EXHIBIT 10.5
THIRD AMENDMENT TO AGREEMENT FOR PURCHASE AND SALE OF REAL
PROPERTY AND ESCROW INSTRUCTIONS
This Third Amendment to Agreement for Purchase and Sale of Real
Property and Escrow Instructions (the "Amendment") is by and between XXXXXX
HOMES, a California corporation ("Seller"), and NEUROCRINE BIOSCIENCES, INC., a
Delaware corporation ("Buyer"), and is dated as of May 28, 2003.
A. Seller and Buyer are parties to that certain Agreement for
Purchase and Sale of Real Property and Escrow Instructions dated as of October
15, 2002 as amended by First Amendment dated January 15, 2003 and Second
Amendment dated February 28, 2003 (as so amended, the "Purchase Agreement").
B. Seller and Buyer wish to modify the Purchase Agreement
pursuant to the terms and conditions hereof.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Buyer hereby agree as
follows:
1. All capitalized terms used herein which have defined
meanings in the Purchase Agreement shall have the same defined meanings herein,
except as expressly provided in this Amendment.
2. The parties hereby agree that the Purchase Price for
the Property is $25,201,890, the Parcel A Purchase Price is $17,227,686 and the
Parcel B Purchase Price is $7,974,204.
3. The parties agree that the First Closing shall occur
on May 30, 2003.
4. Paragraph 5(d) of the Purchase Agreement is hereby
deleted and replaced with the following:
(d) On or before the First Close of Escrow, Buyer shall
deliver an amount equal to the Parcel B Purchase Price to Escrow Holder
in the form of cash or immediately available funds, which amount shall
be held by Escrow Holder in an interest-bearing account until the First
Close of Escrow (the "Additional Deposit"). Upon the First Closing,
Escrow Holder shall release to Seller $3,500,000 of the Additional
Deposit, which shall be held by Seller as an xxxxxxx money deposit for
Buyer's performance of its obligations at the Second Closing. The
remaining Additional Deposit shall be held by Escrow Holder until Buyer
or Seller has delivered written proof to Escrow Holder that Seller has
received an original irrevocable standby letter of credit ("Letter of
Credit") in an amount equal to the remaining $4,474,204 of the
Additional Deposit retained by Escrow Holder ("Letter of Credit
Amount"), at which time the remaining Additional Deposit held by Escrow
Holder shall be immediately returned to Buyer. In the event Buyer
defaults under this Agreement and fails to complete its purchase of
Parcel B, Seller shall have the right to apply the xxxxxxx money
deposit funds held by Seller and draw upon the Letter of Credit in the
Letter of Credit Amount in
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order to satisfy such payment obligations; and such application and
draw shall satisfy Buyer's payment to Seller of the Parcel B Purchase
Price. In the event Seller applies the xxxxxxx money deposit held by
Seller and draws upon the Letter of Credit, Buyer, Seller and Escrow
Holder shall perform all of their obligations under this Agreement,
except for Buyer's deposit of the balance of the Parcel B Purchase
Price. At the Second Closing the xxxxxxx money deposit held by Seller
shall be applied to and credited against the Parcel B Purchase Price,
and upon confirmation from Escrow Holder that the remaining Parcel B
Purchase Price has been received into Escrow, and prior to the
distribution of such funds to Seller, Seller shall deliver the Letter
of Credit to Escrow Holder, who shall release the Letter of Credit to
Buyer contemporaneously with delivery of the remaining Parcel B
Purchase Price amount to Seller. Buyer's failure to deliver the Letter
of Credit to Seller within fourteen (14) days after the First Close of
Escrow shall be deemed to be a breach of this Agreement which shall
entitle Seller to terminate this Agreement, in addition to any other
remedies available at law or in equity. The Letter of Credit shall be
issued by Bank of America, Xxxxx Fargo Bank or another major U.S.
commercial bank acceptable to Seller, having a Los Angeles, California
office at which the Letter of Credit may be drawn. The Letter of Credit
shall have an expiration date no earlier than February 15, 2004. The
Letter of Credit shall provide for payment to Seller upon the issuer's
receipt of a sight draft from Seller together with Seller's certificate
certifying that the Letter of Credit amount is due and payable from
Buyer, and with no other conditions, and otherwise be in form and
content satisfactory to Seller's attorneys. The xxxxxxx money deposit
held by Seller shall accrue interest, payable monthly in arrears, at an
annual rate of 3%.
5. Seller is the owner of Parcel 2 of Parcel Map No.
19130 located to the north of Parcel A of the Property (the "Xxxxxx Property").
In connection with its proposed development of the Property, Buyer desires to
perform certain grading and install certain temporary improvements on the Xxxxxx
Property and the Property (the "Work") in accordance with City of San Diego
Drawing No. 32429-14 and -15- D (the "Improvement Plans"). Subject to the terms,
covenants and conditions set forth below, Seller hereby grants Buyer the right
to perform the work on the Xxxxxx Property and Seller shall execute and deliver
to Buyer, concurrently with the full execution of this Amendment: (1) that
certain LETTER OF PERMISSION FOR OFFSITE GRADING FOR NEUROCRINE BIOSCIENCES,
CITY WORK ORDER NUMBER 421274 (XXXX ENGINEERING JOB NUMBER 14270) dated March
18, 2003; and (2) that certain letter acknowledging Seller's obligation to
maintain the replacement sediment retention basins to be constructed by Buyer on
the Xxxxxx Property as part of the Work until such time as the Xxxxxx Property
is improved in a manner permitting removal of such replacement sediment
retention basins. In the event of any inconsistency between the terms of said
letter and this Amendment, this Amendment shall control.
(a) Buyer shall not commence the Work until
after the First Close of Escrow. Buyer shall perform the Work in conformity with
the Improvement Plans, in a good workmanlike manner and in compliance with all
applicable laws. Buyer shall not make any material changes to the Improvement
Plans affecting the Xxxxxx Property without Seller's prior written approval,
which approval shall not be unreasonably withheld, conditioned or delayed by
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Seller. Buyer hereby indemnifies and agrees to defend Seller and the Xxxxxx
Property and hold them free and harmless from any and all liens, losses, claims,
demands, damages, liabilities or costs of any kind whatsoever (including
attorneys' fees) arising from, relating to or in connection with the Work. Buyer
has inspected the Xxxxxx Property and has agreed that it is suitable for the
Work. Buyer hereby releases Seller from any and all claims, liabilities, costs,
expenses, and causes of action arising from or relating to any condition of the
Xxxxxx Property which may affect the Work.
(b) Prior to any entry onto the Xxxxxx Property,
Buyer shall cause Exchangor (as defined in Paragraph 10 below) to deliver to
Seller a certificate of insurance for commercial general liability insurance,
contractual liability insurance and property damage insurance with respect to
any activities by Buyer or Exchangor or any of their respective agents,
employees, assigns or contractors on the Xxxxxx Property, with limits of not
less than $3,000,000 per occurrence for personal injury, sickness or death or
for damage to or destruction of property and not less than $3,000,000 aggregate
for personal injury, sickness or death or for damage to or destruction of
property, covering liability arising from premises, operations, independent
contractors, personal injury, products completed operations and liability
assumed under an insured contract on an occurrence basis with a deductible or
self-insured retention no greater than $50,000 in the aggregate. The certificate
of insurance shall name Seller as an additional insured, and a separate
additional insured endorsement shall be attached to the certificate of
insurance. Buyer shall keep such insurance in effect at all times until all of
the Work is completed and Buyer has permanently vacated the Xxxxxx Property.
(c) From and after the First Close of Escrow,
Seller hereby grants to Buyer and Exchangor, and their respective agents,
employees, assigns and contractors, a license for access, ingress, egress,
grading and construction purposes over and upon the Xxxxxx Property as may be
necessary to perform the Work. This license shall terminate upon Buyer's
completion of the Work (i.e., the grading work and temporary improvements
described in paragraph 4 above). Buyer shall not permit any soil to be deposited
on the Xxxxxx Property, except as permitted by the Improvement Plans. Buyer
shall not permit any debris, waste materials, clay expansive soils, oil,
hazardous materials or waste, toxic materials or other pollutants to be
deposited on the Xxxxxx Property. Buyer shall not place any construction
trailers, fences, other personal property or improvements on the Xxxxxx
Property, except for improvements described in the Improvement Plans. No
automobiles, other vehicles or construction equipment shall be parked on the
Xxxxxx Property.
Buyer hereby notifies Seller that Buyer intends to cause the Work to be
commenced on the Xxxxxx Property immediately following the First Close of Escrow
so that Seller can record and post a Notice of Nonresponsibility pursuant to
California Civil Code Section 3094. Buyer shall assist in the recordation and/or
posting of such Notice upon the request of Seller.
(d) Upon commencement of any Work on the Xxxxxx
Property, Buyer shall thereafter be responsible for completion of such Work in a
good and workmanlike manner. With respect to any grading on the Xxxxxx Property,
Buyer shall be responsible for all erosion and sediment control for the area on
which such Work is performed, including the preparation and implementation of a
Storm Water Pollution Prevention Plan and compliance with all requirements
imposed by the State Water Resources Control Board.
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(e) Seller shall have the right, but not the
obligation, to observe and monitor the Work performed by Buyer on the Xxxxxx
Property. Buyer agrees to keep Seller reasonably informed of its progress with
respect to performance of the Work and upon the request by Seller, Buyer shall
furnish to Seller copies of any governmental inspections, reports and approval
received by it concerning the Xxxxxx Property.
6. In connection with its proposed development of the
Property, Buyer has applied for and obtained approval by the City of San Diego
("City") of "Site Development Permit Xx. 0000 Xxxxxxxxxx Xxxxxxxxxxx - 0000
(XXXX) Job Order Number: 42-1061" (the "Permit"). Although Seller, Buyer and
Science Park Center, LLC are named in the Permit as "Owners" and Buyer is also
named as "Permittee", Buyer acknowledges that Seller shall have no obligations
or liability under the Permit and Buyer hereby assumes and agrees to perform any
obligations or liabilities of the "Owner," "Permittee" and the "Owner/Permittee"
under the Permit. Subject to the terms and conditions hereof, Seller agrees to
sign the Permit concurrently with the full execution hereof.
(a) Although the Permit provides that it is to
be recorded in the Office of the San Diego County Recorder, Buyer shall not
allow the Permit to be recorded against the Property until at or after the First
Closing.
(b) Buyer hereby agrees to comply with all of
the terms, covenants and requirements of the Permit and to comply with all
applicable laws in connection with its performance of work covered by the
Permit. Buyer hereby indemnifies and agrees to defend Seller and hold it free
and harmless from and against any and all losses, demands, damages, liabilities,
fines, penalties, costs and expenses of any kind whatsoever (including
attorneys' fees) incurred by Seller arising from or relating to the Permit or
any work performed by or on behalf of Buyer or Science Park Center LLC pursuant
to the Permit.
7. In connection with the development of a police
station facility on property located to the south of Parcel B, the City has
requested that Seller grant to the City an easement over and upon a portion of
Parcel B in a form reasonably acceptable to Seller, Buyer and the City,
substantially in the form of Exhibit A attached hereto (the "Easement
Agreement"). Buyer agrees that the Easement Agreement shall not be recorded
against Parcel B until the First Closing occurs.
8. The parties agree to amend the Ground Lease attached
to the Purchase Agreement as Exhibit "H" by deleting the word "twentieth (20th)"
in paragraph 2.2 thereof and substituting "thirty-first (31st)" in its place.
9. The Purchase Agreement contains erroneous references
to certain exhibits attached thereto. In paragraph 8(e) of the Purchase
Agreement, the reference to Exhibit "F" is hereby changed to Exhibit "G" and the
reference to Exhibit "C" is changed to Exhibit "D". In paragraph 9(d), the
reference to Exhibit "D" is changed to Exhibit "E". In paragraph 10(d), the
reference to Exhibit "E" is changed to Exhibit "F". The references to the
exhibits in paragraph 5(f) of the Purchase Agreement are correct.
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10. Any accrued but unpaid Seller's Carry Cost shall be
paid to Seller by Buyer at the First Closing.
11. Seller hereby acknowledges that Buyer has identified
PEONY ACQUISITIONS LLC, a Delaware limited liability company ("EAT"), as the
accommodating purchaser of Parcel A pursuant to a Section 1031 Exchange for
Buyer's current headquarters, and that SCIENCE PARK CENTER LLC, a California
limited liability company ("Exchangor") of which Buyer owns a majority of the
membership interests, shall ultimately acquire the ownership interest in the EAT
or Parcel A pursuant to the Section 1031 Exchange, notwithstanding Seller's
rights under Section 10 of the Agreement, Seller hereby consents (a) to the
partial assignment of the Purchase Agreement to the EAT (with respect to the
right to purchase Parcel A only) and (b) the subsequent acquisition of Parcel A
by the Exchangor, all as provided in Paragraph 10(f) of the Agreement; provided,
however, that notwithstanding such assignment, Buyer and not EAT shall remain
liable for all obligations of Buyer under the Purchase Agreement, with the
exception of payment of the Purchase Price and unpaid Seller's Carry Cost for
Parcel A. Notwithstanding the foregoing, Buyer and Seller acknowledge that the
obligations assumed by the EAT with respect to the Purchase Agreement are
limited to the payments to be made by Buyer for the purchase of Parcel A, and
Buyer does not assign, nor is Buyer released from, any of the other obligations
of Buyer under the Purchase Agreement, and Buyer hereby guarantees the payment
obligations assigned to the EAT for the purchase of Parcel A.
The parties hereto contemplate that (a) the lessee's interest in the
Ground Lease will be assigned to NEUROCRINE INTERNATIONAL LLC, an affiliate of
Buyer ("Lessee"), and (b) Parcel B will be sublet by Lessee to the EAT after the
First Closing. Seller hereby consents to such assignment and sublease as long as
Buyer guarantees the Ground Lease obligations of the Lessee. Neither the EAT nor
any of its officers, directors, members or affiliates shall have any personal
liability under its sublease of Parcel B for any of Lessee's obligations under
the the Ground Lease, and the EAT shall have no obligation to Seller to perform
such obligations.
12. Except as modified hereby, the Purchase Agreement
shall remain in full force and effect.
IN WITNESS WHEREOF, Seller and Buyer have executed this Amendment as of
the date first above written.
"Seller" "Buyer"
XXXXXX HOMES, NEUROCRINE BIOSCIENCES, INC.,
a California corporation a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxx
___________________________ __________________________
Xxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx Senior Vice President
__________________________
Its: Vice President
___________________________
By: /s/ Xxxxxxx Xxxxx
___________________________
Name: Xxxxxxx Xxxxx
__________________________
Its: Assistant Vice President
___________________________
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EXHIBIT A
EMERGENCY ACCESS EASEMENT
AND GRADING AND SLOPE MAINTENANCE LICENSE AGREEMENT
This Emergency Access Easement and Grading and Slope Maintenance
License Agreement (this "Easement Agreement") is made as of this _____ day of
May, 2003 (the "Effective Date"), by and between XXXXXX HOMES, a California
corporation ("Grantor"), THE CITY OF SAN DIEGO ("City") and NEUROCRINE
BIOSCIENCES, INC., a Delaware corporation ("Licensee").
R E C I T A L S:
A. Grantor is the fee owner all of that certain property located in the
City of San Diego, County of San Diego, which is more particularly described on
Exhibit "A" hereto and made a part hereof (the "GRANTOR PROPERTY"), a portion of
which is more particularly described on Exhibit "A-1" attached hereto and made a
part hereof (the "EASEMENT PROPERTY"). As of the Effective Date, Grantor has
entered into a long-term ground lease of the Grantor Property with Licensee (the
"GROUND LEASE"), pursuant to which, Licensee is permitted to construct
improvements on the Grantor Property.
B. City is the owner in fee simple of certain real property located in
the City of San Diego, County of San Diego, which is more particularly described
on Exhibit "B" attached hereto and made a part hereof (the "CITY PROPERTY"; the
City Property and the Grantor Property are sometimes hereinafter collectively
referred to as the "PROPERTIES.") which is adjacent to the Grantor Property, a
portion of which is more particularly described on Exhibit "B-1" attached hereto
and made a part hereof (the "SLOPE ACCESS AREA"). City has designated the City
Property as the location of a City police department.
C. Licensee, pursuant to the construction of its improvements on the
Grantor Property, has requested that City grant Licensee a license to the Slope
Access Area of the City Property, in order for Licensee to perform certain
grading work and slope improvements to the Slope Access Area, including the
reduction of the slope gradient within the Slope Access Area in accordance with
those certain grading plans approved by the City, a copy of which is attached
hereto as Exhibit "C" (the "PLANS AND SPECIFICATIONS"). City, as a condition to
granting the License to Licensee, has requested that Grantor grant City a
non-exclusive easement for emergency ingress and egress of the City's vehicles
over any driveway constructed on any portion of the Grantor Property.
D. In consideration of the terms and covenants contained herein, City
desires to grant to Licensee certain license rights for grading work and slope
improvements to the Slope Access Area, and Grantor desires to grant to City an
easement for emergency access to the City Property over any driveway constructed
on any portion of the Easement Property, as more particularly described below.
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NOW, THEREFORE, in consideration of the mutual terms, conditions and
covenants, the parties hereto agree as follows:
1. GRANT OF EMERGENCY ACCESS EASEMENT. Grantor hereby grants and
conveys to City, its successors, assigns, employees, representatives and
invitees for the benefit of the City Property, a non-exclusive surface easement
and right of way (the "DRIVEWAY EASEMENT") on, across and over that certain
driveway, a portion of which is located upon the Easement Property as depicted
on the Improvement Plans (the "DRIVEWAY"), for the purpose of emergency ingress
and egress by City vehicles between the City Property and El Camino Real;
provided that, as a condition to the continued use of the Driveway, City shall
ensure that those persons authorized by City to use the Driveway shall do so in
a safe and orderly manner and in accordance with rules and regulations,
including, but not limited to posted speed limits reasonably promulgated by the
owner of the Grantor Property or the tenant under the Ground Lease from time to
time. No party hereto shall at any time prevent or impair the emergency use of
the Driveway.
2. GRADING AND SLOPE IMPROVEMENT LICENSE. City hereby grants to
Licensee, and its agents, employees, consultants, contractors, subcontractors,
successors and assigns, a license (the "LICENSE") to perform certain grading
work and to construct and maintain slope improvements (collectively, the
"GRADING AND SLOPE IMPROVEMENTS") within the boundaries of the Slope Access
Area. The Term of the License shall be coterminous with the Term of the Ground
Lease (as such Term may be extended from time to time) and, subject to the terms
hereof, shall be irrevocable so long as the Ground Lease remains in effect.
Consideration for the License shall be Grantor's grant of the Driveway Easement,
and there shall be no license fee payable to City with respect thereto. The
rights of Licensee under the License shall include the right, but not the
obligation, to enter upon the City Property from time to time to maintain and
repair the Grading and Slope Improvements constructed within the Slope Access
Area, as Licensee determines is necessary or beneficial to the ownership,
development or operation of any improvements to the Grantor Property; provided
that the City shall receive at least fourteen (14) days' prior notice (unless
such entry is required by an emergency) and a reasonable description of such
entry and activities, and Licensee shall perform any such work in cooperation
with the City's reasonable requirements; further provided, however, that such
notice shall not be required for Licensee's entry upon the City Property to
initially construct the Grading and Slope Improvements. Licensee shall have
access to the Slope Access Area on a 24 hours per day/7 day per week basis.
3. CONSTRUCTION AND MAINTENANCE REQUIREMENTS. The Grading and
Slope Improvements shall be constructed by Licensee in accordance with the Plans
and Specifications, and all applicable laws, regulations, ordinances and other
requirements of the City, County of San Diego and all other governmental and
quasi-governmental authorities and/or agencies having jurisdiction over the City
Property and/or the Grading and Slope Improvements. Further, Licensee shall, at
its sole cost and expense, within forty-five (45) days after the completion of
the Grading and Slope Improvements, (i) deliver as-built plans for the Grading
and Slope Improvements to City, and (ii) cause Licensee's geotechnical engineer,
to certify in writing to City that the Grading and Slope Improvements meet the
slope stability and lateral support requirements set forth in the Plans and
Specifications. The Driveway (as depicted on the Plans and Specifications) shall
be constructed prior to the occupancy of any building on the
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Grantor Property, and shall be maintained (or shall be caused to be maintained)
by the owner of the Grantor Property in good condition and repair. In the event
the owner of the Grantor Property fails maintain the Driveway as required
herein, and such failure prevents use of the Driveway without reasonable
alternative access facilities for a period of more than seven (7) days following
the date on which the owner of the Grantor Property receives written notice from
the City reasonably specifying the extent and nature of such failure to maintain
the Grantor Property, City shall have the right to perform such aspects of
maintenance as are reasonably specified in its written notice to the owner of
the Grantor Property, subject to reimbursement by the owner of the Grantor
Property within 30 days following submittal of an invoice for City's reasonable
maintenance costs to owner of the Grantor Property; provided, however, that as
long as Licensee (or an affiliate of Licensee) is the tenant under the Ground
Lease, Licensee shall perform (or cause to be performed) the maintenance
obligations of the owner of the Grantor Property.
4. GOVERNMENTAL PERMITS AND APPROVALS. Prior to commencing, or
causing the commencement of, any construction or grading activities upon the
City Property, Licensee shall, at its sole cost and expense, obtain all
necessary permits and approvals for the Grading and Slope Improvements to be
constructed or installed hereunder from the City, County of San Diego and any
other governmental authorities and/or agencies having jurisdiction over the
construction of the Grading and Slope Improvements (the "GOVERNMENTAL PERMITS").
Licensee shall be responsible, at its sole cost and expense, for satisfying all
conditions and requirements of the Governmental Permits.
5. INDEMNIFICATION. City, in exercising its rights as a grantee
of the Driveway Easement granted hereunder, shall indemnify, defend, protect and
hold Grantor and any occupant of the Grantor Property, and their respective
employees, officers, directors, shareholders, beneficiaries, agents and
representatives, successors and assigns (collectively, the "EASEMENT
INDEMNITEES") harmless from and against any and all claims, actions, losses,
liabilities, costs and expenses, including, without limitation, first party
losses and attorneys' fees (collectively, the "CLAIMS"), whether incurred by or
made against any Easement Indemnitee, for damage to real, personal, tangible or
intangible property, including, without limitation, loss of use of any such
property, and all Claims for bodily injury to or death of any person, arising
from or in any way related to (i) any act, omission or entry upon the Grantor
Property or other activity pursuant to such easement by such grantee or any
person entering upon the Grantor Property pursuant to the rights granted to such
grantee hereunder (including, but not limited to, any Claim by any insurance
company which has paid a claim and is subrogated to the rights of the claimant),
and/or (ii) any breach by such grantee of its obligations under this Easement
Agreement; provided, however, that no Easement Indemnitee shall be entitled to
indemnification hereunder to the extent that any such Claim has been caused by
the negligence or willful misconduct of such Easement Indemnitee.
Licensee, in exercising its rights as a licensee of the License granted
hereunder, shall indemnify, defend, protect and hold City and any occupant of
the City Property, and their respective employees, officers, directors,
shareholders, beneficiaries, agents and representatives, successors and assigns
(collectively, the "License Indemnitees") harmless from and against any and all
Claims, whether incurred by or made against any License Indemnitee, for damage
to real, personal, tangible or intangible property, including, without
limitation, loss of use of any such
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property, and all Claims for bodily injury to or death of any person, arising
from or in any way related to (i) any act, omission or entry upon the City
Property or other activity pursuant to the License by such grantee or any person
entering upon the City Property pursuant to the rights granted to such grantee
hereunder (including, but not limited to, any Claim by any insurance company
which has paid a claim and is subrogated to the rights of the claimant), and/or
(ii) any breach by such grantee of its obligations under this Easement
Agreement; provided, however, that no License Indemnitee shall be entitled to
indemnification hereunder to the extent that any such Claim has been caused by
the negligence or willful misconduct of such License Indemnitee.
6. INSURANCE. Licensee, in constructing the Grading and Slope
Improvements, shall obtain, or cause its contractor to obtain, the types and
levels of insurance reasonably acceptable to City. City, in its use of the
Driveway Easement shall obtain and maintain general and automobile liability
insurance, with levels of insurance reasonably acceptable to Grantor; provided,
however, that if City has an established self-insurance program, City may
self-insure for the risks covered by insurance policies required by this Section
6; further provided that City provides written notice to Grantor of such
self-insurance and commits to making such self-insurance available for the
coverage of any Claims by a Easement Indemnitee or a License Indemnitee
hereunder.
7. ASSIGNMENT AND ASSUMPTION. City may assign all of its rights
and obligations hereunder to another governmental entity with authority to
assume City's obligations under this Easement Agreement (an "AUTHORIZED
GOVERNMENTAL AGENCY"). Licensee may assign its rights and obligations hereunder
to any of its corporate affiliates, provided that the City is provided with
written notice of such assignment.
8. ATTORNEYS' FEES. In the event of any litigation, including
without limitation, in any legal proceeding of insolvency, bankruptcy, appeals,
arbitration or declaratory relief, concerning any controversy, claim or dispute
between the parties hereto, arising out of or relating to this Easement
Agreement or the breach hereof, or the interpretation hereof, the prevailing
party shall be entitled to recover from the losing party reasonable expenses,
attorneys' fees, and costs incurred in connection therewith or in the
enforcement or collection of any judgment or award rendered therein.
9. AUTHORIZATION TO SIGN. Each person executing this Easement
Agreement on behalf of a party to this Easement Agreement represents and
warrants that he/she is duly authorized to execute same and that the party for
whom such person is signing is bound by the terms and conditions hereof.
10. CONSTRUCTION; SEVERABILITY. All powers, rights and remedies of
the parties to this Easement Agreement shall be cumulative, and not exclusive,
of any powers, rights and remedies otherwise available at law or in equity.
Nothing contained in this Easement Agreement, express or implied, shall confer
any rights or remedies upon any party other than the parties hereto, and their
respective successors and permitted assigns. None of the provisions or rights
provided in this Easement Agreement shall be deemed waived with respect to any
party benefited thereby unless waived in writing by such party. In the case of
any uncertainty or ambiguity regarding any part of this Easement Agreement, the
language shall be construed in accordance with its fair meaning rather than
being interpreted against the party who caused the
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uncertainty to exist. The enforceability, invalidity or illegality of any
provision of this Easement Agreement shall not render any of the other
provisions of this Easement Agreement unenforceable, invalid or illegal.
11. NOT A PUBLIC DEDICATION. Nothing herein contained shall be
deemed to be a gift or dedication of any portion of the Properties to the
general public or for the general public or for any public purposes whatsoever
which may be greater than the requirements of this Easement Agreement, it being
the intention of parties that this Easement Agreement shall be strictly limited
to and for the purposes herein expressed. The right of the public or any person
to make any use whatsoever of the Grantor Property (other than any use expressly
allowed by a written or recorded map, agreement, deed or dedication) is by
permission, and subject to control of the parties hereto.
12. BREACH SHALL NOT PERMIT TERMINATION. No breach of this
Easement Agreement shall entitle either party hereto to cancel, rescind, or
otherwise terminate this Agreement, but such limitation shall not affect in any
manner any other rights or remedies which such party, or any tenant, may have
hereunder by reason of any breach of this Easement Agreement.
13. NATURE OF EASEMENT. The burden of the Driveway Easement and
access rights created by this Easement Agreement shall run with the Grantor
Property, and shall be binding upon Grantor and every successor owner of the
Grantor Property. The easements and access rights created by this Easement
Agreement upon the Grantor Property shall inure to the benefit of the City
Property until such time as they are terminated by mutual written agreement of
the then current owner of the City Property.
14. MISCELLANEOUS. The captions at the beginning of each paragraph
of this Agreement are not part of and in no manner or way define, limit,
amplify, change, or alter any term, covenant, or condition of this Easement
Agreement. For the purposes of this Easement Agreement, the word person includes
corporation, partnership, entity or association wherever the context so
requires. This Easement Agreement may be executed in counterparts, each of which
is deemed an original, and all of which shall constitute one and the same
agreement. This Easement Agreement shall be binding upon and inure to the
benefit of the parties hereto, and their respective successors and assigns. All
exhibits attached hereto are made a part hereof and incorporated by reference as
if fully set forth in the text hereof. This Easement Agreement is governed under
the laws of the State of California.
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IN WITNESS WHEREOF, the parties hereto have executed this Easement
Agreement as of the date first above written.
XXXXXX HOMES, NEUROCRINE BIOSCIENCES, INC.,
a California corporation a Delaware corporation
By: ______________________________ By: _____________________________
Name: ___________________________ Name: ___________________________
Its: ______________________________ Its: ____________________________
THE CITY OF SAN DIEGO,
By: ______________________________
Name: ___________________________
Its: ______________________________
5
