PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS between Presstek, Inc., a Delaware corporation and EJC Properties, LLLP, an Arizona limited liability limited partnership, and/or Permitted Assigns
AND
ESCROW
INSTRUCTIONS
between
Presstek,
Inc.,
a
Delaware corporation
“Seller”
and
EJC
Properties, LLLP,
an
Arizona limited liability limited partnership,
and/or
Permitted Assigns
“Purchaser”
237547.5
AND
ESCROW
INSTRUCTIONS
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DATE
OF AGREEMENT:
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SELLER:
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Presstek,
Inc.,
a
Delaware corporation
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Address:55
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Attn:
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Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Ext. 3340
Facsimile: (▇▇▇)
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PURCHASER:
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EJC
Properties, LLLP,
an
Arizona limited liability limited partnership,
and/or
Permitted Assigns
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Address:6115
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Attn: ▇▇. ▇▇▇
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Telephone: (520) 784-8430
Facsimile: (520) 326-0159
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ESCROW
AGENT:
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Title
Security Agency of Arizona
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Address: ▇▇▇▇
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Attn: ▇▇. ▇▇▇▇
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Telephone: (▇▇▇)
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PROPERTY:
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The
real property legally described on Exhibit “A”, together
with all rights, easements, and appurtenances pertaining thereto (the
“Land”); all
buildings and improvements located on or appurtenant to the Land (the
“Improvements”);
all air conditioners, fixtures, carpets, machinery, equipment, supplies,
utility taps and other personal property attached to, located at and used
in connection with the operation, management or maintenance of the Land or
the Improvements and owned by Seller (the “Personal Property”); and
all intangible personal property used in the operation of the Land or
Improvements, including, without limitation, all leases of space in the
Improvements (“Leases”), in effect as
of the Closing Date, as that term is defined in Section 2.1, all
refundable tenant security deposits, all prepaid rents, assignable
licenses, franchises, permits and contracts held by Seller in connection
with the Land or the Improvements, but specifically excluding any trade
names, service marks, or other intellectual property owned by Seller or
its affiliates (the “Intangible
Property”). The Land, Improvements, Personal Property,
and Intangible Property are hereinafter collectively referred to as the
“Property.” The
Property is located at ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇,
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OPENING
DATE:
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[To
be completed by Escrow Agent]
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R E C I T A L
S:
A. Seller
is the owner of the Property.
B. Seller
desires to sell the Property to Purchaser and Purchaser desires to purchase the
Property from Seller upon the terms and conditions set forth
herein.
A G R E E M E N
T:
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. Purchase and Sale; Purchase
Price; Terms of Payment.
1.1. Purchase and
Sale. Seller agrees to sell, and Purchaser agrees to purchase,
the Property on the terms and conditions set forth in this
Agreement.
1.2. Purchase
Price. The total purchase price which Purchaser agrees to pay
for the Property (the “Purchase
Price”) is Eight Million Seven Hundred and Fifty Thousand and No/100
Dollars ($ 8,750,000.00), subject to all prorations and adjustments provided for
herein.
1.3. Terms of
Payment. The Purchase Price shall be payable as
follows:
1.3.1. Deposit. One Hundred
Thousand and No/100 Dollars ($100,000.00) in immediately available funds shall
be deposited with Escrow Agent, as partial payment and as an ▇▇▇▇▇▇▇ money
deposit (the “Deposit”)
on or before 4:00 p.m., Arizona time, on the date two (2) business days
following the execution of this Agreement by both Seller and Purchaser and
delivery of the same to Escrow Agent. Should Purchaser give the
Feasibility Waiver Notice, as that term is defined in Section
5.2, or pay the Extension Deposit, as that term is defined in Section
5.1.1, the Deposit shall be non-refundable to Purchaser,
except if: (i) this Agreement terminates pursuant to any
provision of this Agreement specifically allowing a refund of the Deposit,
(ii) an express condition to Purchaser's performance hereunder fails to
occur and all applicable cure periods, if any, have expired, or
(iii) Seller fails to perform when due any act required by this Agreement
to be performed by Seller and all applicable cure periods, if any, have
expired.
237547.5
Upon
receipt of the Deposit, Escrow Agent shall immediately deposit it in a federally
insured, interest bearing account of Purchaser's choice. All
resulting accrued interest on the Deposit shall become part of the Deposit and
shall be paid to whichever party becomes entitled to the Deposit under any
provision of this Agreement, whether or not the provision specifically refers to
interest on the Deposit.
1.3.2. Cash
Payment. An amount equal to the difference between the
Purchase Price and the Deposit shall be paid by Purchaser in immediately
available funds on or before the date one (1) business day prior to the Closing
(the “Cash
Payment”).
2. Closing; Conditions to
Closing.
2.1. Closing. The
closing of this transaction (the “Closing”)
shall occur on or before fifteen (15) days after the expiration of the Property
Review Period, as that term is defined in Section
5.1, at the offices of Escrow Agent, unless some other location is
mutually agreed to by the parties (the “Closing
Date”).
2.2. Conditions to Seller's
Obligation to Close. Seller's obligation to close escrow
hereunder is conditioned upon the following:
2.2.1. Purchaser's
payment of the Deposit and the Extension Deposit, if applicable;
2.2.2. Purchaser's
payment of the Cash Payment;
2.2.3. Purchaser's execution, acknowledgment and delivery of an Affidavit of
Property Value as required by Arizona law (the “Affidavit
of Value”);
2.2.4. Purchaser's
execution and delivery of the Assignment and Assumption Agreement described in
Article
3;
2.2.5. Purchaser's
execution and delivery of a notice letter to be addressed to each tenant under a
Lease in the form attached hereto as Exhibit
“B” (the “Notice
Letter”);
2.2.6. Purchaser's
payment of all closing costs, proratable items and other charges, costs and
expenses to be borne by Purchaser pursuant to Articles
7 and 8;
2.2.7. Each
representation and warranty of Purchaser set forth in Section 13.6
being true and correct in all material respects as of the Closing Date;
and
2.2.8. Purchaser’s
compliance with all of its other obligations under this
Agreement.
237547.5
2.3. Conditions to Purchaser's
Obligation to Close. Purchaser's obligation to close escrow
hereunder is conditioned upon the following:
2.3.1. Purchaser's
approval or deemed approval of the status of title to the Property pursuant to
Article
4;
2.3.2. The
irrevocable commitment of Commonwealth Land Title Insurance Company (the “Title
Insurer”) as of the Closing Date to issue the Owner's Title Policy, as
described in Section
4.4, to Purchaser;
2.3.3. Purchaser
having timely and properly given the Feasibility Waiver Notice as described in
Section
5.2;
2.3.4. Seller's
execution, acknowledgement (where necessary), and delivery of the Affidavit of
Value and the Notice Letter and the Deed, ▇▇▇▇ of Sale, and Assignment and
Assumption Agreement, as those latter three terms are defined in Article
3;
2.3.5. Seller's
execution, acknowledgement, and delivery of the Non-Foreign Certification, as
described in Section
13.1.5;
2.3.6. Seller's
payment of all closing costs, proratable items and other charges, costs and
expenses to be borne by Seller pursuant to Articles
7 and 8;
2.3.7. Each
representation and warranty of Seller set forth in Section
13.1 being true and correct in all material respects as of the Closing
Date, as evidenced by the Seller Closing Certificate provided for in Section
3.4; and
2.3.8. Seller’s
compliance with all of its other obligations under this Agreement.
3. Conveyance
Documents. At the Closing, Seller shall deliver the following
documents to Purchaser.
3.1. Deed. A
duly executed special warranty deed in the form attached hereto as Exhibit
“C” (the “Deed”).
3.2. ▇▇▇▇ of
Sale. A duly executed ▇▇▇▇ of sale in the form attached hereto
as Exhibit
“D” (the “▇▇▇▇ of
Sale”).
3.3. Assignment and Assumption
Agreement. A duly executed Assignment and Assumption Agreement
(the “Assignment
and Assumption Agreement”) in the form attached hereto as Exhibit
“E.”
237547.5
3.4. Certificate Regarding
Representations and Warranties. A certificate executed by
Seller stating that all representations and warranties of the Seller contained
in Section
13.1 remain, as of the Closing Date, correct in all material respects as
when first made hereunder or, if not correct, stating the extent to which any
such representations and warranties are not correct (the “Seller
Closing Certificate”).
4. Title and Title
Insurance.
4.1. Title
Report. As soon as reasonably possible following the Opening
Date, Escrow Agent shall deliver a current Commitment for Title Insurance or a
Preliminary Title Report (the “Title
Report”) on the Property from the Title Insurer to Purchaser and
Seller. The Title Report shall show the status of title to the
Property as of the date of the Title Report and shall be accompanied by legible
copies of all documents referred to in the Title Report.
4.2. Title Review
Period. Purchaser shall have ten (10) business days after
Purchaser’s receipt of the Title Report (the “Title
Review Period”) to review the Title Report and to give Seller and Escrow
Agent notice of any title exception which is unacceptable to Purchaser (the
“Title
Disapproval Notice”). Purchaser shall have an additional five
(5) days after receipt of any amended Title Report and any underlying documents
relating to such amendment to give Seller and Escrow Agent a Title Disapproval
Notice with respect to any title exception not previously listed which is
unacceptable to Purchaser. If Purchaser timely gives a Title
Disapproval Notice as to any exception to title, Seller may, but shall not be
required to, attempt to eliminate the disapproved exception from the Title
Report prior to the Closing Date. If Seller fails to notify Purchaser
within five (5) days after receipt of a Title Disapproval Notice that Seller has
elected to eliminate the disapproved exception(s) from the Title Report or
amended Title Report prior to the Closing, such failure shall be deemed Seller’s
election not to eliminate the disapproved exception(s). If Seller
notified Purchaser in writing of its election not to eliminate a disapproved
exceptions(s) from the Title Report or amended Title Report, or is deemed to
have elected not to eliminate a disapproved exception(s), Purchaser shall have
until the earlier of the Closing or five (5) days after receipt of such notice
(or, if applicable, five (5) days after the date on which Seller is deemed to
have elected not to eliminate a disapproved exception(s)) to either terminate
this Agreement or to agree to close this transaction subject to such previously
disapproved exception(s). Purchaser's failure to timely give any such
notice shall be deemed Purchaser's election to close this transaction subject to
such previously disapproved exception(s). If Seller attempts to
eliminate a disapproved exception from the Title Report, but Seller is
unsuccessful in eliminating the disapproved exception from the Title Report
prior to the Closing Date, Purchaser's sole and exclusive remedies shall be to
either terminate this Agreement by giving Seller and Escrow Agent written notice
of termination, or to agree in writing to close this transaction subject to such
exception.
237547.5
4.3. Approval or Disapproval of
Status of Title. Purchaser's failure to timely disapprove any
title exception shall be deemed Purchaser's approval of such title
exception. Upon any termination in accordance with this Article,
Escrow Agent shall return the Deposit and all interest earned thereon to
Purchaser, and this Agreement and the escrow shall terminate as provided for in
Section
6.3.
4.4. Owner's Title
Policy. The Title Insurer shall issue to Purchaser a standard
coverage owner's policy of title insurance (the “Owner's
Title Policy”) at the Closing or as soon thereafter as is reasonably
possible. The Owner's Title Policy shall be issued by the Title
Insurer in the full amount of the Purchase Price, be effective as of the Closing
Date, and shall insure Purchaser that fee simple title to the Property is vested
in Purchaser, subject only to: (i) the usual printed exceptions and exclusions
contained in such title insurance policies; (ii) the exceptions to title
approved (or deemed approved) by Purchaser as provided for in Sections
4.2 and 4.3 of this Agreement; and (iii) any other matter approved in
writing by Purchaser or resulting from the acts of Purchaser or Purchaser's
agents. Should Purchaser desire to obtain an ALTA extended coverage
owner's policy of title insurance, Purchaser shall be responsible for obtaining
and paying for any necessary survey or updated survey (subject, however, to
Seller’s reimbursement obligation set forth below in this Section
4.4) and that portion of the cost for such policy which exceeds the cost
of a standard coverage policy. In no event, however, shall such
extend the Closing Date. Seller shall have no obligation to obtain
for Purchaser any title insurance endorsements, and any such endorsements
desired by Purchaser shall be requested by Purchaser of the Title Insurer during
the Title Review Period and included within the Title Disapproval
Notice. Any such endorsements issued by the Title Insurer shall be at
Purchaser's sole cost and expense. At and conditioned on the Closing,
Seller shall reimburse Purchaser for the cost of any necessary survey or updated
survey, not to exceed Three Thousand Five Hundred and No/100 Dollars
($3,500.00).
5. Property
Condition.
5.1. Property Review
Period. For a period of time beginning upon the Property
Documents Delivery Date, as that term is defined in Section
5.4, and ending at 5:00 p.m., Arizona time, on the date sixty (60) days
thereafter (the “Property
Review Period”), Purchaser shall have the right to enter upon the
Property with Purchaser's representatives and agents for the purpose of testing,
examining and investigating the physical condition of the
Property. Subject to the rights of tenants under Leases, Purchaser,
its representatives and agents shall have the right during the Property Review
Period to conduct soils, hydrology, architectural, engineering, environmental,
and all other testing, examinations and investigations it deems necessary to
assess the physical condition of the Property and to determine the feasibility
of the Property for Purchaser's purposes (collectively, the “Inspections”). Purchaser
shall have the right during the Property Review Period to terminate this
Agreement if Purchaser is dissatisfied, in Purchaser's sole and absolute
discretion, with the physical condition of the Property, with the results of the
testing, examinations and investigations it may conduct or for any other reason
affecting the feasibility of the Property for Purchaser's
purposes. Prior to Purchaser or its agents conducting any testing or
investigation involving physical disturbance of any portion of the Property,
Purchaser shall obtain Seller's written consent thereto, such consent not to be
unreasonably withheld. In applying for such
237547.5
consent,
Purchaser shall provide Seller with reasonable monetary assurances in the form
of a bond, insurance policy or otherwise, that any damage caused to the Property
by such testing or investigation will be immediately remediated at no cost to
Seller. The provision of such assurances shall not, however, in any
way affect Purchaser's obligations under Section
5.3. Further notwithstanding the foregoing, before entering
upon the Property to conduct any Inspection and before having any meeting or
discussion with any tenant of the Property (whether in person or by telephone),
Purchaser will first provide Seller at least 48-hours advance notice thereof so
that a representative of Seller can also be present during any such Inspection,
meeting or discussion. Purchaser shall not have the right to
correspond directly with any tenant of the Property, except with the Seller's
prior written consent, which may be withheld in Seller's reasonable
discretion. In the event Purchaser does not proceed to Closing,
Purchaser agrees to cause each Inspection report or study of the Property which
is obtained from a third party to be addressed to and certified (if customarily
certified) to Seller as well as to Purchaser and to be delivered to
Seller. Seller shall reimburse Purchaser for the cost, if any, to
have any Inspection report or study addressed to and certified (if customarily
certified) to Seller; but otherwise, Purchaser shall be responsible for all
costs and expenses incurred in obtaining any Inspection report or study, except
as expressly provided in Section
11.2 in connection with a default by Seller.
5.1.1. Purchaser
shall have a one time right to extend the Property Review Period for thirty (30)
days by giving Seller and Escrow Agent written notice of its election not less
than ten (10) days prior to the expiration of the initial Property Review Period
and by depositing with Escrow Agent Fifty Thousand and No/100 Dollars
($50,000.00) in immediately available funds (the “Extension
Deposit”). The Extension Deposit shall be held, applied, and
treated in all respects in the same manner as is the Deposit. All
references in this Agreement to the Deposit shall include the Extension Deposit,
to the extent paid. Upon payment of the Extension Deposit, the
Extension Deposit and the initial Deposit shall be nonrefundable to
Purchaser except as expressly provided for in Section
1.3.1.
5.2. Approval or Disapproval of
Feasibility. On or before the expiration of the Property
Review Period, Purchaser shall give written notice to Seller and Escrow Agent of
its election to either terminate this Agreement as described in Section 5.1
(the “Feasibility
Termination Notice”) or to waive its right to terminate this Agreement in
accordance with the terms of this Article 5
(the “Feasibility
Waiver Notice”). Purchaser's failure to timely give either a
Feasibility Termination Notice or Feasibility Waiver Notice shall be deemed
Purchaser’s giving of the Feasibility Termination Notice and an election by
Purchaser to terminate this Agreement under this Article 5. If
Purchaser gives or is deemed to have given the Feasibility Termination Notice,
Escrow Agent shall return the Deposit to Purchaser as provided in Section 6.3
and this Agreement and the escrow shall terminate.
237547.5
5.3. Restoration of
Property. If Purchaser elects to terminate this Agreement in
accordance with this Article, Purchaser shall, at its sole expense, repair any
damage caused to the Property by any entry thereon by Purchaser, its agents or
contractors, including, without limitation, any
Inspections. Purchaser agrees to indemnify Seller and hold Seller
harmless from any cost, liability, expense, or injury to person or property
arising out of Purchaser's exercise of the rights granted by this
Article. This indemnification obligation shall survive the
termination of this Agreement or the Closing.
5.4. Transfer of
Documentation. Within five (5) days after the Opening Date,
Seller shall provide Purchaser with the information and documentation described
on Exhibit
“F”, (collectively the “Property
Documents”). The Property
Documents may be provided to Purchaser electronically or, to the extent the same
are oversized, may be made available to Purchaser for inspection at the
Property. The date on which the Property Documents are provided to
Purchaser or made available to Purchaser is referred to as the “Property
Documents Delivery Date.” Purchaser acknowledges that it shall have no
right to rely on the accuracy of any of the Property Documents obtained from
Seller, or Seller's agents, that such information is being made available solely
as a courtesy and that Seller has not, and shall not be deemed to have, made any
representations or warranties whatsoever, express or implied, with respect to
the completeness, content or accuracy of the Property Documents or with respect
to any of the matters disclosed thereby.
5.5. No Financing
Contingency. Purchaser agrees that its obligations under this
Agreement are not contingent upon its ability to obtain acquisition financing
for the purchase of the Property.
6. Escrow.
6.1. Establishment of
Escrow. An escrow for this transaction shall be established
with Escrow Agent and Escrow Agent is hereby employed by the parties to handle
the escrow. This Agreement shall constitute escrow instructions, and
a fully executed copy or counterpart copies shall be deposited with Escrow Agent
for this purpose. Should Escrow Agent require the execution of its
standard form printed escrow instructions, Purchaser and Seller agree to execute
the same to the extent the same are not inconsistent with the terms of this
Agreement and do not require the parties to release or indemnify the Escrow
Agent for its negligence, willful misconduct or failure to abide by the terms of
any escrow instructions; however, such instructions shall be construed as
applying only to Escrow Agent's employment, and if there are conflicts between
the terms of this Agreement and the terms of the printed escrow instructions,
the terms of this Agreement shall control. In no event shall the
parties be required to execute any printed escrow instructions that purport to
exculpate Escrow Agent or Title Insurer from their own negligent conduct,
willful misconduct, breach of written instructions, or bad faith
acts.
237547.5
6.2. Cancellation of
Escrow. If the escrow fails to close because of Seller's
default, Seller shall be liable for all customary escrow cancellation
charges. If the escrow fails to close because of Purchaser's default,
Purchaser shall be liable for all customary escrow cancellation
charges. If the escrow fails to close for any reason, Seller and
Purchaser shall each be liable for one-half (1/2) of all customary escrow
cancellation charges.
6.3. Termination. Upon
any termination by either of the parties hereto as expressly allowed under this
Agreement, (i) Purchaser shall deliver to Seller all Inspection studies and
reports addressed and certified to Seller as provided in Section
5.1; (ii) Purchaser shall return to Seller the Property Documents
and any materials concerning the Property previously delivered by Seller to
Purchaser, if any; (iii) the Deposit shall be delivered by Escrow Agent to
the party which this Agreement specifies is entitled thereto, but if to
Purchaser, only upon Purchaser's compliance with clauses (i) and (ii)
above; and (iv) the parties shall thereafter be relieved from further
liability hereunder, except with respect to any obligations under this
Agreement, including, without limitation, indemnity obligations of Purchaser,
which are expressly stated to survive any termination of this
Agreement. A copy of any notice of termination allowed under this
Agreement shall be sent to Escrow Agent by the party electing to
terminate.
7. Closing
Costs.
7.1. Seller's Closing
Costs. Upon the Closing, Seller agrees to pay all recording
costs relating to the Deed, one-half (1/2) of the escrow charges and the cost of
the Owner's Title Policy.
7.2. Purchaser's Closing
Costs. Upon the Closing, Purchaser agrees to pay one-half
(1/2) of the escrow charges.
8. Prorations and
Apportionments.
8.1. General. All
revenues and all expenses of the Property shall be prorated and apportioned as
of 12:01 a.m. on the Closing Date, so that Seller shall bear all expenses with
respect to the Property and shall have the benefit of all income with respect to
the Property for the period preceding the Closing Date. Any revenue
or expense amount which cannot be ascertained with certainty as of the Closing
Date shall be prorated on the basis of the parties' reasonable estimates of such
amount and shall be the subject of a final proration outside of escrow
forty-five (45) days after the Closing Date or as soon thereafter as the precise
amounts can be ascertained.
8.2. Prorations. Items
to be prorated shall include, without limitation, tenant rents and other amounts
payable under the Leases; real estate taxes, improvement district and other
types of assessments, and personal property taxes with respect to the Property,
based on the latest available information; income and expenses under any type of
contracts being assigned under the Assignment and Assumption Agreement; and
utility charges payable by the owner of the Property.
237547.5
8.3. Tenant Rents and
Deposits. In prorating tenant rents and all other amounts due
under the Leases (collectively, the “Rents”),
Rents which relate to the months or other applicable periods up through the
month or other applicable period within which the Closing occurs shall be
prorated. Any Rent which is payable in arrears shall be adjusted on
the basis of figures equivalent to such amounts payable for the immediately
preceding period, then readjusted after the Closing upon determination of final,
actual amounts in accordance with Section
8.1. Seller shall receive a credit for any Rents which are due
and payable prior to the Closing but not actually paid by the respective
tenant(s), and Purchaser shall have all rights of collection and enforcement
with respect thereto after the Closing. Purchaser shall be credited
with the total of any and all prepaid rents and refundable tenant security
deposits under the Leases, whether or not such security deposits are actually
held by Seller, and shall assume Seller's obligation to refund such amounts as
and if required by the terms of the Leases.
8.3.1. Pass
Throughs. As part of Rents, tenants under the Leases may be
obligated to pay “pass throughs” such as their proportionate share of property
taxes, insurance, operating expenses, or common area maintenance charges
(collectively, the “Pass
Throughs”). Estimates of such Pass Throughs paid by the
tenants are reconciled with the actual Pass Throughs due after the end of each
calendar year. Notwithstanding anything in this Article
8 to the contrary, Seller and Purchaser shall re-prorate the Pass
Throughs after such reconciliation occurs, but in no event later than ninety
(90) days after the end of the calendar year in which the Closing
occurs.
8.4. Utilities. If
possible, in lieu of prorating utility charges, utility readings will be taken
on the day prior to the Closing Date, Seller shall pay the charges for utility
services based on such reading, and Purchaser shall contract for such utilities
and pay all utility expenses incurred on and after the Closing
Date.
8.5. Payment. At
the Closing, the net adjustment by reason of the closing costs incurred by the
parties and by the foregoing prorations and apportionments, if in favor of
Seller, shall be paid in immediately available funds to Escrow Agent, or, if in
favor of Purchaser, shall be paid by set off against the Cash
Payment.
8.6. Real Property Tax
Appeal. If Seller has undertaken, or prior to the Closing
undertakes, an appeal of the real property taxes applicable to the Property and
if such tax appeal is not finalized prior to the Closing, Purchaser agrees that
after the Closing it shall continue the services of Seller’s attorney or tax
appeal consultant for such tax appeal until the same is completed. If
the Closing occurs, upon the completion of such appeal, any reduction in taxes
and such attorney or tax appeal consultant’s fees shall be prorated between
Seller and Purchaser based on their respective periods of ownership during the
relevant tax year(s).
9. Possession. Possession
of the Property shall be delivered to Purchaser upon the
Closing.
237547.5
10. Brokerage. Purchaser
and Seller warrant and represent to each other that neither has dealt with any
real estate broker or salesperson in connection with this transaction except CB
▇▇▇▇▇▇▇ ▇▇▇▇▇, which represents Seller exclusively, and Vast Commercial Real
Estate Solutions, LLC, which represents Purchaser exclusively (collectively, the
“Broker”).
Seller shall be responsible for the payment of a brokerage commission to the
Broker in the amount of three and one half percent (3.5%) of the Purchase Price,
but only in the event that the Closing occurs, such commission to be split two
and one half percent (2.5%) to CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ and one percent (1.0%) to Vast
Commercial Real Estate Solutions, LLC. If the Closing fails to occur
for any reason whatsoever, including the default by either party hereunder,
Seller shall have no obligation to pay the Broker any brokerage commission with
regard to the transaction contemplated herein and in no event shall the Broker
have any claim to any portion of the Deposit that may be forfeited in the event
of a Purchaser default hereunder. If any other person shall assert a
claim to a finder's fee, brokerage commission, or any other compensation on
account of alleged employment as a finder or broker or performance of services
as a finder or broker in connection with this transaction, the party under whom
the finder or broker is claiming shall indemnify and hold the other party
harmless from and against any such claim and all costs, expenses and liabilities
incurred in connection with such claim or any action or proceeding brought on
such claim, including, but not limited to, counsel and witness fees and court
costs in defending against such claim. This indemnity shall survive
the Closing or termination and termination of this Agreement and the
escrow. Purchaser hereby discloses to Seller that a member of Vast
Commercial Real Estate Solutions, LLC is also a member of
Purchaser. By its execution of the Acceptance by Broker below, the
Broker agrees to the provisions of this Article
10.
11. Remedies.
11.1. Seller's
Remedies. Subject to the terms of the second to the last
sentence of this Section
11.1, if Purchaser fails to perform as required by this Agreement on or
prior to the Closing Date, in the time and manner set forth in this Agreement,
and provided Seller is not then in default, Seller may terminate this Agreement
and the escrow if such default is not cured after five (5) days written notice
to Purchaser and the Escrow Agent, in which event Seller shall be entitled to
all of the Deposit (and Escrow Agent shall deliver to Seller the Deposit), as
consideration for acceptance of this Agreement, for taking the Property off the
market, and as the parties' best estimate of Seller's damages resulting from
Purchaser's default, but not as a penalty. The Deposit released to
Seller upon such termination shall be Seller's sole and exclusive remedy against
Purchaser in all respects, except for any indemnification obligations of
Purchaser contained in this Agreement and except as provided in the immediately
following sentence. Notwithstanding the foregoing, if Purchaser
wrongfully refuses to cause Escrow Agent to terminate the escrow created hereby,
if Purchaser wrongfully claims that this Agreement has not been terminated, or
if Purchaser wrongfully refuses to allow the termination of this Agreement
following a default by Purchaser, Seller shall also be entitled to recover
(a) all costs and expenses, including actual attorneys' fees, incurred by
Seller in seeking specific performance of this liquidated damages provision, and
(b) all costs and expenses, including actual attorneys' fees and
consequential damages, if any, which may be incurred by Seller by reason of the
cloud on title to the Property which may result from Purchaser's wrongful
failure to allow the termination of the escrow created
237547.5
hereby
and the Agreement. Notwithstanding the foregoing to the contrary,
Purchaser shall be entitled to no cure period if Purchaser fails to close escrow
on the Closing Date due to Purchaser's failure to have immediately available
funds in escrow sufficient in amount to close the transaction described herein
in accordance with the terms of this Agreement.
11.2. Purchaser's
Remedies. If Seller fails to perform when due any act required
by this Agreement to be performed by Seller on or prior to the Closing Date, and
provided Purchaser is not then in default, then Purchaser, as its sole and
exclusive remedies, may, if such default is not cured after five (5) days notice
to Seller and Escrow Agent, either: (i) terminate this Agreement
and the escrow, such termination to be effective upon Purchaser giving written
notice of termination to Seller and Escrow Agent, and upon such termination,
Purchaser shall be entitled to (x) a return of, and Escrow Agent shall deliver
to Purchaser, the Deposit (together with the interest thereon as described in
Section 1.3.1),
and (y) reimbursement from Seller for Purchaser’s reasonable actual
out-of-pocket expenses incurred to unrelated third parties during the inspection
process for third-party reports, appraisal fees, and similar expenses (other
than the Design Costs, as that term is defined in Article
17), but not to exceed Twenty-Five Thousand and No/100 Dollars
($25,000.00); or (ii) bring an action to compel specific performance of
Seller's obligations hereunder, thereby waiving any other legal and equitable
remedies against Seller; provided, however, that any action for specific
performance must be filed and served upon Seller within thirty (30) days after
Seller’s alleged failure to perform, otherwise Purchaser shall be deemed to have
elected to proceed in accordance with clause (i) above. In no event
shall Purchaser be entitled to seek or obtain money damages against Seller based
on Seller's alleged failure to perform when due any act required by this
Agreement to be performed by Seller on or prior to the Closing
Date.
11.3. Post-Closing
Breaches. Notwithstanding the foregoing, Purchaser shall be
entitled to bring an action for actual damages in the event Seller fails to
perform when due any act required by this Agreement to be performed by Seller
after the Closing or in the event Purchaser first discovers after the Closing
and within the period of survival, as set forth in Section
13.8, that a representation and warranty made by Seller set forth in
Section
13.1 was not correct in any material respect at the Closing
(collectively, the “Post-Closing
Breaches”); provided, however, in no event shall: (i)
Purchaser be entitled to bring an action for actual damages arising from any
Post-Closing Breaches unless the loss, damage, cost and expense suffered or
incurred by Purchaser due to such Post-Closing Breaches (collectively, the
“Post-Closing
Losses”) equal or exceed Ten Thousand and No/100 Dollars ($10,000.00) in
the aggregate; (ii) Seller’s aggregate liability for all Post-Closing
Losses exceed an amount equal to five percent (5%) of the Purchase Price; and
(iii) Purchaser be entitled to punitive or consequential damages from
Seller. The provisions of this Section shall survive the
Closing.
12. Opening
Date. The “Opening
Date” shall be the date on which a fully executed copy or counterpart
copies hereof (including the Acceptance by Broker below), together with the
Initial Deposit, is delivered to, and accepted by, Escrow
Agent. Escrow Agent is hereby instructed to enter the Opening Date on
page 3
of this Agreement.
237547.5
13. Representations and
Warranties.
13.1. Seller's Representations and
Warranties. Seller represents and warrants to Purchaser, as of
the Opening Date, as follows:
13.1.1. Full Power and
Authority. Seller is a corporation duly organized and validly
existing under the laws of the state of Delaware, and has the full power and
authority to execute and deliver this Agreement, and to perform and carry out
all covenants and obligations to be performed and carried out by it
hereunder.
13.1.2. Legal, Valid and
Binding. This Agreement and all other instruments or documents
executed or delivered in connection with this transaction each constitute legal,
valid and binding obligations of Seller, enforceable against Seller in
accordance with their respective terms.
13.1.3. No Approval by Governmental
Authority. No consent, approval, authorization, registration,
qualification, designation, declaration or filing with any governmental
authority is required in connection with the execution and delivery of this
Agreement by Seller.
13.1.4. No
Lawsuits. To the actual knowledge of Seller, there are no
actions, suits, proceedings or investigations pending or threatened with respect
to or in any manner affecting Seller's ownership of the Property or otherwise
affecting any portion thereof, or which will become a cloud on the title to the
Property or question the validity or enforceability of the transaction
contemplated herein, or which may adversely affect Seller's ability to perform
hereunder.
13.1.5. Non-Foreign
Certification. Seller is not, and as of the Closing Date will
not be, a “foreign person” within the meaning of Internal Revenue Code Section
1445, and Seller shall deliver to Purchaser at Closing a Non-Foreign
Certification pursuant to Section 1445(b)(2) of the Internal Revenue
Code.
13.1.6. No
Violation. Execution of this Agreement and all documents
executed pursuant to this Agreement, and performance by Seller of its
obligations hereunder, will not breach or violate any other agreement, court
order or other arrangement by which Seller is bound.
13.1.7. Violations of
Law. To the actual knowledge of Seller, Seller has received no
written notice from any governmental agency, entity, official or insurance
company that the Property is in violation of any applicable laws or regulations
(including, but not limited to, zoning regulations, building and fire codes, and
environmental laws and regulations), except as otherwise disclosed in the
Property Documents, or except as has been cured prior to the Opening
Date.
237547.5
13.1.8. Patriot Act
Compliance. Seller (i) is not acting, directly or indirectly,
for or on behalf of any person, group, entity, or nation named by any Executive
Order or the United States Treasury Department as a terrorist, “Specially
Designated National and Blocked Person,” or other banned or blocked person,
group, entity, nation, or transaction pursuant to any law, order, rule or
regulation that is enforced or administered by the Office of Foreign Assets
Control; and (ii) is not engaged in this transaction, directly or indirectly on
behalf of, or instigating or facilitating this transaction, directly or
indirectly on behalf of, any such person, group, entity or
nation. Seller shall provide to Purchaser, upon request, identifying
information and other information reasonably requested by Purchaser in its
efforts to comply with such laws, orders, rules or regulations.
13.1.9. Mechanics
Liens. No work has been performed or is progress on the
Property, and no materials have been furnished to the Property, which might give
rise to mechanics’, materialmens’ or other lien, or if the same is filed, Seller
shall be responsible, at its sole cost, for discharging the same of record at
Closing.
13.1.10. Parties in
Possession. There are no parties in possession of the Property
except Seller and any tenants under the Leases, and Seller has granted no party
any unrecorded license or other unrecorded right relating to the use or
occupancy of the Property, except as otherwise disclosed in the Property
Documents or the Title Report.
13.1.11. No
Default. To the actual knowledge of Seller, there is no
default, nor has any event occurred that with the passage of time or the giving
of notice or both would constitute a default in any material contract, mortgage,
or deed of trust which affects the Property.
13.1.12. No Sales
Contracts. Seller has not entered into any other contract or
other obligation for the sale, exchange, or transfer of all or any part of the
Property.
13.1.13. No Lease
Amendments. To the actual knowledge of Seller, there are no
written or oral modifications of the Leases, except as set forth in the Property
Documents.
13.2. As Is, Where
Is. Other than the representations and warranties expressly
stated above in Section
13.1, Seller makes no other or further representations and/or warranties
of any sort whatsoever. Except for the express representations and
warranties set forth in Section 13.1,
Purchaser is relying entirely on Purchaser's own investigations and examinations
as to the physical condition and every other aspect of the Property, including
without limitation, the structural integrity of the Improvements, the conformity
of the Improvements to any plans or specifications for the Property, conformity
to past, current or future zoning or building code requirements, the existence
of soil instability, soil repairs, and any other soil conditions, sufficiency of
undershoring and drainage, the existence of any flood plains or flood hazards or
similar conditions, every other matter affecting the stability or integrity of
the Land or Improvements, the environmental condition of the Property and the
income and expenses generated by the Property. Purchaser acknowledges
that it has performed, or during the Property Review Period will perform, the
Inspections, that any information provided or made available or to be provided
or made
237547.5
available
to Purchaser by Seller, or its agents, brokers, members, managers, partners,
representatives, or others, including, without limitation, the Property
Documents was provided or made available or will be provided or made available
solely as a courtesy, and that Purchaser has the sole responsibility for
determining the existence or nonexistence of any fact material to Purchaser's
decision to purchase the Property. Purchaser acknowledges that
Purchaser is purchasing the Property on an “AS-IS, WHERE-IS” basis,
except as specifically represented and warranted in Section
13.1, without any implied warranties, and Purchaser is completely at risk
with respect to all attributes and conditions, latent or otherwise, of the
Property. Seller does not warrant the Property to be free from
defects and Purchaser expressly accepts the possibility of such defects, subject
only to Purchaser's ability to terminate this Agreement during the Property
Review Period as described above in Section
5.1. By executing this Agreement, Purchaser hereby gives
Seller, as a material inducement for Seller to enter into this Agreement, a full
release of any and all claims or causes of action Purchaser may have now or in
the future based upon the condition of the Property and all other matters
pertaining to the Property, except as expressly set forth in Section
13.1. Such release applies to claims or causes or action
arising at common law, under statute, or otherwise, whether sounding in contract
or in tort, including, without limitation, claims or causes of action for
misrepresentation or nondisclosure.
13.3. Actual Knowledge of
Seller. When used in this Agreement, the term “actual
knowledge of Seller” shall mean and be limited to the actual (and not
imputed, implied or constructive) current knowledge of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ obtained by having received written
notice of the fact or matter at issue. Notwithstanding anything
herein to the contrary, such persons shall not have any personal liability or
liability whatsoever with respect to any matters set forth in this Agreement or
Seller's representations and/or warranties herein being or becoming untrue,
inaccurate or incomplete in any respect.
13.4. Conflicting
Information. Notwithstanding anything to the contrary
contained herein, to the extent that any documents or information regarding
Seller or the Property (including, without limitation, the Property Documents
and the Seller’s Closing Certificate) are disclosed to Purchaser or brought to
Purchaser's attention prior to the Closing, either orally or in writing, and
Purchaser nevertheless closes on the purchase of the Property, Purchaser shall
be deemed to have accepted and to have waived any objection to or claim based on
such documents or information.
13.5. Conditions to Purchaser's
Closing. The continued accuracy in all material
respects of the representations and warranties set forth in Section 13.1
above shall be a condition precedent to the Purchaser's obligation to close
escrow on the Property. If any representation or warranty set forth
in Section 13.1
above shall not be correct in any material respect at or before the Closing, as
may be determined by the Seller Closing Certificate delivered to Purchaser at
the Closing or otherwise, Purchaser may, as its sole and exclusive remedy on
account thereof, terminate this Agreement and receive a return of the Deposit in
accordance with the terms of Section
6.3, in which event the Seller and the Purchaser shall have no further
liability to each other hereunder (except for any indemnification,
confidentiality or other obligations described herein which are expressly stated
herein to survive any termination).
237547.5
13.6. Purchaser's Representations
and Warranties. Purchaser represents and warrants to
Seller (and on the Closing Date shall be deemed to represent and warrant) as
follows:
13.6.1. Capacity. Purchaser
has the full power, authority and legal capacity to execute and deliver this
Agreement and to perform and carry out all covenants and obligations to be
performed and carried out by Purchaser hereunder.
13.6.2. Legal, Valid and
Binding. This Agreement constitutes the legal, valid and
binding obligation of Purchaser, enforceable against Purchaser in accordance
with its respective terms.
13.6.3. No Approval by Governmental
Authority. No consent, approval, authorization, registration,
qualification, designation, declaration or filing with any governmental
authority is required in connection with the execution and delivery of this
Agreement by Purchaser.
13.6.4. No
Violation. Execution of this Agreement and all documents
executed pursuant to this Agreement, and performance by Purchaser of its
obligations hereunder, will not breach or violate any other agreement, court
order or other arrangement by which Purchaser is bound.
13.6.5. No
Lawsuits. To the actual knowledge of Purchaser, there are no
actions, suits, proceedings or investigations pending or threatened against
Purchaser which question the validity or enforceability of the transaction
contemplated herein.
13.6.6. Patriot Act
Compliance. Purchaser: (i) is not acting, directly or
indirectly, for or on behalf of any person, group, entity, or nation named by an
Executive Order or the United States Treasury Department as a terrorist,
“Specially Designated National and Blocked Person,” or any other banned or
blocked person, group, entity, nation or transaction pursuant to any law, order,
rule or regulation that is enforced or administered by the Office of Foreign
Assets Control; and (ii) is not engaged in this transaction, directly or
indirectly, on behalf of, or instigating or facilitating this transaction,
directly or indirectly, on behalf of, any such person, group, entity or
nation. Purchaser hereby agrees to provide Seller, upon request,
identifying information and other information reasonably requested by Seller in
its efforts to comply with such laws, orders, rules or regulations.
13.6.7. Financial
Ability. Purchaser has the financial resources, including the
ability to borrow funds necessary to carry out its obligations under this
Agreement.
13.7. Condition to Seller's
Obligation to Close. The continued accuracy in all material
respects of the representations and warranties set forth in Section 13.6
shall be a condition precedent to Seller's obligation to close escrow on the
Property. If any representation or warranty set forth in Section 13.6
shall not be correct in any material respect at or before Closing, the same
shall constitute an incurable default by Purchaser pursuant to Section 11.1.
237547.5
13.8. Survival. Any
cause of action of a party (the “Benefiting
Party”) for a breach of any representations or warranties set forth in
this Agreement or in any other document delivered in connection herewith by the
other party (the “Obligated
Party”) shall survive until the date that is six (6) months after the
Closing Date (the period beginning on the Closing Date and ending on such date
being herein called the “Survival
Period”), at which time such representations and warranties (and any
cause of action resulting from a breach thereof) shall terminate except to the
extent the Benefiting Party files and serves litigation against the Obligated
Party in a court of competent jurisdiction on or before the last day of the
Survival Period claiming a breach of such representation or
warranty. Notwithstanding the foregoing: (1) if a
Benefiting Party shall have knowledge as of the Closing Date that any of the
representations or warranties of the Obligated Party contained herein or in any
other document delivered in connection herewith are false or inaccurate, then
the Obligated Party shall not have any liability or obligation respecting such
false or inaccurate representations or warranties (and any cause of action
resulting therefrom shall terminate upon the Closing); and (2) to the
extent any representation and warranty of Seller hereunder is confirmed by a
tenant estoppel certificate with respect to any particular Lease, such
representation and warranty shall be deemed stricken from this Agreement (and
from any certificate delivered in connection herewith), insofar as such Lease is
concerned (and Seller shall not have any obligation or liability with respect
thereto). Except with respect to any covenants which are expressly
stated in this Agreement to survive the Closing, any and all covenants by Seller
contained in this Agreement shall merge in the Deed delivered at the Closing and
shall not survive the Closing.
14. Condemnation. If
prior to the Closing all of the Property shall be taken by eminent domain, this
Agreement shall be automatically terminated and the Deposit shall be returned to
Purchaser as provided in Section 6.3. If,
prior to the Closing, ten percent (10%) or more of the parking spaces serving
the Property, or if any portion of the Improvements constituting all or a part
of the buildings shall be taken by eminent domain, then Purchaser may, at its
option, either: (i) terminate this Agreement, in which event the
Deposit shall be returned to Purchaser as provided in Section 6.3,
or (ii) Purchaser may accept title to the Property subject to the taking,
with no decrease in the Purchase Price, in which event at the Closing the
proceeds of the condemnation award or payment shall be assigned by Seller to
Purchaser and any monies theretofore received by Seller in connection with such
taking shall be paid over to Purchaser. If prior to the Closing a
portion of the Property is taken by eminent domain, but such portion constitutes
less than ten percent (10%) of the parking spaces serving the Property and if no
portion of the Improvements constituting all or a part of the buildings on the
Property has been taken, then Purchaser shall accept title to the Property
remaining after the taking with no decrease in the Purchase Price and at the
Closing the proceeds of the condemnation award or payment shall be assigned by
Seller to Purchaser and any moneys theretofore received by Seller in connection
with such taking shall be paid over to Purchaser. All elections
required under this Article 14
to be made by either Seller or Purchaser shall be made in writing within five
(5) days following receipt of actual notice that all or a portion of the
Property has been taken by eminent domain. The failure of Purchaser
to make a timely election under this Article 14
shall be deemed its election to proceed to the Closing in accordance with the
terms of this Article.
237547.5
15. Casualty
Loss. If prior to the Closing the Property is damaged as the
result of fire or other casualty in an amount equal to or exceeding Five Hundred
Thousand and No/100 Dollars ($500,000.00) and is not entirely restored by the
Closing Date, Purchaser shall have the option prior to the Closing to
(a) accept title to the Property without any abatement of the Purchase
Price whatsoever, in which event at the Closing all of the insurance proceeds
shall be assigned by Seller to Purchaser, any monies theretofore received by
Seller in connection with such fire or other casualty shall be paid over to
Purchaser and Purchaser shall receive a credit in the amount of the deductible
or other co-payment required under Seller's insurance policy, or
(b) terminate this Agreement, in which event the Deposit, or so much
thereof as has been deposited into escrow, shall be returned to Purchaser in
accordance with Section 6.3
and thereupon neither party shall have any further liability or obligation to
the other. If prior to the Closing, the Property is damaged as a
result of fire or other casualty in an amount less than Five Hundred Thousand
and No/100 Dollars ($500,000.00) and provided Purchaser has not previously
terminated this transaction in accordance with any other provision of this
Agreement, Purchaser shall accept title to the Property without any abatement of
the Purchase Price whatsoever, provided Seller is fully insured for the
replacement cost of any damage and Seller's insurer confirms to Purchaser in
writing that such damage is actually covered, in which event at the Closing
Purchaser shall receive a credit in the amount of the deductible or other
co-payment required under Seller's insurance policy and all of the insurance
proceeds shall be assigned by Seller to Purchaser and any monies theretofore
received by Seller in connection with such fire or other casualty shall be paid
over to Purchaser. Seller shall maintain adequate insurance on the
Property to cover the replacement value of the Improvements (exclusive of
footings and foundations) in case of any fire or other casualty occurring before
the Closing.
16. Risk of
Loss. Except as expressly set forth in Articles
14 and 15, the risk of loss or damage to the Property until the Closing
shall be borne by Seller.
17. Leaseback. At
the Closing, Purchaser, as landlord, and Seller, as tenant, shall enter into one
or more leases (whether one or more, the “Leaseback”)
by which Seller will lease from Purchaser approximately 12,792 square foot of
office space within the Improvements (the “Office
Space”) and approximately 24,520 square foot of manufacturing and
warehouse space within the Improvements (the “Manufacturing/Warehouse
Space”), both as depicted on Exhibit
“G”. The exact space
plan and square footage of the Office Space and Manufacturing/Warehouse Space
shall be agreed to in writing by Seller and Purchaser prior to the expiration of
the Property Review Period. The Leaseback shall have a term of ten
(10) years from the Closing Date, or such longer term as Seller and Purchaser
may mutually agree to. The Leaseback shall be on a triple net basis
and shall not contain a base year or expense stop; however, controllable
operating expenses passed through to tenant shall not increase more than five
percent (5%) per year during the term of the Leaseback. The base rent for the
Office Space shall be One and No/100 Dollars ($1.00) per square foot per month
and the base rent for the Manufacturing/Warehouse Space shall be One and 16/100
Dollars ($1.16) per square foot per month. The Leaseback shall
provide that promptly after the Closing, Purchaser, at Purchaser’s sole cost and
expense, shall demise or cause to be demised (including, without limitation,
splitting utilities, mechanical and plumbing systems) and
improve
237547.5
the
Office Space and the Manufacturing/Warehouse Space as provided for on Exhibit
“H” (the “Tenant
Improvements”). It is
anticipated that the cost to prepare a space plan, to have the square footage of
the Office Space and the Manufacturing/Warehouse Space accurately measured by a
licensed architect and to design and construct the Tenant Improvements will not
exceed Three Hundred Seventy-Seven Thousand Nine Hundred Twenty Dollars and
No/100 ($377,920.00) (the “TI
Cap”). Promptly after the Opening Date, Purchaser shall retain
such architects, engineers, and/or contractors necessary to prepare a space plan
of the Office Space and the Manufacturing/Warehouse Space, determine the exact
square footage of the Office Space and Manufacturing/Warehouse Space, and make a
determination of the cost to design and construct the Tenant
Improvements. In order for Purchaser to meet its obligation to
prepare a space plan of the Office Space and the Manufacturing/Warehouse Space,
Seller and/or Seller’s representatives shall, at Purchaser’s request, meet with
Purchaser’s architect and provide whatever information is reasonably requested
by Purchaser’s architect to prepare such space plan in a timely manner,
including, specifications, but only to the extent such information is in the
possession or control of Seller. Purchaser and Seller shall use their
commercially reasonable efforts to agree in writing on a space plan within
twenty (20) days after the Opening Date. If during the Property
Review Period, Purchaser determines that the cost of preparing the space plan,
of determining the square footage contained within the Office Space and the
Manufacturing/Warehouse Space and of designing and constructing the Tenant
Improvements will exceed the TI Cap, Purchaser shall notify Seller of the excess
cost (the “Excess TI
Cost”) in writing (the “Excess TI
Cost Notice”) not less than fifteen (15) days prior to the expiration of
the Property Review Period. The Excess TI Cost Notice shall include
copies of any estimates, studies, or other materials obtained by Purchaser from
such architects, engineers, and/or contractors Purchaser has
retained. Purchaser may elect to terminate this Agreement by written
notice given to Seller and Escrow Agent within ten (10) days after giving the
Excess TI Cost Notice to Seller, unless Seller gives Purchaser and Escrow Agent
written notice within such ten (10) day period that Seller agrees to pay the
Excess TI Cost or unless Seller and Purchaser mutually agree in writing by such
date on such other financial adjustments to this Agreement or the Leaseback that
are mutually acceptable to both. If this Agreement terminates because Purchaser
determines that the cost of preparing the space plan, determining the square
footage contained within the Office Space and the Manufacturing/Warehouse Space
and designing and constructing the Tenant Improvements will exceed the TI Cap
and Seller does not elect to pay the Excess TI Cost and Seller and Purchaser are
not otherwise able to mutually agree upon other financial adjustments to this
Agreement or the Leaseback, Seller shall reimburse Purchaser for Purchaser’s
actual out-of-pocket expenses, not to exceed Forty Thousand and No/100 Dollars
($40,000.00), incurred to third party architects, engineers, and/or contractors
in preparing the space plan, measuring the Office Space and
Manufacturing/Warehouse Space, and determining the costs to design and construct
the Tenant Improvements (collectively, the “Design
Costs”); provided, however, all work product of such third parties shall
be transferred and assigned to Seller as a condition of such
reimbursement. The form of the Leaseback shall be prepared by
Seller’s counsel, shall contain such other terms and provisions as are common in
leases of such kind, and shall be mutually agreed to in writing by Seller and
Purchaser on or prior to the expiration of the Property Review Period, failing
which, either Seller or Purchaser shall have the right to terminate this
Agreement by written notice to the other and Escrow Agent given on or before the
expiration of the Property Review Period. In the event of such
termination, Purchaser shall be entitled to a refund of the Deposit, provided
Purchaser is not then otherwise in breach of this Agreement.
237547.5
18. Notices. All
notices required or permitted to be given under this Agreement shall be in
writing and shall be given by electronically confirmed facsimile transmission,
personal delivery, recognized overnight courier service, or by deposit in the
United States mail, certified mail, return receipt requested, postage prepaid,
addressed to Seller, Purchaser and Escrow Agent at the addresses or to the
facsimile numbers set forth on the first page of this Agreement or at such other
address as a party may designate by notice similarly given. Notice
given by facsimile transmission shall be followed by notice given by an
alternate means of permitted notice. Notice shall be deemed given and
received on the date on which the notice is actually received, whether notice is
given by facsimile transmission, personal delivery, overnight courier or by
mail. Copies of any notice given to Seller shall also be given
to:
Presstek,
Inc.
▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇, Esq.
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇ and
▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
19. Miscellaneous.
19.1. Incorporation of
Recitals. The recitals to this Agreement are hereby affirmed
by the parties as true and correct and are incorporated herein by this
reference.
19.2. Waivers. No
waiver of any of the provisions of this Agreement shall constitute a waiver of
any other provision, whether or not similar, nor shall any waiver be a
continuing waiver. Except as expressly provided in this Agreement, no
waiver shall be binding unless executed in writing by the party making the
waiver. Either party may waive any provision of this Agreement
intended for its sole benefit; however, unless otherwise provided for herein,
such waiver shall in no way excuse the other party from the performance of any
of its other obligations under this Agreement.
19.3. Construction. This
Agreement shall be interpreted according to Arizona law, and shall be construed
as a whole and in accordance with its fair meaning and without regard to, or
taking into account, any presumption or other rule of law requiring construction
against the party preparing this Agreement or any part hereof.
237547.5
19.4. Time. Time
is of the essence of this Agreement.
19.5. Attorneys'
Fees. If any action is brought by either party in respect to
its rights under this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees and courts costs as determined by the
court.
19.6. Assignment. Purchaser
may not assign its rights under this Agreement prior to Closing except with the
prior written consent of Seller, to be granted or withheld in Seller's sole and
absolute discretion; notwithstanding the foregoing to the contrary, Purchaser
may assign its rights under this Agreement prior to Closing without Seller’s
consent to an entity in which Purchaser and its principals collectively own a
majority in interest and over which they exercise management
control. Any entity to which Purchaser is permitted to assign its
rights under this Agreement, either with or without Seller’s prior written
consent, is referred to herein as a “Permitted
Assign”. Regardless of whether Seller’s consent is required: (i) no
such assignment of Purchaser’s rights hereunder shall be effective unless and
until Purchaser has delivered to Seller, not later than ten (10) days prior to
the Closing Date, a written assignment and assumption agreement signed by
Purchaser and assignee whereby the assignee expressly assumes all obligations of
Purchaser hereunder, and whereby an address for notices to the assignee is
provided, and (ii) no such assignment and assumption shall be deemed to release
Purchaser from any of his obligations and liabilities hereunder. Any
assignment made by Purchaser in violation of the provisions of this Section 19.6
shall be void and shall vest no rights whatsoever in the purported
assignee.
19.7. Binding
Effect. This Agreement and all instruments or documents
entered into pursuant hereto are binding upon and, except as set forth in Section 19.6,
shall inure to the benefit of the parties and their respective successors and
assigns.
19.8. Further Assurances and
Documentation. Each party agrees in good faith to take such
further actions and execute such further documents as may be necessary or
appropriate to fully carry out the intent and purpose of this
Agreement.
19.9. Time
Periods. If the time for the performance of any obligation
under this Agreement expires on a Saturday, Sunday or legal holiday (as
recognized by the laws of the state of Arizona), the time for performance shall
be extended to the next succeeding day which is not a Saturday, Sunday or legal
holiday.
19.10. Headings. The
headings of this Agreement are for purposes of reference only and shall not
limit or define the meaning of any provision of this Agreement.
19.11. Entire
Agreement. This Agreement, together with all exhibits referred
to herein, which are incorporated herein and made a part hereof by this
reference, constitute the entire agreement between the parties pertaining to the
subject matter contained in this Agreement. No supplement,
modification or amendment of this Agreement shall be binding unless in writing
and executed by Purchaser and Seller.
237547.5
19.12. Counterparts. This
Agreement may be executed by the exchange of faxed or e-mailed signatures and in
any number of counterparts, all of which shall constitute one and the same
instrument.
19.13. Tax Deferred
Exchange. If either or both Seller or Purchaser so requests,
the other party shall cooperate with the requesting party to the extent
reasonably necessary for the requesting party to qualify all or a portion of the
sale or purchase of the Property as a tax deferred exchange within the meaning
of Section 1031 of the Internal Revenue Code of 1986, as amended; provided,
however, that the non-requesting party shall not be obligated to incur any
additional expense (including attorneys' fees) or liability on account of its
accommodation of the requesting party nor shall such tax deferred exchange delay
the Closing Date.
19.14. Timing. The
phrase “business
days” as used herein shall mean the days of Monday through Friday,
excepting only holidays recognized under the laws of the state of
Arizona. The phrase “calendar
days” as used herein shall mean all days of the week, including all
holidays. The term “days” without reference to calendar or business
days shall mean calendar days.
19.15. Confidentiality. Purchaser
acknowledges that all information with respect to the Property furnished or to
be furnished to Purchaser is, has been and will be so furnished on the condition
that Purchaser maintain the confidentiality thereof. Accordingly, as
a material inducement for Seller to enter into this Agreement, Purchaser
covenants that it shall, and shall cause its representatives to, hold in strict
confidence, and not disclose to any other party without the prior written
consent of the Seller and unless the Closing occurs: (i) any of
the information with respect to the Property delivered to Purchaser by Seller or
any of its agents, representatives or employees, or (ii) the existence of
this Agreement or any term or condition hereof, or (iii) the results of any
inspections or studies undertaken in connection
herewith. Notwithstanding the above, Purchaser may disclose such
information to individuals or entities necessary for Purchaser to consummate the
transaction contemplated herein (such as lenders, engineers, respective
management companies, environmental consultants, accountants and tax advisors
(and as required by law)). Purchaser shall require that any parties
to whom the existence of this Agreement or any information with respect to the
Property is disclosed execute a confidentiality agreement wherein the party
agrees not to disclose the existence of this Agreement or information with
respect to the Property to anyone.
19.16. Severability. If
any provision of this Agreement or any portion of any provision of this
Agreement shall be deemed to be invalid, illegal or unenforceable, such
invalidity, illegality or unenforceability shall not alter the remaining portion
of such provision, or any other provision hereof, as each provision of this
Agreement shall be deemed severable from all other provisions
hereof.
237547.5
IN WITNESS WHEREOF, the parties have
executed this Agreement as of the date first above written.
|
SELLER:
Presstek,
Inc.,
a
Delaware corporation
By:
Its:
PURCHASER:
EJC
Properties, LLLP,
an
Arizona limited liability limited partnership
By:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Its:
Managing Member
|
237547.5
ACCEPTANCE
BY ESCROW AGENT
Escrow Agent hereby (a) acknowledges
receipt of the Initial Deposit and a fully executed copy or counterpart copies
of this Agreement (including the Acceptance by Broker set forth below) on this
____________ day of _______________, 2008 and has inserted said date on
page 3 of this Agreement as the Opening Date, and (b) agrees to establish
an escrow (Escrow No. _________________) and to administer the same in
accordance with the provisions hereof. Escrow Agent further agrees to
immediately deliver to Purchaser and Seller copies or counterpart copies of this
fully executed Agreement.
Title
Security Agency of Arizona
By:
Name:
Title:
237547.5
ACCEPTANCE
BY BROKER
The undersigned Broker hereby accepts
and agrees to the provisions of Article 10
above.
CB
▇▇▇▇▇▇▇ ▇▇▇▇▇
By:
Name:
Title:
Date:
Vast
Commercial Real Estate Solutions, LLC
By:
Name:
Title:
Date:
237547.5
EXHIBIT
“A”
[Missing Graphic Reference]
237547.5
EXHIBIT
“B”
_________________,
2008
_____________________________
_____________________________
_____________________________
_____________________________
|
Re:
|
Land
and improvements located at ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
(collectively, the “Property”)
|
Dear Sir
or Madam:
Presstek, Inc. (the “Seller”)
has sold the Property to ________________________. Effective
immediately, Purchaser has become your landlord. All further payments
due under your lease should be made payable to, and all further correspondence
regarding your lease should be sent to:
________________________
________________________
________________________
Purchaser has assumed responsibility
for your security deposit, if any, and the Seller has no further responsibility
therefor.
Purchaser looks forward to his new
relationship with you.
Sincerely,
|
Presstek,
Inc.,
a
Delaware corporation
By:
Its:
|
, a(n)
By:
Its:
|
237547.5
EXHIBIT
“C”
When
recorded, return to:
SPECIAL
WARRANTY DEED
For the consideration of the sum of Ten
Dollars ($10.00) and other valuable consideration, Presstek, Inc., a Delaware
corporation (“Grantor”),
does hereby grant, sell and convey unto __________________________, a(n)
____________________________ (“Grantee”),
the following described real property located in Pima County,
Arizona:
|
|
See
Exhibit
“A” attached hereto and by this reference made a part hereof (the
“Property”)
together with all of the rights and appurtenances
thereto.
|
SUBJECT TO: All taxes and assessments;
patent reservations; all covenants, conditions, restrictions, servitudes, liens,
reservations, easements, declarations or other matters of record or to which
reference is made in the public records; any and all matters which an accurate
survey and physical inspection of the Property would reveal; the rights of the
tenants under recorded or unrecorded leases affecting all or any portion of the
Property as of the date hereof; zoning and other restrictions, reservations,
prohibitions, regulations and requirements imposed by governmental authorities;
and any matters created by or with the written consent of Grantee or arising as
a result of work performed by or other activities of the Grantee regarding the
Property.
Notwithstanding any warranty which may
be implied from the use of any word, phrase or clause herein, Grantor does not
warrant title to the Property other than to warrant and defend the title against
all acts of Grantor and no other, except for the matters above set
forth.
237547.5
IN WITNESS WHEREOF, the Grantor has
caused these presents to be executed this ____ day of ______________,
2008.
|
Presstek,
Inc.,
a
Delaware corporation
By:
Its:
|
STATE of
___________ )
) ss.
County of
____________ )
The foregoing instrument was
acknowledged before me this ____ day of ______________________, 2008, by
_______________________________,of Presstek, Inc., a Delaware corporation, on
behalf of the corporation.
Notary
Public
My
Commission Expires:
__________________________________
237547.5
EXHIBIT “A” TO SPECIAL
WARRANTY DEED
[INSERT
LEGAL DESCRIPTION FOR PROPERTY]
237547.5
EXHIBIT
“D”
▇▇▇▇
OF SALE
For Ten Dollars and other good and
valuable consideration paid to ___________________________________, a(n)
_____________________ (“Seller”),
the receipt and sufficiency of which are acknowledged, Seller sells, transfers,
conveys and assigns to ____________________________, a(n)
_________________________ (“Purchaser”),
without representation or warranty of title express or implied, all of Seller's
right, title, and interest in and to any tangible personal property, if any,
owned by Seller and situated upon that certain real property legally described
on the attached Exhibit
“A” (the “Personal
Property”).
The Personal Property is transferred in
a used and on an “AS IS, WHERE IS” condition, with all faults. Seller
makes no warranties, express or implied, of any kind to Purchaser regarding the
Personal Property. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
SELLER HEREBY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, QUALITY, DESIGN, OR OTHER SUITABILITY OF THE PERSONAL
PROPERTY FOR THE PURPOSES AND USES OF PURCHASER.
By accepting this ▇▇▇▇ of Sale,
Purchaser agrees that it is acquiring the Personal Property based solely upon
Purchaser's own independent investigations and inspections of the Personal
Property and not in reliance on any information provided by Seller or Seller's
agents, brokers or contractors.
IN WITNESS WHEREOF, Seller has executed
this ▇▇▇▇ of Sale to be effective ___________________, 2008.
|
Presstek,
Inc.,
a
Delaware corporation
By:
Its:
|
237547.5
EXHIBIT “A” TO ▇▇▇▇ OF
SALE
[ATTACH
LEGAL DESCRIPTION OF PROPERTY]
237547.5
EXHIBIT
“E”
ASSIGNMENT AND
ASSUMPTION
AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION
AGREEMENT (the “Assignment”)
is made to be effective as of ________________, 200_ [fill in with Closing Date]
(the “Effective
Date”), between Presstek, Inc., a Delaware corporation, (“Assignor”),
and _________________________, a(n) ______________________ (“Assignee”).
RECITALS:
A. Under
the terms of the Purchase and Sale Agreement and Escrow Instructions between
Assignor, as Seller, and Assignee, as Purchaser, dated ____________________
(the ”Agreement”),
Assignor is assigning to Assignee and Assignee is acquiring all of Assignor's
interest in, to and under the leases and any guaranties relating to the same
listed on Exhibit
“A” attached hereto and incorporated herein by this reference
(collectively, the “Leases”).
B. Assignor
is also assigning to Assignee and Assignee is assuming all of Assignor's
interest and obligations in, to and under the Warranties, Guaranties, Service
Contracts, Permits and Construction Documents (collectively, the “Contracts”),
which are all more fully described on Exhibit ”B”
attached hereto and incorporated herein by this reference and which pertain to
or arise out of the ownership, operation or maintenance of the real property
legally described on Exhibit ”C”
attached hereto and incorporated herein by this reference (the “Property”).
AGREEMENTS:
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Assignor and Assignee agree as set forth below.
1. Assignment of
Leases. Assignor assigns, conveys and transfers to Assignee
all of Assignor's right, title and interest in, to and under the
Leases.
2. Assumption of
Leases. Assignee assumes and agrees to perform, fulfill and
comply with all covenants and obligations to be performed, fulfilled or complied
with by the landlord under the Leases arising on and after the Effective
Date.
3. Assignee's Indemnification
of Assignor Under the Leases. Assignee shall and does
indemnify Assignor against, and agrees to hold Assignor harmless from, all
liabilities, obligations, actions, suits, proceedings or claims, and all costs
and expenses (including, without limitation, reasonable attorneys' fees),
incurred in connection with the Leases, based upon or
237547.5
arising
out of any breach or alleged breach of the Leases by Assignee occurring or
alleged to have occurred on or after the Effective Date.
4. Assignor's Indemnification
of Assignee Under the Leases. Assignor shall and does
indemnify Assignee against, and agrees to hold Assignee harmless from, all
liabilities, obligations, actions, suits, proceedings or claims, and all costs
and expenses (including, without limitation, reasonable attorneys' fees),
incurred in connection with the Leases, based upon or arising out of any breach
or alleged breach of the Leases by Assignor occurring or alleged to have
occurred before the Effective Date.
5. Assignment of
Contracts. Assignor assigns, conveys and transfers to
Assignee, all of Assignor's right, title and interest in, to and under the
Contracts.
6. Assumption of
Contracts. Assignee assumes and agrees to pay all sums, and
perform, fulfill and comply with all covenants and obligations to be performed
and complied with by the holder of the interest of the person to whom service is
due under the Contracts arising on or after the Effective Date.
7. Assignee's Indemnification
of Assignor Under the Contracts. Assignee shall and does
indemnify Assignor against, and agrees to hold Assignor harmless from,
liabilities and losses incurred by Assignor as a result of claims brought
against Assignor relating to causes of action under the Contracts that accrue on
or after the Effective Date.
8. Assignor's Indemnification
of Assignee Under the Contracts. Assignor shall and does
indemnify Assignee against, and agrees to hold Assignee harmless from, all
liabilities and any losses incurred by Assignee as a result of claims brought
against Assignee, as Assignor's successor in interest under the Contracts,
relating to causes of action under the Contracts that accrued before the
Effective Date.
9. No Representations or
Warranties. This Assignment shall not be construed as
representation or warranty by Assignor as to the transferability of the
Contracts or the Trademarks, and Assignor shall have no liability to Assignee in
the event that any or all of the Contracts (i) are not transferable to Assignee,
or (ii) are terminated or terminated by reason of this Assignment.
10. Cooperation. Assignor
covenants and agrees to reasonably cooperate with Assignee, upon Assignee's
request, in making any claim or bringing any action under or on account of the
Leases, Contracts, or Trademarks or any of them; provided, however, it will be
at no cost to Assignor.
11. Binding
Effect. This Assignment shall inure to the benefit of and
shall be binding upon the parties and their respective successors and
assigns.
12. Counterparts. This
Assignment may be executed in counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same
instrument.
237547.5
13. Governing
Law. This Assignment shall be governed by and construed in
accordance with the laws of the State of Arizona.
14. Recitals. The
Recitals set forth above are incorporated herein by this reference and are
acknowledged by the parties to be true and correct.
IN WITNESS WHEREOF, Assignor and
Assignee have executed this Assignment as of the Effective Date.
|
ASSIGNOR:
Presstek,
Inc.,
a
Delaware corporation
By:
Its:
ASSIGNEE:
, a(n)
By:
Its:
|
237547.5
EXHIBIT “A” TO
ASSIGNMENT
[LIST OF
LEASES]
237547.5
EXHIBIT “B” TO
ASSIGNMENT
The
“Contracts” include:
(a) All
warranties and guaranties (the “Warranties
and Guaranties”) relating to those certain buildings and all other
improvements now located on the Property (collectively, the “Buildings”);
(b) The
operations, supply, employment, maintenance, repair, service or other contracts
(other than property management contracts) and personal property leases relating
to the Property and the Buildings and the ownership, operation and maintenance
thereof listed on Schedule “A” attached to this Assignment (collectively, the
“Service
Contracts”);
(c) All
licenses and governmental approvals and permits of any nature relating to the
Property or the Buildings (collectively, the “Permits”);
(d) All
contracts pertaining to the construction of the Buildings, together with all
plans, specifications, drawings and architectural and engineering studies
(collectively, the “Construction
Documents”).
237547.5
EXHIBIT “C” TO
ASSIGNMENT
[ATTACH
LEGAL DESCRIPTION OF PROPERTY]
237547.5
SCHEDULE “A” TO EXHIBIT “B”
OF ASSIGNMENT
[ATTACH
LIST OF SERVICE CONTRACTS TO BE ASSUMED BY ASSIGNEE PURSUANT TO THE
AGREEMENT]
237547.5
EXHIBIT
“F”
[ATTACH
LIST OF PROPERTY DOCUMENTS]
237547.5
EXHIBIT
“G”
[Missing Graphic Reference]
237547.5
EXHIBIT
“H”
[ATTACH
DESCRIPTION OF TENANT IMPROVEMENTS]