EXHIBIT 10.47
REAL ESTATE PURCHASE AGREEMENT
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BY AND BETWEEN
TECHNICLONE CORPORATION
a Delaware corporation
AND
14282 FRANKLIN AVENUE ASSOCIATES, LLC.
a Delaware limited liability company
Dated: December 24, 1998
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TABLE OF CONTENTS
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PAGE
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Section 1 Definitions 1
Section 2 Sale of Properties and Assignment of Rights 4
2.1 The Land 4
2.2 The Improvements 4
2.3 Appurtenances 4
2.4 Equipment 4
2.5 Intangible Property 5
2.6 Awards 5
Section 3 Purchase Price 6
3.1 Escrowed Funds 6
3.2 Balance 6
3.3 Apportionments and Adjustments 6
Section 4 Closing 7
4.1 Time and Place of Closing 7
4.2 Escrow 7
4.3 Deliveries by Seller at or Prior to Closing 7
4.4 Deliveries By Purchaser at or Prior to Closing 9
4.5 Purchaser's Review of Closing Deliveries 9
4.6 Possession of the Properties 10
4.7 Closing Costs 10
Section 5 Warranties and Representations of Seller 10
5.1 Title to the Property 10
5.2 No Space Leases Not Previously Disclosed 10
5.3 Litigation 10
5.4 No Pending Takings 10
5.5 No Violations 11
5.6 Environmental Matters 11
5.7 Condition of Property 13
5.8 Disputes with Neighbors 13
5.9 Wells 14
5.10 Taxes 14
(i)
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5.11 Brokers 14
5.12 Books and Records 14
5.13 Disclosure 14
5.14 Absence of Undisclosed Liabilities 14
5.15 Utilities; Access 15
5.16 Plans 15
5.17 Consents 15
5.18 Effectiveness of Transactions 15
5.19 Insurance 15
5.20 Flood Plain; Wetlands 15
5.21 Historic District 16
5.22 Seller Not an Alien 16
5.23 Existence and Authority of Seller 16
Section 6 Warranties and Representations of Purchaser 16
6.1 Brokers 17
6.2 Existence and Authority of Purchaser 17
Section 7 Certain Pre-Closing Covenants of the Parties 17
7.1 Operation Pending Closing 17
7.2 Access and Information 18
7.3 Pre-Closing Deliveries 19
7.4 Continuing Accuracy of Representations 21
7.5 Satisfaction of Conditions 21
Section 8 Purchaser's Due Diligence 22
8.1 Approval by Purchaser 22
Section 9 Conditions to Obligations of Purchaser 22
9.1 Litigation 23
9.2 Seller Representations and Performance 23
9.3 Insurability of Title to Property 23
9.4 Zoning 23
9.5 Approval by Purchaser 23
9.6 Approval by Purchaser's Lender 23
Section 10 Conditions to Obligations of Seller 23
10.1 Litigation 23
10.2 Representations and Performance of Purchaser 24
Section 11 Additional Covenants 24
11.1 Expenses 24
(ii)
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11.2 Satisfaction of Liens 24
11.3 Survival of Representations and Warranties 24
11.4 Indemnity by Seller 25
11.5 Further Assurances 25
11.6 Delivery of Documents and Other Items. 26
11.7 Recordation 26
11.8 Damage and Destruction 26
11.9 Eminent Domain. 26
11.10 No Assumption of Seller's Liabilities 27
11.11 Confidentiality 27
Section 12 Waiver 27
Section 13 Miscellaneous 28
Section 14 Notices 28
14.1 Method of Notice 28
14.2 Notices Affecting the Property 29
Section 15 Intentionally Deleted 29
Section 16 Default 29
16.1 Default by Purchaser 29
16.2 Default by Seller 29
EXHIBITS AND SCHEDULES
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Exhibit "A": Legal description of the Land
Exhibit "B": Form of Promissory Note
Exhibit "C": Techniclone Lease
Exhibit "D": Seller's Certification of Representations and Warranties
Exhibit "E": Bill of Sale
Exhibit "F": Assignment of Intangible Property
Exhibit "G": Escrow Agreement
Exhibit "H": Deed
Schedule: 1 Seller's Retained Property
Schedule: 5.2 Space Leases
Schedule: 5.5.1 Violations
Schedule: 5.6.2 Environmental Matters
Schedule: 5.6.3 Environmental Matters
Schedule: 5.6.4 Environmental Matters
(iii)
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REAL ESTATE PURCHASE AGREEMENT
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THIS REAL ESTATE PURCHASE AGREEMENT ("Agreement") is made the
24 day of December, 1998, by and between TECHNICLONE CORPORATION, a Delaware
corporation ("Seller") as the seller hereunder and 14282 FRANKLIN AVENUE
ASSOCIATES, LLC., a Delaware limited liability company, or its designee
("Purchaser"), as the purchaser hereunder. Seller acknowledges that Purchaser
intends to immediately assign its interest in this sale leaseback transaction to
TNCA, LLC, a Delaware limited liability company.
W I T N E S S E T H:
- - - - - - - - - -
In consideration of the warranties, representations, agreements and
covenants herein contained, Seller and Purchaser, intending to be legally bound,
hereby mutually covenant and agree as follows:
SECTION 1 DEFINITIONS. Certain words and terms as used in this
Agreement shall have the meanings given to them by the definitions and
descriptions in this Section, and such definitions shall be equally applicable
to both the singular and plural forms of any of the words and terms herein
defined. All accounting terms not specifically defined in this Agreement will be
construed in accordance with generally accepted accounting principals.
"Affiliate" of a person or entity means any other person or entity
which, directly or indirectly, controls or is controlled by or is under common
control with such person or entity (excluding any trustee under, or any
committee with responsibility for administering, any employee benefit plan under
which such person, or any wholly-owned subsidiary of such person, may have
liability). A person or entity shall be deemed to be controlled by any other
person or entity if such other person or entity possesses, directly or
indirectly, power to direct or cause the direction of the management and
policies of such person or entity whether through the ownership of voting
securities, by contract or otherwise
"Agreement" means this Real Estate Purchase Agreement.
"Appurtenances" shall have the meaning set forth in Section 2.3.
"Awards" shall have the meaning set forth in Section 2.6.
"Building" shall have the meaning set forth in Section 2.2.
"Building Plans" shall have the meaning set forth in Section 7.3.7.
"Closing" shall have the meaning set forth in Section 4.1.
"Closing Date" means the day on which the Closing actually occurs, as
of 12:01 A.M., Pacific Time, at Los Angeles, California, which date shall be on
or before December ___ , 1998, except as otherwise provided herein, unless the
parties hereto otherwise agree in writing upon another date.
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"Contract" means any agreement, undertaking, covenant, liability,
restriction, instrument or guaranty, whether written or oral, to which Seller is
a party, or by which Seller is bound, affecting the Property.
"Earnest Money" shall have the meaning set forth in Section 3.1.
"Engineering Report" shall have the meaning set forth in Section 7.3.5.
"Environmental Report" shall have the meaning set forth in Section
7.3.4.
"Equipment" shall have the meaning set forth in Section 2.4.
"Escrow Agent" means the Title Company.
"Government" means the government of the United States of America, any
political subdivision of, or any subdivision of any such subdivision of, the
United States of America (including, without limitation, the State of
California, the City of Tustin, and any state, county, commonwealth, territory,
federal district, municipality or possession) and any department, agency, board
or instrumentality thereof.
"Governmental" means of, by, or pertaining to, any Government.
"Improvements" shall have the meaning set forth in Section 2.2.
"Indebtedness" means, at any date, for any Person, all items which, in
accordance with generally accepted accounting principles, would be shown as
indebtedness on a balance sheet of such Person, as of the date on which
indebtedness is to be determined, including, without limitation, (a)
indebtedness secured by any lien, whether or not the indebtedness secured
thereby shall have been assumed, (b) obligations in respect of all capital
leases, (c) obligations in connection with letters of credit and bankers'
acceptances, and (d) all guaranties in the amounts of the indebtedness, leases,
dividends or other obligations of primary obligors to which they relate.
"Intangible Property" shall have the meaning set forth in Section 2.5.
"Land" shall have the meaning set forth in Section 2.1.
"Lien" means any mortgage, lien, charge, security interest or
encumbrance of any kind upon, or pledge of, any property or asset, whether now
owned or hereafter acquired, and includes the acquisition of, or agreement to
acquire any property or asset subject to any conditional sale agreement or other
title retention agreement, including a lease on terms tantamount thereto or on
terms otherwise substantially equivalent to a purchase.
"Permitted Encumbrances" means (a) liens for current real estate taxes
which by law are a lien on the Property but are not yet due and payable; and (b)
those matters shown on the Title Commitment and the Survey which have been
accepted and approved by Purchaser pursuant to Section 8.1.2 hereof.
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"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or Government.
"Property" shall have the meaning set forth in Section 2.
"Purchase Price" shall have the meaning set forth in Section 3.
"Purchaser" shall have the meaning set forth in the Preamble.
"Purchaser's Lender" shall mean the lender selected by Purchaser to
fund the acquisition of the Property by Purchaser or its designee.
"Requirements of Law" means any law, statute, ordinance, code, rule,
regulation, guideline, judgment, order, writ, injunction or decree of any court
or Government and any decision or ruling of any arbitrator, which is applicable
to, binding upon, affects or pertains to the Property and/or the use, occupation
and/or operation of the Property, or any Person, and any of the foregoing to
which such Person is a party or by which such Person or any of its assets or
property is bound or affected or from which such Person derives benefits.
"Requirements of Law" shall also include the charter documents and code of
regulations or bylaws of any Person that is a corporation, the charter documents
and articles or agreement of partnership of any Person that is a partnership,
and the charter documents and operating agreement of any Person that is a
limited liability company.
"Seller" shall have the meaning set forth in the Preamble.
"Seller's Retained Property" shall mean all of Seller's trade fixtures
and related tenant improvements in the Building, including without limitation,
removable furniture, and equipment used by Techniclone, Inc. in connection with
the operation of its business during the term of the Techniclone Lease. A list
of Seller's Retained Property is attached as SCHEDULE 1.
"Space Leases" shall mean all leases, licenses, concessions and other
agreements, written or oral, for any use or possession of any portion of the
Property.
"Survey" shall have the meaning set forth in Section 7.3.3.
"Taking" shall have the meaning set forth in Section 11.9.1.
"Techniclone Lease" means that certain Triple Net Bond Lease by and
between Purchaser, as landlord, and Seller, as tenant, with respect to the
Property referenced in Section 4.3.2.
"Tenant" means the occupant or holder of the interest of lessee under
the Techniclone Lease.
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"Title Commitment" shall have the meaning set forth in Section 7.3.2.
"Title Company" means Old Republic Title Insurance Company.
"Title Policy" shall have the meaning set forth in Section 4.3.3.
SECTION 2. SALE OF PROPERTY AND ASSIGNMENT OF RIGHTS. Seller agrees to
sell and convey to Purchaser, and Purchaser agrees to purchase, pursuant to the
terms of this Agreement and subject only to the Permitted Encumbrances, the
following property and interests in property (all collectively herein called the
"Property"):
2.1 THE LAND. All that certain parcel or those certain
parcels of land, consisting of approximately .990 acres, located in Tustin,
California, as more particularly described in EXHIBIT "A" annexed hereto and
made a part hereof (collectively, the "Land").
2.2 THE IMPROVEMENTS. All buildings, improvements, fixtures
and structures located on the Land, including the 24,304 square foot building,
having a street address of 14272 Franklin Avenue, Tustin, CA and the 23,184
square foot building, having a street address of 14282 Franklin Avenue, Tustin,
CA (the "Buildings," or the "Improvements"); provided, however, that the
Improvements shall not include any of Seller's Retained Property.
2.3 APPURTENANCES. All and singular the easements, rights
of way, tenements, hereditaments and appurtenances belonging or in any wise
appertaining unto the Land, the Improvements, any other appurtenance, the
Equipment, the Intangible Property, the Awards, or the operation, use, or
enjoyment of any of the foregoing, and also all the estate, right, title,
interest, property, claim and demand whatsoever of Seller in and to the Property
and in and to the streets, ways, sidewalks, alleys, driveways, parking areas and
areas adjacent thereto or used in connection therewith, and to any land lying in
the bed of any street, road or avenue, opened or proposed, in front of or
adjoining the Land, to the center line thereof (collectively, the
"Appurtenances"); provided, however, that the Appurtenances shall not include
any of Seller's Retained Property.
2.4 EQUIPMENT. All fixtures, fittings, appliances,
apparatus, equipment, supplies, machinery, carpeting and other materials
installed, located or stored on the Property, and other personal property and
any replacements thereof, or additions thereto, actually or constructively
affixed, or attached to the Property, or placed upon, under or used in any way
in connection with the complete and comfortable use, enjoyment, occupancy and/or
operation of the Property, including, but without limiting the generality of the
foregoing, all parts of the plumbing, heating, ventilating, air-conditioning,
electrical and mechanical systems of the Improvements, elevators, incinerators,
trash compactors, all equipment, materials and supplies used or usable in
connection with the maintenance, repair and cleaning of the Property and the
interior and exterior of all Improvements; all racks or similar apparatus
necessary for the placement and/or retention of broadcasting antennae or other
telecommunication equipment and property on the roof of or otherwise within or
about the Improvements (all of which Seller warrants is owned by Seller and no
other Person has the right to remove or claim ownership to same), all keys and
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master keys, all built-in equipment, all heating, air-conditioning, freezing,
lighting, incinerating and power equipment, lampposts, all electrical equipment,
transformers, wiring, conduit, meters, fixtures and apparatus, engines, pipes,
pumps, tanks, motors, hydraulic equipment, conduits, lifting, cleaning, fire
prevention, fire extinguishing, smoke detection, refrigerating, ventilating and
communications apparatus, boilers, furnaces, oil burners or units thereof and
any firing and control apparatus used in connection therewith, appliances,
air-cooling and air-conditioning apparatus, vacuum cleaning systems, storage
systems, built-in or attached shelving, shades, awnings, windows, attached
cabinets, partitions, ducts and compressors, rugs and carpets, draperies,
landscaping, sod, arbors, shrubs, plants, trees, planters and planting beds or
boxes, retaining walls and enclosures, directories, mailboxes, signs, television
or radio antennae, together with all building materials and equipment now or
hereafter delivered to the Property and intended to be installed therein,
thereon or thereunder, including but not limited to, lumber, plaster, cement,
plumbing, fixtures, pipe, lath, wallboard, cabinets, nails, sinks, toilets,
furnaces, heaters, brick, tile, water heaters, glass, doors, flooring, paint,
lighting fixtures, heating and ventilating appliances and equipment, locks and
locksets; together with all additions, accessions, proceeds, products,
replacements, renewals and substitutions of and for all of the foregoing (all of
which is herein collectively called the "Equipment"); provided, however, that
the Equipment shall not include any of Seller's Retained Property, as defined in
Section 1. Seller agrees that at the expiration or termination of the
Techniclone Lease, whichever comes first, the Buildings will be left in good and
fully operational condition for use as a standard, fully air conditioned,
research and development building.
2.5 INTANGIBLE PROPERTY. All warranties, guaranties, and
all benefits of the foregoing, to which Seller is a party or as to which Seller
has the benefit, relating to the Property, to the extent assignable (all of
which is herein collectively called the "Intangible Property"). The Intangible
Property subject to this transactions does not include any patents, technologies
or other similar intellectual properties owned by Seller; and
2.6 AWARDS. All estate, right, title and interest of Seller
in and to any awards heretofore or hereafter made with respect to any part of or
interest in the Property and the Appurtenances as the result of the exercise of
the power of eminent domain (or a sale in lieu of a taking by eminent domain),
including any awards for changes of the grades of streets, or as the result of
any damage to the Property for which compensation shall be given by any
Governmental authority (collectively, the "Awards"); provided, however, that the
Awards shall not be deemed to include any awards payable separately to Seller
solely with respect to damage to Seller's business conducted at the Property, or
Seller's moving expenses, due to an exercise of the power of eminent domain,
provided further, however, that any such award otherwise payable to Seller does
not reduce the amount of Awards. Seller shall execute and deliver to Purchaser
on demand all proper instruments for the conveyance of such title and the
assignment and collection of any such Award, excluding Seller's Retained
Property.
SECTION 3. PURCHASE PRICE. Subject to adjustment as hereinafter
provided, the price to be paid by Purchaser for the purchase of the Property is
the sum of Six Million One Hundred Thousand Dollars ($6,100,000) (the "Purchase
Price"). Purchaser shall deposit the Purchase Price with Escrow Agent for
delivery to Seller at Closing, net of any holdbacks, adjustments, prorations,
and costs charged to Seller under this Agreement.
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3.1 ESCROWED FUNDS. Upon the execution of this Agreement,
Purchaser shall deposit with Escrow Agent a check in the amount of Fifty
Thousand Dollars ($50,000) (said sum, together with all additional deposits, and
interest earned thereon as hereinafter provided, "Earnest Money") to be held and
applied pursuant to this Section 3.1. At the expiration of the Due Diligence
Period set forth in Section 8.1 hereof (as the same may be extended with respect
to any cure being effected thereunder), Purchaser shall deposit with Escrow
Agent an additional check in the amount of Fifty Thousand Dollars ($50,000) to
be held and applied pursuant to this Section 3.1.
3.1.1 Escrow Agent shall invest the Earnest Money
pursuant to Purchaser's instructions in either (a) special, segregated
interest-bearing accounts, repurchase agreements or certificates of deposit with
any financial institution insured by the Federal Deposit Insurance Corporation,
or (b) bonds, notes or other obligations which as to principal and interest
constitute debt obligations of or are unconditionally guaranteed by the United
States of America. Except as otherwise set forth in Section 16.1, all interest
accruing on the Earnest Money shall accrue for the benefit of Purchaser.
3.1.2 Except for a failure any condition set forth in
Section 9, or a default on the part of Seller as set forth in Section 16.2, the
Earnest Money deposited by Purchaser shall become nonrefundable upon the
execution and delivery of this Agreement.
3.2 BALANCE. The balance of the Purchase Price shall be
paid as follows:
3.2.1 Purchaser shall deposit with Escrow Agent prior
to Closing the sum of Four Million One Hundred Twenty Five Thousand Dollars
($4,125,000), net of any holdbacks, adjustments, prorations and costs charged to
Seller under Section 3.3 of this Agreement or any holdbacks imposed by Lender
for the completion of immediate repairs.
3.2.2 Purchaser shall deposit with Escrow Agent one (1)
business day prior to the Closing a promissory note ("Note") in the form of
EXHIBIT "B" attached hereto and made a part hereof, along with any security for
the Note.
3.3 APPORTIONMENTS AND ADJUSTMENTS. In addition to any
other adjustments or prorations provided for in this Agreement, which are
incorporated at this place, the following adjustments shall be made for each of
the costs, expenses and charges listed below, and the net aggregate amount of
such adjustments shall be credited to the account of Seller or Purchaser upon
the Purchase Price, as the case may be:
3.3.1 Seller shall receive a credit for the prorated
portion, adjusted on a per diem basis, of any advance payments under any
Contracts which Purchaser elects to continue.
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3.3.2 Seller shall pay and discharge, or credit on the
Purchase Price, any real estate transfer taxes or charges and any stamp or
documentary taxes or other transfer fees or taxes arising out of this
transaction, and shall forever indemnify and hold Purchaser free and harmless
therefrom.
SECTION 4. CLOSING.
4.1 TIME AND PLACE OF CLOSING.
4.1.1 Provided that all conditions precedent to Closing
have been satisfied or waived, the parties agree to cause the closing of title
under this Agreement and the consummation of the transactions provided for
herein (the "Closing") to take place, and the balance of the Purchase Price
required to be paid at the Closing to be paid to Seller, at the offices of the
Title Company, on the Closing Date.
4.1.2 Notwithstanding the provisions of Section 4.1.1
hereof, if any of the conditions set forth in Section 9 of this Agreement have
not been satisfied or waived, then Purchaser shall have the right to terminate
this Agreement at any time after the initially scheduled date for Closing set
forth in Section 1, in which event Purchaser shall be released and relieved of
all liability hereunder and the Earnest Money and any other funds deposited into
escrow or with Seller shall be immediately delivered to Purchaser by Escrow
Agent or Seller, as the case may be.
4.1.3 Notwithstanding the provisions of Section 4.1.1
hereof, if Purchaser fails to cause the executed Note, the agreed upon security
for the Note, and the balance of the Purchase Price to be paid at Closing to be
delivered to the Escrow Agent, Seller shall have the right to terminate this
Agreement, in which event Seller shall be released and relieved of all liability
hereunder and if applicable, the provisions of Section 16.1 shall apply.
4.2 ESCROW. The Closing shall be conducted in escrow and
all documents and instruments, including an executed copy of this Agreement,
sums of money or other matters to be delivered or attended to at the Closing
shall be delivered to the Title Company and held in escrow, pursuant to the
terms of the escrow agreement attached hereto as EXHIBIT "G", and the same shall
be released upon the recording of the Deed and any other instruments required to
be recorded pursuant to this Agreement and the delivery of the Title Policy.
4.3 DELIVERIES BY SELLER AT OR PRIOR TO CLOSING. At or
prior to the Closing, Seller shall deliver, or cause to be delivered, to Escrow
Holder:
4.3.1 The grant deed of Seller ( the "Deed") in form
acceptable to Purchaser, duly executed by Seller in such manner as will qualify
the Deed for recording. Seller shall deliver a copy of the Deed to Purchaser, in
the form attached hereto as EXHIBIT "H" for review by Purchaser's attorney.
4.3.2 Four (4) original counterparts of the Techniclone
Lease, in the form of EXHIBIT "C" attached hereto and made a part hereof.
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4.3.3 Paid commitment for a fee owner's policy of title
insurance (the "Title Policy") with respect to the Land and Improvements,
obtained by Purchaser and in form and substance acceptable to Purchaser, issued
by the Title Company in the aggregate amount of the Purchase Price and listing
as exceptions only the Permitted Encumbrances. The Title Policy shall be on the
1970 form of owner's policy, form "B", as amended in 1987, if available in the
state where the Property is located. All appurtenant easements benefiting the
Property shall be included as part of the insured parcel described in the Title
Policy. The Title Policy shall contain the following endorsements, to the extent
available in California:
(a) an endorsement deleting all standard printed
exceptions;
(b) a so-called "comprehensive" endorsement;
(c) an access endorsement, insuring, among other
matters, that the Property and all entrances, exits, driveways and access roads
adjoin a public road or highway, and that entrance to and exit from each of the
foregoing may be had by such a public road or highway;
(d) affirmative insurance of the state of facts
shown on the Survey, which shall be read into and form a part of the Title
Policy;
(e) affirmative insurance that the parcels
comprising the Land are contiguous each to the other without any strips, gores
or other parcels of land intervening; and
(f) affirmative insurance of all easements
benefiting the Property.
4.3.4 A certificate, in the form attached hereto as
EXHIBIT "D" duly executed by Seller, dated as of the Closing Date, certifying
that all of Seller's warranties and representations contained herein or
otherwise made in writing by Seller or on Seller's behalf are true as of the
Closing Date as if then made.
4.3.5 A bill of sale for the Equipment, in the form
attached hereto as EXHIBIT "E" duly executed by Seller and containing warranties
of title and of good right to convey ("Bill of Sale").
4.3.6 An updated version of the Survey, which may be a
recertification of a previous version of the Survey, which updated version shall
in all respects meet the survey requirements set forth in this Agreement.
4.3.7 An assignment, in the form attached hereto as
EXHIBIT "F", duly executed by Seller assigning and transferring to Purchaser the
Intangible Property and containing warranties of title and of good right to
convey. If desired by Purchaser, Seller shall execute separate assignments for
individual items comprising the Intangible Property.
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4.3.8 Originals or true and correct copies of all
certificates (or letters if certificates are not utilized by the pertinent
Governmental authorities), licenses, permits, authorizations, licenses and
approvals issued for or with respect to the Property by any Governmental
authority having jurisdiction, including without limitation, all certificates of
occupancy, issued with respect to the Improvements..
4.3.9 A certificate of the Governmental authority
having jurisdiction with respect to the use of the Property, dated as of a date
no earlier than ninety (90) days prior to the Closing Date, certifying to
Purchaser as of such date the zoning classification of the Property and that
said authority has no record of outstanding violations of building codes and
zoning and land use laws and regulations against the Property.
4.3.10 Any certificates, documents or instruments
reasonably required by Purchaser or by the Title Company, including without
limitation, a so-called "FIRPTA" affidavit meeting the requirements of the
United States Internal Revenue Code of 1986, as amended, and regulations
promulgated thereunder, stating that Seller is not a foreigner, and the Title
Company's usual and customary owner's affidavit and mechanic's lien affidavit
and indemnity so as to enable the Title Company to issue the Title Policy
required by this Agreement.
4.4 DELIVERIES BY PURCHASER AT OR PRIOR TO CLOSING. At or
prior to the Closing, Purchaser shall deliver or cause to be delivered to Escrow
Holder:
4.4.1 Any certificates, documents or instruments
reasonably required by the Title Company.
4.4.2 The executed Note, any security for the Note,
including UCC-1 financing statements and membership certificates, and the
balance of the Purchase Price required to be paid at Closing to be delivered to
Escrow Agent.
4.4.3 Four (4) original counterparts of the Techniclone
Lease.
4.5 PURCHASER'S REVIEW OF CLOSING DELIVERIES. INTENTIONALLY
DELETED
4.6 POSSESSION OF THE PROPERTY. Seller shall grant and
deliver to Purchaser exclusive possession of the Property, in the condition
required by this Agreement, subject only to the Permitted Encumbrances and the
Techniclone Lease and the Space Leases, no later than the Closing Date.
4.7 CLOSING COSTS.
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4.7.1 At Closing, Seller shall pay, and Escrow Agent
shall charge to Seller, all costs related to the Closing, including, without
limitation the following: (a) the cost of examination of title to the Property,
the cost of issuing the Title Commitment, the premium for issuing the Title
Policy and all endorsements thereto; (b) the real estate transfer tax or
conveyance fee; (c) one-half of Escrow Agent's fee; (d) the cost of the Survey;
(e) the cost of third party reports (Environmental Report, Engineering Report
and appraisal) in an amount not to exceed $12,400; (f) the recording fee for the
Deed; and (g) any sums due Purchaser by reason of prorations as provided for
herein.
4.7.2 At Closing, Escrow Agent shall charge Purchaser
with (a) one-half of Escrow Agent's fee, (b) any lender endorsements, and (c)
any sums due Seller by reason of prorations provided for herein.
SECTION 5. WARRANTIES AND REPRESENTATIONS OF SELLER. Seller hereby
warrants and represents to Purchaser as follows:
5.1 TITLE TO THE PROPERTY. Seller has not sublet,
mortgaged, hypothecated, pledged or assigned all or any portion of Seller's
estate, right, title and interest in and to the Property to any Person, except
for Permitted Encumbrances and any encumbrances to be removed by Seller at or
prior to Closing or as shown on the Title Commitment accepted by Seller or
Survey.
5.2 NO SPACE LEASES NOT PREVIOUSLY DISCLOSED. Except for
the Space Lease identified on the attached Schedule 5.2, there are no leases,
subleases, license agreements, concession agreements or other agreements, oral
or written, for the use or possession of any portion of the Property.
5.3 LITIGATION. To Seller's best knowledge, there is no
action, suit or proceeding either at law or in equity, or any arbitration
proceeding or investigation, inquiry or other proceeding by or before any court
or Governmental instrumentality, board, agency or the like now pending or, to
the best of Seller's knowledge, threatened, affecting the Property or materially
affecting Seller or any property or rights of Seller. No judgment, decree or
order of any court or Government has been issued against or binds Seller which
has, or is likely to have, any material adverse effect on the ability of Seller
to perform the transactions contemplated hereby.
5.4 NO PENDING TAKINGS. To the best of Seller's knowledge,
other than Permitted Encumbrances, there is no pending or threatened
condemnation, eminent domain or similar proceeding or assessment affecting the
Property or any part thereof, nor to the best of Seller's knowledge and belief
is any such proceeding or assessment contemplated by any Governmental authority.
5.5 NO VIOLATIONS.
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5.5.1 Except as set forth in the Engineering Report and
the Environmental Report, to the best of Seller's knowledge, there are no
existing, alleged or threatened violations of laws, statutes, municipal
ordinances, building codes, rules or regulations of any Government or any
Governmental administrative or regulatory body, or of any fire regulations or
insurance regulations, or any Requirements of Law, which affect the Property,
including without limitation, the United States Occupational Health and Safety
Act, as amended.. The use and operation of the Property now are, and at the time
of Closing will be, in compliance with all Requirements of Law, including
without limitation, all applicable point of sale laws, building codes,
environmental, zoning and land use laws and regulations. All expenses and costs
relating to such compliance and all costs and expenses necessary to cure any
violations of any of the aforesaid, whether such violations are revealed by
inspection or otherwise, shall be borne solely by Seller. To the best of
Seller's knowledge, the Property and the present operation, use, location and
configuration of the Improvements on the Land (including without limitation, the
side lots, set backs and any parking requirements and other occupancy ratios)
(a) do not constitute a non-conforming use under any zoning or land use law or
regulation, and (b) except as shown on SCHEDULE 5.5.1, are not the subject of
any variance or permit pursuant to any zoning or land use law or regulation.
5.5.2 Certificates of occupancy for the Improvements
have been issued by the appropriate Governmental authority, and the existing use
and occupancy of the Improvements is in compliance with the certificates of
occupancy so issued.
5.5.3 Seller has not been notified of any pending or
contemplated proceedings to modify or amend any building code or zoning or land
use law or regulation which affects the use of the Property.
5.5.4 To the best of Seller's knowledge, no zoning or
subdivision approval, use or occupancy permits, or any other approval of any
Government or Governmental authority relating to the Property is based or
conditioned upon any ownership of, or any possession of any rights in, any real
property, easements or rights appurtenant to any real property, other than the
Land.
5.5.5 Seller has not received any notice of any kind
from any Government or Governmental official alleging that Seller has failed to
comply with any Requirements of Law.
5.6 ENVIRONMENTAL MATTERS.
5.6.1 DEFINITIONS. For purposes of this Section 5.6:
(a) "Contaminant" shall mean any substance which
degrades into, contains or releases hazardous substances, pollutants or
contaminants, hazardous chemicals or any other substance defined, listed or
identified by any Governmental authority, or in any federal, state or local
laws, rules or regulations governing the manufacture, import, use, generation,
handling, storage, processing, release or disposal of chemicals, substances or
wastes deemed thereby to be potentially hazardous, toxic, dangerous or injurious
to human health or to the environment. This definition includes, without
limitation, material which is or may become radioactive, asbestos-containing
material and petroleum or petroleum-based products (including used oil).
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(b) "Environmental Laws" shall mean any
applicable federal, state or local law, statute, ordinance, code, rule,
regulation, guidelines, permit, agreement, order or other binding determination
of any Government or Governmental authority relating to the environment or
public or human health and safety, including, without limitation, the Clean
Water Act 42 U.S.C. ss. 7401 et seq., the Clean Air Act 33 U.S.C. ss. 1251 et
seq., and each statute specifically referred to in this Section 5.6.1.
(c) "Hazardous Substances", "Pollutants or
Contaminants" and "Release" each have the same meaning as in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.
ss.9601 et seq.
(d) "Hazardous Waste" has the same meaning as in
the Resource Conservation and Recovery Act of 1976, 42 U.S.C. ss. 6901 et seq.
(e) "Hazardous Chemical" has the same meaning as
in the Occupational Safety and Health Administration ("OSHA") Hazard
Communication Standard, 29 C.F.R. ss. 1910.1200 et seq.
(f) "Infectious Waste" has the same meaning as in
OSHA's Bloodborne Pathogens Rule, 29 C.F.R. 1910.1030 et seq.
5.6.2 Except as set forth on SCHEDULE 5.6.2 hereof or
in the Environmental Report, or as otherwise permitted by law: (a) Seller has
not caused or allowed and, to the best of Seller's knowledge, no lessee,
sublessee, occupant or prior owner of the Property, or any third party
(including, without limitation, trespassers, licensees, guests and the like) has
caused or allowed any Contaminants to be used, generated, processed,
manufactured, stored, placed, processed, disposed or released on or off-site of
any of the Property; (b) the Property is not subject to any contingent liability
in connection with the release, threatened release, or presence of any
Contaminants on or off site of the Property; (c) Seller has obtained all
environmental, health and safety permits, licenses and other authorizations
necessary, and made all notifications and filings necessary, for the current use
of, and sale of, the Property, including without limitation, the "F" occupancy
permit currently in force (collectively, "Environmental Permits"); (d) all
Environmental Permits are in good standing and Seller has made timely
application for renewal of Environmental Permits where necessary; and (e) the
Property is in compliance with all terms and conditions of all Environmental
Permits and all Environmental Laws.
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5.6.3 Except as set forth on SCHEDULE 5.6.3 or allowed
by Environmental Laws pursuant to the terms of Seller's "F" occupancy permit,
there is not now on or in the Property: (a) any generation, processing,
treatment, storage, recycling, disposal or arrangement for disposal of any
Hazardous Waste or Infectious Waste; (b) any manufacture, application or
disposal of pesticides registered currently or formerly with the United States
Environmental Protection Agency or any Governmental authority; (c) any
underground storage tanks, in use or abandoned; (d) any asbestos-containing
material; (e) any urea formaldehyde foam insulating materials; or (f) any
polychlorinated biphenyls (PCBs), including, without limitation, any PCBs in any
hydraulic oils, transformers, capacitors or other electrical equipment
specifically known to Seller without independent investigation.
5.6.4 Except as set forth on SCHEDULE 5.6.4 or in the
Environmental Report, to the best of Seller's knowledge, there are no past or
present events, conditions, circumstances, activities, practices, incidents,
actions or plans which may give rise to any material common law or legal
liability or otherwise form the basis of any material claim, suit, action,
demand, proceeding, hearing or notice of violation, study or investigation
relating to the environment or to human health and safety, which would relate to
or affect the Property or any Person as a result of such Person holding title
to, possessing, occupying or operating the Property or any portion thereof at
any time, whether past, present or future.
5.6.5 Seller has made available to Purchaser copies of
all reports, studies, analyses, tests and/or monitoring results in the
possession or control of the Seller pertaining to any environmental or human
health and safety matters or concerns related to or affecting the Property.
5.7 CONDITION OF PROPERTY. Except as otherwise be disclosed
in the Engineering Report, the Survey, the Hazard Disclosure Report, the
Building Plans or the Environmental Report, the Improvements, including, without
limitation, the structural beams, footings, columns, bearing members,
foundations and other structural components of the Buildings, the roof of the
Buildings and the underground or otherwise concealed sewage, plumbing,
electrical and other utility systems placed upon or under the Land or
Improvements are free from defects and have been and are in good condition and
repair (subject to reasonable wear and tear), properly functioning, fully
completed substantially in accordance with the Building Plans. All building
permits, certificates of occupancy, and other permits and approvals required for
the present use of the Property or otherwise necessary pursuant to any
Requirement of Law have been issued. The Equipment is in good operating
condition and repair, subject to reasonable wear and tear. Except as previously
disclosed to Purchaser in writing, Seller has no knowledge of the necessity of
any material repairs or renovations to the Property or Improvements thereon.
Except as otherwise expressly provided in this Agreement, Purchaser acknowledges
and agrees that it is acquiring the Property in an "AS IS" condition, in
reliance on its own inspection and examination.
5.8 DISPUTES WITH NEIGHBORS. Seller has had no boundary
disputes or water drainage disputes with the owners of any premises adjacent to
the Property and has no knowledge of any such dispute involving any former
owners of the Property.
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5.9 WELLS. Except as may otherwise be disclosed in the
Environmental Report, there are no gas wells, oil wells or other wells, whether
capped or uncapped, on or about the Property. If any such wells are discovered,
whether before or after the Closing Date, then Seller, at Seller's sole cost and
expense, shall cause the same to be capped in accordance with all Requirements
of Law and shall repair all damage to the Property in connection with such
capping.
5.10 TAXES. All taxes, assessments and other Governmental
charges imposed by law upon the Property or upon Seller, including, without
limitation, any personal Property taxes applicable to the Property, which are
due and payable, the failure of which to pay would result in a Lien on the
Property or prevent any deed or other document required to be delivered
hereunder from being either delivered or recorded or accepted for recording by
the applicable public officers (collectively, "Taxes and Assessments"), have
been paid. The Property are not subject to any special or reassessed assessments
and Seller has no knowledge of any proposed or pending special assessments that
would affect the Property, except as may otherwise be shown on the Title
Commitment or the tax bills delivered by Seller to Purchaser pursuant to this
Agreement. No improvements (site or area) have been installed by or on behalf of
any Governmental authority the costs of which may be assessed against the
Property.
5.11 BROKERS. No agent, broker, investment banker or other
Person acting on behalf of Seller or under the authority of Seller is or will be
entitled to any broker's commission or finder's fee or any other commission or
similar fee directly or indirectly from any of the parties hereto in connection
with any of the transactions contemplated herein, other than CB Commercial Real
Estate Group, and Seller agrees to pay all amounts due or becoming due to said
brokers. Seller shall indemnify, protect, defend and hold harmless Purchaser
against or from all commissions or fees or claims for same, due to or claimed by
any other broker or Person engaged by Seller or claiming to have dealt with
Seller in connection with the Property.
5.12 BOOKS AND RECORDS. The books of account and other
financial and business records of Seller with respect to the Property are in all
material respects complete and correct and are maintained in accordance with
generally accepted accounting principles, consistently applied.
5.13 DISCLOSURE. There are no facts actually known to
Seller which materially adversely affects the Property and the condition
(financial or otherwise), liabilities, operations or prospects of the Property
except for such facts set forth herein, or disclosed to Purchaser in writing, or
in any schedule or exhibit attached hereto.
5.14 ABSENCE OF UNDISCLOSED LIABILITIES. At Closing, Seller
will have no material liability, whether absolute, accrued, contingent or
otherwise, whether due or to become due, arising out of any transaction relating
to the Property, except as may arise under this Agreement, the Techniclone
Lease, the Title Commitment accepted by Seller, or otherwise be disclosed herein
and removed at or before the Closing.
5.15 UTILITIES; ACCESS.
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5.15.1 To the best of Seller's knowledge, the Property
has and will have as of the Closing Date adequate water supply, storm and
sanitary sewage facilities, telephone, gas, electricity, steam, and any other
public utilities, fire protection and means of ingress and egress to and from
public highways, necessary or desirable for the current use of the Property as
an office/research/production facility. All streets and roads currently used and
necessary for access to or full utilization of the Property or any part thereof
are duly dedicated public roads maintained by the Government having jurisdiction
thereof.
5.15.2 To the best of Seller's knowledge, all utility
lines serving the Property enter the Property from adjoining lands dedicated to
public use for such uses. The sewer and water lines serving the Property connect
directly from the Property to public sewer and water systems maintained by the
Government having jurisdiction thereof. To the best of Seller's knowledge, the
sewer and water lines serving the Property are of adequate size and capacity to
meet the requirements of the Property as presently operated.
5.16 PLANS. Except as shown on the Building Plans and/or
the Survey and/or the Environmental Report, Seller has no actual knowledge of
any Improvements located underground or otherwise not ascertainable by a visible
inspection, including, without limitation, any vaults, tanks, pipes or
waterlines.
5.17 CONSENTS. No consent of any Person not heretofore
obtained is necessary to effectuate or perform this Agreement and the
transactions herein contemplated. To the best of Seller's knowledge, all
permits, authorizations, licenses and approvals necessary for the operation of
the Property have been duly obtained and are in full force and effect, and there
are no proceedings pending or, to the best of Seller's knowledge, threatened
which may result in the revocation, cancellation or suspension, or any material
modification of, any of the foregoing.
5.18 EFFECTIVENESS OF TRANSACTIONS. Purchaser will acquire
hereunder, and delivery of the documents required to be delivered hereby will
suffice to vest in Purchaser the entire right, title and interest in, the
Property, free and clear of all Liens, encumbrances, liabilities, agreements,
leases, claims, rights, easements and restrictions, except for the Permitted
Encumbrances.
5.19 INSURANCE. Seller has now in force adequate and
sufficient fire, casualty, theft, vandalism, and public liability insurance
coverage with respect to the Property.
5.20 FLOOD PLAIN; WETLANDS. Except as may otherwise be
stated on the Survey, the Environmental Report or the Hazard Disclosure Report,
the Improvements are not located in a designated flood plain or flood way. No
part of the Property constitutes so-called "wetlands" under any Requirements of
Law, including without limitation, 33 C.F.R. Section 328.3.
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5.21 HISTORIC DISTRICT. The Property is not located in any
area designated by any Government as an historical or similar area wherein such
designation would restrict the ability to rehabilitate, construct or otherwise
make changes to the interior or exterior of the Property nor do any Governmental
restrictions exist with respect to the Property other than normal zoning
regulations or codes of a general nature applicable to all property within the
purview of such general regulations and codes.
5.22 SELLER NOT AN ALIEN. Seller is not a "nonresident
alien," "foreign corporation," "foreign partnership," "foreign trust" or
"foreign estate" within the meaning of the United States Internal Revenue Code
of 1986, as amended, and the regulations and rulings promulgated thereunder.
5.23 EXISTENCE AND AUTHORITY OF SELLER.
5.23.1 Seller is, and will be on the Closing Date, a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. Seller has, and will have on the Closing Date, all
necessary power and authority to (a) carry on the business for which Seller has
been organized, (b) own and operate the Property, and (c) enter into this
Agreement and perform Seller's obligations hereunder.
5.23.2 All actions required to be taken under Delaware
law and Seller's Articles of Incorporation and By-Laws to approve or authorize
the execution of this Agreement and consummation of the transactions
contemplated hereby have been taken.
5.23.3 The execution of this Agreement and the
consummation of the transactions contemplated hereby constitute the valid and
binding obligation of Seller, enforceable in accordance with its terms.
5.23.4 Neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby will constitute a violation
of or be in conflict with or constitute a default under (or with the passage of
time or delivery of notice, or both, would constitute a default under) any term
or provision of any agreement, lease, or other instrument to which Seller is a
party or by which the Property is bound.
5.24 BEST KNOWLEDGE. As used in this Article 5, "best
knowledge" refers to the knowledge of Elizabeth A. Gorbett-Frost, Larry Bymaster
and John Zimmerman who are the persons most familiar with the operation of the
Property and with the corporate structure of Seller.
Except as expressly provided in this Section 5, and notwithstanding anything to
the contrary implied as a matter of law in the Deed, Seller makes no other
representation or warranties of any kind whatsoever, either express or implied,
with respect to all or any portion of the Property or any such related matter.
SECTION 6 WARRANTIES AND REPRESENTATIONS OF PURCHASER. Purchaser
warrants and represents to Seller as follows:
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6.1 BROKERS. No agent, broker, investment banker or other
Person acting on behalf of Purchaser or under the authority of Purchaser is or
will be entitled to any broker's commission or finder's fee or any other
commission or similar fee directly or indirectly from any of the parties hereto
in connection with any of the transactions contemplated herein. Purchaser shall
indemnify, protect, defend and hold harmless Seller against or from all
commissions or fees or claims for same, due to or claimed by any broker or
Person engaged by Purchaser or claiming to have dealt with Purchaser in
connection with the Property.
6.2 EXISTENCE AND AUTHORITY OF PURCHASER.
6.2.1 Purchaser is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Delaware and will either be qualified as a foreign limited liability to do
business in California..
6.2.2 The execution of this Agreement and the
consummation of the transactions contemplated hereby constitute the valid and
binding obligation of Purchaser, enforceable in accordance with its terms. Each
person signing this Agreement on behalf of Purchaser is duly and validly
authorized to do so.
6.2.3 No authorization, consent, or approval of any
Governmental authority (including courts) is required for the execution and
delivery by Purchaser of this Agreement or the performance of its obligations
hereunder.
6.2.4 Neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby will constitute a violation
of or be in conflict with or constitute a default under (or with the passage of
time or delivery of notice, or both, would constitute a default under) any term
or provision of Purchaser's operating agreement or any other agreement, lease,
or other instrument to which Purchaser or any of Purchaser's members is a party,
including without limitation any Lien in favor of Purchaser's lender.
SECTION 7. CERTAIN PRE-CLOSING COVENANTS OF THE PARTIES.
7.1 OPERATION PENDING CLOSING. From the date hereof to the
Closing, Seller shall:
7.1.1 Continue to operate the Property in the ordinary
course of business in accordance with sound real estate management practices,
including the performance of all ordinary and necessary maintenance, repairs and
replacements, and ordinary and necessary replacement of supplies, in the
ordinary course of business;
7.1.2 Except in the ordinary course of Seller's
business, execute no Contract, lease, license agreement, concession or other
agreement which shall obligate Purchaser in any manner, in respect of the
Property or any part thereof, nor any renewal, extension, amendment or
modification of any Contract which shall obligate Purchaser in any manner, nor
waive any rights of Seller or the owner of the Property thereunder or any prior
defaults of the other contracting party thereunder, nor incur any expense in
respect of the Property other than ordinary and necessary expenses, without the
prior written consent in each instance of Purchaser, which such consent shall
not be unreasonably withheld or delayed;
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7.1.3 Maintain the Improvements and Equipment in good
repair, order and condition except for depletion, depreciation, and damage by
unavoidable casualty (subject, however, to the provisions of Section 11.8
hereof);
7.1.4 Keep in full force and effect insurance
comparable in amount and scope of coverage to insurance now carried;
7.1.5 Perform in all material respects all of Seller's
obligations under the Contracts;
7.1.6 Maintain the books of account and records
relating to the operation of the Property in the usual, regular and ordinary
manner and in compliance in all material respects with all Requirements of Law;
7.1.7 Comply in all material respects with all
Requirements of Law applicable to the Property; and
7.1.8 Not sell, assign or transfer the Property or any
interest therein, nor enter into any mortgages, leases, encumbrances or other
matters affecting title to or possession of the Property without Purchaser's
prior written consent.
7.2 ACCESS AND INFORMATION. On and after the date hereof,
upon reasonable prior notice, Seller shall give to Purchaser and its counsel,
agents, representatives and designees full access to the Property and the right
to enter upon the Property and make or conduct soil tests, engineering studies,
inspections and examinations of the Property and all components thereof,
including but not limited to, all utility and mechanical systems serving or in
any way related to the Property, environmental, architectural, space planning,
and landscaping studies, surveys, plans, drawings, or investigations and such
other inspections or surveys thereof as Purchaser may desire, except that any
invasive testing shall require Seller's reasonable consent, and full access to
all books, records, contracts and commitments directly related to the operation
of the Property, and Seller's last Form 10K and Form 10Q, and will furnish all
such information and documents (certified, if requested) relating to the
operation of the Property as Purchaser and its counsel, agents, other
representatives and designees may reasonably request. Seller shall, upon request
of Purchaser, furnish Purchaser with copies of all such items and material. In
conducting the foregoing investigations, Purchaser and its agents and
representatives shall use reasonable good faith efforts to not unreasonably
disrupt Seller's business operations at the Property. Purchaser acknowledges
that FDA regulations prohibit entry to the Buildings during the course of
Seller's production runs. Purchaser will not disclose any confidential
information obtained from Seller to others (except for Purchaser's counsel,
agents and other representatives involved in this transaction, each of which
shall be bound by an agreement to keep such information confidential and to
return such information to Purchaser in the event this Agreement is terminated).
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In the event this Agreement is terminated, Purchaser will use reasonable efforts
in good faith to keep confidential any information (unless readily ascertainable
from public information or sources or otherwise required by law to be disclosed)
obtained from Seller in connection with the transactions contemplated by this
Agreement and will return to Seller all documents, work papers and other written
material obtained by Purchaser from Seller. In connection with Purchaser's entry
onto the Property to conduct tests, studies and examinations, Purchaser shall
indemnify and defend Seller against and hold Seller harmless from all claims,
demands, liabilities, losses, damages, costs and expenses, including reasonable
attorneys' fees and disbursements, arising from any bodily injury, property
damage or mechanics' lien claim caused by Purchaser, or the firms retained by
Purchaser to conduct specific examinations and tests, pursuant to this Section
7.2; provided, however, Purchaser's foregoing obligations shall not include any
obligation or duty with respect to claims (including claims that the Property
has declined in value) arising out of, resulting from or incurred in connection
with (i) the discovery, presence or Release of any Hazardous Substances, unless
such presence or Release was caused by Purchaser or its agents and other
representatives, or (ii) the results, findings, tests or analyses of Purchaser's
environmental investigation of the Property.
7.3 PRE-CLOSING DELIVERIES. Seller shall deliver, or cause
to be delivered, each of the following items to Purchaser at Seller's sole cost
and expense, each of which shall be delivered immediately upon the full
execution of this Agreement:
7.3.1 Complete and correct copies of all insurance
policies maintained by Seller currently in effect together with all riders and
amendments thereto with respect to the Property, or certificates reflecting the
coverage afforded under such insurance policies.
7.3.2 ALTA preliminary commitment or binder for title
insurance ("Title Commitment") from the Title Company with current date,
containing the commitment of the Title Company to issue the Title Policy
required to be delivered pursuant to Section 4.3 hereof. The Title Commitment
shall set forth the results of a so-called special tax search showing all
pending assessments on the Property. The Title Commitment shall have attached
thereto complete and legible copies of all documents relating to any matter or
exception shown on Schedule B of the Title Commitment. The Title Commitment
shall include the results of a search of all uniform commercial code financing
statements and chattel mortgages filed with the appropriate county
recorders/state official. Purchaser shall be responsible for obtaining the Title
Commitment but the cost shall be borne by Seller pursuant to the provisions of
Section 4.7 hereof.
7.3.3 A current survey ("Survey"), prepared by a land
surveyor certified and licensed in California, and approved by Purchaser,
covering the Property and meeting the requirements set forth in this Section.
The Survey shall contain an appropriate certificate signed by the Surveyor,
certifying to Purchaser, the Title Company and any other parties designated by
Purchaser, that the Survey is an accurate representation of the Land,
Improvements and Appurtenances and that the Survey complies with the 1992
"Minimum Standard Detail Requirements of ALTA/ACSM Land Title Surveys" for an
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Urban Class Surveys. The certificate of the surveyor shall specifically certify
that each of the parcels comprising a separate locale of the Land are contiguous
each to the other without any strips, gores or other parcels of land
intervening. The perimeter survey description contained in the Survey shall be
used in the preparation of legal descriptions for the Title Policy, any binders
of insurance for the Title Policy, the Deed and any other documents requiring
legal descriptions of the Property to be delivered pursuant to this Agreement.
The Survey shall be in such sufficient detail and reveal such state of facts as
to permit the Title Company to issue the Title Policy without any survey,
boundary or encroachment exceptions. The Survey shall be in form and substance
acceptable to Purchaser and shall (a) show the location of all structures and
Improvements on the Property; (b) identify or otherwise designate all (i)
utility lines serving the Property, (ii) set back, rear yard and side yard
requirements, (iii) easements and rights-of-way, either of record or visible on
the ground, which either benefit or burden the Property, (iv) conditions,
restrictions and other matters affecting title to the Property that are capable
of being located on the Survey, (v) perimeter lines of the Property with
monuments either set or found at each corner thereof, (vi) curb cuts, driveways
and fences, and (vii) all matters affecting title to the Property which are
shown in the Title Commitment and capable of being shown on or located by a
survey; (c) contain a computation of the acreage of the Property to the nearest
one-thousandth of an acre (specifically identifying the portion of the Property
and the acreage thereof in any public highway, right-of-way, dedicated street or
exclusive easement area) and a computation of the gross square footage of the
Building; (d) contain a legal description of the Property; (e) show any
encroachment on the Property or of any building or improvement constituting a
part of the Property encroaching on any other property or an affirmative
statement that no encroachment exists; (f) certify the zoning of the Property;
(g) include the names of the owners of any real property adjoining the Property;
(h) certify that no portion of the Property is located within a flood plain or
flood way area or specifically identifying which portions of the Property are
located within such flood plain or flood way area (i) have the seal and
registration number of the surveyor affixed; and (j) bear the date on which the
actual field survey has concluded.
7.3.4 Environmental site assessment (commonly known as
a "Phase I" site assessment) ("Environmental Report") in form and substance
acceptable to Purchaser and prepared by a qualified environmental engineering
and consulting firm approved by Purchaser. The Environmental Report shall
contain such information, and shall be the result of such investigations, as is
usual and customary for environmental site assessments for property comparable
to the Property and shall be sufficient to substantiate the matters set forth in
Section 5.6 hereof and any problems or concerns related to the Property with
respect to the environment or to human health and safety.
7.3.5 An engineering study of the Property
("Engineering Report"), in form, content and scope acceptable to Purchaser,
prepared by a qualified engineering firm approved by Purchaser. The Engineering
Report shall include, without limitation, a study or analysis of (a) all
structural components of the Improvements, (b) all mechanical, electrical,
plumbing, HVAC, sprinkler, fire suppression, elevators, and other Building
systems and Equipment designated by Purchaser, and (c) the roof of the
Buildings.
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7.3.6 An Appraisal of the Property made by an MAI
certified real property appraiser, setting forth both the unencumbered value of
the fee simple interest in the Property and the leased fee value of the
Property. 7.3.7 Two (2) complete and correct sets of "as built" architectural,
mechanical, electrical, structural landscape, site and drainage plans and
specifications for all Improvements (collectively, "Building Plans").
7.3.8 All policies of title insurance with respect to
the Property received by Seller when Seller acquired the Property or otherwise
within Seller's possession or control.
7.3.9 Originals of, or complete and accurate copies of,
the following (a) all engineering and/or architectural studies, surveys,
assessments or reports with respect to the Property, (b) all studies, surveys,
assessments or reports relating to any environmental matter concerning the
Property, and (c) all surveys and site plans of the Land, Improvements and
Appurtenances.
7.3.10 Complete and correct copies of all certificates,
licenses, permits, authorizations and approvals issued for or with respect to
the Property by any Governmental authority having jurisdiction, including,
without limitation, all certificates of occupancy issued with respect to the
Improvements.
7.3.11 Complete and correct copies of all site plan
approvals, zoning approvals, zoning variances, if any, issued by the
Governmental authorities having jurisdiction over zoning and land use
requirements applicable to the Property, to the extent that the foregoing are
within Seller's possession or control.
7.3.12 Complete and correct copies of all warranties
and guarantees applicable to the Building, Equipment or Improvements.
7.3.13 Complete and correct copies of all tax bills
relating to the Property for the three (3) year period immediately preceding the
date of this Agreement.
7.3.14 Complete and correct copies of all Space Leases.
7.4 CONTINUING ACCURACY OF REPRESENTATIONS. The
representations and warranties contained herein, or otherwise made in writing by
or on a party's behalf, shall be true and correct as of the Closing, except for
such changes contemplated and permitted by this Agreement, as though such party
had made such representations and warranties in exactly the same form or
language on the Closing Date. Each of the parties shall immediately notify the
other party in the event that any representation or warranty made by the
notifying party shall cease to be true and correct at or prior to the Closing.
7.5 SATISFACTION OF CONDITIONS. Seller shall cause each of
the conditions set forth in Section 9 hereof to be satisfied at or prior to the
Closing.
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SECTION 8. PURCHASER'S DUE DILIGENCE.
8.1 APPROVAL BY PURCHASER. Purchaser shall have the period
commencing with the date of this Agreement and continuing through December ___,
1998 (the "Due Diligence Period") in which to review and approve the reports,
surveys, documents and other items set forth in Section 7.3 hereof
(collectively, "Due Diligence Items").
8.1.1 In the event that or before December ___, 1998
Purchaser notifies Seller that any one or more of the Due Diligence Items is not
acceptable, or in the event that on or before December ___, 1998 Purchaser
disapproves of the condition of the Property or any other matters relating to
the Property which have been inspected by or revealed to Purchaser subsequent to
the date of this Agreement, then Seller shall have a period of five (5) business
days after each such notice in which Seller shall notify Purchaser in writing
whether or not Seller intends to attempt to cure, satisfy or otherwise remedy to
Purchaser's satisfaction ("Cure") such conditions or matters set forth in
Purchaser's notice (such conditions or matters, collectively, "Purchaser's
Objections"). If Seller elects to Cure Purchaser's Objections, then Seller shall
have a period of thirty (30) days after Seller's receipt of the notice setting
forth such Purchaser's Objections in which to Cure the same. If Seller has
timely notified Purchaser that Seller does not intend to attempt to Cure the
Purchaser's Objections, or if Seller elects to Cure the Purchaser's Objections
and thereafter fails to Cure the same within the time period provided for
herein, then, in either such event, Purchaser may, by written notice to Seller,
elect to cancel this Agreement, in which event all parties shall be released and
discharged of any further liability hereunder, except any liability under
Section 11.4 hereof.
8.1.2 If any matter shown in the Title Commitment
and/or the Survey is not acceptable to Purchaser, then Purchaser (or Purchaser's
attorneys) shall notify Seller of those matters that are not acceptable. Seller
shall have a period of five (5) business days after receipt of Purchaser's
notice in which Seller shall notify Purchaser in writing whether or not Seller
intends to attempt to Cure such conditions or matters set forth in Purchaser's
notice (such conditions or matters, collectively, "Title/Survey Objections"). If
Seller elects to Cure the Title/Survey Objections, then Seller shall have a
period of thirty (30) days after receipt of Purchaser's notice in which to Cure
the Title/Survey Objections. If Seller has timely notified Purchaser that Seller
does not intend to attempt to Cure the Title/Survey Objections, or if Seller
elects to Cure the Title/Survey Objections and thereafter fails to Cure the same
within the time period provided for herein, then in either such event, Purchaser
may, by written notice to Seller, elect to cancel this Agreement, in which event
all parties shall be released and discharged of any further liability hereunder,
except any liability under Section 11.4 hereof. Notwithstanding the foregoing,
Purchaser shall not be required to object to any Lien or similar matter which
Seller is otherwise required to remove or cure pursuant to this Agreement and
which can be removed or cured by the payment of money out of funds otherwise
payable to Seller at Closing.
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SECTION 9. CONDITIONS TO OBLIGATIONS OF PURCHASER. Purchaser shall not
be obligated to close title hereunder nor have any obligation under this
Agreement if any of the following conditions shall exist or shall occur, except
to the extent that any such condition may have been waived by Purchaser pursuant
to Section 12:
9.1 LITIGATION. An action or proceeding brought by any
Person (other than a party hereto) shall be pending before any court or
administrative body to restrain, enjoin or otherwise prevent the consummation of
the transactions contemplated by this Agreement or to recover any damages or
obtain other relief as a result of the consummation of the transactions
contemplated by this Agreement.
9.2 SELLER REPRESENTATIONS AND PERFORMANCE. The
representations and warranties of Seller contained herein or otherwise made in
writing by or on Seller's behalf in connection with the transactions
contemplated hereby shall not be true and correct in all material respects as of
the Closing, except for changes contemplated and permitted by this Agreement, as
though such representations and warranties were made as of the Closing in
exactly the same form or language; or Seller shall not have duly performed and
complied with all of the agreements, conditions and deliveries required by this
Agreement to be performed, complied with, or delivered by Seller prior to or at
the Closing.
9.3 INSURABILITY OF TITLE TO PROPERTY. Any policy of title
insurance which is to be issued by the Title Company with respect to the
Property contains exceptions for matters other than the Permitted Encumbrances.
9.4 ZONING. Any building code or zoning or land use law or
regulation to which the Property is subject shall be modified or amended in any
manner whatsoever which adversely affects Purchaser's intended use and
development of the Property, including without limitation, in such manner as to
result in a change of the zoning classification of the Property.
9.5 APPROVAL BY PURCHASER. Purchaser has not previously
terminated this Agreement pursuant to Section 8.1 hereof.
9.6 APPROVAL BY PURCHASER'S LENDER. Purchaser's Lender is
not willing to fund the purchase of the Property on terms and conditions
reasonably acceptable to Purchaser.
SECTION 10. CONDITIONS TO OBLIGATIONS OF SELLER. Seller's obligation
to sell the Property shall be conditioned upon the fulfillment of each of the
conditions precedent set forth in Section 9, all of which should be satisfied or
waived in writing on or prior to the specified date and time, or in the absence
of a specified date and time, by the Closing Date. The obligations of Seller
hereunder are further subject to the fulfillment at or prior to the Closing of
the following conditions except to the extent that any of such conditions may
have been waived by Seller pursuant to Section 12:
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10.1 LITIGATION. No action or proceeding brought by any
Person (other than a party hereto) shall be pending before any court or
administrative body to restrain, enjoin or otherwise prevent the consummation of
the transactions contemplated by this Agreement or to recover any damages or
obtain other relief as a result of the consummation of the transactions
contemplated by this Agreement.
10.2 REPRESENTATIONS AND PERFORMANCE OF PURCHASER. The
representations and warranties of Purchaser contained herein and otherwise made
in writing by or on its behalf in connection with the transactions contemplated
hereby shall be true and correct in all material respects as of the Closing,
except for changes contemplated and permitted by this Agreement, as though such
representations and warranties were then made in exactly the same form and
language; and Purchaser shall have duly performed and complied with all
agreements and conditions required by this Agreement to be performed or complied
with by Purchaser prior to or at the Closing.
SECTION 11. ADDITIONAL COVENANTS.
11.1 EXPENSES. Except as otherwise provided herein, Seller
and Purchaser each agree to pay their own costs and expenses incurred in
connection with the transactions contemplated hereby. Seller shall be
responsible for the costs of producing the reports, surveys, documents and other
items required by Section 4 and Section 7 to be obtained and delivered by
Seller.
11.2 SATISFACTION OF LIENS. In the event that there are any
Liens, encumbrances or defects to the marketability or insurability of the title
to the Property on the date of Closing, other than for Permitted Encumbrances,
by reason of any mortgage, Lien against the Property, unpaid tax, conditional
sales contract or chattel mortgage, mechanic's lien, judgment or any encumbrance
which is susceptible of being cured or discharged upon payment of a fixed or
ascertainable amount, Seller shall pay, satisfy and discharge such Lien,
encumbrance or defect against the Property at or prior to the Closing by
procuring and recording at Seller's expense a good and sufficient release,
satisfaction or discharge, discharging each of said Liens, encumbrances or
defects of record. If at the date of Closing there shall be any such Liens,
encumbrances or defects, Seller may use the portion of the balance of the
Purchase Price which is payable in immediately available funds to satisfy the
same, provided that Seller shall simultaneously either deliver to Purchaser at
the Closing instruments in recordable form and sufficient to satisfy and
discharge such Liens, encumbrances or defects of record together with the cost
of recording or filing said instruments, or, provided that the Seller has made
arrangements with the Title Company in advance of the Closing, Seller will
deposit with the Title Company sufficient monies acceptable to and required by
the Title Company to insure the obtaining and the recording of such instruments
and satisfactions and to induce the Title Company to issue the Title Policy to
Purchaser insuring the Property free of any such Liens, encumbrances or defects.
11.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
respective representations, warranties and covenants of Purchaser and Seller
contained herein or in any schedule, exhibit, certificate or document delivered
herewith or in pursuance hereof and their respective agreements contained herein
shall survive the Closing for a period of two (2) years. All warranties and
representations shall be effective regardless of any investigations which have
been or will have been made. If Seller becomes aware of any facts or
67
circumstances which would change or render incorrect, in whole or in part, any
representation or warranty made by Seller under this Agreement, whether as of
the date given or at any time thereafter to and including the Closing Date and
whether or not such representation was based on Seller's knowledge and/or belief
as of a certain date, Seller will give prompt written notice of such change,
fact or circumstance to Purchaser. If Purchaser elects to close the transaction
contemplated hereby, Seller's liability for misrepresentation or a breach of
warranty, the misrepresentation or breach complained of shall exclude any fact
or circumstance of which Seller subsequently learns and notifies Purchaser of
pursuant to this Section 11.3.
11.4 INDEMNITY BY SELLER.
11.4.1 Seller shall indemnify, protect, defend and
hold harmless Purchaser from and against any and all actions, suits, claims,
liabilities, damages, losses, costs and expenses, including attorneys' fees,
resulting from (a) any representations made by Seller in this Agreement or made
in any document or certificate delivered pursuant to this Agreement which are
inaccurate or misleading, (b) any breach of any of Seller's warranties made in
this Agreement or any document or certificate delivered pursuant to this
Agreement, (c) any breach or default in the performance or observance by Seller
of any of the covenants or other obligations which Seller is to perform or
observe under this Agreement, or (e) any obligations or liabilities related to
or arising under any Contract (collectively, "Indemnified Matters"). Seller's
obligation to indemnify Purchaser for the events described in (a) and (b) above
shall be limited in duration, as set forth in Section 11.3
11.4.2 Should any claim be made by a person not a
party to this Agreement with respect to any matter to which the indemnity set
forth in this Section 11.4 relates, Purchaser shall promptly give Seller written
notice of any such claim, and Seller shall thereafter defend or settle any such
claim, at its sole expense, on its own behalf and with counsel of its selection;
provided, however, that Seller's counsel shall be competent counsel experienced
in the type of litigation or claim at issue and shall be acceptable to
Purchaser, acting reasonably. Upon Seller's assumption of the defense of any
claim against Purchaser pursuant to Seller's indemnity, Purchaser shall have the
right to participate in the defense or settlement of the claim with counsel
retained and paid by it, and Seller shall cause the attorneys retained by it to
consult and cooperate fully with counsel for Purchaser. In such defense or
settlement of any claims, Purchaser shall provide Seller with originals or
copies of all relevant documents and provide its utmost cooperation with and
assistance to Seller, at no expense to Purchaser. Notwithstanding any provision
of this Section 11.4 to the contrary, Seller shall not enter into any settlement
or agreement in connection with any Indemnified Matters binding upon or
adversely affecting Purchaser, or admit any liability or fact in controversy
binding upon or adversely affecting Purchaser, without Purchaser's prior written
consent which such consent shall not be unreasonably withheld or delayed.
11.5 FURTHER ASSURANCES. If at any time either of the
parties hereto shall consider or be advised that any further assignments,
conveyances or assurances are necessary or desirable to carry out the provisions
hereof and the transactions contemplated herein, the appropriate parties hereto
shall execute and deliver, or cause to be executed and delivered, any and all
proper deeds, assignments and assurances, and do or cause to be done all things
necessary or proper to carry out fully the provisions hereof.
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11.6 DELIVERY OF DOCUMENTS AND OTHER ITEMS. No document
shall be deemed executed and delivered for purposes of this Agreement unless
such document shall have been duly executed with all blanks appropriate filled
in pursuant to the terms hereof or thereof.
11.7 RECORDATION. Neither party shall record this
Agreement.
11.8 DAMAGE AND DESTRUCTION.
11.8.1 If any part of the Property shall, prior to the
filing of the Deed for record, be damaged or destroyed by fire or any other
cause, then Seller shall immediately give written notice to Purchaser of such
event and the parties shall thereafter proceed as follows:
(a) If the cost of repairing an insured event
of damage or destruction is less than One Hundred Thousand Dollars
($100,000.00), Seller shall promptly restore the Property and the parties shall
proceed to close this transaction. Seller shall be responsible for any expense
incurred by Purchaser because of the delay in closing.
(b) If the event of damage or destruction is
uninsured or if the cost of repairing the damage or destruction is more than One
Hundred Thousand Dollars ($100,000.00), Purchaser may, at Purchaser's option (i)
receive the proceeds of any insurance payable in connection therewith plus a
cash payment by Seller of the deductible amount, if any, under the insurance
policy or policies covering the Property and thereupon remain obligated to
perform this Agreement; or (ii) terminate this Agreement. Upon termination of
this Agreement by Purchaser pursuant to this Section 11.8, all funds and
documents previously paid, deposited or advanced by Purchaser shall be
immediately returned to Purchaser.
11.8.2 Simultaneously with the execution of this
Agreement, Seller shall deliver to Purchaser true and complete copies of all
policies for the present insurance coverage upon the Property, or certificates
reflecting the coverage afforded under such insurance policies. Seller shall
keep such policies in full force and effect through the Closing Date and
immediately advise Purchaser in writing of any damage to the Property. Seller
shall execute and deliver such instruments as may be necessary to assign to
Purchaser on the Closing Date any insurance policies presently in effect upon
the Property which Purchaser elects to assume.
11.9 EMINENT DOMAIN.
11.9.1 If, prior to Closing, all or any portion of the
Property is taken or affected by eminent domain proceedings, or under a threat
of eminent domain, for any public or quasi-public use or purpose (a "Taking"),
then in any such event, Seller shall immediately give Purchaser written notice
of the occurrence of such event, and the parties shall thereafter proceed as
follows:
69
(a) If the cost of such Taking is less than One
Hundred Thousand Dollars ($100,000.00), Seller shall promptly restore the
Property and the parties shall proceed to close this transaction. Seller shall
be responsible for any expense incurred by Purchaser because of the delay in
closing.
(b) If the cost of such Taking is more than One
Hundred Thousand Dollars ($100,000.00), Purchaser may, at Purchaser's option (i)
receive the proceeds of any Awards payable in connection therewith and thereupon
remain obligated to perform this Agreement; or (ii) terminate this Agreement.
Upon termination of this Agreement by Purchaser pursuant to this Section
11.9.1(b), all funds and documents previously paid, deposited or advanced by
Purchaser shall be immediately returned Purchaser.
11.9.2 If the Closing shall occur following a Taking,
and if Purchaser does not elect to terminate this Agreement in the manner set
forth in Section 11.9.1(b), then Seller shall deliver or cause to be delivered
to Purchaser (at Closing, if possible) all Awards, less any sums theretofore
reasonably utilized by Seller for restoration or repair of the Property, to the
extent the same was properly performed at Purchaser's direction pursuant to
Section 11.9.1 and Seller shall execute and deliver to Purchaser at Closing all
proper instruments for assignment and collection of any Awards not paid at
Closing and shall also pay to Purchaser such additional amounts, if any, in
excess of the Awards as may be reasonably required to complete any restoration
or repair of the Property.
11.10 NO ASSUMPTION OF SELLER'S LIABILITIES. Purchaser
shall not, by the execution or performance of this Agreement or otherwise,
assume, become responsible for, or incur any liability or obligation of any
nature of Seller. Without limiting the generality of the foregoing, Purchaser
shall not assume any liability or obligation of Seller under any Contract.
11.11 CONFIDENTIALITY. Except as otherwise required by
Requirement of Law, Purchaser and Seller shall keep the contents of this
Agreement and the terms for the acquisition of the Property confidential and
shall not disclose the contents of this Agreement or the terms for the
acquisition of the Property in any manner whatsoever to any party without the
other party's prior written consent, except that each party may disclose such
terms to such party's professional advisors, agents and employees and Purchaser
may disclose such terms to Purchaser's Lender, potential joint ventures,
partners or members, provided that each party agrees to keep such terms
confidential.
SECTION 12. WAIVER. Any condition to the performance by any party
hereto, which may legally be waived at or prior to the Closing may be waived at
any time by the party entitled to the benefit thereof by action duly taken by
the waiving party. Except as herein expressly provided, no waiver by a party of
any breach of this Agreement or of any warranty or representation hereunder by
the other party shall be deemed to be a waiver of any other breach by such other
party (whether preceding or succeeding and whether or not of the same or similar
nature) and no acceptance or payment or performance by a party after any breach
by the other party shall be deemed to be a waiver of any breach of this
70
Agreement or of any representation or warranty hereunder by such other party
whether or not the first party knows of such breach at the time it accepts such
payment or performance. No failure or delay by a party to exercise any right it
may have by reason of the default of the other party shall operate as a waiver
of default or modification of this Agreement or shall prevent the exercise of
any right by the first party while the other party continues to be so in
default. No purported waiver by either party of any default by the other of any
term or provision contained herein shall be effective unless the waiver is in
writing and signed by the waiving party.
SECTION 13. MISCELLANEOUS. The captions or headings contained in this
Agreement are for reference purposes only and shall not effect in any way the
meaning or interpretation of this Agreement. This Agreement constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof.
No representation, promise, inducement or statement of intent has been made by
any party to this Agreement to any other party to this Agreement or any
director, officer, stockholder, partner, agent, attorney or employee thereof
which is not embodied in this Agreement, and no party or director, officer,
stockholder, partner, agent, attorney or employee shall be bound by or liable
for any alleged representation, promise, inducement or statement of intention
not embodied herein. This Agreement may be executed in several counterparts each
of which shall be deemed an original and all of which shall constitute one and
the same instrument. This Agreement shall be governed in all respects, including
validity, interpretation and effect, by the laws of the situs of the Property,
notwithstanding the application of any principles of conflicts of laws. Seller
and Purchaser shall execute such modifications or amendments to this agreement
as may be necessary or desirable in order to conform the intentions of the
parties as set forth or as reasonably intended hereunder to the laws of the
situs of the Property. This Agreement may not be amended except by an instrument
in writing duly executed and delivered on behalf of each of the parties hereto.
This Agreement shall be binding upon and inure to the benefit of any successor
to Seller or Purchaser subject to the restrictions contained herein with respect
to assignment of this Agreement. Wherever provision is made herein for the
execution and delivery of any document or instrument by Seller, such document or
instrument shall be executed and delivered by the duly authorized officers of
Seller.
SECTION 14. NOTICES.
14.1 METHOD OF NOTICE. All notices and other communications
required or permitted to be given hereunder shall be in writing and shall be
delivered personally or shall be mailed by certified or registered mail, postage
prepaid, return receipt requested, or deposited with a nationally-recognized
over-night courier addressed to the parties at the following addresses, or such
other or further addresses as either of the parties shall request by further
written notice given in the manner herein required:
If to Seller: TECHNICLONE CORPORATION
14282 Franklin Avenue
Tustin, CA 92780
Attn: Steven C. Burke, CFO
71
with a copy to: Rutan & Tucker, LLP
611 Anton Boulevard, Suite 1400
Costa Mesa, CA 92626
Attn: Mary Green, Esq.
If to Purchaser: 14282 Franklin Avenue Associates, LLC
c/o The Bentley Forbes Group, LLC
1900 Avenue of the Stars, Suite 2840
Los Angeles, California 90067 - 4509
Attn: C. Frederick Wehba, II, President
with a copy to: 14282 F Franklin Avenue Associates, LLC
c/o The Bentley Forbes Group, L.L.C.
1900 Avenue of the Stars, Suite 2840
Los Angeles, California 90067 - 4509
Attn: Sharon Nader Sloan, Esq.
14.2 NOTICES AFFECTING THE PROPERTY. Seller shall promptly
provide Purchaser with an exact copy of any notice, communication or other
instrument or document received or given by Seller in any way to or affecting
the Property.
SECTION 15. INTENTIONALLY DELETED
SECTION 16. DEFAULT.
16.1 DEFAULT BY PURCHASER. In the event title shall fail to
close hereunder through no default of Seller and by reason of a default by
Purchaser, Seller's sole and exclusive remedy against Purchaser, in lieu of all
other rights or remedies otherwise provided at law or in equity against
Purchaser or against any officer, director, official or employee of Purchaser,
shall be to retain the Earnest Money, including accrued interest, as liquidated
and agreed damages, and not as a penalty or forfeiture. For purposes of this
Agreement, any one of the following shall be deemed a "default by Purchaser"
under this Agreement: (a) Purchaser's failure to deliver any documents or other
items required to be so delivered under the provisions of this Agreement; (b)
the willful refusal of Purchaser to either consummate the sale of the Property
provided for herein or perform all obligations required of Purchaser pursuant to
the provisions of this Agreement; or (c) a breach of this Agreement by
Purchaser.
/S/ BK__________ /S/ SB__________
Purchaser's Initials Seller's Initials
72
16.2 DEFAULT BY SELLER. In the event title shall fail to
close hereunder through no default of Purchaser and by reason of a default by
Seller, Purchaser shall retain all rights and remedies provided at law or in
equity against Seller, its successors or assigns including, without limitation,
the specific performance of this Agreement. Purchaser shall have the right to
elect to receive, in lieu of all other rights or remedies otherwise provided by
law or in equity against Seller or against any officer, director, official or
employee of Seller, all out-of-pocket expenses incurred by Purchaser in
connection with this transaction, including but not limited to, (a) Purchaser's
internal costs and expenses, (b) the fees of Purchaser's outside attorneys, (c)
the legal fees of Lender's counsel, (d) the nonrefundable portion of Lender's
commitment fee, (e) the cost of Lender's due diligence and environmental
reviews, (f) all of the verified cost of Lender's rate lock instrument, and (g)
the cost of the Engineering Report, the Environmental Report, the appraisal, the
Survey, and any fees and charges associated with the Title Policy and Escrow
Agent, in an amount not to exceed the sum of One Hundred Seventy Five Thousand
Dollars ($175,000.00), as liquidated and agreed damages. For purposes of this
Agreement, any one of the following shall be deemed a "default by Seller" under
this Agreement: (a) Seller's failure to deliver any reports, surveys, documents
or other items required to be so delivered under the provisions of this
Agreement; (b) the willful refusal of Seller to either consummate the sale of
the Property provided for herein or perform all obligations required of Seller
pursuant to the provisions of this Agreement; or (c) a breach of this Agreement
by Seller.
/S/ BK__________ /S/ SB__________
Purchaser's Initials Seller's Initials
73
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
SELLER:
TECHNICLONE CORPORATION,
a Delaware corporation
By: /S/ STEVEN C. BURKE
-----------------------------------
Name: STEVEN C. BURKE
-----------------------------------
Title: CFO
-----------------------------------
PURCHASER:
14282 FRANKLIN AVENUE ASSOCIATES,
LLC, a Delaware limited liability company
By: /S/ BERT KREISBERG
-----------------------------------
Bert Kreisberg, Manager
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EXHIBIT "A"
LEGAL DESCRIPTION OF THE LAND
-----------------------------
Parcel A:
Parcels 2 and 3 of parcel map 95-115, in the city of Tustin, County of Orange,
State of California, as per map recorded in book 290 page(s) 3 through 5
inclusive of Miscellaneous maps, in the office of the County Recorder of said
County.
Excepting therefrom all oil, oil rights, minerals, mineral rights, natural gas
rights, and other hydrocarbons by whatsoever name known that may be within or
under the parcel of land hereinabove described, together with the perpetual
rights of drilling, mining, exploring and operating therefor, and storing in and
removing the same from said land or any other land, including the right to
whipstock or directionally drill and mine from land other than those hereinabove
described, oil or gas wells, tunnels and shafts into, through or across the
subsurface of the land hereinabove described, and to bottom such whipstocked or
directionally thereof, and to redrill retunnel, equip, maintain, repair, deepen
and operate any wells or mines, without, however, the right to drill, mine,
store, explore and operate through the surface of the upper 500 feet of the
subsurface of the land hereinabove described, as reserved in deeds or record.
Parcel B:
Easements for access, ingress, egress and parking over parcel A of parcel map
recorded in book 290 , pages 3, 4 and 5 of parcel maps as set forth in that
certain declaration of restrictions entitled "Franklin Court" and recorded
January 9, 1996 as instrument No. 96-0012567 and re-recorded April 30, 1996 as
instrument No. 96-214962 both of official records.
75
EXHIBIT "B"
PROMISSORY NOTE
---------------
(filed as Exhibit 10.49 to the Quarterly Report on Form 10-Q for the quarter
ended January 31, 1999 and incorporated herein by this reference)
76
EXHIBIT "C"
LEASE AGREEMENT
---------------
(filed as Exhibit 10.48 to the Quarterly Report on Form 10-Q for the quarter
ended January 31, 1999 and incorporated herein by this reference)
77
EXHIBIT "D"
CERTIFICATION OF WARRANTIES AND REPRESENTATIONS
-----------------------------------------------
TECHNICLONE CORPORATION, a Delaware corporation, ("Seller") hereby
certifies to TNCA, LLC, a Delaware limited liability company ("Purchaser") that
all of Seller's warranties and representations set forth in that certain Real
Estate Purchase Agreement ("Purchase Agreement") dated as of December __, 1998,
by and between Seller and Purchaser, are true and correct as of the date of this
Certification as if all warranties and representations of Seller set forth in
the Purchase Agreement were made by Seller as of the date of this Certification.
IN WITNESS WHEREOF, Seller has caused this Certification to be executed
by its duly authorized officer as of the day of December, 1998.
TECHNICLONE CORPORATION
a Delaware corporation
By:
Name:
Title:
78
EXHIBIT "E"
BILL OF SALE
------------
[Equipment]
KNOW ALL MEN BY THESE PRESENTS THAT, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
TECHNICLONE CORPORATION, a Delaware corporation ("Seller") does hereby grant,
bargain, sell, deliver, carry, transfer, set over and assign (or cause to be
granted, bargained, sold, delivered, carried, transferred, set over and
assigned) unto TNCA, LLC, a Delaware limited liability company ("Purchaser"),
its successors and assigns, all of the "Equipment", as that term is defined in
that certain Real Estate Purchase Agreement ("Purchase Agreement") dated as of
December __, 1998 by and between Seller and Purchaser for the purchase and sale
of certain real property and improvements and related property located in
Tustin, CA and as more particularly described on EXHIBIT A attached hereto and
made a part hereof.
It is the intention of this instrument to convey, transfer and assign
to Purchaser, and Seller represents and warrants to Purchaser that this
instrument does convey, transfer and assign to Purchaser, all right, title and
interest in and to the Equipment. Seller, for itself and its successors and
assigns, further represents and warrants that Seller has the right, power and
capacity to sell the Equipment..
Seller agrees to execute and deliver, or cause to be executed and
delivered, all such further assignments, endorsements or other documents as
Purchaser may reasonably request for the purpose of effecting transfer of all
right, title and interest in and to the Equipment.
TO HAVE AND TO HOLD the Equipment unto Purchaser, its successors and
assigns, to and for its and their own use forever.
IN WITNESS WHEREOF, Seller has caused this Bill of Sale to be executed
by its duly authorized officer as of the ___ day of December, 1998.
TECHNICLONE CORPORATION
a Delaware corporation
By:
Name:
Title:
79
EXHIBIT "F"
GENERAL ASSIGNMENT, CONVEYANCE AND BILL OF SALE
-----------------------------------------------
[Intangible Property]
KNOW ALL MEN BY THESE PRESENTS THAT, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
TECHNICLONE CORPORATION, a Delaware corporation ("Seller") does hereby grant,
bargain, sell, deliver, carry, transfer, set over and assign (or cause to be
granted, bargained, sold, delivered, carried, transferred, set over and
assigned) unto TNCA, LLC, a Delaware limited liability company ("Purchaser"),
its successors and assigns, all of the "Intangible Property", as that term is
defined in that certain Real Estate Purchase Agreement ("Purchase Agreement")
dated as of December __ , 1998 by and between Seller and Purchaser for the
purchase and sale of certain real property and improvements, and related
property, located in Tustin, CA, as more particularly described on EXHIBIT "A"
attached hereto and made a part hereof.
It is the intention of this instrument to convey, transfer and assign
to Purchaser, and Seller represents and warrants to Purchaser that this
instrument does convey, transfer and assign to Purchaser, all right, title and
interest in and to the Intangible Property. Seller, for itself and its
successors and assigns, further represents and warrants that Seller has the
right, power and capacity to sell the Intangible Property.
Seller agrees to execute and deliver, or cause to be executed and
delivered, all such further assignments, endorsements or other documents as
Purchaser may reasonably request for the purpose of effecting transfer of all
right, title and interest in and to the Intangible Property.
TO HAVE AND TO HOLD the Intangible Property unto Purchaser, its
successors and assigns, to and for its and their own use forever.
IN WITNESS WHEREOF, Seller has caused this General Assignment,
Conveyance and Bill of Sale to be executed by its duly authorized officer as of
the day of December __, 1998.
TECHNICLONE CORPORATION,
a Delaware corporation
By:_______________________________
Name:_____________________________
Title:____________________________
80
EXHIBIT "G"
ESCROW AGREEMENT
----------------
Old Republic General Title Insurance Corporation (the "Escrow Holder")
has agreed to act as the closing agent and title insurer for the
above-referenced transaction. This Escrow Agreement (the "Escrow Agreement")
sets forth the instructions, on behalf of Techniclone Corporation, a Delaware
corporation ("Seller") and 14282 Franklin Avenue Associates, LLC, a Delaware
limited liability company ("Purchaser"), with respect to the recordation of
documents, the disbursement of funds, and the issuance of the title policy.
Attached and incorporated as Exhibit "A" to this Escrow Agreement is a true and
correct copy of the Real Estate Purchase Agreement dated December __, 1998
between Purchaser and Seller (the "Purchase Agreement"). The Escrow Holder is
instructed to follow each of the provisions set forth in the Purchase Agreement
which pertains to the issues of recordation, disbursement of funds and issuance
of the title policy.
ADDITIONAL ESCROW INSTRUCTIONS AND CONDITIONS
1. You are instructed to insert the date when title is transferred and
recorded into all undated documents.
2. All funds received in this escrow shall be deposited with other
escrow funds in a general escrow account or accounts of the Escrow Holder with
any State or National Bank qualified to do business in the State of California
and may be transferred to any other such general escrow account or accounts or
any duly authorized sub-escrow agent. All disbursements shall be made by check
or wire transfer of the Escrow Holder. The parties to this escrow are hereby
notified that the funds deposited herein are insured only to the limit provided
by Federal Deposit Insurance Corporation.
3. You are authorized to prepare, obtain, record and deliver your usual
instrument(s) to carry out the terms and conditions of this escrow. All parties
hereby jointly and severally agree to hold the Escrow Holder free and harmless
and shall defend against any liability in connection with the preparation of
said instruments or documents. You are further authorized to order a policy of
title insurance to be issued in accordance with the Agreement at the close of
escrow. Close of escrow shall be deemed to be the date instruments are recorded.
4. All adjustments and prorations called for in this escrow are to be
made on the basis of a thirty (30) day month unless otherwise instructed in
writing.
81
5. You shall not be held accountable or liable in any manner whatsoever
for your failure to comply with any of the provisions of any agreement or
instrument deposited or referred to herein, wherein any of the terms of said
agreement or instrument are not part of the written instructions of the parties
accepted by you. You shall not be held accountable or liable for the sufficiency
or correctness as to form, manner of, execution, or validity or any instrument
deposited in this escrow, nor as to the identity, authority or rights of any
person executing the same. Your duty shall be confined to the safekeeping of
money, instruments or other documents received by you as escrow holder and your
disposition thereof in accordance with the written mutual instructions accepted
by you in this Escrow Agreement.
6. No notice, demand or change of instructions shall be of any effect
in this escrow unless given in writing by all parties affected thereby. In the
event a demand for the funds on deposit in this escrow is made, not concurred in
by all parties hereto, the Escrow Holder, REGARDLESS OF WHO MADE DEMAND THEREFOR
AND AFTER MAILING A COPY OF SUCH NOTICE TO EACH OF THE OTHER PARTIES AT THEIR
MAILING ADDRESS, may elect to do any of the following:
(i) After thirty (30) days from the date escrow was first notified
that the escrow is to be canceled and/or demand for funds was made,
absent mutually concurring instructions providing for payment of
funds and the disposition to be made of this escrow, the Escrow
Holder may return all documents and the funds on deposit to the
parties depositing same, LESS cancellation fees and charges
incurred, and without liability therefor.
(ii) Withhold and stop all further proceeding in, and performance
of, this escrow pending a resolution of any conflict by and between
the parties hereto.
(iii) File an action in interpleader and deposit in court all
documents and the funds in escrow, LESS cancellation fees, costs,
expenses and reasonable attorney's fees incurred, and have no
further liability hereunder. Any such actions must comply with the
requisite interpleader statutes of the State of California in this
regard.
7. If the conditions of this escrow have not been complied with at the
time herein provided, you are nevertheless to complete the same as soon as the
conditions (except as to time) have been complied with, unless one of the
parties shall have made written demand upon you for the return of money and
instruments deposited by them.
8. All parties hereto agree, jointly and severally, to pay on demand,
as well as to indemnify and hold you harmless from and against all costs,
damages, judgments, attorney's fees, expenses, obligations and liabilities of
any kind or nature which, in good faith, you may incur or sustain in connection
with this escrow, whether arising before or subsequent to the close of this
escrow, except, however, any costs, damages, judgments, attorneys fees,
expenses, obligations and liabilities incurred as a result of your negligence or
willful misconduct.
9. You are authorized to furnish copies of this Escrow Agreement, any
supplements or amendments thereto, preliminary title report, notices of
cancellation and closing statements pertaining to this escrow to all parties,
and duly authorized attorney(s) named in this escrow.
82
10. These instructions may be executed in counterparts, each of which
so executed, shall, irrespective of the date of its execution and delivery to
deemed an original, and said counterparts together shall constitute one and the
same instrument.
11. These instructions shall become effective as an escrow only upon
the delivery thereof to the Escrow Holder signed by all parties hereto.
12. Any funds abandoned or remaining unclaimed for a period of six (6)
months after the close of escrow or after conflicting demands have been made to
Escrow Holder, after good faith efforts have been made by the Escrow Holder to
return same to the party or parties entitled thereto, shall be assessed a
custodian fee of $10.00 per month. After three (3) years the amount thereafter
remaining unclaimed may escheat to the State of California. In the event you
become legally obligated to comply, and complies, with the escheat laws of the
State of California, deduct a service charge of $50.00.
13. All documents, closing statements, and balances due the parties to
this escrow are to be deposited in the United States mail, postage pre-paid,
addressed to the party or parties entitled thereto at the mailing address set
forth in this escrow, unless otherwise instructed.
14. The escrow fee to be paid for your services are for ordinary and
usual services only and assessed in equal proportionate shares. However, should
there be any extraordinary or unusual services rendered by you in this escrow,
the party or parties requiring such extraordinary or unusual services agree to
pay your reasonable compensation for such services together with any costs and
expenses which may be incurred by you in connection therewith.
15. In the event that the parties instruct Escrow Holder to release
funds prior to the close of escrow and/or recording of documents, the parties
hereby release, indemnify and shall hold harmless Escrow Holder from any and all
liability and/or responsibility which may arise including but not limited to any
legal action, attorney's fees, costs or claims of any kind by reasons of Escrow
Holder complying with said release of funds instruction.
16. All parties hereto acknowledge that no representation is made as to
the legal and/or financial consequences of this transaction. All parties have
been advised that Escrow Holder is not authorized to give legal and/or financial
counsel and further acknowledge that they have been advised to seek advise of
such competent legal and financial counsel from the professionals of their
choice.
17. You are authorized to destroy or otherwise dispose of any and all
documents, papers, instructions, correspondence and other material pertaining to
this escrow at the expiration of five (5) years from the date of close or
cancellation of escrow without liability and with further notice, authorization
and/or consent of the parties.
83
18. You are not to be concerned, held accountable and/or liable with
the giving of any disclosures required by Federal or State law, specifically but
not limited to RESPA (Real Estate Settlement Procedures Act), Regulation Z
(Truth-In-Lending Disclosures) or other warranties either expressed or implied.
In addition, you are not to be held responsible and/or liable for determining
that there has been compliance with any matters that are excluded from coverage
under the policy of title insurance to be issued in conjunction with close of
this escrow including, but not limited to, county or municipal ordinances and
state, county or municipal subdivision or land division regulations or laws.
Reference is made to the Policy form on file with the insurance Commissioner of
the State of California and available through the insuring the Escrow Holder for
the parties review for a complete statement of such exclusions.
19. In the event that escrow closes and there are insufficient funds to
satisfy the obligations contemplated herein, you shall be entitled to collect a
sum equal to said shortage from the party responsible for such charge.
ESCROW HOLDER:
OLD REPUBLIC GENERAL TITLE INSURANCE CORPORATION
as represented by its agent
By:_____________________________
Name:___________________________
Title:__________________________
SELLER:
TECHNICLONE CORPORATION,
a Delaware corporation
By:_____________________________
Name:___________________________
Title:__________________________
PURCHASER:
14282 FRANKLIN AVENUE ASSOCIATES, LLC,
a Delaware limited liability company
By:_____________________________
Bert Kreisberg, Manager
84
EXHIBIT "H"
DEED
----
Order No. |
Escrow No. |
Loan No. |
|
WHEN RECORDED MAIL TO: |
RUTAN & TUCKER, LLP |
611 Anton Boulevard, Suite 1400 |
Costa Mesa, CA 92626 |
Attn: Mary M. Green, Esq. |
|
MAIL TAX STATEMENTS AS DIRECTED TO: |
TNCA, LLC |
c/o the Bentley-Forbes Group, LLC |
1900 Avenue of the Stars, Suite 2840 |
Los Angeles, CA 90067-4509 |
__________________________________________|_____________________________________
SPACE ABOVE THIS LINE FOR RECORDER'S USE
___________________________________________________________
Signature of Declarant or Agent determining tax - Firm Name
DOCUMENTARY TRANSFER TAX $ See attached statement of tax due
.....Computed on the consideration or value of property conveyed; OR
.....Computed on the consideration or value less liens or encumbrances
remaining at time of sale.
________________________________________________________________________________
CORPORATION GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
TECHNICLONE CORPORATION , a Delaware corporation, a corporation organized under
the laws of the State of California, does hereby GRANT to TNCA, LLC, Delaware
limited liability company, the real property in the City of Tustin, County of
Orange, State of California, described in EXHIBIT "A" attached hereto and made a
part hereof.
The Property is conveyed subject to (i) non-delinquent general and special real
property taxes and assessments; (ii) restrictions, encumbrances, reservations,
limitations, conditions, easements, agreements and all other matters of public
record; (iii) a statement of facts which an accurate survey and personal
inspection of the Property may show; (iv) slope, drainage, grading and other
rights, public and private, in and over a portion of the property lying in or
abutting any public or private street, road or highway; (v) all streets and
public rights of way.
Dated: _______________, 1998 TECHNICLONE CORPORATION,
a Delaware corporation
By: ____________________________
Its:____________________________
85
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On ____________________ 1998, before me, __________________________, Notary
Public, personally appeared ___________________________________________________
______________________________________ personally known to me(or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(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.
________________________________
Notary Public
[SEAL]
86
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
-----------------------------
SAID LAND IS SITUATED IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS
DESCRIBED AS FOLLOWS:
PARCEL A:
PARCELS 2 AND 3 OF PARCEL MAP 95-115, IN THE CITY OF TUSTIN, COUNTY OF ORANGE,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 290 PAGE (S) 3 THROUGH 5
INCLUSIVE OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
EXCEPTING THEREFROM ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS
RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN THAT MAY BE WITHIN OR
UNDER THE PARCEL OF LAND HEREINABOVE DESCRIBED, TOGETHER WITH THE PERPETUAL
RIGHTS OF DRILLING, MINING, EXPLORING AND OPERATING THEREFOR, AND STORING IN AND
REMOVING THE SAME FROM SAID LAND OR ANY OTHER LAND, INCLUDING THE RIGHT TO
WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LAND OTHER THAN THOSE HEREINABOVE
DESCRIBED, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE
SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED, AND TO BOTTOM SUCH WHIPSTOCKED OR
DIRECTIONALLY THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN
AND OPERATE ANY WELLS OR MINES, WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE,
STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OF THE UPPER 500 FEET OF THE
SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED, AS RESERVED IN DEEDS OF RECORD.
PARCEL B:
EASEMENTS FOR ACCESS, INGRESS, EGRESS, AND PARKING OVER PARCEL A OF PARCEL MAP
RECORDED IN BOOK 290, PAGES 3, 4 AND 5 OF PARCEL MAPS AS SET FORTH IN THAT
CERTAIN DECLARATION OF RESTRICTIONS ENTITLED "FRANKLIN COURT" AND RECORDED
JANUARY 9, 1996 AS INSTRUMENT NO. 96-0012667 AND RE-RECORDED APRIL 30, 1996 AS
INSTRUMENT NO. 96-214962 BOTH OF OFFICIAL RECORDS.
87
SCHEDULE "1"
SELLER'S RETAINED PROPERTY
--------------------------
88
SCHEDULE "5.5.1"
VIOLATIONS
----------
SEE RESOLUTION NO. 95-82 OF THE CITY COUNCIL OF THE CITY OF TUSTIN,
CALIFORNIA, DATED SEPTEMBER 18, 1995. A COPY OF WHICH HAS BEEN PROVIDED TO
PURCHASER.
89
SCHEDULE "5.6.2"
ENVIRONMENTAL MATTERS
---------------------
NONE
90
SCHEDULE "5.6.3"
ENVIRONMENTAL MATTERS
---------------------
Except as set forth in the Vista - E/Risk Hazard Disclosure Report on
the Property, dated November 3, 1998 (ERN: 110398-238), there are no other
environmental matters.
91
SCHEDULE "5.6.4"
ENVIRONMENTAL MATTERS
---------------------
NONE
92