REAL ESTATE PURCHASE AND SALE AGREEMENT
This agreement (the "Agreement") is dated November 14, 1997 and entered
into by and between XX XXXX DEVELOPMENT COMPANY, a _____________________
("Seller") and EAGLE HARDWARE & GARDEN, INC., a Washington corporation, or
assigns ("Buyer") for purchase and sale of approximately 12.107 acres of the
Evergreen Plaza Shopping Center in the City of Sparks, Washoe County, Nevada,
consisting of an approximately 1.991 acre parcel of improved commercial
property and an adjoining 10.216 acre parcel of partially improved land
(parking lot only) located on the north side of Xxxxx Boulevard between the
balance of the shopping center and El Rancho Drive to the east with a Wards
retail store and parking lot and Silverada Boulevard to the west and bounded
by Greenbrae Drive and Orovada Street on the north, together with any
improvements thereon and all rights appurtenant thereto (the "Property"). The
Property is shown on Buyer's site plan dated October 24, 1997 and numbered
X477-A (the "Site Plan") and attached hereto as Exhibit A. The legal
description of the entire shopping center is set forth in Exhibit B attached
hereto. Upon completion of the survey described in Section 3.2 below, a legal
description and parcel map of the Property shall be attached to this
Agreement as Exhibit C and made a part hereof.
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 eight dollars and seventy-five cents ($8.75) per square foot of land.
It is estimated that the Property contains approximately 527,374 square feet and
that the purchase price will be four million six hundred fourteen thousand five
hundred twenty-two dollars ($4,614,522). The area of the Property and the total
purchase price shall be determined by the new ALTA/ACSM survey described in
Section 3.2 below. 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 Reno,
Nevada (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 the Closing Agent,
with copies of all documents listed as exceptions set forth therein.
3.2 ALTA/ACSM Survey. Within thirty (30) days after the Effective
Date, Seller shall provide Buyer with a new ALTA/ACSM survey with land area
certification of the Property and a parcel map, at Seller's cost. The survey
shall include the 1.991 acre parcel and the 10.216 acre parcel or combine the
two parcels into one legally described parcel of 12.107 acres.
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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 commitment or the final
(as opposed to preliminary) 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
commitment or any items 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 exceptions or items will be removed on
or before closing, Buyer may, at its option, at any time prior to such removal
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 Buyer's 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 any
governmental agency in connection with the Property and Buyer's planned
development and use of the Property.
4.3 APPROVALS AND PERMITS. Issuance of any and all required or
applicable governmental approvals including but not limited to a PUD (if
required), an environmental impact report (EIR)(if required), a replat of the
Property, subdivision approvals, rezoning approvals, Nevada Department of
Transportation highway access and traffic signal approvals, City (or the County,
if applicable) building permits, use permits, sign permits, design review
approvals, site plan approvals, parking variances, street vacancies,
environmental certifications, and approvals of any kind from any and all
governmental agencies having jurisdiction over the Property, necessary for Buyer
to develop and construct it's store building, site improvements, drive through
building materials yard, garden yard and greenhouse, signing 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.
4.4 TIME PERIODS. Buyer shall have sixty (60) days from the
Effective Date (the "Feasibility Period") to satisfy or waive the contingencies
set forth in Sections 4.1 and 4.2. Buyer shall have ninety (90) days (the
"Contingency Period") from the end of the Feasibility Period to satisfy or waive
the contingencies set forth in Sections 4.3 and 4.6. 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 above and is diligently pursuing
the applicable required approvals and permits described in Section 4.3 above,
Buyer shall be entitled to two (2) separate thirty (30) day extensions of the
Contingency Period. Notice of the exercise of each of the extension periods
shall be given by Buyer to Seller at least ten (10) days prior to the end of the
initial Contingency Period or the first extension period, whichever is
applicable.
4.6 ACCESS EASEMENT. Buyer obtaining a permanent, recordable access
easement that runs with the land in two locations across the Xxxxxxxxxx Xxxx
Center adjoining the Property on the west. The easement shall be for the
purposes of vehicular and pedestrian access to and from Silverada Boulevard.
This condition may be satisfied if Buyer is provided with a certified copy of an
already existing recorded permanent easement acceptable to Buyer.
4.7 RECIPROCAL ACCESS EASEMENT AGREEMENT. Buyer obtaining a
permanent, recordable reciprocal access easement agreement that runs with the
land (the "R.E.A.") for all xxx xxxxx xxxxxx, xxxxxx accessing curb cuts, all
vehicular and pedestrian common areas and Mall Drive (if it is not a dedicated
public street) located in the Evergreen Plaza Shopping Center as shown on
Exhibit A. If required to satisfy Section 4.3 above, the R.E.A. shall include
parking. The R.E.A. shall be drafted, agreed to and executed during the first
sixty (60) days of the Contingency Period and recorded at Closing.
5. CLOSING.
5.1 TIME FOR CLOSING; TERMINATION DATE. This sale shall be closed in
the office of the Closing Agent within fifteen (15) business days after all of
Buyer's conditions precedent have been satisfied or waived by Buyer on a date
mutually agreeable to Buyer and Seller. Buyer and Seller shall deposit in escrow
with Closing Agent 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 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 shall pay the premium for the 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, and 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 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 except as described in Section 8.10 below. 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 now and as of
the date of closing that:
8.1 Seller has full power and authority to execute this Agreement and
perform Seller's obligations and duties hereunder;
8.2 The Property is not subject to any leases, tenancies or rights of
persons in possession;
8.3 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 Seller is unaware of any material defect in the Property;
8.5 All persons and entities supplying labor, materials and equipment
to the Property have been paid and there are no claims or liens;
8.6 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;
8.7 The Property has legal access to all streets adjoining the
Property;
8.8 Seller has good and marketable title to the Property;
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8.9 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
8.10 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. Seller at its sole cost and expense
shall within ninety (90) calendar days after Closing complete the demolition and
removal from the Property of the vacant former Ernst Hardware building and
garden yard shown on Exhibit A (the "Demolition Site") including but not limited
to all concrete slabs, footings, foundations, underground utilities and any
other related items. Seller at its own cost and expense shall provide an
environmentally clean Demolition Site with certifications by the applicable
local, state and federal agencies including but not limited to the removal of
asbestos, all underground storage tanks, pipelines, all contaminated soils and
any other toxic, hazardous or contaminated materials, wastes and other related
items governed by environmental protection and hazardous and toxic wastes and
materials laws, statutes, regulations, ordinances and requirements. Seller
agrees to indemnify, defend and hold Buyer harmless from and against any and all
loss, damage, claims, penalties, liability, suits, costs and expenses
(including, without limitation, reasonable attorneys' fees) and also including
without limitation, costs of remedial action or cleanup, suffered or incurred by
Buyer arising out of or related to any such use of the Property, or portion
thereof, occurring prior to the conveyance to Buyer or as a result of Seller's
failure to clean up the Demolition Site and provide the required certifications.
9. BUYER'S AUTHORITY. Buyer represents and warrants to Seller that 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.
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: Xxxxxx X. Xx Xxxx
0000 Xxxxxxx Xx., Xxx. 000
Xxxxxxxx, Xx 00000
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 on 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 Ekman Properties, the broker, and to Xxxx
& Associates, the cooperating broker. Said commissions and/or brokers' fees
shall be as agreed upon between Seller, the broker and the cooperating
broker. Seller shall indemnify and hold Buyer harmless from any obligation
for payment of any real estate commissions and/or brokers' fees.
16. EXHIBITS. Exhibits A, B and C attached hereto are incorporated
herein as if fully set forth.
Exhibit A - Site Plan
Exhibit B - Legal Description of the shopping center
Exhibit C - Legal Description of the Property and Parcel 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
November 13, 1997
Buyer's signature date Its: Vice President
Address: 000 Xxxxxx Xxxxxx X.X.
Xxxxxx, XX 00000
SELLER: XX XXXX DEVELOPMENT COMPANY
By: /s/ Xxxxxx X. Xx Xxxx
----------------------------------------
Typed name: Xxxxxx X. Xx Xxxx
Novmeber 14, 1997
Seller's Signature date Its: (Typed title) Owner & X. X. Xxxxxx
Silverado Park
Address: 0000 Xxxxxxx Xx., Xxx. 000
Xxxxxxxx, XX 00000
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EXHIBIT "A"
[Floor Plan]
EXHIBIT "A"
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EXHIBIT "B"
LEGAL DESCRIPTION OF THE SHOPPING CENTER
(To be provided by Seller at time of execution of this Agreement)
EXHIBIT "B"
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EXHIBIT "C"
LEGAL DESCRIPTION OF THE PROPERTY
AND PARCEL MAP
(To be provided by Seller upon completion of the ALTA/ACSM Class A survey as set
forth in Section 6).
EXHIBIT "C"
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