Exhibit 2.3
ESCROW AGREEMENT
THIS AGREEMENT is made this 21st day of December 1998, by and among, TVCA,
LLC a Delaware limited liability company as "Purchaser," TELEVIDEO, INC., a
Delaware corporation, as "Seller", and WILMINGTON TRUST COMPANY, a Delaware
banking corporation, as "Escrow Agent".
WHEREAS, Purchaser is acquiring certain real property from Seller located
at 2345 Harris Way, San Jose, California (the "Property"); and
WHEREAS, Purchaser has delivered to Seller a promissory note ("Note") in
the amount of Two Million Seven Hundred Fifty Thousand Dollars ($2,750,000) in
connection with its acquisition of the Property, a true and correct copy of
which is attached hereto as Exhibit "1."
WHEREAS, the monthly amount due Seller on the Note is Twenty One Thousand
Seven Hundred Thirty Five and 34/100 Dollars ($21,735.34).
NOW, THEREFORE, in consideration of the premises, and further consideration
of the covenants set forth hereafter, it is hereby agreed mutually as follows:
I. DESIGNATION AS ESCROW AGENT.
Subject to the terms and conditions hereof, Purchaser and Seller hereby
appoint Wilmington Trust Company as Escrow Agent and Wilmington Trust Company
hereby accepts such appointment.
II. DEPOSIT OF ESCROW FUNDS.
(a) Upon execution of this Escrow Agreement, Purchaser shall deposit the
sum of One Hundred Dollars ($100.00) into an account (the "Escrow Account")
established with Escrow Agent. In addition to such initial deposit, Escrow Agent
shall receive a monthly amount from Finova Realty Capital, Inc., a Delaware
corporation ("FRC") for immediate deposit into the Escrow Account. At all times
from and effect the date of this Agreement, Purchaser shall be the sole owner of
the Escrow Account.
(b) Escrow Agent will hold the initial deposit and all subsequent deposits
from FRC in the Escrow Account, together with all investments thereof and all
interest accumulated thereon and proceeds therefrom, in escrow upon the terms
and conditions set forth in this Escrow Agreement and shall not disburse funds
from the Escrow Account except as provided herein.
(c) Unless otherwise directed by Purchaser, Escrow Agent shall invest the
Escrow Account solely in securities issued or guaranteed by the United States or
an agency thereof, or in securities of mutual funds the assets of which are
invested in securities issued or guaranteed by the United States or an agency
thereof, or in repurchase agreements involving securities issued or guaranteed
by the United States or an agency thereof, or in certificates of deposit issued
by banks.
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III. DISBURSEMENT OF ESCROW ACCOUNT. Escrow Agent will make the following
disbursements to Purchaser and Seller on the first day of each month.
(a) To Seller, the sum of Twenty One Thousand Seven Hundred Thirty Five
and 34/100 Dollars ($21,735.34).
(b) To Purchaser, the amount remaining in the Escrow Account after the
payment to Seller as set forth above; provided, however, that Escrow Agent
may retain a sufficient amount in the Escrow Account in order to keep the
account open.
IV. AUTHORITY OF ESCROW AGENT AND LIMITATION OF LIABILITY.
(a) In acting hereunder, Escrow Agent shall have only such duties as
are specified herein and no implied duties shall be read into this Agreement,
and Escrow Agent shall not be liable for any act done or omitted to be done,
by it in the absence of its gross negligence or willful misconduct.
(b) Escrow Agent may act in reliance upon any writing or instrument or
signature which it, in good faith, believes to be genuine, and may assume the
validity and accuracy of any statement or assertion contained in such a
writing or instrument and may assume that any person purporting to give any
writing, notice, advice or instruction in connection with the provisions
hereof has been duly authorized so to do.
(c) Escrow Agent shall be entitled to consult with legal counsel in the
event that a question or dispute arises with regard to the construction of
any of the provisions hereof, and shall incur no liability and shall be fully
protected in acting in accordance with the advice or opinion of such counsel.
(d) Escrow Agent shall not be required to use its own funds in the
performance of any of its obligations or duties or the exercise of any of its
rights or powers, and shall not be required to take any action which, in
Escrow Agent's sole and absolute judgment, could involve it in expense or
liability unless furnished with security and indemnity which it deems, in its
sole and absolute discretion, to be satisfactory.
(e) Seller shall pay to Escrow Agent compensation for its services
hereunder to be determined from time to time by the application of the
current rates than charged by Escrow Agent for accounts of similar size and
character, with a minimum rate of Twenty Five Hundred Dollars ($2,500.00) per
annum. Seller shall also pay to Escrow Agent an initial set up fee of Three
Thousand Dollars ($3,000.00). In the event Escrow Agent renders any
extraordinary services in connection with the escrow account at the request
of the parties, Escrow Agent shall be entitled to additional compensation
therefor. Escrow Agent shall have a first lien against the Escrow Account to
secure the obligations or Purchaser and Seller hereunder. The terms of this
paragraph shall survive termination of this Agreement.
(f) Purchaser and Seller hereby agree, jointly and severally, to
indemnify Escrow Agent and hold it harmless from any and against all
liabilities, loses, actions, suits or proceedings at law or in equity, and
any other expenses, fees or charges of any character or nature, including,
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without limitation, attorney's fees and expenses, which Escrow Agent may incur
or with which it may be threatened by reason of its acting as Escrow Agent under
this Agreement or arising out of the existence of the Escrow Account, except to
the extent the same shall be caused by Escrow Agent's gross negligence or
willful misconduct. Escrow Agent shall have a first lien against the Escrow
Account to secure the obligations of the parties hereunder. The terms of this
paragraph shall survive termination of this Agreement.
(g) In the event Escrow Agent receives conflicting instructions hereunder,
Escrow Agent shall be fully protected in refraining from acting until such
conflict is resolved to the satisfaction of Escrow Agent. In addition, Escrow
Agent shall have the right to institute a bill of interpleader in any court of
competent jurisdiction to determine the rights of the parties, and the parties
shall pay all costs, expenses and disbursements in connection therewith,
including attorney's fees. For purposes of this Escrow Agreement, the parties
hereto agree to submit to the jurisdiction of the courts of the State of
Delaware.
(h) Escrow Agent may resign as Escrow Agent, and, upon its resignation,
shall thereupon be discharged from any and shall further duties and obligations
under this Agreement by giving notice in writing of such resignation to
Purchaser and Seller, which notice shall specify a date upon which such
resignation shall take effect. Upon the resignation of Escrow Agent, Purchaser
and Seller shall, within sixty (60) business days after receiving the foregoing
notice from Escrow Agent, designate a substitute escrow agent (the "Substitute
Escrow Agent"), which Substitute Escrow Agent shall, upon its designation and
notice of such designation to Escrow Agent, succeed to all of the rights, duties
and obligations of Escrow Agent hereunder.
IV. NOTICES.
Except as otherwise provided herein, any notices, instruction or instrument
to be delivered hereunder shall be in writing and shall be sent by certified or
registered mail, postage prepaid, return receipt requested, or sent by
facsimile, nationally-recognized overnight courier addressed to the parties or
delivered by hand to the addresses forth on the signature page hereof or at such
other address specified in writing by the addressee. Notices shall be deemed
communicated upon the earlier of receipt or seventy-two (72) hours from the time
of mailing as provided in this Article IV, and on the business day or first
business day following transmission if given by facsimile.
V. AMENDMENT.
This Escrow Agreement may not be amended, modified, supplemented or
otherwise altered except by an instrument in writing signed by the parties
hereto.
VI. TERMINATION.
This Agreement will terminate upon the disbursement of all funds in the
Escrow Account, as provided above, by the Escrow Agent.
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VII. GOVERNING LAW.
This is a Delaware contract and shall be governed by Delaware law in all
respects.
VIII. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which
when so executed shall be deemed to be an original, and such counterparts
together shall consitute and be one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused their names to be hereto
subscribed by their respective authorized representatives as of the day and year
first above written.
TVCA, LLC WILMINGTON TRUST COMPANY,
as Purchaser Escrow Agent
By: /s/ C. Frederick Wehba II By:
-------------------------- ------------------------
C. Frederick Wehba II, President Title:
TVCA, INC./ Manager
Address: Address:
1900 Avenue of the Stars, Suite 2840 Rodney Square North
Los Angeles, CA 90067 1100 North Market Street
Fax No.: (310) 282-8585 Wilmington, Delaware 19890
Tel No.: (310) 282-8000 Fax No.: (302) 651 - 1576
Attention: C. Frederick Wehba II Tel No.: (302) 651 - 1834
Attention: W. Chris Sponenberg
TELEVIDEO, INC.
as Seller
BY: /s/ K. Philip Hwang
---------------------------
K. Philip Hwang, CEO
Address:
2345 Harris Way
San Jose, CA 95131
Fax No.: (408) 954-0622
Tel No.: (408) 954-8333
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EXHIBIT "1"
PROMISSORY NOTE
$2,750,000.00 December ___, 1998
1. For value received, the undersigned, TVCA HOLDING LLC, a Delaware limited
liability company ("Maker"), promises to pay to the order of TELEVIDEO,
INC., a Delaware corporation ("Payee"), or order, at 2345 Harris Way, San
Jose, CA 95131, or other address directed by Payee, the principal sum of
Two Million Seven Hundred Fifty Thousand Dollars ($2,750,000) with interest
at the rate of seven and one-quarter percent (7.25%) per annum from the
date hereof with monthly payments based on an amortization period of twenty
(20) years. If not earlier paid in full, any unpaid principal and all
accrued interest shall be due and payable on December 1, 2013.
2. Principal and accrued interest shall be payable in equal monthly
installments of Twenty One Thousand Seven Hundred Thirty Five and 34/100
Dollars ($21,735.34) each on the first day of each month commencing on
January 1, 1999. On December 1, 2013, the outstanding principal balance
and any and all accrued interest then due and payable shall be paid in
full to Payee by Maker.
3. Both principal and interest shall be payable to Payee, or at any other
place hereafter designated in writing by the holder(s) and delivered to
Maker. All sums shall be deemed paid upon receipt of same by the holder(s)
hereof.
4. This Promissory Note is secured by that certain Pledge and Security
Agreement ("Pledge Agreement") of even date herewith executed by all of
the members of Maker and that certain Escrow Agreement ("Escrow Agreement")
of even date herewith executed by Maker, Payee, and Wilmington Trust
Company, a Delaware banking corporation.
5. Payments on this Promissory Note shall be applied first to payment of any
late charges, second to payment of accrued interest and third to the
outstanding principal.
6. Maker shall have the right to prepay all or any portion of the indebtedness
evidenced by this Promissory Note at any time without premium or penalty.
7. Subject in all events to the provisions of Section 8 hereof, (i) if Maker
fails to pay in full any monthly installment of principal and interest or
any other sums required to be paid pursuant to this Promissory Note in the
manner set forth in the Escrow Agreement, within ten (10) days after the
due date, or (ii) if Maker defaults in the performance or observance of any
covenant or condition contained in the Pledge Agreement and the Escrow
Agreement and such default is not cured within thirty (30) days after
receipt of written notice of such default, or (iii) if, pursuant to that
certain lease ("Lease") dated as of December __, 1998 between TVCA, LLC, a
Delaware limited liability company, as landlord, and Payee, as tenant, with
respect to certain real property and improvements located in San Jose, CA,
particularly described in the Lease ("Premises"), Payee is
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required to purchase the Premises from TVCA, LLC in accordance with the
terms of the Lease, then and in any of such events, the holder of this
Promissory Note may, without further notice, immediately declare to be due
and payable the entire outstanding indebtedness evidenced by this
Promissory Note.
8. Notwithstanding any provisions of this Promissory Note to the contrary, the
performance of Maker's obligations pursuant to this Promissory Note are
conditioned upon Payee, as tenant under the Lease, timely tendering to
TVCA, LLC all rent, charges and monetary obligations under the Lease
("Lease Payments") as and when the same become due and payable in
accordance with the terms of the Lease. In the event that Payee is late in
tendering any Lease Payment to TVCA, LLC, then the applicable due date for
Maker's performance of any of Maker's obligations under this Promissory
Note shall automatically be extended for the same period of time that Payee
was delinquent in the payment of such Lease Payment. Further, in the event
that the Lease is terminated pursuant to Section 10 of the Lease due to a
default on the part of Payee as tenant thereunder, then, in such event,
this Promissory Note shall be deemed to be immediately satisfied in full
and Maker shall have no further obligation to Payee hereunder.
9. This Promissory Note shall be binding Maker and its successors and assigns.
TVCA HOLDING LLC,
a Delaware limited liability company
By:
-------------------------------
C. Frederick Wehba II, Manager
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BILL OF SALE
[Equipment]
KNOW ALL MEN BY THESE PRESENTS THAT, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, TELEVIDEO, INC., a
Delaware corporation ("Seller") does hereby grant, bargain, sell, deliver,
carry, transfer, set over and assign (or cause to be granted, bargained, sold,
delivered, carried, transferred, set over and assigned) unto TVCA, LLC, a
Delaware limited liability company ("Purchaser"), its successors and assigns,
all of the "Equipment", as that term is defined in that certain Real Estate
Purchase Agreement ("Purchase Agreement") dated December 21, 1998 by and between
Seller and Purchaser for the purchase and sale of certain real property and
improvements and related property located in San Jose, CA and as more
particularly described on EXHIBIT A attached hereto and made a part hereof.
It is the intention of this instrument to convey, transfer and assign to
Purchaser, and Seller represents and warrants to Purchaser that this instrument
does convey, transfer and assign to Purchaser, all right, title and interest in
and to the Equipment. Seller, for itself and its successors and assigns, further
represents and warrants that Seller has good and valid title in and to the
Equipment, that Seller has the right, power and capacity to sell the Equipment,
and that the Equipment is free and clear of covenants, conditions, liens,
charges, security interests, adverse claims, encumbrances, demands or other
title defects or restrictions of any kind, including, without limitation, any
restrictions on the ability of Purchaser to transfer the Equipment.
Seller agrees to execute and deliver, or cause to be executed and
delivered, all such further assignments, endorsements or other documents as
Purchaser may reasonably request for the purpose of effecting transfer of all
right, title and interest in and to the Equipment.
TO HAVE AND TO HOLD the Equipment unto Purchaser, its successors and
assigns, to and for its and their own use forever.
IN WITNESS WHEREOF, Seller has caused this Bill of Sale to be executed by
its duly authorized officer as of the 21st day of December, 1998.
TELEVIDEO, INC.,
a Delaware corporation
By: /s/ K. Philip Hwang
-------------------------
K. Philip Hwang, CEO