1
EXHIBIT 10.52
PUT/CALL AGREEMENT
This Put/Call Agreement (the "Agreement") is made and entered into this
17th day of November, 1999 by and between PRESIDENTIAL SUITES, LTD., a Florida
limited partnership ("Presidential") and PRECISION RESPONSE CORPORATION, a
Florida corporation ("PRC").
W I T N E S S E T H
WHEREAS, Presidential entered into that certain Lease Agreement (the
"Lease") having an effective date of October 29, 1999, wherein Crossroads
Business Park Associates is the landlord and Presidential is the tenant, for the
lease of premises consisting of approximately 3,388 rentable square feet on the
third floor of Building Two in Crossroads Business Park located at 0000 Xxxx
Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx 00000; and
WHEREAS, PRC leases space in the aforesaid Building Two which is
adjacent to the premises leased by Presidential under the Lease; and
WHEREAS, Presidential desires the right to assign its interest in the
Lease to PRC and to convey its furniture, fixtures and equipment commonly kept
on the leased premises ("FF&E") to PRC and to thereupon cause PRC to assume the
obligations of tenant under the Lease all in accordance with the terms and
conditions set forth herein; and
WHEREAS, PRC desires the right to cause Presidential to assign its
interest in the Lease to PRC and to convey the FF&E to PRC and to thereupon
assume the obligations of tenant under the Lease all in accordance with the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the promises,
agreements, representations, warranties, and covenants hereinafter set forth,
Presidential and PRC agree as follows:
1. RECITALS. The foregoing recitals are true and correct and
incorporated herein in their entirety.
2. TERMS. Unless otherwise defined herein, capitalized terms shall have
the meaning given them in the Lease.
3. PRESIDENTIAL RIGHT TO ASSIGN LEASE. Subject to the terms and
conditions set forth herein, and provided no Event of Default has occurred and
is continuing under the Lease, Presidential has the absolute right at any time
during the Term by giving written notice (the "Put Notice"), to assign its
interest in the Lease to PRC and to convey the FF&E to PRC, whereupon PRC will
assume the obligations of Tenant under the Lease accruing from and after the
Assignment and Assumption Effective Date (as hereinafter defined) and accept the
FF&E. Notwithstanding the
2
foregoing, Presidential may not deliver the Put Notice prior to the receipt of a
final Certificate of Occupancy for the Premises from the City of Plantation.
4. PRC RIGHT TO CAUSE ASSIGNMENT OF LEASE. Subject to the terms and
conditions set forth herein, PRC has the absolute right at any time during the
Term by giving written notice (the "Call Notice"), to cause Presidential to
assign its interest in the Lease to PRC provided PRC thereupon assumes the
obligations of Tenant under the Lease accruing from and after the Assignment and
Assumption Effective Date (as hereinafter defined) and accepts the FF&E.
5. PROCEDURE FOR ASSIGNMENT AND ASSUMPTION OF LEASE AND CONVEYANCE OF
FF&E. In the event Presidential exercises its rights under paragraph 3 hereof or
PRC exercises its rights under paragraph 4 hereof, the assignment of
Presidential's interest in the Lease and the assumption by PRC of the Tenant's
obligations under the Lease shall be evidenced by an Assignment and Assumption
Agreement (the "Assignment and Assumption Agreement") substantially in the form
attached hereto as Exhibit "A," but subject to the reasonable comments of the
Landlord, and the conveyance of the FF&E shall be evidenced by a Xxxx of Sale in
the form of that attached hereto as Exhibit B (the "Xxxx of Sale"). Following
delivery of the Put Notice or Call Notice, as the case may be, Presidential and
PRC shall agree in writing upon the effective date of the Assignment and
Assumption Agreement (the "Assignment and Assumption Effective Date"), which
date shall be the first day of a calendar month; provided, however, if the
parties are unable to agree, the Assignment and Assumption Effective Date shall
be the first date which is at least 90 days from the date of delivery of the Put
Notice or Call Notice, as the case may be, and which is the first day of a
calendar month.
The parties acknowledge the provisions of subparagraph
14.01(e) of the Lease and agree to cooperate in good faith to comply with such
provisions. Not later than 20 days prior to the Assignment and Assumption
Effective Date (the "Delivery Date"), Presidential and PRC shall jointly deliver
to Landlord (i) written notice of the assignment and assumption of
Presidential's interest in the Lease, which notice shall include a request that
the Landlord release Presidential from all liability accruing under the Lease
from and after the Assignment and Assumption Effective Date, and (ii) a copy of
the fully executed Assignment and Assumption Agreement (effective as of the
Assignment and Assumption Effective Date). On the Delivery Date, PRC shall
deliver to Landlord, with copy to Presidential, (i) evidence that it has in
place all insurance required to be maintained under the Lease which insurance
policies shall name Landlord as an additional insured and (ii) a substitute
letter of credit which letter of credit shall be in the amount required for the
Letter of Credit as of the Assignment and Assumption Effective Date and
otherwise comply with the requirements of the Lease for the Letter of Credit and
be sufficient to cause Landlord to release to Presidential the existing Letter
of Credit as of or before the Assignment and Assumption Effective Date. On the
Delivery Date, the party which delivered the Put Notice or Call Notice, as the
case may be, shall deliver to Landlord the administrative charge required by
14.01(e)(iv) of the Lease.
On the Delivery Date, Presidential shall deliver to PRC (i) a
certificate certifying to PRC that all the representations and warranties of
Presidential contained in this Agreement are true and correct in all material
respects and will be true and correct in all material respects as of the
2
3
Assignment and Assumption Effective Date and (ii) documentation sufficient to
allow PRC to determine the TI Adjustment (as defined below) and the FF&E Payment
(as defined below).
No sooner than 45 days, and no later than 30 days, prior to
the Assignment and Assumption Effective Date, Presidential shall request in
writing from Landlord an estoppel certificate to be addressed to PRC and
otherwise in accordance with subparagraph 27.01(j) of the Lease.
On the Assignment and Assumption Effective Date, Presidential
shall deliver to PRC (i) the Premises, broom-clean and free of Presidential's
personal property, other than the FF&E, (ii) the FF&E in the condition required
hereby, (iii) the Assignment and Assumption Agreement, (iv) the Xxxx of Sale,
and (v) all keys and access devices for the Premises and any and all plans and
specifications, certificates of occupancy, approvals, licenses, permits,
architectural drawings, permits, warranties and guaranties pertaining to the
Premises and Interior Buildout, all assigned to PRC to the extent assignable.
On the Assignment and Assumption Effective Date, PRC shall deliver to
Presidential the Assignment and Assumption Agreement, and PRC shall pay to
Presidential (i) the FF&E Payment (as defined below), and (ii) the TI Adjustment
(as defined below).
On the Assignment and Assumption Effective Date, Presidential and PRC
shall jointly deliver to Landlord instruction to release the Letter of Credit to
Presidential.
On the Assignment and Assumption Effective Date, Presidential shall pay
PRC or PRC shall pay Presidential, as appropriate, the payments required by the
first sentence of the following Section.
6. FINANCIAL MATTERS UNDER THE LEASE. It is the intent of the parties
that all monetary obligations of Presidential under the Lease shall be made
current by Presidential at or prior to the Assignment and Assumption Effective
Date. To the extent necessary or appropriate, the parties shall prorate Rent,
utilities and other financial matters as of the Assignment and Assumption
Effective Date and make payment of prorated items to the appropriate party on
the Assignment and Assumption Effective Date. To the extent Presidential's
obligations under the Lease are not ascertainable as of the Assignment and
Assumption Effective Date (such as Tenant's Proportionate Share of Operating
Expenses), the parties agree to promptly adjust and pay or reimburse the same
when such matters are ascertainable.
Following the Assignment and Assumption Effective Date, PRC
shall have the right, but not the obligation, to contest Landlord's
determination of Tenant's Percentage Share of Operating Costs for the calendar
year during which the Assignment and Assumption Effective Date falls. PRC and
Presidential agree to provide the other party with copies of all notices and
evidence concerning Landlord's determination of Tenant's Proportionate Share of
Operating Costs which either party receives from Landlord for such calendar
year. Presidential may at its expense contest Landlord's determination of
Tenant's Proportionate Share of Operating Expenses if PRC does not elect to do
3
4
so. Any savings as a result of such contest shall be prorated between the
parties as of the Assignment and Assumption Effective Date after reimbursing the
contesting party for the costs and expenses of contest.
7. TENANT IMPROVEMENT ADJUSTMENT/FF&E PAYMENT. Promptly, but in no
event later than sixty (60) days following the completion of the Interior
Buildout and the furnishing of the Premises, Presidential shall deliver to PRC
such documentation and other support as PRC may reasonably request demonstrating
(i) the cost of the tenant improvements constructed or installed in the Premises
(other than the FF&E) by or on behalf of Presidential (the "TI Cost"), (ii) the
portion of Landlord's Contribution actually paid to Presidential in cash, and
not in the form of a rent credit (the "Paid Contribution"), and (iii) the cost
of the FF&E. Within thirty (30) days following receipt of such documentation and
support, the parties shall seek to agree as to the amount of the difference
between the TI Cost and the Paid Contribution (the "Difference") and the cost of
the FF&E (the "FF&E Cost"). If the parties are unable to agree as to the amount
of the Difference or the FF&E Cost, the same shall be determined by PRC's then
independent public accountants, which determination shall be conclusive. The
Difference and the FF&E Cost shall be amortized over the portion of the initial
Term remaining after the final certificate of occupancy for the Premises has
been issued. The unamortized Difference as of the Assignment and Assumption
Effective Date shall be the "TI Adjustment"; the unamortized FF&E Cost as of the
Assignment and Assumption Effective Date shall be the "FF&E Payment." The
parties shall adjust the FF&E Cost from time to time as FF&E is added to or
removed from the Premises using the procedure set forth in this Section. The
cost of any FF&E which is added to the Premises shall be amortized over an
assumed ten year term.
8. PRESIDENTIAL REPRESENTATIONS AND WARRANTIES. Presidential represents
and warrants to PRC that as of the date of this Agreement and as of the
Assignment and Assumption Effective Date:
(i) Presidential is a limited partnership duly formed,
validly existing and in good standing under the laws
of the State of Florida.
(ii) Presidential has the power and authority to execute
and deliver this Agreement and to consummate the
transactions contemplated hereby. This Agreement has
been duly executed and delivered by Presidential and
is a valid and binding agreement of Presidential,
enforceable in accordance with its terms.
(iii) The negotiation, execution, delivery and performance
of this Agreement by Presidential, and the
consummation of the transactions contemplated hereby,
do not and will not conflict with or result in any
breach of any of the provisions of, constitute a
default under, or result in a violation of the Lease,
or require any authorization, consent, approval,
exemption or other action by or notice to any third
party other than the notice to Landlord required by
14.01(e) of the Lease.
4
5
(iv) There are no actions, suits, proceedings, orders,
investigations or claims pending or threatened
against Presidential, or to which Presidential is a
party, at law or in equity, or before or by any
court, tribunal, governmental department, commission,
board, bureau, agency or instrumentality, or
otherwise which pertain to the Lease or the Premises.
(v) There are no claims for brokerage commissions,
finders' fees or similar compensation in connection
with the transactions contemplated by this Agreement
or for which Presidential is obligated as a result of
the Lease or its negotiation.
(vi) To the best of Presidential's knowledge, the Premises
are not in material violation of any law or any
regulation or requirement, and Presidential has not
received notice of any such violation.
(vii) To the best of Presidential's knowledge there is no
condition, circumstance, or set of facts that
constitutes a significant hazard to health, safety,
property, or the environment relating to the Premises
or Building.
(viii) Attached hereto as Schedule 1 is a true, correct and
complete copy of the Lease containing all amendments
and modifications thereto.
(ix) Presidential has accepted possession of the Premises
from Landlord subject to the Interior Buildout.
(x) Presidential has delivered the Letter of Credit to
Landlord.
(xi) No Event of Default has occurred under the Lease nor
has any event occurred which, but for notice and the
passage of time, would constitute an Event of Default
under the Lease.
9. PRC REPRESENTATIONS AND WARRANTIES. PRC represents and warrants to
Presidential that as of the date of this Agreement and as of the Assignment and
Assumption Effective Date:
(i) PRC is a corporation duly incorporated, validly
existing and in good standing under the laws of the
State of Florida.
(ii) PRC has the corporate power and authority to execute
and deliver this Agreement and to consummate the
transactions contemplated on its part hereby. This
Agreement has been duly executed and delivered by PRC
and is the valid and binding agreement of PRC.
5
6
(iii) The execution, delivery and performance of this
Agreement by PRC and the consummation of the
transactions contemplated hereby do not and will not
conflict with or result in any breach of any of the
provisions of, or require any authorization, consent,
approval, exemption or other action by or notice to
any third party under the provisions of the Articles
of Incorporation or ByLaws of PRC or any other
agreement or instrument to which PRC is a party.
(iv) There are no claims for brokerage commissions,
finders' fees or similar compensation in connection
with the transactions contemplated by this Agreement
based on any arrangement or agreement made by or on
behalf of PRC.
10. COVENANTS OF PRESIDENTIAL. Presidential covenants and agrees with
PRC that from the date hereof until the Assignment and Assumption Effective
Date:
(i) Presidential shall not amend or modify or consent to
any amendment or modification of the Lease without
the prior written consent of PRC, which consent shall
not be unreasonably withheld or delayed;
(ii) Presidential shall faithfully and diligently cause
the Interior Buildout to occur in accordance plans
and specifications to be prepared by Presidential and
thereafter occupy and maintain the Premises and FF&E
in accordance with the Lease;
(iii) Presidential shall comply in all respects with the
terms and conditions of the Lease and shall cause the
Landlord to comply with all terms and condition of
the Lease; and
(iv) Presidential shall not pledge, transfer, assign,
sublet, hypothecate or otherwise encumber the Lease
or the Premises, or any portion thereof, or any
interest of Presidential in the Premises or in the
Lease.
11. CONDITIONS PRECEDENT.
(a) PRC shall not be obligated to consummate the transaction
described in this Agreement unless:
(i) Presidential shall have performed in all
material respects all of the agreements,
covenants and obligations contained in this
Agreement to be performed or complied with
by Presidential on or prior to the
Assignment and Assumption Effective Date;
and
6
7
(ii) All representations and warranties made by
Presidential hereunder shall be true,
complete and accurate in all material
respects on the date hereof and as of
Assignment and Assumption Effective Date.
PRC, in its sole discretion, may waive any of the foregoing conditions in this
paragraph 11(a).
(b) Presidential shall not be obligated to consummate the
transactions described in this Agreement unless:
(i) PRC has performed in all material respects
all of the obligations and agreements
performable by PRC hereunder; and
(ii) All the representations and warranties made
by PRC hereunder are true and correct in all
material respects on the date hereof and as
of the Assignment and Assumption Effective
Date; and
(iii) Landlord delivers to Presidential a release
from all liability accruing under the Lease
from and after the Assignment and Assumption
Effective Date.
Presidential, in its sole discretion, may waive any of the foregoing conditions
in this paragraph 11(b).
12. MISCELLANEOUS.
12.01 SURVIVAL. The representations and warranties of
Presidential and PRC shall survive delivery of the Assignment and Assumption
Agreement.
12.02 TERMINATION. Anything herein or elsewhere to the
contrary notwithstanding, this Agreement may be terminated and abandoned at any
time prior to consummation of the transactions contemplated hereby:
(i) By the mutual consent of Presidential and PRC;
(ii) By PRC if there shall be any Event of Default under
the Lease at any time following the delivery of the
Put Notice or Call Notice, as the case may be;
(iii) Presidential has materially breached any
representation or warranty herein or failed to
perform any material obligation or condition hereof
and such breach or failure shall not have been cured
in manner, form and substance reasonably satisfactory
to PRC;
(iv) By Presidential if PRC has materially breached any
representation or warranty herein or failed to
perform any material obligation or condition
7
8
hereof and such breach or failure has not been cured
in manner, form and substance reasonably satisfactory
to Presidential.
12.03 EXPENSES. Each party will pay all of its expenses in
connection with the negotiation of this Agreement, the performance of its
obligations hereunder, and the consummation of the transactions contemplated by
this Agreement.
12.04 AMENDMENTS AND WAIVERS. The parties hereto, by mutual
agreement in writing, may amend, modify and supplement this Agreement. The
failure of any party hereto to enforce at any time any provision of this
Agreement shall not be construed to be a waiver of such provision, nor in any
way to affect the validity of this Agreement or any part hereof or the right of
any party thereafter to enforce each and every such provision. No waiver of any
breach of this Agreement shall be held to constitute a waiver of any other or
subsequent breach.
12.05 NOTICES. All notices or other communications required or
permitted hereunder shall be in writing and shall be given by hand or by
registered mail, return receipt requested, addressed as follows:
If to Presidential:
c/o Xxxx Xxxxxx, President
00000 Xxxxxxxxx 00xx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
If to PRC:
0000 Xxxxxxxxx 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: General Counsel
Any party hereto may specify in writing a different address for such purpose by
notice to the other parties.
12.06 ASSIGNMENT. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, provided that neither this
Agreement nor any of the rights, interests or obligations hereunder may be
assigned by any party without the prior written consent of the other party
hereto.
12.07 SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
8
9
of such provision or the remaining provision of this Agreement unless the
consummation of the transaction contemplated hereby is adversely affected
thereby.
12.08 COMPLETE AGREEMENT. This document and the documents
referred to herein contain the complete agreement between the parties and
supersede any prior understandings, agreements or representations by or between
the parties, written or oral, which may have related to the subject matter
hereof in any way.
12.09 NO THIRD-PARTY BENEFICIARIES. This Agreement shall be
for the benefit only of the parties hereto, and their respective successors and
assigns.
12.10 GOVERNING LAW. All questions concerning the
construction, validity and interpretation of this Agreement and the performance
of the obligations imposed by this Agreement will be governed by the laws of the
State of Florida without reference to any conflict of laws rules.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
intending to be legally bound hereby.
PRESIDENTIAL SUITES, LTD., a Florida
limited partnership
By: Presidential Suites Corp.,
a Florida corporation, as
its sole general partner
/s/ XXXXXX XXXXXXXXX By: /s/ XXXX XXXXXX
---------------------------------- --------------------------
Name: Xxxx Xxxxxx
/s/ XXXXXXX XXXXXXX Title: President
----------------------------------
PRECISION RESPONSE CORPORATION,
a Florida corporation
/s/ XXXXXX XXXXXXXXX By: /s/ XXXXX XXXXXXX
---------------------------------- --------------------------
Name: Xxxxx Xxxxxxx
/s/ XXXXXXX XXXXXXX Title: Chief Executive Officer
----------------------------------
9
10
EXHIBIT A
[Form of Assignment and Assumption Agreement]
10
11
ASSIGNMENT AND ASSUMPTION OF LEASE
THE STATE OF FLORIDA )
) KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF MIAMI-DADE )
THIS ASSIGNMENT AND ASSUMPTION OF LEASE (the "ASSIGNMENT"), is executed
and delivered effective as of the ___ day of __________, ______ by and between
Presidential Suites, Ltd., a Florida limited partnership ("ASSIGNOR"), and
Precision Response Corporation, a Florida corporation ("ASSIGNEE");
W I T N E S S E T H:
Assignor, as tenant, has heretofore entered into a certain Lease Agreement
(the "Lease") with Crossroads Business Park Associates, as landlord, for lease
of Premises located on the third floor of Building Two at Crossroads Business
Park located at 0000 Xxxx Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx 00000, a true copy
of the Lease being attached hereto as Exhibit A.
NOW, THEREFORE, for and in consideration of the premises and the
agreements and covenants herein set forth, together with the sum of Ten Dollars
($10.00) and other good and valuable consideration this day paid and delivered
by Assignee to Assignor, the receipt and sufficiency of which by Assignor are
hereby confirmed and acknowledged, Assignor does hereby ASSIGN, TRANSFER, SET
OVER, and DELIVER unto Assignee all of the Assignor's interest as tenant in
and to the Lease and all of the rights, benefits and privileges of the tenant
thereunder, subject to all terms, conditions, reservations, and limitations set
forth in the Lease.
TO HAVE AND TO HOLD all and singular the tenant's interest in and to the
Lease unto Assignee, its successors, and assigns, and Assignor does hereby bind
itself, its successors, and assigns, to warrant and forever defend all and
singular the tenant's interest in and under the Lease unto Assignee, its
successors and assigns, against every person whomsoever lawfully claiming or
attempting to claim the same, or any part thereof by, through and under
Assignor, but not otherwise.
Such assignment of the Lease by Assignor to Assignee is made on the
following terms and conditions:
Assignee assumes Assignor's interest under the Lease and agrees to perform
all of the terms, covenants, obligations, and conditions of the Lease on the
part of the tenant therein required to be performed, from and after the
effective date hereof, but not prior thereto. Assignee hereby covenants and
agrees to indemnify, save, and hold harmless Assignor from and against any and
all demands, claims, assessments, costs, damages, penalties, attorney's fees,
loss, liability, claims, actions or
12
causes of action in any way directly or indirectly arising from, out of or
relating to Assignee's acts, omissions, breaches or failures to perform with
respect to the Lease from and after the effective date of this Assignment.
Assignor acknowledges to Assignee and landlord under the Lease that this
Assignment does not release Assignor from liability under the Lease unless the
Landlord under the Lease specifically releases Assignor.
It is further agreed that Assignee is not responsible under the Lease for
the discharge and performance of the tenant's obligations and duties thereunder
prior to the effective date hereof and Assignor hereby covenants and agrees to
indemnify, save, and hold harmless Assignee from and against any and all
demands, claims, assessments, costs, damages, penalties, attorney's fees, loss,
liability, claims, actions or causes of action in any way directly or
indirectly arising from, out of or relating to Assignor's acts or omissions
with respect to the Lease prior to the effective date hereof.
All of the covenants, terms, and conditions set forth herein shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns.
IN WITNESS WHEREOF, Assignee and Assignor have executed this Assignment
effective as of the date set forth above.
WITNESSES: ASSIGNOR:
Presidential Suites, Ltd., a Florida limited
partnership
By: Presidential Suites Corp., a
Florida corporation, its sole
general partner
By:
--------------------------- ---------------------------
Name:
--------------------------- -------------------------
Title:
------------------------
ASSIGNEE:
Precision Response Corporation, a Florida
corporation
By:
--------------------------- ---------------------------
Name:
--------------------------- -------------------------
Title:
------------------------
2
13
EXHIBIT A
[Lease]
3
14
EXHIBIT B
[FORM OF XXXX OF SALE]
15
EXHIBIT "B"
XXXX OF SALE
Presidential Suites, Ltd., ("Assignor") for and in consideration of $10.00
and other good and valuable consideration from Precision Response Corporation
("Assignee"), receipt and sufficiency of which is acknowledged, grants,
bargains, sells, transfers and delivers to Assignee and Assignee's successors
and assigns all of the goods, chattels and personal property ("FF & E")
described on Exhibit A hereto.
TO HAVE AND TO HOLD the same forever.
AND Seller covenants with Assignee and Assignee's successors and assigns
that: Assignor is the lawful owner of the FF & E; the FF & E is free from all
encumbrances; Assignor has good right to sell the FF & E; and Assignor will
warrant and defend the sale of the FF & E to Assignee and Assignee's successors
and assigns against the lawful claims and demands of all persons whomsoever.
Seller has executed this instrument, as _____________________, _______.
Signed, sealed and delivered Presidential Suites, Ltd.
in the presence of:
By: Presidential Suites Corp., it sole
general partner
------------------------------
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
------------------------------
16
EXHIBIT A
(FF & E)
17
SCHEDULE 1
[The Lease]
12
