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EXHIBIT 10.1
PURCHASE AGREEMENT FOR REAL PROPERTY
AND ESCROW INSTRUCTIONS
This Purchase Agreement for Real Property and Escrow Instructions
("AGREEMENT") is entered into by and between TR KOLL TUSTIN TECH CORP., an
Illinois corporation, ("SELLER"), and TECHNICLONE INTERNATIONAL CORPORATION, a
California corporation ("BUYER").
1. PURCHASE OF PROPERTY. Seller is the owner of that certain Property
(as described in Paragraph 2.1). Seller hereby agrees to sell to Buyer and Buyer
hereby agrees to purchase from Seller, the Property in consideration for the
payment of the Purchase Price (as described in Paragraph 2.4), together with the
respective promises of the parties set forth in this Agreement.
2. BASIC TERMS AND DEFINITIONS.
2.1 PROPERTY. The term "PROPERTY" shall refer to an industrial
building comprised of approximately 24,201 square feet of industrial
space including: (i) the land ("LAND") together with all improvements,
fixtures and equipment located on the Land, including the building
commonly referred to as 14272 Franklin Avenue, Tustin, California
("BUILDING"), as more particularly described on the attached Exhibit
"A" (excluding, however, any fixtures or equipment owned by tenants of
the Building or any property manager), (ii) whatever rights Seller has
in any easements, rights of way, development rights, and real property
rights appurtenant to the Land, to the extent they are assignable
(collectively, "REAL PROPERTY RIGHTS"), (iii) whatever rights Seller
has in, Licenses and Permits (as defined in Paragraph 15) and (iv) any
personal property owned by Landlord, located on the Land, and used
solely in connection therewith ("PERSONAL PROPERTY"). Notwithstanding
anything to the contrary contained in this Agreement, Seller is not
transferring any rights in the name "Koll" or "Koll Investment
Management" nor shall Buyer have any rights to use the name "Koll" or
"Koll Investment Management" with regard to the Property or otherwise.
2.2 BUYER. Techniclone International Corporation, a California
corporation, whose address is 14282 Franklin Avenue, Tustin, California
92780, Attention: William Bix Moding; Telephone (714) 838-0500;
Telecopier: (714) 838-5817.
2.3 SELLER. TR Koll Tustin Tech Corp., whose address is c/o The
Koll Company, 4343 Von Karman Avenue, Newport Beach, California
92660-2083, Attention: Mark Buchanan; Telephone: (714) 852-5252;
Telecopier: (714) 250-6055.
2.4 PURCHASE PRICE. The purchase price shall be One Million
Five Hundred Twenty Four Thousand Six Hundred Sixty Three Dollars
($1,524,663.00) ("PURCHASE PRICE").
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2.5 TERMS OF PURCHASE, CERTAIN DEFINITIONS.
(a) THE DEPOSIT. A cashier's or certified check in the
amount of Twenty Thousand Dollars ($20,000) (the "DEPOSIT") shall
be delivered to Escrow Holder by Buyer upon execution of this
Agreement as a condition to the "OPENING OF ESCROW" as provided in
Paragraph 9. Escrow Holder shall place the Deposit in an
interest-bearing account and all earned interest shall accrue to
the Buyer's benefit, unless Seller is entitled to the Deposit as
liquidated damages under Paragraph 8.5, in which event the
interest shall accrue to Seller's benefit. For purposes of this
Agreement, any accrued interest shall be deemed part of the
"DEPOSIT". The Deposit shall be applied toward the Purchase Price
at Closing (as hereinafter defined).
(b) BUYER'S CASH AT CLOSING. The balance of the Purchase
Price less the amount of the Deposit, plus any other amounts to be
paid by Buyer under this Agreement, shall be delivered to Escrow
Holder by Buyer as provided in Paragraph 7.3.
2.6 EFFECTIVE DATE. The effective date of this Agreement shall
be the date on which both Buyer and Seller execute the Agreement
("EFFECTIVE DATE").
2.7 CLOSING DATE. The consummation of the transaction intended
by this Agreement (the "CLOSING") shall occur on or before OCTOBER 15,
1996 ("CLOSING DATE"), unless extended by mutual written agreement.
2.8 ESCROW. Escrow Number ____________ at the Escrow Holder
which shall be opened as provided in Paragraph 9.
2.9 ESCROW HOLDER. Chicago Title Insurance Company ("TITLE
COMPANY"), whose address is: 16969 Von Karman, 2nd Floor, Irvine,
California 92714, Escrow Officer: Lorri Beasley, Telephone: (714)
263-2544, Direct Telecopier: (714) 752-8043
2.10 PERMITTED EXCEPTIONS. Any exceptions to title shown on the
Title Commitment to which Buyer does not object within the time periods
provided in Paragraph 3 below shall be "PERMITTED EXCEPTIONS" for
purposes of this Agreement, as more specifically provided below in said
Paragraph 3.
2.11 TITLE COMMITMENT. A current commitment for an Owner's
Protection Policy of Title Insurance for the Property issued by the
Title Company in the full amount of the Purchase Price, showing Seller
as owner of the Property in fee simple and Buyer as the proposed
insured.
2.12 TITLE POLICY. Subject to the provisions of Paragraph 9.5
below relating to costs, a CLTA Owners Protection Policy of Title
Insurance issued by Chicago Title Insurance Company ("TITLE COMPANY"),
in the amount of the Purchase Price, subject to the Permitted
Exceptions.
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3. TITLE. Not later than fifteen (15) days following the Effective
Date, Seller shall deliver the Title Commitment to Buyer, together with legible
copies of all documents and instruments of record reflected therein. If Buyer
objects to any exceptions to title shown in the Title Commitment, other than the
standard preprinted exceptions, any matters relating to the acts of Buyer or
those claiming by, through or under Buyer, or liens or encumbrances of a
definite or ascertainable amount (which Seller hereby agrees to release on or
before the Closing Date, utilizing the sale proceeds at Closing at Seller's
election), then Buyer shall give Seller notice of such objection no later than
fifteen (15) days following Buyer's receipt of the Title Commitment. Any
exceptions to title shown on the Title Commitment to which Buyer does not so
object shall be "PERMITTED EXCEPTIONS" for purposes of this Agreement. If the
Title Commitment discloses exceptions to title to which Buyer has so objected,
then Seller shall, at its option, have up to the Closing Date (but in no event
less than ten (10) days from the date of Buyer's notice of objection) to have
such exceptions removed from the Title Commitment (or to have the Title Company
commit to insure over such unpermitted exceptions by endorsement reasonably
acceptable to Buyer) and provide evidence thereof to Buyer. If Seller fails to
have such unpermitted exceptions removed (or insured over as provided above),
then Buyer may elect, as its sole remedy, by notice to Seller given within two
(2) days following expiration of the aforesaid cure period granted to Seller to
(i) terminate this Agreement (in which event the Deposit promptly shall be
returned to Buyer), or (ii) accept title subject to such unpermitted exceptions
without reduction in the Purchase Price. If Buyer does not elect to terminate
this Agreement within the time period provided above, then Buyer shall be deemed
to have waived its objection to such unpermitted exceptions and to have elected
to accept title to the Property subject to such unpermitted exceptions (and such
unpermitted exceptions shall be deemed "PERMITTED EXCEPTIONS" for purposes of
this Agreement). On the Closing Date, Seller shall, at Seller's sole cost and
expense, cause the Title Company to issue the Title Policy in the amount of the
Purchase Price pursuant to and in accordance with the Title Commitment insuring
fee simple title in Buyer as of the Closing Date.
4. DELIVERY OF DOCUMENTS. No later than five (5) days following the
Effective Date, Seller shall deliver to Buyer copies of all building permits,
certificates of occupancy and other governmental licenses, permits, notices,
approvals, plans, parcel maps, specifications, soil, compaction, engineering or
environmental reports, studies, tests, financial reports or other historical
operating information relating to the Property which are in the possession of
Seller.
5. CONDITIONS PRECEDENT TO BUYER'S PERFORMANCE. Buyer's obligation
to purchase the Property is subject to the satisfaction or waiver of all the
conditions set forth below (which are for Buyer's benefit) within the time
periods specified:
5.1 TITLE. Buyer's review and approval of the Title Commitment
and related documents and instruments of record pursuant to the terms
of Paragraph 3.
5.2 INSPECTION. Buyer shall have until September 20, 1996 to
inspect and approve all aspects of the Property, including arranging
financing, ("DUE DILIGENCE PERIOD").
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5.3 REPRESENTATIONS AND WARRANTIES. All of Seller's
Representations and Warranties shall be true in all material respects
as of Closing or qualified as provided in Paragraph 11.
5.4 DELIVERY OF DOCUMENTS. Seller shall have signed,
acknowledged and timely delivered all documents and instruments to
Escrow Holder as required by Paragraph 7 below and shall have performed
the obligations of Seller hereunder in all material respects.
If any condition precedent to closing set forth in this paragraph has
not been satisfied by Seller or waived by Buyer on or before the
respective dates set forth above (each an "EXPIRATION DATE"), then
Buyer may, at its option, terminate this Agreement by notice to Seller
delivered on or before such Expiration Date, in which event the Deposit
shall promptly be returned to Buyer; provided that if Buyer fails to
give such notice of termination to Seller prior to such Expiration
Date, then Buyer shall be deemed to have elected to terminate this
Agreement and this Agreement shall be of no further force or effect.
6. CONDITIONS PRECEDENT TO SELLER'S PERFORMANCE. Seller's obligation
to sell the Property is subject to the satisfaction (or waiver) of all
conditions set forth below (which are for Seller's benefit) within the time
periods specified.
6.1 PERFORMANCE OF COVENANTS. Buyer shall have timely performed
all of its covenants under this Agreement.
6.2 REPRESENTATIONS AND WARRANTIES. All of Buyer's
Representations and Warranties provided in Paragraph 11 shall be true
in all material respects as of Closing.
6.3 DELIVERY OF DOCUMENTS. Buyer shall have signed, acknowledged
and timely delivered all documents, monies, and instruments to Escrow
Holder as required by Paragraph 8.
6.4 OPENING OF ESCROW. Escrow shall have opened (as provided in
Paragraph 9) by no later than September 11, 1996.
7. CLOSING.
7.1 THE CLOSING.
(a) The Closing shall occur by no later than 2:00 p.m on
the Closing Date.
(b) The terms "CLOSE OF ESCROW" and/or "CLOSING" are used
in this Agreement to mean the time the Grant Deed is filed of
record by the Escrow Holder in the Office of the County
Recorder of Orange County, California. The term "CLOSING DATE"
is used in this Agreement to mean the day that Grant Deed is
so filed of record.
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(c) The occurrence of the Closing shall constitute
Buyer's and Seller's agreement that all of the conditions
precedent to their respective obligations to perform have been
satisfied or waived.
7.2 SELLER'S CLOSING OBLIGATIONS. On or before 12:00 noon
on the last business day immediately before the Closing Date, Seller
shall deliver to Escrow Holder:
(a) A Grant Deed in the form attached as Exhibit "B"
(Grant Deed), signed by Seller and acknowledged, conveying the
Land to Buyer;
(b) A General Assignment in the form attached as
Exhibit "C" (General Assignment), signed by Seller;
(c) A certificate of non-foreign status in the form
attached as Exhibit "D" (Non-Foreign Certificate), signed by
Seller; and
(d) A Bill of Sale in the form attached as Exhibit
"E" (Bill of Sale), signed by Seller;
(e) An Assignment of Leases in the form attached as
Exhibit "F" (Assignment), signed by Seller;
(f) Three (3) copies of a Closing Statement (Closing
Statement) which reflects the amounts to be paid pursuant to
Paragraph 2.5(b), signed by Seller;
(g) A California Franchise Tax Board Form 590 RE
executed by Seller (or such other evidence as may be required
by the Title Company that the sale of the Property is not
subject to tax withholding under applicable California law);
and
(h) Any additional instruments (signed by Seller and
acknowledged, if appropriate) as may be necessary to comply
with this Agreement.
7.3 BUYER'S CLOSING OBLIGATIONS. On or before 12:00 noon
on the last business day immediately before the Closing Date, Buyer
shall deliver to Escrow Holder;
(a) Cash equal to that amount provided for in
Paragraph 2.5(b). The cash must be by direct deposit or by
wire transfer of immediately available United States funds
actually made in Escrow Holder's depository bank account by
12:00 noon on or before the last business day immediately
before the Closing Date;
(b) The Assignment, signed by Buyer;
(c) The General Assignment (or counterpart), signed
by Buyer;
(d) Three (3) copies of the Closing Statement which
reflects the amounts to be paid pursuant to Paragraph 2.5(b),
signed by Buyer; and
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(e) Any additional funds and/or instruments (signed
by Buyer and acknowledged, if appropriate) as may be necessary
to comply with this Agreement, including without limitation, a
Statement(s) of Identification and a Preliminary Change of
Ownership.
7.4 TITLE POLICY. If Buyer desires any special endorsements
to the coverage provided by the Title Policy (including, without
limitation, extended coverage), then Buyer shall obtain and pay for
these endorsements and coverage, including any survey costs; and
obtaining such endorsements shall not be a condition of Closing. The
issuance of the endorsements and/or coverage shall not delay the
Closing. The issuance of the Title Policy shall be in lieu of any
express or implied warranty of Seller concerning title to the Property
(other than any warranty set forth in the Grant Deed), and Buyer agrees
that its only remedy for damages incurred by reason of any defect in
the title shall be against only the Title Company (except with respect
to any violation of a warranty in the Grant Deed).
8. TERMINATION OF THIS AGREEMENT.
8.1 FAILURE TO CLOSE BY CLOSING DATE. If the Escrow fails
to close as of 2:00 p.m. on the Closing Date, then this Agreement and
Escrow shall automatically terminate and cancel without further action
by Escrow Holder or any party (unless the failure to close is a result
of Seller's default) and notwithstanding any provision contained in
Escrow Holder's general provisions, and the Deposit shall be disbursed
to the party entitled thereto pursuant to the terms of this Agreement.
8.2 FAILURE OF A CONDITION. Except in those instances where
the Escrow automatically terminates under the terms of this Agreement,
if any condition is not satisfied or waived within the time period and
in the manner set forth in this Agreement, then the party for whose
benefit the condition exists (as provided in Paragraphs 5 and 6 of this
Agreement) may terminate this Agreement by delivering written notice to
the other party and to Escrow Holder after the end of the applicable
time period.
8.3 CONSEQUENCES. If this Agreement terminates (or is
properly terminated by either party) as specifically provided by its
terms, then each of the following shall occur: Escrow shall be deemed
automatically canceled regardless of whether cancellation instructions
are signed; neither party shall have any further obligation to the
other under this Agreement (except for breach of this Agreement as
those remedies may be limited hereunder; and as provided under
Paragraphs 12.2 and 12.3 which shall survive termination of this
Agreement); all rights granted to Buyer under this Agreement and in the
Property shall terminate; and, except as provided to the contrary in
Paragraph 8.5 (concerning Seller's right to retain the Deposit as
liquidated changes), Escrow Holder shall return all funds and documents
then held in Escrow to the party depositing the same.
8.4 ESCROW CANCELLATION CHARGES. If Escrow fails to close
because of either party's default, then the defaulting party shall be
liable for all Escrow cancellation and Title Company charges. If Escrow
fails to close for any other reason, then Buyer and Seller shall each
pay one-half of any Escrow cancellation and Title Company charges.
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8.5 LIQUIDATED DAMAGES. IF BUYER FAILS TO PURCHASE THE
PROPERTY AS PROVIDED IN THIS AGREEMENT FOR ANY REASON OTHER THAN (i)
SELLER'S DEFAULT AND/OR (ii) THE NONSATISFACTION OF THE CONDITIONS TO
BUYER'S PERFORMANCE SET FORTH IN PARAGRAPH 5 ABOVE AND/OR (iii) AS A
RESULT OF A CASUALTY OR CONDEMNATION OF THE PROPERTY ENTITLING BUYER TO
TERMINATE THIS AGREEMENT PURSUANT TO THE TERMS HEREOF, THEN SELLER
SHALL BE RELEASED FROM ALL OF ITS OBLIGATIONS UNDER THIS AGREEMENT, AND
ESCROW HOLDER SHALL IMMEDIATELY DELIVER, DESPITE ANY INSTRUCTIONS TO
THE CONTRARY, THE DEPOSIT TO SELLER, AND SELLER SHALL BE ENTITLED TO
RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES. SELLER AND BUYER SHALL
INDEMNIFY ESCROW HOLDER FOR ANY LIABILITY, COSTS AND EXPENSES INCURRED
BY ESCROW HOLDER IN THE COURSE OF ITS GOOD FAITH COMPLIANCE WITH THIS
PARAGRAPH. THE PARTIES EXPRESSLY AGREE THAT IN LIGHT OF THE DIFFICULTY
THE PARTIES WOULD HAVE IN DETERMINING SELLER'S ACTUAL DAMAGES THAT THE
AMOUNT OF THE DEPOSIT IS A REASONABLE ESTIMATE OF THE EXTENT TO WHICH
SELLER WOULD BE DAMAGED BY BUYER'S FAILURE TO COMPLETE THIS PURCHASE.
SELLER'S RETENTION OF THE DEPOSIT AS LIQUIDATED DAMAGES SHALL BE
SELLER'S EXCLUSIVE REMEDY FOR DAMAGES BY REASON OF BUYER'S FAILURE TO
COMPLETE THE PURCHASE OF THE PROPERTY UNDER THIS AGREEMENT.
SELLER'S INITIALS DZ BUYER'S INITIALS WVM
8.6 REMEDIES AGAINST SELLER. IF CLOSE OF ESCROW AND THE
CONSUMMATION OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DO NOT
OCCUR DUE TO ANY DEFAULT OR BREACH BY SELLER IN ITS OBLIGATION TO
TRANSFER THE PROPERTY TO BUYER, THEN BUYER SHALL BE ENTITLED TO THE
RETURN OF THE DEPOSIT AND ANY INTEREST ACTUALLY ACCRUED THEREON OR THE
REMEDY OF SPECIFIC PERFORMANCE, AS BUYER MAY ELECT, AS BUYER'S SOLE AND
EXCLUSIVE REMEDIES FOR SUCH BREACH OR DEFAULT, AND BUYER SHALL NOT BE
ENTITLED OR HAVE ANY RIGHT TO RECEIVE ANY DAMAGES OR OTHER RELIEF,
EITHER LEGAL OR EQUITABLE. BUYER MUST PROVIDE SELLER WITH WRITTEN
NOTICE OF ITS CHOSEN REMEDY WITHIN FIVE (5) DAYS AFTER ANY BREACH OR
DEFAULT BY SELLER.
SELLER'S INITIALS DZ BUYER'S INITIALS WVM
9. GENERAL ESCROW PROVISIONS.
9.1 ESCROW INSTRUCTIONS. This Agreement when signed by
Buyer and Seller shall also constitute Escrow Instructions to Escrow
Holder.
9.2 OPENING ESCROW. When (i) this Agreement which includes
escrow instructions, fully signed or in signed counterparts, and (ii)
Buyer's Deposit are delivered
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to Escrow Holder, Escrow shall be deemed open and Escrow Holder shall
immediately notify Buyer and Seller by telephone and in writing of the
date of Opening of Escrow.
9.3 GENERAL PROVISIONS. Notwithstanding anything to the
contrary in this Agreement, the General Provisions of Escrow Holder
("GENERAL PROVISIONS"), if any, which are later signed by the parties,
are incorporated by reference to the extent they are not inconsistent
with the provisions of this Agreement. If there are any inconsistencies
between the provisions of the General Provisions and any of the
provisions of this Agreement, then the provisions of this Agreement
shall control. If any requirements relating to the duties or
obligations of the Escrow Holder are unacceptable to the Escrow Holder,
or if the Escrow Holder requires additional instructions, the parties
agree to make any deletions, substitutions and additions as counsel for
Buyer and Seller shall mutually approve and which do not materially
alter the terms of this Agreement. Any supplemental instructions shall
be signed only as an accommodation to Escrow Holder and shall not be
deemed to modify or amend the rights of Buyer and Seller, as between
Buyer and Seller, unless the supplemental instructions expressly so
provide.
9.4 PRORATIONS. The following prorations shall be made
between Seller and Buyer at the Close of Escrow, based on the actual
number of days in the month in which the Closing occurs and a three
hundred sixty-six (366) day year:
(a) Taxes, real property taxes, special taxes,
utility fees and/or deposits, common area maintenance
expenses, Property operating expenses, personal property
taxes, if any, with respect to the Personal Property,
assessments, sewer charges, and other costs and expenses
attributable to the Property shall be prorated as of the Close
of Escrow. In addition, to the extent any expenses or charges
for the Property are paid by Buyer under the Lease, Seller and
Buyer shall make an adjustment at Closing for the applicable
reconciliation period in which the Closing occurs based on a
comparison of Buyer's share of the such Property expenses
accrued through the Closing Date to the estimated Property
expenses actually paid by Buyer to Seller through the Closing
Date. The adjustment for such reconciliation period shall be
calculated as follows: To the extent the estimated payments
made by Buyer to Seller as of the Closing Date exceed Buyer's
share of the Property expenses accrued through the Closing
Date, Buyer shall receive a credit for the excess payments. To
the extent Buyer's share of Property expenses accrued through
the Closing Date exceed the estimated payments made by Buyer
as of the Closing Date, Seller shall receive a credit at
Closing. Subject to Paragraph 9.4(d) below, prorations shall
be final upon Closing.
(b) Security deposits and advance rent in Seller's
possession shall be transferred or credited to Buyer at
Closing.
(c) POST-CLOSING ACCESS. Seller, or any
representative of Seller or the former owner of the Property,
shall for a period of one (1) year after the Closing have the
right to inspect the books and records of the Property to
verify that Buyer is remitting to Seller all amounts to be
remitted to Seller according to the terms of this Agreement
and for any purpose related to Seller's (or the former
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owner's) prior ownership of the Property, including to the
extent access is required to satisfy any agreement between
Seller and the former owner of the Property.
(d) ADJUSTMENTS. If, in the discretion of the
adversely effected party, any substantial or material errors
or omissions are made regarding adjustments and prorations,
then the parties shall make the appropriate corrections
promptly upon the discovery thereof. If any estimations are
made at the Close of Escrow regarding adjustments or
prorations, then the parties shall make the appropriate
correction promptly when accurate information becomes
available. Any corrected adjustment or proration shall be paid
in cash to the party entitled to the adjustment.
Notwithstanding anything to the contrary above, the above
right to adjustment shall terminate six (6) months after Close
of Escrow.
(e) OFFSET. The parties agree that the prorations
set forth in this Paragraph 9.4 may be offset against each
other and the resulting amount shall be credited at Closing to
the party entitled thereto.
9.5 PAYMENT OF COSTS. Seller shall pay for (i) the base
premium charges for the CLTA Title Policy ("STANDARD PREMIUM"), (ii)
one-half (1/2) of all Escrow costs and fees and (iii) all State
documentary transfer taxes. Buyer shall pay (i) one-half (1/2) of all
Escrow costs and fees; (ii) any additional Title Company charges in
excess of the Standard Premium (including, without limitation, any
endorsements, survey costs and any costs related to upgrading the title
policy to ALTA standards), (iii) all costs arising from or relating to
the financing of this transaction and (iv) recording fees for the Grant
Deed and other documents (including, without limitation, any financing
documents). Other Escrow costs and fees shall be paid in the manner
customary in Orange County.
9.6 ESCROW HOLDER AUTHORIZED TO COMPLETE BLANKS. If
necessary, Escrow Holder is authorized to insert in all blanks in the
Closing documents, the date of recordation of the Grant Deed.
9.7 RECORDATION AND DELIVERY OF FUNDS AND DOCUMENTS. When
Buyer and Seller have satisfied their respective Closing obligations
under Paragraphs 7.2 and 7.3 and each of the conditions under
Paragraphs 5 and 6 have either been satisfied or waived, Escrow Holder
shall promptly undertake all of the following in the manner indicated.
(a) PRORATIONS. Prorate all matters as described in
Paragraph 9.4 (to the extent not previously prorated and
included in the Closing Statement).
(b) RECORDING. Cause the Grant Deed, and any other
documents which the parties hereto may mutually direct, to be
recorded in the Official Records of Orange County, California
in the order set forth in this Agreement. Escrow Holder is
instructed not to affix the amount of the documentary transfer
tax on the face of the Grant Deed, but to supply same by
separate affidavit.
(c) FUNDS. Disburse funds deposited by Buyer with
Escrow Holder towards payment of all items chargeable to the
account of Buyer pursuant hereto
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in payment of such costs including, without limitation, the
payment of the Purchase Price to Seller.
(d) DOCUMENT DELIVERY. Deliver originals and
conformed copies of all documents to Seller and Buyer, as
appropriate.
(e) TITLE POLICY. Subject to the provisions of
Paragraph 9.5 related to costs, direct the Title Company to
issue an ALTA Title Policy to Buyer.
10. BROKERAGE COMMISSIONS. Upon the Close of Escrow, Seller shall
pay a real estate brokerage commission equal to five percent 5% of the Purchase
Price to CB Commercial Real Estate Group, Inc. ("BROKER") with respect to this
transaction in accordance with Seller's separate agreement with the Broker. It
is understood that neither Seller nor Buyer has engaged a broker or finder in
connection with this transaction other than the Broker. Each party shall
indemnify and hold the other harmless from and against all claims, liabilities,
costs, damages and expenses (including, without limitation, attorneys' fees and
costs), resulting from or arising out of any claims for finder's fees or
commissions arising out of any contract or commitments made by or through the
indemnifying party by any broker or finder other than the Broker.
11. REPRESENTATIONS AND WARRANTIES.
11.1 SELLER'S REPRESENTATIONS AND WARRANTIES. In
consideration of Buyer entering into this Agreement and as an
inducement to Buyer to buy the Property from Seller, Seller makes the
following representations and warranties, each of which is material and
is being relied upon by Buyer (the continued truth and accuracy of
which shall constitute a condition precedent to Buyer's obligations
hereunder):
(a) AUTHORITY. Seller has the legal right, power and
authority to enter into this Agreement and to consummate the
transactions contemplated hereby, and the execution, delivery
and performance of this Agreement have been duly authorized
and no other action by Seller is requisite to the valid and
binding execution, delivery and performance of this Agreement,
except as otherwise expressly set forth herein;
(b) CONDEMNATION. Seller has not received any
written notices of any pending, threatened or contemplated
action relating to the condemnation of any portion of the
Property by any governmental authority; and
(c) LITIGATION. Seller has not received any written
notices of any pending, threatened or contemplated legal
action pertaining to the Property which would have a material
adverse impact on the Property after the Closing Date and, to
Seller's knowledge, there are no pending, threatened or
contemplated legal actions which would affect Seller's ability
to perform its obligations under this Agreement.
The representations and warranties made by Seller in this Agreement
shall survive the recordation of the Grant Deed for a period of twelve
(12) months and any action related
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to a breach of any representation or warranty must be made and filed
within said twelve (12) month period. If, after the Effective Date, but
before the Close of Escrow, Seller becomes aware of any facts or
changes in circumstances, that would cause any of its representations
and warranties in this Agreement to be untrue at Close of Escrow, then
Seller shall promptly notify Buyer in writing of such fact. In such
case, or if Buyer obtains information which would cause any of Seller's
representations and warranties to be untrue at Close of Escrow, then
Buyer shall have the right to either (i) terminate this Agreement, in
which case the Deposit shall be immediately returned to Buyer and
neither party shall have any rights or obligations under this
Agreement); or (ii) accept a qualification to Seller's representations
and warranties as of the Close of Escrow and complete the purchase and
sale of the Property without any rights to recovery for breach of the
unqualified representation and warranty. Other than as set forth in the
immediately preceding sentence, Buyer shall be deemed to have expressly
waived any and all remedies for the breach of any representations or
warranty discovered by Buyer prior to the Close of Escrow.
11.2 BUYER'S REPRESENTATIONS AND WARRANTIES. In
consideration of Seller entering into this Agreement and as an
inducement to Seller to sell the Property to Buyer, Buyer makes the
following representations and warranties, each of which shall be true
and accurate as of the Effective Date and Close of Escrow, and each of
which is material and is being relied upon by Seller (the continued
truth and accuracy of which shall constitute a condition precedent to
Seller's obligations hereunder):
(a) AUTHORITY. Buyer has the legal right, power and
authority to enter into this Agreement and to consummate the
transactions contemplated hereby, and the execution, delivery
and performance of this Agreement have been duly authorized
and no other action by Buyer is requisite to the valid and
binding execution, delivery and performance of this Agreement,
except as otherwise expressly set forth herein.
(b) "AS IS". Except for the representations and
warranties expressly provided in Paragraph 11.1 above, Buyer
agrees (i) that it is purchasing the Property on as "As Is"
basis and based on its own investigation of the Property, (ii)
that neither Seller nor Seller's employees, agents, brokers,
representatives, managers, property managers, asset managers,
officers, principals, attorneys or contractors (collectively,
"SELLER'S REPRESENTATIVES") have made any warranty,
representation or guarantee, express, implied or statutory,
written or oral, including, without limitation, any implied
warranty of merchantability or fitness for any use or purpose
or of reasonable workmanship, concerning the Property or any
of the products or improvements located thereon or therein
(including, without limitation, the Building), and (iii) that
neither Seller nor Seller's Representatives have made any
warranty, representation or guarantee as to any government
limitation or restriction, or absence thereof, pertaining to
the Property, or as to the presence or absence of any latent
defeat, subsurface soil condition, environmental condition,
hazardous substance, toxic waste or any other matter
pertaining to the physical condition (title, mapping, grading,
construction, or otherwise) of the Property. Except for the
representations and warranties expressly provided in Paragraph
11.1 above, all of Seller's and Seller's
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Representatives' statements whenever made, are made only as an
accommodation to Buyer and are not intended to be relied or
acted upon in any manner by Buyer. All documents, records,
agreements, writings, statistical and financial information
and all other information (collectively, "DOCUMENTS") which
have been given to Buyer by Seller, or Seller's
Representatives, have been delivered as an accommodation to
Buyer and without any representation or warranty (except as
specifically provided above) as to the sufficiency, accuracy,
completeness, validity, truthfulness, enforceability, or
assignability of any of the Documents, all of which Buyer
relies on at its own risk. Buyer acknowledges that neither
Seller nor Seller's Representatives have made any
representation regarding the availability of, or amount of,
any fee, assessment, or cost relating to the development,
construction, mapping, access, occupancy or ownership of the
Property.
Buyer's Initials WVM
(c) SELLER'S RESPONSIBILITY. Buyer represents and
covenants that Seller shall not have any liability, obligation
or responsibility of any kind with respect to the following:
(i) The content or accuracy of any report,
opinion on conclusion of any soils or
environmental experts (including,
without limitation, those contained in
any environmental reports) or other
engineer or other person or entity who
has examined the Property;
(ii) The content or accuracy of any
information released to Buyer by an
engineer or planned in connection with
the development of the Property;
(iii) Any of the items delivered to Buyer in
connection with Buyer's review of the
condition of the Property; and
(iv) The content or accuracy of any other
cost, projection, financial or marketing
analysis or other information given to
Buyer by Seller or Seller's
Representatives or reviewed by Buyer
with respect to the Property.
(d) TRUTH OF REPRESENTATIONS. The representations and
warranties of Buyer set forth in this Agreement shall be true
on and as of the Close of Escrow as if those representations
and warranties were made on and as of such time.
(e) LITIGATION. Buyer has not received any written
notices of any pending, threatened or contemplated legal
action which would have a material adverse impact on Buyer's
ability to purchase the Property or to perform its obligations
under this Agreement.
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12. ENTRY ON PROPERTY.
12.1 LICENSE TO ENTER FOR INVESTIGATION. Until Close of
Escrow or unless or until this Agreement is otherwise terminated, Buyer
and Buyer's employees and agents shall have a limited license to enter
upon the Property, during usual business hours, after receipt by Seller
of twenty-four (24) business hours advance written notice of its
intention to enter the Property (the "LICENSE") so long as the
activities do not damage the Property. Before beginning any tests or
investigations which contemplate the drilling or disturbance of the
surface of the Property, Buyer shall submit to Seller for its approval
in its sole and absolute discretion, to be exercised in good faith,
Buyer's operational plan for conducting the tests or investigations.
Seller may have a representative present during any tests or
investigations and Buyer shall provide Seller with prior notice of any
tests or investigations. After any entry, Buyer shall immediately
restore the Property to the Property's condition before Buyer entered
on the Property. Buyer shall not allow any dangerous or hazardous
condition to be created on or arise from Buyer's entry on the Property.
Buyer shall comply with all applicable laws and governmental
regulations applicable to its entry to the Property. Buyer shall keep
the Property free and clear of all mechanics' liens and materialmen's
liens arising out of any of Buyer's activities. The License may be
revoked by Seller at any time, and shall in any event be deemed revoked
upon termination of this Agreement.
12.2 INDEMNIFICATION ON ENTRIES. Buyer shall indemnify,
defend (with counsel selected by Seller) and hold harmless Seller and
Seller's officers, directors, shareholders, employees, agents managers,
property mangers, asset managers, attorneys, representatives,
subsidiary and parent corporations, affiliated entities, and the above
parties' predecessors, successors and assigns, and the Property, (all
of the above parties and the Property collectively referred to as
"INDEMNIFIED PARTIES AND PROPERTY") from and against all claims,
losses, liens, liabilities, damages, expenses and costs (including,
without limitation, attorneys' fees and costs) arising from or relating
to the entry of Buyer and its representatives, agents and contractors
on the Property (whether occurring before or after the date hereof).
Buyer's obligations under this paragraph shall survive the Close of
Escrow and the termination of this Agreement and shall not be limited
by any insurance required under Paragraph 12.3 below).
12.3 INSURANCE ON ENTRIES. Buyer shall maintain or cause to
be maintained either Comprehensive General Liability insurance or
Commercial General Liability insurance to cover Buyer's activities on
the Property, in amounts and with companies as required pursuant to the
terms of the Lease. At least five (5) days before entering on the
Property, Buyer shall deliver to Seller a Certificate of Insurance
evidencing compliance with the terms of this paragraph. The insurance
policy shall be maintained and kept in effect by Buyer (or Buyer's
agent), at Buyer's agent's) sole expense, at all times during the term
of this Agreement.
13. CONDEMNATION OR CASUALTY.
13.1 CONDEMNATION. Prior to the Close of Escrow, Seller,
upon actually becoming aware of same, shall promptly notify Buyer, in
writing, of any condemnation proceeding affecting the Property
commenced prior to the Close of Escrow or upon
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receipt of any written notice of a potential condemnation. If, by
reason of any such proceeding, the value of the Property, in Buyer's
reasonable judgment, is significantly impaired or reduced, then Buyer
may, at its option and within five (5) days of receiving notice of the
condemnation, elect either to (i) terminate this Agreement, or (ii)
continue the Agreement in effect, in which event, upon the Close of
Escrow, Seller shall assign to Buyer, and Buyer shall be entitled to
receive, all of Seller's rights to any compensation, awards, or other
payments or relief resulting from such condemnation proceeding.
13.2 CASUALTY. If, before the Closing, all or any portion
of the Property is damaged by a casualty and the cost to restore the
same will exceed $50,000 (a "CASUALTY"), then Seller shall notify Buyer
of this event after actual knowledge of the Casualty, and, in this
event, Buyer shall have the option to either (i) terminate this
Agreement as of the date of the Casualty, or (ii) continue with this
transaction in accordance with the terms of this Agreement and without
any adjustment in the Purchase Price, by delivery of written notice of
Buyer's election to Seller and Escrow Holder within five (5) days after
receipt of Seller's notice. If Seller and Escrow Holder receive Buyer's
election to terminate this transaction or have not received any notice
from Buyer within the 5-day period, then this transaction shall
terminate, and the Deposit shall be returned to Buyer, as provided in
Paragraph 8.3. If Buyer elects to continue with this transaction (as
provided above), then the Casualty proceeds, if any, shall become the
property of Buyer after Close of Escrow.
14. WAIVER BY BUYER. Buyer hereby waives and relinquishes any and
all rights and remedies Buyer may now or hereafter have against the Indemnified
Parties and Property, whether know or unknown, with respect to any past, present
or future presence or existence of any hazardous or toxic waste, substances or
materials of any kind or nature ("HAZARDOUS MATERIALS") on, under or about the
Property or surrounding land or with respect to any past, present or future
violations of any rules, regulations or laws, now or hereafter enacted,
regulating or governing the use, handling, storage or disposal of Hazardous
Materials (collectively, "ENVIRONMENTAL LAWS") including, without limitation,
any and all rights Buyer may now or hereafter have to seek contributions from
the Indemnified Parties and Property under (i) Paragraph 113(f)(i) of the
Comprehensive Environmental Response Compensation and Liability Act of 1980
("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act of
1986 ("SARA") (42 U.S.C. Section 9613), as the same may be further amended or
replaced by any similar law, rule or regulation and (ii) Paragraph 25300 et seq.
of the Carpenter-Presley-Tanner Hazardous Substance Account Act (California
Health and Safety Code, Division 20, Chapter 6.95), as the same may be further
amended or replaced by any similar law, rule or regulation. Buyer hereby further
releases the Indemnified Parties and Property from any and all liability whether
known or unknown now or hereafter existing with respect to the Property under
Paragraph 107 of CERCLA (42 U.S.C. Section 9607).
The waivers and releases by Buyer herein contained shall survive the
Close of Escrow and the recordation of the Grant Deed in perpetuity.
WVM Buyer's Initials
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15. LICENSES AND PERMITS. In connection with the purchase, Seller
shall assign to Buyer, and Buyer shall assume, "As Is" at Close of Escrow,
without representation or warranty, all of Seller's rights, liabilities and
obligations, if any, and to the extent assignable, to all warranties and
guarantees and all permits and licenses, to the extent they relate to the
Property (collectively, "LICENSES AND PERMITS"). Such assignment shall be in the
form attached as Exhibit "C" to this Agreement. All Service Contracts and
management contracts for the Property entered into by Seller with respect to the
Property shall be terminated by Seller as of Closing.
16. GENERAL PROVISIONS.
16.1 ASSIGNMENT.
(a) This Agreement shall be binding upon and shall
inure to the benefit of Buyer and Seller and their respective
successors and permitted assigns.
(b) Buyer may only assign this Agreement and any
interest or right under this Agreement or under the Escrow
after obtaining Seller's prior written consent, in Seller's
sole and absolute discretion; provided that Seller's consent
shall not be unreasonably withheld with respect to any
assignment by Buyer to an entity or person that controls, is
controlled by, or is under common control with Buyer. Any
assignment shall not relieve Buyer of its obligations under
this Agreement.
16.2 ATTORNEYS' FEES AND/OR COSTS. In any action or
proceeding between the parties to enforce or interpret any of the terms
or provisions of this Agreement, the prevailing party in the action or
proceeding shall be entitled to recover from the non-prevailing party,
in addition to damages, injunctive relief or other relief, its
reasonable costs and expenses, including, without limitation, costs and
reasonable attorneys' fees, including pretrial, both at trial and on
appeal.
16.3 NOTICES AND APPROVALS. Any notice, approval,
disapproval, demand or other communications required or permitted to be
given by any provision of this Agreement which either party desires to
give to the other party or to Escrow Holder shall be deemed to be
sufficiently given or served: (i) when delivered personally to the
party to whom the notice is to be delivered, (ii) on the third (3rd)
business day following its deposit in the U.S. mail (first class) or
the first (1st) business day following delivery to a reputable
overnight commercial courier, addressed to the party at the party's
address as it appears in this Agreement, or at any other address as
that party may from time to time specify by written notice; or (iii)
when given by transmittal over electronic transmitting devices, such as
Telex or telecopier machine, if the party to whom the notice is sent
has such a device in its office, provided a complete copy of any notice
so transmitted shall also be mailed in the same manner as required for
notice by U.S. Mail.
16.4 CONTROLLING LAW. This Agreement shall be deemed to be
entered into within Orange County and shall be construed under the laws
of the State of California in effect at the time of the signing of this
Agreement. The parties consent to the jurisdiction of the California
courts with venue in Orange County.
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16.5 TITLES AND CAPTION. Titles and captions are for
conveniences only and shall not constitute a portion of this Agreement.
References to paragraph numbers are to paragraphs in this Agreement,
unless expressly stated otherwise.
16.6 INTERPRETATION. As used in this Agreement, masculine,
feminine or neuter gender and the singular or plural number shall each
be deemed to include the others where and when the context so dictates.
The word "INCLUDING" shall be construed as if followed by the words
"WITHOUT LIMITATION." If a dispute over the interpretation or
construction of any provision, term or word contained in this
Agreement, then this document shall be interpreted and construed
neutrally, and not against either Buyer or Seller.
16.7 NO WAIVER. A waiver by either party of a beach of any
of the covenants, conditions or obligations under this Agreement to be
performed by the other party shall not be construed as a waiver of any
succeeding breach of the same or other covenants, conditions or
obligations of this Agreement.
16.8 MODIFICATIONS. Any alteration, change or modification
of or to this Agreement, in order to become effective, shall be made in
writing and in each instance signed on behalf of each party.
16.9 SEVERABILITY. If any term or provision of this
Agreement, or its application to any party or set of circumstances,
shall be held, to any extent, invalid or unenforceable, the remainder
of this Agreement, (or the application of the term or provision to
persons or circumstances other than those as to whom on which it is
held invalid or unenforceable, shall not be affected) and each shall be
valid and enforceable to the fullest extent permitted by law.
16.10 INTEGRATION OF PRIOR AGREEMENTS AND UNDERSTANDINGS.
This Agreement contains the entire understanding between the parties
relating to the transactions contemplated by this Agreement. All prior
or contemporaneous agreements, understandings, representations,
warranties and statements, whether oral or written, expressed or
implied, are superseded in their entirety by this Agreement, and are of
no further force or effect, in whole or in part.
16.11 NOT AN OFFER. Seller's delivery of unsigned copies of
this Agreement is solely for the purposes of review by Buyer, and
neither the delivery nor any prior communications between Buyer and
Seller, whether oral or written, shall in any way be construed as an
offer by Seller, nor in any way imply that Seller is under any
obligation to enter the transaction which is the subject of this
Agreement. The signing of this Agreement by Buyer constitutes an offer
which shall not be deemed accepted by Seller unless and until Seller
has signed this Agreement and delivered a duplicate original to Buyer.
16.12 TIME OF ESSENCE. Time is expressly made of the essence
as to the performance of each and every obligation and condition of
this Agreement.
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16.13 POSSESSION OF PROPERTY. Buyer shall be entitled to
possession of the Property only after the Closing and not before.
16.14 COUNTERPARTS. This Agreement may be signed in multiple
counterparts which shall, when signed by all parties constitute a
binding agreement.
16.15 EXHIBITS INCORPORATED BY REFERENCE. All exhibits
attached to this Agreement are incorporated in this Agreement by this
reference.
16.16 COMPUTATION OF TIME. The time in which any act is to be
done under this Agreement is computed by excluding the first day (such
as the Effective Date), and including the last day, unless the last day
is a holiday or Saturday or Sunday, and then that day is also excluded.
All references to time shall be deemed to refer to California time.
16.17 JOINT AND SEVERAL LIABILITY. If Buyer is composed of
more than one individual or entity, then all obligations and
liabilities of Buyer under this Agreement shall be joint and several as
to each of those individuals or entities who compose Buyer.
16.18 BUYER'S WORK PRODUCT CONCERNING THE PROPERTY. If for
any reason Buyer fails to purchase the Property, and as a condition to
the return of the Deposit to Buyer (if Buyer is so entitled), then
Buyer shall immediately deliver to Seller, at no cost or expense to
Seller, all test results, studies, plans, reports or other materials or
work product prepared by Buyer, or its agents, employees or
contractors, related to the Property ("WORK PRODUCT"). Following
delivery, Seller may use this Work Product for any purpose.
16.19 NO OBLIGATIONS TO THIRD PARTIES. The execution and
delivery of this Agreement shall not be deemed to confer any rights
upon, nor obligate any of the parties to this Agreement to, and person
or entity other than Seller and Buyer. There are not any third party
beneficiaries to this Agreement.
16.20 SURVIVAL OF COVENANTS. The covenants, agreements,
indemnitees, representations and warranties of Buyer shall survive the
Close of Escrow and termination of this Agreement.
17. SPECIAL COVENANTS OF SELLER. Between the Effective Date and
the Closing Date, Seller covenants and agrees that Seller shall (a) maintain the
Property in the manner that Seller is currently maintaining the Property, at
Seller's cost and expense (except as otherwise provided in this Agreement),
reasonable wear and tear accepted; (b) not enter into any contracts or
agreements to sell the Property or which will be binding upon the Property after
the Closing, except as otherwise permitted under this Agreement; (c) not
transfer the Property nor execute or consent to the execution of any lease or
other agreement granting third party rights to occupancy or possession of any
portion of the Property, except as permitted by this Agreement, (d) not encumber
the Property or create any new exception to title affecting the Property,
without Buyer's consent; and (e) deliver to Buyer each and every material notice
or communication Seller
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receives in writing from any governmental authority pertaining to the ownership
of the Property, promptly following Seller's actual receipt of the same.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date hereof.
SELLER: BUYER:
TR KOLL TUSTIN TECH CORP., TECHNICLONE INTERNATIONAL
an Illinois corporation CORPORATION, a California corporation
By: /s/ DAVID J. ZAK By: /s/ WILLIAM V. MODING
------------------------------ --------------------------------
Title: Vice President Title: Chief Financial Officer
----------------------- -------------------------
Name: David J. Zak Name: William V. Moding
----------------------- -------------------------
Date: September 11, 1996 Date: September 11, 1996
---------------------------- ------------------------------
NOTE: BUYERS' AND/OR SELLER'S INITIALS ARE REQUIRED AT PARAGRAPHS 8.5, 8.6,
11.2(b) AND 14.
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EXHIBIT "A"
LEGAL DESCRIPTION OF LAND
[This legal description is subject to confirmation
and correction for accuracy by Title Company]
The land referred to below situated in the County of Orange, State of California
and described as follows:
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EXHIBIT "B"
GRANT DEED
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Techniclone International Corporation
14282 Franklin Avenue
Tustin, California
Assessor's Parcel No.
---------
Transfer Tax $
--------------
- --------------------------------------------------------------------------------
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
For valuable consideration, receipt of which is acknowledged, TR KOLL
TUSTIN TECH CORP., an Illinois corporation, grants to TECHNICLONE INTERNATIONAL
CORPORATION, a California corporation, all that certain real property located in
the County of Orange, State of California and described on Exhibit A attached
hereto and by this reference incorporated herein.
Dated: , 1996 TR KOLL TUSTIN TECH CORP., an
---------------- Illinois corporation
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
MAIL ALL TAX STATEMENTS TO:
Techniclone International Corporation
14282 Franklin Avenue
Tustin, California
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EXHIBIT "A"
LEGAL DESCRIPTION OF LAND
[This legal description is subject to confirmation
and correction for accuracy by Title Company]
The land referred to below situated in the County of Orange, State of California
and described as follows:
25
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STATE OF CALIFORNIA )
)SS
COUNTY OF ORANGE )
On _____________, 1996, before me, ____________, personally appeared
_______________________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose names(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
-----------------------------------
26
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EXHIBIT "C"
GENERAL ASSIGNMENT
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are
hereby expressly acknowledged, TR KOLL TUSTIN TECH CORP., an Illinois
corporation ("ASSIGNOR"), hereby quitclaims, assigns, transfers and conveys to
TECHNICLONE INTERNATIONAL CORPORATION, a California corporation ("ASSIGNEE"),
all of Assignor's right, title and interest, in and to any and all assignable
intangible property, licenses, permits and warranties owned by Assignor and
attached or pertaining to, all or any part of the real property (the "PROPERTY")
more particularly described in Exhibit A attached hereto and commonly known as
14272 Franklin Avenue, situated in the City of Tustin, County of Orange, State
of California, which conveyance is without representation, warranty or recourse
of any kind.
Notwithstanding the foregoing,
(i) nothing in this Assignment shall be construed as transferring
any rights or interest in the name "KOLL" nor shall Assignee
have any rights to use the name "KOLL" with regard to the
Property or otherwise, except as specifically set forth in the
Purchase Agreement between Assignor and Assignee dated ,
1996; and
(ii) Assignor hereby reserves all right, title and interest in and
to any and all proceeds or awards granted with regard to any
tax appeals filed prior to the date hereof, insofar as such
proceeds and awards are applicable to taxes payable or the
ownership of the Property prior to the date hereof.
IN WITNESS WHEREOF, Assignor and Assignee have executed this General
Assignment as of , 1996.
ASSIGNOR: ASSIGNEE:
TR KOLL TUSTIN TECH CORP., an TECHNICLONE INTERNATIONAL
Illinois corporation CORPORATION, a California corporation
By: By:
------------------------------ ---------------------------------
Name: Name:
------------------------- ----------------------------
Title: Title:
------------------------ ---------------------------
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EXHIBIT "A"
LEGAL DESCRIPTION OF LAND
[This legal description is subject to confirmation
and correction for accuracy by Title Company]
The land referred to below situated in the County of Orange, State of California
and described as follows:
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EXHIBIT "D"
NON-FOREIGN CERTIFICATE
Section 1445 of the Internal Revenue Code provides that a buyer of a
U.S. real property interest must withhold tax if the seller is a foreign person.
To inform TECHNICLONE INTERNATIONAL CORPORATION, a California corporation
("BUYER") that withholding of tax is not required upon the disposition of a U.S.
real property interest by TR KOLL TUSTIN TECH CORP., an Illinois corporation
("SELLER"), the undersigned hereby certifies the following on behalf of Seller:
1. Seller is not a foreign corporation, foreign partnership, foreign trust
or foreign estate (as those terms are defined in the Internal Revenue
Code and Income Tax Regulations);
2. Seller's U.S. employer identification number is ; and
3. Seller's office address is c/o The Koll Company, 4343 Von Karman
Avenue, Newport Beach, California 92660-2083.
Seller understands that this certification may be disclosed to the
Internal Revenue Service by Buyer and that any false statement I have made here
could be punished by fine, imprisonment, or both.
Under penalty of perjury, I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct and
complete, and I further declare that I have the authority to sign this document
on behalf of Seller.
TR KOLL TUSTIN TECH CORP., an
Illinois corporation
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
Dated: , 1996
----------------------
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EXHIBIT "E"
BILL OF SALE
TR KOLL TUSTIN TECH CORP., an Illinois corporation ("GRANTOR"), for
good and valuable consideration paid by TECHNICLONE INTERNATIONAL CORPORATION, a
California corporation ("GRANTEE"), the receipt and sufficiency of which is
hereby acknowledged, by these presents does QUITCLAIM, BARGAIN, SELL and DELIVER
unto Grantee its entire right, title and interest in all fixtures, equipment,
furniture, furnishings, appliances, supplies, tools, machinery and other
personal property of every nature and description owned by Grantor and attached
to or located on all or any part of the real property (the "PROPERTY") more
particularly described in Exhibit A attached hereto, comprising or otherwise
forming a part of the building commonly known as 14272 Franklin Avenue situated
in the City of Tustin, Orange County, California (the foregoing being
collectively referred to as the "PERSONALTY"); but excluding any personal
property owned by tenants under leases now or hereafter demising space in the
improvements located on the Property or by any property manager.
GRANTOR MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE
PERSONALTY. GRANTOR MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY
PURPOSE WITH RESPECT TO THE PERSONALTY, AND THE SAME IS SOLD IN AN "AS IS, WHERE
IS" CONDITION, WITH ALL FAULTS. BY ACCEPTANCE OF DELIVERY, GRANTEE AFFIRMS THAT
IT HAS NOT RELIED ON GRANTOR'S SKILL OR JUDGMENT TO SELECT OR FURNISH THE
PERSONALTY FOR ANY PARTICULAR PURPOSE, AND THAT GRANTOR MAKES NO WARRANTY THAT
THE PERSONALTY IS FIT FOR ANY PARTICULAR PURPOSE AND THAT THERE ARE NO
REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED.
TO HAVE AND TO HOLD the Personalty unto Grantee, its successors and
assigns forever.
This instrument shall be governed by and construed in accordance with
the laws of the State of California.
EXECUTED as of , 1996.
----------------------
TR KOLL TUSTIN TECH CORP., an
Illinois corporation
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
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EXHIBIT A
THE PROPERTY
[This legal description is subject to confirmation
and correction for accuracy by Title Company]
The land referred to below situated in the County of Orange, State of California
and described as follows:
31
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EXHIBIT F
ASSIGNMENT OF LEASES
This Assignment of Leases ("ASSIGNMENT") is made in the County of
Orange, State of California, as of October ____, 1996 between TR KOLL TUSTIN
TECH CORP., an Illinois corporation ("ASSIGNOR"), and TECHNICLONE INTERNATIONAL
CORPORATION, a California corporation ("ASSIGNEE"), who agree as follows:
1. ASSIGNMENT AND ASSUMPTION. For good and valuable consideration,
including, without limitation, the terms and conditions of that certain Purchase
Agreement for Real Property and Escrow Instructions dated as of September ___,
1996 between Assignor and Assignee (the "PURCHASE AGREEMENT"), Assignor assigns
to Assignee all of Assignor's right, title and interest as Lessor in the leases
described on the attached Exhibit "A" ("LEASES"), if any. Assignee accepts the
assignment and assumes and agrees to perform, as a direct obligation to the
Lessee, all the obligations and liabilities of Assignor as Lessor under the
Leases arising on or after the date of this Assignment, including, without
limitation, all obligations and liabilities regarding or pertaining to any
security deposits under the Leases, which security deposits were actually
received by Assignee (including, without limitation, any and all obligations to
reimburse such security deposits to lessees under the Leases).
2. EFFECTIVE DATE. This Assignment shall be deemed effective on the
date ("EFFECTIVE DATE") the Grant Deed (as defined in the Purchase Agreement) is
filed for record with the Orange County Recorder's Office.
3. INDEMNIFICATION. Assignee shall indemnify, defend and hold
harmless Assignor and Assignor's employees, partners, subsidiaries, parents,
affiliates, shareholders, officers, directors, attorneys, agents (including,
without limitation, Koll Investment Management) attorneys, managers, property
managers, asset managers, and all of their predecessors, successors and assigns,
from and against all liabilities, claims, losses, actions, damages, fines, costs
(including, without limitation, attorneys' fees and costs, including on appeal),
expenses, causes of action and demands, arising on or after the date of this
Assignment, which are in any way connected with, the Lessor's obligations under
the Leases, including, without limitation, all obligations and liabilities
regarding or pertaining to any security deposits under the Leases, which
security deposits were actually received by Assignee (including, without
limitation, any and all obligations to reimburse such security deposits to
lessees under the Leases).
4. ATTORNEYS' FEES. In any action between the parties to enforce any
of the terms or provisions of this Assignment, the prevailing party in the
action shall be entitled to recover from the non-prevailing party, in addition
to damages, to injunctive relief or other relief, to its reasonable costs and
expenses, including, without limitation, costs and reasonable attorneys' fees
(including on appeal).
5. SUCCESSORS AND ASSIGNS. This Assignment shall inure to the
benefit of the parties and their respective successors and assigns.
6. SEVERABILITY. If any provision of this Agreement shall be held
invalid or unenforceable for any reason and to any extent.
7. MERGER. This Assignment contains the entire understanding between
the parties relating to its subject matter. All prior and contemporaneous
agreements and understandings, whether oral or written, are superseded by this
Assignment. Nothing
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contained in this Paragraph 7 is intended to terminate or affect the validity of
any of the representations or warranties contained in the Purchase Agreement
which shall survive the closing under the Purchase Agreement.
ASSIGNOR: ASSIGNEE:
TR KOLL TUSTIN TECH CORP., TECHNICLONE INTERNATIONAL
an Illinois corporation CORPORATION, a California
corporation
By: By:
------------------------------- --------------------------------
(Print Name) Name:
Title:
- ----------------------------------
(Name)
- ----------------------------------
(Title)
33