* Confidential Treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *. A complete version of this exhibit has
been filed separately with the Securities and Exchange Commission.
EXHIBIT 99.3
April 2, 2002
Brite Voice Systems, Inc.
Re: Sale of Xxx 0, Xxxxx 0, Xxxxxxxxx 00xx Xxxxxx Addition, Wichita,
Sedgwick County, Kansas, more commonly known as 0000 Xxxx 00xx Xxxxxx
(the "Property")
Gentlemen:
This letter agreement will evidence the agreement of the *, or assigns (as
the case may be, "Buyer") to buy the Property referenced above and all personal
property listed on Exhibit A attached hereto ("Personal Property") from the
undersigned BRITE VOICE SYSTEMS, INC. ("Seller"), if certain contingencies are
resolved or waived as described below. The sale will be governed by the
following terms and conditions:
1. Price and Other Terms and Conditions
(A) Purchase Price: $2,000,000 ($Two Million Dollars), to be paid to Seller at
closing of the sale in immediately available funds.
(B) Xxxxxxx Money. $100,000 will be deposited by Buyer as xxxxxxx money (the
"Xxxxxxx Money") with Security Abstract & Title Company, 000 Xxxxx Xxxx,
Xxxxxxx, Xxxxxx 00000, Attention: Xxxxx Xxxxx (the "Title Company") and will be
refundable to Buyer upon any termination of this agreement which is effective
prior to the expiration of the Inspection Period described below. At closing,
the Xxxxxxx Money will be applied to the Purchase Price. So long as the Title
Company holds the Xxxxxxx Money, the Title Company shall be expected to keep the
Xxxxxxx Money invested as reasonably requested by Buyer, provided Buyer has
notified the Title Company and Seller of Buyer's federal tax ID#. Any interest
earned on the Xxxxxxx Money shall be reported as income by Buyer for income tax
purposes and shall remain the property of Buyer.
Brite Voice Systems, Inc.
April 2, 2002
Page 2
(C) Date and Arrangements for Closing. Closing of the sale will occur with the
delivery of the Purchase Price and a deed and other documents through the Title
Company not later than Friday, May 31, 2002. Time is of the essence.
(D) Closing Costs and Pro Rations. The current year's property taxes against the
Property will be prorated at closing (on an estimated basis, if necessary).
Seller shall pay any and all outstanding installments of property taxes and
assessments against the property related to prior years at closing, even if said
installments are not otherwise due until after date of Closing. If any
assessments against the Property other than general property taxes are payable
in installments over a period of years, installments related to the current year
will be prorated and future installments will be payable by the Buyer after
closing. Each party will pay his own legal fees (except as provided below if
there is a breach of this agreement), and the parties will share equally the
title insurance premiums and other charges by the Title Company. Any other
closing costs will be allocated between Seller and Buyer in the customary manner
for commercial real estate transactions in Wichita, Kansas, except as otherwise
provided in this agreement.
(E) Representations Concerning the Property. TO THE EXTENT PERMITTED BY LAW, THE
PROPERTY WILL BE SOLD AND CONVEYED "AS IS" WITHOUT ANY REPRESENTATION OR
WARRANTY BY SELLER (EXCEPT TITLE WARRANTIES UNDER A SPECIAL WARRANTY DEED) AS TO
CONDITION, ZONING, AVAILABLE LEASING PROSPECTS, SUITABILITY FOR FUTURE
CONSTRUCTION OR OTHER MATTERS. BUYER ACKNOWLEDGES THAT BUYER HAS MADE (OR WILL
MAKE DURING THE INSPECTION PERIOD DESCRIBED BELOW SUCH ON-SITE INSPECTIONS OF
THE PROPERTY AS BUYER DEEMS NECESSARY TO SATISFY ITSELF WITH THE CONDITION OF
THE PROPERTY. PROVIDED, HOWEVER, THAT BUYER REPRESENTS THAT IT HAS DISCLOSED TO
SELLER ANY DEFECTS IN THE PROPERTY OF WHICH IT IS AWARE AND WILL DISCLOSE TO
BUYER ANY DEFECTS IN THE PROPERTY OF WHICH IT BECOMES AWARE PRIOR TO THE END OF
THE INSPECTION PERIOD.
(F) Commissions: Brokers. If, but only if, the sale is consummated, Seller will
pay a brokerage commission of 6% of the Purchase Price to its broker, Xxxxxxx &
Xxxxxxxxx of Texas, Inc., on the closing date. Seller's broker may share the
commission with buyer's broker in accordance with any agreement between the
brokers themselves. Seller will not, however, be liable for any payment to
Buyer's broker, and Buyer will have no liability for the payment of any
brokerage commission to either broker unless Buyer has undertaken such liability
by a separate written agreement. Both parties acknowledge that the brokers have
no authority to make representations or warranties for the parties or to bind
the parties to any contractual undertaking. Further, the brokers are not
expected to assume responsibility for any representations or warranties of the
parties with respect to the Property or with respect to the performance of the
parties under this agreement.
(G) No Liens. Seller represents that at Closing it will have good title to the
Personal Property and said Personal Property shall be free and clear of all
liens and encumbrances.
Brite Voice Systems, Inc.
April 2, 2002
Page 3
2. Items to be Delivered Before Closing:
(A) Survey and Plans. If any existing survey, architectural drawings, mechanical
plans or drawings, or electrical plans or drawings of the Property are readily
available to Seller, Seller shall deliver, or cause its broker to deliver a copy
of said survey, plans or drawings to Buyer upon acceptance of this Agreement.
Seller will not, however, warrant that any such survey, plans or drawings are
accurate or complete. If Buyer desires to obtain a current survey, plans or
drawings of the Property, Buyer may arrange to have such items prepared at its
expense. Any survey received by Buyer as described in this paragraph will
constitute a "Survey" as such term is used in this agreement.
(B) Title Commitment. Buyer shall direct the Title Company to issue a commitment
for owner's title insurance policy (the "Commitment") in favor of Buyer covering
the Property for the full amount of the Purchase Price and to promptly deliver
the same (with a copy of any special title exceptions set forth therein) to
Buyer and Seller.
3. Items to Be Delivered At Closing:
(A) Special Warranty Deed. Seller will convey the Property to Buyer by a special
warranty deed, subject to Permitted Encumbrances (as defined below).
(B) Xxxx of Sale. Seller will convey the Personal Property to Buyer by Xxxx of
Sale, Assignment of Interest or such other document as is necessary to convey
good and clean title to the Personal Property to Buyer.
(C) Nonforeign Certificate. Seller will also deliver a certificate of nonforeign
status to Buyer at closing as needed to comply with the provisions of the
Foreign Investors Real Property Tax Act (FIRPTA).
(D) Title Policy. At the closing Buyer will obtain from the Title Company an
ALTA owner's title policy issued by the Title Company or written confirmation
from the title company that it is then prepared to issue such a policy subject
only to Permitted Encumbrances.
(E) Other Items: Possession. At the closing, Buyer and Seller shall also deliver
such other documents as shall be reasonable required by the Title Company to
close the sale, and possession of the Property will be transferred from Seller
to Buyer immediately after the closing.
4. Contingencies. The sale will be subject to the following conditions:
Brite Voice Systems, Inc.
April 2, 2002
Page 4
(A) Xxxxxxx Money. Within 5 days after the date of this agreement, Seller shall
have signed and returned this agreement to Buyer and Buyer shall have deposited
the Xxxxxxx Money with the Title Company.
(B) Inspection. Buyer shall be satisfied with the condition and suitability of
the Property after further inspections as Buyer deems appropriate. However,
Buyer shall complete all such inspections during the period following the date
of this agreement and ending 5:00 P.M. on Friday, May 24, 2002 (the "Inspection
Period"). If for any reason whatsoever Buyer is not satisfied with the Property
at any time during the Inspection period, Buyer may terminate this agreement by
written notice to Seller. If, however, Buyer does not notify Seller in writing
of the termination of this agreement before the end of the Inspection Period,
Buyer shall be deemed to have waived this contingency. Seller will cooperate
with Buyer as reasonable required to allow Buyer to complete on-site
inspections, including environmental inspections, but Seller will have no
obligation to incur any expense to cure Buyer's objections unless Seller
otherwise agrees in a subsequent written agreement with Buyer.
(C) Title Review. Before the expiration of the Inspection period, Buyer shall
receive, and be satisfied with all title exceptions and other matters disclosed
in, the Commitment or any Survey ("Permitted Encumbrances"). If Buyer finds any
Permitted Encumbrance unacceptable and Seller declines to remove the
unacceptable encumbrance, Buyer's sole remedy shall be to terminate this
agreement by written notice to Seller delivered before the end of the Inspection
Period. Further, if for any reason a Survey or Commitment satisfactory to Buyer
is not delivered to Buyer before the end of the Inspection Period, Buyer's sole
remedy shall be to terminate this agreement by notice delivered to Seller before
the end of the Inspection Period.
(D) No Surprises. No change in the condition of the Property, other than that
caused by normal wear and tear, shall have occurred after the inspections
performed during the Inspection Period and prior to closing. The Property shall
not be subject to encumbrances other than Permitted Encumbrances when Seller
tenders a deed to Buyer as provided above, and the Personal Property shall not
be subject to any liens or encumbrances when Seller tenders a Xxxx of Sale to
Buyer as provided above.
5. Damages and Claims Resulting From Buyer's On-Site Inspections. If Buyer or
others engaged by Buyer to inspect the Property cause damage to the Property in
connection with or during the inspections authorized by this agreement, or if
any third party, asserts any claim against Seller or the Property because of
injury, death or property damage caused or alleged to have been caused by Buyer
or anyone conducting inspections for Buyer, then buyer must indemnify, defend
and hold harmless Seller against the damage or claims. Buyer's obligation and
Seller's rights under this Paragraph will survive any termination of this
agreement or closing hereunder.
6. Remedies.
Brite Voice Systems, Inc.
April 2, 2002
Page 5
(A) Breach by Buyer. If Buyer breaches this agreement prior to closing, Seller's
sole remedy shall be to terminate this letter agreement and receive and retain
the Xxxxxxx Money as liquidated damages; provided, however, that:
(1) this provision will not limit Seller's right to recover any amount
in addition to Xxxxxxx Money under paragraph 5; and
(2) if Buyer fails to promptly authorize and direct the Title Company
to release and deliver the Xxxxxxx Money to Seller following a breach by
Buyer and after Buyer's receipt of a request from Seller for such
authorization, then Seller shall have the right to recover any and all
damages and attorneys' fees arising out of or caused by the breach,
together with attorneys' fees and other costs incurred by Seller to recover
the Xxxxxxx Money or any additional damages.
(B) Breach by Seller. If Seller breaches this agreement, Buyer's remedies shall
be to either:
(1) terminate this agreement, receive a refund of all Xxxxxxx Money
and to recover from Seller any monetary damages caused by Seller's Breach;
or
(2) exercise Buyer's right of specific performance and close on the
sale of the Property and Personal Property and to recover from Seller any
attorneys' fees and costs incurred by Buyer to enforce Buyer's right of
specific performance;
provided, however, that if Buyer elects to terminate this agreement and
receive a refund of all Xxxxxxx Money, and seller fails to promptly authorize
the Title Company to return the Xxxxxxx Money to Buyer after such a breach and
after receipt of a request from Buyer for such authorization, then Buyer shall
have the right to recover any and all damages and attorneys' fees arising out of
or caused by the Breach together with attorneys' fees and costs incurred by
Buyer to recover the Xxxxxxx Money or any additional damages. Buyer agrees that
it will not have any right, title or interest in the Property by reason of this
agreement before any date upon which Seller is required to deliver a deed to
Buyer to close the sale contemplated in this agreement.
7. Entire Agreement. This agreement constitutes the entire and only agreement
between Seller and Buyer concerning the sale of the property, it being
understood that all prior negotiations are superseded by this letter. No
amendment of this agreement will be effective unless in writing and signed by
both Seller and Buyer.
8. Notices. Any notices required to be given by this agreement may be
delivered in person, by certified mail, return receipt requested, by courier
service or by facsimile transmission to the party to whom notice is to be given
at the address or facsimile number below. Notice given by certified mail or
Brite Voice Systems, Inc.
April 2, 2002
Page 6
courier service will be deemed received on the date delivery is indicated by the
United States Post Office or courier service, respectively. Notice given by
facsimile transmission shall be deemed received on the date and at the time
indicated on the sender's transmission report indicating transmission to the
appropriate number below.
If to Buyer: *
If to Seller: Brite Voice Systems, Inc.
----------------------------------
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Fax:
-----------------------------
9. Execution in Counterparts; Delivery by Fax. To facilitate execution, this
agreement may be executed in multiple identical counterparts. It shall not be
necessary that the signature of, or on behalf of, each party, or that the
signature of all persons required to bind any party, appear on each counterpart.
All counterparts, taken together, shall collectively constitute a single
contract. But it shall not be necessary in making proof of this agreement to
produce or account for more than a single counterpart containing the respective
signatures of, or on behalf of, each of the parties to this agreement. Any
signature page may be detached from one counterpart and then attached to a
second counterpart with identical provisions without impairing the legal effect
of the signatures on the signature page. Signing and sending a counterpart (or a
signature page detached from the counterpart) by facsimile to another party will
have the same legal effect as signing and delivering an original counterpart to
the other party. A copy (including a copy produced by facsimile) of any
signature page that has been signed by or on behalf of a party to this agreement
shall be as effective as the original signature page for the purpose of proving
such party's intention to be bound by this agreement.
Buyer's delivery of this letter to Seller is intended as a contractual
offer by Buyer, which will remain open for acceptance by Seller for 3 business
days after the date of this letter. If Seller does not accept the offer (by
returning a copy of this letter to Buyer, signed by Seller in the space provided
below), the offer shall expire without further notice. Accordingly, if the
foregoing correctly sets forth your agreements, please execute a copy of this
letter in the space provided below and return the copy to Buyer within 3
business days after the date of this letter.
Your careful consideration of this offer is greatly appreciated.
*
By: *
Brite Voice Systems, Inc.
April 2, 2002
Page 7
Accepted and Agreed:
BRITE VOICE SYSTEMS, INC.
By: /s/ XXX-XXX X. XXXXXX
-------------------------------
Name: Xxx-Xxx X. Xxxxxx
-------------------------
Title: CFO
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