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 H. G. FENTON COMPANY, a California corporation which
acquired title as H. G. Fenton 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 Carroll 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 Stewart
Title of California, Inc. as Escrow Holder.


 


B.                                                                                     Since
parties’ entry into the Agreement, there have been recorded two agreements
between Seller and Hanson Aggregates Pacific Southwest, Inc., a Delaware
corporation (“Hanson”), the owner of real property (“Hanson Property”) that is
located east of the Land and the other Carroll Canyon holdings of Seller
(collectively, the “Fenton 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 “Hanson Agreements”).


 


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


 


D.                                                                                    Because
the Hanson 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 Hanson Agreements, if any, shall be Seller’s.


 


THE PARTIES AGREE:


 


1.                                                                                       The
Hanson Agreements.


 


(a)                                                                                                                                  The
parties agree that the Hanson 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
Hanson Agreements, if any, shall belong to Seller, and Buyer shall have no
obligation or liability with respect to either of the Hanson 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 Hanson or any successor of Hanson arising out of or connected with the
Hanson Agreements.


 


(d)                                                                                                                                 Seller
acknowledges that the existence of the Hanson 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
Hanson’s acknowledgment that the Hanson 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 Hanson’s 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 Hanson 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:

  
	
   

  	
   

  
	
  H. G. FENTON
  COMPANY, a California

  corporation

  	
  BIOSITE
  INCORPORATED, a Delaware

  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
  By

  	
  /s/ Henry F.
  Hunte

  	
   

  	
  By

  	
  /s/ Christopher
  J. Twomey

  	
   

  
	
  Its

  	
  Chairman

  	
   

  	
  Its

  	
  V.P., Finance
  and CFO

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By

  	
  /s/ Robert
  Gottlieb

  	
   

  	
  By

  	
   

  	
   

  
	
  Its

  	
  CFO

  	
   

  	
  Its

  	
   

  	
   

  



 


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