EXHIBIT 2.8
AMENDMENT TO
PROVISIONS CONCERNING PURCHASE AND SALE OF REAL ESTATE
THIS AMENDMENT TO PROVISIONS CONCERNING PURCHASE AND SALE OF REAL
ESTATE (this "AMENDMENT") is entered into as of November 25, 1996, by and among
XXXXX BUSINESS COLLEGE, INC., a Colorado corporation, XXXXXXXX COLLEGE OF
DENVER, INC., a Colorado corporation, and XXXXXXXX EDUCATIONAL GROUP OF CENTRAL
FLORIDA, INC., a Florida corporation, (each a "SELLER" and collectively
"SELLERS"), XXXXXXXX COLLEGES, INC., a Mississippi corporation ("XXXXXXXX" and,
together with Sellers, "SELLING PARTIES") and CORINTHIAN COLLEGES, INC., a
Delaware corporation ("BUYER"). (Sellers, Xxxxxxxx and Buyer are sometimes
referred to collectively herein as the "PARTIES.")
R E C I T A L S
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A. All initially capitalized terms not otherwise defined herein shall
have the meaning ascribed to them in the Master Asset Purchase Agreement dated
October 17, 1996, by and between Buyer, as buyer, and Selling Parties, as
seller, (the "MASTER PURCHASE AGREEMENT") and the Schools Acquisition Agreement
dated October 17, 1996, by and between Buyer's affiliates, namely Xxxxxx
Colleges, Inc. ("XXXXXX") and Florida Metropolitan University, Inc. ("FMU"), as
buyer, and Selling Parties, as seller, (the "SCHOOLS AGREEMENT"). (The Master
Purchase Agreement and the Schools Agreement are sometimes referred to
collectively herein as the "ASSET PURCHASE AGREEMENTS.")
B. Under the Asset Purchase Agreements, Buyer, Xxxxxx and FMU have
purchased and Selling Parties have sold certain intangible assets and personal
property formerly owned and used by Selling Parties in operating post-secondary,
vocational training schools ("SCHOOLS").
X. Xxxxxxx are the fee simple owners of certain real properties
(collectively, the "PROPERTIES") that, generally speaking, comprise land,
buildings and facilities formerly utilized by Sellers in the operation of the
Schools located on and associated with the Properties.
D. In connection with the consummation of the transaction described in
the Asset Purchase Agreements, the Parties have entered into those certain
Provisions Concerning Purchase and Sale of Real Estate (the "REAL ESTATE
PURCHASE AGREEMENT") dated as of October 17, 1996, under which Buyer intends to
purchase and Sellers intend to sell the Properties. Pending the closing of the
transaction contemplated by the Real Estate Purchase Agreement, and pursuant to
Section 13 thereof, Buyer has occupied the Properties as lessee since the date
of the closing of the transaction described in the Asset Purchase Agreements.
E. Close of Escrow on the Properties has been delayed in part by the
Parties' attempts to resolve certain concerns relating to asserted zoning
violations affecting the Xxxxx Xxxxxx College Tract. These zoning violations are
generally described in the October 21, 1996 letter from Xxx Xxxxx, Zoning
Inspector for the City of Colorado Springs (the "CITY"), to First American
Heritage Title Company (the "ZONING LETTER"), a copy of which is attached as
Exhibit A.
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F. By this Amendment, the Parties desire to amend the Real Estate
Purchase Agreement by extending the Close of Escrow and by otherwise providing
for the manner in which the zoning violations mentioned above shall be resolved.
A G R E E M E N T
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NOW, THEREFORE, in consideration of the foregoing Recitals, which by this
reference are incorporated herein, and in further consideration of the mutual
covenants, agreements and conditions set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Buyer and Selling Parties agree as follows:
1. CLOSE OF ESCROW. The Close of Escrow, as established in Section 6.f
of the Real Estate Purchase Agreement, is extended to and shall take place on
December 6, 1996. The Parties intend to close on all Properties at the Close of
Escrow, as so extended.
2. CURE OF ZONING VIOLATIONS. The zoning violations relating to the
Xxxxx Xxxxxx College Tract shall be resolved, and the costs arising therefrom
shall be apportioned, in the following manner:
A. DEFINITION OF ZONING VIOLATIONS. As used herein, "ZONING
VIOLATIONS" shall mean those violations of local zoning ordinances or
regulations, or matters not in compliance therewith, that are based on the
composition and condition of the Xxxxx Xxxxxx College Tract and associated
Property as such Tract and Property existed on October 17, 1996.
B. CURE OF ZONING VIOLATIONS. Buyer shall diligently prosecute the
cure and remediation of the Zoning Violations and shall take all action in
connection therewith as Buyer may reasonably consider necessary. Notwithstanding
the foregoing, Selling Parties shall retain the following rights and
obligations:
I. PRIOR APPROVAL. Buyer shall submit to Selling Parties, for
Selling Parties' approval and authorization, any individual bid, proposal,
contract and expense related to the cure and remediation of the Zoning
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Violations that is, or is reasonably expected to be, in excess of $3,000.
In the event that Buyer does not submit any such matter to Selling Parties
before Buyer becomes obligated therefor, Selling Parties shall have no
responsibility under Section 2.c to reimburse Buyer for the costs and
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expenses of such matter. In the event that Selling Parties do not advise
Buyer of their approval or disapproval of any matter submitted to them in
accordance with this Section 2.b.i within seven (7) business days of
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Buyer's submission of the same to Selling Parties, it shall be conclusively
deemed that Selling Parties have given their approval and authorization for
Buyer to become obligated for such matter. In the event that Selling
Parties disapprove any matter submitted to them in accordance with this
Section 2.b.i, the Parties shall resolve their differences in accordance
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with Section 17.b of the Real Estate Purchase Agreement.
II. INTERCESSION. At any time and from time to time, but always
upon prior notice to and in cooperation with Buyer, Selling Parties may,
but need not unless required by law, intercede and participate in the
negotiations and proceedings between Buyer and the City relating to the
Zoning Violations. In all such events, Selling Parties shall coordinate
their efforts and strategies with Buyer and Buyer's counsel in advance of
any intercession or participation.
C. COSTS OF CURING ZONING VIOLATIONS. Except as expressly provided
herein, Selling Parties shall reimburse Buyer for all costs and expenses
incurred by Buyer (and approved or deemed approved by Selling Parties if
required by Section 2.b.i hereof) to cure and remediate the Zoning Violations.
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Promptly upon receipt of the same, Buyer shall remit all invoices and statements
relating to such costs and expenses to Selling Parties. In the event that Buyer
has not received payment on any such invoice or statement within ten (10) days
of remitting the same to Selling Parties, or in the event that any payment by
Selling Parties on such an invoice or statement is returned, dishonored or the
like, Buyer may, without prior notice or consent, offset the amount then due and
owing from the next payment to be made by Buyer to any of the Selling Parties
pursuant to or in connection with the Asset Purchase Agreements, the Real Estate
Purchase Agreement or any related or ancillary document or instrument. Buyer
shall immediately provide notice to Selling Parties upon any exercise of this
right of offset.
D. TERMINATION OF OBLIGATIONS. Upon the City's issuance of a letter
or memorandum indicating that all Zoning Violations have been cured and
remediated (a "COMPLIANCE LETTER"), Selling Parties' obligations under this
Section 2 shall be deemed discharged, except to the extent that any sums are due
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and owing to Buyer in accordance with Section 2.c.
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Notwithstanding the foregoing, the City's unwillingness to issue a Compliance
Letter based on violations of zoning ordinances, if any, that do not qualify as
Zoning Violations shall not delay the discharge of Selling Parties' obligations
hereunder, provided that all Zoning Violations have been cured and remediated.
Notwithstanding anything herein to the contrary, Selling Parties' obligations
under this Section 2 shall be conclusively deemed discharged as of December 6,
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1997.
E. NOTICES. Except as expressly provided to the contrary herein,
all notices to be given and submissions to be made hereunder, and the effective
date thereof, shall be governed by and determined in accordance with Section 16
of the Real Estate Purchase Agreement.
F. ZONING ENDORSEMENT. Because of the alleged Zoning Violations,
Endorsement Form 123.2 (Zoning) will not be a Scheduled Endorsement to the Title
Policy insuring the Xxxxx Xxxxxx College Tract; provided, that upon the City's
issuance of the Compliance Letter, Buyer may request such zoning endorsement
from the Title Company. If the Title Company issues the zoning endorsement to
Buyer, the Selling Parties will reimburse Buyer for the cost of such endorsement
(based on the premium in effect as of the Close of Escrow).
3. RATIFICATION. Except as expressly modified and amended herein, the
terms and provisions of the Real Estate Purchase Agreement remain in full force
and effect as set forth therein and are hereby ratified by the Parties.
[SIGNATURES BEGIN ON NEXT PAGE.]
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IN WITNESS WHEREOF, Buyer, Sellers and Xxxxxxxx have executed this
Amendment as of the day and year first above written.
"XXXXXXXX"
XXXXXXXX COLLEGES, INC.,
a Mississippi corporation
By:________________________________________
Name:_________________________________
Title:________________________________
"SELLERS"
XXXXX BUSINESS COLLEGE, INC.,
a Colorado corporation
By:________________________________________
Name:_________________________________
Title:________________________________
XXXXXXXX COLLEGE OF DENVER, INC.,
a Colorado corporation
By:________________________________________
Name:_________________________________
Title:________________________________
XXXXXXXX EDUCATIONAL GROUP OF CENTRAL
FLORIDA, INC., a Florida corporation
By:________________________________________
Name:_________________________________
Title:________________________________
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"BUYER"
CORINTHIAN COLLEGES, INC.,
a Delaware corporation
By:________________________________________
Name:_________________________________
Title:________________________________
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EXHIBIT A
COPY OF ZONING LETTER
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[ATTACHED]
A-1
