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AMENDMENT NO. 5
TO
PURCHASE AND SALE AGREEMENT
This Amendment No. 5 is executed as of October 28, 1997, by and between
PARKWAY CAPITAL, INC., a Washington corporation, or assigns ("Buyer"), and
AMERICAN PROPERTIES INVESTMENTS, INC., a Washington corporation ("Seller"), with
respect to that certain Real Estate Purchase and Sale Agreement and Joint Escrow
Instructions between the parties dated as of August 5, 1997, as amended by
Amendment No. 1 dated as of August 18, 1997, Amendment No. 2 dated as of
September 30, 1997, Amendment No. 3 dated as of October 16, 1997, and Amendment
No. 4 dated as of October 23, 1997 (collectively, the "Agreement"). Capitalized
terms not defined herein shall have the meanings set forth in the Agreement.
The parties agree as follows:
1. Waiver of Contingencies. Buyer confirms that Buyer has completed its
inspection and review of the Property, is fully satisfied with the Property and
has waived all contingencies with respect to the Property that Buyer is required
to waive on or before the last day of the Review Period, including without
limitation the Open Contingencies with respect to PUD Matters and Roof
Warranties (as identified in Amendment No. 3), except for the Open Contingencies
listed in Section 2 below.
2. Extension of Review Period. Notwithstanding anything to the contrary
in the Agreement (or any prior Amendment), the parties agree that Buyer's Review
Period (as previously extended) is hereby extended to November 4, 1997, with
respect to only the following Open Contingencies. Seller confirms that it will
cooperate with Buyer as may be reasonably necessary (but at no expense to
Seller) to assist Buyer in resolving these Open Contingencies prior to
expiration of Buyer's Review Period (as extended herein).
a. Title and Survey Matters. (i) The sewer easement that is the
subject of Exception No. 9 to the Second Commitment dated July 29, 1997, under
Order No. 526549.2 ("PR"), issued by Transnation Title Insurance Company, and
Exception No. 3 of Supplemental No. 1 to the PR dated July 29, 1997 (as amended
by Supplemental No. 2 dated October 21, 1997), and (ii) title, survey and UCC
objections that Seller agreed to remove in its letter dated October 13, 1997.
b. Environmental Matters. (i) The adequacy of the prior
underground storage tank removal that was performed at the portion of the
Property occupied by TOSCO Corporation, and (ii) the environmental condition of
the portion of the Property occupied by In Xxx Xxxx and Xxx Xx Xxxx dba Sun
Cleaners.
3. Roof Warranties. Buyer agrees that Buyer's Review Period for the Open
Contingency with respect to the roof warranties for the Property has expired.
Nevertheless, Seller confirms that Seller will cooperate with Buyer to effect an
assignment of the roof warranties held by Seller as of Closing, and Buyer
confirms that any costs or expenses payable to third parties in connection with
an assignment of the roof warranties, including without limitation, any
inspection fees or costs and any recommended or required roof repairs, shall be
the responsibility of Buyer. Buyer acknowledges that
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the roof warranty for the building occupied by Safeway, Inc. has been declared
void by the roofing company, U.S. Intec, Inc. Seller agrees to send notice to
Safeway, Inc. with respect to its obligation to repair the roof on the building
it occupies.
4. Closing Date. Although Buyer's Review Period has been extended as set
forth in this Amendment No. 5, the parties agree that the Closing Date has not
been extended, which the parties confirm will be November 17, 1997.
5. Closing Conditions. By execution of this Amendment No. 5, Buyer does
not waive its right to terminate the Agreement under Section 10.1 of the
Agreement because of a failure of one of the Major Tenants to deliver an
Estoppel Certificate on or before Closing, or any other condition to Closing
that is not required under the terms of the Agreement to be waived prior to
Closing.
6. Scope of Amendment. Except as expressly amended herein, all of the
terms and conditions of the Agreement (as previously amended) are incorporated
herein by reference and remain in full force and effect.
7. Counterparts. This document may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute the same document, whether or not all parties execute
each counterpart.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 5 as of
the date first written above.
BUYER: SELLER:
PARKWAY CAPITAL, INC., AMERICAN PROPERTIES INVESTMENTS, INC.,
a Washington corporation a Washington corporation
By /s/ XXXXXXX XXXXXXXXX By /s/ XXXXXXX X. XXXXXX
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Xxxxxxx Xxxxxxxxx Xxxxxxx X. Xxxxxx
Its President Its Treasurer
