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EXHIBIT 10.5
BUY OUT OF LEASEHOLD INTEREST
This Agreement, dated as of June 30, 2000, is between NATURAL
ALTERNATIVES INTERNATIONAL, INC., a Delaware corporation ("Seller"), and PACIFIC
VIEW CORPORATE CENTER, L.L.C., a Delaware limited liability company ("Buyer").
ARTICLE I
PURCHASE AND SALE OF LEASEHOLD INTERESTS
SECTION 1.1 SALE.
Seller desires to buy out of its leasehold interest under that certain
Standard Industrial Lease dated as of August 13, 1997, by and between KREG-OC,
L.P., a California limited partnership ("KREG"), as landlord, and Seller, as
tenant, as amended by that certain First Amendment dated as of December 17, 1998
(as amended, the "Lease"), for the leasing of that certain real property
commonly known as Lot 6 of Carlsbad Ranch in Carlsbad, California, and more
particularly described on EXHIBIT A attached hereto and made a part hereof (the
"Land") and the two (2) story commercial building located thereon (the
"Building"). Seller agrees to convey to Buyer, and Buyer agrees to accept such
conveyance from Seller, subject to the terms, covenants and conditions set forth
herein, (i) Seller's leasehold interest under the Lease, (ii) Seller's interest
as sublessor under that certain Sublease dated as of April 27, 2000, by and
between Seller, as sublessor, and MPower Communications Corporation, a Nevada
corporation ("MPower"), as sublessee (the "MPower Sublease"), for the leasing of
approximately 24,000 square feet in the Building (the "MPower Premises"), (iii)
Seller's interest as sublessor under that certain Sublease dated as of June 12,
2000, by and between Seller, as sublessor, and iXL, Incorporated, a Delaware
corporation ("iXL"), as sublessee (the "iXL Sublease"), for the leasing of
approximately 58,000 square feet in the Building (the "iXL Premises"), together
with any and all rights and privileges appurtenant thereto owned by Seller; and
(iv) Seller's interest as the tenant/owner under those construction related
contracts listed on Schedule 1 attached hereto and made a part hereof
(collectively, the "Construction Contracts"). Seller's leasehold interest under
the Lease and Seller's interest as sublessor under the MPower Sublease and iXL
Sublease are collectively referred to herein as the "Leasehold Interest".
SECTION 1.2 BUY OUT PRICE.
(a) The purchase price for the Seller's buying out of the
Leasehold Interest is Three Million Dollars ($3,000,000) (the "Buy Out Price").
The Buy Out Price is payment to Buyer in consideration of Buyer's assuming all
future rental obligations due to landlord under the Lease.
(b) The Buy Out Price shall be paid by Seller to Buyer all in
cash at the consummation of the purchase and sale contemplated hereunder (the
"Closing") by depositing said cash in a separate escrow account for the
transaction contemplated by this Agreement with First American Title Insurance
Company, 0 Xxxxx Xxxxxxxx Xxx, Xxxxx Xxx, Xxxxxxxxxx 00000, Attention: Xxxxxxx
Xxxxxx (the "Title Company") under Escrow No. 2052742M.
ARTICLE II
CONDITIONS
SECTION 2.1 CONDITION PRECEDENT.
Buyer's obligation to purchase the Leasehold Interest is conditioned
upon the following:
(a) Prior to Closing, Buyer's review and approval of an updated
preliminary title report, together with copies of the underlying documents
(b) Prior to Closing, Buyer's review and approval of the MPower
Sublease and iXL Sublease.
(c) Prior to Closing, Buyer's review and approval of any other
matters Buyer deems relevant to the
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(d) As of the Closing Date, the Lease, MPower Sublease and iXL
Sublease shall be in full force and effect and (i) neither Seller nor Xxxxxx
Realty, L.P., a Delaware limited partnership ("Kilroy") (successor-in-interest
to KREG-OC, L.P.), is in default under the Lease, (ii) neither Seller nor MPower
is in default under the MPower Sublease, and (iii) neither Seller nor iXL,
Incorporation, is in default under the iXL Sublease.
(e) As of the Closing Date, each of the conditions precedent of
the "Buyer" to consummate the transaction contemplated under that certain
Purchase and Sale Agreement and Escrow Instructions dated March 6, 2000, as
amended from time to time (as amended, the "Purchase Agreement"), by and between
Xxxxxx, as seller, and RREEF America L.L.C., a Delaware limited liability
company, or its successors and assigns, as buyer (the "Fee Interest Purchaser"),
shall have been satisfied.
If any of the aforesaid conditions precedent to Buyer's obligation to
the purchase of the Leasehold Interest are not satisfied in the time frame
specified, then Buyer shall have the right upon written notice to Seller to
elect to terminate this Agreement and neither party shall have any further
rights or obligations hereunder except as provided in Sections 5.1 and 7.8
below. Without limiting the other provisions hereof, including, without
limitation, Section 3.1 below, upon Closing, the Buyer shall be deemed to have
waived each of the conditions precedent set forth in this Section 2.1.
ARTICLE III
BUYER'S EXAMINATION
SECTION 3.1 REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller hereby makes the following representations and warranties with
respect to the Leasehold Interest:
(a) Seller has (i) been duly organized, is validly existing under
the laws of the State of Delaware, and is qualified to do business in
California, and (ii) the power and authority to enter into this Agreement and to
perform its obligations hereunder. This Agreement (i) has been duly authorized,
executed and delivered by Seller, and (ii) does not violate any provision of any
agreement or judicial order to which Seller is a party or to which Seller or the
Leasehold Interest is subject.
(b) Seller has not (i) made a general assignment for the benefit
of creditors, (ii) filed any voluntary petition in bankruptcy or suffered the
filing of any involuntary petition by Seller's creditors, (iii) suffered the
appointment of a receiver to take possession of all, or substantially all, of
Seller's assets, (iv) suffered the attachment or other judicial seizure of all,
or substantially all, of Seller's assets, (v) admitted in writing its inability
to pay its debts as they come due, or (vi) made an offer of settlement,
extension or composition to its creditors generally.
(c) The MPower Sublease is the only agreement between Seller and
MPower relating to the MPower Premises, the Land, the Building, or any other
matter.
(d) The iXL Sublease and that certain iXL Work Letter Agreement
dated as of June 12, 2000 (which work letter has previously been provided to
Buyer) are the only agreements between Seller and iXL relating to the iXL
Premises, the Land, the Building or any other matter.
(e) The Lease, MPower Sublease and iXL Sublease are in full force
and effect in accordance with their terms and have not, in any way, been amended
or modified in any manner and to the best of Seller's knowledge (i) neither
Seller nor Xxxxxx (successor-in-interest to KREG-OC, L.P.) is in default under
the Lease, (ii) neither Seller nor MPower is in default under the MPower
Sublease, and (iii) neither Seller nor iXL, Incorporation, is in default under
the iXL Sublease. Neither MPower nor iXL has asserted any claims against Seller,
except that MPower has asserted a right to rescind its execution of the MPower
Sublease. Seller has informed MPower that MPower has no such right to rescind
and to the best of Seller's knowledge, MPower no longer asserts such right.
(f) The Construction Contracts are in full force and effect in
accordance with their terms and have not, in any way, been amended or modified
in any manner and Seller is not in default under the terms of the Construction
Contracts. To the best of Seller's knowledge, the parties to the Construction
Contracts (other than Seller) are not in default under the terms of the
Construction Contracts. The Construction Contracts are assignable to Buyer.
Neither the contractors, subcontractors nor materialmen under the Construction
Contracts have asserted any claims against Seller.
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(g) As of the Closing, there has been no payment of any base
rent, additional rent or any other sums to Seller from either MPower or iXL
(except for a security deposit delivered to Seller by MPower pursuant to the
MPower Sublease). As of the Closing, no security deposit has been received by
Seller from iXL pursuant to the iXL Sublease.
(h) Seller is not a "foreign person" as defined in Section 1445
of the Internal Revenue Code of 1986, as amended (the "Code") and any related
regulations.
(i) There is no litigation pending or threatened with respect to
the Leasehold Interest.
(j) Seller has received no written notice from any governmental
authority that there are any violations of any applicable laws (including,
without limitation, (i) the Americans with Disabilities Act ("ADA"), Title 24 of
the California Administrative Code, and other similar federal, state and local
laws, (ii) building codes and any other laws relating to the construction or
design of the Building or other structures on the Land, including, without
limitation, fire, safety, handicapped access, or seismic design (collectively,
"Building Codes"), and (iii) any laws relating to environmental matters (the
"Environmental Laws") or that there are any material physical, structural or
mechanical defects applicable to the Land, Building or Leasehold Interest.
Each of the representations and warranties of Seller contained in this
Section 3.1: (1) is true as of the date of this Agreement; (2) shall be deemed
remade by Seller, and shall be true in all material respects as of the date of
Closing, subject other matters, if any, expressly permitted in this Agreement or
otherwise specifically approved in writing by Buyer; and (3) shall survive the
close of escrow as provided in Section 3.3 below.
SECTION 3.2 REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer hereby represents and warrants that Buyer has (i) been duly
organized and is validly existing under the laws of the State of Delaware, and
(ii) the power and authority to enter into this Agreement and to perform its
obligations hereunder. This Agreement (i) has been duly authorized, executed and
delivered by Buyer, and (ii) does not violate any provision of any agreement or
judicial order to which Buyer is a party or to which Buyer or the Leasehold
Interest is subject.
Each of the representations and warranties of Buyer contained in this
Section 3.2: (1) is true as of the date of this Agreement; (2) shall be deemed
remade by Buyer, and shall be true in all material respects as of the date of
Closing, subject other matters, if any, expressly permitted in this Agreement or
otherwise specifically approved in writing by Seller; and (3) shall survive the
close of escrow as provided in Section 3.3 below.
SECTION 3.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
The representations and warranties of Seller and Buyer contained herein
shall survive the Closing.
ARTICLE IV
TITLE
SECTION 4.1 CONDITIONS OF TITLE.
At the Closing, Seller shall convey title to the Leasehold Interest to
Buyer pursuant to an Assignment of Leasehold Interest, in the form of EXHIBIT B
attached hereto and made a part hereof.
SECTION 4.2 EVIDENCE OF TITLE.
Delivery of title in accordance with the foregoing shall be evidenced by
the willingness of the Company to issue, at Closing, its ALTA Leasehold Policy
of Title Insurance in the amount of the Buy Out Price showing title to the
Leasehold Interest vested in Buyer, subject to only those exception approved by
Buyer prior to Closing(the "Title Policy").
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ARTICLE V
BROKERS AND EXPENSES
SECTION 5.1 BROKERS.
The parties represent and warrant to each other that no broker or finder
was instrumental in arranging or bringing about this transaction except for
Business Real Estate Brokerage Company ("Buyer's Broker"). At Closing, Buyer
shall pay the commission due, if any, to Buyer's Broker, which shall be paid
pursuant to a separate agreement between Buyer and Buyer's Broker. If any other
person brings a claim for a commission or finder's fee based upon any contact,
dealings or communication with Buyer or Seller, then the party through whom such
person makes his claim shall defend the other party (the "Indemnified Party")
from such claim, and shall indemnify the Indemnified Party and hold the
Indemnified Party harmless from any and all costs, damages, claims, liabilities
or expenses (including without limitation, reasonable attorneys' fees and
disbursements) incurred by the Indemnified Party in defending against the claim.
The provisions of this Section 5.1 shall survive the Closing or, if the purchase
and sale is not consummated, any termination of this Agreement.
SECTION 5.2 EXPENSES.
Except as provided in Section 6.5(b) below, each party hereto shall pay
its own expenses incurred in connection with this Agreement and the transactions
contemplated hereby.
ARTICLE VI
CLOSING AND ESCROW
SECTION 6.1 ESCROW INSTRUCTIONS.
Upon execution of this Agreement, the parties hereto shall deposit an
executed counterpart of this Agreement with the Title Company, and this
instrument shall serve as the instructions to the Title Company as the escrow
holder for consummation of the purchase and sale contemplated hereby. Seller and
Buyer agree to execute such reasonable additional and supplementary escrow
instructions as may be appropriate to enable the Title Company to comply with
the terms of this Agreement; provided, however, that in the event of any
conflict between the provisions of this Agreement and any supplementary escrow
instructions, the terms of this Agreement shall control.
SECTION 6.2 CLOSING.
The Closing hereunder shall be held and delivery of all items to be made
at the Closing under the terms of this Agreement shall be made at the offices of
the Title Company on the same date and at the same time as the "Closing" of the
transaction contemplated by the Purchase Agreement, or such other earlier date
and time as Buyer and Seller may mutually agree upon in writing (the "Closing
Date"). Such date and time may not be extended without the prior written
approval of both Seller and Buyer.
SECTION 6.3 DEPOSIT OF DOCUMENTS.
(a) At or before the Closing, Seller shall deposit into escrow
the following items:
(1) four (4) duly executed counterparts of the Assignment
of Leasehold Interest and Contracts in the form attached hereto as EXHIBIT B
(the "Assignment of Leasehold Interest and Contracts");
(2) four (4) duly executed counterparts of the Assignment
of Subleases in the form attached hereto as EXHIBIT C (the "Assignment of
Subleases");
(3) an estoppel executed by Seller in a form approved by
Buyer;
(4) funds necessary to close this transaction;
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(5) an affidavit pursuant to Section 1445(b)(2) of the
Federal Code, and on which Buyer is entitled to rely, that Seller is not a
"foreign person" within the meaning of Section 1445(f)(3) of the Federal Code;
and
(6) California 597-W Certificate.
(b) At or before Closing, Buyer shall deposit into escrow four
(4) duly executed counterparts of the Assignment of Leasehold Interest and four
(4) duly executed counterparts of the Assignment of Subleases.
(c) Seller and Buyer shall each deposit such other instruments as
are reasonably required by the Title Company or otherwise required to close the
escrow and consummate the acquisition of the Leasehold Interest in accordance
with the terms hereof.
(d) Seller shall deliver to Buyer originals of the Lease, MPower
Sublease and iXL Sublease, and copies of the tenant correspondence files for the
same, within five (5) business days after the Closing Date.
SECTION 6.4 PRORATIONS.
(a) Rents and any additional operating expenses payable under the
Lease shall be prorated as of 12:01 a.m. on April 1, 2000 (the "Proration
Date"), with Seller being responsible for such amounts accruing prior to the
Proration Date and Buyer being responsible for the amounts accruing on or after
the Proration Date. Notwithstanding the foregoing, Seller shall receive a credit
at the Closing in the amount of the Monthly Base Rent (as defined in the Lease),
Real Property Taxes (as defined in the Lease), and operating expenses due under
the Lease for each day on and after April 1, 2000 and up to the Closing Date (to
the extent such amounts have previously been paid by Seller to KREG or Xxxxxx)
and Buyer shall be responsible for paying the Monthly Base Rent, Real Property
Taxes, and operating expenses due under the Lease for each day on and after
April 1, 2000 and up to the Closing Date directly to KREG or Xxxxxx (to the
extent such amounts have not previously been paid by Seller to KREG or Xxxxxx,
including, without limitation, Monthly Base Rent for the month of April). The
amount of the security deposit under the MPower Sublease shall be credited to
Buyer at the Closing, in addition to the Purchase Price. Seller shall receive
credits at Closing for the amount of any utility or other deposits with respect
to the Property. Buyer shall cause all utilities to be transferred into Buyer's
name and account at the time of Closing. Buyer is responsible for the payment of
all leasing commissions in connection with the MPower Sublease and iXL Sublease.
Buyer shall reimburse Seller at Closing for certain tenant improvement costs and
building system costs in connection with the tenant improvement work for MPower
and iXL in the amount and as more fully set forth on SCHEDULE 2 attached hereto
and made a part hereof. Buyer and Seller hereby agree that if any of the
aforesaid prorations and credits cannot be calculated accurately on the Closing
Date, then the same shall be calculated as soon as reasonably practicable after
the Closing Date and either party owing the other party a sum of money based on
such subsequent proration(s) or credits shall promptly pay said sum to the other
party. Without limiting the foregoing, Seller shall remain liable for all
monetary obligations under the Lease, MPower Sublease and iXL Sublease which
accrued prior to the Proration Date.
(b) Seller shall pay one-half (1/2) of the escrow fee and the
costs of obtaining the CLTA portion of the Title Policy. Buyer shall pay the
costs of obtaining the ALTA portion of the Title Policy, the cost of any
endorsements and one-half (1/2) of the escrow fee. Any other expenses of the
escrow for the sale shall be paid by Buyer and Seller in accordance with
customary practice as determined by the Title Company.
(c) The provisions of this Section 6.4 shall survive the Closing.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 NOTICES.
Any notices required or permitted to be given hereunder shall be given
in writing and shall be delivered (a) in person, (b) by certified mail, postage
prepaid, return receipt requested, (c) by facsimile with confirmation of
receipt, or (d) by a commercial overnight courier that guarantees next day
delivery and provides a receipt, and such notices shall be addressed as follows:
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To Buyer: c/o RREEF America, L.L.C.
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Fax No.: (000) 000-0000
with a copy to: Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Fax No.: (000) 000-0000
To Seller: Natural Alternatives International, Inc.
0000 Xxxxx Xxxxx Xxxxx
Xxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx
Fax No.: (000) 000-0000
with a copy to: Xxxxxx Xxxxxxx LLP
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Fax No.: (000) 000-0000
or to such other address as either party may from time to time specify in
writing to the other party. Any notice shall be effective only upon delivery.
SECTION 7.2 ENTIRE AGREEMENT.
This Agreement, together with the Exhibits hereto, contains all
representations, warranties and covenants made by Buyer and Seller and
constitutes the entire understanding between the parties hereto with respect to
the subject matter hereof. Any prior correspondence, memoranda or agreements are
replaced in total by this Agreement together with the Exhibits hereto.
SECTION 7.3 ASSIGNMENT.
Buyer's rights and obligations hereunder shall be assignable without the
prior written consent of Seller. Upon execution of a written assignment of
Buyer's rights and obligations hereunder, Buyer shall be released from any of
its obligations or liabilities hereunder. Subject to the provisions of this
Section, this Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns.
SECTION 7.4 COUNTERPARTS.
This Agreement may be executed via facsimile transmission, with the
party executing via facsimile to send the original document with original
signature(s) to the other party within one (1) business day by overnight
delivery, and in any number of counterparts, each of which shall be considered
an original and all of which, taken together, shall constitute one and the same
instrument.
SECTION 7.5 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the
laws of the State of California.
SECTION 7.6 INTERPRETATION OF AGREEMENT.
The article, section and other headings of this Agreement are for
convenience of reference only and shall not be construed to affect the meaning
of any provision contained herein. Where the context so requires, the use of the
singular
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shall include the plural and vice versa and the use of the masculine shall
include the feminine and the neuter. The term "person" shall include any
individual, partnership, joint venture, corporation, trust, unincorporated
association, any other entity and any government or any department or agency
thereof, whether acting in an individual, fiduciary or other capacity.
SECTION 7.7 AMENDMENTS.
This Agreement may be amended or modified only by a written instrument
signed by Buyer and Seller.
SECTION 7.8 DRAFTS NOT AN OFFER TO ENTER INTO A LEGALLY BINDING
CONTRACT.
The parties hereto agree that the submission of a draft of this
Agreement by one party to another is not intended by either party to be an offer
to enter into a legally binding contract with respect to the purchase and sale
of the Leasehold Interest The parties shall be legally bound with respect to the
purchase and sale of the Leasehold Interest pursuant to the terms of this
Agreement only if and when the parties have been able to negotiate all of the
terms and provisions of this Agreement in a manner acceptable to each of the
parties in their respective sole discretion, including, without limitation, all
of the Exhibits and Schedules hereto, and both Seller and Buyer have fully
executed and delivered to each other a counterpart of this Agreement, including,
without limitation, all Exhibits and Schedules hereto
SECTION 7.9 NO THIRD PARTY BENEFICIARY.
The provisions of this Agreement are not intended to benefit any third
parties.
SECTION 7.10 SURVIVAL OF ARTICLE VII.
The provisions of this Article VII shall survive the Closing.
[Remainder of Page Intentionally Left Blank]
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The parties hereto have executed this Agreement as of the respective dates
written below.
SELLER: Natural Alternatives International, Inc.,
a Delaware corporation
By: /s/ XXXX X. XxXXXX
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Name: Xxxx X. XxXxxx
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Title: PRESIDENT & CEO
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By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
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Title: CFO & TREASURER
----------------------------------------
Date: June 30, 2000
BUYER: PACIFIC VIEW CORPORATE CENTER,
L.L.C., a Delaware limited liability company
By: AC Pacific View Corporate Center, Inc.,
a Delaware corporation, its Manager
By: [SIGNATURE ILLEGIBLE]
-------------------------------------------
Name: [SIGNATURE ILLEGIBLE]
-----------------------------------------
Title: VP
----------------------------------------
Date: June 30, 2000
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EXHIBIT A
LEGAL DESCRIPTION OF LAND
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF
SAN DIEGO, AND IS DESCRIBED AS FOLLOWS:
PARCEL A:
XXX 0 XX XXXXXXXX XXXXX XX. 00-00, XXXXXXXX RANCH, UNIT NO. 1, IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO.
13357, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, SEPTEMBER
11, 1996 AS FILE NO. 1996-0463214 OF OFFICIAL RECORDS.
TOGETHER WITH ALL THAT PORTION OF XXX 0 XX XXXXXXXX XXXXX XX. 00-00, XXXXXXXX
RANCH, UNIT NO. 1, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO MAP NO. 13357, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, SEPTEMBER 11, 1996 AS FILE NO 1996-0463214 OF
OFFICIAL RECORDS, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWESTERLY CORNER OF SAID LOT 7; THENCE ALONG THE NORTHERLY
LINE OF SAID XXX 0, XXXXX 00 XXXXXXX 00' 00" XXXX, 434.00 FEET TO THE
NORTHEASTERLY CORNER OF SAID LOT 7; THENCE ALONG THE EASTERLY LINE OF SAID XXX
0, XXXXX 00 XXXXXXX, 00' 00" XXXX, 25.13 FEET THENCE LEAVING SAID EASTERLY LINE,
SOUTH 67 DEGREES 30' 48" WEST, 434.00 FEET TO A POINT ON THE WESTERLY LINE OF
SAID LOT 7; THENCE ALONG SAID WESTERLY LINE, NORTH 22 DEGREES 29' 12" WEST,
25.13 FEET TO THE POINT OF BEGINNING
(SAID PROPERTY BEING DESCRIBED AS PARCEL A (ADJUSTED LOT 6), IN CERTIFICATE OF
COMPLIANCE RECORDED ON JULY 1, 1997 AS FILE NO. 1997-0311133 OF OFFICIAL
RECORDS.)
PARCEL B:
AN EASEMENT FOR DRIVEWAY ACCESS OVER, ALONG AND ACROSS A PORTION OF XXX 0 XX
XXXXXXXX XXXXX XX. 00-00, XXXXXXXX RANCH, UNIT NO 1, IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13357,
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, SEPTEMBER 11,
1996 AS FILE NO. 1996-0463214, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWESTERLY CORNER OF SAID LOT 7; THENCE ALONG THE WESTERLY
LINE OF SAID XXX 0, XXXXX 00 XXXXXXX 00' 00" XXXX, 25.13 FEET TO THE TRUE POINT
OF BEGINNING; THENCE LEAVING SAID WESTERLY LINE, NORTH 67 DEGREES 30' 48" EAST,
40.00 FEET; THENCE SOUTH 22 DEGREES 29' 12" EAST, 18.00 FEET; THENCE SOUTH 67
DEGREES 30' 48" WEST, 40.00 FEET TO A POINT OF THE WESTERLY LINE OF SAID LOT 7;
THENCE ALONG SAID WESTERLY LINE, NORTH 22 DEGREES 29' 12" WEST, 18.00 FEET TO
THE TRUE POINT OF BEGINNING.
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EXHIBIT B
FORM OF ASSIGNMENT OF LEASEHOLD INTEREST AND CONTRACTS
THIS ASSIGNMENT ("Assignment") is made and entered into as of this 30th
day of June, 2000, by and between NATURAL ALTERNATIVES INTERNATIONAL, INC., a
Delaware corporation ("Assignor"), PACIFIC VIEW CORPORATE CENTER, L.L.C., a
Delaware limited liability company ("Assignee"), and AC PACIFIC VIEW CORPORATE
CENTER, INC., a Delaware corporation ("Fee Purchaser") (Fee Purchaser is a party
only for the purposes of paragraphs 2, 4 and 14 below).
Witnesseth:
WHEREAS, Assignor is the lessee under that certain lease executed with
respect to that certain real property commonly known as Pacific View Corporate
Center in Carlsbad, California (the "Property") as more fully described in
EXHIBIT A attached hereto, which lease is described in SCHEDULE 1 attached
hereto (the "Lease");
WHEREAS, Assignor desires to transfer, convey and assign its interest as
lessee in the Lease and the leasehold interest created by the Lease to Assignee,
and Assignee desires to accept the transfer, conveyance and assignment thereof
and to assume Assignor's obligations thereunder;
WHEREAS, Assignor desires to transfer, convey and assign its interest in
the constructions contracts listed on SCHEDULE 2 attached hereto (the
"Construction Contracts")
NOW, THEREFORE, in consideration of the promises and conditions
contained herein, the parties hereby agree as follows
1 . Effective as of the Closing Date (as defined below), Assignor hereby
transfers, conveys and assigns to Assignee all of its right, title and interest
in and to the Lease and the leasehold interest created by the Lease and the
Construction Contracts.
2. Assignor hereby agrees to indemnify Assignee and Fee Purchaser
against and hold Assignee and Fee Purchaser harmless from any and all claims,
liabilities, losses, damages, costs or expenses, including, without limitation,
reasonable attorneys' fees, to the extent resulting from third party claims
relating to the lessee's obligations under the Lease that relate to the period
prior to the Closing Date; provided that, the foregoing indemnity shall not
apply to claims by the contractors, subcontractors or materialmen for payment
under the Construction Contracts based on the Construction Contracts.
3. Effective as of the Closing Date, Assignee accepts the assignment of
Assignor's right, title and interest in and to the Lease and hereby assumes and
agrees to perform all of the lessee's obligations under the Lease to the extent
resulting from the lessee's obligations under the Lease that relate to the
period on or after the Closing Date. Assignee hereby agrees to indemnify
Assignor against and hold Assignor harmless from any and all claims,
liabilities, losses, damages, costs or expenses, including, without limitation,
reasonable attorneys' fees, to the extent relating to the lessee's obligations
under the Lease that relate to the period on or after the Closing Date
4. Effective as of the Closing Date and subject to Paragraphs 2 and 14
herein, Fee Purchaser hereby agrees for itself but no other party, including,
without limitation, Xxxxxx Realty, L.P., that Assignor shall have no obligations
to Fee Purchaser as the lessor under the Lease that relate to the period prior
to the Closing Date. Effective as of the Closing Date, Assignor hereby agrees
for itself but no other party that Fee Purchaser shall have no obligations to
Assignor as the lessee under the Lease that relate to the period prior to the
Closing Date
5. Effective as of the Closing Date, Assignee hereby assumes all of the
owner's obligations under the Construction Contracts that relate to the period
on or after the Closing Date and agrees to indemnify Assignor against and hold
Assignor harmless from any and all cost, liability, loss, damage or expense,
including, without limitation, reasonable attorneys' fees, to the extent
resulting from the owner's obligations under the Construction Contracts that
relate to the period on or after the Closing Date.
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6. Assignor hereby agrees to indemnify Assignee against and hold
Assignee harmless from any and all claims, liabilities, losses, damages, costs
or expenses, including, without limitation, reasonable attorneys' fees, to the
extent resulting from the owner's obligations under the Construction Contracts
that relate to the period prior to the Closing Date.
7. Assignor hereby represents and warrants that Assignor has not
assigned or otherwise conveyed or transferred all or any part of or interest in
the Subleases or Construction Contracts to any other party.
8. Any rental and other payments under the Lease and Construction
Contracts shall be prorated between the parties as provided in the Buy Out of
Leasehold Interest between Assignor, as Seller, and Assignee, as Buyer, dated as
of June 30, 2000 (the "Buy Out Agreement").
9. If ether party hereto fails to perform any of its obligations under
this Assignment or if a dispute arises between the parties hereto concerning the
meaning or interpretation of any provision of this Assignment, and an action is
filed, the prevailing party in any such action shall be entitled to recover from
the other party, in addition to any other relief that may be granted, its court
costs and reasonable attorneys' fees and disbursements, including such incurred
in connection with any appeal.
10. This Assignment may be executed via facsimile transmission, with the
party executing via facsimile to send the original document with original
signature(s) to the other party within one (1) business day by overnight
delivery, and in any number of counterparts, each of which shall be considered
an original and all of which, taken together, shall constitute one and the same
instrument.
11. This Assignment shall be binding on and inure to the benefit of the
parties hereto, their heirs, executors, administrators, successors in interest
and assigns.
12. This Assignment shall be governed by and construed in accordance
with the laws of the State of California.
13. For the purposes of this Assignment, the "Closing Date" shall be the
date of the Closing (as defined in the Buy Out Agreement).
14. The obligations of Assignee and Fee Purchaser are intended to be
binding only on Assignee and Fee Purchaser, respectively, and the property of
Assignee and Fee Purchaser, respectively, and shall not be personally binding
upon, nor shall any resort be had to, the private properties of any of their
trustees, officers, beneficiaries, directors, members, or shareholders, or of
their investment manager, the general partners, officers, directors, members, or
shareholders thereof, or any employees or agents of Assignee, Fee Purchaser or
their investment manager.
15. The obligations of Assignor are intended to be binding only on
Assignor and the property of Assignor and shall not be personally binding upon,
nor shall any resort be had to, the private properties of any of its trustees,
officers, beneficiaries, directors, members, or shareholders, or of its
investment manager, the general partners, officers, directors, members, or
shareholders thereof, or any employees or agents of Assignor or its investment
manager.
16. Notwithstanding anything to the contrary contained herein, nothing
contained herein shall limit the Assignor's obligations under the Buy Out
Agreement, including, without limitation, obligations or liability for breaches
of representations and warranties.
[Remainder of Page Intentionally Left Blank.]
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IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
the day and year first written above.
ASSIGNOR: NATURAL ALTERNATIVES INTERNATIONAL, INC.,
a Delaware corporation
By: /s/ XXXX X. XxXXXX
-------------------------------------------
Name: Xxxx X. XxXxxx
-----------------------------------------
Title: President & CEO
----------------------------------------
By: /s/ XXXXX X. XXXXX
-------------------------------------------
Name: Xxxxx X. Xxxxx
-----------------------------------------
Title: CFO & Treasurer
----------------------------------------
ASSIGNEE: PACIFIC VIEW CORPORATE CENTER,
L.L.C., a Delaware limited liability company
By: AC Pacific View Corporate Center, Inc.,
a Delaware corporation, its Manager
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
FEE PURCHASER IS EXECUTING SOLELY FOR THE PURPOSES OF PARAGRAPHS 2, 4 AND 14
ABOVE AND FOR NO OTHER PURPOSES AND IS NOT BOUND BY ANY OF THE OTHER PROVISIONS
HEREOF.
FEE AC PACIFIC VIEW CORPORATE CENTER,
PURCHASER: INC., a Delaware corporation,
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
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EXHIBIT C
FORM OF ASSIGNMENT OF SUBLEASES
THIS ASSIGNMENT ("Assignment") is made and entered into as of this 30th
day of June, 2000, by and between NATURAL ALTERNATIVES INTERNATIONAL, INC., a
Delaware corporation ("Assignor"), and PACIFIC VIEW CORPORATE CENTER, L.L.C., a
Delaware limited liability company ("Assignee").
Witnesseth:
WHEREAS, Assignor is the sublessor under certain subleases executed with
respect to that certain real property commonly known as Pacific View Corporate
Center in Carlsbad, California (the "Property") as more fully described in
EXHIBIT A attached hereto, which subleases are described in SCHEDULE 1 attached
hereto (the "Subleases"); and
WHEREAS, Assignor desires to assign its interest as sublessor in the
Subleases to Assignee, and Assignee desires to accept the assignment thereof and
to assume Assignor's obligations thereunder;
NOW, THEREFORE, in consideration of the promises and conditions
contained herein, the parties hereby agree as follows:
1. Effective as of the Closing Date (as defined below), Assignor hereby
assigns to Assignee all of its right, title and interest in and to the
Subleases.
2. Effective as of the Closing Date, Assignee hereby assumes and agrees
to perform all of the sublessor's obligations under the Subleases relating to
the period prior to and after Closing and agrees to indemnify Assignor against
and hold Assignor harmless from any and all cost, liability, loss, damage or
expense, including, without limitation, reasonable attorneys' fees, to the
extent resulting from Assignee's failure to perform such obligations
3. Assignor hereby represents and warrants that Assignor has not
assigned or otherwise conveyed or transferred all or any part of or interest in
the Subleases to any other party.
4. Any rental and other payments under the Subleases shall be prorated
between the parties as provided in the Buy Out of Leasehold Interest between
Assignor, as Seller, and Assignee, as Buyer, dated as of June 30. 2000 (the "Buy
Out Agreement").
5. If either party hereto fails to perform any of its obligations under
this Assignment or if a dispute arises between the parties hereto concerning the
meaning or interpretation of any provision of this Assignment, and an action is
filed, the prevailing party in any such action shall be entitled to recover from
the other party, in addition to any other relief that may be granted, its court
costs and reasonable attorneys' fees and disbursements, including such incurred
in connection with any appeal.
6. This Assignment may be executed via facsimile transmission, with the
party executing via facsimile to send the original document with original
signature(s) to the other party within one (1) business day by overnight
delivery, and in any number of counterparts, each of which shall be considered
an original and all of which, taken together, shall constitute one and the same
instrument.
7. This Assignment shall be binding on and inure to the benefit of the
parties hereto, their heirs, executors, administrators, successors in interest
and assigns.
8. This Assignment shall be governed by and construed in accordance with
the laws of the State of California
9. For the purposes of this Assignment, the "Closing Date" shall be the
date of the Closing (as defined in the Buy Out Agreement).
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10. The obligations of Assignee are intended to be binding only on
Assignee and the property of Assignee and shall not be personally binding upon,
nor shall any resort be had to, the private properties of any of its trustees,
officers, beneficiaries, directors, members, or shareholders, or of its
investment manager, the general partners, officers, directors, members, or
shareholders thereof, or any employees or agents of Assignee or its investment
manager.
11. The obligations of Assignor are intended to be binding only on
Assignor and the property of Assignor and shall not be personally binding upon,
nor shall any resort be had to, the private properties of any of its trustees,
officers, beneficiaries, directors, members, or shareholders, or of its
investment manager, the general partners, officers, directors, members, or
shareholders thereof, or any employees or agents of Assignor or its investment
manager.
12. Notwithstanding anything to the contrary contained herein, nothing
contained herein shall limit the Assignor's obligations under the Buy Out
Agreement, including, without limitation, obligations or liability for breaches
of representations and warranties.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
the day and year first written above.
ASSIGNOR: NATURAL ALTERNATIVES INTERNATIONAL, INC.,
a Delaware corporation
By: /s/ XXXX X. XXXXXX
-------------------------------------------
Name: XXXX X. XXXXXX
-----------------------------------------
Title: PRESIDENT & CEO
----------------------------------------
By: /s/ XXXXX X. XXXXX
-------------------------------------------
Name: XXXXX X. XXXXX
-----------------------------------------
Title: CFO & TREASURER
----------------------------------------
ASSIGNEE: PACIFIC VIEW CORPORATE CENTER,
L.L.C., a Delaware limited liability company
By: AC Pacific View Corporate Center, Inc.,
a Delaware corporation, its Manager
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
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SCHEDULE 1
LIST OF CONSTRUCTION CONTRACTS
1. Construction contract between Bearing Construction, Inc. and Assignor dated
June 6, 2000.
2. Profect Management Services contract between JDC Holdings, Inc., dba The
Xxxxxxxx Company, and Assignor dated February 1, 2000.
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SCHEDULE 2
SHELL AND CORE TENANT IMPROVEMENT COSTS
A total of $37,500 paid as of the date hereof to The Xxxxxxxx Group/JDC Holdings
for project management purposes.
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