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EXHIBIT 99(c)
REAL ESTATE OPTION AND RIGHT OF FIRST REFUSAL AGREEMENT
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THIS REAL ESTATE OPTION AND RIGHT OF FIRST REFUSAL AGREEMENT (this
"Agreement") is made as of the 27th day of February, 1998 by and between XXXXXX
X. XXXXXX, a married man as his sole and separate property ("Seller"), and BACOU
USA SAFETY, INC., a Delaware corporation ("Buyer").
WITNESSETH:
WHEREAS, Seller is the owner of certain real property situated on
Waterville Road, San Diego, California, as more particularly described on
EXHIBIT A attached hereto (the "Property"); and
WHEREAS, pursuant to Section 9.15 of that certain Asset Purchase Agreement
dated as of December 31, 1997 by and between Buyer and Xxxxxx X. Xxxxxx &
Associates, Inc., a California corporation doing business as Xxxxxx Xxxxxx
Industries, Inc., as amended, Seller has agreed to grant to Buyer the right and
option to purchase the Property on the terms and conditions as are hereinafter
set forth.
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants and conditions contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. OPTION TO PURCHASE.
Seller hereby grants to Buyer the exclusive and irrevocable right and
option (the "Option") to purchase the Property for the Option Purchase Price (as
defined below). The term of the Option shall commence at 9:00 a.m. local time on
December 15, 1999 and shall expire at 5:00 p.m. local time on December 15, 2002.
The Option granted herein shall be exercised, if at all, by giving notice (the
"Option Notice") in accordance with Section 15 hereof at any time during the
term of the Option. Such notice shall specify a closing date not later than
ninety (90) days from the date of the Option Notice. If the Option is not
exercised in accordance with its terms during the term hereof, then the Option
and the rights of Buyer hereunder shall automatically and immediately terminate
without notice.
The purchase price for the Property (the "Option Purchase Price") shall be
an amount which is mutually acceptable to Seller and Buyer. If Seller and Buyer
cannot agree on the Option Purchase Price after negotiating in good faith within
thirty (30) days of the date of the Option Notice, then Buyer and Seller shall
each select an appraiser who shall select a third appraiser who shall be a real
estate appraiser with at least five (5) years' experience appraising real
property in San Diego County and the three appraisers shall determine the fair
market value of the Property as of the date of the Option Notice (the "Option
Date Fair Market Value"). The Option Purchase Price shall be equal to the
greater of (a) Seven Hundred Fifty Thousand Dollars ($750,000) or (b) the Option
Date Fair Market Value.
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2. RIGHT OF FIRST REFUSAL.
If at any time from the date hereof through December 15, 2002, Seller
receives an offer from a third party to purchase the Property and such offer is
acceptable to Seller, Seller shall so notify Buyer and provide Buyer with a
statement (the "Offer Statement") as to all of the terms of such offer,
including, without limitation, the purchase price which shall be payable in full
in cash at the closing (as hereinafter defined) (the "Purchase Offer"). Buyer
shall then have sixty (60) days from the date on which Buyer receives the Offer
Statement (the "Exercise Period") to exercise its right to purchase the Property
on the terms and conditions set forth in the Purchase Offer by delivering
written notice (the "Notice of Purchase") to Seller setting forth the date, time
and location of the Closing, said Closing to take place no later than ninety
(90) days after delivery of the Notice of Purchase. If Buyer fails to deliver
the Notice of Purchase to Seller within the Exercise Period, then Seller shall
thereafter be free to sell the Property without restriction for a period of
one-hundred eighty (180) days for a purchase price greater than or equal to the
purchase price specified in the Purchase Offer and paid in full in cash at the
Closing. If Seller sells the Property within such one-hundred eighty (180) day
period for a purchase price greater than or equal to the purchase price
specified in the Purchase Offer paid in full in cash at the closing, then the
provisions of Section 1 hereof and this Section shall be null and void. If
Seller does not sell the Property within such one-hundred eighty (180) day
period for a purchase price greater than or equal to the purchase price
specified in the Purchase Offer and paid in full in cash at the closing, then
the provisions of Section 1 hereof and this Section s shall remain applicable to
all future offers to purchase the Property.
3. AGREEMENT OF PURCHASE AND SALE.
If Buyer exercises the Option or its right to purchase the Property under
Section 2 hereof, then this Agreement shall constitute a purchase and sale
contract with respect to the Property and Seller hereby agrees to convey the
Property to Buyer, and Buyer hereby agrees to purchase the Property, upon the
terms and conditions herein set forth.
In connection with the exercise of the Option, Buyer agrees to cooperate
with Seller in obtaining in arranging a like kind exchange and agrees to
cooperate with Seller in attempting to mitigate any materially adverse tax
consequences to Seller (other than normal capital gain or income taxes).
4. CLOSING.
The closing (the "Closing") of any purchase and sale of the Property
pursuant to the terms of this Agreement shall take place at 10:00 a.m. local
time in the offices of Chicago Title Insurance Company or another reputable
title company located in San Diego, California on the date and at the time
specified by Buyer pursuant to Section 1 or Section 2 hereof, or at another
date, time and location mutually agreeable to Buyer and Seller. At the Closing,
both Seller and Buyer shall execute or deliver any and all documents or other
instruments reasonably requested by the other party in order to effectuate the
purchase and sale of the Property.
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5. TITLE.
At the Closing, Seller shall convey good, clear, record and marketable fee
simple title to the Property to Buyer, or Buyer's nominee, by a grant deed in
form and substance satisfactory to Buyer, free and clear of all liens,
encumbrances and other title matters except for covenants, easements and
restrictions of record as of the date hereof as set forth on EXHIBIT B attached
hereto and to the lien of any real estate taxes or assessments not then due and
payable excepting restrictions and assessments which may be placed against the
Property over the objection of Seller. Title shall be insurable at regular
rates, at Buyer's expense, by a title company authorized to do business in the
State of California selected by Buyer.
6. CONDITION OF PROPERTY.
Possession of the Property, free of all tenants and occupants (other than
Buyer), shall be delivered by Seller to Buyer at Closing and the Property shall
be then in the same condition in which it is now. Seller shall not construct or
alter any improvements on the Property without the prior written consent of
Buyer.
7. RIGHT TO ENTER PROPERTY.
Seller agrees to permit Buyer and Buyer's agents at Buyer's cost to enter
into and examine the Property and conduct investigations thereon, including
without limitation, surveys, environmental site assessments and soil tests, at
reasonable times during business hours upon at least five (5) business days
prior written notice to Seller. Buyer shall repair any damage to the Property
caused by such activities and Buyer agrees to indemnify Seller from any losses
or expenses arising out of such activities by Buyer or Buyer's agents.
8. EXTENSION OF TIME.
If Seller shall be unable to give title or to make conveyance, or to
deliver possession of the Property, all as herein stipulated, or if at the time
of Closing the Property does not conform with the provisions hereof, then Seller
shall use Seller's best efforts to (i) remove any defects in title, (ii) deliver
possession as provided herein, and (iii) make the Property conform to the
provisions hereof, as the case may be, in which event the time for performance
shall be extended for a period to be designated by Buyer in writing, but in no
event more than sixty (60) days.
9. FAILURE OF TITLE OR CONDITION.
If at the expiration of the extended xxxx Xxxxxx shall have failed so to
remove any defects in title, deliver possession, or make the Property conform,
as the case may be, all as herein agreed, then at Buyer's election, exercisable
by written notice to Seller within five (5) days after the expiration of the
extended period, (i) this Agreement shall be canceled and void, or (ii) Buyer
shall have the right to purchase the Property, paying for the Property the full
stated Option Purchase Price, all subject, however, to the provisions of Section
11 hereof.
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10. BUYER'S RIGHT TO CLOSE NOTWITHSTANDING DEFECTS, ETC.
Buyer shall have the election, at either the original or any extended time
for performance, to accept such title as Seller can deliver to the Property in
its then condition and to pay therefore the Option Purchase Price without
deduction, in which case Seller shall convey such title, but without warranties
against such defects. Acceptance of a deed and possession by Buyer shall be a
full and complete discharge of all obligations of Seller hereunder except such
as are, by the terms hereof, to be performed after Closing.
11. USE OF PURCHASE PRICE TO CLEAR TITLE.
To enable Seller to make conveyance as herein provided, Seller may, and if
necessary shall, at the time of delivery of the deed, use the purchase money, or
any part thereof, to clear the title of any or all encumbrances or interests
which are to be discharged, removed or eliminated by the terms hereof, provided
that all instruments so procured are recorded simultaneously with the delivery
of the deed.
12. ADJUSTMENTS.
Real estate taxes and assessments shall be apportioned as of Closing as
though such taxes were assessed for the fiscal year in which Closing takes
place; provided that in the event the amount of such taxes is not known as of
Closing, adjustment at Closing shall be made on the basis of the taxes assessed
for the previous fiscal year and the parties shall make another adjustment, if
necessary, promptly when the amount of such taxes is known. All water and sewer
charges, owner's association fees, all fire district and any other governmental
assessments shall be apportioned as of Closing. Buyer shall pay all escrow fees,
closing fees and title insurance charges.
13. BROKER.
Seller and Buyer each represent that each has dealt with no broker and that
they will each indemnify and save the other harmless against any and all claims
for a broker's commission on account of any misrepresentation contained in this
Section.
14. NOTICES.
Any notice, demand, payment or other communication required or permitted to
be given by any provision of this Agreement, shall be deemed to be sufficiently
given or served when delivered or sent by registered or certified mail addressed
as follows:
To Seller:
Xx. Xxxxxx X. Xxxxxx
0000 Xxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
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with a copy to:
Xxxxxx X. Xxxxxxx, Esq.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
To Buyer:
Bacou USA Safety, Inc.
c/o Bacou USA, Inc.
00 Xxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxx, Xx., Esq.
with a copy to:
Xxxxxxx & Xxxxxx
0000 Xxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X.X. Xxxxx, III, Esq.
15. TIME OF ESSENCE.
Time shall be of the essence of this Agreement.
16. WAIVER.
No waiver of any breach or default of this Agreement by either party hereto
shall be considered to be a waiver of any other breach or default of this
Agreement.
17. ENTIRE AGREEMENT.
This Agreement contains the entire agreement between the parties hereto,
and supersedes any prior written or oral agreement between said parties
concerning the subject matter contained herein. There are no representations,
agreements, arrangements or understandings, oral or written between and among
the parties hereto, relating to the subject matter contained in this Agreement,
which are not fully expressed herein. This Agreement can be modified or
rescinded only by a writing expressly referring to this Agreement and signed by
the parties hereto.
18. CAPTION HEADINGS.
Captions at the beginning of each numbered section of this Agreement are
solely for the convenience of the parties and shall not be deemed part of the
context of this Agreement.
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19. RECORDING.
The parties hereto agree to execute and deliver a notice of this Agreement
for recording.
20. GOVERNING LAW.
The validity, interpretation, construction and performance of this
Agreement shall be controlled by and construed under the laws of the State of
California.
21. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding on and shall inure to the benefit of Buyer
and Seller and their respective heirs, representatives, successors and assigns.
This Agreement may be assigned by Buyer without the prior written consent of
Seller.
22. CLEARING OF TITLE.
After the expiration of the term of the Option or the sale of the Property
to a third party in compliance with Section 2 above, upon receipt by Buyer of
ten (10) days written notice from Seller, Buyer shall provide to Seller within
said ten (10) day period a quitclaim deed to the Property and/or other
reasonable documentation requested by Seller or a title insurer to clear the
Property of this Agreement. Buyer's failure to provide such documentation shall
entitle Seller to recover from Buyer all damages suffered by Seller due to
Buyer's failure to provide such documentation, including, but not limited to
consequential and lost profits damages arising out of the loss of the sale of
the Property to a third party.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first set forth above.
Seller:
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Buyer:
BACOU USA SAFETY, INC.
By /s/ X. Xxxxxx
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Print Name X. XXXXXX
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Title PRESIDENT
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EXHIBIT A
LEGAL DESCRIPTION
XXX 0 XX XXXXX XXXXX XXXXXXXX XXXX, XXXX XX. 0, XX THE CITY OF SAN DIEGO, COUNTY
OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 12279, FILED IN
THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, DECEMBER 14, 1988.
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EXHIBIT B
TITLE MATTERS
1. Instrument regarding Xxxx Xxxx Xxxx Xxxxxxxxxx Xxxxxxxx Xx. 0000
recorded April 5, 1983 as File No. 83-108222 and April 12, 1985 as File No.
85-133627, both of Official Records of the Office of the County Recorder of San
Diego County.
2. Instrument regarding Xxxx Xxxx Xxxxxxxxxxxxxx Xxxxxxxx Xx. XX00-00
recorded March 14, 1985 as File No. 85-086495 of Official Records of the Office
of the County Recorder of San Diego County.
3. Avigation Easement shown on Map of 12279.
4. Flood Storage Easement shown on Map of 12279.
5. Agreement dated December 12, 1988 by and between The City of San Diego
and Turnberry Associates recorded February 14, 1989 as File No. 89-076677 of
Official Records of the Office of the County Recorder of San Diego County.
6. Declaration of Covenants, Conditions and Restrictions for Xxxxx Field
Business Park recorded August 14, 1989 as File No. 89-434301 of Official Records
of the Office of the County Recorder of San Diego County.
7. Encroachment Removal Agreement between The City of San Diego and Xxxxx
Field Business Park Owner's Association recorded September 14, 1989 as File No.
89-496282 of Official Records of the Office of the County Recorder of San Diego
County.
