AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT ("Agreement") dated as of January __, 2001, is by and
between WEBCOR SAN ANTONIO STREET ASSOCIATES, LLC, A California limited
liability company ("Seller") and IMPAX LABORATORIES, INC., a Delaware
corporation ("Buyer").
ARTICLE I
PURCHASE AND SALE OF PROPERTY
Section 1.1 Sale. Seller agrees to sell to Buyer, and Buyer agrees to
purchase from Seller, subject to the terms, covenants and conditions set forth
herein, the real property, together with any and all improvements located
thereon, and any and all easements appurtenant thereto owned by Seller, located
in the City of Hayward, Alameda County, State of California, commonly known as
00000 Xxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx, and more particularly described
in Exhibit A attached hereto (the "Real Property"), together with the personal
property owned by Seller, if any, located on the Real Property and described on
Exhibit B, attached hereto (the "Personal Property"). The Real Property and the
Personal Property are collectively referred to herein as the "Property."
Section 1.2 Escrow. Within two (2) business days of the Effective Date
(as defined in Section 9.16 below), Buyer shall deposit this Agreement in escrow
with Chicago Title Company, 0000 Xxxxxx Xxxxx, #000, Xxxxxxxxxx, Xxxxxxxxxx,
00000 (the "Title Company").
Section 1.3 Purchase Price. The purchase price of the Property is Four
Million Nine Hundred Thousand and 00/100 Dollars ($4,900,000.00) (the "Purchase
Price"), which shall be paid in full all cash to Seller in immediately available
funds via wire transfer at the consummation of the purchase and sale
contemplated hereunder (the "Closing").
ARTICLE II
CONDITIONS
Section 2.1 Buyer's Conditions Precedent. Buyer's obligation to
purchase the Property is conditioned upon the satisfaction of each of the
following conditions precedent:
(a) Buyer's review and approval of the environmental condition
of the Property.
(b) Buyer's inspection and approval of the physical condition
of the Property.
Section 2.2 Buyer's Contingency Period. Buyer shall have until sixty
(60) days after the Commencement Date of the Lease between Webcor Construction,
Inc. ("WCI") and Buyer covering the Premises (to which this Agreement is
attached as Exhibit B (the "Lease")), to review and approve the matters
described in Sections 2.1 above and 3.1 below (such period being referred to
herein as the "Contingency Period"). If Buyer elects to proceed with the
purchase of the Property, then Buyer shall, before the end of the Contingency
Period, notify Seller in writing that Buyer has approved all of the matters
described in Sections 2.1 above and 3.1 below. If, before the end of the
Contingency Period, Buyer fails to give Seller such written notice, then Buyer
shall be deemed to have elected to terminate this Agreement, and neither party
shall have any further rights or obligations hereunder except as provided in
Sections 7.1, 9.3 and 9.11 below, and the Lease shall continue in full force and
effect (except the option to purchase set forth in Section 29 of the Lease shall
be deemed extinguished).
EXHIBIT B
Section 2.3 Subdivision Map Act Contingency. Seller's obligation to
sell the Property and Buyer's obligation to purchase the Property under this
Agreement are conditioned upon the Property, on or before the Closing, complying
with the California Subdivision Map Act. The parties agree to use their best
efforts and cooperate, with each party bearing its own expenses, to prepare and
submit all necessary governmental filings and applications necessary to obtain
compliance of the Property with the Subdivision Map Act. If all necessary
approvals have not been obtained five (5) days prior to the Closing Date
specified by Buyer pursuant to Section 8.2 below, either party shall have the
right to thereupon terminate this Agreement upon notice to the other, and
neither party shall have any further rights or obligations hereunder except as
provided in Sections 7.1, 9.3 and 9.11 below, and the Lease shall continue in
full force and effect (except the option to purchase set forth in Section 29 of
the Lease shall be deemed extinguished).
Section 2.4 Additional Conditions
(a) Buyer's obligation to purchase the Property is conditioned
upon the performance by Seller of every obligation of Seller hereunder, and the
truth of each representation and warranty made in this Agreement by Seller at
the time the representation or warranty was made and as of the Closing and upon
Title Company being prepared to issue the Title Policy to Buyer as provided in
Section 4.2, below.
(b) Seller's obligation to sell the Property is conditioned
upon the performance by Buyer of every obligation of Buyer hereunder, and the
truth of each representation and warranty made in this Agreement by Buyer at the
time the representation or warranty was made and as of the Closing.
ARTICLE III
BUYER'S EXAMINATION
Section 3.1 Buyer's Independent Investigation.
(a) Buyer acknowledges and agrees that it has been given or
will be given before the end of the Contingency Period, a full opportunity to
inspect and investigate each and every aspect of the Property, either
independently or through agents of Buyer's choosing, including, without
limitation:
(1) All matters relating to title, together with all
governmental and other legal requirements such as taxes, assessments, zoning,
use permit requirements, building codes and Subdivision Map Act requirements
including, but not limited to, the Covenants, Conditions and Restrictions
contained in Exhibit B of the Grant Deed dated December 17, 1973 conveying the
Premises (and adjacent property) to Komatsu America Corp. as recorded in Alameda
County on January 3, 1974 (the "CCRs").
EXHIBIT B
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(2) The physical condition of the Property,
including, without limitation, the interior, the exterior, the structure, the
paving, the utilities, and all other physical and functional aspects of the
Property. Such examination of the physical condition of the Property shall
include an examination for the presence or absence of hazardous or toxic
materials, substances or wastes (collectively, "Hazardous Materials"), which
shall be performed or arranged by Buyer at Buyer's sole expense.
(3) Any easements and/or access rights affecting the
Property.
(4) All other matters of material significance
affecting the Property.
(b) Buyer acknowledges that Section 1 of the CCRs provides,
among other things, that no building, portions of building or structure of any
kind shall be erected on the Property within ten (10) feet of any side or rear
boundary line of the Property. Section 17 of the CCRs provides that the
Conditions and Covenants contained therein shall terminate and be of no further
effect from and after July 1, 2000. Buyer acknowledges that upon completion of
the Subdivision Map Act approval referred to in Section 2.3 above, the warehouse
building on the Property will be within ten (10) feet of a side boundary line of
the Property. The parties believe that such restriction has either expired or is
not applicable to a lot line which is subsequently created as will be the case
upon completion of the Subdivision Map Act approvals referred to in Section 2.3
above. Should it become necessary, because of the objection of governmental
bodies or other third parties, to undertake a lot-line adjustment in order to
satisfy such restriction, Seller agrees to undertake the same and complete it as
soon as reasonably possible. Buyer shall fully cooperate with Seller in such
efforts. The parties shall share on a 50/50 basis all costs of such efforts
including legal fees, surveyor's fees, engineering fees, application and map
fees and all other out-of-pocket third party costs directly related to such
lot-line adjustment. Furthermore, the parties shall cooperate and negotiate in
good faith to execute and record mutually acceptable reciprocal access and
storage area easements with regard to any portion of Seller's real property
which becomes a part of the Property as a result of such adjustment.
(c) BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT, EXCEPT AS
EXPRESSLY PROVIDED IN SECTION 5.1 BELOW, SELLER IS SELLING AND BUYER IS
PURCHASING THE PROPERTY ON AN "AS IS WITH ALL FAULTS" BASIS AND, EXCEPT AS
EXPRESSLY PROVIDED IN SECTION 5.1 BELOW, THAT BUYER IS NOT RELYING ON ANY
REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, FROM
SELLER OR WCI OR THEIR AGENTS, OR BROKERS AS TO ANY MATTERS CONCERNING THE
PROPERTY, INCLUDING, WITHOUT LIMITATION: (i) the quality, nature, adequacy and
physical condition of the Property, including, but not limited to, the
structural elements, foundation, roof, appurtenances, access, landscaping,
parking facilities and the electrical, mechanical, HVAC, plumbing, sewage, and
utility systems, facilities and appliances or any other items referred to in
Section 10 of the Lease, (ii) the quality, nature, adequacy, and physical
condition of soils, geology and any groundwater, (iii) the existence, quality,
nature, adequacy and physical condition of utilities serving the Property, (iv)
the development potential of the Property, and the Property's use, habitability,
merchantability, or fitness, suitability, value or adequacy of the Property for
any particular purpose, (v) the zoning or other legal status of the Property or
any other public or private restrictions on use of the property, (vi) the
compliance of the Property or its operation with any applicable codes, laws,
regulations, statutes, ordinances, covenants, conditions and restrictions of any
governmental or quasi-governmental entity or of any other person or entity,
(vii) the presence of Hazardous Materials on, under or about the Property or the
adjoining or neighboring property, (viii) the quality of any labor and materials
used in any improvements on the Real Property, (ix) the condition of title to
the Property, and (x) the economics of the operation of the Property.
EXHIBIT B
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Section 3.2 Seller's Disclosures.
(a) Buyer is hereby apprised of and shall determine whether
the Real Property is located within the coastal zone under the California
Coastal Act.
(b) Buyer is hereby apprised of and shall determine whether
the Real Property is located within a special studies zone under the
Xxxxxxx-Xxxxxx Geologic Hazard Act.
(c) To the extent required by law, Seller and Purchaser agree
to provide a Real Estate Transfer Disclosure Statement.
(d) On or before five (5) days prior to expiration of the
Contingency Period, Seller shall provide a Natural Hazard Disclosure Statement
in the form required by California Civil Code Section 1102.6c (b) if and to the
extent that the Title Company informs Seller that the Property is subject to
Sections 8589.3, 8589.4 or 51183.5 of the California Government Code or Sections
2621.9, 2694 or 4136 of the California Public Resources Code, it being agreed
that (i) Seller has relied solely and exclusively on the Title Company to make
such determination and (ii) the release set forth in Section 3.3 below shall
include any failure of Seller to provide the disclosure required by California
Civil Code Section 1102.6(a) due to an error or omission of the Title Company.
Section 3.3 Release.
(a) Without limiting the above, Buyer, on its own behalf and
on behalf of its agents, partners, affiliates, successors and assigns and any
subsequent offeree, buyer, owner or occupant of the Property and any offeree,
buyer, owner or occupant of any interest in the Property, hereby waives,
releases and discharges Seller and WCI, and each and every person, firm or
corporation, member and/or manager of Seller and/or WCI and each of their
respective agents, partners, members, affiliates, successors, assigns, heirs,
devisees, legatees and executors from and against any and all liabilities,
obligations, fines, penalties, claims, demands, suits, judgments, actions,
causes of action, damages, costs, losses and expenses (including reasonable
attorney's fees, expert witness fee, and court costs)(collectively, "Claims"),
directly or indirectly arising by reason of, in connection with, on account of
or pertaining to the physical, environmental, economic or legal condition of the
Property, or any law or regulation applicable thereto, including, without
limitation, the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (42 U.S.C. Section 9601 et seq.), the Resource
Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.), the
Clean Water Act (33 U.S.C. Section 1251 et seq.), the Safe Drinking Water Act
(42 U.S.C. Section 300f et seq.), the Hazardous Materials Transportation Act (49
U.S.C. Section 1801 et seq.), the Toxic Substances Control Act (15 U.S.C.
Section 2601 et seq.), the California Hazardous Waste Control Law (California
Health and Safety Code Sections 25100-25600), the Xxxxxx-Cologne Water Quality
Control Act (California Health and Safety Code Section 13000 et seq.), and the
Safe Drinking Water and Toxic Enforcement Act (California Health and Safety Code
Section 25249.5 et seq.).
EXHIBIT B
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(b) In connection with subsection (a) above, Buyer expressly
waives the benefits of Section 1542 of the California Civil Code, which provides
as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR EXPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN TO HIM MUST HAVE MATERIALLY AFFECTED THE SETTLEMENT WITH THE
DEBTOR."
(c) The provisions of Section 3.3(a) shall not relieve Seller
from any breach of Seller's representations and warranties set forth in Section
5.1 below; provided, however, that Seller's liability on amount thereof shall be
limited to the extent set forth in Section 9.4 below.
ARTICLE IV
TITLE
Section 4.1 Conditions of Title. At the Closing, Seller shall convey
title to the Real Property to Buyer by good and sufficient grant deed in the
form of Exhibit C attached hereto (the "Deed") subject to no exceptions other
than:
(a) Non-delinquent liens for local real estate taxes and
assessments; and
(b) Exceptions 3 through 7 disclosed by the preliminary report
("Title Report") for the Real Property prepared by the Title Company (Order No.
9203983-SDC) dated October 12, 2000 and attached hereto as Exhibit D, exceptions
disclosed by the public records or other documents delivered to Buyer pursuant
to Article II above, and any other exceptions to title which would be disclosed
by an inspection and/or survey of the Property.
All of the foregoing items referred to in (a) or (b) shall be referred
to collectively as the "Conditions of Title." Notwithstanding the foregoing, it
is agreed that any liens which are not disclosed by Exceptions 3 through 7 of
the Title Report because the same have been placed upon the Real Property after
the date of the Title Report with the express consent of Seller shall be removed
by Seller within ten (10) business days of written notice from Buyer, or Seller
within such ten (10) business days shall obtain the Title Company's written
commitment to endorse over such exceptions at the Closing, unless such
exceptions are expressly approved by Buyer in writing. Any such exceptions which
are not so approved by Buyer or are not referred to in (a) or (b) above shall
not be Conditions of Title.
Section 4.2 Evidence of Title. Delivery of title in accordance with the
foregoing shall be evidenced by the willingness of the Title Company to issue,
at Closing, its standard Owner's American Land Title Association Policy of Title
Insurance in the amount of the Purchase Price showing title to the Real Property
vested in Buyer, subject to the Conditions of Title (the "Title Policy").
EXHIBIT B
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ARTICLE V
SELLER'S REPRESENTATIONS AND WARRANTIES
Section 5.1 Representations and Warranties of Seller. Seller represents
and warrants to Buyer that:
(a) Seller is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of California.
This Agreement and all documents executed by Seller which are to be delivered to
Buyer at Closing (i) are or at the time of Closing will be duly authorized,
executed and delivered by Seller, (ii) are or at the time of Closing will be
legal, valid and binding obligations of Seller, and (iii) do not and at the time
of Closing will not violate any provision of any agreement or judicial order to
which Seller is a party or to which Seller or the Property is subject. At the
time of Closing, Seller will convey title to Buyer.
(b) To the best of Seller's knowledge, Seller has not received
written notice from any applicable governmental authority that the Property is
in violation of any laws, ordinances or regulations of any applicable
governmental authority having jurisdiction thereover or control thereof.
(c) To the best of Seller's knowledge, Seller has not received
written notice from any applicable governmental authority of any pending or
threatened special assessments or condemnation actions with respect to the
Property.
(d) To the best of Seller's knowledge, there is no litigation
filed against Seller that arises out of the ownership of the Property or that
would adversely affect the current use or operation of the Property or the
ability of Seller to perform its obligations under this Agreement.
(e) To the best of Seller's knowledge, there are no current
leases, licenses or other agreements which give any possessory rights in the
Property to third parties, except to the extent that such parties have easements
or recorded rights to access the Property, as may be disclosed by the Title
Commitment and except for the Lease and Master Lease described in the Lease.
(f) Seller is the sole owner in fee simple of the Property.
Seller has not alienated, encumbered, transferred, leased, assigned or otherwise
conveyed its interest in the Property or any portion thereof except as may be
disclosed by the Title Commitment and except for the Lease and the Master Lease
described in the Lease, nor entered into any agreement to do so, nor shall
Seller do so prior to the Closing.
(g) To the best of Seller's knowledge, there are no mechanic's
or materialman's liens or similar claims or liens now asserted against the
Property for work performed or commenced prior to the Effective Date.
(h) Except as may be disclosed by the Title Commitment, Seller
has not made any commitment or representation to any government authority, or
any adjoining or surrounding property owner, which would in any way be binding
on Buyer or would interfere with Buyer's ability to utilize the Property, and
will not make any such commitment or representation which would affect the
Property subsequent to the Closing without Buyer's written consent.
EXHIBIT B
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(i) Neither this Agreement, nor any of the Exhibits hereto,
nor any document, certificate, or written statement executed by Seller and
furnished to Buyer in connection with the transaction contemplated herein
contains any untrue statement of material fact or omits to state a material fact
concerning the Property. Seller makes no representation or warranty with respect
to documents, certificates or statements of any party except Seller.
Section 5.2 Survival of Representations and Warranties. All
representations and warranties of Seller contained in this Agreement shall
survive the Closing, provided that Buyer must give Seller written notice of any
claim it may have against Seller for a breach of any such representation or
warranty, within six (6) months of the Closing Date. Any claim which Buyer may
have at any time, whether known or unknown, which is not asserted within such
six (6) month period shall not be valid or effective, and Seller shall have no
liability with respect thereto.
Section 5.3 Seller's Knowledge. Buyer expressly understands and agrees
that the phrase "to the best of Seller's knowledge" as used in Section 5.1 means
the actual knowledge only and not any implied, imputed or constructive knowledge
of any member of Seller without any independent investigation having been made.
ARTICLE VI
RISK OF LOSS AND INSURANCE PROCEEDS
Section 6.1 Loss. Seller shall give Buyer notice of the occurrence of
damage or destruction of, or the commencement of condemnation proceedings
affecting, any portion of the Property. In the event that all or any material
portion of the Property is condemned, or destroyed or damaged by fire or other
casualty prior to the Closing and the cost to repair or restore any loss or
damage caused thereby is greater than Two Hundred Thousand Dollars ($200,000),
then Buyer may, at its option to be exercised within ten (10) days of Seller's
notice of the occurrence of the damage or destruction or the commencement of
condemnation proceedings, either terminate this Agreement or consummate the
purchase for the full Purchase Price as required by the terms hereof. If Buyer
elects to terminate this Agreement or fails to give Seller notice within such
ten (10) day period that Buyer will proceed with the purchase, then this
Agreement shall terminate at the end of such ten (10) day period and neither
party shall have any further rights or obligations hereunder except as provided
in Sections 7.1, 9.3 and 9.11 below and the Lease shall continue in full force
and effect (except the option to purchase set forth in Section 29 of the Lease
shall be deemed extinguished). If (a) a portion of the Property is condemned or
destroyed or damaged by fire or other casualty prior to the Closing and the cost
to repair or restore any loss or damage caused thereby is equal to or less than
Two Hundred Fifty Thousand Dollars ($250,000), or (b) Buyer elects within the
aforesaid ten (10) day period to proceed with the purchase, then this Agreement
shall not terminate and upon the Closing, there shall be a credit against the
Purchase Price due hereunder equal to the amount of any insurance proceeds or
condemnation awards collected by Seller as a result of any such damage or
destruction or condemnation, plus the amount of any insurance deductible, less
any sums expended by Seller toward the restoration or repair of the Property. If
the proceeds or awards have not been collected as of the Closing, then such
proceeds or awards shall be assigned to Buyer, except to the extent needed to
reimburse Seller for sums expended to collect such proceeds or repair or restore
the Property, and Buyer shall not receive any credit against the Purchase Price
with respect to such proceeds or awards. The provisions of this Section 6.1
shall survive the Closing.
EXHIBIT B
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ARTICLE VII
BROKERS AND EXPENSES
Section 7.1 Brokers. The parties acknowledge and agree that they are
each represented by Colliers International with respect to the transaction
covered by this Agreement, and each party consents to this dual representation.
The parties represent and warrant to each other that except for Colliers
International, whose commission shall be paid by Seller as noted below, no
broker or finder was instrumental in arranging or bringing about this
transaction and that there are no other claims or rights for brokerage
commissions or finder's fees in connection with the transactions contemplated by
this Agreement. If any 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 commission of Colliers International shall be paid by Seller upon
Closing (and if, and only if, the Closing actually occurs), with such broker
receiving One Hundred Thousand Dollars ($100,000) from the proceeds of escrow.
The provisions of this Section 7.1 shall survive the Closing or, if the purchase
and sale is not consummated, any termination of this Agreement.
Section 7.2 Expenses. Except as provided in Section 8.4(b) below, each
party hereto shall pay its own expenses incurred in connection with this
Agreement and the transactions contemplated hereby.
ARTICLE VIII
CLOSING AND ESCROW
Section 8.1 Escrow Instructions. 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 8.2 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 a business day (the "Closing
Date") between September 1, 2001 and November 30, 2001, with the exact date
being specified by Buyer by fifteen (15) day's prior notice to Seller and the
Title Company, which Notice shall be given no later than November 15, 2001. Such
date may not be extended without the prior written approval of both Seller and
Buyer.
EXHIBIT B
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Section 8.3 Deposit of Documents.
(a) At or before the Closing, Seller shall deposit into escrow
the following items:
(1) the duly executed and acknowledged Deed conveying
the Real Property to Buyer subject to the Conditions of Title;
(2) a duly executed counterpart of the Xxxx of Sale
in the form attached hereto as Exhibit D (the "Xxxx of Sale");
(3) an affidavit pursuant to Section 1445(b)(2) of
the United States Internal Revenue Code of 1986, as amended (the "Federal Code")
in the form attached hereto as Exhibit E, 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
(4) if legally required, a properly executed
California Form 597-W.
(b) At or before Closing, Buyer shall deposit into escrow the
following items:
(1) funds necessary to close this transaction; and
(2) a duly executed counterpart of the Xxxx of Sale;
(c) Buyer and Seller shall each deposit such other instruments
as are reasonably required by the Title Company or otherwise required to close
the escrow and consummate the purchase and sale of the Property in accordance
with the terms hereof including, but not limited to, the easement documents
referred to in Section 9.16 below. Buyer and Seller hereby designate Title
Company as the "Reporting Person" for the transaction pursuant to Section
6045(e) of the Federal Code and the regulations promulgated thereunder.
(d) Seller shall deliver to Buyer originals (or to the extent
originals are not available, copies) of any other items which Seller was
required to furnish Buyer copies of or make available at the Property pursuant
to Section 2.1 above, within five (5) business days after the Closing Date.
Seller shall deliver to Buyer a set of keys to the Property on the Closing Date.
Section 8.4 Prorations
(a) Real property taxes and assessments; water, sewer and
utility charges; annual permits and/or inspection fees (calculated on the basis
of the period covered); and any other expenses normal to the operation and
maintenance of the Property shall all be prorated as of 12:01 a.m. on the date
the Deed is recorded, on the basis of a 365-day year. The Purchase Price shall
be increased by the amount of any utility deposits paid by Seller with respect
to the Property. Seller and Buyer hereby agree to determine the aforesaid
prorations on or before the date that is three (3) business days before the
Closing Date; provided that if any of the aforesaid prorations cannot be
calculated accurately as of the date that is three (3) business days prior to
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) shall promptly pay said sum to
the other party.
EXHIBIT B
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(b) Buyer shall pay for the cost to update, recertify or
otherwise revise any survey delivered by Seller to Buyer and the premium for the
Title Policy. Seller shall pay the county transfer tax. Escrow fees, recording
charges, the City of Hayward transfer tax and any other expenses of the escrow
for the sale shall be prorated between Buyer and Seller in accordance with
customary practice as determined by the Title Company.
ARTICLE IX
MISCELLANEOUS
Section 9.1 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 a commercial
overnight courier that guarantees next day delivery and provides a receipt, or
(d) by telefacsimile or telecopy, and such notices shall be addressed as
follows:
To Seller: Webcor San Antonio Street Associates, LLC
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Fax No.: (000) 000-0000
Attn: Xxxxxx X. Xxxx
With a copy to: Lillick & Xxxxxxx LLP
Xxx Xxxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx
To Buyer: Impax Laboratories, Inc.
00000 Xxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax No.: (000) 000-0000
Attn: Xxxxx Xxx
With a copy to: Xxxxx, Xxxxx & Xxxxxx
Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Fax No.: (000) 000-0000
Attn: H. Xxx Xxxxxx
or to such other address as either party may from time to time specify in
writing to the other party. Any notice shall be deemed delivered when actually
delivered, if such delivery is in person, upon deposit with the U.S. Postal
Service, if such delivery is by certified mail, upon deposit with the overnight
courier service, if such delivery is by an overnight courier service, and upon
transmission, if such delivery is by telefacsimile or telecopy.
Section 9.2 Entire Agreement. This Agreement, together with the
Exhibits attached hereto, contain all representations, warranties and covenants
made by Buyer and Seller and constitute 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.
EXHIBIT B
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Section 9.3 Entry and Indemnity. In connection with any entry by Buyer,
or its agents, employees or contractors onto the Property, Buyer shall give
Seller reasonable advance notice of such entry and shall conduct such entry and
any inspections in connection therewith so as to minimize, to the greatest
extent possible, interference with Seller's or WCI's business and otherwise in a
manner reasonably acceptable to Seller. Without limiting the foregoing, prior to
any entry to perform any onsite testing, Buyer shall give Seller notice thereof,
including the identity of the company or persons who will perform such testing
and the proposed scope of the testing. In the event that Buyer proposes to
conduct Phase II testing, or any invasive testing, including but not limited to,
core drilling, or roof sampling, Buyer shall proceed only with Seller's
approval, and Seller shall approve or disapprove the proposed testing within
three (3) business days after receipt of such notice. If Buyer or its agents,
employees or contractors take any sample from the Property in connection with
any such approved testing, at Seller's request, Buyer shall provide to Seller a
portion of such sample being tested to allow Seller, if it so chooses, to
perform its own testing. Seller or its representative may be present to observe
any testing or other inspection performed on the Property. Upon Seller's
request, Buyer shall promptly deliver to Seller copies of any reports relating
to any testing or other inspection of the Property performed by Buyer or its
agents, employees or contractors. Buyer shall maintain, and shall assure that
its contractors maintain, public liability and property damage insurance in
amounts and in form and substance adequate to insure against all liability of
Buyer and its agents, employees or contractors, arising out of any entry or
inspections of the Property pursuant to the provisions hereof, and Buyer shall
provide Seller with evidence of such insurance coverage upon request by Seller.
Buyer shall indemnify and hold Seller and WCI, and each of them, harmless from
and against any costs, damages, liabilities, losses, expenses, liens or claims
(including, without limitation, reasonable attorneys' fees) arising out of or
relating to any entry on the Property by Buyer, its agents, employees or
contractors in the course of performing the inspections, testings or inquiries
provided for in this Agreement. The foregoing indemnity shall survive beyond the
Closing, or, if the sale is not consummated, beyond the termination of this
Agreement.
Section 9.4 Limitations of Liability; Remedies.
(a) Seller's Liability. Notwithstanding anything to the
contrary contained in this Agreement, Buyer agrees that its recourse against
Seller under this Agreement or under any other agreement, document, certificate
or instrument delivered by Seller to Buyer, or under any law applicable to the
Property or this transaction, shall be strictly limited to Seller's interest in
the Property, (or upon consummation of the transaction contemplated hereunder,
to the net proceeds of the sale thereof actually received by Seller), and that
in no event shall Buyer seek or obtain any recovery or judgment against any of
Seller's other assets (if any) or against WCI or WCI's or Seller's respective
partners, directors, officers, employees or shareholders. Further, Buyer agrees
that any recovery against any of the foregoing for any breach of Seller's
covenants, representations or warranties hereunder or under any other agreement,
document, certificate or instrument delivered by Seller to Buyer, or under any
law applicable to the Property or this transaction, shall be limited to Buyer's
actual damages not in excess of $100,000 in the aggregate, plus amounts
recoverable under Section 9.6 of this Agreement. In no event shall Buyer be
entitled to seek or obtain any other damages of any kind, including, without
limitation, consequential, indirect or punitive damages.
EXHIBIT B
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(b) Buyer's Liability. Buyer and Seller agree that in the
event the Closing fails to occur because of Buyer's default, breach or failure
to perform (not due to Seller's wrongful acts or omissions or Seller's breach)
hereunder, the damages to Seller would be extremely difficult and impracticable
to ascertain, and that therefore, the sum of thirty-three thousand dollars
($33,000) plus amounts recoverable under Section 9.6 of this Agreement is
accepted by Seller as a reasonable estimate of the damages to Seller, such
damages including costs of negotiating and drafting of this Agreement, costs of
cooperating in satisfying conditions to Closing, costs of seeking another Buyer
upon Buyer's default, opportunity costs in keeping the Property out of the
marketplace, and other costs incurred in connection herewith.
Section 9.5 Time. Time is of the essence in the performance of each of
the parties' respective obligations contained herein.
Section 9.6 Attorneys' Fees. If either party hereto fails to perform
any of its obligations under this Agreement or if any dispute arises between the
parties hereto concerning the meaning or interpretation of any provision of this
Agreement, then the defaulting party or the party not prevailing in such
dispute, as the case may be, shall pay any and all costs and expenses incurred
by the other party on account of such default and/or in enforcing or
establishing its rights hereunder, including, without limitation, court costs
and reasonable attorneys' fees and disbursements. Any such attorneys' fees and
other expenses incurred by either party in enforcing a judgment in its favor
under this Agreement shall be recoverable separately from and in addition to any
other amount included in such judgment, and such attorneys' fees obligation is
intended to be severable from the other provisions of this Agreement and to
survive and not be merged into any such judgment.
Section 9.7 No Merger. The obligations contained herein shall not merge
with the transfer of title to the Property but shall remain in effect until
fulfilled or terminated in accordance with its terms.
Section 9.8 Assignment. Buyer's rights and obligations hereunder shall
not be assignable without the prior written consent of Seller, in its sole
discretion. In no event shall Buyer be released from any of its obligations or
liabilities hereunder if Seller approves of any assignment of this Agreement.
Subject to the foregoing, this Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns.
Notwithstanding the foregoing, this Agreement is assignable by Buyer to an
investment group managed by Xxxxxxx Xxxxx, Chairman of the Board of Buyer.
Section 9.9 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
Section 9.10 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
Section 9.11 Confidentiality. Buyer and Seller shall each maintain as
confidential any and all material obtained about the other and, in the case of
Buyer, about the Property, and shall not disclose such information to any third
party. This provision shall survive the Closing or any termination of this
Agreement.
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Section 9.12 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 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 9.13 Authority of Buyer. Buyer represents and warrants to
Seller that Buyer is a corporation, duly organized,. validly existing, and in
good standing under the laws of the State of Delaware. Buyer further represents
and warrants to Seller that this Agreement and all documents executed by Buyer
which are to be delivered to Seller at Closing (a) are or at the time of Closing
will be duly authorized, executed and delivered by Buyer, (b) are or at the time
of Closing will be legal, valid and binding obligations of Buyer, and (c) do not
and at the time of Closing will not violate any provision of any agreement or
judicial order to which Buyer is a party or to which Buyer is subject. The
foregoing representation and warranty and any and all other representations and
warranties of Buyer contained herein shall survive the Closing Date.
Section 9.14 Amendments. This Agreement may be amended or modified only
by a written instrument signed by Buyer and Seller.
Section 9.15 Recording. Currently herewith, Seller and Buyer shall
execute in recordable form a memorandum of this Agreement (the "Memorandum") in
form and substance as attached hereto as Exhibit F and deliver the same to the
Title Company for recording. If the Memorandum is recorded, then upon
cancellation or termination of this Agreement, Buyer agrees to execute and
deliver a release of the Memorandum upon the request of Seller in a form and
substance reasonably acceptable to Seller and to the Title Company.
Section 9.16 Easements. The parties agree that as soon as reasonably
possible following the Effective Date (defined below) they shall meet and
negotiate in good faith mutually acceptable easements setting forth the
following rights and privileges:
(a) The right of Buyer for access to enter Seller's real property (the
"Adjacent Property") which is adjacent to the Real Property for the purpose of
performing necessary maintenance and repair to the wall of the warehouse (the
"Warehouse") located upon the Real Property.
(b) The right of Seller to maintain and repair a lean-to shed on the
Adjacent Property but against the wall of the Warehouse, as well as the right of
Buyer to have a portion of the Warehouse overhang the Adjacent Property in its
present configuration together with Seller's right to enjoy such overhang for
storage coverage purposes.
(c) The right of Buyer to use the existing driveway between the
Warehouse and Seller's building on the Adjacent Property to gain access to the
Warehouse.
(d) The right of Seller to have access to and to utilize the utility
connections on the Real Property.
It is understood and agreed that the form of such easement documents
shall be agreed upon by the Closing and shall be executed in recordable form and
contain the usual terms and conditions such as reciprocal indemnities, use
restrictions, insurance provisions, non-user provisions, repair and maintenance
provisions and such other terms and conditions as may be agreed upon. The
granting and/or reserving of the foregoing rights and privileges shall be deemed
a part of the transactions contemplated by this Agreement and shall be without
additional charge by either party to the other.
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Section 9.17 Effective Date. As used herein, the term "Effective Date"
shall mean the first date on which both Seller and Buyer shall have executed
this Agreement.
Section 9.18 Acceptance by Buyer. In the event four counterparts of
this Agreement are not executed by Buyer and received by Seller by 5:00 p.m. San
Francisco time, January 5, 2001, this Agreement shall become null and void.
The parties hereto have executed this Agreement as of the respective
dates written below.
SELLER: WEBCOR SAN ANTONIO STREET
ASSOCIATES, LLC
Date: By:
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Xxxxxx X. Xxxx, Manager
BUYER: IMPAX LABORATORIES, INC.
Date: By:
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Title:
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By:
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Title:
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EXHIBIT B
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