1
Exhibit 99.1
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement"), is made and entered into as
of the Effective Date of this Agreement (as hereinafter defined), by and between
ECC INTERNATIONAL CORP., a Delaware corporation (the "Seller"), and PANTHER OAK
RIDGE, INC., a Florida corporation, and, OAK RIDGE INVESTMENT ASSOCIATES, LLC, a
Florida limited liability company, as tenants-in-common (collectively, the
"Purchaser").
W I T N E S S E T H:
WHEREAS, the Seller is the fee simple owner of the Real Property (as hereinafter
defined); and
WHEREAS, the Seller desires to sell to the Purchaser, and the Purchaser desires
to purchase from the Seller, the Property (as hereinafter defined) upon the
terms and conditions hereinbelow set forth.
NOW, THEREFORE, for and in consideration of the premises, the payment of Ten and
No/100 Dollars ($10.00) in hand paid by the Purchaser to the Seller, the mutual
covenants and agreements herein set forth, and other good and valuable
consideration, the receipt, adequacy and sufficiency of which are hereby
expressly acknowledged by the parties hereto, the parties hereto do hereby
covenant and agree as follows:
ARTICLE I. AGREEMENT TO BUY AND SELL
The Seller agrees to sell to the Purchaser, and the Purchaser agrees to purchase
from the Seller, the following described properties (collectively the
"Property") in the manner and upon the terms and conditions hereinbelow set
forth in this Agreement:
(a) That certain tract or parcel of real estate located in Orange County,
Florida, described on EXHIBIT "A" attached hereto and made a part
hereof, consisting of approximately 27.13 acres (the "Land"), together
with (i) all rights, privileges, tenements, hereditaments and
appurtenances relating thereto or associated therewith, (ii) the
building structures, fixtures and other improvements located thereon
totaling approximately Four Hundred Forty Five Thousand Six Hundred
Eighty Nine (445,689) rentable square feet, together with all
driveways, parking areas, and related improvements, including all
mechanical, electrical, heating, ventilating, air conditioning,
plumbing, and elevator systems and equipment (but excluding fixtures
and equipment owned by tenants located on or within the Real Property
(as hereinafter defined), (iii) all right, title and interest of the
Seller in any street, road, alley or avenue adjoining such property to
the center line thereof (including the bed thereof), (iv) all of the
Seller's right, title and interest in any strip, hiatus, xxxx, gap or
boundary adjustment area adjoining or affecting such property and (v)
all of the Seller's right, title and interest in all easements,
licenses (excluding occupancy licenses), permits and development rights
related to the Seller's ownership of the Property (collectively the
"Real Property");
1
2
(b) All equipment and other articles of personal property used and useful
in the operation of the Real Property by Seller, and all manufacturer's
and other warranties and guaranties relating thereto (collectively the
"Personal Property"); provided, however, the Personal Property shall
specifically not include the items of tangible personal property
described on EXHIBIT "B-2" attached hereto and incorporated herein by
reference (collectively the "Excluded Property"). Seller and Purchaser
hereby agree to perform a detailed and complete inventory (the
"Inventory") of the Personal Property prior to the expiration of the
Inspection Period. Upon completion, the Inventory shall be appended to
this Agreement as EXHIBIT "B-1" hereof; and
(c) The following leases and occupancy agreements (the "Leases") between
Seller and, respectively, Water Garden World, Inc. and GRC
International, Inc. (a "Tenant" or, collectively, the "Tenants"):
1. That certain Lease Agreement by and between the Seller and
Water Garden World, Inc., dated October 19, 1999, the balance
of any security deposit delivered to the Seller pursuant
thereto and any advance rent, if any, paid to or received by
the Seller.
2. That certain Limited License Agreement by and between the
Seller and GRC International, Inc., dated January 11, 2001
(the "GRC Agreement"), the balance of any security deposit
delivered to the Seller pursuant thereto and any advance rent,
if any, paid to or received by the Seller.
(d) The service contracts and agreements pertaining to the ownership and/or
operation of the Real Property, which service contracts and agreements
are set forth on EXHIBIT "F" attached hereto and made a part hereof.
ARTICLE II. PURCHASE PRICE
The purchase price to be paid by the Purchaser to the Seller for the Property
(hereinafter referred to as the "Purchase Price") shall be FOURTEEN MILLION AND
NO/100 DOLLARS ($14,000,000.00). The Purchase Price shall be paid by the
Purchaser to the Seller at the Closing (as hereinafter defined) in cash, by
locally drawn certified or cashier's check or by wire transfer of funds, less
the amount of the Xxxxxxx Money (as hereinafter defined) paid by the Purchaser
(if applicable) and subject to appropriate credits, adjustments and prorations
as hereinbelow provided.
ARTICLE III. XXXXXXX MONEY
Within three (3) business days after the Effective Date, the Purchaser shall
deposit in trust with XXXXXXXXX TRAURIG, P.A. (the "Escrow Agent"), by check
subject to clearance, an xxxxxxx money deposit in the amount of ONE HUNDRED
TWENTY-FIVE THOUSAND AND NO/100 DOLLARS ($125,000.00) (said amount, together
with any additional xxxxxxx money, deposit, or extension fee, deposited by the
Purchaser with the Escrow Agent or delivered by the Purchaser to the Seller, and
all interest, if any, accruing thereon, shall hereinafter be collectively
referred to as the "Xxxxxxx Money"). In addition, if the Purchaser has not
terminated this Agreement pursuant
2
3
to the terms of Article V below, then prior to the expiration of the Inspection
Period (as hereinafter defined), the Purchaser shall deliver additional Xxxxxxx
Money to the Escrow Agent in the amount of ONE HUNDRED TWENTY-FIVE THOUSAND AND
NO/100 DOLLARS ($125,000.00), thereupon causing the total Xxxxxxx Money to be
TWO HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($250,000.00), together with
accrued interest earned thereon. All Xxxxxxx Money shall be invested in a
national banking association money market certificate or interest bearing
account and held and disbursed in accordance with the terms and provisions of
this Agreement. Except as otherwise provided herein, the Xxxxxxx Money shall be
paid over to the Seller and credited against the Purchase Price at the
consummation of the sale of the Property (hereinafter referred to as the
"Closing") in accordance with the terms and provisions of this Agreement.
Notwithstanding the foregoing, the Seller, Purchaser and Escrow Agent entered
into that certain Escrow Agreement dated February 21, 2001, pursuant to which
Purchaser and deposited with Escrow Agent the sum of ONE HUNDRED TWENTY-FIVE
THOUSAND AND NO/100 DOLLARS ($125,000.00), as the "Xxxxxxx Money Deposit"
thereunder. Pursuant to the terms of the Escrow Agreement, contemporaneously
with the execution of this Agreement by Purchaser, Seller and Escrow Agent, the
"Xxxxxxx Money Deposit" held by Escrow Agent under the terms of the Escrow
Agreement shall automatically become the first installment of the Xxxxxxx Money,
as required hereinabove. Moreover, upon the execution of this Agreement by
Purchaser, Seller and Escrow Agent, the Escrow Agreement shall automatically
terminate.
ARTICLE IV. ACCESS TO THE PROPERTY;
INFORMATION RELATING TO THE PROPERTY
(a) The Purchaser shall at all times before the Closing have the privilege
of going upon the Property with its agents, employees, consultants and
invitees to inspect, examine, survey and otherwise undertake those
actions which the Purchaser deems necessary and/or desirable to
determine the suitability of the Property for the Purchaser's intended
uses thereof. Said privilege shall include, without limitation, the
right to make surveys, environmental audits, structural inspections,
termite and other wood destroying organisms inspections and tests and
any and all other tests, inspections and/or examinations to obtain any
information relating to the condition of the Property. Such access to
the Property shall be during normal business hours and shall be subject
to any governmental security or clearance requirements affecting the
Property related to the business operations of the Seller. The Seller
agrees to cooperate with the Purchaser in enabling the Purchaser to
carry out such tests, examinations and inspections, including notifying
the Tenants of the Purchaser's right to inspect the Property. The
Purchaser shall give the Seller reasonable prior verbal notice of its
intention to conduct any such tests, examinations or inspections. The
Seller reserves the right to have a representative present at the time
of such tests, examinations and inspections. The Purchaser shall
promptly provide the Seller with a copy of any and all inspection, test
and audit reports upon the Purchaser's receipt of the same. The
Purchaser agrees that, in making any inspections of the Property, or
conducting any testing of, on or under the Property, the Purchaser, or
the Purchaser's agent, will carry liability insurance, and the
Purchaser shall
3
4
provide the Seller with written evidence of the same and the Purchaser
and its agents, employees, consultants and invitees shall not
unreasonably interfere with the activities of the Tenants and/or the
Seller on the Property. Unless required by law, the Purchaser and the
Purchaser's agents, employees, consultants and invitees shall not
reveal to any third party, other than the Purchaser's attorneys, other
consultants, prospective investors and prospective lenders, the results
of the Purchaser's inspections, audits or tests, without the prior
consent of the Seller, and will promptly repair any damage caused to
the Property during any such inspections or other investigations.
(i) The Purchaser, as a condition to its exercise of the right of
entry set forth in subparagraph IV(a) above, hereby agrees to
defend, indemnify, save, insure and hold the Seller harmless
from and against any loss, damage, liability, suit, claim,
cost or expense, specifically including, without limitation,
reasonable attorneys' fees at all pre-trial, trial, appellate
and post-judgment levels, in any way directly arising out of
or relating to the exercise by the Purchaser or its engineers,
architects or other agents or consultants of such right of
entry. The obligations of the Purchaser arising out of this
subparagraph shall survive any termination of this Agreement
or the closing of the transaction contemplated by this
Agreement (the "Transaction"), as the case may be.
(b) Within ten (10) days after the date hereof, the Seller shall deliver to
the Purchaser a copy of all information of a material nature relating
to the Property which is in the possession of the Seller, or to which
the Seller otherwise has access, which information may include, to the
extent available, certificates of occupancy relating to the Property, a
copy of the Leases, service contracts and equipment rental agreements,
governmental licenses and permits relating to the Property, engineering
plans, surveys, plats, site plans, a title policy, soil reports and
environmental reports (collectively, the "Property Information"). If
this Agreement is terminated for any reason, Purchaser, at Purchaser's
expense, shall promptly return the Property Information to Seller.
ARTICLE V. INSPECTION PERIOD
The Purchaser shall have the right to inspect all aspects of the
Property and to conduct all such inspections, examinations and such
other investigations as the Purchaser deems necessary and/or desirable
for a period of forty-five (45) days after the Effective Date of this
Agreement (the "Inspection Period"). If for any reason whatsoever, in
the Purchaser's sole and absolute discretion, the Purchaser is not
completely satisfied with all aspects of the Property, the Purchaser
shall have the right to terminate this Agreement by providing written
notice to the Seller prior to the expiration of the Inspection Period.
If the Purchaser so terminates this Agreement, then the Xxxxxxx Money
shall be immediately returned to the Purchaser, and thereafter the
parties hereto shall be relieved of and from any and all further
obligations arising hereunder other than for such obligations as are
intended to survive the termination of this Agreement. If Purchaser
does not terminate this Agreement during the Inspection Period, then
prior to the expiration of the Inspection Period, the Purchaser shall
deliver the Additional Xxxxxxx Money Deposit to the Escrow Agent. After
the expiration of the Inspection Period, all Xxxxxxx Money shall be
4
5
non-refundable to the Purchaser other than if the Seller defaults under
the terms of this Agreement or if the Seller is unable to deliver
marketable title to the Property to the Purchaser at the time of
Closing in accordance with the terms of this Agreement.
ARTICLE VI. SURVEY; TITLE MATTERS; UCC SEARCH
(a) Within twenty (20) days after the Effective Date, The Purchaser, at its
cost, shall obtain a survey of the Land (the "Survey") and shall
provide the Seller with six (6) sealed copies of such Survey, which
Survey must be prepared by a registered surveyor licensed in the State
of Florida (the "Surveyor"). The Survey shall be certified to the
Purchaser, the Seller, the title agent and the Title Company (as
defined below), and shall certify that such Survey was prepared in
accordance with the minimum technical requirements and standards
promulgated by the Florida Board of Professional Land Surveyors,
Chapter 21HH-6 of the Florida Administrative Code and Section 472.027
of the Florida Statutes. The Survey shall, at the Purchaser's option,
also contain such other matters as are required by the Title Company
and/or the Purchaser's lender. The Surveyor's seal shall be affixed to
the Survey.
(b) Within fifteen (15) days after the date of this Agreement, the Seller,
at the Seller's expense, shall obtain and provide to the Purchaser a
current title insurance commitment and a copy of all exceptions
referred to therein (the "Title Commitment") from either First American
Title Insurance Company, Lawyers Title Insurance Corporation or
Fidelity National Title Insurance Company, as the Seller may elect (the
"Title Company"). The Title Commitment shall irrevocably obligate the
Title Company to issue an ALTA 1992 Form owner's title insurance policy
in the amount of the Purchase Price (the "Title Policy"), which Title
Policy shall insure the Purchaser's fee simple, marketable title to the
Real Property.
(c) Within ten (10) days after the Purchaser's receipt of the Survey and
the Title Commitment, but in no event later than thirty five (35) days
after the Effective Date, the Purchaser shall provide the Seller with
written notice of any matters set forth in the Survey and/or the Title
Commitment to which Purchaser objects (hereinafter collectively
referred to as the "Title Defects"). Any matters set forth in the
Survey and/or the Title Commitment to which the Purchaser does not
timely object shall be referred to collectively herein as the
"Permitted Exceptions." Notwithstanding anything in this Agreement to
the contrary, the Leases and the ECC Lease (as hereinafter defined)
shall be Permitted Exceptions. The Seller shall have until Closing to
cure such Title Defects to the reasonable satisfaction of the Purchaser
and the Title Company; provided, however, that the Seller shall not be
required to expend any sums to cure such Title Defects. In the event
the Seller fails to cure any Title Defect prior to Closing, or if
Seller advises Buyer it will make no effort to cure the Title Defect(s)
then, at or prior to Closing, the Purchaser may, at its option (i)
terminate this Agreement, whereupon the Escrow Agent shall return the
Xxxxxxx Money to the Purchaser, and, other than for such obligations
which are intended to survive the termination of this Agreement,
thereafter this Agreement shall be of no further force or effect and no
party hereto shall have any further rights, obligations or liabilities
arising hereunder or (ii) accept title to the Property subject to such
Title
5
6
Defect as a Permitted Exception and close on the purchase of the
Property. It is specifically understood and agreed that the Purchaser
hereby objects to and will require the removal, correction or deletion
of all standard exceptions set forth in the Title Commitment other than
for such matters as are depicted on the Survey which do not constitute
Title Defects. At Closing, the Seller shall provide the Title Company
with such affidavits and such other documents as are necessary to
enable the Title Company to remove the standard exceptions (other than
for such matters as are depicted on the Survey which do not constitute
Title Defects) from the Title Policy.
(d) From and after the Effective Date hereof, the Seller shall not create,
incur or consent to any easement, restriction, right-of-way,
reservation, lease or any other agreement which in any way affects the
Purchaser's rights in and to the Property or any portion thereof
without the Purchaser's prior written consent, which consent shall not
be unreasonably withheld. The Seller hereby covenants that the Seller
shall comply with and abide by (in all material respects) all of the
terms and conditions of existing easements, restrictions, agreements,
rights-of-way, reservations, mortgages, liens, pledges, encumbrances,
leases, licenses and other agreements affecting the Property through
the date of Closing hereunder.
(e) Seller shall deliver to the Tenants of the Property an estoppel
certificate in substantially the form of EXHIBIT "C" attached hereto
(the "Tenant Estoppel"), and shall request that the Tenants complete
and sign the Tenant Estoppel and return it to Seller. Seller shall
deliver copies of the completed each Tenant Estoppel to Purchaser when
Seller receives it. Purchaser shall notify Seller within five (5) days
of receipt of any Tenant Estoppel in the event Purchaser determines
such Tenant Estoppel is not acceptable to Purchaser along with the
reasons for such determination. In the event Purchaser fails to give
such notice within such three (3) day period then any such Tenant
Estoppel shall be deemed to be acceptable to Purchaser. In the event
that Seller fails to obtain a Tenant Estoppel on or before five (5)
days prior to Closing, then at the request and option of Purchaser,
Seller shall provide to Purchaser an estoppel certificate containing
representations substantially similar to those contained in the
unattained Tenant Estoppel ("Seller's Estoppel"). Any Tenant Estoppel
which is received from a Tenant after Seller provides its Seller's
Estoppel shall be substituted for Seller's Estoppel and Seller shall
have no further liability thereunder, provided that the representations
in such Tenant Estoppel contains no material variation from the
representations of the Seller's Estoppel, or, if such a material
variation exists, is otherwise reasonably acceptable to Purchaser.
ARTICLE VII. SELLER'S LEASE.
(a) During the Inspection Period, the Seller and the Purchaser shall in
good faith negotiate the terms of a lease agreement (the "ECC Lease")
whereby the Seller shall lease on what is commonly referred to as a
"triple net" basis from the Purchaser premises (the "Leased Premises")
consisting of a minimum of 150,000 square feet of rentable building
area, said Leased Premises to be contained within a portion of the Real
Property identified as Building "H" on EXHIBIT "D" attached hereto and
made a part hereof. The ECC Lease shall be for a minimum term of ten
(10) years, with the tenant thereunder having the right
6
7
to renew such term for two (2) additional five (5) year renewal
periods. The minimum rental rate for the Leased Premises shall be Seven
and 50/100 Dollars ($7.50) per square foot of rentable building area
for the first two years of the term of the ECC Lease, with such rental
rate escalating at three percent (3%) cumulatively per annum
thereafter. The Seller shall be required to post a security deposit
with the Purchaser in an amount equal to two (2) months rent ("Lease
Security Deposit"), which Lease Security Deposit shall be subject to
the terms of the ECC Lease. Provided Seller is not in default under any
terms of the ECC Lease, at the end of the third (3rd) lease year, the
Lease Security Deposit (together with interest accrued thereon if and
only if the ECC Lease requires that the Lease Security Deposit accrue
interest), shall be remitted to Seller by Purchaser and no Lease
Security Deposit shall be required thereafter.
(b) The ECC Lease shall also provide that at anytime prior to the end of
the third (3rd) lease year, Seller may provide written notice to the
landlord thereunder of its intention to terminate the ECC Lease in its
entirety. Any such written notice shall specify a date of termination
of the ECC Lease which is a minimum of six (6) months after the date of
such written notice. Upon such date of termination, Seller shall pay to
the landlord under ECC Lease a termination fee in an amount equal to
the prior two (2) years minimum rent and additional rent, if any,
reserved pursuant to the terms of ECC Lease.
(c) The ECC Lease shall also provide that tenant thereunder shall be
permitted to assign its interest therein pursuant to such terms as
Seller and Purchaser may reasonably agree upon.
(d) The ECC Lease shall also provide a schedule and exhibit (the "Vacating
Plan") pursuant to which Seller shall vacate all remaining rentable
building area office space presently being occupied by the Seller that
is not part of the Leased Premises (the "Occupied Premises"). The
Vacating Plan shall designate the sequence and timing of Seller's
vacation of certain portions of the Occupied Premises; provided,
however, the Vacating Plan: (i) shall require Seller to vacate a
minimum of fifty percent (50%) of contiguous Occupied Premises office
space within a period of one hundred and twenty (120) days from the
date of Closing (provided, however, Seller's continued possession of
those certain areas depicted as "Information Systems" and the
"Executive Suite and Lobby" on EXHIBIT "D" may not in any way be deemed
a violation of the contiguity requirement contained in this subsection
(i)), and (ii) shall require Seller to vacate all remaining Occupied
Premises office space and all Occupied Premises industrial/warehouse
space within a period of one hundred eighty (180) days from the date of
Closing. Seller shall provide written notice to Purchaser upon its
vacation of any portion of the Occupied Premises in accordance with the
Vacating Plan. The ECC Lease shall further provide that no rent or any
other consideration shall be charged for the Seller's occupancy of the
Occupied Premises and the tenant under the ECC Lease shall not be
obligated to pay any taxes, insurance, common area charges or any other
charges or expenses relating to the Occupied Premises, the landlord
thereunder being fully responsible for such costs; provided, however,
that (x) the tenant under the ECC Lease, at such tenant's expense shall
be obligated to maintain the Occupied Premises pursuant to the same
standards and requirements as are applicable to the Leased Premises
under the ECC Lease, and (y) in the event that Seller shall fail to
vacate the Occupied Premises, or any portion thereof, in
7
8
accordance with the Vacating Plan, Seller shall be charged rent for the
unvacated portion of such Occupied Premises on a "triple net" basis at
the annual rate of three ($3.00) dollars per square foot.
(e) The ECC Lease shall also provide the tenant thereunder with a right of
first refusal to lease any other rentable building area within the Real
Property in the event Purchaser receives, and is willing to accept, or
extends a "bona fide offer" to lease any portion of the same. A "bona
fide offer" shall be deemed to include (i) any offers received or
extended by Purchaser in the form of a letter of intent, term sheet,
offer sheet, or similar correspondence which provides a summary of the
business terms pursuant to which a third party proposes to lease any
portion of the Real Property, as well as (ii) any offers received or
extended by Purchaser in the form of a proposed lease agreement;
provided however, the tenant shall only be required to evaluate and/or
accept the salient business terms of any offers received or extended by
Purchaser in the form of a proposed lease agreement. Under the ECC
Lease, the tenant shall be notified within fifteen (15) days of the
extension or receipt by Purchaser of a bona fide offer to lease any of
the other rentable building area within the Real Property. Upon receipt
of such notice, the tenant shall have five (5) business days to notify
Purchaser that it wishes to exercise its right of first refusal to
lease such rentable building area upon the same salient business terms
as those contained in the bona fide offer. The tenant and Purchaser
shall then have an additional six (6) business days to prepare and
execute a lease agreement for such rentable building area (the "ROFR
Lease"), which ROFR Lease shall contain the same salient business terms
as those contained in the bona fide offer, but shall otherwise be
similar to the ECC Lease with respect to business terms not otherwise
addressed in the bona fide offer or boilerplate provisions; provided,
however, the tenant and Purchaser may mutually agree to further modify
such business terms not addressed in the bona fide offer or boilerplate
provisions. Notwithstanding the foregoing, after good faith efforts, if
the tenant and Purchaser are unable to agree upon, prepare and execute
the ROFR Lease within such six (6) business days, then the tenant's
right of first refusal with respect to such bona fide offer shall be
deemed waived, released and terminated; provided, however, nothing
herein shall be deemed a waiver, release or termination of tenant's
right of first refusal with respect to any future bona fide offers
received or extended by the Purchaser.
(f) The ECC Lease shall be executed by both the Seller and the Purchaser at
the time of closing. A memorandum of lease relating to the ECC Lease
(the "Memorandum of Lease"), in a form mutually agreeable to both the
Purchaser and the Seller, shall be executed by the Purchaser and the
Seller at the time of closing and recorded immediately subsequent to
the recording of the special warranty deed from the Seller to the
Purchaser. The Memorandum of Lease shall reference the right of first
refusal described in Article VII(e) hereinabove. The Memorandum of
Lease shall also specify that the Memorandum of Lease will
automatically terminate and be of no further force or effect upon the
expiration or earlier termination of the ECC Lease.
(g) Notwithstanding the transfer and sale of the Leases contemplated in
Article I(c) of this Agreement, the ECC Lease shall also provide that
the tenant shall, during the term of the
8
9
GRC Agreement, remain responsible for the performance of the
obligations of "ECC" under Section 5 of the GRC Agreement.
(h) A preliminary draft of the ECC Lease has been attached hereto as
EXHIBIT "E". Seller and Purchaser shall in good faith negotiate the
final terms and conditions of the ECC Lease prior to the expiration of
the Inspection Period. Notwithstanding anything in this Agreement to
the contrary, if the Seller and the Purchaser have not agreed upon the
final terms and conditions of the ECC Lease prior to the expiration of
the Inspection Period, then at the option of Seller (i) this Agreement
shall automatically terminate, the Escrow Agent shall return the
Xxxxxxx Money to the Purchaser, and thereafter all parties hereto shall
be relieved of and from any and all further obligations arising
hereunder other than for such obligations as are intended to survive
the termination of this Agreement, or (ii) Seller may request such
reasonable extensions of the Inspection Period as it deems reasonably
necessary to consummate the negotiation and full execution of the ECC
Lease, which extensions shall be subject to Purchaser's reasonable
approval.
ARTICLE VIII. CASUALTY
(a) In the event of a fire or other casualty prior to Closing which causes
damage to all or any part of the Property which in the opinion of an
architect selected by the Seller and reasonably approved by the
Purchaser ("Casualty Architect") is in an amount equal to or less than
One Hundred Thousand and No/ 100 Dollars ($100,000.00), prior to
Closing the Seller shall cause the Property to be fully and promptly
repaired and restored to its condition immediately prior to the
occurrence of such fire or other casualty and the Closing shall proceed
in accordance with this Agreement, except that the Closing shall be
delayed until fifteen (15) days after the substantial completion of
such repairs and restoration, as reasonably determined by the Casualty
Architect.
(b) In the event of a fire or other casualty prior to the Closing which
causes damage to all or any part of the Property which in the opinion
of the Casualty Architect is in an amount in excess of One Hundred
Thousand and No/100 Dollars ($100,000.00), the Purchaser shall have the
right to cancel and terminate this Agreement by notice to the Seller in
writing within ten (10) days after receiving notice of such damage, but
in no event later than the date of the Closing. In the event of such an
election by the Purchaser, this Agreement shall terminate, the Xxxxxxx
Money shall be immediately returned to the Purchaser, and thereafter
each of the parties shall be relieved of and from all further
obligations arising hereunder other than for such obligations as are
intended to survive the termination of this Agreement. If the Purchaser
does not timely make such an election, then this Agreement shall remain
in full force and effect and Purchaser shall consummate the transaction
contemplated by this Agreement notwithstanding such damage, without a
reduction of the Purchase Price. If Purchaser so elects to consummate
the transaction contemplated by this Agreement, Purchaser shall be
entitled to settle the loss under all policies of insurance applicable
to the damage and receive the proceeds of insurance applicable thereto,
and Seller shall, at Closing and thereafter, execute and deliver to
Purchaser or its authorized representative all required proofs of loss,
assignments of claims and other similar items.
9
10
(c) The Seller represents to the Purchaser that the Seller presently has
the Property insured against fire and other hazards in an amount equal
to $16,861,000. The Seller shall maintain such insurance coverage
through the date of the Closing. The Seller shall bear the risk of loss
or damage to the Property until transfer of title to the Property to
the Purchaser.
(d) The Seller shall promptly give the Purchaser notice of any fire or
other casualty affecting all or any portion of the Property from the
Effective Date of this Agreement through the date of the Closing.
ARTICLE IX. CONDEMNATION
(a) If prior to the Closing, condemnation proceedings are commenced or
threatened against all or any portion of the Property, the Seller shall
notify the Purchaser of such proceedings or threats of condemnation.
During the term of this Agreement, the Seller shall notify the
Purchaser of material developments in such condemnation proceedings,
shall provide the Purchaser with a copy of each and every
correspondence, pleading, data and any and all other documents which
the Seller or any of its agents either receives or generates related to
such condemnation and shall consult with the Purchaser regarding major
decisions by the Seller in such proceedings.
(b) If, prior to the Closing, condemnation proceedings are commenced
against any material portion of the Property or against such portion of
the Property that in Purchaser's reasonable judgment materially affects
Purchaser's intended use thereof, then in such an event the Purchaser
may, at its option, (i) elect to terminate this Agreement by providing
the Seller with written notice of such termination within ten (10) days
after the Purchaser's receipt of notice of such condemnation
proceedings from the Seller, but in no event later than the date of the
Closing, in which event the Xxxxxxx Money shall be immediately returned
to the Purchaser and thereafter each of the parties shall be relieved
of and from all further obligations arising hereunder other than for
such obligations as are intended to survive the termination of this
Agreement, or (ii) purchase the Property under the terms of this
Agreement, in which event, at the Closing, the Seller shall (x) assign
to the Purchaser any and all condemnation awards and all other
condemnation fees and sums received by the Seller relating to the
Property (excluding business damages relating to periods prior to the
Closing), (y) assign all of the Seller's interest in and to any future
condemnation awards, fees and other condemnation sums to which the
Seller may be entitled relating to the Property (excluding business
damages relating to periods prior to the Closing) and (z) to the extent
applicable to the Property, allow the Purchaser to assume the defense
of any pending or threatened condemnation or similar proceeding, and
cooperate with the Purchaser in the conduct of such defense, including
without limitation, delivering to the Purchaser all correspondence,
pleadings, evidence, data, and other documentation received, assembled,
or prepared by or for the Seller in connection with such proceeding.
(c) If, prior to the Closing, condemnation proceedings are commenced
against less than a material portion of the Property or against such
portion of the Property that in Purchaser's
10
11
reasonable judgment does not materially affect Purchaser's intended use
thereof, then in such an event the Purchaser shall not have the right
to terminate this Agreement. In such an event, at the Closing, the
Seller shall (i) assign to the Purchaser any and all condemnation
awards and all other condemnation fees and sums received by the Seller
relating to the Property (excluding business damages relating to
periods prior to the Closing), (ii) assign all of the Seller's interest
in and to any future condemnation awards, fees and other condemnation
sums to which the Seller may be entitled relating to the Property
(excluding business damages relating to periods prior to the Closing)
and (iii) to the extent applicable to the Property, allow the Purchaser
to assume the defense of any pending or threatened condemnation or
similar proceeding, and cooperate with the Purchaser in the conduct of
such defense, including without limitation, delivering to the Purchaser
all correspondence, pleadings, evidence, data, and other documentation
received, assembled, or prepared by or for the Seller in connection
with such proceeding.
(d) For the purposes of this Article, the term "a material portion of the
Property" shall mean more than ten percent (10%) of the rentable
building area within the Property.
ARTICLE X. CONDITIONS TO THE PURCHASER'S OBLIGATIONS
The Purchaser's obligation to purchase the Property shall be expressly
conditioned upon the fulfillment of each of the following conditions precedent
on or before the date or dates hereinafter specifically provided and in no event
later than the date of Closing if no date is specified:
(a) The representations and warranties of the Seller contained in this
Agreement shall be continually true and correct in all material
respects from the Effective Date through the Closing Date; and
(b) The Seller shall have performed and complied in all material respects
with all covenants and agreements contained herein which are to be
performed and complied with by the Seller at or prior to the Closing.
The Purchaser may at any time or times on or before Closing, at its election,
waive any of the foregoing conditions to its obligations hereunder and the
consummation of such sale, but any such waiver shall be effective only if (i)
contained in writing signed by the Purchaser and delivered to the Seller or (ii)
the Purchaser closes the Transaction without such conditions then being
satisfied.
In the event any of the foregoing conditions or other conditions to this
Agreement are not fulfilled or waived prior to the Closing, then on or before
the date of the Closing, the Purchaser may terminate this Agreement (other than
for such obligations which are intended to survive the termination of this
Agreement), regardless of whether such right is otherwise expressly provided
above. Notwithstanding anything herein to the contrary, in the event of any such
termination, the Escrow Agent shall promptly return to Purchaser all Xxxxxxx
Money and thereafter the parties hereto shall be relieved of and from any and
all further obligations arising hereunder other than for such obligations as are
expressly specified to survive the termination of this Agreement.
11
12
ARTICLE XI. REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants that:
(a) The Seller owns fee simple, marketable record title to the Real
Property;
(b) There are no existing or, to the best of Seller's actual knowledge,
threatened, actions, suits, investigations or proceedings of any kind
or nature whatsoever, legal or equitable, in any way affecting the
Property or any portion or portions thereof, or the ownership or use of
the Property, in any court or before or by any federal, state, county,
municipal or quasi-governmental department, commission, board, bureau,
agency or any other governmental or quasi-governmental instrumentality;
(c) The Seller is a corporation duly organized, validly existing and in
good standing in the State of Delaware, is authorized to transact
business in the State of Florida, has duly authorized the execution and
performance of this Agreement, such execution and performance will not
violate any term of its governing documents, and that the Seller has
the power and authority to sell and convey the Property as provided in
this Agreement and to carry out the Seller's obligations hereunder and
that the person signing this Agreement on behalf of Seller is
authorized to do so;
(d) The Seller has no actual knowledge that any present default or breach
exists under Article VI(d) of this Agreement or under any mortgage,
lien, pledge, or other encumbrance encumbering the Property or any
covenant, condition, restriction, right-of-way, reservation, lease,
license, agreement or easement (except for various encroachments onto
easements located on the Property as may be reflected on a survey)
which may affect the Property or any portion or portions thereof;
(e) No petition in bankruptcy (voluntary or otherwise), assignment for the
benefit of creditors, or petition seeking reorganization or arrangement
or other action under federal or any other bankruptcy laws is pending
against, or to the best of Seller's actual knowledge, threatened
against or contemplated by the Seller;
(f) Seller has not received any notice of any violation of any
Environmental Laws (as hereinafter defined) applicable to the Property
or Seller's use thereof. To the best of Seller's actual knowledge, (i)
the Property is in substantial compliance with all Environmental Laws
and (ii) that, to the best of Seller's actual knowledge, other than for
such Hazardous Materials located on the Property in connection with the
operation and maintenance of the Property and/or the businesses located
thereon, no Hazardous Materials (as hereinafter defined) are or have
been used, handled, manufactured, generated, produced, stored, treated,
processed, transferred or disposed of, located on or beneath the
surface of the Real Property, or on or within the improvements to the
Real Property in violation of any law, rule, regulation, ordinance,
order, consent order or directive of any local, state or federal
government.
As used herein, the term "Environmental Laws" shall mean all applicable
statutes, regulations, rules, ordinances and codes of any and all
governmental and quasi-governmental agencies, departments, commissions,
boards, bureaus or instrumentalities
12
13
of the United States, the state in which the Property is located, all
political subdivisions thereof and all applicable judicial and
administrative and regulatory decrees, judgments, and orders relating
to the protection of human health and/or the environment.
As used herein, the term "Hazardous Materials" shall mean any
substance, gas, material or chemical which is or may be defined as or
included in the definition of "hazardous substances," "toxic
substances," "hazardous materials," "hazardous wastes" or words of
similar import under any Environmental Law, including, but not limited
to, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et seq., and
the Resource Conservation and Recovery Act, as amended, 42 U.S.C.
Section 6901 et seq.
(g) No person, firm or other legal entity has any right or option superior
to Purchaser's rights hereunder to acquire the Property or any portion
or portions thereof or any interest or interest therein.
(h) The Seller's execution and delivery of this Agreement and the
consummation of the transaction contemplated herein shall not and do
not constitute a violation or breach by the Seller of any provision of
any agreement or other instrument to which the Seller is a party, nor
result in or constitute a violation or breach of any judgment, order,
writ, injunction or decree issued against the Seller.
(i) The Seller is a United States resident, not a foreign person (as such
terms are defined in the Internal Revenue Code and Income Tax
Regulations), for purposes of U.S. income taxation, that the Seller's
U.S. Taxpayer Identification Number is 00-0000000, and that no
withholding of sale proceeds is required with respect to the Seller's
interest in the Property under Section 1455(a) of the Internal Revenue
Code.
(j) Other than the Leases, there are no contracts, licenses, leases,
agreements, or arrangements relating to the use, management and/or
operation of the Property, or which will burden the Property or
obligate Purchaser after Closing, which are not set forth on EXHIBIT
"F" attached hereto and made a part hereof, and, to the best of
Seller's actual knowledge, no party to such contracts, agreements and
arrangements is in default with respect to its obligations or
liabilities thereunder, and Seller has not delivered a notice of
default or like communication to any such party.
(k) The Seller has not accepted rental under the Leases for more than one
(1) month in advance and there are no agreements with leasing brokers
providing for the payment of leasing commissions or fees from and after
the Closing by Purchaser as Seller's successor in interest.
All of the representations and warranties of the Seller made in this Article are
and shall be continuous and continuing and all of the same shall remain true and
correct in all material respects through the Closing. The Seller shall deliver a
certificate at Closing which shall reaffirm the foregoing representations and
warranties, which representations and warranties shall survive for a period of
eight (8) months after the date of the Closing. Prior to Closing, the Seller
agrees to promptly notify the Purchaser upon its obtaining knowledge of the
material inaccuracy
13
14
of any of the above representations and warranties. The representations and
warranties of the Seller which have been made "to the best of Seller's actual
knowledge", as used in this Article XI, shall refer only to the actual knowledge
of the following designated employees of Seller:
Xxxxx X. Xxxxxx
Xxxxxxx Xxx Xxxxxxxxxxx
Notwithstanding anything contained herein to the contrary, and as a
supplement to the aforementioned representations and warranties, the Seller
herby represents that the Property currently is encumbered by that certain
Mortgage executed by ECC INTERNATIONAL CORP., a Delaware corporation, f/k/a
EDUCATIONAL COMPUTER CORPORATION, dated April 6, 1995, recorded April 11, 1995,
in Official Records Book 4877, Page 4562; as assigned to MELLON BANK, N.A., by
Assignment of Mortgage recorded June 28, 1999, in Official Records Book 5782,
Page 3066; as amended and restated by Amended and Restated Mortgage Assignment
of Leases and Security Agreement recorded June 28, 1999, in Official Records
Book 5782, Page 3071, all of the Public Records of Orange County, Florida
(collectively, the "Mortgage"). The Seller shall be obligated to fully release
and satisfy the Mortgage at the Closing.
ARTICLE XII. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants that:
(a) The Purchaser is a corporation and a limited liability company duly
organized, validly existing and in good standing in the State of
Florida, is duly qualified to transact business in the State of
Florida, has duly authorized the execution and performance of this
Agreement, such execution and performance will not violate any material
term of its governing documents, and the Purchaser has the power and
authority to purchase the Property as provided in this Agreement and to
carry out the Purchaser's obligations hereunder. The person signing
this Agreement on behalf of Purchaser is authorized to do so.
(b) No petition in bankruptcy (voluntary or otherwise), assignment for the
benefit of creditors, or petition seeking reorganization or arrangement
or other action under Federal or any other bankruptcy laws is pending
against, threatened against or contemplated by the Purchaser.
(c) The Purchaser's execution and delivery of this Agreement and the
consummation of the transaction contemplated herein shall not and do
not constitute a violation or breach by the Purchaser of any provision
of any agreement or other instrument to which the Purchaser is a party,
nor result in or constitute a violation or breach of any judgment,
order, writ, injunction or decree issued against the Purchaser.
(d) Xxxxxx Xxxxxx and/or Xxxx Xxxxxxx own(s) more than fifty percent (50%)
of the ownership interests and more than fifty percent (50%) of the
voting interests in PANTHER OAK RIDGE, INC.
14
15
All of the representations and warranties of the Purchaser made in this Article
are and shall be continuous and continuing and all of the same shall remain true
and correct in all material respects through the Closing. The Purchaser shall
deliver a certificate at Closing which shall reaffirm the foregoing
representations and warranties, which representations and warranties shall
survive for a period of eight (8) months after the date of the Closing. Prior to
Closing, the Purchaser agrees to promptly notify the Seller upon its obtaining
knowledge of the material inaccuracy of any of the above representations and
warranties.
ARTICLE XIII. SELLER'S AFFIRMATIVE COVENANTS
In addition to the other covenants and undertakings set forth herein, The Seller
hereby makes the following affirmative covenants, each of which shall survive
the Closing hereunder:
(a) From the Effective Date hereof through the Closing, the Seller will
operate and maintain all of the Property in a good order and condition
and will comply in all material respects with and abide by all laws,
ordinances, regulations and restrictions affecting the Property or its
use. The Seller shall deliver the Property to the Purchaser at Closing
in its present condition, normal wear and tear excepted. The Seller
will pay all taxes, assessments and all other encumbrances prior to the
due date thereof and will not commit or permit any waste or nuisance
with respect thereto;
(b) The Seller shall take such other actions and perform such other
obligations as are required or contemplated hereunder;
(c) The Seller shall furnish the Purchaser with a copy of all written
notices received by or on behalf of the Seller after the Effective Date
of violations of laws or municipal ordinances, regulations, orders or
requirements of any department of building, fire, labor, health, or
other state, city or municipal departments or any other governmental
authority affecting the Property or the use or operation thereof; and
(d) The Seller shall not remove any item of Personal Property unless
replaced by a comparable item.
(e) Any amendment, renewal or expansion of an easement, contract, Lease or
any other agreement which materially affects the Purchaser's rights in
and to the Property which Seller wishes to execute between the
Effective Date and Closing shall be submitted to Purchaser for its
reasonable written approval prior to execution by Seller.
ARTICLE XIV. CLOSING
(a) The closing (the "Closing") shall be held thirty (30) days after the
expiration of the Inspection Period (the "Closing Date") at the offices
of Xxxxxxxxx Xxxxxxx, P.A., 000 X. Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx,
Xxxxxxx 00000, or at such other place as the Seller and the Purchaser
may hereafter agree.
15
16
(b) At the time of Closing, the Seller shall deliver to the Purchaser the
following documents, each properly executed and acknowledged (as
appropriate):
(i) A special warranty deed conveying fee simple, marketable,
record title to the Real Property and the improvements thereto
to the Purchaser, free and clear of all liens, easements and
encumbrances whatsoever, excepting only the Permitted
Exceptions;
(ii) A Xxxx of Sale conveying the Personal Property in an "AS IS"
condition, free and clear of and from any and all liens or
other encumbrances, with warranties of title;
(iii) The Leases, together with any Tenant Estoppel(s) not yet
delivered to Purchaser (or a Seller's Estoppel in lieu
thereof);
(iv) An Assignment and Assumption of the Leases, with mutual
indemnification provisions, in a form reasonably acceptable to
the Seller and the Purchaser (the "Assignment of Leases");
(v) The ECC Lease and Memorandum of Lease, which Memorandum of
Lease shall be executed by the Purchaser and the Seller at the
time of closing and recorded immediately subsequent to the
recording of the special warranty deed;
(vi) All Property Information;
(vii) All keys and combinations to locks, in Seller's possession,
for the Personal Property, buildings and improvements;
provided, however, Purchaser shall not be required to provide
Purchaser with keys and combinations to locks for any portion
of the Real Property of Personal Property which shall be
occupied by Seller, or otherwise remain in Seller's possession
after the Closing in accordance with this Agreement or the ECC
Lease.
(viii) A copy of all written agreements and service contracts in the
Sellers' possession regarding the operation and/or maintenance
of the Property, a copy of all licenses, permits and
manufacturers' warranties in the Seller's possession, together
with an Assignment and Assumption Agreement in a form
reasonably acceptable to the Seller and the Purchaser (the
"Assignment and Assumption Agreement"). The Assignment and
Assumption Agreement shall also provide for the Purchaser's
assumption of the obligations of Seller under that certain
Real and Personal Property Tax Consulting Services Agreement,
dated March 5, 2001, between Seller and Xxxxx Xxxxxxxx LLP
(the "Tax Agreement"), relating to an appeal and contest of
the Orange County Property Appraiser's ad valorem tax
assessment of the Real Property.
(ix) Such other documents, closing statements, assignments,
resolutions, affidavits, certificates of good standing and
certificates of authority as may be reasonably required by the
Title Company or the Purchaser or as otherwise may be
necessary to carry out the terms of this Agreement, including,
without limitation, an owner's affidavit and any and all other
affidavits in form and content sufficient to enable
16
17
the Title Company, in conjunction with the Survey, to delete
all standard title exceptions from the Title Policy (other
than for matters depicted on the Survey which do not
constitute a Title Defect), and a certificate duly executed by
Seller certifying that Seller is not a foreign person for
purposes of the Foreign Investment in Real Property Tax Act
("FIRPTA"), as revised by the Deficit Reduction Act of 1984,
which certificate shall include Seller's taxpayer
identification number and address or a withholding certificate
from the Internal Revenue Service stating that Seller is
exempt from withholding tax on the Purchase Price under
FIRPTA. If neither of the above certificates is delivered,
Purchaser shall deduct and withhold at Closing a tax equal to
either ten percent (10%) of the Purchase Price or such reduced
amount as may be authorized by a withholding certificate from
the Internal Revenue Service; and
(x) A letter addressed to the Tenants under the Leases, in a form
reasonably acceptable to the Purchaser, advising of the change
in ownership and the transfer of such tenant's security
deposit to the Purchaser in accordance with Florida law.
(xi) Possession and occupancy of the Property, subject only to the
Permitted Exceptions.
(c) At Closing, the Purchaser (i) shall pay the Purchase Price, subject to
credits, prorations and adjustments, as set forth herein, (ii) shall
pay for the Survey, (iii) shall provide such evidence of its capacity
and authority for the closing of the transaction as may be reasonably
required by the Title Company and (iv) shall execute and deliver the
Assignment of Leases, the Assignment and Assumption Agreement, the ECC
Lease, the Memorandum of Lease and such other documents, closing
statements, resolutions, affidavits, certificates of good standing and
certificates of authority as may be required by the Title Company or as
otherwise may be necessary to carry out the terms of this Agreement.
ARTICLE XV. CLOSING ADJUSTMENTS
(a) All real property ad valorem taxes, general assessments, certified
special assessments and personal property taxes applicable to the
Property shall be prorated between Seller and Purchaser as of the
Closing Date, said proration to be based upon the most recently
available assessment rate and valuation with respect to the Property;
provided, however, that upon the issuance of the actual tax or
assessment statements or bills for the year of the Closing, the
Purchaser and the Seller shall promptly make such prorations as may be
necessary to ensure that the actual amount of such taxes and
assessments for the year of Closing shall be prorated between the
Purchaser and the Seller as of the Closing Date, said agreement to
survive Closing hereunder. Any back taxes assessed for any year prior
to the year in which Closing occurs, shall be paid in full by the
Seller at Closing, including all delinquent and/or interest charges.
Notwithstanding the foregoing, the Seller and Purchaser hereby agree
that (i) any savings and/or adjustments to real property ad valorem
taxes, general assessments, certified special assessments or personal
property taxes applicable to the Property arising from the performance
of Xxxxx Xxxxxxxx LLP
17
18
under the Tax Agreement, and (ii) any costs and expenses arising from
the performance of Xxxxx Xxxxxxxx LLP under the Tax Agreement, shall
also be prorated between Seller and Purchaser as of the Closing Date.
Accordingly, any savings and/or adjustments attributable only to
calendar year 2000 shall only be payable to, or for the credit of,
Seller. Purchaser hereby agrees to cooperate with Xxxxx Xxxxxxxx LLP in
its efforts to secure savings and/or adjustments to real property ad
valorem taxes, general assessments, certified special assessments or
personal property taxes applicable to the Property under the Tax
Agreement.
(b) Seller shall, at or prior to the Closing, pay (i) all real property
transfer and transaction taxes and levies relating to the purchase or
sale of the Property including, without limitation, the documentary
stamps which shall be affixed to Seller's special warranty deed, (ii)
the title insurance premiums and costs relating to the issuance of the
Title Commitment and Title Policy in the full amount of the Purchase
Price, including all costs relating to a survey endorsement, (iii) the
cost of recording the special warranty deed and the Memorandum of
Lease, and (iv) all other costs allocated to the Seller elsewhere in
this Agreement. The Purchaser shall pay the cost of the Survey and any
and all of the costs allocated to the Purchaser elsewhere in this
Agreement. Each party shall pay its own attorneys' fees and costs. In
the event any mortgage, lien or other encumbrance encumbers the
Property at Closing and is not paid and satisfied by the Seller, such
mortgage, lien or encumbrance and, all costs incurred in connection
therewith shall be satisfied and paid with the Seller's proceeds of the
Purchase Price. All other costs incurred at Closing and not allocated
to one of the parties by this Agreement shall be borne by the parties
in accordance with the custom and usage in the County in which the
Property is located. Each party shall pay at Closing one-half of the
escrow fee, if any, charged by Escrow Agent or Title Company. Seller
shall pay at Closing the commissions or fees payable to the Brokers and
Finder in accordance with Article XX of this Agreement.
(c) Utilities and other customarily proratable expenses, including but not
limited to water, sewer, gas, electric, trash removal and fire
protection service, and any contracts or agreements for services to the
Property to be transferred and assumed by the Purchaser shall be
prorated as of the Closing Date. The Seller shall be given credit, and
the Purchaser shall be charged, for any utility deposits transferred
(if transferred) to the Purchaser, provided Purchaser shall agree to
such transfer.
(d) Any amounts payable to or to be paid by the Seller under any contract
or other agreement to be assigned to the Purchaser and which the
Purchaser is to assume pursuant to this Agreement shall be prorated
between the Seller and the Purchaser as of the Closing Date. All other
expenses relating to the Property including, but not limited to,
insurance, administrative and such other expenses incurred by the
Seller or the Seller's agents that are not to be transferred and
assumed by the Purchaser, shall be paid by the Seller and the Purchaser
shall not be liable therefore.
(e) At the Closing, the balance of any security deposit actually paid to or
received by the Seller under the Leases and of any prepaid rentals
actually paid to or received by the Seller under the Leases for periods
subsequent to the Closing shall be credited against the
18
19
Purchase Price. The assignment of the Tenants' security deposits under
the Leases shall be performed in accordance with the requirements of
Florida law.
(f) Collected rents and all other income shall be prorated as of the
Closing Date, with the Purchaser receiving a credit for that portion of
the collected rents and other income attributable to the period on and
after the Closing Date. Rent and all other sums which are due and
payable to the Seller by the Tenants under the Leases but which are
uncollected as of the Closing shall not be adjusted. With respect to
delinquent rentals and other sums due under the Leases, the Purchaser
shall make a reasonable attempt to collect the same for the Seller's
benefit after the Closing in the usual course of the operation of the
Property, and such collection, if any, shall be remitted to the Seller
promptly upon the receipt of the same by the Purchaser. Nothing
contained herein shall operate to require the Purchaser to institute
any lawsuit or any other collection procedure to collect such
delinquent rentals. The Purchaser and the Seller agree that any sums
received by the Purchaser from any Tenant owing delinquent rentals
shall first be applied to rentals and late fees owed to the Seller and
then to any rentals or other sums owed the Purchaser, regardless of any
designation of such sums by such Tenant. At Closing, the Seller shall
deliver to the Purchaser a schedule of all such past due uncollected
rent and other sums owed by a Tenant under the Leases (if any). For
amounts due the Seller but not collected within sixty (60) days after
the Closing, the Seller shall have the right to xxx such Tenant owing
such delinquent sums, but in no event may the Seller seek to evict any
Tenant or terminate any of the Leases. If the Seller collects any sums
of rent attributable to periods after the Closing, the Seller shall
promptly remit the same to the Purchaser.
(g) All other expenses of operating or owning the Property which are to be
assumed by the Purchaser shall be prorated as of the Closing Date,
those accruing prior to the Closing Date being the Seller's
responsibility and those accruing on and after the Closing Date being
the Purchaser's responsibility.
(h) Except as expressly provided herein, the purpose and intent of the
provisions relating to prorations and apportionments set forth in this
paragraph and elsewhere in this Agreement is that the Seller shall bear
all expenses of ownership and operation of the Property and shall be
entitled to all income therefrom accruing through midnight at the end
of the day preceding the Closing, the Seller shall bear all expenses
relating to obligations not to be assumed by the Purchaser, whether
such expenses occur and/or accrue before and/or after the Closing, and
the Purchaser shall bear all expenses to be assumed by the Purchaser,
and shall receive all income, accruing after midnight of the day
preceding the Closing.
(i) All of such adjustments and allocations shall be made in cash at
Closing. Where adjustments are based on estimates, any necessary
readjustment shall be made when actual figures are available. This
provision shall survive Closing and shall not be merged into the deed.
19
20
ARTICLE XVI. DEFAULTS
(a) In the event the Seller breaches any of the covenants, agreements or
obligations to be performed by the Seller under the terms and
provisions of this Agreement, the Purchaser, in the Purchaser's sole
and absolute discretion, shall be entitled to (i) waive such defaults
and proceed to closing, (ii) seek specific performance of this
Agreement or (iii) terminate this Agreement and obtain an immediate
refund of the Xxxxxxx Money from Escrow Agent together with a
reimbursement from Seller of Purchaser's out-of-pocket costs incurred
in connection with the transaction (e.g., fees of surveyors, attorneys,
architects, etc.) in an amount not to exceed $75,000 and thereafter all
parties hereto shall be relieved of and from any and all further
obligations arising hereunder other than for such obligations as are
intended to survive the termination of this Agreement.
(b) In the event the Purchaser breaches any of the covenants, agreements or
obligations to be performed by the Purchaser under the terms and
provisions of this Agreement, the Seller's sole and exclusive remedy
for any such default shall be, upon giving written notice to the
Purchaser and the Escrow Agent as herein provided, to receive the
Xxxxxxx Money from the Escrow Agent as full liquidated damages,
whereupon this Agreement shall terminate and thereafter all parties
hereto shall be relieved of and from any and all further obligations
arising hereunder other than for such obligations as are intended to
survive the termination of this Agreement. The Purchaser and the Seller
acknowledge that it would be difficult or impossible to ascertain the
actual damages suffered by the Seller as a result of any default by the
Purchaser and agree that such liquidated damages are a reasonable
estimate of such damages. The Seller further acknowledges and agrees
that the Purchaser was materially induced to enter into this Agreement
in reliance upon the Seller's agreement to accept such Xxxxxxx Money as
the Seller's sole and exclusive remedy and that the Purchaser would not
have entered into this Agreement but for the Seller's agreement to so
limit the Seller's remedies.
ARTICLE XVII. ASSIGNMENT
The Purchaser may, without the Seller's consent, assign all or any of its right,
title and interest herein to any entity (a "Permitted Assignee") in which Xxxxxx
Xxxxxx and/or Xxxx Xxxxxxx (and/or their spouses and/or children) is the
controlling general partner (if the Permitted Assignee is a limited
partnership), the controlling managing member (if the Permitted Assignee is a
limited liability company), or shareholder(s) owning more than fifty percent
(50%) of the ownership interests and more than fifty percent (50%) of the voting
interests (if the Permitted Assignee is a corporation); provided, however, that
the Purchaser shall not be relieved of any obligations arising under this
Agreement by virtue of such an assignment and further provided that the Seller
shall not be bound by any such assignment unless and until the Seller is
provided written notice of such an assignment and a copy of such assignment
agreement executed by the Purchaser and the Permitted Assignee. Other than as
set forth above, the Purchaser may not assign this Agreement without the
Seller's prior written consent, which consent may be granted or withheld in the
Seller's sole and absolute discretion. Notwithstanding the foregoing, Purchaser
may, without the Seller's consent, assign all or any of its right, title and
interest herein to either party constituting the Purchaser.
20
21
ARTICLE XVIII. NOTICE
Unless otherwise specifically noted, any and all notices which may be permitted
or required hereunder shall be in writing and shall be deemed to have been duly
given as of the date and time which is the earlier of the date the same are
personally delivered or sent via facsimile (with receipt confirmed by the
sender), three (3) days after depositing the same with the United States Postal
Service, postage prepaid by registered or certified mail, return receipt
requested, or one (1) business day after depositing the same with Federal
Express or other nationally recognized overnight delivery service from which a
receipt may be obtained, as the case may be, and addressed as follows:
To the Purchaser at the following address:
Panther Oak Ridge, Inc.
and Oak Ridge Investment Associates, LLC
PH-IIA
000 X. Xxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxx Xxxxxx, President
Xx. Xxxx Xxxxxxx, Vice President
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxx Xxxxxxx, Esq.
000 X. Xxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
To Seller at the following address:
ECC International Corp.
0000 X. Xxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxxx Xxx Xxxxxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxxxx Xxxxxxx, P.A.
000 X. Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Orlando, X. Xxxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
21
22
To Escrow Agent at the following address:
Xxxxxxxxx Xxxxxxx, P.A.
000 X. Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Orlando, X. Xxxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
or to such other address as any party hereto shall from time to time designate
to the other parties by notice in writing as herein provided.
ARTICLE XIX. ESCROW AGENT
The Escrow Agent shall not be entitled to any fees or compensation for its
services as the Escrow Agent hereunder. The sole responsibility of the Escrow
Agent shall be to disburse the Xxxxxxx Money in accordance with this Agreement
and to account to Seller and to Purchaser for the Xxxxxxx Money. Escrow Agent
shall have no obligation or authority to determine the appropriateness of any
request for disbursements made pursuant to this Agreement. Escrow Agent is
hereby authorized and agrees by acceptance thereof to hold the Xxxxxxx Money in
escrow and to disburse the Xxxxxxx Money in accordance with the terms and
conditions of this Agreement. In the event of doubt as to its duties or
liabilities under the provisions of this Agreement, or if either Seller or
Purchaser disputes in writing a claim by the other to the Xxxxxxx Money, the
Escrow Agent may, in its sole discretion, continue to hold the Xxxxxxx Money
until the parties having an interest therein mutually agree in writing to the
disbursement thereof or until a judgment of a court of competent jurisdiction
shall determine the rights of the parties thereto, or Escrow Agent may deposit
the Xxxxxxx Money then held pursuant to this Agreement with the Clerk of the
Circuit Court of Orange County, Florida and upon notifying all parties concerned
of such action, all liability on the part of Escrow Agent shall fully terminate
except to the extent of accounting for any money delivered out of escrow. In the
event of any suit wherein Escrow Agent is made a party by virtue of acting as
such Escrow Agent hereunder, or in the event of any suit wherein Escrow Agent
interpleads the subject matter of this escrow, Escrow Agent shall be entitled to
recover reasonable attorney's fee and costs incurred. All parties agree that
Escrow Agent shall not be liable to any party or person whomsoever for
misdelivery to Seller or to Purchaser of money subject to this escrow, or for
any act or omission on its part undertaken, unless such misdelivery, act or
omission shall be due to bad faith and in willful disregard of this Agreement,
or due to negligence. In the event Escrow Agent returns the Xxxxxxx Money to
Purchaser, Escrow Agent shall provide concurrent written notice of such return
to Seller. Escrow Agent shall not be responsible for assuring the rate of
interest to accrue on the Xxxxxxx Money, for any fluctuation in the rate of
interest accruing on the Xxxxxxx Money, for any failures on the part of the
depository bank, for the unavailability of deposit insurance on all or any
portion of the Xxxxxxx Money, or for any other matters beyond the direct and
exclusive
22
23
control of Escrow Agent. Escrow Agent assumes no obligations or responsibilities
hereunder other than as expressly set forth herein. Seller and Purchaser each
hereby acknowledge that Escrow Agent is acting solely as a stakeholder at their
request and for their convenience. The Seller and the Purchaser agree that the
status of the Seller's counsel as the Escrow Agent under this Agreement does not
disqualify such law firm from representing the Seller in connection with this
transaction and in any disputes that may arise between the Seller and the
Purchaser concerning this transaction, including any dispute or controversy with
respect to the Xxxxxxx Money.
ARTICLE XX. REAL ESTATE COMMISSION
(a) Upon the Closing of the sale pursuant to this Agreement (and only in
the event of Closing), Seller shall pay to Xxxxxxxx Realty a real
estate commission equal to three percent (3%) of the Purchase Price,
less any amounts previously paid to Xxxxxxxx Realty by Seller pursuant
to a consulting agreement, between Xxxxxxxx Realty and Seller. Seller
shall also pay to Concorde Realty Group, Inc. a real estate commission
equal to two percent (2%) of the Purchase Price (Xxxxxxxx Realty and
Concorde Realty Group, Inc. are collectively referred to herein as the
"Brokers"). Seller shall also pay to Xxxxx Xxxxxxx ("Finder") a
finder's fee in the amount of ONE HUNDRED TWENTY-FIVE THOUSAND AND
NO/100 DOLLARS ($125,000.00). Said commissions and finder's fee shall
be payable in cash at the time of the Closing. The Purchaser hereby
represents to the Seller that the Purchaser has not engaged or dealt
with any agent, broker or finder other than the Brokers and Finder
regarding this Agreement or the sale and purchase of the Property
contemplated hereby. The Purchaser hereby indemnifies the Seller and
agrees to hold the Seller free and harmless from and against any and
all liability, loss, cost, damage and expense, including, but not
limited to, attorneys' fees and costs of litigation, both prior to and
on appeal, which the Seller shall ever suffer or incur because of any
claim by any agent, broker or finder, other than the Brokers and
Finder, engaged by the Purchaser, whether or not meritorious, for any
fee, commission or other compensation with respect to this Agreement or
to the sale and purchase of the Property contemplated hereby.
(b) The Seller hereby represents to the Purchaser that (i) the amounts
payable to the Brokers and Finder by Seller as set forth immediately
above in Article XX(a) are the total amounts owing to the Brokers and
Finder with respect to this Agreement, and (ii) the Seller has not
engaged or dealt with any agent, broker or finder other than the
Brokers and Finder regarding this Agreement or the sale and purchase of
the Property contemplated hereby. The Seller hereby indemnifies the
Purchaser and agrees to hold the Purchaser free and harmless from and
against any and all liability, loss, cost, damage and expense,
including but not limited to attorneys' fees and costs of litigation
both prior to and on appeal, which the Purchaser shall ever suffer or
incur because of any claim by any agent, broker or finder engaged by
the Seller, including the Brokers and Finder, whether or not
meritorious, for any fee, commission or other compensation with respect
to this Agreement or to the sale and purchase of the Property
contemplated hereby.
23
24
ARTICLE XXI. SEVERABILITY
This Agreement is intended to be performed in accordance with, and only to the
extent permitted by, all applicable laws, ordinances, rules and regulations. If
any provision of this Agreement or the application thereof to any person or
circumstance shall, for any reason and to any extent, be determined by any court
of competent jurisdiction to be invalid and unenforceable, the remainder of this
Agreement and the application of such remaining provisions shall not be affected
thereby but rather shall be enforced to the greatest extent permitted by law,
provided that the invalidity or unenforceability of any such provisions does not
materially adversely affect the benefits accruing to any party hereunder.
ARTICLE XXII. TERM OF OFFER
This Agreement has been executed first by the Seller as a continuing offer to
sell the Property, subject to and conditioned upon the terms and conditions
herein contained, which offer shall be open for acceptance by the Purchaser
until 5:00 P.M. on March 27, 2001, at which time the offer may be withdrawn by
the Seller unless at least two (2) fully executed counterparts of this Agreement
have theretofore been received by the Seller. This offer may not be accepted if,
prior to the Seller's receipt of two (2) fully executed counterparts of this
Agreement, the same shall have been revoked by the Seller. This offer may be
revoked by notice as provided in this Agreement.
ARTICLE XXIII. MISCELLANEOUS PROVISIONS
(a) When used herein, the term "Effective Date" or the phrase "the date
hereof" or "the date of this Agreement" shall mean the date that this
Agreement is executed by both the Seller and the Purchaser.
(b) For a period of eight (8) months, unless otherwise expressly specified
otherwise all of the covenants, indemnifications, representations and
warranties set forth in this Agreement shall (i) survive any
termination of this Agreement, (ii) survive the Closing of the
transaction contemplated hereby, (ii) survive the execution and
delivery of any and all deeds and other documents at any time executed
and delivered under, pursuant to or by reason of this Agreement, and
(iii) survive the payment of all monies made under, pursuant to or by
reason of this Agreement.
(c) No failure of either party to exercise any power given hereunder or to
insist upon strict compliance with any obligation specified herein, and
no custom or practice at variance with the terms hereof, shall
constitute a waiver of either party's right to demand exact compliance
with the terms hereof.
(d) This Agreement including exhibits and schedules, if any, contains the
entire agreement of the parties hereto. Prior representations,
promises, inducements, understandings or agreements, oral or written,
not included in this Agreement but pertaining to the subject
24
25
matter hereof shall not be binding upon either of the parties and shall
be superceded by the provisions of this Agreement.
(e) Any amendment to this Agreement shall not be binding upon any of the
parties hereto unless such amendment is in writing and executed by the
Seller and the Purchaser.
(f) The provisions of this Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs,
administrators, executors, personal representatives, successors and
assigns.
(g) Time is of the essence of this Agreement. To the extent that any time
periods hereunder shall end on a Saturday, Sunday or a legal holiday,
such time period shall extend until 5:00 p.m. of the next business day.
(h) This Agreement may be executed in multiple counterparts, each of which
so executed and delivered shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(i) The prevailing party in any litigation (including, but not limited to,
any declaratory action) shall be entitled to collect from the
non-prevailing party all costs and reasonable attorneys' fees incurred
by the prevailing party at all pre-trial, trial, appellate and
post-judgment levels.
(j) Radon gas is a naturally occurring radioactive gas that when it has
accumulated in a building in sufficient quantities, may present health
risks to persons who are exposed to it over time. Levels of radon that
exceed federal and state guidelines have been found in buildings in
Florida. Additional information regarding radon and radon testing may
be obtained from your county health unit.
(k) The headings inserted at the beginning of each paragraph are for
convenience only and do not add to or subtract from the meaning of the
contents of each paragraph.
(l) This Agreement shall not be recorded in the public records of the
county in which the Property is located.
(m) This Agreement shall be interpreted under the laws of the State of
Florida.
(n) In order to expedite the transaction contemplated herein, telecopied
signatures may be used in place of original signatures on this
Agreement. Seller and Purchaser intend to be bound by the signatures on
the telecopied document, are aware that the other party will rely on
the telecopied signatures, and hereby waive any defenses to the
enforcement of the terms of this Agreement based on the form of
signature.
(o) The provisions of this Agreement are and will be for the benefit of
Seller and Purchaser only and are not for the benefit of any third
party, and accordingly, no third party shall have the right to enforce
the provisions of this Agreement.
25
26
(p) Each party agrees that it will execute and deliver such other documents
and take such other action, whether prior or subsequent to Closing, as
may be reasonably requested by the other party to consummate the
transaction contemplated by this Agreement. The provisions of this
Section XXIII(p) shall survive Closing.
(q) From and after Closing, Purchaser shall be responsible for providing
such on-site management services for the Property as Purchaser in its
sole discretion deems appropriate. Unless otherwise agreed to by
Purchaser in writing, Seller expressly agrees that all property
management agreements and employment contracts relating to the
operation and management of the Property prior to Closing shall have
been terminated at or before Closing with all amounts owing thereunder
to be fully paid by Seller.
(r) From and after the Effective Date and prior to Closing, in the event
Seller executes a bona fide letter of intent to negotiate the sale of
the outstanding capital stock of Seller or substantially all of the
assets of Seller to a non-affiliated individual or entity, then within
fifteen (15) days of the date of execution of such letter of intent
Seller may elect to terminate in its entirety this Agreement on the
following conditions, which shall be conditions precedent to any such
attempted termination by the Seller becoming effective: (i) written
notice of Seller's election to terminate pursuant to the terms of this
subparagraph (r) shall have been given by Seller to Purchaser within
the periods of time herein provided ("Sale Termination Notice"); (ii)
such Sale Termination Notice shall be accompanied by (x) the refund of
the Xxxxxxx Money to Purchaser in full, (y) the reimbursement to
Purchaser of an amount equal to actual third party due diligence costs
and expenses expended or incurred by Purchaser in connection with the
subject transaction (e.g. expenses for loan application fees,
environmental and structural analysis, appraisal, survey and legal
costs), provided that the total amount of such reimbursable costs and
expenses shall not exceed the amount of Seventy-Five Thousand Dollars
($75,000), and, (z) payment to Purchaser by Seller of a Sale
Termination fee as compensation for the granting to Seller of the
termination rights provided in this subparagraph in the amount of One
Hundred Thousand Dollars ($100,000.00).
[SIGNATURE PAGE WILL FOLLOW]
26
27
IN WITNESS WHEREOF, this Agreement has been executed by the Purchaser and the
Seller on the dates set out below their respective signatures hereto.
SELLER
ECC INTERNATIONAL CORP.,
A Delaware corporation
By:
--------------------------------------
Xxxxxxx Xxx Xxxxxxxxxxx
Chief Financial Officer
Date:
------------------------------------
(CORPORATE SEAL)
PURCHASER
PANTHER OAK RIDGE, INC.,
a Florida corporation
By:
--------------------------------------
Print Name:
------------------------------
As Its:
----------------------------------
Date:
------------------------------------
(CORPORATE SEAL)
OAK RIDGE INVESTMENT
ASSOCIATES, LLC,
a Florida limited liability company
By:
--------------------------------------
Print Name:
------------------------------
As Its:
----------------------------------
Date:
------------------------------------
27
28
Xxxxxxxxx Traurig, P.A., executes this Purchase and Sale Agreement solely for
the purpose of acknowledging and agreeing to accept the responsibilities of the
Escrow Agent as set forth in this Purchase and Sale Agreement, including, but
not limited to the provisions of Article III, Article X.
XXXXXXXXX XXXXXXX, P.A.,
a Florida professional association
By:
--------------------------------------
Print Name:
-----------------------------
Date:
------------------------------------
Xxxxxxxx Realty, Concorde Realty Group, Inc. and Xxxxx Xxxxxxx executes this
Purchase and Sale Agreement for the purpose of acknowledging and agreeing to the
terms of Article XX as set forth in this Purchase and Sale Agreement.
XXXXXXXX REALTY,
a
---------------------------------------
By:
--------------------------------------
Print Name:
------------------------------
As Its:
---------------------------------
Date:
------------------------------------
CONCORDE REALTY GROUP, INC.,
a
---------------------------------------
By:
--------------------------------------
Print Name:
------------------------------
As Its:
---------------------------------
Date:
------------------------------------
-----------------------------------------
XXXXX XXXXXXX, individually
28
29
EXHIBIT "A"
LEGAL DESCRIPTION OF LAND
PARCEL 1:
The South Half of Lots 35 and 36, (LESS the North 25 feet of the South Half of
Lots 35 and 36, and the East 50 feet of Xxx 00), XXXX XX XXXXX XXX, XXXXXXX
XXXXXX, being in Section 22, Township 23 South, Range 29 East, according to the
Map or Plat thereof, as recorded in Plat Book D, Page 109, Public Records of
Orange County, Florida.
PARCEL 2:
The North Half of Lots 35 and 36, (LESS the East 50.00 feet of Xxx 00, XXXX XX
XXXXX XXX, XXXXXXX COLONY, according to the Map or Plat thereof, as recorded in
Plat Book D, Page 109, Public Records of Orange County, Florida.
PARCEL 3:
The East 50.00 feet of Lots 61 and 36, (LESS the South 30.00 feet of Xxx 00 xxx
xxxx right of way purposes), AND the North 25.00 feet of the South Half of Lots
35 and 36, PLAN OF BLOCK ONE, PROSPER COLONY, according to the Map or Plat
thereof, as recorded in Plat Book D, Page 109, Public Records of Orange County,
Florida.
PARCEL 4:
Xxx 00, XXXX XX XXXXX XXX, XXXXXXX COLONY, according to the Map or Plat thereof,
as recorded in Plat Book D, Page 109, Public Records of Orange County, Florida,
LESS any part thereof lying within Oak Ridge Road.
PARCEL 5:
The South Half of Lots 37 and 38, PLAN OF BLOCK ONE, PROSPER COLONY, according
to the Map or Plat thereof, as recorded in Plat Book D, Page 109, Public Records
of Orange County, Florida.
PARCEL 6:
The North Half of Xxx 00, XXXX XX XXXXX XXX, XXXXXXX COLONY, according to the
Map or Plat thereof, as recorded in Plat Book D, Page 109, Public Records of
Orange County, Florida.
PARCEL 7:
The West 75 feet of the East 162.29 feet of the North Half of Xxx 00, XXXX XX
XXXXX XXX, XXXXXXX COLONY, according to the Map or Plat thereof, as recorded in
Plat Book D, Page 109, Public Records of Orange County, Florida.
29
30
EXHIBIT "A" (CONTINUED)
LEGAL DESCRIPTION OF LAND
PARCEL 8:
Lot 61, (LESS the South 30 feet, and the East 50 feet) AND the East 62 feet of
Lot 62 (LESS the South 30 feet), PLAN OF BLOCK ONE, PROSPER COLONY, according to
the Map or Plat thereof, as recorded in Plat Book D, Page 109, Public Records of
Orange County, Florida.
PARCEL 9:
That certain 40.00 foot right of way known as Tampa Avenue, a shown on the Plat
of PLAN OF BLOCK ONE, PROSPER COLONY, according to the Map or Plat thereof, as
recorded in Plat Book D, Page 109, Public Records of Orange County, Florida,
lying adjacent to and continuous with the South Half of Xxx 00, Xxxxx Xxx xxx
Xxx 00, Xxxxx One, LESS the right of way on the South for Oak Ridge Road.
30
31
EXHIBIT "B-1"
INVENTORY
To be agreed upon by Purchaser and Seller during the Inspection Period, and
amended hereto.
31
32
EXHIBIT "B-2"
EXCLUDED PROPERTY
o Office furniture including desks, chairs, cubicles and work tables
o All computer hardware including PC's, servers, monitors, racks, special
raised flooring and UPS
o Artwork and indoor plants
o Refrigerators, microwaves and coffee machines
o Breakroom equipment including vending machines and furniture
o Security access system and cameras
o Telephone switch and phone equipment
o Warehouse racks, shelving and cages
o Video teleconferencing system
o Trash compactor
o All manufacturing equipment
32
33
EXHIBIT "C"
FORM OF TENANT ESTOPPEL
33
34
TENANT'S ESTOPPEL CERTIFICATE
This certificate concerns that certain lease dated ____________, by and
between __________________, as landlord or lessor ("Lessor"), and
___________________________, as tenant or lessee ("Lessee"), of the property
located at ___________________________ ___________________ (the "Leased
Property"). The Leased Property is located within the property more commonly
known as the _____________________.
Lessor anticipates selling the _____________________ to
_____________________ ("Purchaser") and, in connection with the proposed sale,
Lessor and Purchaser request certain information to be provided, as stated in
this certificate. In this regard, Lessee confirms, represents, and warrants the
following information to Lessor and Purchaser and agrees that Lessor and
Purchaser may rely on such information in selling and/or purchasing the
_____________________:
SECTION ONE
DATE OF LEASE
The date of the lease is _________________, and the dates of all
amendments and modifications to the lease are ______________________. A true and
correct copy of the lease (and all amendments thereto) is attached hereto as
EXHIBIT "A" and incorporated herein by this reference.
SECTION TWO
LEASE MODIFICATIONS
The lease is in full force and effect and has not been modified,
altered or amended, except as set forth in the above-referenced amendments and
modifications.
SECTION THREE
TERM OF LEASE
A. The current term of the lease expires on ____________________.
B. There are no remaining renewal options except as follows: __________
_____________________________________________________________________________.
SECTION FOUR
OPTIONS
There are no options or first rights of refusal for additional space or
to purchase the Leased Property or any part of the _____________ except as
follows: _____________________
34
35
SECTION FIVE
RENTAL
A. The current fixed monthly rental under the lease is $____________,
which is payable on the _______ day of each month in advance.
B. The fixed monthly rental has been paid through ____________________.
C. The fixed monthly rental due under the lease is scheduled to be
changed pursuant to the terms of the lease as follows:__________________________
____________________________________________________________.
D. Lessee is also obligated to pay percentage rent under the terms of
the lease based on the following provisions:____________________________________
E. No rent under the lease has been paid more than one month in advance
of its due date.
F. Lessee is not entitled to any free rent, concessions, rebates or
refunds, except as follows:___________________________________________________.
SECTION SIX
WAIVERS OF RENT
The lease provides for a waiver of rent or expenses for the following
months: ________________________________________________________________ .
SECTION SEVEN
SECURITY DEPOSIT
The amount of the security deposit that has been paid to Lessor under
the lease is $___________.
SECTION EIGHT
TENANT'S DEFAULT UNDER LEASE
A. Lessee is not in default under the lease and is current in the
payment of any taxes, utilities, common area maintenance payments, or other
charges to be paid by Lessee, except as follows:_______________________________.
B. There is no event, occurrence or condition which (with notice or
lapse of time or both) would constitute a default by Lessee under the Lease.
35
36
SECTION NINE
TENANT FINISH WORK AND IMPROVEMENTS
Any contribution payable by Lessor for tenant finish work and tenant
improvements has been paid in full, except as follows: _________________________
_______________________________________________________________________________,
and all such work has been completed.
SECTION TEN
LANDLORD'S DEFAULT UNDER LEASE
A. Lessor has fulfilled all of Lessor's duties and obligations under
the lease and is not in default in any manner under the lease.
B. Lessee has no claims against Lessor, including, but not limited to,
any claim to offset or waive rents or expenses.
X. Xxxxxx has not made any representation or agreement to or with
Lessee concerning the lease or the Leased Property that is not contained in the
lease, except as follows:____________________________________________________.
D. There is no event, occurrence or condition which (with notice or
lapse of time or both) would constitute a default by Lessor under the Lease.
E. There are no unsatisfied requests by Lessee for repairs,
restorations or improvements to the Leased Property.
SECTION ELEVEN
TENANT'S RECOGNITION OF PURCHASER
Upon the sale of the _____________________ by Lessor to Purchaser, the
Lessor's interest in and to the lease will be assigned to Purchaser and
Purchaser will assume Lessor's responsibilities and obligations under the lease.
Accordingly, upon such sale Lessee agrees to look solely to, recognize and honor
Purchaser and its successors and assigns as the landlord under the lease.
The undersigned has executed this certificate on ____________________,
200__.
WITNESSES: TENANT:
By:
------------------------------------ ---------------------------------
Print Name: Print Name:
------------------------- --------------------------
Title:
-------------------------------
------------------------------------
Print Name:
-------------------------
36
37
EXHIBIT "D"
SKETCH OF REAL PROPERTY AND BUILDING PLAN
37
38
EXHIBIT "E"
PRELIMINARY DRAFT OF SELLER'S LEASE
38
39
EXHIBIT "F"
SERVICE CONTRACTS AND AGREEMENTS
1. Real and Personal Property Tax Consulting Services Agreement, dated
March 5, 2001, between Seller and Xxxxx Xxxxxxxx LLP.
2. Service Agreement with Cleaning Concepts, dated December 15, 1996.
3. Grounds Maintenance Services Agreement with Millennium Lawn
Maintenance, dated January 25, 2000.
4. Service Agreement with Allied Pest Control, dated July 7, 1999.
5. Pest Prevention Service Agreement with Xxxxxx Services, Inc., dated
August 24, 1999.
39
