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EXHIBIT 10.28
SALE AND PURCHASE AGREEMENT FOR REAL ESTATE
THIS AGREEMENT is initiated on March 24, 1997 by:
CONSEP, INC., an Oregon Corporation (Purchaser), and
MALLARD INVESTMENTS, INC., and Oregon Corporation (Seller);
For and in consideration of the sum of $5,000.00 as xxxxxxx money in the form of
a promissory note, to be later deposited with Cascade Title Company, Seller
agrees to sell to the Purchaser that certain parcel of real estate, together
with improvements and personal property, known as:
000 XXXXXXXXX XXXXXXXX STREET IN BEND, DESCHUTES COUNTY, OREGON.
1. PRICE AND TERMS OF PURCHASE: The purchase price for this property in One
Million Four Hundred Ninety-Five Thousand and no/100 ($1,495,000).
Purchaser to apply for and receive a conventional loan with terms satisfactory
to the purchaser. Purchaser agrees to pay all costs associated with the receipt
of this loan.
2. FINANCING CONDITION: This Agreement to Purchase is subject only to
Purchasers receipt of said conventional loan. If Purchaser does not
receipt said loan, this Agreement shall be terminated and xxxxxxx money is
to be refunded to Purchaser. Purchaser to receive acceptable loan approval
by April 18, 1997.
3. PREPAYMENT OF EXISTING LOAN: In the event the existing loan with Standard
Insurance Company is paid off at closing, or any time thereafter, the
Purchaser shall be responsible for, and hold Seller harmless from, payment
of any prepayment penalty charged for prepayment of the Standard Insurance
loan.
4. TITLE INSURANCE: Prior to closing, Seller shall provide Purchaser, at
Sellers expense, a preliminary title report showing the condition of
property title, together with copies of all documents referred to therein.
Purchaser shall review and approve such exceptions within ten days of
delivery of said title report.
At closing, Seller shall at his expense, provide a standard form title
insurance policy in the amount of the purchase price showing marketable
title in Purchasers name, subject only to such exceptions acceptable to
Purchaser. Title insurance policy shall be provided by Bend, Title
Company.
5. TITLE: Fee simple title to the subject property shall be conveyed by
standard form warranty deed, free and clear of all liens, and encumbrances
except recorded covenants, conditions and restrictions, zoning ordinances,
building and use restrictions, reservations in federal patents, utility
easements, easements not materially affecting the value or intended use of
the property, and any other exceptions approved by the Purchaser.
6. PRORATION OF EXPENSES AND INCOME: All expenses, rent income, prepaid rents
and the like shall be prorated as of the date of closing, or any other
date mutually agreed upon by both parties. Seller shall be responsible for
all amounts deemed to be for activities or services prior to the proration
date and the Purchaser responsible for all on and after said date. All
deposits and fees, both refundable and non-refundable, collected from the
tenants, shall be delivered to Purchaser at closing.
7. IRS CODE SECTION 1031 EXCHANGE: Seller reserves the right and intends to
qualify this transaction as an IRS Code Section 1031 tax deferred
exchange. Seller will be substituting Cascade
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Exchange prior to closing in order to complete an existing like-kind
exchange transaction pursuant to I.R.C. Section 1031. Purchaser agrees to
reasonably cooperate with Cascade Exchange and Seller in the exchange
process at no additional expense to the Purchaser.
8. CLOSING: Closing shall occur at Cascade Title Company on or before April
30, 1997, or as soon thereafter as financing documents are available.
Normal closing costs shall be shared equally between the parties (ie:
escrow closing fee).
9. MISCELLANEOUS PROVISIONS:
a) In the event either party to this Agreement is required to
initiate litigation to enforce terms herein, the prevailing
party shall be entitled to reasonable attorney fees in
addition to any awards or relief which may be granted.
b) It is understood that this Agreement is the only agreement
between the parties relating to the subject property.
c) This Agreement shall be binding upon the heirs,
administrators, executors, and successors of the respective
parties.
d) Time is of the essence with respect to all acts to be
performed under this Agreement.
10. XXXXXXX MONEY NOTE: The xxxxxxx money in this transaction is in the form
of a promissory note payable on Purchasers receipt of acceptable
financing.
11. REPRESENTATIONS: The Purchaser has been a tenant in the property for the
previous three (3) years and is very familiar with the condition of the
property and the building. Purchaser is acquiring this property with no
warrants or representations from the Seller other than what is provided in
this agreement. Purchaser agrees to close this transaction based on their
own investigation of the property.
a) Seller has no knowledge of any liens to be assessed against
the property nor has Seller received any notice from any
governmental agency of any violation of law relating to the
property;
b) Seller assumes all debts, charges, claims, damages, and
liabilities attributable to the operation and ownership of
subject property prior to closing and shall hold Purchaser
harmless and indemnify and defend against same.
c) Seller is the owner of the property and has full right, power,
and authority to sell, convey and transfer the Property to
Purchaser as provided herein, and to perform Seller's
obligations herein.
12. APPROVED USES: THE PROPERTY DESCRIBED IN THIS AGREEMENT MAY NOT BE WITHIN
A FIRE PROTECTION DISTRICT PROTECTING STRUCTURES. THE PROPERTY IS SUBJECT
TO AND USE LAWS AND REGULATIONS, WHICH, IN FARM AND FOREST ZONES, MAY NOT
AUTHORIZE CONSTRUCTION OR SITING OF A RESIDENCE AND WHICH LIMIT LAWSUITS
AGAINST FARMING OR FOREST PRACTICES AS DEFINED IN ORS 30.930 IN ALL ZONES.
BEFORE SIGNING OR ACCEPTING THIS AGREEMENT, THE PERSON ACQUIRING FEE TITLE
TO THE PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING
DEPARTMENT TO VERIFY APPROVED USES AND THE EXISTENCE OF FIRE PROTECTION
FOR STRUCTURES.
13. TERMINATION: In the event this transaction is terminated, neither party
shall have any further liability under this Agreement, except to the
extent of the breach of any affirmative covenant of warranty in this
Agreement that may have been involved. In the event of such termination,
Purchasers xxxxxxx money shall be promptly refunded.
14. REMEDIES: The xxxxxxx money and additional xxxxxxx money shall be refunded
to Purchaser, and Seller shall pay all cost of title insurance and escrow
and Seller's legal fees, if title to the property is
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not marketable, or cannot be made marketable within thirty (30) days after
notice containing a written statement of defects is delivered to Seller;
or if Seller fails to consummate the sale. Acceptance by Purchaser of the
refund does not constitute a waiver of any remedies available to the
Purchaser.
If the sale is approved by Seller, title to the premise is marketable, and
Purchaser neglects or refuses to: (a) comply with any conditions of sale
including but not limited to closing the sale as specified; or (b) make
payments promptly as set forth in this Agreement, then Seller shall have
the following options: (1) Seller may seek damages; and (2) Seller may
seek specific performance of the Sale Agreement; and (3) Seller shall be
entitled to retain Purchaser's xxxxxxx money deposit or deposits which
shall be disbursed as follows: (a) to the escrow agent for the cost of
title insurance and escrow and Seller's legal fees, if any; and then (b)
to Seller to be credited against any claims Seller may choose to pursue
against the Purchaser. Seller's remedies are cumulative, not alternative.
15. ATTORNEY FEES: If civil action is filed on this contract or the subject
matter of it, the prevailing party shall be awarded reasonable attorney
fees, which shall be fixed by the courts in which the action, including
any appeal thereof, is tried, heard or decided. "Party" includes seller,
purchaser, and broker(s).
16. ACKNOWLEDGEMENT: Purchaser and Seller acknowledge that they have read and
understand this Agreement. Seller also, herein, acknowledges receipt of a
copy of this fully executed Agreement.
SELLER: PURCHASER:
Mallard Investments, Inc. Consep, Inc.
an Oregon corporation an Oregon corporation
By /s/ Xxxxxx Xxxxxx By /s/ Xxxxx Xxxx
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Xxxxxx Xxxxxx Xxxxx Xxxx, Chief Financial Officer
By /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
