REPURCHASE OPTION AGREEMENT
Exhibit
10.2
THIS REPURCHASE OPTION AGREEMENT (the
“Agreement”) is made as of the 13th day of November, 2009 (the “Effective
Date”), by and between WASATCH RESEARCH PARK I, LLC, a Utah limited liability
company (the “Grantor”); and XXXXX & XXXXXXXXXX COMPUTER CORPORATION, a Utah
corporation (the
“Grantee”).
RECITALS:
A. Grantee
is the original lessee under that certain University of Utah Research Park
Master Lease Agreement dated 1 April 1988, as amended by that certain First
Addendum to Lease Agreement dated 31 December 1990 (the “Ground Lease”), whereby
Grantee leased certain real property located at 000 Xxxxx Xxxxx and 000 Xxxxx
Xxxxx, Xxxx Xxxx Xxxx, Xxxx, as more particularly described on the attached
Exhibit “A” (the “Real Property”).
B. The
Lessor of the Real Property under the Ground Lease is the University of Utah
(the “University”).
C. Pursuant
to the terms of the Ground Lease, the Grantee constructed three (3) commercial
buildings upon the Real Property, which shall be referred to hereafter as (i)
the “770 Komas Drive Building;” (ii) the “790 Komas Drive Building;” and (iii)
the “Substation Building;” and all three (3) buildings, consisting of
approximately 60,021 square feet of leasable space, shall be referred to
hereafter collectively as the “Buildings.”
D. Pursuant
to that certain Purchase and Sale Agreement dated October ___, 2009 (the
“Purchase Agreement”), Grantee will sell the Buildings, together with all
improvements located thereon, and all landscaping on the Real Property, to
Grantor by transferring and assigning Grantee’s leasehold interest in the Real
Property (the “Leasehold Interest”) pursuant to the Ground Lease to Grantor,
which transfer and assignment closed and recorded on or about November 13,
2009.
E. In
connection with its acquisition of the Buildings and the Leasehold Interest in
the Real Property, Grantor has agreed to grant to Grantee an option to
repurchase the same pursuant to the terms set forth in this
Agreement.
NOW, THEREFORE, in consideration of the
mutual promises and covenants contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties do hereby agree as follows:
1. Option to
Repurchase. In consideration of the sum of Ten Dollars
($10.00) and other good and valuable consideration paid by Grantee to Grantor,
paid concurrently herewith, Grantor hereby grants to Grantee the option to
repurchase the Buildings and Leasehold Interest in the Real Property (the
“Repurchase Option”); or in the alternative, the Grantee shall have the option
to repurchase the Substation Building only and all related equipment located
therein (the “Substation Repurchase Option”), on the terms and conditions set
forth herein. The Repurchase Option and the Substation Repurchase
Option may be sometimes collectively referred to herein as the
“Option.”
2. Purchase
Price. The purchase price (the “Purchase Price”) for the
Buildings and Leasehold Interest in the Real Property shall vary depending upon
the date the Repurchase Option is exercised and closed, as follows:
(a) $2,575,000
plus any unpaid payments accruing in the first year of the New Lease (as that
term is defined in the Purchase Agreement), if the Repurchase Option is
exercised and the repurchase is closed between November 1, 2009 and October 31,
2010;
(b) $2,625,250
if the Repurchase Option is exercised and the repurchase is closed between
November 1, 2010 and October 31, 2011;
(c) $2,731,817
if the Repurchase Option is exercised and the repurchase is closed between
November 1, 2011 and October 31, 2012;
(d) $3,005,000
if the Repurchase Option is exercised and the repurchase is closed between
November 1, 2012 and October 31, 2013; and
(e) $3,305,500
if the Repurchase Option is exercised and the repurchase is closed between
November 1, 2013 and October 31, 2014.
3. Purchase Price of Substation
Building Only. The purchase price for the Substation Building
only plus related equipment (the “Substation Building Purchase Price”) shall
vary depending upon the date the Substation Repurchase Option is exercised and
closed, as follows:
(a) $144,150
plus any unpaid payments accruing in the first year of the New Lease (as that
term is defined in the Purchase Agreement), if the Substation Repurchase Option
is exercised and the repurchase of the Substation Building is closed between
November 1, 2009 and October 31, 2010;
(b) $148,474
if the Substation Repurchase Option is exercised and the repurchase of the
Substation Building is closed between November 1, 2010 and October 31,
2011;
(c) $152,928
if the Substation Repurchase Option is exercised and the repurchase of the
Substation Building is closed between November 1, 2011 and October 31,
2012;
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(d) $168,221
if the Substation Repurchase Option is exercised and the repurchase of the
Substation Building is closed between November 1, 2012 and October 31, 2013;
and
(e) $185,043
if the Substation Repurchase Option is exercised and the repurchase of the
Substation Building is closed between November 1, 2013 and October 31,
2014.
4. Terms of
Purchase. Upon the Grantee’s exercise of the Repurchase Option
or the Substation Repurchase Option, the Grantee shall pay the Purchase Price in
cash at closing.
5. Option
Period. The Option shall extend to the earlier of (a) the date
that Grantee no longer occupies any of the Buildings located on the Real
Property, as a tenant under the New Lease (as defined in the Purchase
Agreement); (b) the date that Grantee is in default under the New Lease, after
any required notice and the expiration of any cure periods provided by the
Lease; (c) the date that the New Lease terminates, for any reason; (d) the date
that Grantee files for bankruptcy protection under any bankruptcy statute; or
(e) July 31, 2014, by which date Grantee must exercise the Option, in which
event, the sale to Grantee shall close on or before October 31,
2014.
6. Exercise of
Option. Notice exercising the Option (the “Exercise Notice”)
shall be given in writing by Grantee to Grantor at the following
address: Wasatch Research Park I, LLC, 000 Xxxxx Xxxxxxxxxx Xxxxxxx,
Xxxxx 000, Xxxxx, Xxxx 00000. The Exercise Notice shall be
sent to Grantor by Federal Express, United Parcel Service, or other overnight
courier service for overnight delivery, prepaid and addressed to the Grantor at
the address set forth in this Section 5, and such Exercise Notice shall be
effective on the date it is actually received by the Grantor (as evidenced by
the records of such overnight courier) (the “Effective Date”), which shall be
not later than the date this Repurchase Option expires.
7. Closing and
Possession. The date of closing (the “Closing”) of the
repurchase of the Buildings and Leasehold Interest in the Real Property (or the
Substation Building only, as applicable) shall take place on a date that shall
be agreed upon by Grantor and Grantee, but the Closing shall be not later than
ninety (90) days after the Effective Date of Grantee’s notice of
exercise. Grantee shall receive possession of the Buildings and
Leasehold Interest in the Real Property (or the Substation Building only, as
applicable) on the date of Closing.
8. Sale of Substation Building
After Exercise of Option. In the event that the Grantee
exercises its option to repurchase the Substation Building only, and then sells
the Substation Building to a third party prior to the end of the New Lease term,
the following provisions shall apply:
(a) Grantee
shall calculate the net sales proceeds (the “Net Sales Proceeds”) by taking the
proceeds received from such third-party purchaser at closing (exclusive of
closing costs and other expenses paid by Grantee at closing) and subtracting
therefrom the cash paid by Grantee to Grantor to purchase the Substation
Building pursuant to the Substation Repurchase Option. For example,
if Grantee received $500,000 of sales proceeds from the third-party purchaser,
and had paid Grantor $148,474 to purchase the Substation Building, then the Net
Sales Proceeds would be $351,526 ($500,000 – 148,474).
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(b) Grantee
would then pay twenty-five percent (25%) of the Net Sales Proceeds to Grantor as
a Marketing Fee pursuant to that certain Marketing Agreement of even date
herewith. For example, if the Net Sales Proceeds were $351,526,
Grantee would pay Grantor a Marketing Fee of $87,881.50 ($351,526 multiplied by
25%).
(c) Grantee
would then retain twenty-five percent (25%) of the Net Sales Proceeds as a
Marketing Fee pursuant to that certain Marketing Agreement of even date
herewith. For example, if the Net Sales Proceeds were $351,526,
Grantee would retain a Marketing Fee of $87,881.50 ($351,526 multiplied by
25%).
(d) Grantee
would then place the remaining fifty percent (50%) of the Net Sales Proceeds
(the “Escrowed Funds”) into an escrow account held and controlled by
Grantor. For example, if the Net Sales Proceeds were $351,526, the
amount to be held in the escrow account would be $175,763 ($351.526 multiplied
by 50%). The Escrowed Funds would then be applied by Grantor monthly
to future rent payable by Grantee under the New Lease. During such
time as there are adequate Escrowed Funds to pay Grantee’s monthly rent payment,
the parties agree that such payments shall come from the Escrowed Funds until
they are depleted, whereupon Grantee shall continue to make such rent payments
directly to Grantor pursuant to the terms of the New Lease. In the
event that the New Lease terminates for any reason (including the expiration of
the term of the New Lease) at a time when there remain Escrowed Funds, Grantor
shall be entitled to retain all such remaining Escrowed Funds.
9. Taxes and
Insurance. Real property taxes and insurance premiums for
insurance coverage paid by the Grantor on the Buildings and Real Property shall
be prorated to the date of Closing and adjusted between the parties by a cash
settlement at Closing.
10. University
Consent. Grantor and Grantee hereby acknowledge and agree that
Section 15.1(a) of the Ground Lease requires the written consent of the
University (the “University Consent”) to any assignment of the Leasehold
Interest in the Real Property, and therefore, Grantor’s obligation to transfer
and convey the Leasehold Interest in the Real Property to Grantee shall be
subject to and conditioned upon the granting of the University
Consent. Grantor and Grantee hereby agree that in the event the
Option is exercised by the Grantee, that Grantor and Grantee shall work
cooperatively in good faith to secure the University Consent to the
transaction.
11. Closing
Documents. If Grantee exercises the Option, and in
consideration of the Purchase Price paid by Grantee at Closing, Grantor shall
deliver or cause to be delivered to Grantee the following:
(a) Special Warranty
Deed. A duly executed and acknowledged special warranty
deed (the “Deed”), conveying the Leasehold Interest in the Real Property (or the
Substation Building only, as applicable) to Grantee free and clear of
liens and encumbrances, except the permitted title exceptions.
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(b) Title
Insurance. An ALTA standard owner’s policy of title insurance
relating to the Leasehold Interest (or the Substation Building only, as
applicable), issued by the Title Company (defined below), at or within a
reasonable time after the date of Closing.
(c) University
Consent. The University Consent, executed by a duly authorized
representative of the University.
12. Title
Insurance. If the Option is exercised, Grantor shall, within
ten (10) business days after its receipt of Grantee’s Exercise Notice (the
“Title Deadline”), deliver to Grantee evidence of marketable title to the
applicable property by a commitment for title insurance (the “Commitment”)
issued by a title insurance company (the “Title Company”) selected by
Grantor. Within ten (10) business days after its receipt of the
Commitment, Grantee may inform the Grantor in writing of any objections Grantee
has to the condition of the title to the Leasehold Interest in the Real Property
(or the Substation Building only, as applicable). In the event that
Grantee fails to provide written notice of objections prior to the Title
Deadline, Grantee shall be deemed to accept the condition of title to Grantor’s
Leasehold Interest in the Real Property (or the Substation Building only, as
applicable).
(a) Title
Objections. Within five (5) business days after Grantor’s
receipt of a notice of title objection, Grantor shall inform Grantee in writing
that either (i) Grantor will cure such objections, or (ii) Grantor will not cure
such objections, in which event, Grantee shall have the right to terminate this
Agreement. In the event that Grantor fails to provide such written
notice to Grantee within such five (5) business days, Grantor shall be deemed to
have elected not to cure such objections.
(b) Grantee’s Right to
Cancel. Upon receipt of Grantor’s notice that Grantor will not
cure Grantee’s title objections (or the failure of Grantor to timely provide
notice that it will cure such objections) Grantee shall either (i) provide
written notice to the Grantor, at or before Closing, that the Grantee elects to
terminate the Agreement, or (ii) in the absence of such written notice of
termination, Grantee shall be deemed to have waived its objections to title and
shall proceed to Closing.
13. Waiver. The
waiver by Grantor of any breach of any term, covenant or condition herein
contained shall not be deemed to be a continuing waiver of such terms, covenant
or condition, or any subsequent breach of the same, or any other term, covenant,
or condition herein contained. None of the terms, covenants or
conditions of the Option can be waived by either Grantor or Grantee, except by
appropriate written instrument.
14. Time of
Essence. Time is of the essence of this Agreement and each and
every term and provision hereof.
15. Successors and
Assigns. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their respective heirs, successors and
assigns; provided, that this provision shall not be construed as permitting
assignment, substitution, delegation or other transfer of rights or
obligations except strictly in accordance with the provisions of the other
Sections of this Agreement.
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16. Integration of Other
Agreements. This Agreement supersedes all previous contracts,
correspondence and documentation relating to the Grantee’s rights to
repurchase the Leasehold Interest in the Real Property (or the Substation
Building only, as applicable), including such provisions as may be set forth in
the Purchase Agreement. Any oral representations or
modifications concerning this Agreement shall be of no force or effect. This
provision shall survive the Closing.
17. Counterparts. This
Agreement may be executed in any number of duplicate originals or counterparts,
each of which shall be of equal force and effect.
18. Further
Actions. Grantor and Grantee agree to execute such additional
documents and take such further actions as may reasonably be required to carry
out each of the provisions and the intent of this Agreement.
19. Titles and
Headings. Titles and headings of paragraphs of this
Agreement are for convenience of reference only and shall not affect the
construction of any provisions of this Agreement. The Recitals and
other matters preceding the first numbered paragraph are a part of this
Agreement, and incorporated herein by this reference.
20. Exhibits. The
exhibit referenced herein and attached hereto is an integral part of this
Agreement and is incorporated herein by this reference.
21. Authorized
Assignment. Grantee shall have the right to assign its rights
and obligations hereunder to a related entity of its choice, and shall have the
right to designate the vesting on the Deed. Upon such assignment, Grantee and
its assignee will remain jointly and severally liable for all obligations
hereunder to Grantor.
22. Saturday, Sunday and Legal
Holidays. If the time for performance of any of the terms,
conditions and provisions hereof shall fall on a Saturday, Sunday or legal
holiday, then the time of such performance shall be extended to the next
business day thereafter.
23. Severability. Whenever
possible, each provision of this Agreement and every related document shall be
interpreted in such manner as to be valid under applicable law; but, if any
provision of any of the foregoing shall be invalid or prohibited under said
applicable law, such provision shall be ineffective to the extent of such
invalidity or prohibition without invalidating the remainder of such provision
or the remaining provisions of this document.
24. Governing Law. This
Agreement shall be governed and construed in accordance with the laws of the
State of Utah without giving effect to the conflicts of laws provisions
thereof.
25. Risk of
Loss. The risk of loss or damage to the Buildings or the Real
Property shall be upon the Grantor until the date of Closing.
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26. Attorney
Fees. In the event either party brings suit to enforce or
interpret this Agreement or for damages on account of the breach of a covenant
or representation or warranty contained herein, the prevailing party shall be
entitled to recover from the other party or parties its reasonable attorney fees
and costs incurred in any such action, in addition to other relief to which the
prevailing party is entitled.
27. Recordation of
Agreement. The parties hereby agree that this Agreement shall
not be recorded; however, at the election of the Grantee, the parties shall
execute a mutually acceptable Memorandum of Option Agreement, in recordable
form, that sets forth the essential terms of this Agreement, and Grantee shall
have the right to record such Memorandum of Option. Grantee hereby
agrees that the Memorandum of Option Agreement shall be recorded after the lien
recorded by Grantor’s lender, and that at all times, Grantee shall agree to
subordinate its option interest to any lender of the Grantor, and in connection
therewith, Grantee shall execute and deliver such subordination documents that
Grantor may require in the future.
28. Restriction on Liens and
Encumbrances. Grantor shall have the right to use the Real
Property as collateral for such financing as Grantor may elect to pursue,
subject to the following limitations:
(a) Maximum
Limit. Grantor agrees that, throughout the term of the Option,
Grantor shall not allow the Real Property to be subject to liens or encumbrances
in excess of the initial Option Purchase Price of $2,575,000.
(b) Lien Release on Substation
Building. Grantor further agrees that, in the event Grantee
exercises the Substation Repurchase Option only, Grantor shall obtain the
necessary lien releases to transfer and convey the Substation Building to
Grantee, free and clear of liens and encumbrances.
[Signature
Page Follows]
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IN WITNESS WHEREOF, this Agreement is
executed by the parties as of the date first set forth above.
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EXHIBIT
“A”
REAL
PROPERTY DESCRIPTION
Beginning
at a point which is N 22º00’00” W, 179.000 feet from a point on the North line
of Sunnyside Avenue, said point being S 89º59’50” W 761.997 feet and N 00º00’10”
W 58.200 feet from the Salt Lake City survey monument at the intersection of
Sunnyside Avenue and Xxxxxx Street, said monument is located S 65º48’24” W
3622.620 feet and East 97.000 feet and South 58.200 feet from the Southeast
corner of Section 0, Xxxxxxxx 0 Xxxxx, Xxxxx 1 East, Salt Lake Base and Meridian
and running thence:
S
61º09’35” W, 166.781 feet; thence,
N
52º49’31” W, 103.650 feet; thence,
N
12º49’54” W, 461.520 feet; thence,
N
43º19’53” W, 315.935 feet; thence,
N
44º00’00” E, 123.669 feet; along the radial line to a point on a curve; thence,
Southeasterly along the arc of the 212.4714 foot radius curve to the left, arc
length=274.416 feet, chord length = 255.737 feet (chord bearing = S 83º00’00” E)
tangent length = 160.109 feet, central angle = 74º00’00”; thence, along the
radial line S 33º00’00” E, 20.500 feet to the point of tangency;
thence,
N
60º00’00” E, 71.108 feet; thence,
S
49º00’00” E, 33.554 feet; thence,
S
60º00’00” W, 11.730 feet; thence,
S
22º00’00” E, 550.000 feet; thence,
S
23º00’00” W, 217.000 feet; to the point of beginning.
Said
Parcel of ground contains 5.922 acres.
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