Exhibit 10.49
REAL ESTATE PURCHASE AND SALE AGREEMENT
This REAL ESTATE PURCHASE AND SALE AGREEMENT is entered into by and between Xxx
Street Associates, a Washington general partnership, as "Seller", and XXXXX X.
XXXXXX, an unmarried Washington resident, as "Purchaser". Seller and Purchaser
agree as follows:
1. Definitions. For purposes of this Agreement:
"Agreement" means this Agreement, including all Exhibits and
Schedules hereto;
"Closing" means the completion of the transactions contemplated by
this Agreement in accordance with the provisions of this Agreement;
"Closing Date" means that date of which Seller is notified by
Purchaser three (3) business days prior thereto, but in all circumstances no
later than December 20, 1996;
"Deed" means that certain Statutory Warranty Deed conveying title to
the Real Property subject to the Permitted Exceptions.
"Due Diligence Contingency" means Purchaser's approval, in
Purchaser's sole discretion, of (1) the condition of the Property, (2) the
results of Purchaser's investigation and analysis of soils and engineering
reports, Hazardous Materials environmental assessment, governmental
regulations, economic and marketing factors, and that (3) the Property
Information and Purchaser's inspection of the Property are acceptable to
Purchaser.
"Due Diligence Period" means that period expiring October 21, 1996.
"Xxxxxxx Money" means the amount of $200,000 to be deposited by
Purchaser in accordance with the provisions of Section 4.
"Effective Date" means October 3, 1996 and is the date of this
Agreement;
"Escrow" means that certain escrow established with Title Company,
No. 38819 JF;
"Hazardous Materials" means and includes asbestos or any substance
containing asbestos, the group of organic compounds known as polychlorinated
biphenyls, flammable explosives, radioactive materials, chemicals known to
cause cancer or reproductive toxicity, pollutants, effluents, contaminants,
emissions or related materials and any items included in the definition of
hazardous or toxic waste, materials or substances under any Hazardous Material
Law. "Hazardous Material Laws" collectively means and includes any present and
future local, state and federal law relating to the environment and
environmental conditions, including without limitation the Resource
Conservation and Recovery Act of 1976 ("RCRA"),.42 U.S.C. Section 6901 et seq.,
the Comprehensive Environmental Response Compensation and Liability Act of 1980
("CERCLA") , 42 U.S.C. Section 9601-9657, as amended by the Superfund
Amendments and Reauthorization Act of 1986 ("XXXX"), the Hazardous Materials
Transportation Act, 49 U.S. C. Section 6901 et seq., the Federal Water
Pollution Control Act, 33 U.S.C. Sections 1251 et seq., the Clean-Air Act, 42
U.S.C. Section 741 et seq., the Clean Water Act, 33 U.S.C. Section 7401 et
seq., the Toxic Substances Control Act, 15 U.S.C. Section 2601-2629, the Safe
Drinking Water Act, 42 U.S.C. Section 300f-300j, the Hazardous Waste Management
Statute, RCW Chapter 70.95, the Hazardous Waste Fee Statute, RCW Chapter
70.105A, any "mini-superfund" or other statutes enacted by the Washington
Legislature, including without limitation, RCW Chapter 70.105B, and all the
regulations, orders and decrees. now or hereafter promulgated thereunder.
"Improvements" means all improvements any portion of which is located
on the Land;
"Land" means the land described in Exhibit A hereto;
"Leases" means those certain leases, rental and occupancy agreements
of the Improvements specified on Exhibit B attached hereto and incorporated
herein by this reference, adjusted from time to time during the term of this
Agreement to reflect the deletion of terminated Lease and inclusion of new
Leases.
"Permitted Exceptions" means the exceptions to title attached hereto
as Exhibit C and incorporated herein by this reference;
"Personal Property" means all that personal property owned by Seller
in connection with the use, occupancy and operation of the Improvements and
identified on Exhibit D attached hereto and incorporated herein by this
reference.;
"Property" means the Real Property and the Personal Property;
"Property Information" means the information in Seller's Possession
regarding the Property as described on Exhibit E, attached hereto and
incorporated herein by this reference.
"Purchase Price" has the meaning assigned thereto in Section 3.1
hereof;
"Real Property" means the Land and all Improvements, and Seller's
interest in any easements, covenants and other rights appurtenant to the Land;
"Seller's Possession" means in the possession of Seller, or any of
Seller's partners or the partners of Seller's partners, Seller's architects,
engineers, consultants or agents.
"Service Contracts and Operating Agreements" means those certain
service contracts, operating agreements, maintenance agreements and property
management agreements set forth in Exhibit F attached hereto adjusted from time
to time during the term of this Agreement to reflect current such agreements.
"Title Company" means First American Title Insurance Company in
Seattle, Washington;
"Title Commitment" means that certain preliminary commitment for
issuance of the Title Policy given by Title Company, Order No. 331074-5 dated
September 23, 1996;
"Title Policy" means that certain ALTA extended owner's coverage
policy of title insurance covering the Real Property and; and
2. Purchase and Sale. Purchaser shall purchase and Seller shall sell
the Property under the terms and subject to the conditions set forth in this
Agreement.
3. Purchase Price; Payment Terms.
3.1 Purchase Price. Purchaser shall pay Seller NINE MILLION NINE
HUNDRED FORTY SEVEN THOUSAND Dollars ($9,947, 000) (the "Purchase Price") for
the Property at Closing.
3.2 Payment Terms. The Purchase Price shall be paid all in cash at
Closing, in cash, via cashier's check, wire transfer, or other immediately
available funds.
4. Xxxxxxx Money.
4.1 Deposit of Xxxxxxx Money. The Xxxxxxx Money shall be deposited
in cash, via wire transfer in immediately available funds, to Escrow, on or
before noon Seattle time, five (5) days after the Effective Date. Upon
Purchaser's determination of satisfaction with the Due Diligence Contingency,
the Xxxxxxx Money (and interest accrued thereon) shall be non-refundable to
Purchaser, except in the event of Seller's breach of its obligations hereunder.
4.2 Interest Bearing; Applicable to Purchase Price. The Xxxxxxx
Money shall be held by Title Company in Escrow an interest-bearing account for
the benefit of the party entitled to receive the Xxxxxxx Money. In the event
of Closing, Purchaser shall receive a credit against the Purchase Price for the
amount of the Xxxxxxx Money plus accrued interest thereon.
5. Due Diligence Contingency. 5.1 Determination of Due Diligence
Contingency. Purchaser's obligation to purchase the Property is contingent
upon Purchaser's determination, in Purchaser's sole and absolute discretion,
that the Due Diligence Contingency is approved, waived, removed or satisfied,
on or before expiration of the Due Diligence Period. Purchaser may, in
Purchaser's sole and absolute discretion, terminate this Agreement at any time
by written notice to Seller if Purchaser determines that the Due Diligence
Contingency will not be satisfied by the expiration of the Due Diligence
Period; whereupon in the event of such termination, the Xxxxxxx Money and all
interest accrued thereon shall be returned to Purchaser. The Due Diligence
Contingency shall be deemed not to be satisfied unless Purchaser, by the
expiration of the Due Diligence Period, notifies Seller that the Due Diligence
Contingency has been satisfied. If the Due Diligence Contingency is deemed not
satisfied, this Agreement shall automatically terminate and the Xxxxxxx Money,
and all interest accrued thereon, shall be promptly returned to Purchaser.5.2
Seller to Provide Property Information. Within five (5) business days after
the Effective Date, Seller, at its sole cost and expense, shall provide or make
available to Purchaser the Property Information. During the Due Diligence
Periods, Seller agrees to cooperate with Purchaser and deliver to Purchaser all
such other documents and reports reasonably requested by Purchaser, to the
extent such Property Information is in Seller's Possession. Such Property
Information is provided to Purchaser as a courtesy, without warranty or
guarantee of completeness or accuracy, for purposes of Purchaser's Due
Diligence Contingency determination and use in investigating the Property.
5.3 Access. During the term of this Agreement, Seller shall provide Purchaser
and its agents with reasonable access to the Property at reasonable times and
upon reasonable notice. Purchaser shall be entitled to conduct such
engineering and economic feasibility studies relating to the Real Property,
including, without limitation, a Phase I Environmental Assessment, structural
analysis, life safety, energy audit, mechanical and electrical inspection, ADA
compliance review, space planning and zoning/land-use/permitting review. 5.3
Purchaser Indemnity. Purchaser shall indemnify and hold Seller harmless from
any and all expense, liens or claims (including attorneys' fees) arising from
third party claims occurring as a result of Purchaser's entry in and upon the
Building for purposes of determining the Due Diligence Contingency.
Purchaser's indemnity in this Section 5.3 shall survive termination of this
Agreement, or Closing hereunder. 5.4 Delivery to Seller Upon Termination.
Upon termination of this Agreement without Closing, Purchaser shall deliver to
Purchaser copies of the results of such studies or reports as conducted by
Purchaser under this Section 5.
6. Closing; Escrow Requirements.
6.1 Time and Place. The Closing of the purchase and sale of the
Property shall occur on the Closing Date. Closing shall take place through
Escrow at the offices of the Title Company.
6.2 Escrow. On or before December 5, 1996 (unless Closing has
earlier occurred), each of the parties shall execute and deliver to Escrow such
documents, instruments, opinions and agreements as may be required in order to
complete the transaction contemplated hereunder pursuant to the terms hereof,
including, but not limited to, the following:
6.2.1 Deed. Seller shall execute and deliver the Deed.
6.2.2 FIRPTA. Seller shall execute and deliver to Purchaser
at Closing a non-foreign affidavit as required by the Foreign Investment and
Real Property Tax Act, IRS Section 1445 (b) (2), as amended.
6.2.3 Assignment of Leases. Seller and Purchaser shall
execute duplicate originals of the Assignment and Assumption of Leases in the
form attached hereto as Exhibit H, (with the Leases identified therein being
brought current to those Leases in existence as of the Closing Date) and one
original of each shall be delivered to Seller and Purchaser.
6.2.4 Assignment Service Contracts and Operating Agreements.
Seller and Purchaser shall execute duplicate originals of the Assignment of
Service Contracts and Operating Agreements in the form attached hereto as
Exhibit I (with the Service Contracts and Operating Agreements identified
therein being brought current to those Service Contracts and Operating
Agreements in existence as of the Closing Date),and one original of each shall
be delivered to Seller and Purchaser.
6.2.5 Assignment of Warranties. Seller and Purchaser shall
execute duplicate originals of the Assignment of Warranties in the form
attached hereto as Exhibit J, to the extent any warranties with respect to the
Property shall be in effect as of the Closing Date; and one original of each
shall be delivered to the other.
6.2.6 Xxxx of Sale. Seller shall execute and deliver to
Purchaser at Closing, a Xxxx of Sale in the form attached hereto as Exhibit K,
conveying title to the Personal Property, free and clear of any encumbrances or
claims.
6.3 At Closing. At Closing, each party shall take such actions as
are required and execute and deliver such documents as are required to effect
the Closing, including but not limited to, the following:
6.3.1 Purchase Price. Purchaser shall deliver the Purchase
Price to Escrow, less the Xxxxxxx Money and all interest accrued thereon, which
shall be applied as a credit against the Purchase Price;
6.3.2 Title Policy. As soon after Closing as Title Company
deems reasonably practical, the Title Policy shall be delivered to Purchaser,
with a copy to Seller.
6.4 Closing Costs. Seller shall be responsible for the cost of the
Title Policy to the extent of the premium for standard owner's coverage; real
estate excise taxes; and one-half (1/2) the Escrow fee and sales tax thereon.
Purchaser shall be responsible for the cost of the Title Policy to the extent
in excess of the premium for standard owner's coverage together with all
endorsements to the Title Policy requested by Purchaser and any required
surveys, the cost of recording the Deed, one-half (1/2) the Escrow fee and sale
tax thereon; and retail sales or use taxes on the Personal Property. Each
party shall bear its own fees and expenses of counsel in connection with the
negotiation and execution of this Agreement and the Closing of the purchase of
the Property.
6.5 Proration of Income and Expenses. The following items shall be
adjusted or prorated between Seller and Purchaser at Closing, as of the Closing
Date:
6.5.1 Taxes. Real and personal property taxes for the Land
and Improvements shall be prorated.
6.5.2 Assessments. All unpaid assessments shall be
prorated.
6.5.3 Proration of Rents; Security Deposits; Service
Contracts and Operating Agreements. Rents and any other income from the
operation of the Property during the month of Closing and actually collected on
or prior to the Closing Date shall be prorated to the Closing Date. After the
Closing, if any such rents and other income are actually received by Purchaser,
all such amount shall first be applied by Purchaser to currently due rents,
then to past due rents in the order such amounts became due. Purchaser shall
promptly deliver any such amounts owed to Seller after receipt. Purchaser
shall exert its best efforts to collect any such past due rent amounts owed to
Seller, or other income not apportioned at the Closing which is for the benefit
of Seller, and Purchaser shall be required to turn over to Seller its share of
the same, if, as and when received by Purchaser. At and upon Closing, security
deposits and advance rentals shall be credited to Purchaser. Charges or
prepaid fees due on Service Contracts and Operating Agreements shall be
prorated as of the Closing Date.
6.5.4 Utilities. Seller shall pay all utility charges,
insurance premiums and other operating expenses attributable to the
Improvements to the Closing Date. Purchaser shall be responsible for all such
utility charges, insurance premiums and other operating expenses on and after
the Closing Date.
6.5.5 Post-Closing Adjustments. To the extent items are
prorated or adjusted at the Closing on the basis of estimates or are not
prorated or adjusted at the Closing pending actual receipt of information upon
which such prorations or adjustments are to be based, Purchaser and Seller
will, upon a proper accounting, pay to the other such amounts as may be
necessary such that Seller will pay all expenses of the Property prior to the
Closing Date and Purchaser will pay all expenses of the Property after the
Closing Date to the extent required by Section 6.4. If Purchaser receives a
xxxx or invoice which relates to periods prior to the Closing, Purchaser will
refer such xxxx to Seller and Seller agrees to pay, promptly upon receipt, such
a portion of the xxxx or invoice as relates to the period prior to the Closing
Date for which it is responsible. If Seller does not pay such xxxx in a timely
manner, Purchaser may, at its option, pay such xxxx or invoice and Seller shall
become liable to Purchaser for the full amount of such payment.
6.6 Allocation of Purchase Price at Closing. Purchaser and Seller
agree that the Purchase Price shall be allocated between Real Property and
Personal Property as follows: Real Property shall constitute $9,786,639.69 of
the Purchase Price and Personal Property shall constitute $160,360.31 of the
Purchase Price.
6.7 Possession. Full possession of the Property, subject to the
rights of existing tenants, shall be delivered to Purchaser by Seller at
Closing.
6.8 Condition of Title at Closing. On the Closing, title to the
Property shall be good and marketable title in fee simple, free and clear of
all liens and encumbrances, easements, restrictions, conditions, covenants,
rights, rights-of-way and other matters, subject only to the Permitted
Exceptions.
7. Acceptance of As Is Condition. seller and purchaser agree the
property shall be sold and that purchaser shall accept possession of the
property on the closing date "as is, where is, with all faults" and that such
sale shall be without representation or warranty of any kind, express or
implied, including without limitation, warranty of income, potential, operating
expenses, uses, merchantability or fitness for a particular purpose, and seller
disclaims and renounces any such representation or warranty. Purchaser is not
relying on any representation or warranties of any kind whatsoever, express or
implied, from seller or agents or brokers, as to any matter concerning or
related to the property, including without limitation (1) the condition or
safety of the property or any improvements, including, but not limited to,
plumbing, sewer, heating and electrical systems, roofing, air conditioning, if
any foundations, soils and geology including hazardous materials, lot size,
condominiumization, or suitability of the property or improvements for a
particular purpose; (2) whether the appliances plumbing or utilities are in
working order, (3) the habitability or suitability for occupancy of any
structure and the quality of its construction; (4) the fitness of any personal
property; (5) whether the improvements are structurally sound, in good
condition, or in compliance with applicable city, county, state or federal
statues, codes or ordinance; or (6) matters relating to the leases or the
tenants. Purchaser further acknowledges and agrees, on his own behalf and for
his successors and assigns, that he is being and has been afforded a reasonable
opportunity to inspect and investigate the property, improvements and all
aspects relating thereto, that he is relying solely upon his own inspection of
the property, review of the leases and investigations concerning the tenants
and not upon any representations made to him by seller, its partners, officers,
directors, contractors, managers or employees nor any person whomsoever. the
provisions of this Section 7 shall survive closing and shall not be merged
therein.
8. Damage, Destruction or Condemnation. In the event of a
condemnation action or casualty damaging the Property before the Closing Date
which constitutes substantial damage to the Property, Purchaser shall have the
option to terminate this Agreement by giving Seller written notice of
termination within 10 days after Purchaser is notified of the condemnation
action or casualty. As used herein, "substantial damage" shall mean damage
resulting in costs in excess of $500,000 to restore or repair as determined by
a licensed general contractor acceptable to Seller. If written notice of
termination, signed by Purchaser, is given to Seller within the 10 day period,
this Agreement shall terminate, the Purchaser and Seller shall be relieved of
any further obligations and responsibilities under this Agreement; and the
Xxxxxxx Money and all interest accrued thereon shall be returned to Purchaser.
If written notice of termination, signed by Purchaser, is not received by the
Seller within the 10 day period, (1) in the event of a condemnation action,
Seller shall transfer the Property, together with any rights of Seller in any
condemnation award or any action against the condemning authority, less any
portion of the Property taken by condemnation, and the Purchase Price shall not
be reduced, and (2) in the event of a casualty damaging the Property, Purchaser
shall accept the Property as-is and the Purchase Price shall not be reduced,
provided that, upon completion of the repair and restoration of the Property by
Purchaser, if Seller receives any insurance proceeds for such damage from any
unrelated third party, Seller shall pay such proceeds to Purchaser to the
extent of the costs incurred by Purchaser in connection with such repair and
restoration. Purchaser agrees that Seller shall have the exclusive right to
proceed against Seller's insurer in connection with recovery of such proceeds
and shall exert its diligent efforts to do so if subparagarph (2) herein in
applicable. In the event of a condemnation action or casualty damaging the
Property before the Closing Date, Seller shall either repair the damage on or
before the Closing Date; or if such repair and restoration cannot be achieved
by the Closing Date, then Seller's obligation hereunder shall survive the
Closing Date and shall be completed as soon as reasonably possible thereafter.
Risk of loss to the Property from fire or other casualty shall be borne by
Seller until Closing.9. Commission. At and in the event of Closing of the
transaction contemplated by this Agreement, Purchaser has an agreement with
Xxxxxx Xxxxxxxx at Apartment Sales Corporation for payment of a commission in
the amount of $152,250 (the "Turinski Commission"); and Seller has an agreement
with Pinnacle Management for payment of a commission in the amount of $50,750
(the "Pinnacle Commission"). Purchaser and Seller agree that at and in the
event of Closing, the Turinski and Pinnacle Commissions shall be paid by
Purchaser and Seller shall have no responsibility or liability for payment of
the Turinski and Pinnacle Commissions. In addition, at and in the event of
Closing of the transaction contemplated by this Agreement, Seller has agreed to
pay a commission in the amount of 1% of the Purchase Price to The Quadrant
Corporation, and a commission in the amount of 1% of the Purchase Price to
Wellsford Xxxxx Residential Properties, Inc., which commissions to The Quadrant
Corporation and Wellsford Xxxxx Residential Properties, Inc. shall be paid by
Seller. Each of Seller and Purchaser represents and warrants to the other
that, other than the Turinski and Pinnacle Commissions, neither has agreed to,
entered into, authorized or taken any other action to create an obligation to
pay any other finder's fee, commission or other similar compensation in
connection with this Agreement, and agrees to indemnify the other party and
hold the other party harmless from and against any and all loss, cost,
liability, damage or expense (including attorneys' fees) whatsoever that may
arise from the untruth of such representation and warranty. Purchaser agrees
to hold Seller harmless from and against any and all loss, cost, liability,
damage or expense (including attorneys' fees) with respect to payment of the
Turinski and Pinnacle Commissions.
10. Notices. All notices consents, approvals and other communications
provided for herein or given in connection herewith shall be validly given,
made, delivered or served if in writing and delivered personally or sent by
registered, certified mail, or receipted overnight service, postage prepaid, or
by facsimile to:
PURCHASER AT: XXXXX X. XXXXXX
0000 00xx X.X.
Xxxxxxx, XX
Fax: (000) 000-0000
SELLER AT: XXX STREET ASSOCIATES
x/x Xxx Xxxxxxxx Xxxxxxxxxxx
00000 X.X. 0xx Xxxxxx, Xxxxx 000
X.X. Xxx 000
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xx. Xxxxx Xxxxxx
or to such other addresses as either party hereto may from time to time
designate in writing and deliver in a like manner. Notices, consents,
approvals and communications given by mail shall be deemed delivered upon
receipt. Notices, consents, approvals and communications given by facsimile
shall be deemed delivered upon the receipt by sender of a confirmed received
statement as printed by the sender's facsimile machine. Originals of the
facsimile transmittals shall, on the same day as the facsimile transmittal was
sent, be mailed or personally delivered to the recipient of the facsimile
transmittal. 11. Default. If the Xxxxxxx Money or any other payment due
under this Agreement is not paid, honored, or tendered when due, or if any
other obligation under this Agreement is not performed or waived as provided in
this Agreement, there shall be the following remedies:
11.1 Seller's Default. If Seller fails to perform any of the
material covenants or agreements contained herein which are to be performed by
Seller, Purchaser may, at its option and as its exclusive remedy, either (i)
terminate this Agreement by giving notice of termination to Seller whereupon
the Title Company shall return the Xxxxxxx Money (and interest accrued thereon)
to Purchaser and both Purchaser and Seller shall be relieved of any further
obligations or liabilities hereunder; or (ii) Purchaser may seek specific
performance of this Agreement.
11.2 Purchaser's Default. If Purchaser fails to perform any of the
material covenants or agreements contained herein which are to be performed by
Purchaser; Seller, may, as its exclusive remedy, terminate this Agreement by
giving notice of termination to Purchaser whereupon the Title Company shall pay
the Xxxxxxx Money, together with all interest thereon, to Seller as liquidated
damages and both Purchaser and Seller shall be relieved of any further
obligations or liabilities hereunder.
11.3 Attorneys' Fees. In the event either party hereto finds it
necessary to bring any action at law or other proceeding against the other
party to enforce any of the terms, covenants or conditions hereof or any
instrument executed in pursuance of this Agreement, or by reason of any breach
or default hereunder or thereunder, the party prevailing in any such action or
proceeding, including, without limitation, any appeal or supplemental
collection proceedings thereupon shall be paid all costs and reasonable
attorneys' fees incurred by the other party; and in the event any judgment is
secured by such prevailing party, all such costs and attorneys' fees shall be
included in any such judgment, attorneys' fees to be set by the court and not
by the jury, and attorneys' fees to be in addition to any liquidated damage
remedy set forth in Sections 11.3 above.
11.4 Waiver. No delay in exercising any right or remedy shall
constitute a waiver thereof, and no waiver by Seller or Purchaser of the breach
of any covenant of this Agreement shall be construed as a waiver of any
preceding or succeeding breach of the same or any other covenant or condition
of this Agreement.
12. Deferred Exchange; Purchaser's Right To Terminate. Purchaser may, at
its option, structure its acquisition of the Property as a part of a 1031 tax-
deferred exchange involving this Property exchanged for other real property.
Seller shall cooperate with Purchaser to effect such tax-deferred exchange,
which cooperation shall include Seller's execution of required documentation in
connection therewith; provided, however, that: (1) Seller shall incur no
additional cost or expense other than those costs or expenses Seller would
incur under this Agreement, (2) Seller shall not take or hold title to any real
property, and (3) the Closing Date shall not be extended or delayed as a result
of structuring this transaction as part of a 1031 tax deferred exchange.
Notwithstanding the foregoing, if, after expiration of the Due Diligence
Period, Purchaser is unable to structure its acquisition of the Property as a
part of a 1031 tax deferred exchange, or if, notwithstanding Purchaser's
diligent efforts, Purchaser is unable to obtain financing for the portion of
the Purchase Price which is not payable pursuant to such 1031 exchange, then
Purchaser shall be entitled to terminate this Agreement by written notice to
Seller; whereupon the Xxxxxxx Money and all interest accrued thereon shall be
disbursed from Escrow by Title Company to Seller.
13. Disclosure of Litigation and Representation of Seller. Seller hereby
advises Purchaser that as of the Effective Date, that certain King County
Superior Court Cause No. 95-2-11832-1, Xxxxxx X. Xxxxxxxx x. Xxx Street
Associates, xx.xx, is pending against Seller and affects the Property and that
Seller is also aware of the potential claim or complaint of Xxxxxxx Xxxxxx.
Except for the foregoing, there are no investigations, actions, suits,
proceedings or claims pending or threatened against or affecting Seller, or, to
the best of Seller's actual knowledge, the Property, at law or in equity or
before or by any federal, state, municipal or other governmental department,
commission, board, agency, or instrumentality, domestic or foreign.
14. General
14.1 Time. Time is of the essence in the performance of the
respective obligations of the parties contained in this Agreement.
14.2 Successors and Assigns. Except as herein otherwise provided,
this Agreement and all of the terms and provisions hereof shall inure to the
benefit of and be binding upon the successors and assigns of the parties
hereto.
14.3 Entire Agreement; Amendment Only By Writing. This Agreement,
together with the Exhibits hereto, represents the entire agreement between the
parties covering everything agreed upon or understood in this transaction.
There are no oral promises, conditions, representations, understandings,
interpretations or terms of any kind as conditions or inducements to the
execution hereof or in effect between the parties, except as may otherwise be
provided herein. No change or addition is to be made to this Agreement except
by a written agreement executed by the parties.
14.4 Jurisdiction. This Agreement and the rights of the parties
hereto shall be governed and construed in accordance with the laws of the State
of Washington.
14.5 Assignment. Neither party may assign its interest in this
Agreement, including its rights and obligations hereunder without first
obtaining the prior written approval of the other. Notwithstanding the
foregoing, upon any such assignment occurring, neither Purchaser nor Seller
shall be relieved or released from its obligations hereunder.
14.6 Headings. The descriptive headings of the Articles of this
Agreement are inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
14.7 Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
14.8 Construction. The parties acknowledged that each party and its
counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any amendments or Exhibits hereto.
14.9 Continued Marketing. Purchaser understands, acknowledges and
agrees that until Purchaser's waiver and determination of his satisfaction with
the Due Diligence Contingency on or prior to expiration of the Due Diligence
Period, Seller shall be free to continue to market the Property for sale and to
negotiate, accept and enter into any contracts and agreement for sale of the
Property, which contracts and agreements shall be subject to this Agreement,
unless or in the event of the termination of this Agreement as set forth
herein.
14.10 REIT. No partner of Seller nor any officer, director or
shareholder thereof shall be bound by or have any personal liability hereunder
or under any document, agreement, understanding or arrangement relating to this
transaction. The parties to this Agreement shall look solely to the assets of
Seller for satisfaction of any liability of Seller in regard to this Agreement
and all documents, agreements, understandings and arrangements relating to this
transaction and will not seek recourse or commence any action against any of
the partners of Seller or their officers, directors or shareholders or any of
their personal assets for the performance or payment of any obligation
hereunder or thereunder. The foregoing shall also apply to any and all future
documents, agreements, understandings, arrangements and transactions between
the parties hereto with respect to the Property or this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SELLER:
XXX STREET ASSOCIATES,
Washington general partnership
By WELLSFORD XXXXX RESIDENTIAL PROPERTIES, INC.,
a Maryland corporation, Its General Partner
By:/s/ Xxxxxx Xxxxxxxxx
----------------------
Xxxxxx Xxxxxxxxx
Its: President
By THE QUADRANT CORPORATION,
a Washington corporation, Its General Partner
By:/s/ Xxxxx Xxxxxx
--------------------
Xxxxx Xxxxxx
Its: Senior Vice President
PURCHASER:
/s/ Xxxxxx Xxxxxxxx
-------------------
XXXXX X. XXXXXX
By Xxxxxx Xxxxxxxx as his Attorney-in-Fact
Pursuant to that Special Power of Attorney
dated September 23, 1996
EXHIBITS
A Legal Description of Land
B Leases
C Permitted Exceptions
D Personal Property
E Property Information
F Service Contracts and Operating Agreements
G [INTENTIONALLY OMITTED]
H Assignment of Leases
I Assignment of Service Contracts
J Assignment of Warranties
K Xxxx of Sale
EXHIBIT A
All units of 000 Xxx Xxxxxx Condominium, a Condominium, according to
Declaration thereof recorded under King County Recording No. 9309081423; Said
units are located on Survey Map and Plans filed in Volume 115 of Condominium
Plats, at Pages 75 thorough 82, in King County, Washington;
Appurtenances to said units include an undivided 100% interest in the Common
Elements;
Situate in the County of King, State of Washington.
EXHIBIT B
LEASES
EXHIBIT C
PERMITTED EXCEPTIONS
1. Easement under Recording No. 3514239.
2. Commercial Easement and Right of Entry Agreement by and between Xxx
Street Associates and Viacom Cablevision, Recording No. 9104030635.
3. Terms, Covenants, Conditions, and/or Provisions contained in an
Underground Tie-Backs Easement, Recording No. 9204081382.
4. Public Place Indemnity Agreement, Recording No. 9204282374.
5. Memorandum of Drainage Control Plan, Recording No. 9207291678.
6. Grade Release, Recording No. 9211241392.
7. Terms, provisions, requirements and limitations contained in the
Washington Condominium Act, Chapters 43 and 428, Laws of 1989 (R.C.W. 64.34)
and as it may hereafter be amended.
8. Terms, Provisions, Covenants, Conditions, Definitions, Options,
Obligations and Restrictions contained in Condominium Declaration and as may be
contained in the Bylaws adopted pursuant to said Declaration, Recording No.
9309081423.
9. Any assessment now or hereafter levied under the Provisions of the
Condominium Declaration of 000 Xxx Xxxxxx Condominium, or any Amendment
Thereto, or under the Bylaws adopted pursuant to said Declaration, to the
extent provided for by R.C.W. 64.34.
10. Commercial Leasehold interests held by Ace International, XxXxxxxxx'x
Brew Pub, Inc., The Virtual Commons L.L.C.[COMPLETE WITH REMAINING TENANTS.]
11. Financing Statement given by XxXxxxxxx'x Brew Pub, Inc. to secure
United States National Bank of Oregon, Recording No. 9503160784.
EXHIBIT D
PERSONAL PROPERTY
EXHIBIT E
PROPERTY INFORMATION
1. The Leases as of the Effective Date as defined on Exhibit B.
2. ALTA Survey of the Property dated 8/27/93 by C&C Surveying, Inc.
3. Service Contracts and Operating Agreement as of the Effective Date as
defined in Exhibit F.
4. 1996 Operating Statements.
EXHIBIT F
SERVICE CONTRACTS AND OPERATING AGREEMENTS
1. Merit Mechanical - Preventative Maintenance Agreement for the Common Area
Ventilation.
2. The Pure Water Corporation.
3. Pagenet - Paging Network of Seattle.
4. ABS Communications, Inc.
5. The Safety Team, Inc.
6. Serco Landscape Maintenance.
7. Sound Elevator.
EXHIBIT H
ASSIGNMENT OF LEASES
EXHIBIT I
ASSIGNMENT OF SERVICE CONTRACTS
EXHIBIT J
ASSIGNMENT OF WARRANTIES
EXHIBIT K
XXXX OF SALE
FIRST AMENDMENT
to
REAL ESTATE PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO REAL ESTATE PURCHASE AND SALE AGREEMENT is entered into
as of this 21st day of October, 1996 by and between Xxx Street Associates, a
Washington general partnership, as "Seller", and XXXXX X. XXXXXX, an unmarried
Washington resident, as "Purchaser".
R E C I T A L S
A. Purchaser and Seller entered into that certain Real Estate Purchase and
Sale Agreement regarding the purchase and sale of certain real property
described therein with an Effective Date of (the "Agreement").
B. Purchaser and Seller are desirous of amending the Agreement in accordance
with the terms of this Amendment No. 1 To Real Estate Purchase and Sale
Xxxxxxxxx.XXX, THEREFORE, in consideration of the mutual promises of the
parties hereto, and other good and valuable consideration, the receipt of which
is hereby acknowledged, Purchaser and Seller hereby agree as follows.
1. Purchaser acknowledges and agrees that the Due Diligence Contingency is
hereby approved, waived and satisfied. Purchaser further acknowledges and
agrees that as of the date of the First Amendment, $50,000 of the Xxxxxxx Money
is non-refundable to Purchaser in accordance with the provisions of Section 4.1
as amended by this First Amendment.
2. Section 4.1 of the Agreement shall be amended to read as follows:
4.1 Deposit of Xxxxxxx Money. The Xxxxxxx Money shall be deposited in cash,
via wire transfer in immediately available funds, to Escrow, on or before noon
Seattle time, five (5) days after the Effective Date. Upon Purchaser's
determination of satisfaction with the Due Diligence Contingency, Fifty
Thousand Dollars ($50,000) of the Xxxxxxx Money shall be non-refundable to
Purchaser, except in the event of Seller's breach of its obligations hereunder.
The remaining One Hundred Fifty Thousand Dollars ($150,000) of the Xxxxxxx
Money (and all interest accrued thereon) shall be non-refundable to Purchaser,
except in the event of Seller's breach of its obligations hereunder, upon
Purchaser's giving the Additional Contingency Notice to Seller in accordance
with Section 5.5, as amended by this First Amendment.
3. There shall be added to Section 5, an additional Section 5.5.
5.5 Additional Contingency. On or before October 31, 1996, Purchaser shall
determine, to its reasonable satisfaction, that Purchaser's intended buyer of
other real property owned by Purchaser in connection with the tax deferred
exchange contemplated by Purchaser under Section 12 has removed all
contingencies to such buyer's obligation to close its purchase of Purchaser's
other real property (the "Additional Contingency"). Purchaser shall issue to
Seller written notice of its satisfaction with the Additional Contingency (the
"Additional Contingency Notice"). If said Additional Contingency Notice is not
issued by Purchaser on or before October 31, 1996, then, this Agreement shall
automatically terminate and $150,000 of the Xxxxxxx Money, and all interest
accrued thereon, shall be promptly returned to Purchaser; and $50,000 of the
Xxxxxxx Money shall be paid to Seller.
4. Except as amended herein, the provisions of the Agreement shall be
reaffirmed, reinstated and remain in full force and effect.
5. This First Amendment may be executed in counterpart, each counterpart
original constituting the entirety of this First Amendment.
SELLER:
XXX STREET ASSOCIATES,
Washington general partnership
By WELLSFORD XXXXX RESIDENTIAL PROPERTIES, INC.,
a Maryland corporation, Its General Partner
By:/s/ Xxxxxx Xxxxxxxxx
----------------------
Xxxxxx Xxxxxxxxx
Its: President
By THE QUADRANT CORPORATION,
a Washington corporation, Its General Partner
By:/s/ Xxxxx Xxxxxx
----------------------
Xxxxx Xxxxxx
Its: Senior Vice President
PURCHASER:
/s/ Xxxxx X. Xxxxxx
------------------------
XXXXX X. XXXXXX
SECOND AMENDMENT
to
REAL ESTATE PURCHASE AND SALE AGREEMENT
THIS SECOND AMENDMENT TO REAL ESTATE
PURCHASE AND SALE AGREEMENT is entered into as of this 31st day of October,
1996 by and between Xxx Street Associates, a Washington general partnership, as
"Seller", and XXXXX X. XXXXXX, an unmarried Washington resident, as
"Purchaser".
R E C I T A L S
A. Purchaser and Seller entered into that
certain Real Estate Purchase and Sale Agreement regarding the purchase and sale
of certain real property described therein with an Effective Date of October 3,
1996 and First Amendment thereto dated October 21, 1996 (the "Agreement").
B. Purchaser and Seller are desirous of
amending the Agreement in accordance with the terms of this Amendment No. 1 To
Real Estate Purchase and Sale Agreement.
NOW, THEREFORE, in consideration of the
mutual promises of the parties hereto, and other good and valuable
consideration, the receipt of which is hereby acknowledged, Purchaser and
Seller hereby agree as follows.
1. Section 13 of the Agreement shall be
deleted in its entirety and amended to read as follows:
13. Disclosure of Litigation;
Representation and Indemnity of Seller.
Seller hereby advises Purchaser that as of
the Effective Date, that certain King County
Superior Court Cause No. 95-2-11832-1,
Xxxxxx X. Xxxxxxxx and Xxx X. Xxxxxxxx x.
Xxx Street Associates, xx.xx, is pending
against Seller and affects the Property and
that Xxxxxx X. Xxxxxxxx has made certain
claims thereunder, including claims under
the Settlement Agreement (the "Xxxxxxxx
Claims"); and that Seller is also aware of
the potential claim or complaint of Xxxxxxx
Xxxxxx (the "Xxxxxx Claims"). Seller shall
indemnify, defend and hold Purchaser
harmless from any and all cost, expense,
loss or liability occurring as a result of
the Xxxxxxxx Claims or Xxxxxx Claims.
Except for the foregoing, there are no
investigations, actions, suits, proceedings
or claims pending or threatened against or
affecting Seller, or, to the best of
Seller's actual knowledge, the Property, at
law or in equity or before or by any
federal, state, municipal or other
governmental department, commission, board,
agency, or instrumentality, domestic or
foreign.
2. The Permitted Exceptions shall include
that certain Settlement Agreement by and
between Xxxxxx X. Xxxxxxxx and Xxx X.
Xxxxxxxx and Seller dated December 18, 1990
(the "Settlement Agreement"), which has been
provided to Purchaser and the terms of which
are acceptable to Purchaser. At Closing,
Purchaser shall agree to comply with and
assume the obligations of Seller under the
Settlement Agreement arising after the
Closing Date, including the maintenance of
the permanent retaining wall described
therein, subject to the indemnities and
warranties provided by Seller to Purchaser
under the Agreement.
3. There shall be added an additional
Section 14.11 to the Agreement which shall read as follows:
14.11 Warranty of Retaining Wall.
Pursuant to the provisions of the Settlement
Agreement, Seller constructed a "permanent
retaining wall" on the Property. Seller
hereby warrants and represents to Purchaser
that the permanent retaining wall was
constructed in accordance with the
requirements of the Settlement Agreement,
free from structural defects and defects in
workmanship and materials. The warranty and
representation made by Seller hereunder
shall survive the Closing for a period of
five (5) years after the Closing Date.
4. Additional Contingency Notice.
Purchaser hereby waives and approves the Additional Contingency stated in
Section 5.5 to the Agreement, which shall constitute the Additional Contingency
Notice. Purchaser further acknowledges and agrees that as of the date of the
Second Amendment, $200,000 of the Xxxxxxx Money is non-refundable to Purchaser
in accordance with the provisions of Section 4.1 of the Agreement.
5. Except as amended herein, the
provisions of the Agreement shall be reaffirmed, reinstated and remain in full
force and effect.
6. This Second Amendment may be executed
in counterpart, each counterpart original constituting the entirety of this
Second Amendment.
SELLER: XXX STREET ASSOCIATES, a Washington general partnership
By: WELLSFORD XXXXX RESIDENTIAL PROPERTIES, INC.,
a Maryland corporation, Its General Partner
By:/s/ Xxxxxx X. Xxxxxx
----------------------------
Xxxxxx X. Xxxxxx
Its:President
By: THE QUADRANT CORPORATION,
a Washington corporation, Its General Partner
By: /s/ Xxxxx Xxxxxx
--------------------------
Xxxxx Xxxxxx, Senior Vice President/Finance
PURCHASER: /s/ Xxxxx X. Xxxxxx
--------------------------
XXXXX X. XXXXXX
THIRD AMENDMENT
TO
REAL ESTATE PURCHASE AND SALE AGREEMENT
THIS THIRD AMENDMENT TO REAL ESTATE PURCHASE AND SALE AGREEMENT is entered
into as of this ____ day of December, 1996 by and between Xxx Street
Associates, a Washington general partnership, as "Seller", and XXXXX X. XXXXXX,
an unmarried Washington resident, as "Purchaser".
A. Purchaser and Seller entered into that certain Real Estate Purchase
and Sale Agreement regarding the purchase and sale of certain real property
described therein with an Effective Date of October 3, 1996 and First Amendment
thereto dated October 21, 1996 and Second Amendment thereto dated October 31,
1996 (the "Agreement").
B. Purchaser and Seller are desirous of amending the Agreement in
accordance with the terms of this Third Amendment To Real Estate Purchase and
Sale Agreement.
C. Purchaser and Seller agree that the fair market value of the personal
property conveyed by Seller to Purchaser, as described in Exhibit A to the Xxxx
of Sale, is $50,000.00.
NOW, THEREFORE, in consideration of the mutual promises of the parties
hereto, and other good and valuable consideration, the receipt of which is
hereby acknowledged, Purchaser and Seller hereby agree as follows.
1. Section 6.6 of the Agreement shall be deleted in its entirety and
amended to read as follows:
Allocation of Purchase Price at Closing. Purchaser and Seller agree that
the Purchase Price shall be allocated between Real Property and Personal
Property as follows: Real Property shall constitute $9,897,000.00 of the
Purchase Price and Personal Property shall constitute $50,000.00 of the
Purchase Price.
2. Except as amended herein, the provisions of the Agreement shall be
reaffirmed, reinstated and remain in full force and effect.
3. This Third Amendment may be executed in counterpart, each counterpart
original constituting the entirety of this Third Amendment.
SELLER: XXX STREET ASSOCIATES, a Washington general partnership
By WELLSFORD XXXXX RESIDENTIAL PROPERTIES, INC.,
a Maryland corporation, Its General Partner
By:/s/ Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
Its: President
By: THE QUADRANT CORPORATION,
a Washington corporation, Its General Partner
By: /s/ Xxxxx Xxxxxx
--------------------------
Xxxxx Xxxxxx, Senior Vice President/Finance
PURCHASER: /s/ Xxxxx X. Xxxxxx
------------------------
XXXXX X. XXXXXX
