disapproved pursuant to this Section 2.2
shall be deemed a cure by Seller of such disapproval. If Seller gives Purchaser
notice under clause (b) above, Purchaser shall have three (3) business days
after the date of such notice in which to notify Seller that Purchaser will
nevertheless proceed with the purchase in accordance with the provisions of this
Agreement and take title to the Property subject to such exceptions, or that
Purchaser will terminate this Agreement. Purchaser's failure to respond within
such three-business-day period shall be deemed an election to terminate this
Agreement. If, despite Seller's election to eliminate any disapproved exception
under clause (a) above, the exception has not been eliminated on or before the
Closing, Purchaser, at its option and sole discretion, may either: (a) elect in
writing to waive its prior disapproval; (b) if the exception represents a
monetary obligation, instruct Escrow Holder to deduct from Seller's proceeds
hereunder the amount necessary to satisfy the obligation and thereby eliminate
the exception; or (c) treat the failure to eliminate the exception as a failure
of a contingency under this Agreement, in which event the Escrow shall be
cancelled and this Agreement shall be terminated. If this Agreement is
terminated pursuant to the foregoing provisions of this paragraph, then neither
party shall have any further rights or obligations hereunder (except for any
indemnity obligations of either party pursuant to the other provisions of this
Agreement), the Deposit, and Option Deposit, if any, shall be returned to
Purchaser and each party shall bear its own costs incurred hereunder.
SECTION 2.3 Pre-Closing "Gap" Title Defects. Purchaser may, at or prior
to Closing, notify Seller in writing (the "Gap Notice") of any objections to
title: (a) raised by the Title Company between the expiration of the Title
Inspection Period and the Closing; and (b) not disclosed by the Title Company or
otherwise known to Purchaser prior to the expiration of the Title Inspection
Period; provided that Purchaser must notify Seller of such objection to title
within two (2) business days of being made aware of the existence of such
exception. If Purchaser sends a Gap Notice to Seller, Purchaser and Seller shall
have the same rights and
obligations with respect to such notice as apply to a Title Notice under Section
2.2 hereof; provided, however, in no event shall the date of Closing be extended
beyond July 30, 2004, or, if extended pursuant to Section 4.1, October 16, 2004.
SECTION 2.4 Permitted Exceptions. The Property shall be conveyed
subject to the following matters, which are hereinafter referred to as the
"Permitted Exceptions":
(a) those matters (including, without limitation, the
exceptions disclosed in the PTR) that either are not objected to in writing
within the time periods provided in Sections 2.2 or 2.3 hereof, or if objected
to in writing by Purchaser, are those which Seller has elected not to remove or
cure, or has been unable to remove or cure, and subject to which Purchaser has
elected or is deemed to have elected to accept the conveyance of the Property;
(b) the lien of all ad valorem real estate taxes and
assessments not yet due and payable as of the date of Closing, subject to
adjustment as herein provided;
(c) local, state and federal laws, ordinances or governmental
regulations, including but not limited to, building and zoning laws, ordinances
and regulations, now or hereafter in effect relating to the Property;
(d) items shown on the Survey and not objected to by Purchaser
or waived or deemed waived by Purchaser in accordance with Section 2.2 or
Section 2.3 hereof;
(e) rights of tenants under leases affecting the Property,
including the lease dated as of the Closing between Seller and Purchaser in the
form attached hereto as Exhibit I (the "Lease"); and
(f) the lien of the deed of trust securing a loan (the "Loan")
to Purchaser from its mortgage lender ("Lender").
SECTION 2.5 Conveyance of Title. At Closing, Seller shall convey and
transfer to Purchaser fee simple title to the Land and Improvements, by
execution and delivery of the Deed (as defined in Section 4.3(a) hereof) and
Escrow Agent shall obtain the irrevocable commitment of the Title Company to
issue an ALTA Joint Protection Policy of Title Insurance (the "Title Policy")
covering the Real Property, in the full amount of the Purchase Price, subject
only to the Permitted Exceptions
ARTICLE III
REVIEW OF PROPERTY
SECTION 3.1 Right of Physical Inspection. During the period beginning
upon the Effective Date and ending at 5:00 p.m. (local time at the Property) on
June 30, 2004 (the "Inspection Period"), Purchaser, its agents, employees, and
independent contractors, shall have the right to make a physical inspection of
the Real Property and perform an environmental, soil, geological or other
assessment on the Property pursuant to the terms and conditions of this
Agreement.
Purchaser understands and agrees that any on-site inspections or
environmental assessments of the Property shall occur at reasonable times agreed
upon by Seller and Purchaser after reasonable prior written notice to Seller and
shall be conducted so as not to interfere unreasonably with the use of the
Property by Seller. Seller reserves the right to have a representative present
during any such inspections. Purchaser shall promptly restore the Real Property
to its prior condition following any such inspections or assessments, at
Purchaser's sole cost and expense. At Seller's option, Purchaser will furnish to
Seller copies of any reports received by Purchaser relating to any inspections
of the Property. Purchaser agrees to protect, indemnify, defend and hold Seller
harmless from and against any claim for liabilities, losses, costs, expenses
(including reasonable attorneys fees), damages or injuries arising out of or
resulting from the inspection of the Property by Purchaser or its agents or
consultants, and notwithstanding anything to the contrary in this Agreement,
such obligation to indemnify, defend and hold harmless shall survive Closing or
any termination of this Agreement.
SECTION 3.2 Document Inspection. Seller shall make available (and copy
if requested) all of the following to Purchaser within five (5) days after the
Effective Date to the extent that such items are in the possession, custody or
control of Seller:
(a) copies of any environmental, physical condition, ADA and
other reports relating to the Property in Seller's possession;
(b) a list and complete copies of all Operating Agreements,
including any amendments and other documents pertaining hereto;
(c) plans, permits, specifications and certificates of
occupancy for the Real Property;
(d) all other reports, surveys, or other information
(including, without limitation, any notices with respect to the Property
received from any governmental agency) in Seller's possession relating to the
Property;
(e) the last 12 months utility bills and other operating
expenses for the Real Property;
(f) existing insurance policies for the Property;
(g) existing leases, licenses, permits and certificates
pertaining to the Property; and
(h) such other operating files maintained by Seller in
connection with the maintenance or management of the Property, including,
without limitation, insurance policies, bills, invoices, receipts and other
general records relating to the income and expense of the Property, but
excluding materials not directly relating to the maintenance and/or management
of the Property, such as, without limitation, Seller's internal memoranda,
financial projections, budgets, appraisals, accounting and tax records,
correspondence and documents to and from prospective purchasers and brokers, and
similar proprietary or confidential information.
SECTION 3.3 Right of Termination. During the period beginning on the
Effective Date and ending at 5:00 p.m. (local time at the Property) on June 30,
2004 (the "Due Diligence Period"), if for any reason Purchaser, in its sole
discretion, determines that the Property or any aspect thereof is unsuitable for
Purchaser's acquisition, either Purchaser or Seller shall have the right to
terminate this Agreement by giving written notice thereof to the other, and if
such notice is given, this Agreement shall terminate. If this Agreement is
terminated pursuant to the foregoing provisions of this paragraph, then neither
party shall have any further rights or obligations hereunder (except for any
indemnity obligations of either party pursuant to the other provisions of this
Agreement), the Deposit shall be immediately returned to Purchaser without any
action being necessary, and each party shall bear its own costs incurred
hereunder. If Purchaser fails to give Seller a notice of termination prior to
the expiration of the Due Diligence Period, Purchaser shall be deemed to have
approved all aspects of the Property (except gap title issues governed by
Section 2.3 hereof) and to have elected to proceed with the purchase of the
Property pursuant to the terms hereof.
ARTICLE IV
CLOSING
SECTION 4.1 Time and Place. The consummation of the transaction
contemplated hereby (the "Closing") shall be consummated within five (5)
business days of the date Purchaser, or its successor in interest, closes upon
its initial public offering, but not later than July 30, 2004, through an escrow
closing administered by Escrow Agent pursuant to joint instructions from Seller
and Purchaser. At the Closing, Seller and Purchaser shall perform the
obligations set forth in, respectively, Section 4.3 and Section 4.4 hereof, the
performance of which obligations shall be concurrent conditions. The Closing
shall be held at the offices of Escrow Agent set forth in Section 1.4. If the
sale transaction fails to Close by said date due to the extension of Purchaser's
public offering date, Purchaser shall have the option to extend the Closing Date
to the earlier of (i) five (5) business days after the date Purchaser, or its
successor in interest, closes upon its initial public offering, or (ii) October
16, 2004, by depositing with Escrow Agent an additional Fifty Thousand Dollars
($50,000) in good funds, either by certified bank or cashier's check or by
federal wire transfer. The Escrow Agent shall hold the deposit in an
interest-bearing account reasonably acceptable to Seller and Purchaser, in
accordance with the terms and conditions of this Agreement. All interest on such
sum shall be deemed income of Purchaser, and Purchaser and Seller shall pay all
costs and fees imposed on the deposit account. The deposit and all accrued
interest (collectively, the "Option Deposit") shall be distributed in accordance
with the terms of this Agreement.
SECTION 4.2 If Purchaser is unable to execute its initial public
offering on or before October 16, 2004, Seller shall have the right to terminate
this Agreement without incurring any liability to Purchaser, and Purchaser's
Deposit and Option Deposit and all accrued interest thereon will be returned to
Purchaser. On the Closing, the Deposit, the Option Deposit, if any, and all
interest thereon shall be credited against the Purchase Price, and the balance
of the Purchase Price shall be paid by Purchaser to Seller through Escrow Agent
SECTION 4.3 Seller's Obligations at Closing. On or before two (2) days
before Closing, Seller shall:
(a) deliver to Escrow Agent a duly executed grant deed (the
"Deed") in the form attached hereto as Exhibit E, conveying the Land and
Improvements;
(b) deliver to Purchaser a duly executed xxxx of sale (the
"Xxxx of Sale") in the form attached hereto as Exhibit F conveying the Personal
Property;
(c) deliver to Purchaser a duly executed assignment and
assumption agreement (the "Assignment of Contracts") in the form attached hereto
as Exhibit G assigning Seller's interest in the Operating Agreements and the
other Intangibles, to the extent assignable;
(d) deliver such evidence as the Title Company may reasonably
require as to the authority of the person or persons executing documents on
behalf of Seller;
(e) deliver to Purchaser a certificate in the form attached
hereto as Exhibit H duly executed by Seller stating that Seller is not a
"foreign person" as defined in the Federal Foreign Investment in Real Property
Tax Act of 1980;
(f) deliver to Purchaser the Operating Agreements;
(g) deliver such affidavits as may be customarily and
reasonably required by the Title Company, in a form reasonably acceptable to
Seller;
(h) Execute a closing statement acceptable to Seller;
(i) deliver such additional documents as shall be reasonably
required to consummate the transaction contemplated by this Agreement; and
(j) deliver to Purchaser the Lease in the form of Exhibit I
attached hereto, duly executed by Seller.
SECTION 4.4 Purchaser's Obligations at Closing. Except as otherwise
provided, on or before two (2) days before Closing, Purchaser shall:
(a) deliver to Seller a duly executed Assignment of Contracts;
(b) deliver such evidence as the Title Company may reasonably
require as to the authority of the person or persons executing documents on
behalf of Purchaser;
(c) deliver such affidavits as may be customarily and
reasonably required by the Title Company, in a form reasonably acceptable to
Purchaser;
(d) execute a closing statement acceptable to Purchaser;
(e) deliver such additional documents as shall be reasonably
required to consummate the transaction contemplated by this Agreement; and
(f) deliver to Seller the Lease in the form of Exhibit I
attached hereto, duly executed by Purchaser.
SECTION 4.5 Intentionally Omitted.
SECTION 4.6 Closing Costs.
(a) Seller and Purchaser shall execute such returns,
questionnaires and other documents as shall be required with regard to all
applicable real property transaction taxes imposed by applicable federal, state
or local law or ordinance.
(b) Seller shall pay the fees of any counsel representing
Seller in connection with this transaction. Seller shall also pay the following
costs and expenses:
(i) one-half of the escrow fee, if any, which may be
charged by the Escrow Agent or Title Company;
(ii) any imposed transfer tax, documentary stamp tax
or similar tax which becomes payable by reason of the transfer of the Property
(excluding, however, any sales tax in respect of the Personal Property);
(iii) the title insurance premium for an ALTA
standard form of owner's title policy;
(iv) the cost of Seller's leasehold policy of title
insurance., and
(v) all costs associated with the prepayment of
Seller's mortgage or deed of trust secured by the Property.
(c) Purchaser shall pay the fees of any counsel representing
Purchaser in connection with this transaction. Purchaser shall also pay the
following costs and expenses:
(i) one-half of the escrow fee, if any, which may be
charged by the Escrow Agent or Title Company;
(ii) any loan fees or other fees associated with the
Loan, if any;
(iii) the cost of any title policy required by the
Lender under the Loan and the cost of any endorsements to either the owner's
title policy or lender's title policy; and
(iv) the cost of the Survey.
(d) All costs and expenses incident to this transaction and
the closing thereof, and not specifically described above, shall be paid by the
party incurring same.
(e) The provisions of this Section 4.6 shall survive the
Closing.
SECTION 4.7 Conditions Precedent to Obligation of Purchaser. The
obligation of Purchaser to consummate the transaction hereunder shall be subject
to the fulfillment on or before the date of Closing of all of the following
conditions, any or all of which may be waived by Purchaser in its sole
discretion:
(a) Seller shall have delivered all of the items required to
be delivered pursuant to the terms of this Agreement, including but not limited
to, those provided for in Section 4.3 hereof and the representation letter
provided for in Section 10.16 hereof;
(b) all of the representations and warranties of Seller
contained in this Agreement shall be true and correct in all material respects
as of the date of Closing;
(c) Seller shall have performed and observed, in all material
respects, all covenants and agreements of this Agreement to be performed and
observed by Seller as of the date of Closing;
(d) Seller have entered into the Lease with Purchaser for the
Property in the form attached hereto as Exhibit I;
(e) the Title Company shall be prepared and irrevocably
committed to issue to Purchaser the Title Policy and any Lender's policy and all
endorsements Purchaser or Lender may request in an amount equal to the Purchase
Price/Loan;
(f) the physical condition of the Property shall be
substantially the same on the Closing Date as on the Effective Date, reasonable
wear and tear excepted;
(g) no proceeding shall have been commenced against Seller
under the federal Bankruptcy Code or any state law for relief of debtors;
(h) the financial condition of the Seller on the Closing Date
shall not have changed in a material adverse manner from the Effective Date;
(i) no moratorium, statute or regulation of any governmental
agency or order or ruling of any court shall have been enacted, adopted, or
issued which would have a material adverse affect on Purchaser's use or
development of the Property; and
(j) Purchaser or its successor-in-interest have closed upon
the funding of its Initial Public Offering.
SECTION 4.8 Conditions Precedent to Obligation of Seller. The
obligation of Seller to consummate the transaction hereunder shall be subject to
the fulfillment on or before the date of Closing of all of the following
conditions, any or all of which may be waived by Seller in its sole discretion:
(a) Purchaser shall have delivered all of the items required
to be delivered pursuant to the terms of this Agreement, including but not
limited to, those provided for in Section 4.4 hereof;
(b) All of the representations and warranties of Purchaser
contained in this Agreement shall be true and correct in all material respects
as of the date of Closing;
(c) Purchaser shall have performed and observed, in all
material respects, all covenants and agreements of this Agreement to be
performed and observed by Purchaser as of the date of Closing;
(d) Purchaser shall have entered into the Lease with Seller
for the Property in form of Exhibit I attached hereto; and
(e) Title Company shall be irrevocably committed to issue a
leasehold policy of title insurance acceptable to Seller.
SECTION 4.9 Close of Escrow. Provided that Escrow Agent has received
the documents, instruments and funds described herein, provided that Escrow
Agent has not received written notice from either Purchaser or Seller that this
Agreement has been terminated or that any of the conditions to Closing set forth
herein have not been satisfied or waived, and provided further that the Title
Company is able to deliver to Purchaser a commitment to issue the Title Policy
and to Seller a commitment to issue Seller's leasehold policy, then Escrow Agent
is authorized and instructed at 8:00 a.m. on the date of the Closing to:
(a) Record the Deed with the San Diego County Recorder; and
(b) Deliver the Purchase Price to Seller, as increased or
decreased by prorations and adjustments as provided herein and less Seller's
share of closing costs.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 5.1 Representations and Warranties of Seller. Seller hereby
makes the following representations and warranties to Purchaser as of the
Effective Date, each of which representations and warranties shall be deemed to
have been made again as of the Closing:
(a) Organization and Authority. Seller has been duly organized
and is validly existing under the laws of the State of Delaware. Seller has the
full right and authority to enter into this Agreement and to transfer all of the
Property and to consummate or cause to be consummated the transaction
contemplated by this Agreement. The execution, delivery and performance of this
Agreement have been duly authorized by all necessary action on Seller's part.
The person(s) signing this Agreement on behalf of Seller is(are) authorized to
do so;
(b) Pending Actions. To Seller's actual knowledge, there are
no actions, suits, arbitrations, unsatisfied orders or judgments, government
investigations or proceedings pending against Seller or the Property which, if
adversely determined, could individually or in the aggregate have a material
adverse affect on the Property or use thereof, or Seller's ability to perform
hereunder;
(c) Operating Agreements. To Seller's actual knowledge, the
Operating Agreements are all of the agreements concerning the post Closing
operation and maintenance of the Property which will impose financial
obligations upon Purchaser;
(d) Condemnation. No condemnation proceedings are pending or,
to Seller's actual knowledge, threatened against the Property;
(e) Violations. To Seller's actual knowledge, there are no
uncured violations of any federal, state or local law relating to the use or
operation of the Property which would adversely affect the Property or use
thereof;
(f) Leases. There are no leases affecting the Property other
than the Lease and that lease with Ambit Biosciences, that lease with Morphogene
and that lease with Diversified Properties;
(g) Environmental. To Seller's actual knowledge there has not
been any release of hazardous substances on or beneath the Real Property in
violation of any federal, state or local law, and Seller has received no written
notice of any violation of claimed violation of any law, rule, or regulation
relating to hazardous substances (as used in this clause (g), "hazardous
substances" shall have the meaning set forth in Section 25359.7 of the
California Health and Safety Code);
(h) Lien or Encumbrances. To Seller's actual knowledge, title
to the Property is not subject to any liens or encumbrances (including
mechanics' liens) including, without limitation, liens or claims for delinquent
taxes, and security agreements and pledges, except for those exceptions to title
shown in the PTR or the other Permitted Exceptions;
(i) No Agreements. Except for agreements terminable at will
without penalty or premium or as specified in this Agreement (including, without
limitation, the Permitted Exceptions), Seller has not entered into any
agreements or understandings concerning the Property by which Purchaser would be
bound following the Closing;
(j) Taxes. To Seller's actual knowledge, there are no taxes,
assessments (special, general or otherwise) or bonds of any nature assessed
against the Property, or any portion thereof, except as disclosed in the PTR;
(k) Utilities. To Seller's actual knowledge, all utilities for
servicing the Property are being provided and paid current; and
(l) To Seller's actual knowledge, there are no latent or
patent construction defects in the structural components of the footings,
foundation, ground floor slab, roof or load bearing walls of the Property
SECTION 5.2 Knowledge Defined. References to the "knowledge or
awareness" of Seller shall be deemed to include the present and actual knowledge
of Xxx Xxxx, the Chief Financial Officer of Seller (after due internal inquiry
of Seller by said officer) whose primary work involves or is associated with
ownership, operation or maintenance of the Property, and Seller's "written
notice" shall be deemed to include notices sent to his attention.
SECTION 5.3 Survival of Seller's Representations and Warranties. The
representations and warranties of Seller set forth in Section 5.1 hereof as
updated as of the Closing in accordance with the terms of this Agreement, shall
not survive Closing.
SECTION 5.4 Covenants of Seller.
(a) Maintenance of Property. Seller hereby covenants with
Purchaser that from the Effective Date hereof until the Closing or earlier
termination of this Agreement, Seller shall maintain the Property in good
repair, reasonable wear and tear excepted, and in a manner generally consistent
with the manner in which Seller has maintained the Property prior to the date
hereof;
(b) Notification of Subsequent Events. If, prior to Closing,
the Seller becomes aware of any event which would have a material adverse effect
on the condition or operation of the Property as a whole, the Seller will
immediately notify in writing the Purchaser of such event.
SECTION 5.5 Representations and Warranties of Purchaser. Purchaser
hereby makes the following representations and warranties to Seller as of the
Effective Date, which representations and warranties shall be deemed to have
been made again as of the Closing:
(a) Organization and Authority. Purchaser has been duly
organized and is validly existing under the laws of the State of California.
Purchaser has the full right and authority to enter into this Agreement and to
consummate or cause to be consummated the transaction contemplated by this
Agreement. The execution, delivery, and performance of this Agreement have been
duly authorized by all necessary action on Purchaser's part. The person(s)
signing this Agreement on behalf of Purchaser is(are) authorized to do so; and
(b) Pending Actions. To Purchaser's knowledge, there is no
action, suit, arbitration, unsatisfied order or judgment, government
investigation or proceeding pending against Purchaser which, if adversely
determined, could individually or in the aggregate materially interfere with the
consummation of the transaction contemplated by this Agreement.
ARTICLE VI
DEFAULT
SECTION 6.1 Default by Purchaser. In the event the sale of the Property
as contemplated hereunder is not consummated due to Purchaser's default
hereunder, Seller, as its sole remedy, shall be entitled pursuant to Section 1.6
hereof to terminate this Agreement and receive the Deposit and Option Deposit,
if any, as liquidated damages for the breach of this Agreement.
SECTION 6.2 Default by Seller. In the event the sale of the Property as
contemplated hereunder is not consummated due to Seller's default hereunder,
which default shall be limited to the failure or refusal of Seller to deliver
the documents described in Section 4.3 (a) through (e) inclusive, and (j) above,
Purchaser shall be entitled, in addition to all other remedies available at law
or in equity, to: (a) reimbursement by Seller of its third party Property due
diligence
expenses not to exceed Fifty Thousand Dollars ($50,000.00) and receive the
return of the Deposit and Option Deposit, if any, which return shall operate to
terminate this Agreement; or (b) enforce specific performance of Seller's
obligation to convey the Property to Purchaser in accordance with the terms of
this Agreement.
ARTICLE VII
RISK OF LOSS
SECTION 7.1 Risk of Loss. Any risk of loss to the Property shall be
borne by Seller until the Closing. If prior to the Closing there are instituted
any proceedings, whether judicial, administrative, or otherwise, which relate to
the taking of any material portion of the Property by eminent domain or the
Property is destroyed or materially damaged in whole or in part, Purchaser shall
have the right to terminate this Agreement by giving Seller written notice
within five (5) business days after it has received notice of such eminent
domain proceeding or destruction of the Property. Upon any termination pursuant
to this Section 7.1, the parties shall proceed as if this Agreement had been
terminated pursuant to Section 3.3 hereof. If Purchaser does not terminate this
Agreement, then at the Closing, Seller shall assign to Purchaser all of its
right, title, and interest in any proceeds or award arising out of such taking
or destruction.
ARTICLE VIII
COMMISSIONS
SECTION 8.1 Brokerage Commissions. Other than CB Xxxxxxx Xxxxx (which
Purchaser shall be responsible for paying any commission or other fee pursuant
to a separate document), Purchase and Seller represent and warrant one to the
other that there have been no dealings with any real estate broker or agent in
connection with the negotiation of the sale of the Property. Each party hereto
agrees that if any person or entity makes a claim for brokerage commissions or
finder's fees related to the sale of the Property by Seller to Purchaser, and
such claim is made by, through or on account of any acts or alleged acts of said
party or its representatives, said party will protect, indemnify, defend and
hold the other party free and harmless from and against any and all loss,
liability, cost, damage and expense (including reasonable attorneys' fees) in
connection therewith. The provisions of this paragraph shall survive Closing or
any termination of this Agreement.
ARTICLE IX
DISCLAIMERS AND WAIVERS
SECTION 9.1 No Reliance on Documents. Except as expressly stated
herein, Seller makes no representation or warranty as to the truth, accuracy or
completeness of any materials, data or information delivered by Seller to
Purchaser in connection with the transaction contemplated hereby. Purchaser
acknowledges and agrees that all materials, data and information delivered by
Seller to Purchaser in connection with the transaction contemplated hereby are
provided to Purchaser as a convenience only and that any reliance on or use of
such materials, data or information by Purchaser shall be at the sole risk of
Purchaser, except as otherwise expressly stated herein. Without limiting the
generality of the foregoing provisions,
Purchaser acknowledges and agrees that (a) any environmental or other report
with respect to the Property which is delivered by Seller to Purchaser shall be
for general informational purposes only, (b) Purchaser shall not have any right
to rely on any such report delivered by Seller to Purchaser, but rather will
rely on its own inspections and investigations of the Property and any reports
commissioned by Purchaser with respect thereto, and (c) neither Seller, any
affiliate of Seller nor the person or entity which prepared any such report
delivered by Seller to Purchaser shall have any liability to Purchaser for any
inaccuracy in or omission from any such report or in verbal communication.
SECTION 9.2 Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT AND THE LEASE, IT IS UNDERSTOOD AND AGREED THAT SELLER IS NOT MAKING
AND HAS NOT AT ANY TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR
CHARACTER, EXPRESSED OR IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT
NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE (OTHER THAN SELLER'S
LIMITED WARRANTY OF TITLE TO BE SET FORTH IN THE DEED), ZONING, TAX
CONSEQUENCES, LATENT OR PATENT PHYSICAL OR ENVIRONMENTAL CONDITION, UTILITIES,
OPERATING HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS, THE
COMPLIANCE OF THE PROPERTY WITH GOVERNMENTAL LAWS, THE TRUTH, ACCURACY OR
COMPLETENESS OF THE PROPERTY DOCUMENTS OR ANY OTHER INFORMATION PROVIDED BY OR
ON BEHALF OF SELLER TO PURCHASER, OR ANY OTHER MATTER OR THING REGARDING THE
PROPERTY. PURCHASER ACKNOWLEDGES AND AGREES THAT UPON CLOSING SELLER SHALL SELL
AND CONVEY TO PURCHASER AND PURCHASER SHALL ACCEPT THE PROPERTY "AS IS, WHERE
IS, WITH ALL FAULTS", EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS
AGREEMENT OR THE LEASE. PURCHASER HAS NOT RELIED AND WILL NOT RELY ON, AND
SELLER IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESSED OR IMPLIED WARRANTIES,
GUARANTIES, STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE
PROPERTY OR RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT LIMITATION,
PROPERTY INFORMATION PACKAGES DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR
FURNISHED BY SELLER OR ANY PERSON OR ENTITY REPRESENTING OR PURPORTING TO
REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR
IN WRITING, UNLESS SPECIFICALLY SET FORTH IN THIS AGREEMENT. PURCHASER
REPRESENTS TO SELLER THAT PURCHASER HAS CONDUCTED, OR WILL CONDUCT PRIOR TO
CLOSING, SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING BUT NOT LIMITED TO, THE
PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AS PURCHASER DEEMS NECESSARY TO
SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY AND THE EXISTENCE OR
NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO ANY HAZARDOUS OR
TOXIC SUBSTANCES ON OR DISCHARGED FROM THE PROPERTY, AND WILL RELY SOLELY UPON
SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER OR ITS
AGENTS OR EMPLOYEES WITH RESPECT THERETO, OTHER THAN SUCH REPRESENTATIONS,
WARRANTIES AND COVENANTS OF SELLER AS ARE EXPRESSLY SET FORTH IN
THIS AGREEMENT. EXCEPT AS SET FORTH IN THE LEASE AND AS TO ANY ENVIRONMENTAL
CONDITIONS CREATED BY SELLER, UPON CLOSING, PURCHASER SHALL ASSUME THE RISK THAT
ADVERSE MATTERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE
PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY PURCHASER'S
INVESTIGATIONS, AND PURCHASER, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED,
RELINQUISHED AND RELEASED SELLER (AND SELLER'S OFFICERS, DIRECTORS,
SHAREHOLDERS, EMPLOYEES AND AGENTS) FROM AND AGAINST ANY AND ALL CLAIMS,
DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT), LOSSES, DAMAGES,
LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEYS' FEES AND COURT COSTS) OF
ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH PURCHASER MIGHT HAVE
ASSERTED OR ALLEGED AGAINST SELLER (AND SELLER'S OFFICERS, DIRECTORS,
SHAREHOLDERS, EMPLOYEES AND AGENTS) AT ANY TIME BY REASON OF OR ARISING OUT OF
ANY LATENT OR PATENT CONSTRUCTION DEFECTS OR PHYSICAL CONDITIONS, VIOLATIONS OF
ANY APPLICABLE LAWS (INCLUDING, WITHOUT LIMITATION, ANY ENVIRONMENTAL LAWS) AND
ANY AND ALL OTHER ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS REGARDING
THE PROPERTY. AS PART OF THE PROVISIONS OF THIS SECTION 9.2, BUT NOT AS A
LIMITATION THEREON, PURCHASER HEREBY AGREES, REPRESENTS AND WARRANTS THAT THE
MATTERS RELEASED HEREIN ARE NOT LIMITED TO MATTERS WHICH ARE KNOWN OR DISCLOSED,
AND PURCHASER HEREBY WAIVES ANY AND ALL RIGHTS AND BENEFITS WHICH IT NOW HAS, OR
IN THE FUTURE MAY HAVE CONFERRED UPON IT, BY VIRTUE OF THE PROVISIONS OF
FEDERAL, STATE OR LOCAL LAW, RULES OF REGULATIONS, INCLUDING WITHOUT LIMITATION,
SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA, WHICH PROVIDES AS
FOLLOWS:
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.
NOTWITHSTANDING THE FOREGOING, THIS SECTION 9.2 SHALL NOT AFFECT ANY RIGHTS OF
PURCHASER AS LANDLORD UNDER THE LEASE.
SECTION 9.3 Indemnification by Seller. Notwithstanding the foregoing
Section 9.1, from and after the Closing, Seller shall indemnify and hold
Purchaser, its affiliates, members and partners, and the partners, shareholders,
officers, directors, employees, representatives and agents of each of the
foregoing harmless from and against any and all liability, costs, fees,
expenses, damages, deficiencies, interest and penalties (including, without
limitation, reasonable attorneys' fees and disbursements) owing to third parties
(collectively, "Losses") arising out of, or in any way relating to, the
ownership, operation and management of the Property arising prior to the
Closing notwithstanding when the claim for the Loss is asserted. The obligations
of this Section 9.4 shall survive the Closing.
SECTION 9.4 Indemnification by Purchaser. From and after the Closing,
Purchaser shall indemnify and hold Seller, its affiliates and shareholders, and
the partners, shareholders, officers, directors, employees, representatives and
agents of each of the foregoing harmless from and against any and all Losses
arising out of, or in any way relating to any event, act, or omission on the
part of Purchaser relating to the Property and arising after the Closing. The
obligations of this Section 9.5 shall survive the Closing. Notwithstanding the
foregoing, this Section 9.4 shall not affect any rights of Purchaser as Landlord
under the Lease.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Confidentiality. Except when required to disclose by
applicable law, including public company reporting requirements (it being
understood by the parties that Seller, as a public company, may need to disclose
the transaction contemplated hereby upon the execution of this Agreement), each
party and its representatives shall hold in strictest confidence all data and
information obtained with respect to the Property or the transaction
contemplated hereunder, whether obtained before or after the execution and
delivery of this Agreement and whether or not marked "confidential," and shall
not disclose the same to others; provided, however, that it is understood and
agreed that the parties may disclose such data and information to their
employees, lenders, consultants, accountants, underwriters, investors and
attorneys provided that such persons agree to treat such data and information
confidentially. In the event this Agreement is terminated or Purchaser fails to
perform hereunder, Purchaser shall promptly return to Seller any statements,
documents, schedules, exhibits or other written information obtained from Seller
in connection with this Agreement or the transaction contemplated herein. The
provisions of this Section 10.1 shall survive Closing or any termination of this
Agreement.
SECTION 10.2 Public Disclosure. Except when required to disclose by
applicable law, including public company reporting requirements (it being
understood by the parties that Seller, as a public company, may need to disclose
the transaction contemplated hereby upon the execution of this Agreement), prior
to the Closing, any release to the public of information with respect to the
sale contemplated herein or any matters set forth in this Agreement will be made
only in the form reasonably approved in writing by Purchaser and Seller. The
provisions of this Section 10.2 shall survive the Closing or any termination of
this Agreement.
SECTION 10.3 Assignment. Subject to the provisions of this Section
10.3, the terms and provisions of this Agreement are to apply to and bind the
permitted successors and assigns of the parties hereto. Purchaser shall have the
right to assign this Agreement to any affiliate of Purchaser in which Purchaser
is a partner, member or shareholder and which is managed and controlled by
Purchaser without Seller's consent. Purchaser shall not have the right to assign
this agreement to any other entity, whether voluntary or involuntary, without
Seller's prior written consent, which consent Seller may condition or withhold
in its sole, unfettered and absolute discretion. Purchaser and a permitted
assignee shall execute an assignment and assumption of this Agreement in form
and substance reasonably satisfactory to Seller. Purchaser shall not be
released of liability under this Agreement by any such assignment. Seller hereby
consents to the assignment of this Agreement to BioMed Realty Trust, Inc., a
Maryland corporation or BioMed Realty, LP, a Maryland limited partnership, which
shall succeed to the business of Purchaser in connection of an initial public
offering of its stock.
SECTION 10.4 Notices. Any notice pursuant to this Agreement shall be
given in writing by: (a) personal delivery; (b) reputable overnight delivery
service with proof of delivery;(c) United States Mail, postage prepaid,
registered or certified mail, return receipt requested; or (d) legible facsimile
transmission, sent to the intended addressee at the address set forth below, or
to such other address or to the attention of such other person as the addressee
shall have designated by written notice sent in accordance herewith, and shall
be deemed to have been given upon receipt or refusal to accept delivery, or, in
the case of facsimile transmission, as of the date of the facsimile transmission
provided that an original of such facsimile is also sent to the intended
addressee by means described in clauses (a), (b) or (c) above. Unless changed in
accordance with the preceding sentence, the addresses for notices given pursuant
to this Agreement shall be as follows:
If to Seller: ILLUMINA, INC.
0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
Telephone:
Fax:
If to Purchaser: XXXXXXXX PROPERTY ADVISORS
00000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Gold
Telephone:
Fax:
with a copy to: XXXXXXXX PROPERTY ADVISORS
00000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx
Telephone:
Fax:
SECTION 10.5 Modifications. This Agreement cannot be changed orally,
and no executory agreement shall be effective to waive, change, modify or
discharge it in whole or in part unless such executory agreement is in writing
and is signed by the parties against whom enforcement of any waiver, change,
modification or discharge is sought.
SECTION 10.6 Entire Agreement. This Agreement, including the exhibits
and schedules hereto, contains the entire agreement between the parties hereto
pertaining to the subject matter hereof and fully supersedes all prior written
or oral agreements and understandings between the parties pertaining to such
subject matter.
SECTION 10.7 Further Assurances. Each party agrees that it will execute
and deliver such other documents and take such other action, whether prior or
subsequent to Closing, as may be reasonably requested by the other party to
consummate the transaction contemplated by this Agreement. The provisions of
this Section 10.7 shall survive Closing.
SECTION 10.8 Counterparts. This Agreement may be executed in
counterparts, all such executed counterparts shall constitute the same
agreement, and the signature of any party to any counterpart shall be deemed a
signature to, and may be appended to, any other counterpart.
SECTION 10.9 Facsimile Signatures. In order to expedite the transaction
contemplated herein, telecopied signatures may be used in place of original
signatures on this Agreement. Seller and Purchaser intend to be bound by the
signatures on the telecopied document, are aware that the other party will rely
on the telecopied signatures, and hereby waive any defenses to the enforcement
of the terms of this Agreement based on the form of signature.
SECTION 10.10 Severability. If any provision of this Agreement is
determined by a court of competent jurisdiction to be invalid or unenforceable,
the remainder of this Agreement shall nonetheless remain in full force and
effect; provided that the invalidity or unenforceability of such provision does
not materially adversely affect the benefits accruing to any party hereunder.
SECTION 10.11 Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California. Furthermore,
substantial obligations under this Agreement are to be performed in San Diego,
California. The parties select San Diego, California as the proper and sole
venue for any action filed to enforce, construe, or interpret this Agreement.
Purchaser and Seller agree that the provisions of this Section 10.11 shall
survive the Closing or any termination of this Agreement.
SECTION 10.12 No Third-Party Beneficiary. The provisions of this
Agreement and of the documents to be executed and delivered at Closing are and
will be for the benefit of Seller and Purchaser only and are not for the benefit
of any third party, and accordingly, no third party shall have the right to
enforce the provisions of this Agreement or of the documents to be executed and
delivered at Closing.
SECTION 10.13 Captions. The section headings appearing in this
Agreement are for convenience of reference only and are not intended, to any
extent and for any purpose, to limit or define the text of any section or any
subsection hereof.
SECTION 10.14 Construction. The parties acknowledge that the parties
and their counsel have reviewed and revised this Agreement and that the normal
rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this
Agreement or any exhibits or amendments hereto.
SECTION 10.15 Attorneys' Fees. In the event of any dispute,
arbitration, action, or other proceeding brought by either party against the
other under this Agreement, the prevailing party shall be entitled to recover
all costs and expenses incurred in connection with such dispute, arbitration,
action, or other proceeding, including, without limitation, the fees and costs
of its
attorneys, whether or not such dispute, arbitration, action, or other proceeding
proceeds to formal resolution or judgment.
SECTION 10.16 Audit. At no cost to Seller, Seller shall provided
Purchaser's independent auditors access to Seller's files, documentation,
leases, books and records relating to the Property so as to allow Purchaser's
auditors to prepare audited financial statements of the Property as required by
the Securities and Exchange Commission and Seller shall provide such auditors
with a representation letter acceptable to such auditors pertaining to such
files, documentation, leases, books and records.
SECTION 10.17 Time is of Essence. Time is of the essence with regard to
each and every provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the Effective Date.
SELLER:
ILLUMINA, INC
a Delaware corporation
By: /s/ XXX XXXX
------------------------------
Xxx Xxxx
Senior Vice President and CFO
PURCHASER:
XXXXXXXX PROPERTY ADVISORS, INC.
a California corporation
By: /s/ XXXX X. GOLD
-----------------------------
Xxxx X. Gold, President
The undersigned acknowledges receipt of this Agreement and agrees to
act as Escrow Agent pursuant to the terms hereof.
ESCROW AGENT:
CHICAGO TITLE COMPANY
/s/ XXXXX XXXXXXXX
By: ___________________________________
Xxxxx Xxxxxxxx
Name: _________________________________
Escrow Officer
Title: ________________________________
EXHIBIT A
DESCRIPTION OF LAND
PARCEL 1 THROUGH 3 INCLUSIVE OF PARCEL MAP 18286, IN THE CITY OF SAN
DIEGO, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP
THEREOF FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY
ON JUNE 21, 1999.
A-1
EXHIBIT B
LIST OF PERSONAL PROPERTY
1. Security system
2. Laboratory benches
3. Dry room(s)
4. Cold room(s)
5. Exterior Venting Fume Hoods
6. Vacuum and Gas Distribution Systems
7. Emergency Generators and Switching Gear
8. Autoclaves
B-1
EXHIBIT C
LIST OF OPERATING AGREEMENTS
1. None
C-1
EXHIBIT D
TRADE NAMES AND GENERAL INTANGIBLES
RELATING TO THE LAND OR IMPROVEMENTS
1. [To be inserted]
D-1
EXHIBIT E
FORM OF DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Xxxx X. Xxxxxxxx
00000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
GRANT DEED
FOR VALUE RECEIVED, ILLUMINA, INC. a _________________ corporation
("Grantor"), grants to XXXXXXXX PROPERTY ADVISORS, INC., a California company
("Grantee"), all that certain real property (the "Property") situated in the
City of San Diego, County of San Diego, State of California, described on
Schedule 1 attached hereto and by this reference incorporated herein, subject to
all covenants, conditions, easements, encumbrances and all other matters of
record.
IN WITNESS WHEREOF, the undersigned has executed this Grant Deed dated
as of ____________, 2004.
ILLUMINA, INC.,
a Delaware corporation
By: ___________________________________
Name: _________________________________
Title: ________________________________
By: ___________________________________
Name: _________________________________
Title: ________________________________
E-1
SCHEDULE 1
LEGAL DESCRIPTION
[TO BE INSERTED]
X-0
Xxxxx xx Xxxxxxxxxx
Xxxxxx xx
Xx , 0000 before me, ___________, personally appeared ________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature ________________________________ (Seal)
E-3
EXHIBIT F
FORM OF XXXX OF SALE
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are
hereby acknowledged, ILUMINA, INC., a ___________ corporation (the "Seller")
does hereby sell and convey to Xxxxxxxx Property Advisors, Inc., (the
"Purchaser") any and all of Seller's right, title and interest in and to all
tangible personal property listed in Schedule 3 (attached hereto and made a part
hereof) located upon the land, described in Schedule 1 (attached hereto and
hereby made a part hereof) (the "Land") or within the improvements located
thereon, including, without limitation, any and all inner windows, doors, locks
and other tools or hardware used or intended to be used exclusively in the
operation of the Land and improvements, as is, where is, and without warranty of
title or use, and without warranty, express or implied, of merchantability or
fitness for a particular purpose but excluding those items set forth on Schedule
2 (attached hereto and hereby made a part hereof).
TO HAVE AND TO HOLD all of said personal property unto Purchaser, its
successors and assigns, to its own use forever.
IN WITNESS WHEREOF, Seller has executed this Xxxx of Sale as of the
___day of __________,2004.
ILLUMINA, INC.,
a Delaware corporation
By: ___________________________________
Name: _________________________________
Title: ________________________________
By: ___________________________________
Name: _________________________________
Title: ________________________________
F-1
"SCHEDULE 1"
LEGAL DESCRIPTION
[To be attached]
F-2
"SCHEDULE 2"
EXCLUDED ITEMS
[NONE]
F-3
"SCHEDULE 3"
PERSONAL PROPERTY
1. Security system
2. Laboratory benches
3. Dry room(s)
4. Cold room(s)
5. Exterior Venting Fume Hoods
6. Vacuum and Gas Distribution Systems
7. Emergency Generators and Switching Gear
8. Autoclaves
F-4
EXHIBIT G
FORM OF ASSIGNMENT OF CONTRACTS
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACTS AND INTANGIBLES
(the Assignment") is made as of the _____ day of ______________, 1999 between
ILLUMINA, INC., a Delaware corporation, ("Assignor") and XXXXXXXX PROPERTY
ADVISORS, INC., a California corporation ("Assignee").
Assignor is the owner of that certain real property located in
the City of San Diego, San Diego County, State of California, more particularly
described in Schedule 1 attached hereto (the "Property"). Assignor hereby
assigns, transfers, sets over and conveys to Assignee all of Assignor's right,
title and interest, to the extent assignable, in, to and under any and all of
the following, to wit:
(i) the contracts and agreements listed and described on
Schedule 2 attached hereto and incorporated herein by
this reference (the "Contracts"),
(ii) all existing warranties and guaranties (express or
implied) issued to Assignor in connection with the
improvements to the Property or the personal property
being conveyed to Assignee by Xxxx of Sale on the
date hereof, and
(iii) all existing permits, licenses, approvals and
authorizations issued by any governmental authority
in connection with the Property.
All items described in (ii) and (iii) above are hereinafter
collectively referred to as "Intangible Property."
Assignee does hereby assume and agree to perform all of
Assignor's obligations under the Contracts and Intangible Property accruing from
and after the date hereof. Assignee agrees to indemnify, protect, defend and
hold Assignor harmless from and against any and all liabilities, losses, costs,
damages and expenses (including reasonable attorneys' fees) directly or
indirectly arising out of or related to any breach or default in Assignee's
obligations hereunder. Assignor shall remain liable for all of Assignor's
obligations under the Contracts and Intangible Property accruing prior to the
date hereof. Assignor agrees to indemnify, protect, defend and hold Assignee
harmless from and against any and all liabilities, losses, costs, damages and
expenses (including reasonable attorneys' fees) directly or indirectly arising
out of or related to any breach or default in Assignor's obligations hereunder.
This Assignment shall be binding upon and inure to the benefit
of Assignor and Assignee and their respective heirs, executors, administrators,
successors and assigns.
G-1
This Assignment may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, Assignor and Assignee have each executed
this Assignment as of the date first written above.
ASSIGNOR:
ILLUMINA, INC.,
a Delaware corporation
By: ___________________________________
Name: _________________________________
Title: ________________________________
By: ___________________________________
Name: _________________________________
Title: ________________________________
ASSIGNEE:
XXXXXXXX PROPERTY ADVISORS, INC.,
a California corporation
By: ___________________________________
Xxxx X. Gold, President
G-2
"SCHEDULE 1"
LEGAL DESCRIPTION
G-3
"SCHEDULE 2"
CONTRACTS
1. None
G-4
EXHIBIT H
FORM OF FIRPTA CERTIFICATE
CERTIFICATE REGARDING FOREIGN
INVESTMENT IN REAL PROPERTY TAX ACT
(ENTITY TRANSFEROR)
Section 1445 of the Internal Revenue Code provides that a
transferee (purchaser) of a U.S. real property interest must withhold tax if the
transferor (seller) is a foreign person. To inform the transferee (purchaser)
that withholding of tax is not required upon the disposition of a U.S. real
property interest by ILLUMINA, INC., a Delaware corporation ("Transferor")
Transferor hereby certifies:
1. Transferor is not a foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms are defined in the
Internal Revenue Code and Income Tax Regulations).
2. Transferor's Federal Employer Identification Number is
00-0000000.
3. Transferor's office address is:
0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
4. The address or description of the property which is the
subject matter of the disposition is 9855-9885 Towne Centre Drive, San Diego,
San Diego County, California.
Transferor understands that this certification may be
disclosed to the Internal Revenue Service by transferee and that any false
statement contained herein could be punished by fine, imprisonment, or both.
Transferor declares that it has examined this certification
and to the best of its knowledge and belief, it is true, correct and complete,
and further declares that the individual executing this certification on behalf
of Transferor has full authority to do so.
ILLUMINA, INC.,
a Delaware corporation
By: ___________________________________
Name: _________________________________
Title: ________________________________
By: ___________________________________
Name: _________________________________
Title: ________________________________
H-1
EXHIBIT I
LEASE
ATTACHED
J-1
