Exhibit 10.1
PURCHASE AND SALE AGREEMENT
(FF&E - NORTH SCOTTSDALE SCHOOL)
This PURCHASE AND SALE AGREEMENT (FF&E - NORTH SCOTTSDALE SCHOOL) (this
"AGREEMENT") is entered into as of the 31st day of January, 2001, by and between
THE TESSERACT GROUP, INC., a Minnesota corporation, in its corporate capacity
and in its capacity as debtor and debtor-in-possession in its Chapter 11 case
pending in the United States Bankruptcy Court for the District of Arizona
("SELLER"), and EDUCATION PROPERTY INVESTORS, INC. ("EPI"), a Nevada corporation
(EPI or its assignee under SECTION 14.18 hereof is referred to herein as
"BUYER").
RECITALS
A. Seller operates that certain private school ("SCHOOL") commonly known as
the "North Scottsdale TesseracT School" located at 0000 Xxxx Xxxx Xxxx,
Xxxxxxxxxx, Xxxxxxx 00000.
B. Seller has filed a voluntary petition for Chapter 11 relief under Title
11 of the United States Code ("BANKRUPTCY CODE"), which is pending before the
United States Bankruptcy Court for the District of Arizona (the "BANKRUPTCY
COURT").
C. Seller desires, subject to the approval of the Bankruptcy Court, to sell
and Buyer desires to purchase certain assets of Seller used in connection with
Seller's operations of the School on the terms and conditions set forth in this
Agreement and in accordance with Bankruptcy Code ss.ss.363 and 365.
D. Buyer and Seller further desire, subject to the approval of the
Bankruptcy Court, to enter into such other agreements and arrangements that
effectuate the orderly transition of the School from Seller to Buyer, including,
but not limited to, the purchase of the Tract "B" Land (defined below).
E. Buyer has completed its due diligence of the School and all other
matters addressed in this Agreement.
F. The parties hereto acknowledge that: (i) they intend that the
transaction contemplated under this Agreement be an asset purchase and not a
sale of the stock of Seller; and (ii) Buyer is not buying the Business of Seller
as defined in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter set forth, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
For purposes of this Agreement, the following capitalized terms, when used
in this Agreement, shall have the meanings assigned to them as follows:
1.1 ADMINISTRATIVE LEASE CLAIM. The term "Administrative Lease Claim" shall
mean the Claim for outstanding rent due to EPI for October, 2000 for the North
Scottsdale School. The parties agree that the amount of rent for October, 2000
for the North Scottsdale School is $89,647.80.
1.2 INTENTIONALLY OMITTED.
1.3 BUSINESS. The term "Business" shall mean Seller's operations conducted
under the name "TesseracT," "The TesseracT Group, Inc.," or "North Scottsdale
TesseracT School," at the School and at any other location within or outside the
State of Arizona.
1.4 CLAIM. The term "Claim" shall be given the same meaning as provided to
such term under Bankruptcy Codess.101(5).
1.5 CLOSING. The term "Closing" shall mean the completed exchange of: (i)
Closing documents set forth in ARTICLES XII AND XIII below, together with the
simultaneous conveyance by Seller to Buyer of the Purchased Assets (defined
below); and (ii) the payment by Buyer to Seller of the Purchase Price (defined
below).
1.6 CLOSING DATE. The term "Closing Date" shall mean the date on which the
Closing occurs as determined pursuant to ARTICLE IX hereof.
1.7 COURT. The term "Court" shall mean the United States Bankruptcy Court
for the District of Arizona.
1.8 EQUIPMENT. The term "Equipment" shall mean all furniture, fixtures,
office equipment, computers, printers, and other tangible personal property
owned by Seller as specifically set forth on SCHEDULE 1.8 attached hereto.
1.9 JEBCO LOAN. JEBCO Loan means that certain Promissory Note, dated
February 9, 2000 by Buyer to JEBCO Group, Inc. ("JEBCO") in the principal amount
of $1,362,000 secured by that certain Deed of Trusts and Assignment of Rents,
dated February 9, 2000 by Seller as Trustor, that certain Loan Agreement, dated
February 9, 2000 by and between JEBCO and Seller, and that certain Arizona Form
UCC-1 by Seller filed on February 10, 2000 with the Maricopa County Recorder.
1.10 Tract "B" LAND. The term "Tract "B" Land" shall refer to the real
property adjacent to the Real Property that is being sold by Seller and acquired
by Buyer contemporaneously with this Agreement pursuant to the Tract "B"
Purchase and Sale Agreement.
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1.11 LEASE. The term "Lease" shall mean that certain Amended and Restated
Lease dated December 27, 1999 by and between Seller, as lessee, and Buyer, as
lessor, pursuant to which Seller leases the Real Property from Buyer.
1.12 NEW LEASE. EPI and/or Xxxxxx X. X'Xxxxx, Xxxxxx of the Roman Catholic
Church of the Diocese of Phoenix will provide TesseracT with the benefit of use
of the North Scottsdale School free of Minimum Rent (as defined in Article III
of the Existing Lease), subject to the construction requirements of Assignee (as
proposed buyer of the real property and improvements of the North Scottsdale
School) for the period from February 1 through May 31, 2001, for the
continuation of the North Scottsdale School; provided, however, that: (i)
TesseracT shall not be responsible for the cost or expense of that new
construction to be performed by Assignee; and (ii) in the performance of the
Assignee's construction, Assignee shall not unreasonably interfere with
TesseracT's use of the Land or operations at the North Scottsdale School. EPI
and TesseracT shall execute a new lease ("NEW LEASE"), which New Lease shall be
the same form as the Existing Lease with only the following material
modifications, and except for those terms and conditions which are clearly and
materially inconsistent with the terms and spirit of the parties' agreement
reflected by or underlying this Agreement; (i) the term under the New Lease will
commence as of, and only upon, the Closing, and shall expire on May 31, 2001
with no options to renew; and (ii) payment of Minimum Rent shall not be
required, but all of TesseracT's other obligations, both of a monetary and
non-monetary nature, shall remain in effect. The form of the New Lease shall be
approved by the parties by February 15, 2001.
1.13 PRESCHOOL. The term "Preschool" shall mean the preschool presently
operated by Seller at the Real Property.
1.14 REAL PROPERTY. The term "Real Property" shall mean the real property
on which the School is located as more particularly described on SCHEDULE 1.14.
1.15 SECTION 363 ORDER. The term "Section 363 Order" shall mean the order
entered by the Court pursuant to Bankruptcy Code ss.363 approving Seller's sale
of the Land and the Purchased Assets (as defined in SECTION 2.1 below) to Buyer
free and clear of any and all liens, security interests, and adverse interests
of any kind including the JEBCO Loan, the form of which shall be agreed to by
the parties hereto.
1.16 SECTION 365 ORDER. The term "Section 365 Order" shall mean the Order
entered by the Court pursuant to Bankruptcy Code ss.365(a) approving Seller's
decision to: (i) reject the Lease as it relates to the Real Property; and (ii)
assume the Assumed Contracts, the form of which shall be agreed to by the
parties hereto.
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ARTICLE II.
PURCHASE AND SALE
2.1 ASSETS TO BE SOLD. Subject to the terms and conditions of this
Agreement, on the Closing Date, Seller agrees to sell, assign, transfer and
convey the following assets to Buyer (collectively, the "PURCHASED ASSETS"):
2.1.1 EQUIPMENT. The Equipment.
2.1.2 OTHER PROPERTY. In addition to the Equipment, any and all other
tangible property, inventory, and ancillary assets utilized by Seller in
connection with the Business conducted at the School and located at the School,
including, but not limited to, supplies-on-hand at the School (which supplies
shall, prior to Closing, be maintained by Seller in the ordinary course).
2.1.3 CERTAIN RIGHTS. All rights under or pursuant to all warranties,
representations and guarantees made by suppliers in connection with the
Purchased Assets or services furnished to Seller pertaining to the School or
affecting the Purchased Assets, to the extent such warranties, representations
and guarantees: (i) are not required by Seller to fulfill its obligations under
this Agreement; and (ii) are assignable.
2.1.4 GOODWILL. All of Seller's goodwill that relates to the School.
2.2 EXCLUDED ASSETS. Notwithstanding SECTION 2.1 above, Seller shall not
sell, transfer, assign, convey or deliver to Buyer, any asset not specifically
addressed in SECTION 2.1 above, including but not limited to the following
assets (collectively the "EXCLUDED ASSETS"):
2.2.1 CONSIDERATION. The consideration delivered by Buyer to Seller
pursuant to this Agreement.
2.2.2 INTELLECTUAL PROPERTY. All intellectual property of Seller,
including, but not limited to, Sellers' trademarks, trade names, curriculum, and
trade secrets.
2.2.3 INSURANCE POLICIES. Seller's insurance policies and rights
thereunder, including, but not limited to, general liability and workers'
compensation insurance held by Seller.
2.2.4 CORPORATE FRANCHISE. Seller's franchise to be a corporation, its
certificate of incorporation, corporate seal, stock books, minute books and
other corporate records having exclusively to do with the corporate organization
and capitalization of Seller.
2.2.5 PRESCHOOL LICENSE. Seller's license issued by the Arizona
Department of Education to operate the Preschool.
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2.3 SELLER'S BUSINESS. The parties expressly acknowledge and agree that
this Agreement is not entered into for the sale of the stock of Seller or the
sale of Seller's Business. This Agreement addresses only the Purchased Assets.
ARTICLE III.
[INTENTIONALLY OMITTED]
ARTICLE IV.
TERMS OF PAYMENT
4.1 PAYMENT DUE AT CLOSING. At Closing, Buyer shall provide, and Seller
shall receive the "PURCHASE PRICE". The Purchase Price is comprised of: (i)
Buyer's release and waiver of the Administrative Lease Claim (see SECTION 6.3
below) (the "WAIVED ADMINISTRATIVE CLAIM"); and (ii) $100,000 in cash paid by
certified funds or wire transfer on the Closing Date (the "CASH PAYMENT")
ARTICLE V.
REPRESENTATIONS, WARRANTIES, AND COVENANTS OF SELLER
Seller hereby represents, warrants, and covenants to Buyer as follows, and
the warranties, representations, and covenants contained in this Article or
elsewhere in this Agreement shall be deemed to be made as of the Closing:
5.1 CORPORATE STATUS. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Minnesota and is
qualified to do business in the State of Arizona.
5.2 CORPORATE AUTHORITY. Subject only to approval of the Court, Seller has
full power and authority to execute and perform this Agreement and all corporate
action necessary to confirm such authority has been duly and lawfully taken.
Upon execution hereof, this Agreement shall be a valid, legally binding
obligation of Seller, enforceable in accordance with its terms subject only to
approval by the Court.
5.3 TITLE TO PURCHASED ASSETS. Seller has good and marketable title to the
Purchased Assets, and has full power and authority to transfer such title to
Buyer subject only to approval by the Court.
ARTICLE VI.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER
Buyer hereby represents and warrants to Seller as follows and the
warranties and representations contained in this Article or elsewhere in this
Agreement shall be deemed to be made as of Closing:
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6.1 ORGANIZATION. Buyer is a corporation duly organized, validly existing
and in good standing under the laws of the State of Nevada and is qualified to
do business in Arizona.
6.2 AUTHORITY. Buyer has full power and authority to execute and perform
this Agreement and all action necessary to confirm such authority has been duly
and lawfully taken. Upon execution hereof, this shall be a valid and legally
binding obligation of Buyer, enforceable against Buyer in accordance with its
terms subject only to approval by the Court.
6.3 ADMINISTRATIVE LEASE CLAIM. As of the Closing Date: (i) Buyer owns a
one hundred percent (100%) undivided interest in the Administrative Lease Claim;
and (ii) Buyer shall not have previously sold, assigned, or transferred the
Administrative Lease Claim.
ARTICLE VII.
OTHER COVENANTS
7.1 REJECTION OF LEASE OF REAL PROPERTY. Buyer shall have a claim as
defined in Bankruptcy Code ss.101(5) for lease rejection damages under the Lease
as it relates to the School (the "REJECTION CLAIM"). The Rejection Claim shall
be "allowed" as that term is used in Bankruptcy Code ss.502 (the "ALLOWED
REJECTION CLAIM"). The amount of the Allowed Rejection Claim shall be calculated
in accordance with the Lease and shall only be further limited pursuant to
Bankruptcy Code ss.502(b)(6), and such calculation will be determined on or
before February 15, 2001. Seller waives its right to seek reconsideration of the
Allowed Rejection Claim pursuant to Bankruptcy Code ss.502(j) or otherwise.
ARTICLE VIII.
INDEMNITIES
8.1 SELLER. Seller agrees to hold harmless, indemnify and defend Buyer from
and against any and all uninsured loss, claim, damage, liability or expense
(including, but not limited to, reasonable attorneys' fees and costs) (i)
arising out of or occurring as the result of any breach by Seller of any of its
covenants, representations or warranties hereunder or (ii) arising out of or in
connection with or related to the Purchased Assets or operation of the Business
at the School or at the Land prior to the date of Closing, other than the
Assumed Liabilities. In no event shall the liability of Seller under this
Section 8.1 together with the liability of Seller arising out of or relating to
the Adjacent Property Purchase and Sale Agreement collectively exceed $5,000.
8.2 BUYER. Buyer agrees to hold harmless, indemnify and defend Seller from
and against any and all uninsured loss, claim, damage, liability or expense
(including, but not limited to, reasonable attorneys' fees and costs) (i)
arising out of or occurring in connection with any breach by Buyer of any of its
covenants, representations or warranties hereunder, or any liability of Buyer or
(ii) arising out of or in connection with or related to the Purchased Assets or
operations at the School or the Land on or after the date of Closing.
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8.3 SOLE REMEDY. The indemnifications in SECTION 8.1 OR 8.2, as the case
may be, will be the sole remedy of the Buyer or the Seller if any matter which
is the subject of a representation or warranty contained in ARTICLE V or ARTICLE
VI is not as represented or warranted.
ARTICLE IX.
CLOSING
9.1 CLOSING. Closing shall occur at the law offices of Chicago Title
Insurance Company, 0000 X. Xxxxxxxxx Xxxx, Xxxxx 00, Xxxxxxx, Xxxxxxx 00000
Escrow Officer: Xxxx Xxxxx, the Closing must occur by no later than March 13,
2001; provided that such Closing may be extended for a period of up to, but not
to exceed fifteen (15) days to allow for the closing of the transaction with the
Assignee (the "CHURCH TRANSACTION").
ARTICLE X.
CONDITIONS PRECEDENT TO BUYER'S DUTY TO CLOSE
Buyer shall have no duty to close, and no obligation hereunder, unless and
until each and every one of the following conditions precedent have been fully
and completely satisfied:
10.1 CONTINUED TRUTH OF WARRANTIES. All of the representations and
warranties of Seller contained herein shall continue to be true and correct at
Closing.
10.2 PERFORMANCE OF OBLIGATIONS. Seller shall have fully performed or
tendered substantial performance of each and every one of its obligations
hereunder which by its terms is capable of performance before Closing.
10.3 DELIVERY OF CLOSING DOCUMENTS. Seller shall have tendered delivery to
Buyer of all the documents, in form and substance reasonably satisfactory to
Buyer, required to be delivered to Buyer by Seller on or before Closing pursuant
to this Agreement.
10.4 LITIGATION. No lawsuit, administrative proceedings or other legal
action shall have been filed against Seller as of the Closing Date which seeks
to restrain or enjoin Buyer's acquisition of the Purchased Assets, or the
assumption of the Assumed Contracts.
10.5 COURT ORDERS. The Court shall have entered the Section 363 Order and
the Section 365 Order.
10.6 TRACT "B" PURCHASE AND SALE AGREEMENT. The conditions precedent to the
Buyer's obligations under the Adjacent Property Purchase and Sale Agreement
shall have been fulfilled or waived by the Buyer.
10.7 TRANSACTION WITH ASSIGNEE. Buyer shall have consummated the closing of
the Church Transaction.
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ARTICLE XI.
CONDITIONS PRECEDENT TO SELLER'S DUTY TO CLOSE
Seller shall have no duty to close this transaction unless and until each
and every one of the following conditions precedent have been fully and
completely satisfied:
11.1 CONTINUED TRUTH OF WARRANTIES. All of the representations and
warranties of Buyer contained herein shall continue to be true and correct at
Closing.
11.2 PERFORMANCE OF OBLIGATIONS. Buyer shall have fully performed or
tendered substantial performance of each and every one of its obligations
hereunder which by its terms is capable of performance before Closing.
11.3 DELIVERY OF CLOSING DOCUMENTS. Buyer shall have tendered delivery to
Seller of all the documents, in form and substance reasonably satisfactory to
Buyer, required to be delivered to Seller by Buyer on or before Closing pursuant
to this Agreement.
11.4 LITIGATION. No lawsuit, administrative proceedings or legal action
other than the Chapter 11 Case shall have been filed by or against Seller as of
the Closing Date which seeks to restrain or enjoin Seller's sale of the
Purchased Assets or the assumption of the Assumed Contracts.
11.5 COURT ORDERS. The Court shall have entered the Section 363 Order and
the Section 365 Order.
11.6 ADJACENT PROPERTY PURCHASE AND SALE AGREEMENT. The conditions
precedent to the Seller's obligations under the Adjacent Property Purchase and
Sale Agreement shall have been fulfilled or waived by the Seller.
ARTICLE XII.
ITEMS TO BE DELIVERED AT CLOSING BY SELLER
At Closing, Seller shall, unless waived in writing by Buyer, deliver to
Buyer the following items, each in form and substance reasonably acceptable to
Buyer and Buyer's counsel:
12.1 XXXX OF SALE. A duly executed xxxx of sale selling, assigning,
transferring, and conveying the Purchased Assets to Buyer or its assignee.
12.2 CERTIFIED RESOLUTION. A copy of the resolution of the Board of
Directors of Seller, certified by the Secretary of Seller, authorizing the
execution and performance of this Agreement.
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12.3 REPRESENTATIONS AND WARRANTIES. A certificate signed by an appropriate
representative of Seller to the effect that all the representations and
warranties of Seller contained herein are true and correct as of Closing.
ARTICLE XIII.
ITEMS TO BE DELIVERED AT CLOSING BY BUYER
At Closing, Buyer shall, unless waived in writing by Seller, deliver the
following items, each in form and substance reasonably acceptable to Seller and
Seller's counsel, to Seller:
13.1 CERTIFIED RESOLUTION. A copy of the resolutions appropriate
representative(s) of Buyer authorizing the execution and performance of this
Agreement.
13.2 THE NEW LEASE. The New Lease.
13.3 THE ADMINISTRATIVE LEASE CLAIM. Buyer's written release and waiver of
the Administrative Claim.
13.4 REPRESENTATIONS AND WARRANTIES. A certificate signed by an appropriate
representative of Buyer to the effect that all the representations and
warranties of Buyer contained herein are true and correct as of Closing.
13.5 THE PURCHASE PRICE. The Purchase Price.
ARTICLE XIV.
MISCELLANEOUS
14.1 RIGHT TO BID. Buyer acknowledges and understands that the Court may
consider higher and better offers for the Purchased Assets and the Land.
Notwithstanding any other language to the contrary herein, Buyer acknowledges
and agrees that, Buyer shall not be entitled to receive any overbid protections,
breakup fees or other buyer protections, if Buyer is not ultimately approved as
the buyer of the Purchased Assets.
14.2 FURTHER ASSURANCES. Each party shall, at any time after Closing,
execute and deliver to the other party all such additional instruments of
conveyance and assignments, certificates or similar documents and take all such
further actions as such other party may reasonably request.
14.3 NO OTHER AGREEMENTS. This Agreement, and all agreements delivered as
part of the Closing contemplated herein, constitute the entire agreement between
the parties with respect to its subject matter. All prior and contemporaneous
negotiations, proposals and agreements between the parties are superseded by
this Agreement. Any changes to this Agreement must be agreed to in writing
signed by both parties.
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14.4 WAIVER. Either party may waive the performance of any obligation owed
to it by the other party hereunder for the satisfaction of any condition
precedent to the waiving party's duty to perform any of its covenants, including
its obligations to Close. Any such waiver shall be valid only if contained in a
writing signed by the waiving party.
14.5 Intentionally Omitted.
14.6 NOTICES. Any notices required or allowed in this Agreement shall be
effectively given if placed in a sealed envelope, postage prepaid, and deposited
in the United States mail, registered or certified, addressed as follows:
To Seller: Xxxxxx Xxxxxxx, Ph.D.
The TesseracT Group, Inc.
0000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Copy To: Xxxxxx X. Xxxxxx, Esq.
Xxxxx Xxxx LLP
Xxx Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
To Buyer: Education Property Investors, Inc.
Legal Department
000 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxxxxxx.
Copy to: Education Property Investors, Inc.
Legal Department
000 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Legal Department
14.7 BROKER AND FINDERS. Each of the parties hereto represents and warrants
to the other that it has not employed or retained any broker or finder in
connection with the transactions contemplated by this Agreement nor has it had
any dealings with any person which may entitle such person to a fee or
commission from any party hereto. Each of the parties shall indemnify and hold
the other harmless for, from and against any claim, demand or damage whatsoever
by virtue of any arrangement or commitment made by it with or to any person that
may entitle such person to any fee or commission from the other party to this
Agreement.
14.8 RISK OF LOSS. The risk of loss, damage, or destruction of the
Purchased Assets shall be borne by Seller until Closing. In the event any loss
or damage to or taking of any such Purchased Assets is material in the context
of this transaction and occurs before Closing, Seller shall immediately notify
Buyer of the nature and extent of such loss, damage or taking, and Buyer shall,
at its option, by written notice to Seller, either terminate this Agreement
without further liability or obligation to Seller, or Buyer may proceed with
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this transaction on the terms and conditions mutually agreeable to the parties,
including any adjustment in the Purchase Price.
14.9 THIRD-PARTY BENEFICIARY. Nothing contained herein shall create or give
rise to any third-party beneficiary rights for any individual or entity as a
result of the terms and provisions of this Agreement.
14.10 RELATIONSHIP OF PARTIES. The relationship of Seller and Buyer shall
be that of independent entities and neither shall be deemed to be the agent of
the other. It is not intended by this Agreement to, and nothing contained in
this Agreement shall, create any partnership, joint venture or other similar
arrangement between Seller and Buyer.
14.11 CHOICE OF LAW. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Arizona and, as applicable, the
Bankruptcy Code.
14.12 PARAGRAPH HEADINGS. The Section, Article and paragraph headings
contained herein are for convenience only and shall have no substantive bearing
on the interpretation of this Agreement.
14.13 RULES OF INTERPRETATION. The following rules of interpretation shall
apply to this Agreement, the Schedules hereto and any certificates, reports or
other documents or instruments made or delivered pursuant to or in connection
with this Agreement, unless otherwise expressly provided herein or therein and
unless the context hereof or thereof clearly requires otherwise:
14.13.1 A reference to any document or agreement shall include such
document or agreement as amended, modified or supplemented from time to time in
accordance with its terms, and if a term is said to have the meaning assigned to
such term in another document or agreement and the meaning of such terms therein
is amended, modified or supplemented, then the meaning of such term herein shall
be deemed automatically amended, modified or supplemented in a like manner.
14.13.2 References to the plural include the singular, the singular
the plural and the part the whole.
14.13.3 The words "include," "includes," and "including" are not
limiting.
14.13.4 A reference to any law includes any amendment or modification
to such law which is in effect on the relevant date.
14.13.5 A reference to any person or entity includes its successors,
heirs and permitted assigns.
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14.13.6 The words "hereof," "herein," "hereunder," and similar terms
in this Agreement refer to this Agreement as a whole and not to any particular
provision of this Agreement.
14.13.7 All Schedules to this Agreement constitute material terms of
this Agreement and are incorporated fully into the terms of this Agreement.
14.14 TIME IS OF THE ESSENCE. Time is of the essence in the performance and
observance of all obligations and duties under this Agreement.
14.15 ATTORNEY FEES. Each party shall bear its own legal fees and costs
incurred in the negotiation and closing of this transaction. In the event of a
dispute arising between the parties under this Agreement, the prevailing party
shall be entitled to reasonable attorneys' fees and costs of suit from the
non-prevailing party.
14.16 COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be executed in
any number of counterparts, each of which shall be an original, but all of such
counterparts shall together constitute but one and the same instrument. Delivery
of an executed counterpart of this Agreement by telefacsimile shall be equally
as effective as delivery of a manually executed counterpart of this Agreement.
Any party delivering an executed counterpart of this Agreement by telefacsimile
also shall deliver a manually executed counterpart of this Agreement but the
failure to deliver a manually executed counterpart shall not affect the
validity, enforceability, and binding effect of this Agreement.
14.17 NO ADMISSIONS. Nothing in this Agreement shall be, or shall be
construed to be, an admission of liability by the parties hereto to any other
person, party or entity.
14.18 NO ASSIGNMENTS. Neither this Agreement nor any right or obligation
hereunder may be assigned by either party hereto without the written consent of
the other party; provided that Buyer may assign its rights and obligations under
this Agreement to Assignee.
14.19 BANKRUPTCY COURT APPROVAL. Seller shall file a motion seeking
bankruptcy court approval of the transactions addressed herein promptly upon the
execution of this Agreement.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have set their hands effective the
date set forth above.
THE TESSERACT GROUP, INC.,
a Minnesota corporation
By /S/ XXXXXX XXXXXXX
---------------------------------------
Its CFO
---------------------------------------
SELLER
EDUCATION PROPERTY INVESTORS, INC.,
a Nevada corporation
By /S/ XXXXX XXXXX
---------------------------------------
Its SENIOR VICE PRESIDENT
---------------------------------------
BUYER
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SCHEDULE 1.8
(EQUIPMENT)
SCHEDULE 1.14
(DESCRIPTION OF REAL PROPERTY)
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
(FF&E - NORTH SCOTTSDALE SCHOOL)
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT (FF&E - NORTH SCOTTSDALE
SCHOOL) (this "AMENDMENT") is made and entered into as of this 15th day of
March, 2001 by and between THE TESSERACT GROUP, INC., a Minnesota corporation
("SELLER") and EDUCATION PROPERTY INVESTORS, INC., a Nevada corporation
("BUYER").
RECITALS
A. Buyer and Seller have previously executed that certain Purchase and Sale
Agreement (FF&E - North Scottsdale School) dated as of January 31, 2001 (the
"AGREEMENT"), with respect to certain assets of Seller located in Maricopa
County, Arizona.
B. Buyer and Seller wish to amend the Agreement, subject to and in
accordance with the further terms, covenants and provisions of this Amendment.
NOW, THEREFORE, IN CONSIDERATION OF the Agreement, the foregoing
Recitals, the mutual agreements, covenants and promises contained in this
Amendment and other good and valuable consideration, the receipt, sufficiency
and validity of which is hereby acknowledged, Buyer and Seller agree as follows:
1. DEFINITIONS. Capitalized terms used in this Amendment without
definition shall have the meanings assigned to such terms in the Agreement,
unless the context expressly requires otherwise.
2. ADMINISTRATIVE LEASE CLAIM. SECTION 1.1 of the Agreement is hereby
amended in its entirety to read as follows:
"The term "Administrative Lease Claim" shall mean EPI's Claim for: (i)
one-half (1/2) of the outstanding rent due for October, 2000 for the North
Scottsdale School, in the amount of $44,823.90; (ii) the outstanding rent
due for October, 2000 for the Xxxxx School in the amount of $32,837.63; and
(iii) the outstanding rent due for October, 2000 for the Paradise Lane
School in the amount of $16,772.12."
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER. SECTION 6.3 of
the Agreement is hereby amended in its entirety to read as follows:
"As of the Closing Date, (i) Buyer owns the Administrative Lease Claim; and
(ii) Buyer shall not have previously sold, assigned, or transferred the
Administrative Lease Claim."
5. COUNTERPARTS; FACSIMILE SIGNATURES. This Amendment may be executed
in any number of counterparts, each of which shall be an original, but all of
such counterparts shall together constitute but one and the same instrument.
Delivery of an executed counterpart of this Agreement by facsimile shall be
equally as effective as delivery of a manually executed counterpart of this
Agreement. Any party delivering an executed counterpart of this Agreement by
facsimile also shall deliver a manually executed counterpart of this Agreement
but the failure to deliver a manually executed counterpart shall not affect the
validity, enforceability, and binding effect of this Amendment.
6. FULL FORCE AND EFFECT. Except as expressly modified by this
Amendment, the Agreement remains unmodified and in full force and effect. All
references in the Agreement to "this Agreement" shall be deemed references to
the Agreement as modified by this Amendment.
IN WITNESS WHEREOF, Buyer and Seller have executed this Amendment as
of the date and year first above written.
SELLER: BUYER:
THE TESSERACT GROUP, INC. EDUCATION PROPERTY INVESTORS, INC.,
a Minnesota corporation a Nevada corporation
By: /S/ XXXX XXXXX By: /S/ XXXXX XXXXX
-------------------------- --------------------------
Name: Xxxx Xxxxx Name: XXXXX XXXXX
Its: Chief Operating Officer Its: SENIOR VICE PRESIDENT
