EXHIBIT 10.50
PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT ("Agreement") dated as of December
24, 1998 is between C. XXXXXXXXX XXXXX XX, XXXX X. XXXXX, XXXXXXXXX X. XXXXX,
XXXX X. XXXXX 1998 TRUST, GFW TRUST, AND TPF TRUST III (each, a "Grantor", and
collectively, "Grantors"), and TECHNICLONE CORPORATION, a Delaware corporation
("Secured Party").
W I T N E S S E T H:
- - - - - - - - - -
A. TNCA Holding, LLC, a Delaware limited liability company ("Debtor")
is the maker of that certain Promissory Note dated December ___, 1998 in the
original principal amount of One Million Nine Hundred Twenty Five Thousand
Dollars ($1,925,000) made payable to Secured Party ("Note"). A true and correct
copy of the Note is attached hereto as Exhibit "A".
B. Grantors are all of the members of Debtor and are the owners of all
of the membership interests in Debtor ("Debtor Membership Interests").
C. Debtor is the sole member of, and the owner of all of the membership
interests in, TNCA, LLC, a Delaware limited liability company ("Subsidiary").
Grantors, therefore, have a direct beneficial interest in Subsidiary
("Subsidiary Beneficial Interests").
D. Secured Party, as tenant, has contracted with Subsidiary, as
landlord, to lease certain improved property (the "Property") pursuant to the
terms of a Lease and Agreement of Lease of even date herewith (the "Lease").
E. C. Xxxxxxxxx Xxxxx XX 1998 Trust is the designated manager of Debtor
("Manager") pursuant to the terms of the Operating Agreement of TNCA Holding,
LLC, dated August 13, 1998 (the "Operating Agreement").
F. Grantors desire to pledge and assign their respective Debtor
Membership Interests to Secured Party and grant to Secured Party a first
priority lien and security interest in and to said Debtor Membership Interests
to secure the indebtedness and obligations of Debtor to Secured Party under the
Note.
G. To evidence the pledge, assignment and grant of a security interest
in the Debtor Membership Interests to Secured Party, Grantors have agreed to
execute this Agreement and the financing statements in connection herewith.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Grantors and Secured
Party agree as follows:
157
1. COLLATERAL AND SECURITY INTEREST. Each Grantor hereby pledges and
assigns such Grantor's respective Debtor Membership Interest to Secured Party,
together with all income, profits, distributions, capital surplus, return of
capital, management rights, if any, or other tangible or intangible property
related to or derived from such Debtor Membership Interest, and grants to
Secured Party a first priority lien and security interest therein and such other
rights and remedies as may be granted to a secured party under the laws of the
State of California ("Security Interest") in and to all of such Grantor's
rights, title and interest in such Grantor's Debtor Membership Interest and all
proceeds thereof ("Collateral").
2. SECURITY INTEREST. The Security Interest is a pledge and security
interest in and to the Collateral pursuant to the provisions of Article 9 of the
California Commercial Code. The Collateral secures the payment of the Note in
accordance with its terms. Grantors shall execute any and all documents,
instruments and financing statements as deemed necessary by Secured Party,
acting reasonably, to effectuate this Agreement. Any certificates representing
the Debtor Membership Interests shall be delivered to and held by Secured Party
pursuant to this Agreement and shall be accompanied by duly executed instruments
of transfer or assignments which shall be held in escrow by Old Republic Title
Company, all in form and substance satisfactory to Secured Party.
3. IRREVOCABLE INSTRUCTIONS TO LENDER AND ESCROW AGENT. Grantors, who
hold all of the membership interests in Debtor and all of the beneficial
interests in Subsidiary, and Manager, will cause Subsidiary to irrevocably
instruct Finova Realty Capital, Inc. ("Lender") to apply all payments of basic
rent received from Secured Party under that certain lease dated as of December
___, 1998 between Subsidiary, as landlord, and Secured Party, as Tenant, in the
following manner: (a) first, to Lender's mortgage loan on the leased premises,
and (b) then to an escrow account ("Escrow Account") at Wilmington Trust
Company, a Delaware banking corporation ("Escrow Agent"), in Subsidiary's name.
A true and correct copy of such irrevocable instructions to Lender is attached
and incorporated hereto as Exhibit "B." Grantors will further cause Subsidiary
to irrevocably instruct Escrow Agent to apply all Escrow Account proceeds first
to monthly payments due Secured Party under the Note and for so long as this
Agreement is in effect Grantors shall not revoke or attempt to revoke or modify,
or permit Subsidiary to revoke or attempt to revoke or modify, such instructions
until the Note is canceled or paid in full. Any excess remaining in the account
after all monthly Note payments have been made in full may be released as
directed by Subsidiary. A true and correct copy of such irrevocable instructions
to Escrow Agent is attached and incorporated hereto as Exhibit "C." Grantors
represent that they have the authority to make such irrevocable instructions to
Escrow Agent and that no other consents are required under the Operating
Agreement to effectuate such instructions.
4. REPRESENTATIONS AND WARRANTIES. Grantors represent and warrant that
(a) the Debtor Membership Interests represent all of the Grantors' respective
right, title and interest in the Debtor; (b) Debtor is the sole member of and
the owner of all the membership interests in Subsidiary; (c) this Agreement
constitutes the valid and binding obligation of Grantors, enforceable in
accordance with its terms; (d) Grantors will receive a material direct financial
benefit as a result of Secured Party's acceptance of the Note for the obligation
evidenced therein and Grantors have received good and sufficient consideration
for the granting of the Security Interest; (e) the execution, delivery and
performance of this Agreement by Grantors does not constitute a breach of any
agreement of Grantors as members of Debtor, including without limitation, the
Operating Agreement or a breach by Debtor or Subsidiary of any agreement
concerning this transaction to which they are parties; (f) the Collateral and
Grantors' principal place of business are located at 0000 Xxxxxx xx xxx Xxxxx,
Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000; (g) Grantors are the lawful owners of
the Debtor Membership Interests free and clear of any pledge, assignment, lien
or security interest (other than those in favor of Secured Party), and Grantors
shall indemnify and defend Secured Party and Secured Party's title to the same
against the claims and demands of all persons; (h) Grantors have not signed any
financing statement, pledge or security agreement which is currently in effect
and covers any of the Collateral nor will Grantors further encumber the
Collateral or cause Subsidiary to further encumber the Collateral or the
Property in excess of 75% of appraised value as long as the Note is outstanding;
(i) Grantors will not cause Subsidiary to incur any monthly debt service and
financing reserve account payments in conjunction with the monthly amount of
acquisition note payment to exceed the monthly rent required to be paid by the
Secured Party under the Lease; and (ii) Grantors will not voluntarily file a
petition under the Federal Bankruptcy Act, or under any similar or successor
federal statute relating to bankruptcy or insolvency as long as the Note is
outstanding. Grantors covenant that Grantors will not do any of the following
without the prior written consent of the Secured Party: (w) pledge, assign,
grant or otherwise transfer or encumber the Debtor Membership Interests in any
manner whatsoever, by operation of law or otherwise; (x) cause or permit the
Debtor to issue additional membership interest in Debtor; (y) cause or permit
the Subsidiary to amend the Subsidiary's Operating Agreement in a manner that
will impair the Debtor's rights as the sole member of the Subsidiary; or (z)
cause or permit the Subisdiary to issue andditonal membership interests in the
Subsidiary.
5. DEFAULT AND REMEDIES UPON DEFAULT.
158
(a) Any one or more of the following shall be deemed an "Event of
Default" under this Agreement: (i) a default occurs under the Note; (ii)
Grantors default under this Agreement; (iii) the Debtor distributes any of its
assets by reason of sale, reorganization, liquidation or dissolution without the
written consent of Secured Party; (iv) the Debtor sells a substantial portion or
a bulk sale of its assets without the written consent of Secured Party; (v) an
execution is issued upon the Collateral or any of the assets of the Debtor; (vi)
a receiver is appointed to take charge of any of the Grantors' or the Debtor's
property; (vii) Debtor ceases to exist or becomes a party to any merger or
consolidation without the written consent of Secured Party; or (viii) any of the
representations or warranties made herein are, in any manner, false or
misleading in any material respect as and when made.
(b) Upon the occurrence of an Event of Default, Secured Party shall
be entitled to exercise all of the rights and remedies available to a secured
party under the California Commercial Code and all of the rights and remedies
available to it under the Note, including, without limitation, the right,
following legal process (i) to vote the Debtor Membership Interests and receive
any distributions of cash or other property made by the Debtor and otherwise
take any action permitted to be taken as a result of owning the Debtor
Membership Interests, (ii) to enter upon the premises of Debtor and take
possession of the Collateral and the books and records of Debtor relating to the
Collateral and the Debtor, (iii) to require Debtor to assemble and deliver the
Collateral to Secured Party and/or (iv) to sell, transfer, endorse, assign
and/or deliver the whole or, from time to time, any part of the Collateral at
public or private sale, for cash, upon credit or for other property, for
immediate or future delivery, for such prices and on such terms as Secured Party
in its sole discretion shall deem appropriate.
(c) Secured Party shall give Grantors written notice, within the
meaning of Article 9 of the California Commercial Code, of Secured Party's
intention to sell the Collateral at a public or private sale. Secured Party
shall not be obligated to sell the Collateral even if notice of the sale of the
Collateral has been given. At any sale made pursuant to this Section 4, Secured
Party may bid for or purchase, free from any right of redemption after any such
sale, stay and appraisal on the part of Grantors (to the extent permitted by
law), all said rights being hereby waived and released to the extent permitted
by law, all or any portion of the Collateral offered for sale and may make
payment on account thereof by using the obligations under the Note, or any
portion thereof, then due and payable as a credit against the purchase price,
and Secured Party may, upon compliance with the terms of the sale, hold, retain
and dispose of the Collateral without further accountability to Grantors
therefor.
(d) Upon the occurrence of an Event of Default, or in the event that
a petition is filed by or against Grantors or the Debtor under any provision of
Title 11 of the United States Code (the "Bankruptcy Code"), or in the event
there is any entry of an order for relief respecting either Grantors or the
Debtor, or in the event of the appointment of a receiver, trustee or custodian
for either Grantors or the Debtor, or in the event either Grantors or the Debtor
becomes a debtor in possession, which actions in and of themselves do not
constitute a default pursuant to the provisions of the Bankruptcy Code,
Grantor's successors in interest, or any other party succeeding to Grantor's
interest, shall not under any circumstances sell or in any way dispose of the
Collateral without the prior written consent of Secured Party which may demand
(i) the immediate return of the Collateral in the possession of Grantors or
their successors in interest or (ii) an immediate cash payment of all of the
unpaid obligations under the Note. The option to accept the return of the
Collateral and proceeds shall in no way relieve Debtor or its successors in
interest of any deficiency respecting the obligations under the Note. Grantors
agree to pay to Secured Party and be liable for all reasonable costs, expenses,
charges and attorneys' fees (if and to the extent permitted by law) incurred by
Secured Party to enforce this Agreement.
6. CUMULATIVE REMEDIES; POWER OF ATTORNEY. All of Secured Party's
rights and remedies with respect to the Collateral, whether established pursuant
to this Agreement, the Note or at law or in equity, shall be cumulative and may
be exercised singularly or concurrently. Grantors hereby authorize Secured Party
to make, constitute and appoint any officer or agent of Secured Party as
Grantor's true and lawful attorney-in-fact, with power, upon the occurrence of
an Event of Default, to (a) endorse Grantor's name on all documents, papers and
instruments necessary or desirable for Secured Party to vote the Debtor
Membership Interests or use the Collateral, (b) take any other actions with
respect to the Collateral that Secured Party deems appropriate, (c) assign,
pledge, convey or otherwise transfer title to or dispose of any of the
Collateral, and (d) execute and file appropriate UCC financing statements with
respect to the Debtor Membership Interests, and renewals of such financing
statements. This power of attorney is coupled with an interest and shall be
irrevocable unless and until the obligations under the Note have been paid in
full.
159
7. APPLICABLE LAWS. This Agreement shall be governed by the laws of the
State of California. Any provision in this Agreement prohibited, in whole or in
part, by any applicable law shall be enforced to the fullest extent permitted by
applicable law, without modifying or affecting the remaining provisions of this
Agreement; provided, however, that if the conflicting provisions of any
applicable law may be waived, they are hereby waived by Grantors to the fullest
extent permitted by applicable law. Except as otherwise provided herein,
Grantors waives (a) all statutory or other requirements for any notice of any
kind, (b) requirements as to the time, place and terms of any sale of the
Collateral, (c) requirements with respect to the enforcement of Secured Party's
rights and/or remedies hereunder and (d) all rights of redemption respecting the
Collateral or otherwise.
8. TERM OF AGREEMENT. This Agreement shall become effective upon the
date hereof and shall continue in full force and effect until all of the
obligations under the Note are fully paid, satisfied and performed, in which
event Secured Party shall, upon request of Grantors, return the certificates, if
any, evidencing the Debtor Membership Interests and execute and deliver
termination statements to Grantors for filing in each office in which a
financing statement has been filed by Secured Party with respect to the Security
Interest or as may be necessary or required to release the Security Interest,
all at the cost and expense of Grantors.
9. NOTICES. Any notices pursuant to this Agreement shall be given in
writing and delivered personally or sent by United States certified mail, return
receipt requested, with postage prepaid, and such notices shall be effective on
the date personally delivered or, if mailed, two (2) postal delivery days after
deposit in the United States mail addressed to Grantors at 1900 Avenue of the
Stars, Suite 2840, Xxx Xxxxxxx, Xxxxxxxxxx 00000, and to Secured Party at
Techniclone Corporation, 00000 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000. Each party
hereto may change such party's notice address by providing written notice to the
other in compliance with this Section 8.
10. MISCELLANEOUS. This Agreement shall be binding upon Grantors, their
respective successors and assigns, and shall inure to the benefit of Secured
Party, its successors and assigns. Any amendments to this Agreement must be in
writing and executed by authorized representatives of each party hereto. Unless
the context of this Agreement otherwise requires, references to the plural
include the singular and the singular the plural.
11. CONSENT. Each Grantor hereby consents to the grant, pledge and
assignment of the Debtor Membership Interests and the Collateral and waives any
and all rights of subrogation or contribution against Debtor under the Note
until all the obligations thereunder are paid in full.
12. ATTORNEYS' FEES. In the event an action shall be brought for the
enforcement of any right set forth herein, the non-prevailing party shall be
liable for all of the reasonable expenses incurred in connection therewith,
including without limitation, reasonable attorneys' fees.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
160
IN WITNESS WHEREOF, Grantors and Secured Party have caused this
Agreement to be executed as of the date set forth above.
GRANTORS:
/S/ C. XXXXXXXXX XXXXX XX
-------------------------------------
C. Xxxxxxxxx Xxxxx XX
/S/ XXXX X. XXXXX
-------------------------------------
Xxxx X. Xxxxx
/S/ XXXXXXXXX X. XXXXX
-------------------------------------
Xxxxxxxxx X. Xxxxx
/S/ C. XXXXXXXXX XXXXX XX
-------------------------------------
C. Xxxxxxxxx Xxxxx XX, Trustee
GFW Trust
/S/ C. XXXXXXXXX XXXXX XX
-------------------------------------
C. Xxxxxxxxx Xxxxx XX, Trustee
Xxxx X. Xxxxx 1998 Trust
/S/ XXXXXX X. X'XXXXX
-------------------------------------
Xxxxxx X. X'Xxxxx
Trustee of the TPF Trust III
SECURED PARTY:
TECHNICLONE CORPORATION,
a Delaware corporation
By: /S/ XXXXXX X. XXXXX
----------------------------------
161
EXHIBIT "A"
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)
162
EXHIBIT "B"
LENDER PAYMENT DIRECTION LETTER
-------------------------------
TNCA, LLC,
a Delaware limited liability company
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
C. XXXXXXXXX XXXXX XX
PRESIDENT
Via Facsimile and UPS Next Day Air
December 11, 1998
Finova Realty Capital, Inc.
00000 XxxXxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
RE: 14272 AND 00000 XXXXXXXX XXXXXX, XXXXXX, XX
Ladies and Gentlemen:
Finova Realty Capital, Inc. is hereby irrevocably instructed to
apply all monies received from or on behalf of Techniclone Corporation, a
Delaware corporation ("Techniclone"), in respect of Basic Rent due under that
certain Lease and Agreement of Lease dated as of December ___ , 1998 between
Techniclone, as Tenant, and TNCA, LLC, a Delaware limited liability company
("TNCA"), as Landlord, in the following and in no other manner:
(1) First, to the monthly loan amount due from TNCA under the
Promissory Note, the Real Estate Tax Escrow Fund, the Tenant Improvement and
Leasing Commissions Reserve, and the Replacement Reserve dated December ___ ,
1998 by and between TNCA, as Borrower, and Finova Realty Capital, Inc., as
Lender, executed in connection with TNCA's acquisition of the above referenced
property.
(2) Next, to the escrow account established in TNCA's name at
Wilmington Trust Company, a Delaware banking corporation, 0000 X. Xxxxxx Xxxxxx,
Xxxxxxxxxx, XX 00000 (TNCA Escrow Account, Account Number 46911-0).
163
Finova Realty Capital, Inc.
December ______, 1998
Page 2
Sincerely,
C. Xxxxxxxxx Xxxxx XX
President, TNCA, Inc.
Manager
ACCEPTED AND AGREED:
FINOVA REALTY CAPITAL, INC.
By:__________________________
Name/Title
164
EXHIBIT "C"
WILMINGTON TRUST ESCROW AGREEMENT
---------------------------------
THIS AGREEMENT (the "Escrow Agreement"), is made as of this ___day of
December 1998, by and among, TNCA, LLC a Delaware limited liability company as
"Purchaser," TECHNICLONE CORPORATION, a Delaware corporation, as "Seller", and
WILMINGTON TRUST COMPANY, a Delaware banking corporation, as "Escrow Agent".
WHEREAS, Purchaser is acquiring certain real property from Seller
located at 14272 and 00000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxx (the "Property");
and
WHEREAS, Purchaser has delivered to Seller a promissory note ("Note")
issued by TNCA Holding, LLC, a Delaware limited liability company, in the amount
of One Million Nine Hundred Twenty Five Thousand Dollars ($1,925,000) in
connection with its acquisition of the Property, a true and correct copy of
which is attached hereto as Exhibit "1."
WHEREAS, the monthly amount due Seller on the Note for the period
January 1999 through December 2001 is Fourteen Thousand Nine Hundred Twenty Four
and 50/100 Dollars ($14,924.50).
WHEREAS, the monthly amount due Seller on the Note for the period
January, 2002 until paid in full is Fifteen Thousand Four Hundred Forty and
83/100 Dollars ($15,440.83).
NOW, THEREFORE, in consideration of the premises, and further
consideration of the covenants set forth hereafter, it is hereby agreed mutually
as follows:
I. DESIGNATION AS ESCROW AGENT.
Subject to the terms and conditions hereof, Purchaser and Seller hereby
appoint Wilmington Trust Company as Escrow Agent and Wilmington Trust Company
hereby accepts such appointment.
II. DEPOSIT OF ESCROW FUNDS.
(a) Upon execution of this Escrow Agreement, Purchaser shall deposit
the sum of One Hundred Dollars ($100.00) into an account (the "Escrow Account")
established with Escrow Agent. In addition to such initial deposit, Escrow Agent
shall receive a monthly amount from Finova Realty Capital, Inc., a Delaware
corporation ("FCR") for immediate deposit into the Escrow Account. At all times
from and effect the date of this Agreement, Purchaser shall be the sole owner of
the Escrow Account.
(b) Escrow Agent will hold the initial deposit and all subsequent
deposits from FRC in the Escrow Account, together with all investments thereof
and all interest accumulated thereon and proceeds therefrom, in escrow upon the
terms and conditions set forth in this Escrow Agreement and shall not disburse
funds from the Escrow Account except as provided herein.
165
(c) Unless otherwise directed by Purchaser, Escrow Agent shall invest
the Escrow Account solely in securities issued or guaranteed by the United
States or an agency thereof, or in securities of mutual funds the assets of
which are invested in securities issued or guaranteed by the United States or an
agency thereof, or in repurchase agreements involving securities issued or
guaranteed by the United States or an agency thereof, or in certificates of
deposit issued by banks.
III. DISBURSEMENT OF ESCROW ACCOUNT. Escrow Agent will make the following
disbursements to Purchaser and Seller on the first business day of each month or
as soon thereafter as possible (the "Disbursement Date").
(a) To Seller, provided Escrow Agent holds, on the date which is five
(5) business days preceding the Disbursement Date, funds sufficient to fully
satisfy such disbursement, the sum of Fourteen Thousand Nine Hundred Twenty Four
and 50/100 Dollars ($14,924.50) for the period January 1999 through December
2001, and the sum of Fifteen Thousand Four Hundred Forty and 83/100 Dollars
($15,440.83) for the period January 2002 until the Note is fully paid.
(b) To Purchaser, the amount remaining in the Escrow Account after the
payment to Seller as set forth above; provided, however, that Escrow Agent may
retain a sufficient amount in the Escrow Account in order to keep the account
open.
(c) Upon written instruction of Purchaser, Escrow Agent shall commence
making additional monthly payments to Seller of Four Thousand Five Hundred
Seventy Eight and no/100 Dollars ($4,578) (the "Additional Monthly Payment")
until such time as Escrow Agent is directed by Purchaser in writing to cease
making the Additional Monthly Payment.
IV. AUTHORITY OF ESCROW AGENT AND LIMITATION OF LIABILITY.
(a) In acting hereunder, Escrow Agent shall have only such duties as
are specified herein and no implied duties shall be read into this Agreement,
and Escrow Agent shall not be liable for any act done or omitted to be done, by
it in the absence of its gross negligence or willful misconduct.
(b) Escrow Agent may act in reliance upon any writing or instrument or
signature which it, in good faith, believes to be genuine, and may assume the
validity and accuracy of any statement or assertion contained in such a writing
or instrument and may assume that any person purporting to give any writing,
notice, advice or instruction in connection with the provisions hereof has been
duly authorized so to do.
(c) Escrow Agent shall be entitled to consult with legal counsel in the
event that a question or dispute arises with regard to the construction of any
of the provisions hereof, and shall incur no liability and shall be fully
protected in acting in accordance with the advice or opinion of such counsel.
(d) Escrow Agent shall not be required to use its own funds in the
performance of any of its obligations or duties or the exercise of any of its
rights or powers, and shall not be required to take any action which, in Escrow
Agent's sole and absolute judgment, could involve it in expense or liability
unless furnished with security and indemnity which it deems, in its sole and
absolute discretion, to be satisfactory.
(e) Seller shall pay to Escrow Agent compensation for its services
hereunder to be determined from time to time by the application of the current
rates than charged by Escrow Agent for accounts of similar size and character,
with a minimum rate of Twenty Five Hundred Dollars ($2,500.00) per annum. Seller
shall also pay to Escrow Agent an initial set up fee of Three Thousand Dollars
($3,000.00). In the event Escrow Agent renders any extraordinary services in
connection with the escrow account at the written request of both parties,
Escrow Agent shall be entitled to additional compensation therefor. Escrow Agent
shall have a first lien against the Escrow Account to secure the obligations or
Purchaser and Seller hereunder. The terms of this paragraph shall survive
termination of this Agreement.
166
(f) Purchaser and Seller hereby agree, jointly and severally, to
indemnify Escrow Agent and hold it harmless from any and against all
liabilities, loses, actions, suits or proceedings at law or in equity, and any
other expenses, fees or charges of any character or nature, including, without
limitation, attorney's fees and expenses, which Escrow Agent may incur or with
which it may be threatened by reason of its acting as Escrow Agent under this
Agreement or arising out of the existence of the Escrow Account, except to the
extent the same shall be caused by Escrow Agent's gross negligence or willful
misconduct. Escrow Agent shall have a first lien against the Escrow Account to
secure the obligations of the parties hereunder. The terms of this paragraph
shall survive termination of this Agreement.
(g) In the event Escrow Agent receives conflicting instructions
hereunder, Escrow Agent shall be fully protected in refraining from acting until
such conflict is resolved to the satisfaction of Escrow Agent. In addition,
Escrow Agent shall have the right to institute a xxxx of interpleader in any
court of competent jurisdiction to determine the rights of the parties, and the
parties shall pay all costs, expenses and disbursements in connection therewith,
including attorney's fees. For purposes of this Escrow Agreement, the parties
hereto agree to submit to the jurisdiction of the courts of the State of
Delaware.
(h) Escrow Agent may resign as Escrow Agent, and, upon its resignation,
shall thereupon be discharged from any and shall further duties and obligations
under this Agreement by giving notice in writing of such resignation to
Purchaser and Seller, which notice shall specify a date upon which such
resignation shall take effect. Upon the resignation of Escrow Agent, Purchaser
and Seller shall, within sixty (60) business days after receiving the foregoing
notice from Escrow Agent, designate a substitute escrow agent (the "Substitute
Escrow Agent"), which Substitute Escrow Agent shall, upon its designation and
notice of such designation to Escrow Agent, succeed to all of the rights, duties
and obligations of Escrow Agent hereunder.
IV. NOTICES.
Except as otherwise provided herein, any notices, instruction or
instrument to be delivered hereunder shall be in writing and shall be sent by
certified or registered mail, postage prepaid, return receipt requested, or sent
by facsimile, nationally-recognized overnight courier addressed to the parties
or delivered by hand to the addresses forth on the signature page hereof or at
such other address specified in writing by the addressee. Notices shall be
deemed communicated upon the earlier of receipt or seventy-two (72) hours from
the time of mailing as provided in this Article IV, and on the business day or
first business day following transmission if given by facsimile.
V. AMENDMENT.
This Escrow Agreement may not be amended, modified, supplemented or
otherwise altered except by an instrument in writing signed by the parties
hereto.
VI. TERMINATION.
This Agreement will terminate upon the disbursement of all funds in the
Escrow Account, as provided above, by the Escrow Agent.
167
VII. GOVERNING LAW.
This is a Delaware contract and shall be governed by Delaware law in
all respects.
VIII. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original, and such counterparts
together shall constitute and be one and the same instrument.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
168
IN WITNESS WHEREOF, the parties hereto have caused their names to be
hereto subscribed by their respective authorized representatives as of the day
and year first above written.
TNCA, LLC WILMINGTON TRUST COMPANY,
as Purchaser Escrow Agent
By: __________________________ By: __________________________
C. Xxxxxxxxx Xxxxx XX, President Title:
TNCA, INC./ Manager
Address: Address:
1900 Avenue of the Stars, Suite 0000 Xxxxxx Xxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000 0000 Xxxxx Xxxxxx Xxxxxx
Fax No.: (000) 000-0000 Xxxxxxxxxx, Xxxxxxxx 00000
Tel No.: (000) 000-0000 Fax No.: (302) 651 - 1576
Attention: C. Xxxxxxxxx Xxxxx XX Tel No.: (302) 651 - 1834
Attention: W. Xxxxx Xxxxxxxxxx
TECHNICLONE CORPORATION
as Seller
By:___________________________
Xxxxxx X. Xxxxx, CFO
Address:
00000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax No.: (000) 000-0000
Tel No.: (000) 000-0000
169
