REAL ESTATE PURCHASE AND SALE AGREEMENT
This agreement (the "Agreement") dated August 4, 1997 by and between
XXXXXXX PROPERTIES, INC., a Washington corporation ("Seller") and EAGLE HARDWARE
& GARDEN, INC., a Washington corporation or assigns ("Buyer") for purchase and
sale of that certain real property consisting of approximately 15.4 acres of
unimproved real property located in the southeast quadrant of the Smokey Point
Interchange (Interchange No. 206) on I-5 at 172nd Street N.E., in Snohomish
County, Washington, the legal description of which is described on Exhibit "A"
and any improvements thereon and all rights appurtenant thereto (the
"Property"). The Property is identified as Tax Parcel #0000-000-000-0000 and
Tax Parcel #0000-000-000-0000 shown on the reduced partial copy of an assessor's
map which is attached hereto as Exhibit "B.
Seller agrees to sell, and Buyer agrees to buy, the Property upon and
subject to the terms and conditions set forth below:
1. PURCHASE PRICE; PAYMENT. The total purchase price for the Property
shall be five dollars and seventy-five cents ($5.75) per square foot. It is
estimated that the Property contains 670,824 square feet and that the purchase
price will be Three Million Eight Hundred Fifty-seven Thousand Two Hundred
Thirty-eight Dollars ($3,857,238). The area of the Property and the total
purchase price shall be determined by a current ALTA/ACSM survey to be provided
by Buyer. The purchase price shall be adjusted to the final certified square
footage, which amount, including the Deposit and interest accrued thereon, shall
be paid in cash upon closing.
2. XXXXXXX MONEY DEPOSIT. Within ten (10) business days after the
Effective Date, Buyer will deposit xxxxxxx money of fifty thousand dollars
($50,000) (the "Deposit") with First American Title Insurance Company in
Everett, Washington (the "Closing Agent"). The Closing Agent shall place the
Deposit in an interest-bearing account, with interest to accrue to Buyer's
benefit. if this transaction does not close for any reason other than default
by Buyer under this Agreement, the Deposit, and all interest accrued thereon,
shall be returned to Buyer. In the event of Buyer's default under this
Agreement, Seller shall have as its sole remedy the right to terminate this
Agreement and retain the Deposit, together with accrued interest thereon, as
liquidated damages.
3. TITLE INSURANCE AND SURVEY.
3.1 PRELIMINARY TITLE INSURANCE COMMITMENT. Within fifteen (15) days
after the Effective Date, Seller shall provide Buyer with a current preliminary
commitment for owner's title insurance with extended coverage (ALTA Form 1970-B,
as revised in 1984, or if unavailable, Form B-1987) issued by First American
Title Insurance Company, with copies of all documents listed as exceptions set
forth therein.
3.2 ALTA/ACSM SURVEY. As soon as possible after the Effective Date,
Buyer shall obtain a current ALTA/ACSM survey with land area certification of
the Property. The survey costs shall be borne by Buyer regardless of whether
this transaction closes.
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3.3 TITLE AND SURVEY APPROVAL PERIODS. Buyer shall have fifteen (15)
days from the later receipt of either the preliminary title insurance commitment
or the ALTA/ACSM survey (and any amendments, supplements and revisions to either
in which new or revised exceptions or items first appear) to notify Seller of
its disapproval of any exceptions shown in the preliminary title insurance
commitment or any items shown on the survey. If, within twenty (20) days after
the receipt of such notice Seller has not removed or given reasonable written
assurances to Buyer that such disapproved title report exceptions will be
removed or such disapproved survey items will be resolved and/or corrected on
or before closing, Buyer may, at its option, at any time prior to such
removal, resolution and/or correction or receipt of such reasonable written
assurances, terminate this Agreement by giving notice of such termination to
Seller. On such termination Closing Agent shall refund the Deposit and all
interest accrued thereon to Buyer and all rights and obligations of Seller
and Buyer under this Agreement shall terminate and be of no further force or
effect.
4. CONTINGENCIES. Buyer's obligation to purchase the Property is subject
to Buyer's satisfaction or waiver, in writing, of the following conditions
precedent, in Buyer's sole and absolute discretion, on or before the dates
described below,
4.1 FEASIBILITY. Buyer's sole determination that its proposed site
plan, building plan, parking plan and access plan for the Property are
acceptable; that utilities are available of adequate capacity to serve the
Property; and that the Property is otherwise feasible for its intended use.
4.2 STUDIES. Buyer's approval of all soils, engineering, seismic,
environmental, topography, hazardous waste, geotechnical, wetlands, drainage and
other studies that may be deemed necessary by Buyer or required by and
governmental agency in connection with the Property and Buyer's planned
development and use of the Property. All such studies, reports or other data
shall be acquired at Buyer's expense.
4.3 APPROVAL AND PERMITS. Issuance of any and all required or
applicable governmental approvals including but not limited to the following: a
PUD (if required), replat of the Property, lot line adjustments, subdivision
approvals, rezoning approvals, Washington Department of Transportation highway
access and traffic signal approvals, building permits, use permits, sign
permits, design review approvals, site plan approvals, parking variances, street
vacancies and approval of any kind from any and all governmental agencies
having jurisdiction over the Property, necessary for Buyer to develop, construct
its site improvements, store building, drive through building materials yard,
garden yard and greenhouse and any other improvements that Buyer deems necessary
in its sole determination to conduct and operate its selected business
operations on the Property. The timing, conditions and cost of any or all of
the permits and approvals (including any mitigation fees) must be satisfactory
to Buyer in its sole discretion. All approvals and permits shall be at Buyer's
expense.
4.4 TIME PERIODS. Buyer shall have forty-five (45) days from the
Effective Date (the "Feasibility Period") to satisfy or waive the contingencies
set forth in Sections 4.1 and 4.2 (the "Feasibility Period"). Buyer shall have
one hundred eighty (180) days (the "Contingency Period") from the Effective Date
to satisfy or waive the contingencies set forth in Section 4.3. If Buyer does
not satisfy or waive the contingencies in writing by the applicable dates, or
if Buyer notifies Seller in writing at any time prior to the end of the
Contingency Period that it has decided not to pursue the project any further and
that this Agreement is terminated, the Deposit, with interest, shall be refunded
to Buyer and the Agreement shall terminate without further action and be of no
further force or effect.
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4.5 EXTENSION PERIODS. If Buyer has satisfied or waived the
contingencies set forth in Sections 4.1 and 4.2 and is diligently pursuing the
applicable required approvals and permits set forth in Section 4.3, Buyer shall
be allowed two (2) separate thirty (30) day extensions of the Contingency
Period. Notice of the exercising of each of the extension periods shall be
given at least ten (10) days prior to the end of the Contingency Period or
extension period. Buyer shall pay a non-refundable (but applicable to the
purchase price if the sale closes) extension fee (the "Extension Fee") of
$38,572.00 for each thirty (30) day extension period. Buyer shall deposit each
Extension Fee into escrow at the time each extension period is exercised.
5. CLOSING.
5.1 TIME FOR CLOSING; TERMINATION DATE. This sale shall be closed in
the office of the Closing Agent within five (5) working days after all of
Buyer's conditions precedent have been satisfied or waived by Buyer on a date
selected by Buyer and agreeable to Seller. Buyer and Seller shall deposit in
escrow with Closing Agent within 24 hours of the Closing date all instruments,
documents and monies necessary to complete the sale in accordance with this
Agreement. As used herein, "closing" or "date of closing" means the date on
which all appropriate documents are recorded and proceeds of sale are available
for disbursement to Seller. Funds held in reserve accounts pursuant to escrow
instructions shall be deemed, for purposes of this definition, as available for
disbursement to Seller.
5.2 ACCEPTANCE OF EXCEPTIONS. Neither Seller nor Buyer shall be
required to close, and the Deposit and all interest thereon shall be returned to
Buyer, if any exception or item disapproved by Buyer as herein provided cannot
be removed by the date of closing; provided, however, that Buyer may elect to
waive in writing any disapproved exceptions or items and close on the remaining
terms. Notwithstanding the foregoing, Seller shall remove any defect or
encumbrance attaching by, through or under Seller after the Effective Date of
this Agreement. Exceptions to be discharged by Seller may be paid out of the
purchase price at closing.
5.3 PRORATIONS; CLOSING COSTS. Taxes and assessments for the current
year and utilities constituting liens shall be prorated as of the date of
Closing. Seller and Buyer acknowledge that an assessment of $211,352.64 for
Road Improvement District (RID) 24A has been made against the Property. The
first installment on the RID is due in February 1998. Seller shall pay the
first installment of the RID due in February 1998. If the Closing occurs before
the first installment is due, Seller shall be responsible for and pay the
installment at the time of Closing. Seller and Buyer agree that Buyer shall be
responsible for the balance of the RID 24A assessment and all annual payments or
installments due after the Closing date. Seller shall pay the premium for the
standard owner's title insurance policy, real estate excise, transfer and/or
conveyance taxes, the cost of conveyance tax stamps, if any, and one-half of
Closing Agent's escrow fee. Buyer shall pay the cost of recording the statutory
warranty deed, the cost of the ALTA/ACSM survey, one-half of Closing Agent's
escrow fee and the difference in the cost of the premium between standard
owner's and extended coverage.
5.4 POSSESSION. BUYER SHALL BE ENTITLED TO POSSESSION UPON CLOSING.
6. CONVEYANCE OF TITLE. On closing, Seller shall execute and deliver to
Buyer a statutory warranty deed conveying good and marketable title to the
Property free and clear of any defects or encumbrances except for the lien of
real estate taxes for the current calendar year not yet due and payable, those
defects or encumbrances appearing on the preliminary commitment for title
insurance that are approved by Buyer (the "Permitted Exceptions"), and other
encumbrances or defects approved by Buyer in writing.
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As soon as available after closing, Seller shall direct the title
company to provide to Buyer a policy of title insurance pursuant to the
preliminary commitment, dated as of the closing date and insuring Buyer in the
amount of the purchase price against loss or damage by reason of defect in
Buyer's title to the Property subject only to the printed exclusions and general
exceptions appearing in the policy form: any Permitted Exceptions; the
exceptions specified in the preliminary commitment which Buyer has not
disapproved of as provided herein; and real property taxes and assessments that
are not delinquent.
7. RISK OF LOSS; CONDEMNATION. Risk of loss of or damage to the Property
shall be borne by Seller until the date of closing. Thereafter, Buyer shall
bear the risk of loss. In the event of material loss of or damage to the
Property prior to the date upon which Buyer assumes the risk, Buyer may
terminate this Agreement by giving notice of such termination to Seller and
Closing Agent, and such termination shall be effective and the Deposit and
interest thereon shall be refunded ten (10) days thereafter; provided, however,
that such termination shall not be effective if Seller agrees in writing within
such ten (10) day period to restore the Property substantially to its present
condition by the closing date.
If the Property is or becomes the subject of a condemnation proceeding
prior to closing, Buyer may, at its option, terminate this Agreement by giving
notice of such termination to Seller, and upon such termination the Deposit and
accrued interest shall be returned to Buyer and this Agreement shall be of no
further force or effect: provided, however, that Buyer may elect to purchase the
Property, in which case the total purchase price shall be reduced by the total
of any condemnation award received by Seller. On closing, Seller shall assign
to Buyer all of Seller's rights in and to any future condemnation awards or
other proceeds payable or to become payable by reason of any taking. Seller
agrees to notify Buyer of eminent domain proceedings within five (5) days after
Seller learns thereof.
8. SELLER'S REPRESENTATIONS AND WARRANTIES. In addition to other
representations herein, Seller represents and warrants to Buyer as of the date
of closing that:
8.1 Seller, and the person signing on behalf of Seller, has full
power and authority to execute this Agreement and perform Seller's obligations
and duties hereunder, and all necessary corporate action to authorize this
transaction has been taken;
8.2 The Property is not subject to any leases, tenancies or rights of
persons in possession;
8.3 To the best of Sellers knowledge, neither the Property nor the
sale of the Property violates any applicable statute, ordinance or regulation,
nor any order of any court or any governmental authority or agency, pertaining
to the Property or the use occupancy or condition thereof;
8.4 All persons and entities supplying labor, materials and equipment
to the Property have been paid and there are no claims or liens;
8.5 Except as previously disclosed to Buyer as to Road Improvement
District 24A, there are no currently due and payable assessments for public
improvements against the Property and Seller is not aware of any local
improvement district or other taxing authority having jurisdiction over the
Property in the process of formation:
8.6 The Property has legal access to all streets adjoining the
Property;
8.7 Seller has good and marketable title to the Property;
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8.8 Seller is not a "foreign person" for purposes of Section 1445 of
the Internal Revenue Code. Prior to closing, Seller shall execute and deliver
to Closing Agent an affidavit in order to meet the Foreign Investment in Real
Property Tax Act ("FIRPTA") requirements of I.R.C. # 1445; and
8.9 Seller has not received notification of any kind from any agency
suggesting that the Property is or may be targeted for a Superfund or similar
type of cleanup. To the best of Seller's knowledge, neither the Property nor
any portion thereof is or has been used (i) for the storage, disposal or
discharge of oil, solvents, fuel, chemicals or any type of toxic or dangerous or
hazardous waste or substance, (ii) as a landfill or waste disposal site, and
(iii) does not contain any underground storage tanks.
9. BUYER'S AUTHORITY AND REPRESENTATIONS. Buyer represents and warrants
to Seller that:
9.1 At the date of execution hereof and at the date of closing
Buyer, and the person signing on behalf of Buyer, has full power and
authority to execute this Agreement and to perform Buyer's obligations
hereunder.
9.2 Buyer has adequate funds to acquire the Property.
9.3 Buyer shall diligently pursue during the Contingency Period all
approvals and permits Buyer determines to be necessary pursuant to Section 4.3
above subject to Buyer's right not to pursue the project any further in
accordance with Section 4.4 above.
10. DEFAULT. If Seller defaults hereunder, Buyer may seek specific
performance of this Agreement, damages or rescission and Buyer shall be entitled
to return of the Deposit with accrued interest, on demand. If Buyer defaults,
the Deposit and accrued interest shall be forfeited to Seller as liquidated
damages and as Seller's sole and exclusive remedy and upon payment thereof to
Seller, Buyer shall have no further obligations or liability hereunder. In any
suit, action or appeal therefrom to enforce this Agreement or any term or
provision hereof, or to interpret this Agreement, the prevailing party shall be
entitled to recover its costs incurred therein, including reasonable attorneys'
fees.
11. NOTICES. All notices, waivers, elections, approvals and demands
required or permitted to be given hereunder shall be in writing and shall be
personally delivered (by overnight courier service or other means of personal
service) or sent by United States certified mail, return receipt requested, to
the addressee's mailing address set forth on the signature page:
and, in the case of Buyer, a copy to: Xxxxxxx X. Xxxxxxx
0000 XX Xxxx Xx.
Xxxxxxxxxx Xxxxxx, XX 00000
and, in the case of Seller, a copy to: H. Xxxx Xxxxxxx
XXXXXXX PROPERTIES
0000 X. Xxxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
Xxxxxxxx Xxxxxxxxx
CENTURY PACIFIC
0000 Xxxxxxx Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
(000) 000-0000
fax (000) 000-0000
Either party hereto may, by proper notice to the other, designate any other
address for the giving of notice. Any notice shall be effective when personally
delivered or, if mailed as provided herein, on the date of actual receipt.
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12. NO NEGOTIATIONS WITH THIRD PARTY. Seller shall not negotiate nor
commit to sell, lease or otherwise transfer the Property of any portion thereof
to any other person or party as long as Buyer is proceeding in good faith to
perform its duties under this Agreement. This covenant shall remain in full
force and effect and be legally binding upon Seller until termination of this
Agreement.
13. GENERAL. This is the entire agreement of Buyer and Seller with
respect to the matters covered hereby and supersedes all prior agreements
between them, written or oral. This Agreement may be modified only in writing,
signed by Buyer and Seller. Any waivers hereunder must be in writing. No waive
of any right or remedy in the event of default hereunder shall constitute a
waiver of such right or remedy in the event of any subsequent default. This
Agreement is for the benefit only of the parties hereto and shall inure to the
benefit of and bind the heirs, personal representatives, successors and assigns
of the parties hereto. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any
other provision hereof.
14. SURVIVAL OF WARRANTIES. The terms, covenants, representations and
warranties shall not merge in the deed of conveyance, but shall survive closing.
15. COMMISSIONS. All real estate commissions and/or brokers' fees shall
be payable by Seller at closing to Century Pacific, L.P. (the "Broker"). Such
commission and/or fee shall be agreed upon in a separate agreement between
Seller and Broker. Each party represents to the other that it has engaged no
other broker in connection with the negotiations leading to this Agreement.
Seller agrees to indemnify and hold Buyer harmless from and against all claims
and demands of any and all brokers or agents with respect to the Property.
Buyer agrees to indemnify and hold Seller harmless from and against all claims
and demands of any and all brokers or agents with respect to the Property,
except the Broker.
16. EXHIBITS. Exhibits "A" and "B" are attached hereto and incorporated
herein as if fully set forth.
Exhibit "A" - Legal Description
Exhibit "B" - Assessor's Tax Map
17. EFFECTIVE DATE. The later of the Buyer's signature date and the
Seller's signature date, set forth below, shall be the "Effective Date" of this
Agreement.
BUYER: EAGLE HARDWARE & GARDEN, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------
Typed name: Xxxx X. Xxxxxx
August 1, 1997, 1997 Its: Vice President
--------------------------
Buyer's signature date
Address: 000 Xxxxxx Xxxxxx X.X.
Xxxxxx, XX 00000
SELLER: XXXXXXX PROPERTIES, INC.
By: /s/ H. Xxxx Xxxxxxx
--------------------------
Typed name: X. Xxxx Xxxxxxx
Xxxxxx 0, 0000, 0000 Xxx: President
--------------------------
Seller's signature date
Address: 0000 X. Xxxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
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EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
(To be inserted by Buyer upon completion of the ALTA/ACSM Class A survey
as set forth in Section 6).
EXHIBIT "A"
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EXHIBIT "B"
[Map]
