EXHIBIT 10.3
Reinstatement Agreement, Assignment Agreement and
Second Amendment to Agreement of Purchase and Sale
This Reinstatement Agreement, Assignment Agreement and Second Amendment
Agreement of Purchase and Sale (this "Second Amendment") is hereby entered into
by and between SKW Real Estate Limited Partnership, a Delaware limited liability
partnership ("Seller"), Zoom Telephonics, Inc., a Delaware corporation
("Assignor"), and Zoom Group LLC, a Massachusetts limited liability company
("Buyer").
Recitals
Seller and Assignor entered into that certain Agreement of Purchase and
Sale having an effective date of January 11, 2001 ("Effective Date") 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 by various correspondence extending the Closing Date (the "Agreement");
Assignor sent notice to Seller, by letter dated March 28, 2001 from Xxxxxx
X. Xxxxxxxxxx, Esq. of Brown, Rudnick, Freed & Gesmer, purporting to
terminate the Agreement (the "Termination Notice"), the validity of which
Termination Notice has been objected to and disputed by Seller;
Seller and Buyer have agreed to reinstate the Agreement pursuant to the
terms and provisions of this Second Amendment; and
Assignor is this day selling and Buyer is this day purchasing Assignor's
interest in the Agreement.
Agreement
NOW, THEREFORE, in consideration of the Property and the mutual covenants
and agreements contained herein and in the Agreement, and for other good and
valuable consideration (including reimbursement by Buyer to Assignor of an
amount equal to the Initial Xxxxxxx Money and the Additional Xxxxxxx Money,
pursuant to a separate agreement by Assignor and Buyer), the receipt and
sufficiency of which are hereby mutually acknowledged, Seller, Assignor and
Buyer hereby agree as follows:
1. Reinstatement. Assignor hereby rescinds the Termination Notice and the
termination of the Agreement pursuant thereto. Seller and Assignor hereby
acknowledge and agree that, subject to the provisions of Paragraph 3(c) hereof,
the Agreement, as hereby amended, is reinstated and shall remain in full force
and effect as if Assignor had not terminated the Agreement pursuant to the
Termination Notice.
2. Assignment. Notwithstanding the provisions of Section 12.1 of the
Agreement, Assignor hereby assigns to Buyer without recourse, representation or
warranty, express or implied, all of its rights and obligations under the
Agreement (including the Xxxxxxx Money and Interest Deposit), and Buyer hereby
agrees to assume all of the rights and obligations of Assignor from and after
the Effective Date under the Agreement. Seller and Buyer hereby agree and
acknowledge, notwithstanding the provisions of Section 12.1 of the Agreement,
that Assignor shall have no liability for the performance of the purchaser's
obligations under the Agreement, and is expressly relieved of any responsibility
thereunder (except for Assignor's responsibility pursuant to the provisions of
Paragraph 3(c) below), all such obligations now being the responsibility of
Buyer.
3. Xxxxxxx Money. Seller hereby acknowledges that Assignor has deposited
Xxxxxxx Money with the Escrow Agent in the amount of $488,500.00, 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). Seller and Buyer acknowledge and agree that the Escrow
Agent shall hold and disburse the Initial Xxxxxxx Money, Additional Xxxxxxx
Money and Interest Deposit, including any accrued interest thereon
(collectively, the "Escrowed Funds"), in accordance with the terms and
provisions of the Agreement, as amended by this Second Amendment, as if the
Agreement had not been terminated by Buyer pursuant to the Termination Notice.
Notwithstanding the foregoing, the provisions of this Second Amendment shall
only take effect after Seller's receipt of written notice (the "Board Approval
Notice") from a duly authorized officer of Assignor on or before the Board
Approval Contingency Expiration Date (as defined hereinafter), which provides
for approval of this Second Amendment by the independent directors of the
Assignor's Board ("Assignor's Board Approval"). Seller shall promptly procure an
accounting from Escrow Agent showing the current balance of the escrow account,
and deliver the accounting to Buyer and Seller. Notwithstanding anything to the
contrary contained in the Agreement or herein and following Assignor's Board
Approval:
(a) the Interest Deposit shall be deemed to be part of the Xxxxxxx
Money, and shall be applied or distributed by the Escrow Agent in
accordance with Section 3.4 of the Agreement;
(b) if Buyer elects to terminate the Agreement pursuant to either of
the contingencies provided for in Paragraphs 6 or 9 of this Second
Amendment prior to the Financing Contingency Expiration Date (as defined
hereinafter) or EDIC Approval Contingency Expiration Date (as defined
hereinafter), respectively, Escrow Agent shall pay the Escrowed Funds (less
the Additional Non-Refundable Amount, which should previously have been
paid to Seller within five (5) Business Days following Seller's receipt of
Assignor's Board Approval) to Buyer five (5) Business Days following
receipt by Escrow Agent of written notice from Buyer of Buyer's election to
terminate the Agreement (unless the Seller notifies Escrow Agent that it
disputes the right of the Buyer to exercise such termination right and to
receive the Escrowed Funds (less the Additional Non-Refundable Amount), in
which event Escrow Agent may interplead the Escrowed Funds in accordance
with the terms and provisions of the Agreement); and
(c) if Buyer elects to terminate the Agreement pursuant to the
contingency provided for in Paragraph 10 of this Second Amendment prior to
the Board Approval Contingency Expiration Date (as defined hereinafter),
then (i) this Second Amendment shall be deemed null and void ab initio and
of no force and effect, and (ii) the Seller and Assignor shall retain the
same respective rights to the Escrowed Funds (less the Additional
Non-Refundable Amount, which is the sole and exclusive property of Seller),
in accordance with the terms and provisions of the Agreement, as if the
Agreement had not been reinstated by this Second Amendment. The rights of
Seller and Assignor hereunder in the Escrowed Funds are specifically
reserved and shall survive any termination of the Agreement pursuant to
Paragraph 10 of this Second Amendment for Buyer's failure to obtain
Assignor's Board Approval.
4. Payments to Seller. Seller acknowledges that Assignor has previously
delivered directly (and payable) to Seller $25,000.00, representing the
Non-Refundable Amount, which Non-Refundable Amount is the sole and exclusive
property of Seller. If Buyer has not terminated this Second Amendment pursuant
to Paragraph 10 hereof by the Board Approval Contingency Expiration Date (as
defined hereinafter), and Buyer has provided Seller with the Board Approval
Notice, then Escrow Agent shall, within five (5) Business Days thereafter, pay
to Seller $25,000.00 of the Xxxxxxx Money (the "Additional Non-Refundable
Amount"), thereby reducing the amount held by Escrow Agent to $463,500.00, plus
any accrued interest. Except in the case of (a) Seller's failure to complete
Closing directly resulting from a breach by Seller of its obligations to deliver
the transfer documents provided for in Section 7.2.2, or (b) a termination of
the Agreement by Seller pursuant to Sections 4.12, 6.2.1 or 6.3, the Additional
Non-Refundable Amount shall be entirely non-refundable and shall be the property
of Seller whether or not the Closing occurs. Notwithstanding the foregoing, if
Buyer closes in accordance with the terms and conditions of the Agreement and
this Second Amendment, then the Additional Non-Refundable Amount shall be
applied to the Purchase Price.
5. Acknowledgment of Expiration of Inspection and Title and Survey Review
Periods. Buyer acknowledges and agrees that the Inspection Period and the Title
and Survey Review Period have expired and that Buyer has no right to terminate
the Agreement except as otherwise provided by this Second Amendment. The Buyer
further acknowledges that it has received or had access to all Property
Documents and conducted all inspections and tests of the Property that it
considers important and that it is satisfied in all respects with the Property
as of the date of this Second Amendment, and hereby waives all rights with
regard to the Inspection Period and the Title and Survey Review Period.
Notwithstanding any other provision of the Agreement or this Second Amendment,
Seller agrees and acknowledges (a) that Seller shall cause to be released at or
prior to the Closing (as defined in the Agreement) the items set forth on
Exhibit A attached hereto and incorporated herein by reference, or that
provision for prompt recording of such discharge or release in accordance with
prevailing conveyance practices is made at the time of Closing, (b) that at the
Closing, Seller shall (i) execute and deliver a mechanics' lien and
parties-in-possession affidavit in the standard form required by Chicago Title
Insurance Company, and (ii) deliver good and marketable title, (c) that attached
hereto as Exhibit C is a complete schedule of the Property Documents, which
Schedule identifies (to the best of Seller's knowledge) any Property Documents
that have been modified since the Effective Date, and (d) that attached hereto
as Exhibits D1-6 are updated copies (if applicable) of the following documents
(i) Rent Roll for the Property (Exhibit D1), (ii) Operating Statements for
Seller (Exhibit D2), (iii) copy of ad valorem tax statements relating to the
Property for the current tax period (Exhibit D3), (iv) Service Contracts
(Exhibit D4), (v) Commission Agreements (Exhibit D5), and (vi) License
Agreements, as set forth on Exhibit A-1.2 of the Agreement (Exhibit D6).
6. Expiration of Financing Contingency Period.
(a) The Financing Contingency Period referenced in Section 1.1.15 and
Section 4.5.1 of the Agreement shall commence on March 29, 2002 (the
"Financing Contingency Commencement Date") and shall expire on June 27,
2002 (the "Financing Contingency Expiration Date").
(b) Buyer shall have until May 13, 2002 to deliver to Seller
reasonable evidence (the "Loan Offer Evidence") that Buyer has obtained a
loan offer from a conduit lender on the Prevailing Terms (as defined
hereinafter). If Buyer has not delivered the Loan Offer Evidence to Seller
by the Loan Offer Expiration Date, then Seller, at Seller's option, shall
have the right to terminate the Agreement, as hereby amended and
reinstated, by delivering written notice to Buyer to that effect within
three (3) business days after the Loan Offer Expiration Date.
(c) Buyer shall have until June 12, 2002 (the "Term Sheet Expiration
Date") to deliver to Seller reasonable evidence (the "Term Sheet Evidence")
that Buyer's lender has delivered a loan term sheet in accordance with the
Prevailing Terms (as defined hereinafter). If Buyer has not delivered the
Term Sheet Evidence to Seller by the Term Sheet Expiration Date, then
Seller, at Seller's option, shall have the right to terminate the
Agreement, as hereby amended and reinstated, by delivering written notice
to Buyer to that effect within three (3) business days after the Term Sheet
Expiration Date.
(d) Buyer shall have until the Financing Contingency Expiration Date
to deliver to Seller reasonable evidence (the "Loan Agreement Evidence")
that Buyer and its lender have reached agreement upon the loan terms, which
shall be in accordance with the Prevailing Terms (as defined hereinafter).
If Buyer has not delivered the Loan Agreement Evidence to Seller by the
Financing Contingency Expiration Date, then Buyer's Financing Contingency
shall expire, and Buyer shall have no further right to terminate the
Agreement or this Second Amendment for failure to obtain financing, unless
extended by mutual written agreement of the parties.
Notwithstanding anything to the contrary contained in Section 4.5.1 of the
Agreement, (a) "Buyer's Financing Undertakings" shall be defined to mean the
Buyer's timely delivery to Seller of (i) the Broker's Agreement (as defined
hereinafter), (ii) the Loan Offer Evidence, (iii) the Term Sheet Evidence, and
(iv) the Loan Agreement Evidence, and (b) the "Prevailing Terms" shall be
defined to mean financing for a portion of the Purchase Price on terms and
conditions consistent with the following terms: (i) total principal amount of
(A) not less than $4,000,000.00, or (B) not less than $3,800,000.00, in the
event that the Closing Credit (as defined hereinafter) is triggered, (ii) a
market interest rate which financing shall not exceed 8.25% fixed for the term,
(iii) loan term of not less than ten (10) years, (iv) not less than a
twenty-five year amortization, and (v) payments on principal and interest under
the loan are non-recourse to Buyer, except for Standard Carveouts (as defined
hereinafter), and secured solely by the Property. For example only, Buyer shall
be obligated to accept a non-recourse loan in the amount of $4,000,000.00 or
$3,800,000.00 (in the event that the Closing Credit (as defined hereinafter) is
triggered), at an interest rate of 8.25%, for a term of ten years and an
amortization of 25 years. Buyer shall not be permitted to terminate the
Agreement (or Second Amendment) pursuant to Buyer's financing contingency
without forfeiting the Escrowed Funds if (i) Buyer receives a commitment for
loan financing in accordance with the Prevailing Terms; or (ii) if Buyer does
not satisfactorily complete Buyer's Financing Undertakings; or (iii) in the
event Buyer does not secure financing in accordance with the Prevailing Terms,
if Seller elects, at Seller's sole option, to provide Buyer (through Seller or
Seller's affiliate) with financing on the terms set forth in Paragraph 7(a)
below, then Buyer shall not be permitted to terminate the Agreement because of
its inability to secure financing hereunder.
Buyer hereby agrees to use good faith and diligent efforts to obtain its
financing.
7. Buyer's Termination Right/Seller Financing Option.
(a) Notwithstanding anything to the contrary contained in the
Agreement and after Assignor's Board Approval, Buyer may terminate the
Agreement by giving written notice of termination to Seller and Escrow
Agent (the "Financing Contingency Termination Notice") at any time on or
before the Financing Contingency Expiration Date, if, and only if, both (i)
Buyer has failed to obtain financing for a portion of the Purchase Price on
the Prevailing Terms, and (ii) Buyer has satisfied all of the Buyer's
Financing Undertakings. In the event of such election to terminate, all
obligations of the parties hereunder shall cease, the Escrowed Funds (less
the Additional Non-Refundable Amount) shall be returned to Buyer (subject
to and in accordance with Paragraph 3 hereof), and the Agreement shall be
null and void and of no further force and effect, unless Seller elects, at
Seller's sole option, by providing written notice to Buyer within ten (10)
Business Days of Seller's receipt of the Financing Contingency Termination
Notice, to provide financing to Buyer at Closing (the "Seller Financing
Election") in accordance with the following terms (the "Seller Financing
Terms"): (i) total principal amount of (A) $4,000,000.00, or (B)
$3,800,000.00, in the event that the Closing Credit (as defined
hereinafter) is triggered, (ii) interest rate of 8.25% fixed for the term,
(iii) loan term of ten (10) years, (iv) a twenty-five year amortization,
and (v) payments on principal and interest under the loan are non-recourse
to Buyer, except for Standard Carveouts (as defined hereinafter). In the
event of such Seller Financing Election, the portion of the Purchase Price
(as set forth in Section 1.1.3 of the Agreement) to be funded by the loan
shall be due and payable by execution of a promissory note (the "Promissory
Note") to Seller, in the form of Exhibit E attached hereto and otherwise in
such form as reasonably acceptable to Buyer and Seller, which Promissory
Note shall be consistent with the Seller Financing Terms and secured by a
mortgage (the "Mortgage") in the form of Exhibit F hereto, Assignment of
Leases and Rents and any other reasonable and customary loan documentation,
to be executed by Buyer and otherwise in such form as reasonably acceptable
to Buyer and Seller. The parties hereby agree to act in good faith in
determining and executing any additional required loan documentation.
Notwithstanding anything to the contrary contained herein, it is hereby
understood that Buyer shall have the right to terminate the Agreement (pursuant
to and in accordance with the provisions of Paragraphs 6 and 7 hereof) if Buyer
is unable to obtain any single item of Buyer's Financing Undertakings (i.e. the
Broker's Agreement, Loan Offer Evidence, Term Sheet Evidence, or the Loan
Agreement Evidence).
(b) The term "Standard Carveouts" shall mean the actual damage to
lender caused by and only to the extent of one or more of the following:
first payment default, fraud, physical waste to the Property caused by the
intentional or grossly negligent act(s) or omission(s) of the borrower,
material misrepresentation, misappropriation of property or security
deposits or misappropriation of funds from condemnation, insurance and
operations, any damages or loss relating to toxic or hazardous wastes,
waste products or substances on or about any of the Property, unauthorized
transfers of title to the property or majority ownership of the borrower,
failure to pay taxes, assessments and/or other liens encumbering the
Property, failure to obtain the lender's prior written consent to
subordinate financing or voluntary liens on the Property or interests in
the borrower, failure to permit on-site inspections, failure to maintain
its single purpose status. The Standard Carveouts shall apply both with
respect to the lender and the Landlord (EDIC or its successors and assigns)
under the Ground Lease.
8. Application for Financing. Buyer shall have until April 4, 2002 to
execute a broker's agreement with Xxxxxxxx Xxxxxxxx Xxxxxx, X.X. to secure
financing (the "Broker's Agreement"), a copy of which shall be promptly
delivered to Seller.
9. EDIC Board Approval Contingency Period. A contingency shall be
incorporated into the Agreement for Economic Development and Industrial
Corporation ("EDIC") Board approval for certain proposed modifications to the 27
Drydock Master Lease, which proposed modifications would be implemented only if
Buyer purchases the Property ("Lease Modifications"). The Lease Modifications
shall be consistent with the terms set forth in that certain letter dated
January 30, 2002 from the BRA/EDIC and signed by Xxxxxxx Xxxxxxxxx to Buyer
(which is attached hereto as Exhibit B). Buyer shall promptly provide Seller
with copies of all correspondence to and from EDIC with respect to the Lease
Modifications and the approval process and weekly updates regarding the status
of the EDIC approval process. In the event that the EDIC does not materially and
substantially approve the Lease Modifications contained in Buyer's outline,
Buyer shall have the right to terminate the Agreement, as hereby amended and
reinstated, by delivering written notice to Seller to that effect on or before
April 18, 2002 (the "EDIC Approval Contingency Expiration Date").
10. Assignor Board Approval Contingency Period. A contingency shall be
incorporated into the Agreement for Assignor's Board Approval. In the event that
the Assignor's Board Approval has not been secured by 5 p.m. March 29, 2002 (the
"Board Approval Contingency Expiration Date"), then (a) this Second Amendment
shall be deemed null and void ab initio and of no force and effect, and (b) the
Seller and Assignor shall retain the same respective rights under the Agreement
including, without limitation, rights with respect to the Escrowed Funds (less
the Non-Refundable Amount), in accordance with the terms and provisions of the
Agreement, as if the Agreement had not been reinstated by this Second Amendment.
11. Closing Date. Notwithstanding anything in the Agreement to the
contrary, Seller and Buyer hereby agree that the Closing Date shall be the date
that is the later of (a) ten (10) days after the Financing Contingency
Expiration Date, time remaining of the essence, or (b) the date that is ten (10)
days after Seller receives EDIC's consent to the assignment of Seller's interest
in the Ground Lease, but in no event later than the date that is ninety (90)
days after the Financing Contingency Expiration Date.
12. Amendments.
A. The Purchase Price as set forth in Section 1.1.3 of the Agreement
is hereby amended to be $6,250,000.00.
B. If Assignor's Board Approval has been secured prior to the Board
Approval Contingency Expiration Date, and this Second Amendment has not
been terminated, the Escrow Agent in Section 1.1.6 of the Agreement shall
be amended to be:
Chicago Title Insurance Company
00 Xxxxxxx Xxxxxx - Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
If Assignor's Board Approval is secured and Buyer elects, the parties
hereto shall then arrange for First American Title Insurance Company to
transfer the Escrowed Funds to Escrow Agent within five (5) Business Days
after Assignor's Board Approval.
C. The Notice Address for Buyer in Section 1.3 of the Agreement shall
be amended to be:
Buyer: Copy to:
Zoom Group, LLC Mintz, Levin, Cohn, Ferris, Glovsky
c/o Zoom Telephonics, Inc. & Popeo, PC
000 Xxxxx Xxxxxx Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxx Attention: Xxxxxx X. Xxxxxx, Esq.
Xxxxxx X. Xxxxxxxxxx, Esq.
Mr. Xxxx Xxxxxxx
c/o Northstar Management
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Zoom Group, LLC
Effective as of the Board Approval Contingency Expiration Date, Seller
shall not be obligated to send notices to Assignor under the Agreement, as
amended.
D. The Notice Address for Seller in Section 1.3 of the Agreement shall
be amended to be:
Buyer: Copy to:
SKW Real Estate Limited Partnership Xxxxx Xxxxxxx LLP
x/x Xxxxxx Xxxxx, X.X 000 Xxxxxxx Xxxxxx
0000 X Xxxxxx, X.X., Xxxxx 000 Xxxxxx, XX 00000-0000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxxxxxx Xxxxxx Attention: Xxxxxx X. Xxxxxxxx,
Vice President P.C.
E. The definition of "Ground Lease" in Section 2.1.1 of the Agreement
is hereby amended as follows: "that certain Long Term Lease for Building
114-Section A between Economic Development and Industrial Corporation of
Boston as Landlord (the "EDIC") and Drydock Associates Limited Partnership,
predecessor-in-interest to Seller, as Tenant dated as of October 1, 1987, a
notice of which Long Term Lease entitled `Notice of Lease' acknowledged
December 4, 1987 is recorded with Suffolk County Registry District of the
Registry of Deeds in Book 14313, Page 128."
F. Section 3.1.1 of the Agreement is hereby deleted;
G. Section 6.1.3.2 of the Agreement is hereby deleted;
H. Section 9.3 of the Agreement is hereby amended by deleting the
second sentence thereof and restating it as follows: "Terms such as `to
Seller's knowledge,' `to the best of Seller's knowledge,' `known to Seller'
or like phrases shall mean the actual present and conscious awareness or
knowledge of Xxxxxxxxxxx Xxxxxx, asset manager of the Property ("Asset
Manager's Employee") without any duty of inquiry or investigation; provided
that so qualifying Seller's knowledge shall in no event give rise to any
personal liability on the part of Asset Manager's Employee or any other
officer or employee of Seller or its Asset Manager, on account of any
breach of any representation or warranty made by Seller herein."
I. Exhibits H and I to the Agreement are hereby deleted.
13. Release.
A. Effective as of the receipt of Assignor's Board Approval prior to
the Board Approval Contingency Expiration Date, Seller hereby releases
Assignor from any and all liabilities or claims arising under or related to
the Agreement (including, but not limited to, any liabilities or claims
with respect to the Escrowed Funds);
B. Effective as of the receipt of Assignor's Board Approval prior to
the Board Approval Contingency Expiration Date, Assignor hereby releases
Seller from any and all liabilities or claims arising under or related to
the Agreement (including, but not limited to, any liabilities or claims
with respect to the Escrowed Funds);
14. Miscellaneous.
A. Capitalized terms and phrases used in this Second Amendment but not
defined herein shall have the meanings ascribed to them in the Agreement.
B. This Second Amendment may be executed in multiple counterparts,
each of which shall constitute an original, but all of which shall
constitute one document.
C. Notwithstanding anything to the contrary in this Second Amendment,
in the event that Seller is unable to provide evidence to Buyer's
reasonable satisfaction (i) by the date that is thirty (30) days from the
date of complete execution and delivery of this Second Amendment and
Assignor's Board Approval, that the delinquency of Cambridge Environmental
("Tenant") with respect to its lease for certain premises at the Property
has been resolved, and that Cambridge is current with all back rent owed to
landlord under said lease, and (ii) at the Closing, that Tenant remains
current under said lease, then Buyer shall receive a credit against the
Purchase Price at the Closing in the amount $150,000.00 (the "Closing
Credit").
D. In all other respects, Seller and Buyer hereby reaffirm all of the
covenants, agreements, terms, conditions and other provisions of the
Agreement except as modified hereby, and the Agreement is hereby
incorporated in full herein by this reference. This Second Amendment shall
not be effective unless and until execution and delivery thereof by Seller,
Buyer and Assignor and Assignor's Board Approval has been received by
Seller. Except as may otherwise be provided herein, the provisions of this
Second Amendment shall take effect as of the date written below.
E. Notwithstanding anything to the contrary contained herein, in the
event that the Second Amendment (fully-executed by Buyer and Seller) has
not been delivered to both Buyer and Seller by 5 p.m. April 1, 2002, each
of the deadline dates set forth in Paragraphs 6, 8 and 9 hereof shall be
pushed back by one Business Day for each day of delinquency.
IN WITNESS WHEREOF, Seller, Buyer and Assignor have executed this
Reinstatement Agreement, Assignment Agreement and Second Amendment to Agreement
of Purchase and Sale as a sealed instrument as of this 29th day of March, 2002.
SELLER:
SKW Real Estate Limited Partnership,
a Delaware limited partnership
By: WSK Gen-Par, Inc.,
a Delaware corporation,
General Partner
By: /s/ Xxxxxxxxxxx Xxxxxx
-----------------------------
Name: Xxxxxxxxxxx Xxxxxx
Title: Assistant Vice President
Hereunto duly authorized
ASSIGNOR:
Zoom Telephonics, Inc.,
a Delaware corporation
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
Title: Executive Vice President
Hereunto duly authorized
BUYER:
Zoom Group LLC
a Massachusetts limited liability company
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: Manager
Hereunto duly authorized
JOINDER BY ESCROW AGENT
(May be completed after Assignor Board Approval if Xxxxxxx Money is
transferred)
Escrow Agent has executed this Second Amendment in order to confirm that
Escrow Agent has received and shall hold the Escrowed Funds required to be
deposited under the Agreement as amended by this Second Amendment and the
interest earned thereto, in escrow, and shall disburse the Escrowed Funds, and
the interest earned thereon, pursuant to the provisions of the Agreement as
amended by this Second Amendment.
Date executed by Escrow Agent: By:
--------------------------
Name:
Title:
