EXHIBIT 10.11
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REAL ESTATE PURCHASE AGREEMENT
AND
ESCROW INSTRUCTIONS
THIS AGREEMENT is made as of the _____ day of September, 2003, between
EXTENDED SYSTEMS OF IDAHO, INCORPORATED, an Idaho Corporation (hereafter
"Seller"), and BRIGHTON INVESTMENTS, LLC, an Idaho Limited Liability Company
("Buyer");
W I T N E S S E T H:
WHEREAS, Seller is the owner of the real property described on "Exhibit
A" attached hereto and made a part hereof (hereafter "Subject Property");
WHEREAS, the parties have agreed on the sale and purchase of the
Subject Property upon the terms, covenants and conditions set forth herein.
NOW, THEREFORE, IN CONSIDERATION OF the mutual promises and
undertakings of the parties set forth herein and for other good and valuable
consideration, IT IS AGREED:
SECTION 1. RECITALS. The foregoing recitals are part of the terms,
covenants and conditions of this Agreement, not mere recitals.
SECTION 2. SALE AND PURCHASE. The Seller agrees to sell the Subject
Property to the Buyer and the Buyer agrees to purchase the Subject Property, all
upon the terms, covenants and conditions contained in this Agreement.
SECTION 3. EARNEST MONEY. Within five (5) days after the Effective Date
of this Agreement (hereafter defined), the Buyer shall deposit with TitleOne
Corporation, 1101 West River Street, Suite 201, Boise, Idaho 83702, an earnest
money deposit (hereafter "Earnest Money") in the amount of TWENTY THOUSAND AND
NO/100THS Dollars ($20,000.00). TitleOne Corporation is hereby designated by the
parties as the Closing Agent for this transaction (hereafter "Closing Agent").
The Earnest Money shall be deposited by the Closing Agent in an insured
interest-bearing account and all interest earned thereon shall accrue to Buyer's
benefit (i.e., either returned to the Buyer in the event the conditions are not
satisfied or applied to the purchase price at closing); provided, however, if
the Seller shall become entitled to the Earnest Money (i.e., as a result of a
breach of this Agreement by Buyer), the interest earned on such deposit shall
accrue to Seller's benefit. If this transaction does not close because of the
failure of a condition precedent or for any other reason not the fault of the
Buyer, all Earnest Money shall be returned by the Closing Agent to the Buyer. IF
THE BUYER FAILS OR REFUSES TO CLOSE THE PURCHASE THROUGH NO FAULT OF THE SELLER,
IN BREACH OF THIS AGREEMENT, THE EARNEST MONEY SHALL BE PAID TO THE SELLER AND
SHALL BE RETAINED BY THE SELLER AS AGREED LIQUIDATED DAMAGES AS THE SOLE AND
EXCLUSIVE REMEDY OF THE SELLER. Unless provided to the contrary, as used in this
Agreement, "Earnest Money" shall mean the Earnest Money deposited by the Buyer
with the Closing Agent and all interest earned thereon. As used in this
Agreement, "Effective Date" shall mean the later of the following dates: (i) the
date of execution of this Agreement by the Seller, or (ii) the date of execution
of this Agreement by the Buyer, as evidenced by the date of execution on the
signature page of this Agreement.
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SECTION 4. PURCHASE PRICE. The purchase price for the Subject Property
shall be determined by multiplying the actual quantity of land within the
Subject Property, as determined in accordance with Section 6.3, below, by the
amount of Ninety-Eight Thousand and Ten and No/100ths ($98,010.00) per acre (or
$2.25 per square foot), or portion thereof, included within the Subject
Property, which purchase price so determined shall be payable as follows:
4.1. EARNEST MONEY. The Earnest Money paid under Section 3, above,
shall be credited to the purchase price; and
4.2. BALANCE OF PURCHASE PRICE. The balance of the purchase price,
after deducting the Earnest Money pursuant to Section 4.1, above, shall be paid
by the Buyer to the Seller in cash at closing.
SECTION 5. TITLE INSURANCE POLICY. Within ten (10) days after the
Effective Date of this Agreement, the Seller shall deliver to the Buyer a
Commitment for Title Insurance (hereafter "Commitment") issued by TitleOne
Corporation, Boise, Idaho (the Closing Agent), covering the Subject Property,
together with a legible copy of each recorded exception shown in the Commitment.
The Buyer shall have thirty (30) days after receipt of the Commitment and the
copies of the recorded exceptions within which to notify the Seller, in writing,
of any objection to an exception shown in the Commitment and if said
exception(s) cannot be removed by the Seller on or before the Closing Date
(hereafter defined), the Buyer shall have the right to terminate this Agreement,
in which event the Earnest Money shall be returned to the Buyer and all parties
thereafter released and discharged from any further obligation under this
Agreement. At the closing, the Seller shall purchase and deliver to the Buyer a
standard coverage Owner's Policy of Title Insurance in the full amount of the
purchase price, insuring that fee simple title to the Subject Property is vested
in the Buyer, subject only to the exceptions shown in the Commitment as approved
by the Buyer and any additional exceptions created by or attributable to the
Buyer. The failure of the Buyer to deliver written notice of an objection to a
material exception shown in the Commitment within the time provided shall
conclusively constitute the approval by the Buyer of the exceptions shown in the
Commitment.
SECTION 6. CONDITIONS TO CLOSING - INSPECTION PERIOD. The Buyer's
obligation to close the purchase of the Subject Property is expressly contingent
upon and subject to the satisfaction of each of the conditions set forth in
Sections 6.1, 6.2, 6.3, 6.4 and 6.5, below (hereafter "Buyer's Conditions"),
within sixty (60) days after the delivery by the Seller to the Buyer of the
Property Data pursuant to Section 7, below (hereafter "Inspection Period"), or
such other period of time as may be specified and agreed upon in writing by both
parties. The Buyer's Conditions are for the benefit of the Buyer and may be
waived, in whole or in part, only by the Buyer. Any waiver of a Buyer's
Condition must be in a writing signed by the Buyer. The agreed conditions are:
6.1. TITLE. The approval by the Buyer of the exceptions to title shown
in the Commitment for Title Insurance to be obtained and delivered to the Buyer
as provided in Section 5, above, within the time specified in Section 5, above.
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6.2. APPROVAL OF PROPERTY DATA. The approval by the Buyer, in the
Buyer's sole and exclusive discretion, of the Property Data to be delivered by
the Seller to the Buyer as provided in Section 7, below.
6.3. APPROVAL OF SURVEY. Within thirty (30) days after the Effective
Date of this Agreement, the Seller shall obtain, at the Seller's cost and
expense, and deliver to the Buyer a current survey of the Subject Property,
which survey shall be performed by Clairborne Waite Consulting ("Engineer") and
shall be in a form and contain such information as is required for the issuance
of a ALTA extended coverage owner's policy of title insurance. The Engineer
shall calculate the actual square footage of land within the boundaries of the
Subject Property and shall provide such calculation to the Seller and the Buyer.
The Buyer shall have the right to approve the survey, in the Buyer's sole
discretion, within the Inspection Period.
6.4. STUDIES AND TESTS. The obtaining by the Buyer, at the Buyer's sole
cost and expense, and the approval by the Buyer, in the Buyer's sole and
exclusive discretion, of such investigations, studies and tests ("Studies") of
the Subject Property as may be elected to be obtained by the Buyer. The Seller
hereby grants to the Buyer, the Buyer's agents, contractors and employees,
permission to enter upon the Subject Property to conduct Studies. The Buyer
agrees to save, indemnify and hold harmless the Seller and the Subject Property
from and against all costs, expenses, damages or liabilities arising out of or
in connection with the conduct of such Studies and agrees to restore the surface
contour of the Subject Property upon the conclusion of the same.
6.5. SELLER'S OBLIGATIONS. All representations and warranties of the
Seller herein are, and shall be at the expiration of the Inspection Period, true
and correct and the Seller has fully and timely performed each of the Seller's
obligations required to be performed hereunder.
6.6. CONDITION TO SELLER'S OBLIGATION TO CLOSE. The Seller's obligation
to close the sale of the Subject Property is expressly contingent upon the
approval by the Board of Directors of the Seller of the sale of the Subject
Property by the Seller to the Buyer and the terms of this Agreement within
fifteen (15) days after the Effective Date of this Agreement. The Seller shall
deliver to the Buyer written evidence that such approval has been obtained
within said fifteen (15) day period, and if the Seller fails to deliver to the
Buyer such written evidence of approval within that period of time, such shall
be conclusively deemed to constitute notice by the Seller that such approval
cannot be obtained and the election by the Seller to terminate this Agreement in
which event all Earnest Money then held by the Closing Agent shall be
immediately refunded to the Buyer and each party shall be thereafter fully
released and discharged from any further obligation under this Agreement.
If all the Buyer's Conditions as set forth herein are not met to the
reasonable satisfaction of the Buyer or waived by the Buyer by the end of the
Inspection Period, the Buyer shall have the right to elect to terminate this
Agreement for cause by the delivery of a written notice of termination to the
Seller and the Closing Agent setting forth the basis for termination, in which
event all Earnest Money then held by the Closing Agent shall be immediately
refunded to the Buyer and each party shall be thereafter fully released and
discharged from any further obligation under this Agreement. By the close of
business on the first (1st) business day following the expiration of the
Inspection Period, the Buyer shall deliver a written notice to the Seller and
the Closing Agent of the Buyer's satisfaction or waiver of the Buyer's
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Conditions and the Buyer's right to elect to terminate this Agreement shall be
of no further force or effect. If the Buyer fails to deliver the written notice
of the satisfaction or waiver of the Buyer's Conditions to the Seller and the
Closing Agent within the time herein provided, such shall constitute the
election by the Buyer to terminate this Agreement without cause in which event
all Earnest Money then held by the Closing Agent shall be immediately
distributed to the Seller and each party shall be thereafter fully released and
discharged from any further obligation under this Agreement.
The election by the Buyer to terminate this Agreement pursuant to this
Section 6 shall be deemed "for cause" (as such is used in this Agreement) if the
Buyer makes such election based on the Buyer's determination, in the Buyer's
reasonable judgment, that (i) the Buyer's objection(s) to an exception(s) shown
in the Commitment for Title Insurance to be provided to the Buyer pursuant to
Section 5, above, cannot be removed by the Seller on or before the Closing Date,
(ii) the Property Data to be delivered to the Buyer by the Seller pursuant to
Section 7, below, indicates a condition that will prevent the Buyer from
developing and using the Subject Property, or any portion thereof, for the
purposes intended by the Buyer, or that the cost of such development will be
materially increased, (iii) any of the Studies obtained by the Buyer pursuant to
Section 6.4, above, relating to the environmental or geotechnical condition of
the Subject Property, reveals a condition existing on the Subject Property which
is not acceptable to the Buyer, (iv) the conditions or requirements of any
governmental entity having jurisdiction of the Subject Property for the
development and use of the Subject Property for the purposes intended by the
Buyer are unacceptable to the Buyer, or (v) the Buyer determines, following its
receipt of cost estimates from contractors and consultants, and the anticipated
income from the Subject Property, that it is not economically feasible to
develop and use the Subject Property for the purposes intended by the Buyer. An
election by the Buyer to terminate this Agreement pursuant to this Section 6 for
any reason other than the foregoing specified in (i) through (v), above, shall
be deemed to be a termination "without cause" (as used in this Agreement).
SECTION 7. DELIVERY OF MATERIAL - PROPERTY DATA. The Seller shall,
within ten (10) days after the Effective Date of this Agreement, deliver to the
Buyer a true, full and correct copy of the each of following which are in the
possession or under the control of the Seller (hereafter collectively called
"Property Data"): (i) the existing title insurance policy which insures the
Seller's fee title to the Subject Property; (ii) any contract, if any, relating
to the Subject Property, which will continue in force and effect after the
closing of the Buyer's purchase of the Subject Property; (iii) all engineering,
soils, seismic, geologic or other physical inspection reports, studies and tests
relating to the Subject Property, including, but not limited to, any site
history and hazardous waste analysis of soil and ground water; (iv) a survey of
the Subject Property, if any, performed prior to the Effective Date of this
Agreement; (v) the most recent tax bills and valuations notices relating to the
Subject Property; and (vi) any other study, investigation, report, test or other
similar material relating to the Subject Property.
During the Inspection Period, the Seller shall cooperate with the Buyer
in providing such other information and documentation relating to the Subject
Property as may be reasonably requested by the Buyer.
SECTION 8. CLOSING. The following provisions shall govern the closing
of this transaction.
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8.1. CLOSING AND CLOSING DATE. The sale and purchase of the Subject
Property shall be closed at the offices of the Closing Agent on the fifteenth
(15th) day after the expiration of the Inspection Period or such earlier date as
the parties may agree in writing ("Closing Date").
8.2. SELLER'S OBLIGATIONS AT CLOSING. On or before the Closing Date the
Seller shall:
8.2.1. WARRANTY DEED. Deliver to the Closing Agent a good and
sufficient Warranty Deed covering the Subject Property, duly executed
and acknowledged in a recordable form, conveying to the Buyer fee
simple title to the Subject Property subject to the exceptions shown on
the Commitment as approved by the Buyer and any other exceptions
created by or attributable to the Buyer.
8.2.2. CLOSING STATEMENT. Execute and deliver to the Closing Agent a
closing and disbursement statement in a form acceptable to the Seller.
8.2.3. OTHER ACTION. Take such other and further action and deliver
such other and further documents as are necessary to close this
transaction in accordance with the terms of this Agreement.
8.3. BUYER'S OBLIGATIONS AT CLOSING. On or before the Closing Date, the
Buyer shall:
8.3.1. CLOSING FUNDS. Deliver or cause to be delivered to the Closing
Agent a bank cashier's or certified check or other form of guaranteed
funds in the amount which the Buyer is obligated to pay to the Seller
in cash on the Closing Date pursuant to the terms of this Agreement.
Such funds shall be deposited with the Closing Agent on or before the
Closing Date, subject to no restriction on the release thereof other
than the passage of time until the Closing Date and the performance by
the Seller of the Seller's obligations under this Agreement.
8.3.2. CLOSING STATEMENT. Execute and deliver to the Closing Agent a
closing and disbursement statement in a form acceptable to the Buyer.
8.3.3. WAIVER. Deliver to the Closing Agent a waiver executed by a duly
authorized representative of Skyline Corporation, or its successor or
assign ("Skyline"), waiving the rights of Skyline under Section 11 of
the Real Estate and Development Agreement dated the 8th day of January,
1989, between Skyline Corporation and Extended Systems Incorporated
which was memorialized in a Memorandum of Agreement dated the 8th day
of February, 1989, filed for record as Instrument No. 8905933 in the
records of Ada County, Idaho, with respect to (i) the Buyer's purchase
of the Subject Property and (ii) the sale by Extended Systems
Incorporated of the existing building and related parking and
improvements located on approximately seven (7) acres owned by Extended
Systems Incorporated (or an affiliate) as shown on the Site Plan
attached to this Agreement as "Exhibit B" and made a part hereof.
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8.3.4. EASEMENT. Deliver to the Closing Agent for recording a duly
executed easement granting to the Seller the right to continue to use
the existing paved driveway and gate for access along the southerly
boundary of the Seller's property common with the northerly boundary of
the Subject Property. This easement for access shall run with the
Seller's property until such time as the Buyer or its successors or
assigns has constructed a public road with two (2) entrances or other
access reasonably acceptable to the Seller.
8.3.5. OTHER ACTION. Take such other and further action and deliver
such other and further documents as are necessary to close this
transaction in accordance with the terms of this Agreement.
8.4. CLOSING COSTS. The escrow fees and other costs of the Closing
Agent (excluding the premium for the Title Insurance Policy to be provided by
the Seller) shall be shared equally between the Seller and the Buyer unless the
Buyer elects to terminate this Agreement without cause, in which case the Buyer
shall pay all escrow fees and other costs of the Closing Agent. Recording costs
for the Warranty Deed shall be paid by the Buyer. The costs of the Title
Insurance Policy to be provided by the Seller to the Buyer as described in
Section 5, above, shall be paid by the Seller. All other expenses incurred by
the Seller and the Buyer with respect to this transaction including, but not
limited to, attorney's fees and other professional fees of the Seller and the
Buyer shall be borne and paid exclusively by the party incurring the same,
without reimbursement, except as otherwise expressly provided herein.
8.5. CLOSING INSTRUCTIONS. The Closing Agent is instructed as follows:
8.5.1. CLOSING STATEMENTS. Prepare closing statements for execution by
the Seller and the Buyer in accordance with the terms of this
Agreement.
8.5.2. RECEIVE PAYMENTS. Collect all funds to be received from the
parties at the closing and disburse and pay the same to the parties or
such other persons or entities as are entitled to such funds in
accordance with the terms of this Agreement and the approved closing
statements.
8.5.3. COLLECT, RECORD AND DELIVER DOCUMENTS. Collect the various
instruments and documents and information to be provided by the Seller
and the Buyer and secure the required signatures and acknowledgments
and record such instruments and documents where necessary and in the
proper sequence and deliver the same to the respective parties as
required to close this transaction in accordance with the terms of this
Agreement.
SECTION 9. TAXES. The Seller shall pay all real property taxes and
assessments (hereafter "Taxes") levied and assessed against the Subject Property
for the year 2002 and all prior years. The Taxes for the year 2003 shall be
prorated between the Seller and the Buyer as of the Closing Date based on the
Taxes levied and assessed for the year 2002, unless the actual Taxes for the
year 2003 are then known, in which event such proration shall be based on the
Taxes for the year 2003. If the Taxes are prorated between the Seller and the
Buyer based on the Taxes for the year 2002, the Seller and the Buyer agree that,
if any adjustment in such proration is required based on the actual Taxes for
the year 2003, they shall make such adjustment within fifteen (15) days after
the actual amount of the Taxes for the year 2003 are known.
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SECTION 10. SELLER'S REPRESENTATIONS AND WARRANTIES. The Seller
represents and warrants to the Buyer, and the Seller understands that the Buyer
is relying on such representations and warranties in connection with the
purchase of the Subject Property, that:
10.1. RIGHT TO SELL AND CONVEY. Subject to the obtaining of the
approval of the Board of Directors of the Seller of the sale of the Subject
Property by the Seller to the Buyer and the terms of this Agreement, as provided
in Section 6.6, above, the Seller has the full power, authority and legal right
to execute, deliver and perform the Seller's obligations under this Agreement.
10.2. NO BREACH. The execution, delivery and performance of this
Agreement by the Seller will not conflict with or result in the breach of, or
constitute a default under, any law, governmental regulation, judgment, decree,
order, contract or agreement by which the Seller is bound.
10.3. BINDING OBLIGATIONS. This Agreement and the Seller's obligations
hereunder are legal, valid and binding obligations of the Seller, enforceable in
accordance with their terms, and there are no claims or defenses, personal or
otherwise, or off-sets whatsoever to the enforceability or validity of this
Agreement.
10.4. NO NOTICE. The Seller has received no written notice from any
governmental agency having jurisdiction of the Subject Property of any violation
of any statute, law, ordinance, deed restriction or rules or regulations
affecting the Subject Property.
10.5. MARKETABLE TITLE. As of the Closing Date, Seller will have good,
marketable and indefeasible fee simple title to the Subject Property.
10.6. NO LITIGATION, ETC. There is no pending or threatened litigation,
or investigation which could result in litigation, condemnation proceeding,
annexation or re-zoning proceeding affecting the Subject Property, and there are
no governmental assessments or local improvement district assessments, or any
agreements to convey any portion of the Subject Property or any rights thereto,
to any party other than the Buyer including, without limitation, any government
or governmental agency.
10.7. HAZARDOUS WASTE. Neither the Seller nor, to the knowledge of the
Seller, any person occupying the Subject Property with the consent of the Seller
has deposited or stored any hazardous materials or wastes on the Subject
Property. Except for the Chevron pipeline, to the knowledge of the Seller, there
are no environmentally hazardous materials or wastes contained or located on the
Subject Property or any contiguous property and there has not occurred on the
Subject Property or on any contiguous property, any discharge, spillage,
uncontrolled loss, seepage or filtration of oil or petroleum or chemical loss or
solid liquid or gaseous products or other hazardous waste or toxic substance. To
the knowledge of the Seller, the Subject Property has not at any time been used
for the deposit of hazardous or toxic material and no wells or underground
storage tanks are currently on, or were at any time located on, the Subject
Property. The Seller has not received any notice from any governmental agency
indicating the Subject Property has been identified by any governmental agency
as a site upon which, or potentially upon which, environmentally hazardous
materials
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have been or may have been located or deposited. The Seller further warrants
that the Seller has not received any notice from any governmental agency which
would indicate that there is a possibility that there are environmentally
hazardous materials or wastes contained or located on the Subject Property.
10.8. SELLER NOT FOREIGN PERSON. The Seller is not a foreign person
within the meaning of ss.1445 of the Internal Revenue Code of 1986. The Seller
shall sign an affidavit to this effect to be delivered to the Buyer at closing,
including the tax identification number of the Seller.
10.9. NO DEFAULTS. The Seller has not received any notice of any
default or breach by the Seller under any covenants, conditions, restrictions,
rights-of-way, or easements which may affect the Subject Property, or any
portion thereof, and no such default or breach now exists.
10.10. NO ENCROACHMENTS. To the knowledge of the Seller, no building,
fence or other improvement encroaches on the Subject Property except the
perimeter fence described in Section 12, below.
10.11. THIRD PARTY CONTRACTS. There are no contracts with third parties
which affect the Subject Property which will continue in force and effect beyond
the date of the closing of the purchase by the Buyer of the Subject Property.
The Seller covenants that between the Effective Date of this Agreement and the
Closing Date, the Seller shall not enter into any contracts with third parties
with respect to the Subject Property which will continue in force and effect
beyond the Closing Date or for which the Buyer could be liable.
10.12. NO COMMITMENTS. Except with regard to the Chevron pipeline, no
commitments have been or will be made by the Seller to any governmental
authority or agency, utility company, school board or district, church or other
religious body, or any association of owners, or to any other organization,
group or individual, relating to the Subject Property which would impose an
obligation upon the Buyer, or the successors or assigns of the Buyer, to make
any contribution or dedication of money or land or to construct, install or
maintain any improvements of a public or private nature on or off the Subject
Property.
10.13. LEGAL PARCEL. The land comprising the Subject Property is, or
shall be at the Closing Date, a separate and distinct legal parcel created in
accordance with all applicable laws, codes, ordinances and regulations.
The representations and warranties contained in this Agreement shall be
true and correct on the Effective Date of this Agreement and on the Closing Date
and shall survive the closing. The obligation of the Buyer to close this
transaction is expressly conditioned upon said representations and warranties
being true and correct on the Closing Date. The Seller shall indemnify the Buyer
against and hold the Buyer harmless from any damages or losses including,
without limitation, reasonable attorney fees, sustained as a consequence of any
of the foregoing representations or warranties not being true and correct as of
the Effective Date of this Agreement or the Closing Date. The Seller
acknowledges that each of the representations and warranties contained in this
Section 10, and elsewhere in this Agreement, is material to the Buyer.
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EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE SELLER
DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES
OF HABITABILITY AND FITNESS FOR A PARTICULAR PURPOSE), WHETHER EXPRESSED OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES WITH RESPECT TO THE PRESENCE
ON OR BENEATH THE SUBJECT PROPERTY OF HAZARDOUS SUBSTANCES OR MATERIAL, OR THE
SUITABILITY OF THE SUBJECT PROPERTY FOR THE BUYER'S INTENDED USE. THE BUYER
FURTHER ACKNOWLEDGES THAT THE SELLER IS CONVEYING THE SUBJECT PROPERTY "AS IS"
AND IN ITS PRESENT CONDITION AND THAT THE BUYER IS NOT RELYING UPON ANY
REPRESENTATIONS OF ANY KIND OR NATURE MADE BY THE SELLER OR BY THE SELLER'S
AGENTS WITH RESPECT TO THE SUBJECT PROPERTY, EXCEPT AS SPECIFICALLY SET FORTH IN
THIS AGREEMENT. THE BUYER ACKNOWLEDGES THAT THE BUYER'S OPPORTUNITY FOR
INSPECTION AND INVESTIGATION OF THE SUBJECT PROPERTY AS SET FORTH IN THIS
AGREEMENT TOGETHER WITH THE SELLER'S REPRESENTATIONS AND WARRANTIES AS
SPECIFICALLY SET FORTH IN THIS AGREEMENT ARE ADEQUATE TO ENABLE THE BUYER TO
MAKE THE BUYER'S OWN DETERMINATION WITH RESPECT TO THE SUBJECT PROPERTY.
SECTION 11. BUYER'S REPRESENTATIONS AND WARRANTIES. The Buyer
represents and warrants to the Seller, and the Buyer understands that the Seller
is relying on such representations and warranties in connection with the
purchase of the subject property, that:
11.1. RIGHT TO PURCHASE. The Buyer has the full power, authority and
legal right to execute, deliver and perform the Buyer's obligations under this
Agreement.
11.2. NO BREACH. The execution, delivery and performance of this
Agreement by the Buyer will not conflict with or result in the breach of, or
constitute a default under, any law, governmental regulation, judgment, decree,
order, contract of agreement by which the Buyer is bound.
11.3. BINDING OBLIGATIONS. This Agreement and the Buyer's obligations
hereunder are legal, valid and binding obligations of the Buyer, enforceable in
accordance with their terms, and there are no claims or defenses, personal or
otherwise, or off-sets whatsoever to the enforceability or validity of this
Agreement.
SECTION 12. FENCE. As partial consideration for the transaction
contemplated herein, the Buyer agrees, upon the request of the Seller, to
immediately transfer all right, title and interest, in whole or in part, in and
to the fencing materials currently installed around the perimeter of the Subject
Property except the fencing materials comprising the fence located on or near
the south boundary of the Subject Property. The Buyer hereby authorizes the
Seller, at the Seller's sole option and expense, to remove said fencing
materials (subject to the above exception), in whole or in part, from the
Subject Property using reasonable care not to damage the Subject Property or any
of the landscaping thereon. The right of the Seller to remove the fencing
materials, as provided herein, is subject to the Seller giving written notice to
the Buyer of the Seller's election to remove fence materials prior to the
commencement of any construction activities by the Buyer on the Subject Property
and the Seller's removal of the fencing material is fully completed within ten
(10) days after the date said written notice is delivered to the Buyer. The
election by the Seller to remove the fencing materials from the Subject Property
shall constitute the agreement by the Seller, without the requirement of any
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further writing to: (i) indemnify, defend and hold harmless the Buyer and the
Subject Property from any claim, lien or charge resulting from the Seller's
removal of the fencing materials; and (ii) promptly repair any damage to any
landscaping or other improvements resulting from the Seller's removal of the
fencing materials.
SECTION 13. NOTICE. Any notice or demand given under the terms of this
Agreement shall be deemed given and delivered on the date when personally
delivered or, if mailed, the date the same is deposited in the United States
Mail, in a sealed envelope, by registered or certified mail, return receipt
requested, postage prepaid, and properly addressed, or sent via a recognized
over-night courier service such as Federal Express or United Parcel Service
provided that proof of delivery is obtained. Until changed by notice in writing,
notices, demands and communications shall be addressed as follows:
SELLER: BUYER:
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Extended Systems of Brighton Investments, LLC
Idaho, Incorporated 12426 W. Explorer Drive, Suite 220
5777 N. Meeker Avenue Boise, Idaho 83713
Boise, Idaho 83713
The Seller or the Buyer may change its above address by a notice in
writing delivered to the other party in accordance with the provisions of this
Section.
SECTION 14. BROKERAGE. At the closing, the Seller shall pay to Thornton
Oliver Keller Commercial Real Estate a commission equal to three percent (3.0%)
of the purchase price. Any additional brokerage fee or commission payable as a
result of this transaction shall be the sole responsibility of the party
employing such broker.
THE PARTIES ACKNOWLEDGE THAT THORNTON OLIVER KELLER COMMERCIAL REAL
ESTATE AND PETER J. OLIVER OF THAT FIRM HAVE ACTED IN A LIMITED DUAL AGENCY AND
HAVE REPRESENTED BOTH THE SELLER AND THE BUYER IN THIS TRANSACTION. BY EXECUTING
THIS AGREEMENT, EACH PARTY CONFIRMS RECEIPT OF A PRIOR WRITTEN DISCLOSURE OF
SAID AGENCY AND THAT EACH PARTY HAS READ AND UNDERSTANDS THE CONTENTS OF THE
AGENCY DISCLOSURE BROCHURE PREVIOUSLY RECEIVED.
SECTION 15. ATTORNEY'S FEES. If either party shall default in the full
and timely performance of this Agreement and said default is cured with the
assistance of an attorney for the other party and before the commencement of a
suit thereon, as a part of curing said default, the reasonable attorneys' fees
incurred by the other party shall be reimbursed to the other party upon demand.
In the event that either party to this Agreement shall file suit or
action at law or equity to interpret or enforce this Agreement hereof, the
unsuccessful party to such litigation agrees to pay to the prevailing party all
costs and expenses, including reasonable attorney's, incurred by the prevailing
party, including the same with respect to an appeal.
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SECTION 16. SURVIVAL. The terms and provisions hereof, and all
instruments and documents referred to herein or contemplated hereby shall
survive the closing and the transfer of title to the Buyer and shall remain in
force and effect in accordance with their terms.
SECTION 17. SUCCESSION. This Agreement shall be binding upon and shall
inure to the benefit of the parties, their respective heirs, personal
representatives, successors and assigns.
SECTION 18. TIME IS OF THE ESSENCE. All times provided for in this
Agreement or in any other instrument or document referred to herein or
contemplated hereby, for the performance of any act will be strictly construed,
it being agreed that time is of the essence of this Agreement.
SECTION 19. FORCE MAJEURE. Any prevention, delay or stoppage due to
strikes, lockouts, labor disputes, court orders, acts of God, inability to
obtain labor or materials or reasonable substitutes thereof, government
restrictions, regulations or controls, hostile government action, civil
commotion, fire or other casualty and other causes beyond the reasonable control
of the party obligated to perform shall excuse the performance by such party for
a period equal to any such prevention, delay or stoppage except any obligation
of a party to pay a liquidated sum of money to the other party, which obligation
shall not be affected thereby.
SECTION 20. CONSTRUCTION. Both the Seller and the Buyer have been, or
have had the opportunity to be, represented by legal counsel in the course of
the negotiations for and the preparation of this Agreement. Accordingly, in all
cases, the language of this Agreement shall be construed simply, according to
its fair meaning, and not strictly for or against either party regardless of
which party caused the preparation of this Agreement.
SECTION 21. MODIFICATION. The parties may at any time hereafter modify
or amend this Agreement by a subsequent written agreement executed by all
parties. This Agreement shall not, however, be changed orally, nor shall it be
deemed modified in any way by the act of any of the parties hereto. Nothing
herein is intended, nor shall it be construed, as obligating either party to
agree to any modification to this Agreement.
SECTION 22. GOVERNING LAW. This Agreement shall be governed by the laws
of the State of Idaho.
SECTION 23. SEVERABILITY. If any provision of this Agreement is held to
be invalid, illegal, unconscionable or unenforceable in any respect, such shall
not affect any other provisions hereof and this Agreement shall be construed as
if such invalid, illegal, unconscionable or unenforceable provision had never
been included herein, all other terms and provisions remaining effective and in
force to the fullest extent permitted by law.
SECTION 24. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, and once so executed by all parties, each such counterpart
shall be deemed to be an original instrument, but all such counterparts together
shall constitute but one (1) Agreement. A facsimile of a signature page
evidencing the signature of a party(s) to this Agreement shall constitute an
original signature(s).
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SECTION 25. ENTIRE AGREEMENT. This Agreement and the instruments and
documents referred to herein or contemplated hereby constitute the entire
agreement between the parties concerning the subject matter covered hereby;
there are no oral or parol agreements existing between the Seller and the Buyer
relative to the subject matter hereof which are not expressly set forth herein
or in the instruments or documents referred to herein or contemplated hereby.
This Agreement supersedes all prior agreements, whether oral or written, between
the Seller and the Buyer relating to the subject matter hereof, including but
not limited to the Letter of Intent between the parties dated July 1, 2003.
SECTION 26. TIME FOR ACCEPTANCE. The execution of this Agreement by the
Buyer shall be revoked and of no force or effect unless this Agreement is
executed by the Seller, as evidenced by the Seller's execution of this Agreement
below, and the delivery to the Buyer of an executed counterpart of this
Agreement by 11:59 p.m., Tuesday, September 2, 2003.
IN WITNESS WHEREOF the parties have hereunto executed this Agreement
the date set forth below.
SELLER: BUYER:
EXTENDED SYSTEMS OF BRIGHTON INVESTMENTS, LLC
IDAHO, INCORPORATED
By /s/ Karla K. Rosa By /s/ David W. Turnbull
--------------------- ------------------------
Title: CFO David W. Turnbull, Member
Date Signed: September 2_, 2003 Date Signed: September 2_, 2003
REAL ESTATE PURCHASE AGREEMENT
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EXHIBIT A
LEGAL DESCRIPTION OF SUBJECT PROPERTY
THE LEGAL DESCRIPTION OF THE SUBJECT PROPERTY WILL BE PREPARED FROM THE
SURVEY TO BE OBTAINED BY THE SELLER AND DELIVERED TO THE BUYER AS
PROVIDED IN SECTION 6.3 OF THE FOREGOING AGREEMENT. WHEN APPROVED BY
THE SELLER AND THE BUYER, SUCH LEGAL DESCRIPTION WILL BE ATTACHED TO
THIS AGREEMENT AS EXHIBIT A. IT IS AGREED THAT THE SUBJECT PROPERTY
WILL CONTAIN APPROXIMATELY 17.0 ACRES OF LAND AND WILL CONSIST OF THE
VACANT LAND LOCATED ADJACENT TO THE EXISTING EXTENDED SYSTEMS BUILDING
AND PARKING AREA(S) COMMONLY KNOWN AS 5777 N. MEEKER AVENUE, BOISE,
IDAHO 83713.
EXHIBIT B
SITE PLAN SHOWING ESI BUILDING AND RELATED PARKING