EXHIBIT 10.2
AGREEMENT
This Agreement (this "Agreement") is hereby entered into by and between
Zoom Telephonics, Inc., a Delaware corporation ("Assignor"), and Xxxxx Xxxxxxx,
Xxxxx Xxxxxx, the Xxxxx X. Xxxxxx Living Trust, and Jewel Family Limited
Partnership (collectively, the "Members").
Recitals
SKW Real Estate Limited Partnership, a Delaware limited liability
partnership ("Seller") and Assignor entered into that certain Agreement of
Purchase and Sale having an effective date of January 11, 2001 with respect to
the land with improvements thereon known and numbered as Building 114, Section
A, 00-00 Xxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxxxxxxx (as amended by a
Reinstatement Agreement and First Amendment to Agreement of Purchase and Sale
dated as of February 28, 2001 between Seller and Assignor and as further
amended, the "Purchase Agreement");
Pursuant to the Purchase Agreement, Assignor deposited with the Escrow
Agent the amount of $488,500.00 (the "Assignor's Deposit"), representing the sum
of the Initial Xxxxxxx Money ($250,000.00), the Additional Xxxxxxx Money
($250,000.00) and the Interest Deposit ($13,500.00), less the Non-Refundable
Amount ($25,000.00). The Escrow Agent currently holds the Assignor's Deposit. In
addition, the Assignor delivered $25,000.00, representing the Non-Refundable
Amount directly to Seller.
Assignor and the Members are entering into a Limited Liability Company
Operating Agreement (the "LLC Agreement") to form Zoom Group, LLC (the "Buyer");
Seller and Buyer are in the process of reinstating the Purchase Agreement,
and Assignor is in the process of selling to Buyer its interest in the Purchase
Agreement, pursuant to the terms and provisions of a certain Reinstatement
Agreement, Assignment Agreement, and Second Amendment to Agreement of Purchase
and Sale (the "Second Amendment"); and
Pursuant to the Second Amendment, the Buyer has agreed to have an
additional $25,000.00 (the "Additional Non-Refundable Amount") paid by Escrow
Agent to Seller out of the Assignor's Deposit in accordance with the terms of
the Second Amendment, thereby reducing the amount held by Escrow Agent to
$463,500.00.
Agreement
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby mutually acknowledged, Assignor and the Members
hereby agree as follows:
1. Payment. The Members hereby jointly and severally agree to pay to
Assignor, within one (1) business day after the execution and delivery of the
Second Amendment (such date being the "Proportionate Share Delivery Date"), the
amount of $390,800.00, representing the Members' proportionate share of the
Assignor's Deposit (the "Members' Proportionate Deposit Share"). The Members'
Proportionate Share includes the amount of $20,000.00 representing the Members'
proportionate share of the Additional Non-Refundable Amount (the "Members'
Additional Non-Refundable Amount Share").
The Members shall deposit the Members' Proportionate Deposit with Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C. on or before the date of complete
execution and delivery of the Second Amendment (the "Second Amendment Effective
Date"), who shall deliver such amounts to Assignor on the Proportionate Share
Delivery Date. Assignor hereby agrees not to deposit the Members' Proportionate
Deposit Share until five (5) days after the Proportionate Share Delivery Date.
In the event that the Assignor's Board Approval (as defined in Paragraph 3 of
the Second Amendment) is not obtained by the Board Approval Contingency
Expiration Date (as defined in Paragraph 9 of the Second Amendment), then the
Members shall have no obligation to pay the Members' Proportionate Deposit
Share.
2. Proportionate Deposit Share. The Member's Proportionate Deposit Share
shall consist of the following contributions (the "Initial Contributions"):
Party Initial Contribution Proportionate Share
Xxxxx Xxxxxxx $97,700.00 20%
Xxxxx Xxxxxx $97,700.00 20%
The Xxxxx X. Xxxxxx $97,700.00 20%
Living Trust
Jewel Family
Limited Partnership $97,700.00 20%
Assignor $97,700.00* 20%
(* The Assignor's Initial Contribution consists of the Assignor's
Deposit less the Members' Proportionate Deposit Share).
3. Return of Xxxxxxx Money. In the event that the Assignor's Deposit is
returned to Buyer, for any reason, then (a) such amount shall be disbursed to
the parties in proportion to their Initial Contributions, as set forth in
Paragraph 2 hereof, and (b) interest on the Assignor's Deposit shall be
disbursed to the parties as follows: (i) all interest on the Assignor's Deposit
earned through the Proportionate Share Delivery Date shall be returned to
Assignor, and (ii) all remaining interest on the Assignor's Deposit shall be
disbursed to the parties in proportion to their Initial Contributions, as set
forth in Paragraph 2 hereof.
4. Miscellaneous.
A. The parties hereto agree to use all reasonable efforts to comply
with the terms and provisions set forth in that certain letter dated
January 30, 2002 from the BRA/EDIC and signed by Xxxxxxx Xxxxxxxxx to
Buyer.
B. Capitalized terms and phrases used in this Agreement but not
defined herein shall have the meanings ascribed to them in the Purchase
Agreement.
C. This Agreement may be executed in multiple counterparts, each of
which shall constitute an original, but all of which shall constitute one
document.
D. The parties hereby agree that from and after the Second Amendment
Effective Date, so long as Assignor (i) is not then in default under the
Purchase Agreement (as amended) or the LLC Agreement, and (ii) has not
exercised its Call option pursuant to the LLC Agreement, Assignor shall
have the right, but not the obligation to lease any available space at the
Property on an "as is" basis, at an initial fixed rent rate of $6.00 per
square foot, triple net to landlord (the "Initial Rent Rate"). The Initial
Rent Rate shall continue through the earlier to occur of (x) the expiration
or earlier termination of any such lease, or (y) the fifth (5th)
anniversary of the Closing of the Purchase Agreement transaction (the
"Initial Rent Rate Expiration Date"). Following the Initial Rent Expiration
Date, the fixed rent shall be at a rate mutually agreed by the parties, and
determined prior to the execution of any such lease.
[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF, Buyer and Assignor have executed this Agreement as a
sealed instrument as of this 29th day of March, 2002.
ASSIGNOR:
Zoom Telephonics, Inc.,
a Delaware corporation
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: Executive Vice President
MEMBERS:
XXXXX XXXXXXX
/s/ Xxxxx Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx
XXXXX XXXXXX
/s/ Xxxxx Xxxxxx
------------------------------------
Xxxxx Xxxxxx
THE XXXXX X. XXXXXX LIVING TRUST
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Xxxxx Xxxxxx, as Trustee and
individually
JEWEL FAMILY LIMITED PARTNERSHIP
By: /s/ Xxxx Xxxxxxx
------------------------------------
Xxxx Xxxxxxx, as General Partner
and individually
