SEVENTH AMENDMENT TO PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS

Exhibit 10.38

SEVENTH AMENDMENT TO
PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS

THIS SEVENTH AMENDMENT TO PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS (“Amendment”) is entered into at San Diego, California as of June 16, 2003, between X. X. XXXXXX COMPANY, a California corporation which acquired title as X. X. Xxxxxx Material Company (“Seller”), and BIOSITE INCORPORATED, a Delaware corporation (“Buyer”), with reference to the following

R E C I T A L S:

A. Seller and Buyer are the parties to a Purchase Agreement and Escrow Instructions dated as of December 7, 2001 and previously amended as of February 12, February 14, and June 10, 2002, and as of January 24, April 25 and May 27, 2003 (“Agreement”), relating to certain real property in the Xxxxxxx Canyon area of San Diego, California as depicted on Exhibit A to the Agreement (“Land”). Initially capitalized terms not otherwise defined in this Amendment have the same meanings as in the Agreement, as previously amended. Pursuant to the Agreement, the parties have established Escrow No. 51943-PM with Xxxxxxx Title of California, Inc. as Escrow Holder.

B. Since parties’ entry into the Agreement, there have been recorded two agreements between Seller and Xxxxxx Aggregates Pacific Southwest, Inc., a Delaware corporation (“Xxxxxx”), the owner of real property (“Xxxxxx Property”) that is located east of the Land and the other Xxxxxxx Canyon holdings of Seller (collectively, the “Xxxxxx Property”): (i) an Agreement Between Adjacent Landowners re Payment of Costs of Camino Santa Fe Improvements, which was recorded in the Office of the County Recorder of San Diego County on April 7, 2003 as Document No. 2003-0384334 (“CSF Agreement”); and a Drainage Facilities Deed Restriction and Agreement Between Adjacent Landowners, which was recorded April 7, 2003 as Document No. 2003-0384335 (“Drainage Agreement”; referred to with the CSF Agreement as the “Xxxxxx Agreements”).

C. The Xxxxxx Agreements burden the Xxxxxx Property and benefit the Xxxxxx Property. The CSF Agreement obligates Xxxxxx to share in certain costs associated with the Camino Santa Fe Improvements component of the Seller Improvements that Xxxxxx is obligated to build pursuant to Paragraphs 7.4 and 13.2 of the Agreement. The Drainage Agreement restricts any future development of the Xxxxxx Property that would require connection to the sewer and storm drainage facilities that are also being constructed by Xxxxxx as part of the Camino Santa Fe Improvements.

D. Because the Xxxxxx Agreements are now of record, the parties wish to modify the Agreement to clarify that as between Seller and Buyer, all obligation and liability arising out of the Xxxxxx Agreements, if any, shall be Seller’s.

THE PARTIES AGREE:

1. The Xxxxxx Agreements.

(a) The parties agree that the Xxxxxx Agreements shall be Permitted Exceptions for all purposes of the Agreement.

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(b) As between Seller and Buyer, all obligation and liability arising out of the Xxxxxx Agreements, if any, shall belong to Seller, and Buyer shall have no obligation or liability with respect to either of the Xxxxxx Agreements.

(c) To the extent not already encompassed with Seller’s indemnity set forth in Paragraph 13.2.3 of the Agreement, Seller also agrees to indemnify, defend and hold Buyer harmless from liability for any losses, costs (including reasonable attorneys’ fees), claims, liabilities, expenses and demands arising out of any claim by Xxxxxx or any successor of Xxxxxx arising out of or connected with the Xxxxxx Agreements.

(d) Seller acknowledges that the existence of the Xxxxxx Agreements may give rise to certain concerns or requirements of Buyer’s lender, and Seller agrees to use commercially reasonable efforts, not involving the posting of security or the holdback or expenditure of funds, to assist Buyer in satisfying any lender-imposed conditions. Without limiting the generality of the foregoing, Seller agrees that upon request of Buyer or Buyer’s lender, it will (i) seek Xxxxxx’x acknowledgment that the Xxxxxx Agreements will not give rise to any liability on the part of Buyer or the Land after the Close of Escrow, and/or (ii) seek Xxxxxx’x signature on any estoppel or subordination that may reasonably be requested by Buyer’s lender. Nothing in the foregoing shall constitute any representation or warranty by Seller that Xxxxxx will in fact sign any documents or instruments or otherwise cooperate as contemplated herein, and Seller shall not be in default if its efforts in this regard are not successful.

2. Other Matters of Agreement.

(a) This Amendment may be executed in any number of counterparts, each of which will be deemed to be an original, but all of which together will constitute one instrument.

(b) Except to the extent modified hereby, all provisions of the Agreement as previously amended shall remain in full force and effect.

Seller:			Buyer:
X. X. XXXXXX COMPANY, a California corporation			BIOSITE INCORPORATED, a Delaware corporation
By	/s/ Xxxxx X. Xxxxx		By	/s/ Xxxxxxxxxxx X. Xxxxxx
Its	Chairman		Its	V.P., Finance and CFO
By	/s/ Xxxxxx Xxxxxxxx		By
Its	CFO		Its

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