EXHIBIT 10.3
THE GREATER PORTLAND/VANCOUVER COMMERCIAL
ASSOCIATION OF REALTORS(R)
PURCHASE AND SALE AGREEMENT AND RECEIPT FOR XXXXXXX MONEY
(OREGON-COMMERCIAL FORM)
Dated: August 11, 1999
BETWEEN: Gardenburger, Inc. ("Seller")
AND: Ironwood Investments ("Buyer")
Buyer agrees to buy and Seller agrees to sell, on the following terms, the real
property and all improvements thereon ("the Property") commonly known as
approximately 15.47 acres of industrial land -- See attached Exhibit "A"--
and located at NE 166th and Airport Way in the City of Portland, County of
Multnomah, Oregon legally described as follows: 1 North, 3 East, 19B Tax Lots
1400, 1500 and 1700 (which description shall be replaced by a metes and bounds
legal description after the preliminary commitment has been issued).
1. PURCHASE PRICE. The total purchase price is One Million Five Hundred
Seventy Nine Thousand Nine Hundred Twenty and no/100 Dollars ($1,579,920.00)
payable as follows: All cash at closing
Any xxxxxxx money paid to Seller shall be credited against the purchase price.
2. XXXXXXX MONEY RECEIPT. Upon execution of this Agreement, Buyer shall pay
Twenty Five Thousand and no/100 Dollars ($25,000.00) as xxxxxxx money (the
"Xxxxxxx Money") in the form of / / cash or / / check or /x/ promissory note.
If the Xxxxxxx Money is in the form of a promissory note, it is due and payable:
/ / upon execution of this Agreement by Buyer and Seller or /x/ upon
satisfaction or waiver by Buyer of the conditions to Buyer's obligation to
purchase the Property set forth in this Agreement or / /other: N/A. The Xxxxxxx
Money shall be deposited with /x/ First American Title Company (the "Title
Company") at the following branch: 0000 X.X. Xxxxxx Xxxxxx, Xxxxxxxx, XX,
00000-0000 or / / other: N/A
3. CONDITIONS TO PURCHASE. Buyer's obligation to purchase the Property is
conditioned on the following: See Addendum "A"
and/or Buyer's approval of the results of its property inspection described in
Section 4 below. If Buyer has not approved the results of Buyer's property
inspection by notice given to Seller within _____ twenty (20) days after the
Execution Date (defined below), the Agreement shall be terminated, and the
Xxxxxxx Money shall be promptly returned to Buyer.
4. PROPERTY INSPECTION. Seller shall permit Buyer and its agents, at Buyer's
sole expense and risk, to enter the Property, at reasonable times after
reasonable prior notice to Seller and after prior notice to the tenants of the
Property as required by the tenants' leases, to conduct inspections, tests, and
surveys concerning the structural condition of the improvements, all mechanical,
electrical and plumbing systems, hazardous materials, pest infestation, soils
conditions, wetlands, American with Disabilities Act compliance, and other
matters affecting the suitability of the Property for Buyer's intended use
and/or otherwise reasonably related to the purchase of the Property. Buyer shall
indemnify, hold harmless, and defend Seller from all liens, costs, and expenses,
including reasonable attorneys' fees and experts fees, arising from or relating
to Buyer's entry on and inspection of the Property. This agreement to indemnify,
hold harmless, and defend Seller shall survive closing or any termination of
this Agreement.
5. SELLER'S DOCUMENTS. Within ten (10) days after the Execution Date, Seller
shall deliver to Buyer, at Buyer's address shown below, legible and complete
copies of the following documents and other items relating to the ownership,
operation, and maintenance of the Property, to the extent now in existence and
to the extent such items are within Seller's possession or control:
Surveys, easements, environmental reports, agreements with city or state
government, building plans, engineering studies, wetland reports and soil
reports. All applicable information that is available that will aid in
developing the subject property.
6. TITLE INSURANCE. Within ten (10) days after the Execution Date, Seller shall
deliver to Buyer a preliminary title report from the Title Company (the
"Preliminary Commitment"), together with complete and legible copies of all
documents shown therein as exceptions to title, showing the status of Seller's
title to the Property. Buyer shall have not less than five (5) days after
receipt of a copy of the Preliminary Commitment within which to give notice in
writing to Seller of any objection to such title or to any liens or encumbrances
affecting the Property. Within five (5) days after the date of such notice from
Buyer, Seller shall give Buyer written notice of whether it is willing and able
to remove the objected-to exceptions. Within five (5) days after the date of
such notice from Seller, Buyer shall elect whether to purchase the Property
subject to the objected-to exceptions which Seller is not willing or able to
remove or terminate this Agreement. On or before the Closing Date (defined
below), Seller shall remove all exceptions to which Buyer objects and which
Seller agrees Seller is willing and able to remove. All remaining exceptions set
forth in the Preliminary Commitment and agreed to by Buyer shall be "Permitted
Exceptions." The title insurance policy to be delivered by Seller to Buyer at
closing shall contain no exceptions other than the Permitted Exceptions and the
usual preprinted exceptions in an owner's standard form title insurance policy.
7. DEFAULT: REMEDIES. If the conditions, if any, to Buyer's obligation to close
this transaction are satisfied or waived by Buyer and Buyer nevertheless fails,
through no fault of Seller, to close the purchase of the Property, Seller's sole
remedy shall be to retain the Xxxxxxx Money paid by Buyer. In the event Seller
fails, through no fault of Buyer, to close the sale of the Property, Buyer shall
be entitled to pursue any remedies available at law or in equity, including
without limitation, the remedy of specific performance.
8. CLOSING OF SALE. The sale shall be closed /x/ on or before See Addendum "A"
or / / N/A days after the Execution Date (the "Closing Date") in escrow at the
Title Company. The sale shall be "closed" when the document conveying title is
recorded and funds are disbursed to Seller. At closing, Buyer and Seller shall
deposit with the Title Company all documents and funds required to close the
transaction in accordance with the terms of this Agreement. At closing, Seller
shall deliver a certification in a form approved by Buyer that Seller is not a
"foreign person" as such term is defined in the Internal Revenue Code and the
Treasury Regulations promulgated under the Internal Revenue Code. If Seller is a
foreign person and this transaction is not otherwise exempt from FIRPTA
regulations, the Title Company shall be instructed by the parties to withhold
and pay the amount required by law to the Internal Revenue Service. At closing,
Seller shall convey xxx simple title to the Property to Buyer by /x/ statutory
warranty deed or / / N/A (the "Deed"). If this Agreement provides for the
conveyance by Seller of a vendee's interest in the Property by a contract of
sale, Seller shall deposit with the Title Company (or other mutually acceptable
escrow) the executed and acknowledged Deed, together with written instructions
to deliver such deed to Buyer upon payment in full of the purchase price. At
closing, Seller shall pay for and deliver to Buyer a standard form owner's
policy of title insurance in the amount of the purchase price insuring fee
simple title to the Property in Buyer subject only to the Permitted Exceptions
and the standard preprinted exceptions in a standard form policy.
9. CLOSING COSTS: PRORATES. Unless otherwise provided in a separate written
agreement, the real estate commission is due on the Closing Date. Seller shall
pay the premium for the title insurance policy which Seller is required to
deliver pursuant to the above paragraph. Seller and Buyer shall each pay
one-half of the escrow fees charged by the Title Company, any excise tax, and
any transfer tax. Real property taxes for the tax year in which the transaction
is closed, assessments (if a Permitted Exception), personal property taxes,
rents on existing tenancies paid for the month of closing, interest on assumed
obligations, and utilities shall be prorated as of the Closing Date. Prepaid
rents, security deposits, and other unearned refundable deposits regarding the
tenancies shall be assigned and delivered to Buyer at closing. The Property / /
does /x/ does not qualify for a special tax assessment or deferral program as
follows: N/A. /x/ Seller / / Buyer / / N/A shall be responsible for payment
of all taxes, interest, and penalties, if any, upon removal of the Property from
such special assessment or program.
10. POSSESSION. Buyer shall be entitled to exclusive possession of the Property,
subject to tenancies existing as of the Closing Date, /x/ on the Closing Date
/ / or N/A.
11. CONDITION OF PROPERTY. Seller represents that, to the best of Seller's
knowledge and except as described in Addendum "A" attached hereto, there are no
pending or threatened notices of violation of any laws, codes, rules, or
regulations applicable to the Property ("Laws"), and Seller is not aware of any
such violations. Risk of loss or damage to the Property shall be Seller's until
closing and Buyer's at and after closing. No agent of Seller nor any agent of
Buyer has made any representations regarding the Property. The real estate
licensees named in this Agreement have made no representations to any party
regarding the condition of the Property, the operations on or income from the
Property, or whether the Property or the use thereof complies with Laws. Except
for Seller's representations set forth in this Section 11 Buyer shall acquire
the Property "AS IS" with all faults and Buyer shall rely on the results of its
own inspection and investigation in Buyer's acquisition of the Property.
12. PERSONAL PROPERTY. This sale includes the following personal property:
/x/ None or / / the personal property located on and used in connection with the
Property and owned by Seller which Seller shall itemize in a schedule. Seller
shall deliver to Buyer such schedule within N/A days after the Execution Date.
13. AGENCY DISCLOSURE. The following agency relationship(s) in this transaction
is (are) hereby consented to and acknowledged:
(a) / / Xxxx X. Xxxxxx, Xxxxxxxx Xxxx Company (selling real estate
licensee) is the agent of (check one): / / Buyer exclusively as an agent of
Buyer; /x/ Seller exclusively as an agent of Seller; / / both Seller and Buyer
as set out in the in-company agreement.
(b) / / Xxxxxx X. Xxxxx, Xxxxxxxx Xxxx Company (listing agent if not the
same as selling agent) is the agent of (check one): /x/ Seller exclusively as
Seller's agent; / / both Seller and Buyer as set out in the in-company
agreement.
(c) / / ___________________________________________ (real estate licensee)
is the agent of both Seller and Buyer in a limited dual agency relationship
pursuant to separate agreement.
ACKNOWLEDGED
Buyer /s/ Xxxxx Xxxxxxxx Date 8/13/99 Seller______________ Date__________
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Buyer /s/ Xxxxxxx Xxxxx Date 8/16/99 Seller______________ Date__________
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Designated Designated
Broker(s) Initials _____ Date________ Broker(s) Initials_____ Date__________
14. NOTICES. Unless otherwise specified, any notice required or permitted in, or
related to, this Agreement must be in writing and signed by the party to be
bound. Any time limit in or applicable to a notice shall commence on the day
following mailing of the notice in the U.S. mails, postage prepaid. by the
applicable party to the address of the other party shown in this Agreement,
unless that day is a Saturday. Sunday, or legal holiday, in which event it will
commence on the next following business day.
15. ASSIGNMENT. Buyer may assign / / may not assign /x/ may assign, if the
assignee is an entity owned and controlled by Buyer (MAY NOT, IF NO BOX IS
CHECKED) this Agreement or Buyer's rights under this Agreement without Seller's
prior written consent.
16. ATTORNEYS' FEES. In the event a suit, action, arbitration, or other
proceeding of any nature whatsoever, including without limitation any proceeding
under the U.S. Bankruptcy Code, is instituted, or the services of an attorney
are retained, to interpret or enforce any provision of this Agreement or with
respect to any dispute relating to this Agreement, the prevailing party shall be
entitled to recover from the losing party its attorneys', paralegals',
accountants', and other experts' fees and alt other fees, costs, and expenses
actually incurred and reasonably necessary in connection therewith. In the event
of suit, action, arbitration, or other proceeding, the amount thereof shall be
determined by the judge or arbitrator, shall include fees and expenses incurred
on any appeal or review, and shall be in addition to all other amounts provided
by law.
17. STATUTORY LAND USE DISCLAIMER. THE PROPERTY DESCRIBED IN THIS INSTRUMENT MAY
NOT BE WITHIN A FIRE PROTECTION DISTRICT PROTECTING STRUCTURES. THE PROPERTY IS
SUBJECT TO LAND 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 INSTRUMENT, 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.
18. MISCELLANEOUS. Time is of the essence of this Agreement. The facsimile
transmission of any signed document including this Agreement shall be the same
as delivery of an original. At the request of either party, the party delivering
a document by facsimile will confirm facsimile transmission by signing and
delivering a duplicate original document. This Agreement may be executed in two
or more counterparts, each of which shall constitute an original and all of
which together shall constitute one and the same Agreement. This Agreement
contains the entire agreement and understanding of the parties with respect to
the subject matter of this Agreement and supersedes all prior and
contemporaneous agreements between them with respect thereto. Without limiting
the provisions of Section 15 of this Agreement. this Agreement shall be binding
upon and shall inure to the benefit of the parties and their respective
successors and assigns. The person signing this Agreement on behalf of Buyer and
the person signing this Agreement on behalf of Seller each represents. covenants
and warrants that such person has full right and authority to enter into this
Agreement and to bind the party for whom such person signs this Agreement to the
terms and provisions of this Agreement. This Agreement shall not be recorded
unless the parties otherwise agree.
19. ADDENDUMS: EXHIBITS. The following named addendums and exhibits are
attached to this Agreement and incorporated within this Agreement; / / none or
/x/ Addendum "A" and Exhibit "A".
20. TIME FOR ACCEPTANCE. Seller has until 5:00 p.m. Pacific Time on August 18,
1999 to accept this offer. Acceptance is not
effective until a copy of this Agreement which has been signed and dated by
Seller is actually received by Buyer. If this offer is not so accepted, it shall
expire and the Xxxxxxx Money shall be promptly refunded to Buyer.
21. SELLER'S ACCEPTANCE AND BROKERAGE AGREEMENT. Seller agrees to sell the
Property on the terms and conditions in this Agreement and further agrees to pay
a commission in the total amount computed in accordance with the listing
agreement or other commission agreement.
22. EXECUTION DATE. The Execution Date is the later of the two dates shown
beneath the parties' signatures below.
CONSULT YOUR ATTORNEY. THIS DOCUMENT HAS BEEN PREPARED FOR SUBMISSION TO YOUR
ATTORNEY FOR REVIEW AND APPROVAL PRIOR TO SIGNING. NO REPRESENTATION IS MADE BY
THE REAL ESTATE LICENSEES NAMED IN THIS AGREEMENT AS TO THE LEGAL SUFFICIENCY OR
TAX CONSEQUENCES OF THIS AGREEMENT.
Buyer: Ironwood Investments Seller: Gardenburger, Inc.
By /s/ Xxxxx Xxxxxxxx By /s/ Xxxxxxx X. Xxxxx
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Title Partner Title Chief Financial Officer
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Execution Date 8/13/99 Execution Date 8/16/99
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Home Phone _____________________ Home Phone ___________________
Office Phone 000-000-0000 Office Phone 000-000-0000
Fax Phone 000-000-0000 Fax Phone 000-000-0000
Xxxxxxx X.X. Xxx 0000 Xxxxxxx 0000 XX Xxxxxxxx Xx.
0000 XX Xxxxxxxxx Xxxx Xxxxx 000
Xxxxxxxxx, Xxxxxx 00000 Xxxxxxxx, Xxxxxx 00000
ADDENDUM "A"
TO PURCHASE AND SALE AGREEMENT
AND RECEIPT FOR XXXXXXX MONEY
DATED AUGUST 11, 1999
BETWEEN GARDENBURGER, INC., SELLER
AND IRONWOOD INVESTMENTS, BUYER
1) XXXXXXX MONEY: Buyer's xxxxxxx money note shall be converted into cash upon
the satisfaction of waiver of Buyer's contingencies as outlined herein. The
xxxxxxx money at that time will be non-refundable to Buyer and applicable to the
purchase price.
2) CONTINGENCIES: This Purchase and Sale Agreement is contingent upon the
following terms and conditions:
A. Buyer's satisfaction with the result of a pre-construction meeting
with the City of Portland.
B. Review of Seller's documents as outlined in Section 5.
3) SATISFACTION OR WAIVER
OF CONTINGENCIES:
If either of the contingencies (the "Contingencies") described in
paragraph 2 of this Addendum is not satisfied or waived by Buyer within
twenty (20) days after the Execution Date of this Agreement, Buyer may terminate
this Agreement by written notice to Seller given on or before the twentieth
(20th) day following the Execution Date. If Buyer gives Seller such written
notice of termination, Seller shall refund the Promissory Note Xxxxxxx Money to
Buyer. If Buyer fails to provide such written notice of termination on or before
the twentieth (20th) day following the Execution Date, (1) the Contingencies
shall be deemed to have been satisfied or waived by Buyer, (2) the Promissory
Note Xxxxxxx Money shall be converted to cash, and (3) Seller shall have no
obligation to refund the Xxxxxxx Money or any portion thereof to Buyer. This
transaction shall be closed within five (5) business days after the date on
which the Contingencies have been or are deemed to have been waived or
satisfied.
4) STREET VACATION: Buyer understands and acknowledges the following:
On March 13, 1996, the City of Portland City Council passed Ordinance
No. 169858 approving the vacation of N.E. Airport Way east of N.E. 166th Avenue,
subject to certain conditions. Among the conditions of approval were conditions
requiring the owner of the Property to grant to the City of Portland a 40-foot
wide access easement to Well Site No. 9 of the City of Portland's Bureau of
Water Works, and grant to the City of Portland a 40-foot wide public water
facility easement. Ordinance No. 169858 provides that the conditions of
approval, including the granting of the above-referenced easements, must be
complied with within two years after the effective date of the ordinance, which
was March 13, 1996. The easements have not yet been granted to the City of
Portland.
