EXHIBIT 10.10.3
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OPTION AGREEMENT
THIS AGREEMENT is made this ___26__ day of September, 2003, by and
between Xxxxxxx Real Estate Investments, L.L.C., hereinafter "Seller," and
Extended Systems of Idaho, Incorporated, an Idaho corporation, hereinafter
"Buyer."
WITNESSETH
WHEREAS, Seller is the owner of the real property and improvements
commonly known as 0000 X. Xxxxxx, Xxxxx, XX 00000, and more particularly
described as:
See Attached Exhibit "A"
hereinafter referred to as "the Premises."
WHEREAS, Buyer wishes to secure the right to purchase the Premises at a
future date.
WHEREAS, Seller is willing to grant Buyer the right to buy the Premises
for a fixed price for a limited period of time under specific terms and
conditions;
WHEREAS, Seller and Buyer have entered into a separate Lease Agreement
for the Premises;
NOW THEREFORE, in consideration of the mutual benefits to both parties
and the money to be paid by Buyer to Seller, the parties agree as follows:
1. Grant of Option. Seller hereby grants to Buyer the sole and
exclusive right to purchase the Premises in same condition as the Premises
existed on the date of this Agreement, less normal wear upon such specific terms
and conditions as set forth herein, which right shall be irrevocable except as
otherwise set forth herein, and;
2. Option Price. The purchase price for this Option is the sum of
$1,000.00 to be paid at the execution of this Agreement.
3. Duration of Option. This Option shall be valid and binding upon
Seller, and shall further bind the Premises, from September 26, 2003, until
September 26, 2013, at 6:01 p.m. Mountain Time, (hereinafter the "Term"), at
which time it shall automatically terminate and shall have no further force and
effect, unless Buyer and Seller have agreed, in writing, to extend the term of
the Option, or if it is terminated prior to that date under the terms of this
Agreement.
OPTION AGREEMENT - Page 1
4. Termination of Option: This Option shall terminate and be of no
further force and effect between the parties upon the occurrence of any of the
following:
(a) Expiration of the Term without a written agreement signed
by both parties setting forth a new expiration date;
(b) Upon receipt of written notice from Buyer to Seller
indicating Buyer's intent to immediately terminate the Option;
(c) Breach by Buyer of the Lease Agreement which remains
uncured for sixty (60) days from written notice of such
default from Seller.
5. Disposition of Payments Upon Termination. Any sums paid as part of
this Option shall be non-refundable and be retained by the Seller as agreed
compensation to the Seller for keeping the Premises available exclusively to
Buyer.
6. Method of Exercise. This Option may be exercised by the Buyer as
follows:
(a) At least 60 days prior to the expiration of this Option,
Buyer may send written notice of its intent to exercise this
Option. Buyer shall send written notice of its intent to
exercise by certified mail, postage prepaid, to Seller at the
following address:
Xxxxxxx Real Estate Investments, L.L.C.
c/x Xxxxxxx Loan Services, Inc.
X.X. Xxx 000 Xxxxxxxx, XX 00000
(b) Within 30 days of the receipt of the written notice
indicating Buyer's intent to exercise the Option, the parties
shall enter into a Purchase and Sale Agreement upon the
following terms:
(1) The Price shall be Five Million One Hundred
Thousand Dollars ($5,100,000);
(2) Closing within 30 days of execution of Purchase
and Sale Agreement;
(3) Cash to Seller at closing; and
OPTION AGREEMENT - Page 2
(4) The Option Price paid hereunder, shall be
credited toward the Purchase Price;
(5) Non-refundable Xxxxxxx money, which shall be
applicable to the Purchase Price, according to the
following schedule:
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DATE OF SIGNING OF PURCHASE AMOUNT OF XXXXXXX MONEY
AGREEMENT
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On or before June 26, 2013 Option Price paid herein
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After June 26, 2013 $20,000.00
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(6) All other necessary terms and conditions as the
parties shall agree.
If the purchase by Buyer of the Premises from Seller fails to
close for any reason whatsoever, Buyer's Option shall remain valid and
exercisable up to 90 days prior to the expiration of the remaining
Term.
7. Closing. If Buyer duly exercises the Purchase Option, the parties
shall proceed to closing (hereinafter "Closing"). All closing costs shall be
paid by the parties according to the terms of this Agreement set forth below.
At Closing, the closing agent shall undertake the following duties:
(a) Cause all documents and instruments contemplated by this
Agreement, or otherwise required by law, or as required by joint
instruction letters from the parties, or those reasonably required
by the closing agent, to be duly executed and where necessary for
recording, to be duly acknowledged. Seller shall deliver to the
closing agent a warranty deed from Seller to Buyer in a mutually
acceptable form.
(b) Receive delivery of the total Purchase Price funds from Buyer,
including Buyer's portion of Closing costs, and to disburse to
Seller the total net Purchase Price closing proceeds from the
trust account of the closing agent, after deducting Seller's
portion of Closing costs.
(c) Cause the warranty deed to be duly recorded, and to deliver
the recorded warranty deed to Buyer.
(d) Prepare Closing Statements for delivery to each of the parties
to account for the closing agent's receipt and disbursement of
Closing monies.
OPTION AGREEMENT - Page 3
(e) Undertake all other duties as jointly instructed by the
parties.
(f) Issue Buyer a final policy of title insurance.
8. Title and Title Insurance. At Closing, Seller shall execute a
warranty deed conveying good and marketable title, free and clear of all liens,
claims, and encumbrances, to the Premises. In no event shall Seller allow any
lien or liens to encumber the Premises for more than a combined amount greater
than the Option Price set forth herein, which amount shall be inclusive of any
principal, interest, penalties, costs and attorney fees.
At Closing, the cost of the final Title Policy shall be the sole and
separate cost of Seller. Buyer may elect to acquire an ALTA Extended Coverage
Title Policy, but the additional cost of extended coverage shall be Buyer's
separate cost. Buyer and Seller shall split equally the closing fee associated
with the closing. All other closing costs, however, shall be the sole and
separate responsibility of the Buyer. The parties agree that neither party shall
be obligated to pay any brokerage fees associated with this transaction.
9. Recordation of Notice of Option and Quitclaim Deed.
(a) Upon execution of this Agreement, Seller shall also
prepare and cause to be recorded at the Office of the Ada
County Recorder a Notice of Option setting forth that an
option has been granted. A copy of the document to be executed
by Seller is attached as Exhibit "B"
(b) Buyer shall also execute a Quitclaim Deed in the form set
forth in Exhibit "C", which document shall be held in escrow
by a third party, at Buyer's election, which document shall
only be recorded upon the following conditions:
(1) Buyer has provided to Seller a written notice of
its intent to terminate this Option, or
(2) This Option has terminated under any of the
provisions set forth in paragraph 4 (a) or 4 (c).
10. Miscellaneous Terms.
(a) Merger. This Agreement contains all of the terms and
conditions affecting this Option, and all other discussions,
understandings, promises, or representations are deemed merged
in this Option and are of no further force and effect.
OPTION AGREEMENT - Page 4
(b) Headings. The article and paragraph headings of this
Agreement are for convenience only and in no way limit or
enlarge the scope or meaning of the language hereof.
(c) Governing Law. This Agreement and said other instruments
shall, in all respects, be governed, construed, applied, and
enforced in accordance with the law of the State of Idaho.
(d) Survival. The provisions of this Agreement that
contemplate performance after the Closing and the obligations
of the parties not fully performed at the Closing shall
survive the Closing and shall not be deemed to be merged into
or waived by the instruments of Closing.
(e) Entirety and Amendments. This Agreement embodies the
entire agreement between the parties and supercedes all prior
agreements and understandings relating to the Property. This
Agreement may be amended or supplemented only by an instrument
in writing executed by the party against whom enforcement is
sought.
(f) Time. Time is of the essence in the performance of this
Agreement.
(g) Default. In the event of a default or breach of this
Agreement by either party, the party claiming the default
shall be entitled to pursue any remedy available at law or in
equity for a breach of contract suit, provided that the party
claiming the default shall first give the other party written
notice describing the claimed default and a period of not less
than thirty (30) days to cure.
(h) Attorneys' Fees. Should either party employ attorneys to
enforce a claim of default, the party losing in any final
judgment agrees to pay the prevailing party all reasonable
costs, charges and expenses, including reasonable attorneys'
fees, expended or incurred in connection therewith.
(i) Notices. All notices required or permitted hereunder shall
be in writing and shall be served on the parties at the
following addresses:
OPTION AGREEMENT - Page 5
Seller Notice Address: Buyer Notice Address:
Xxxxxxx Real Estate Investments, L.L.C. Extended Systems of Idaho, Incorporated
c/o Hopkins Financial Services X.X. Xxx 000 0000 Xxxxx Xxxxxx Xxx.
Xxxxxxxx, XX 00000 Xxxxx, XX 00000
ATTN: Xxxxx X. Xxxx, CFO
With copies to:
Extended Systems of Idaho, Incorporated
0000 Xxxxx Xxxxxx Xxx.
Xxxxx, XX 00000
Attn: General Counsel
A party's address may be changed by written notice to the other
party; provided, however, that no notice of change of address
shall be effective until actual receipt of such notice. Copies of
notices are for informational purposes only, and a failure to give
or receive copies of any notice shall not be deemed a failure to
give notice. Notices given by counsel to the Buyer shall be deemed
given by Buyer and notices given by counsel to the Seller shall be
deemed given by Seller.
(j) Calculation of Time Periods. Unless otherwise specified, in
computing any period of time described herein, the day of the act
or event after which the designated period of time begins to run
is not to be included and the last day of the period so computed
is to be included unless such last day is a Saturday, Sunday or
legal holiday, in which event the period shall run until the end
of the next day which neither a Saturday, Sunday or legal holiday.
The last day of any period of time described herein shall be
deemed to end at 6:00 p.m. Mountain Standard Time.
(k) Further Assurances. In addition to the acts and deeds recited
herein and contemplated to be performed, executed and/or delivered
by Seller to Buyer at Closing, Seller agrees to perform, execute
and deliver, but without any obligation to incur any additional
liability or expense, on or after the Closing any further
deliveries and assurances as may be reasonably necessary to
consummate the transactions contemplated hereby or to further
perfect the conveyance, transfer and assignment of the Property to
Buyer.
(l) Assignment. This Option and all rights hereunder shall be
freely assignable by Buyer; and if assigned by Buyer, any and all
acts performable by Buyer
OPTION AGREEMENT - Page 6
hereunder may be performed by its assignee, whether such
assignment is made before or after the exercise of this Option.
(m) Partial or Total Destruction. In the event of a Partial or
Total Destruction of the Premises as set forth in the Commercial
Lease Agreement between the parties, if Buyer elects in its sole
discretion to exercise this Option to purchase the Premises,
Seller shall assign and transfer any and all insurance proceeds or
other monies associated with such Partial or Total Destruction of
the Premises.
Dated the day above first written.
SELLER BUYER
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Xxxxxxx Real Estate Investments, L.L.C. Extended Systems of Idaho,
Incorporated
/s/Xxxxx Xxxxxxx /s/ Xxxxx X. Xxxx
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By: Xxxxx Xxxxxxx By: Xxxxx X. Xxxx
------------------- -------------------
Its: Managing Member Its: CFO
STATE OF IDAHO )
) ss.
County of Ada )
On this 26___ day of September, 2003, before me, the undersigned, a
Notary Public in and for said State, personally appeared Xxxxx Xxxxxxx, Managing
Member of the Xxxxxxx Real Estate Investments, L.L.C., known to me to be the
person who executed the within and foregoing instrument for and on behalf of the
Xxxxxxx Real Estate Investments, L.L.C., and acknowledged to me that he executed
the same.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my official
seal the day and year first above written.
/s/ Xxxxx X. Xxxxx
---------------------------
Notary Public for Idaho
Residing at Boise, ID
My comm. exp.:5/8/04
OPTION AGREEMENT - Page 7
STATE OF IDAHO )
) ss.
County of Ada )
On this 26_ day of September, 2003, before me, the undersigned, a
Notary Public in and for said State, personally appeared Xxxxx X. Rosa__, the
CFO________________ of Extended Systems of Idaho, Incorporated, known to me to
be the person who executed the within and foregoing instrument for and on behalf
of Extended Systems of Idaho, Incorporated, and acknowledged to me that he
executed the same.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my official
seal the day and year first above written.
/s/Xxxxx X. Xxxxx
--------------------------
Notary Public for Idaho
Residing at Boise, ID
My comm. exp.:_5/8/04
OPTION AGREEMENT - Page 8
EXHIBIT A
PREMISES DESCRIPTION
A portion of Xxx 0, Xxxxx 0 xx Xxxxxxxx Xxxxxx Xx. 0 Subdivision, as
recorded in book 57 of plats at page 5342 of Ada County records, and located in
the Northeast1/4of Section 28, T. 4 N., R. 1 E., B.M., and being more
particularly described as follows:
Commencing at the Southeast corner of the Northeast 1/4 of said Section
28, thence N 89(degree)43'27"W along the southerly boundary of the Northeast 1/4
of Section 28 for a distance of 600.22 feet (formerly described as 600.00 feet)
to a 5/8" diameter iron pin;
thence N 00(degree)13'00"E for a distance of 28.00 feet to a 1/2"
diameter iron pin marking the Southeast corner of Xxx 0, Xxxxx 0, xx Xxxxxxxx
Xxxxxx Xx. 0 Subdivision;
thence N 89(degree)43'27"W along the South boundary of said Lot 6 for a
distance of 1405.16 feet to the southwest corner of said Lot 6;
thence N 00(degree)13'00"E for a distance of 747.00 feet to the
Northwest corner of said Lot 6; thence S 89(degree)43'27"E along the
North boundary of said Lot 6 for a distance of 640.25 feet, to the REAL
POINT
OF BEGINNING;
thence leaving said North boundary, S 00(degree)17'11"W for a distance
of 440.99 feet;
thence S 89(degree)42'49" E for a distance of 723.79 feet to a point of
intersection with a non-tangent cul-de-sac curve being the westerly right-of-way
line of Xxxxxx Avenue;
thence northerly along the arc of said curve to the right for a
distance of 17.37 feet, said curve having a radius of 60.00 feet, a central
angle of 16(degree)35'13", subtended by a chord which bears N 66(degree)39'57"E
for a distance of 17.31 feet to a point of reverse curve;
thence northerly along the arc of said curve to the left for a distance
of 45.66 feet, said curve having a radius of 35.00 feet, a central angle of
74(degree)44'33", subtended by a chord which bears N 37(degree)35'16"E for a
distance of 42.49 feet to a point of tangent;
thence N 00(degree)13'00"E along the East boundary of said Lot 6 for a
distance of 400.40 feet to the northeast corner of said Lot 6;
thence N 89(degree)43'27"W along the North boundary line of said Lot 6
for a distance of 764.91 feet to the REAL POINT OF BEGINNING, containing 7.74
acres of land, more or less.
OPTION AGREEMENT - Page 9
EXHIBIT B
NOTICE OF OPTION
This Notice is given this __26__ day of September, 2003, by Xxxxxxx
Real Estate Investments, L.L.C., an Idaho limited liability company, whose
address is X.X. Xxx 000, Xxxxxxxx, Xxxxx, 00000, that: (1) Xxxxxxx Real Estate
Investments, L.L.C. is the owner of a certain parcel of real property located in
Ada County, Idaho, more particularly described on Exhibit "A" attached hereto;
and (2) Xxxxxxx Real Estate Investments, L.L.C., has entered into an Option
Agreement with Extended Systems of Idaho, Incorporated, an Idaho corporation,
whose address is 0000 X. Xxxxxx Xxx, Xxxxx, XX 00000, whereby Xxxxxxx Real
Estate Investments, L.L.C. has granted an option to sell the above described
real property to Extended Systems of Idaho, Incorporated, under terms and
conditions that are fully set forth in the Option Agreement. A material
provision of the Option Agreement is the restriction upon Seller that the Seller
is not allowed to allow any lien or liens to encumber the Premises for more than
a combined amount greater than the Option Price set forth therein, which amount
shall be inclusive of any principal, interest, penalties, costs and attorney
fees.
XXXXXXX REAL ESTATE INVESTMENTS, L.L.C.
/S/ XXXXX XXXXXXX
--------------------------
BY: XXXXX XXXXXXX
ITS: MANAGING MEMBER
STATE OF IDAHO )
) ss.
County of Ada )
On this __26_ day of August, 2003, before me, the undersigned, a Notary
Public in and for said State, personally appeared Xxxxx
OPTION AGREEMENT - Page 10
Xxxxxxx, Managing Member of the Xxxxxxx Real Estate Investments, L.L.C., known
to me to be the person who executed the within and foregoing instrument for and
on behalf of the Xxxxxxx Real Estate Investments, L.L.C., and acknowledged to me
that he executed the same.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my official
seal the day and year first above written.
/s/ Xxxxx X. Xxxxx
----------------------------
Notary Public for Idaho
Residing at _Boise, ID
My comm. exp.:_5/8/04
OPTION AGREEMENT - Page 11
EXHIBIT C
QUITCLAIM DEED
FOR VALUE RECEIVED Extended Systems of Idaho, Incorporated, and Idaho
corporation, does hereby convey, release, remise and forever quit claim unto
Xxxxxxx Real Estate Investments, L.L.C., an Idaho limited liability company,
whose current address is X.X. Xxx 000, Xxxxxxxx, Xxxxx, 00000, the following
described premises, to-wit:
See Attached Exhibit "A"
TOGETHER with all appurtenances. DATED this _26__ day of September,
2003.
LESSEE
------
Extended Systems of Idaho, Incorporated
/s/ Xxxxx X. Xxxx
----------------------
By: Xxxxx X. Xxxx
Its: CFO
STATE OF IDAHO )
) ss.
County of Ada )
On this __26_ day of September, 2003, before me, the undersigned, a
Notary Public in and for said State, personally appeared Xxxxx X. Rosa______,
the _CFO________________ of Extended Systems of Idaho, Incorporated, known to me
to be the person who executed the within and foregoing instrument for and on
behalf of Extended Systems of Idaho, Incorporated, and acknowledged to me that
he executed the same.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my official
seal the day and year first above written.
/s/ Xxxxx X. Xxxxx
Notary Public for Idaho
Residing at _Boise, ID
My comm. exp.: 5/8/04
OPTION AGREEMENT - Page 12
