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Exhibit 10.21
REAL ESTATE PURCHASE AND SALE AGREEMENT
by and between
HECLA MINING COMPANY
and
JDL ENTERPRISES, LLC
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TABLE OF CONTENTS
Page
1. Contract of Sale.
2. Purchase Price; Payment Terms.
2.1 Purchase Price.
2.2 Xxxxxxx Money.
2.3 Payment Terms.
3. Lease to Seller.
4. Time and Place of Closing.
5. Title and Survey.
5.1 Title Report.
5.2 Survey.
5.3 Purchaser's Title and Survey Review.
5.4 Purchaser's Right to Recover Xxxxxxx Money Deposit.
5.5 Condition of Title at Closing.
5.6 Title Policy.
5.7 Delivery of Documents to Title Company.
6. Due Diligence Contingency.
6.1 Due Diligence Information.
6.2 Entry; Inspection; Access to Management and Records.
6.3 Scope of Review; Service Contracts.
6.4 Approval or Disapproval of Due Diligence Contingency.
6.5 Confidentiality.
7. Deliveries at Closing.
7.1 Seller's Deliveries at Closing.
7.2 Purchaser's Deliveries at Closing.
8. Prorations and Adjustments.
8.1 Prorations.
8.2 Closing Costs.
9. Seller's Representations and Warranties.
9.1 Authority.
9.2 Title.
9.3 No Defaults in Other Agreements.
9.4 No Litigation or Adverse Events.
9.5 Compliance with Laws.
9.6 Eminent Domain.
9.7 Licenses, Permits, Certificates of Occupancy, Zoning, etc.
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9.8 Taxes and Assessments.
9.9 Physical Condition.
9.10 Environmental Compliance.
9.11 Service Contracts and Agreements.
9.12 No Leases.
9.13 Mechanics' Liens.
9.14 Non-Foreign Person.
9.15 Operating Statements.
9.16 Disclosure.
10. Seller's Covenants.
10.1 Risk of Loss.
10.2 Eminent Domain.
10.3 Code Violations.
10.4 Operation of Property.
10.5 Consents.
10.6 Liens.
10.7 Management Agreements and Leasing Commissions.
10.8 Insurance.
10.9 New Contracts.
10.10 Tax Proceedings.
10.11 Copies of Notices.
11. Purchaser's Representations and Warranties.
12. Notices.
13. Broker.
14. Default.
14.1 Purchaser's Remedies.
14.2 Seller's Remedies.
15. Indemnification.
15.1 Indemnification by Seller.
15.2 Indemnification by Purchaser.
15.3 Notice and Defense of Claims.
15.4 No Release.
16. Miscellaneous Provisions
16.1 Survival; Limitation of Liability
16.2 Counterparts.
16.3 Time of the Essence.
16.4 Attorneys Fees.
16.5 Entire Agreement; Amendment.
16.6 Severability.
16.7 No Waiver.
16.8 Headings.
16.9 Successors and Assigns.
16.10 Execution.
16.11 Interpretation.
16.12 Jurisdiction and Venue.
16.13 Governing Law.
16.14 Exhibit List.
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REAL ESTATE PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made and entered into this the latest date of its
execution by Seller and Purchaser, as indicated on the signature page hereof
(the "Effective Date"), by and between HECLA MINING COMPANY, a Delaware
corporation (the "Seller") and JDL ENTERPRISES, LLC, a Washington limited
liability company (the "Purchaser").
A. Seller is the owner of the land legally described on Exhibit A hereto
(the "Land") and all improvements located on the Land (the "Improvements")
including an office building having the address of 6500 Mineral Drive, Coeur
d'Alene, Idaho (the "Building").
B. Seller desires to sell and Purchaser desires to purchase the Land, the
Improvements and all rights in real property appurtenant to the Land or the
Improvements (all of the foregoing collectively being referred to as the "Real
Property"), and all tangible and intangible personal property (other than
furniture, computers, office equipment and art work) located on or used in
connection with the Real Property (the "Personal Property" and, together with
the Real Property, the "Property"), upon the terms and conditions hereinafter
set forth.
Seller and Purchaser agree as follows:
1. CONTRACT OF SALE. On the Closing Date, Seller shall sell the Property
to Purchaser and Purchaser shall purchase the Property from Seller, at the price
and upon the terms and conditions set forth in this Agreement.
2. PURCHASE PRICE; PAYMENT TERMS.
2.1 PURCHASE PRICE. The purchase price (the "Purchase Price") to be
paid for the Property shall be Five Million Six Hundred Thousand Dollars
($5,600,000).
2.2 XXXXXXX MONEY. Within two (2) business days after the Effective
Date hereof, Purchaser shall deliver to Kootenai County Title Insurance Company
in Coeur d'Alene, Idaho ("Escrow Agent") the sum of One Hundred Forty Thousand
Dollars ($140,000) (the "Initial Xxxxxxx Money Deposit," which term shall
include all interest accrued thereon). The Initial Xxxxxxx Money Deposit
together with the Additional Xxxxxxx Money Deposit to be deposited by Purchaser
pursuant to Section 6.4(c) hereof, if then on deposit, are collectively referred
to herein as the "Xxxxxxx Money Deposit" (provided that as the context may
require, such term may refer to only the Initial Xxxxxxx Money Deposit). The
Initial Xxxxxxx Money Deposit and the Additional Xxxxxxx Money Deposit shall be
invested in an interest-bearing account at a
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financial institution acceptable to Purchaser, and shall be credited against the
Purchase Price at Closing.
2.3 PAYMENT TERMS. The Purchase Price, less the Xxxxxxx Money
Deposit, shall be payable at Closing in cash by wire transfer of immediately
available federal funds to escrow, subject to such credits, adjustments and
prorations as are provided herein.
3. LEASE TO SELLER. Seller intends, immediately upon Closing, to lease
from Purchaser one-half of the Building and associated storage and parking areas
included in the Property (collectively with the Building, the "Premises").
Purchaser and Seller are executing such lease (the "Lease") concurrently with
the execution and delivery of this Agreement, with its effectiveness subject
only to Closing. The obligations of each of Purchaser and Seller to perform its
respective obligations under this Agreement are contingent upon execution and
delivery of the Lease by the other. At Closing the Closing Date shall be
inserted in the Lease as the Commencement Date thereof.
4. TIME AND PLACE OF CLOSING. The closing of the transaction
contemplated by this Agreement (the "Closing") shall take place no later than
thirty (30) days after the end of the Due Diligence Period (as defined in
Section 6.1 hereof). Purchaser may designate a specific date for Closing within
such period by giving Seller ten days written notice of such desired Closing
date. (The actual date of Closing is referred to herein as the "Closing Date").
Closing shall take place in escrow through the offices of the Escrow Agent.
5. TITLE AND SURVEY.
5.1 TITLE REPORT. As soon as possible, and in any event within five
(5) days after the Effective Date, Seller shall obtain from Kootenai County
Title Insurance Company (the "Title Company") and deliver to Purchaser (i) a
current preliminary commitment for an ALTA extended coverage owner's policy of
title insurance issued by Chicago Title Insurance Company covering the Real
Property and identifying Seller as the owner of the Property (the "Title
Report"), and (ii) copies of all instruments referred to in said Title Report.
5.2 SURVEY. Purchaser may, at its option and at its expense, order
an as-built survey of the Property or an update to any prior as-built survey in
Seller's possession (either of which is referred to herein as a "Survey").
Seller will cooperate with Purchaser and its contractors in allowing access to
the Property in connection with any such Survey.
5.3 PURCHASER'S TITLE AND SURVEY REVIEW. Purchaser shall have until
the later of (i) fourteen (14) days after the date of Purchaser's receipt of the
documents described in Section 5.1 above (or, with respect to any exceptions
that may be
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revealed by any Survey, fourteen (14) days after Purchaser's receipt of such
Survey), or (ii) fourteen (14) days after the Effective Date, to give written
notice to Seller (the "Title Objection Notice") of its objection to any
exceptions listed on the Title Report or any matter to which Purchaser objects
that is shown on any Survey. If Purchaser makes any written objection to any
survey matter, Purchaser shall provide Seller with a copy of such Survey
concurrently with the giving of such notice if a copy thereof is not already in
Seller's possession. All exceptions to which Purchaser does not object in
writing within the period specified herein shall be deemed to have been approved
by Purchaser.
If Seller fails to give any written response to Purchaser within ten (10)
days following receipt of the Title Objection Notice, Seller shall be deemed to
have agreed to cure all title and survey matters to which Purchaser has objected
in the Title Objection Notice.
If Seller gives written notice to Purchaser ("Seller's Response Notice")
within ten (10) days after receipt of the Title Objection Notice that Seller
will not cure all of the title and survey maters to which Purchaser has
objected, Purchaser may elect by written notice given to Seller within ten (10)
days after receipt of Sellers Response Notice, to either (1) terminate this
Agreement, or (2) waive its objection to those matters that Seller has refused
to cure. Failure of Purchaser to give any written notice in response to
Seller's Response Notice shall be deemed a waiver by Purchaser of its objections
to the matters Seller has refused to cure.
In the event that, at any time after delivery of the Title Report, the
Title Report is amended to include any new liens, encumbrances, easements,
restrictions, conditions, covenants, rights, rights-of-way and other matters
affecting title to the Property not listed as exceptions in the Title Report, as
it may have been theretofore amended, Seller shall deliver to Purchaser a copy
of such amendment and a copy of all instruments relating to additional
exceptions referred to in such amendment, and the same procedure shall be
followed with respect to any such new exception as applied to the original Title
Report.
Purchaser shall not be required to make a written objection pursuant to the
procedures set forth above to any encumbrances evidencing or securing liquidated
obligations to pay money, and no such encumbrance shall be deemed a Permitted
Encumbrance for purposes of Section 5.4 hereof.
5.4 PURCHASER'S RIGHT TO RECOVER XXXXXXX MONEY Deposit.
Notwithstanding any provision hereof seemingly to the contrary, if Purchaser
terminates this Agreement pursuant to this Section 5, Purchaser shall be
entitled to the return of the entire Xxxxxxx Money Deposit.
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5.5 CONTITION OF TITLE AT CLOSING. Seller shall convey to Purchaser
good and marketable title to the Real Property 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 following
(collectively, the "Permitted Exceptions"): (a) the rights and reservations
expressed in the U. S. patent to the Land; (b) the lien of current real estate
taxes not yet due and payable; and (c) such other title exceptions as may be
approved by Purchaser or as to which Purchaser's objections are waived in
accordance with Section 5.3 above.
5.6 TITLE POLICY. Seller shall provide Purchaser at Closing with an
ALTA extended coverage owner's policy of title insurance, with such reinsurance
as Purchaser may reasonably request, in an amount not less than the Purchase
Price, insuring Purchaser's good, marketable and indefeasible title to the Real
Property in fee simple absolute, subject only to the Permitted Exceptions and
standard printed exceptions contained in the ALTA extended coverage owner's
policy form (the "Title Policy"). The Title Policy shall include (i) protection
(by endorsement or otherwise) against (A) violation of any covenants, conditions
and restrictions of record and (B) zoning violations (including without
limitation, parking requirements), and (ii) assurance (by endorsement or
otherwise) that (A) all foundations and other improvements are within the lot
lines, building restriction lines and applicable setback lines or otherwise not
in violation thereof, (B) the Improvements do not encroach onto adjoining land
or onto any easements, and (C) there are no encroachments or improvements from
adjoining land onto the Land or the Improvements or any part thereof).
5.7 DELIVERY OF DOCUMENTS TO TITLE COMPANY. Seller will deliver to
the Title Company all instruments, documents and other materials in its
possession, and will execute all affidavits, indemnities, releases and
agreements, as reasonably necessary, in order to secure the issuance of the
Title Policy (as defined in Section 5.6). Seller agrees that it shall be deemed
reasonable if the Title Company requests an indemnification regarding any
construction on the Property undertaken by or on behalf of Seller.
6. DUE DILIGENCE CONTINGENCY.
6.1 DUE DILIGENCE INFORMATION. Seller and Purchaser agree that
Purchaser's obligation to proceed with the Closing is subject to written
satisfaction, approval or waiver by Purchaser, in its sole and absolute
discretion, of all matters pertaining to the physical, structural,
environmental, economic, legal or zoning conditions with respect to the
Property, and its review and approval of Seller's financial condition and
credit-worthiness for purposes of the Lease, in accordance with this Section 6,
on or before the close of business on the date which is seventy-five (75) days
from the Effective Date (the "Due
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Diligence Period"). Within five (5) business days after the Effective Date,
Seller agrees to deliver to Purchaser the following items (the "Due Diligence
Items"):
(a) Current ad valorem real and personal property tax statements for
the Property;
(b) A schedule of the tangible personal property located on or used
in connection with the Real Property; provided, however, that Seller shall not
include in such schedule and shall not convey to Purchaser at Closing any
furniture, computers, office equipment or art work owned by Seller and located
at the Property (the tangible personal property listed on such schedule being
defined to herein as the "Personal Property");
(c) All environmental, soils or other studies or reports in the
possession or control of Seller with respect to the physical and/or
environmental condition of the Property, including, without limitation, any
Phase I Environmental Site Assessment report related to the Property;
(d) All building plans and specifications in Seller's possession;
(e) All capital budgets for the Property;
(f) Any building permits, licenses, or other governmental approvals
related to the Property and its construction, operation and use, including,
without limitation, all certificates of occupancy for the Improvements in
Seller's possession;
(g) Engineering reports, building and mechanical inspections made
during Seller's ownership of the Property and all records within Seller's
possession of repair or maintenance work on the Improvements or capital
improvements thereto;
(h) Any as-built survey of the Property and/or boundary survey of the
Property in Seller's possession, including the applicable legal description and
any certifications and notes of the surveyor comprising part of such survey;
(i) All current service contracts, employment agreements, personal
property leases and other contracts or agreements relating to the ownership,
operation and maintenance of the Property (the "Service Contracts");
(j) Such balance sheets, financial statements, tax returns, bank
statements and other financial records with respect to Seller as Purchaser may
reasonably require in order to evaluate Seller's financial status, operating
history and creditworthiness for purposes of the Lease;
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(k) A detailed report of actual operating expenses of the Property
compared to budgeted operating expenses for the previous calendar year and year-
to-date for the current calendar year;
(l) The most recent appraisal of the Property in Seller's possession;
(m) Copies of all insurance policies currently in force providing any
liability, casualty or other insurance coverages relating to the Property,
together with a written summary the types and limits of such coverages and
applicable premiums;
(n) Copies of all reports, assessments or studies in Seller's
possession regarding actions required or allegedly required to bring the
Property into compliance with the Americans with Disabilities Act or other
applicable laws or regulations governing use of the Property; and
(o) A written summary of litigation relating to the Property,
including without limitation any involving any vendor or service provider to the
Property, which has been pending at any time during the three years preceding
the Effective Date.
All of the foregoing items described in this Section 6.1, and any other
information provided to Purchaser during or prior to the Due Diligence Period,
shall be hereinafter collectively referred to as the "Due Diligence Items."
Where reference is made above to items in the possession of Seller, such term
shall also be deemed to refer to items under the control of Seller.
6.2 ENTRY; INSPECTION; ACCESS TO MANAGEMENT AND RECORDS. During the
Due Diligence Period, Seller shall provide Purchaser with reasonable access to
the Property, in accordance with the terms and conditions of this Section 7, in
order for Purchaser to conduct such inspections, tests and studies as Purchaser
may elect to undertake of the physical condition of the Property, including,
without limitation, inspection and testing for the presence of hazardous
materials, and for structural, mechanical, seismic, electrical and other
physical and environmental conditions and/or characteristics of the Property.
Purchaser shall indemnify and hold Seller harmless from and against all costs,
expenses, damages, liabilities, liens or claims, including, without limitation,
attorneys' fees and court costs, directly related to any entry on the Property
by Purchaser, its agents, employees or contractors in the course of performing
inspections, tests and/or inquiries provided for under this Agreement, or
resulting from any conditions on the Property created by Purchaser's entry and
testing (but not including any claims resulting from the discovery or disclosure
of pre-existing physical or environmental conditions or the non-negligent
aggravation of pre-existing physical or environmental conditions on, in, under
or about the Property). The foregoing indemnity
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shall survive the Closing Date or earlier termination of this Agreement for a
period of one (1) year. In addition, Seller shall allow Purchaser reasonable
access to Seller's senior management personnel, who shall cooperate with the
Purchaser in Purchaser's evaluation of the Property, the financial condition of
Seller, and any pending or contemplated transactions involving Seller that would
materially affect the financial condition of Seller. Seller shall allow
Purchaser access, at reasonable times, to Seller's books and records pertaining
to the Property and to Seller's financial condition and history.
6.3 SCOPE OF REVIEW; SERVICE CONTRACTS. During the Due Diligence
Period Purchaser may, in addition to conducting such inspections, tests and
studies as are referenced in Section 6.2 above, review and investigate all
aspects of the condition of the Land, the Improvements and the systems, fixtures
and components of such Improvements as it deems necessary; may investigate the
status of zoning, permitting, land use and development approvals relating to the
Property; may make inquiry of public officials and agencies and utility
providers with respect thereto; may review the Due Diligence items and such
other records and information relating to Seller and the Property as are
available to Purchaser; may investigate the condition of title and determine
from the title insurer the availability of any title endorsements desired by
Purchaser for the title policy; and may otherwise review and evaluate all such
matters and information as Purchaser considers relevant, in its sole and
absolute discretion, to its decision whether or not to acquire the Property.
Before the end of the Due Diligence Period, Purchaser shall notify Seller, in
writing, as to which Service Contracts Purchaser elects to assume at Closing.
Seller shall be solely responsible, at its expense, for any cancellation fees or
other costs or fees associated with the cancellation, effective as of the
Closing date, of any Service Contracts that Purchaser does not affirmatively
elect to assume. In addition, Purchaser may determine during the Due Diligence
Period whether it is fully satisfied with the terms of the Lease.
6.4 APPROVAL OR DISAPPROVAL OF DUE DILIGENCE CONTINGENCY.
(a) FORTY-FIVE-DAY NOTICE. Notwithstanding the total duration of the
Due Diligence Period of seventy-five (75) days, this Agreement shall terminate
forty-five (45) days after the Effective Date, and the Xxxxxxx Money Deposit
shall be returned to Purchaser, and the parties shall have no further rights
against or obligations to one another hereunder, except as otherwise expressly
provided herein, UNLESS Purchaser gives Seller written notice, before the end of
such 45-day period, confirming its intention to keep this Agreement in force.
Upon the giving of such written notice (the "45-Day Notice"), the Initial
Xxxxxxx Money Deposit shall become nonrefundable, subject to Purchaser's right
to terminate this Agreement and recover the
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Xxxxxxx Money Deposit pursuant to Sections 5.4 (title review), 10.1(casualty
loss), 10.2 (condemnation) and 14. 1 (seller's default) hereof.
(b) FAILURE OF CONTINGENCY. If Purchaser gives Seller the 45-Day
Notice, and if Purchaser subsequently elects, on or before the end of the Due
Diligence Period, to terminate this Agreement, Purchaser shall so notify Seller
in writing. Under such circumstances, the Initial Xxxxxxx Money Deposit shall
be delivered to Seller, subject to the provisions of Sections 5.4, 10.1, 10.2
and 14.1 hereof, and the parties shall have no further rights against or
obligations to one another hereunder, except as otherwise expressly provided
herein.
(c) SATISFACTION OF CONTINGENCY; ADDITIONAL XXXXXXX MONEY DEPOSIT.
If Purchaser gives Seller the 45-Day Notice and subsequently elects to waive the
Due Diligence contingency as described in this Section 6 and proceed with the
purchase of the Property, then Purchaser may keep this Agreement in force by
doing the following:
(i) Purchaser shall notify Seller in writing, on or before the
end of the Due Diligence Period, of such election (the "Notice of
Satisfaction"), and
(ii) Purchaser shall, concurrently with giving the Notice of
Satisfaction, deposit an additional One Hundred Forty Thousand Dollars
($140,000.00) with Escrow Agent as the "Additional Xxxxxxx Money Deposit," which
term shall include all interest accrued thereon, to be added to the Initial
Xxxxxxx Money Deposit previously deposited with Escrow Agent. Upon Purchaser's
election to keep this Agreement in force as provided in this Subsection 6.4(c),
Purchaser shall be obligated to proceed to Closing, and the Xxxxxxx Money
Deposit shall be nonrefundable, subject, however, to Purchaser's rights under
Sections 5.4, 10.1, 10.2 and 14.1 hereof.
(d) FAILURE TO GIVE NOTICE. If Purchaser fails to either give Seller
the Notice of Satisfaction, or to deposit the Additional Xxxxxxx Money Deposit,
within the time required herein, then Purchaser shall be deemed to have elected
to terminate this Agreement, and provisions of Subsection 6.4(b) hereof shall
apply.
6.5 CONFIDENTIALITY. Purchaser agrees to hold in confidence all Due
Diligence Items provided to it pursuant to this Agreement and all terms and
conditions of this Agreement, except that (i) the Purchaser may disclose such
documents, materials or information to their respective directors, officers,
employees or other parties who are required to know such information for the
proper performance of their duties in effecting the transaction, and
(ii) Purchaser may disclose information to the extent required by law or by any
stock exchange rule to which the Purchaser is subject. Purchaser
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further agrees that all information provided to it by Seller shall be used for
the sole purpose of determining whether to proceed with the transaction
contemplated by this Agreement. Neither Seller nor Purchaser shall issue any
press release or general public announcement concerning the terms or fact of
this Agreement without first obtaining the consent of the other party, which
consent will not be unreasonably withheld, except as may be required by law or
by any stock exchange rule to which such party is subject. The confidentiality
obligations of this Section 6.5 as it relates to financial information of Seller
disclosed to Purchaser shall survive Closing or termination of this Agreement
for a period of one year.
7. DELIVERIES AT CLOSING.
7.1 SELLER'S DELIVERIES AT CLOSING. At Closing, Seller shall
execute, acknowledge (where appropriate) and deliver to Purchaser through the
Escrow Agent the following items:
(a) a statutory warranty deed in the form of Exhibit B hereto,
conveying the Real Property free and clear of all liens, encumbrances,
covenants, restrictions, conditions and adverse claims affecting title, except
the Permitted Exceptions;
(b) a warranty xxxx of sale and assignment of intangible personal
property in the form of Exhibit C hereto, transferring to Purchaser good and
marketable title to the Personal Property and to all warranties, guaranties,
licenses, permits, trade names and other intangible personal property associated
with the Real Property and the Personal Property;
(c) an assignment and assumption of service contracts, in the form of
Exhibit D hereto, transferring to Purchaser all of Seller's right, title and
interest in and to the Service Contracts;
(d) the certificate of Seller confirming that the representations and
warranties of Seller set forth in Section 9 hereof are true and correct; and
(e) a certification as to Seller's non-foreign status that complies
with the provisions of Section 1445(b)(2) of the Internal Revenue Code of 1986,
as amended, and any regulations promulgated thereunder.
Seller shall also deliver to Purchaser, outside escrow, keys to the
Building, all original assigned service contracts, plans and specifications,
certificates, licenses, permits, and authorizations relating to the Property,
and copies of such other records and files in Seller's possession and relating
to the Property as Purchaser may reasonably request, and any other documents
required by this Agreement to be delivered by Seller.
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7.2 PURCHASER'S DELIVERIES AT CLOSING. At Closing, Purchaser shall
execute, acknowledge (where appropriate) and deliver to Seller through the
Escrow Agent the following items:
(a) the Purchase Price;
(b) a counterpart original of the assignment and assumption of
contracts referenced at item 7.1(c) above; and
(c) any other documents required by this Agreement to be delivered by
Purchaser.
8. PRORATIONS AND ADJUSTMENTS.
8.1 PRORATIONS. At Closing the following items shall be prorated
between the Seller and Purchaser as of 12:01 A.M. on the Closing Date, and the
parties net proceeds shall be adjusted accordingly:
(a) real estate taxes;
(b) charges for water, sewer, steam, gas, electricity and other
utility services, if any, on the basis of the fiscal period for which assessed
or charged, except that if any of such utility services are metered,
apportionment at Closing shall be based on the last available reading, subject
to adjustment after Closing when the next reading is available;
(c) charges under service contracts actually transferred to Purchaser
hereunder.
8.2 CLOSING COSTS. The premium for the title insurance policy and
any endorsements thereto, escrow fees, sales tax on the transfer of the Personal
Property and any transfer tax on the Real Property shall be borne equally by
Seller and Purchaser. Each party shall bear its own attorneys' fees.
9. SELLER'S REPRESENTATIONS AND WARRANTIES. As a material inducement to
Purchaser entering into this Agreement, Seller represents and warrants to
Purchaser as follows:
9.1 AUTHORITY. Seller is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware, and has
the power to own all of its properties and assets and to carry on its business
as presently conducted. The execution, delivery and performance of this
Agreement and the Lease have been duly and validly authorized by all necessary
action of Seller.
9.2 TITLE. Seller has good and marketable title, in fact and of
record, to the Property, free and clear of all liens, encumbrances, leases,
security interests, easements, rights-of-way, charges, adverse claims,
management agreements, continuing contracts and other exceptions to title,
except for those matters set forth in the Title Report.
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9.3 NO DEFAULTS IN OTHER AGREEMENTS. Neither Seller nor (to Seller's
knowledge) any other party is in default under any Service Contract or other
agreement affecting the Property, and no event exists which, with the passage of
time or the giving of notice or both, will become a default thereunder on the
part of Seller or (to the best of Seller's knowledge) any other party thereto.
To Seller's knowledge, Seller is not in default in complying with the terms and
provisions of any of the covenants, conditions, restrictions, rights-of-way or
easements affecting the Property.
9.4 NO LITIGATION OR ADVERSE EVENTS. There are no investigations,
actions, suits, proceedings or claims pending or to Seller's knowledge
threatened against or affecting 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, no such investigation,
action, suit, proceeding or claim has been pending during the 12-month period
preceding the date of this Agreement, and Seller does not know of any basis or
grounds for any such investigation, action, suit, proceeding or claim.
9.5 COMPLIANCE WITH LAWS. In connection with the conduct of the
business of the Property, Seller has complied in all material respects with all
applicable laws, ordinances, rules and regulations (including without limitation
those relating to zoning), and Seller has not been informed of a violation of
any such laws, rules or regulations. Seller has no notice or knowledge that any
government agency or any employee or official considers the construction of the
Property or its operation or use to have failed to comply with any law,
ordinance, regulation or order or that any investigation has been commenced or
is contemplated respecting any such possible failure of compliance. There are
no unsatisfied requirements for repairs, restorations or improvements from any
person, entity or authority, including, but not limited to, any tenant, lender,
insurance carrier or governmental authority. All driveway entrances and exits
to the Real Property are permanent and no special access or other permits are
required to maintain same. All existing streets and other improvements,
including water lines, sewer lines, sidewalks, curbing and streets at the Real
Property have been paid for and either enter the Real Property through adjoining
public streets, or, if they enter through adjoining private lands, do so in
accordance with valid, irrevocable easements running to the benefit of the owner
of the Real Property. Seller has not received from any insurance company or
Board of Fire Underwriters any notice, which remains uncured, of any defect or
inadequacy in connection with the Property or its operation.
9.6 EMINENT DOMAIN. There is no existing or, to the knowledge of
Seller, proposed or threatened eminent domain or similar proceeding, or private
purchase in lieu of such a proceeding, which would affect the Land or the
Property in any way whatsoever.
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9.7 LICENSES, PERMITS, CERTIFICATES OF OCCUPANCY, ZONING, ETC. All
building permits required in connection with the construction on the Property
undertaken by Seller, and all other notices, licenses, permits, certificates and
authority required in connection with the construction, use, and occupancy of
the Property, have been obtained and are in full force and effect and in good
standing, and valid and final certificates of occupancy have been issued for the
Building.
9.8 TAXES AND ASSESSMENTS. All real and personal property taxes
relating to the Property, excepting those for the current tax year which are not
yet overdue (i.e., which are still payable without interest or penalty), have
been paid in full. Except as disclosed to Purchaser in writing, Seller has not
received notice of and does not have any knowledge of (i) any proposed increase
in the assessed valuation of the Property, or (ii) any existing or proposed
assessment that has or may become a lien on the Property.
9.9 PHYSICAL CONDITION. Seller has no knowledge of any structural
defects in the improvements comprising any portion of the Real Property. To the
best of Seller's knowledge, the Improvements and tangible Personal Property
(including without limitation plumbing equipment, HVAC, electric wiring and
fixtures, gas distribution system, and water and sewage systems presently on or
in the Property) are in good working order and condition.
9.10 ENVIRONMENTAL COMPLIANCE. Except as set forth in the reports
referenced in Section 6.1(c) hereof, true and correct copies of which have been
delivered by Seller to Purchaser, no Hazardous Materials (as hereafter defined)
are located on or about the Property in violation of any Hazardous Materials
Laws. Further, (i) the Property has not been previously used for the storage,
manufacture or disposal of Hazardous Materials in violation of (or in a manner
exposing the owner or operator thereof to liability under) any Hazardous
Materials Laws; (ii) no complaint, order, citation or notice with regard to air
emissions, water discharges, noise emissions or Hazardous Materials, or any
other environmental health or safety matters affecting the Property, or any
portion thereof, from any person, government authority or other entity, has been
issued to Seller or, to the best of Seller's knowledge, its predecessor-in-
interest or any tenant on the Property; (iii) there are no underground storage
tanks located on the Property; (iv) Seller has been in material compliance with
all federal, state and local environmental laws and regulations affecting the
Property; and (v) to the best of Seller's knowledge, no tenant located on the
Property uses, manufactures or stores Hazardous Materials on the Property in
violation of law. For the purpose of this Agreement, "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
16
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. Sections 6901 et seq., the Comprehensive Environmental Response
Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. Sections 9601-9657,
as amended by the Superfund Amendments and Reauthorization Act of 1986 ("XXXX"),
the Hazardous Materials Transportation Act, 49 U.S.C. Sections 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. Sections 741 et seq., the Clean Water Act, 33 U.S.C. Sections
7401 et seq., the Toxic Substances Control Act, 15 U.S.C. Sections 2601-2629,
the Safe Drinking Water Act, 42 U.S.C. Sections 300f-300j, any "mini-superfund"
or other statutes enacted by the Idaho Legislature, including without
limitation, the Idaho Land Remediation Act, Sections 39-7201 to 39-7210, Idaho
Code, and all the regulations, orders and decrees now or hereafter promulgated
thereunder.
9.11 SERVICE CONTRACTS AND AGREEMENTS. Except for those Service
Contracts provided to Purchaser pursuant to Section 6.1(i) hereof, there are no
contracts of any kind relating to the management, leasing, operation,
maintenance or repair of the Property. Seller has performed all obligations
required to be performed by it, and is not in default, under any of such
contracts. Except as set forth in such schedule, all such contracts are
assignable to Purchaser.
9.12 NO LEASES. There are no lessees or tenants entitled to occupy
the Property under any written oral lease agreement or tenancy. Seller is the
only occupant of the Property.
9.13 MECHANICS' LIENS. All bills and claims for labor performed and
materials furnished at Seller's direction to or for the benefit of the Property
have been paid in full, and there are no mechanics' or materialmen's liens
(whether or not perfected) on or affecting the Property.
9.14 NON-FOREIGN PERSON. Seller is not a "foreign person" as such
term is defined in Section 1445(f) of the Internal Revenue Code of 1986, as
amended.
9.15 OPERATING STATEMENTS. All financial statements, operating
statements, tax returns and other reports and statements furnished by Seller to
Purchaser pursuant hereto relating to Seller's financial condition are accurate
in all material respects.
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9.16 DISCLOSURE. No representation or warranty of Seller in this
Agreement, or any information, statement or certificate furnished or to be
furnished by or on behalf of Seller pursuant to this Agreement or in connection
with the transactions contemplated hereby, contains or shall contain any untrue
statement of a material fact or omits or shall omit to state a material fact
necessary in order to make the representations or warranties contained herein
not misleading in light of the circumstances under which they were made. All
copies of contracts, agreements and other documents delivered by Seller in
connection with the transactions contemplated hereby are complete and accurate
in all material respects, and except as disclosed to Purchaser, have not been
amended or modified by any oral agreements.
If any of the foregoing representations in subsections 9.1 through 9.18
hereof is untrue in any material respect on the date hereof or on the Closing
Date, such untruth shall constitute a default on the part of Seller hereunder
unless Seller discloses such untruth to Purchaser in writing and Purchaser
approves such new information in writing, in its sole and absolute discretion.
10. SELLER'S COVENANTS. From and after the date of this Agreement and
continuing through Closing, Seller agrees with Purchaser as follows:
10.1 RISK OF LOSS. Seller shall retain the risk of loss to the
Property by fire or other casualty until the deed of conveyance is delivered to
Purchaser. If a loss occurs, Purchaser may elect to proceed with Closing, in
which event Seller shall assign to Purchaser all of Seller's rights to insurance
proceeds payable in respect of such loss, including the sole right to settle or
approve the settlement of any insurance claim, and the Purchase Price shall be
reduced by the amount of any deductible and by the amount of any proceeds paid
to Seller that are not used for repair and restoration of the Property in a
manner approved in writing by Purchaser. Purchaser shall have twenty (20) days
after receipt of written notice from Seller of the event to notify Seller in
writing as to whether Purchaser elects to proceed with Closing. During such 20-
day period, Seller shall cooperate and use its best efforts to provide Purchaser
with all information reasonably necessary to enable Purchaser to evaluate the
loss. If Purchaser elects to terminate this Agreement by reason of such loss,
Purchaser may recover the entire Xxxxxxx Money Deposit.
10.2 EMINENT DOMAIN. If all or any part of the Property is condemned
or if condemnation proceedings are instituted, Purchaser may elect to proceed
with Closing without an adjustment in price, in which event Seller shall assign
to Purchaser all its rights to the condemnation proceeds, including the sole
right to settle or approve the settlement of any condemnation award. Purchaser
shall have twenty (20) days after notice of the institution of condemnation
proceedings to notify
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Seller in writing as to whether Purchaser elects to proceed with Closing.
During such 20-day period, Seller shall cooperate and use its best efforts to
provide Purchaser with all information reasonably necessary to evaluate the
scope of the condemnation proceedings. If Purchaser elects to terminate this
Agreement by reason of such loss, Purchaser may recover the entire Xxxxxxx Money
Deposit.
10.3 CODE VIOLATIONS. Seller shall effectuate such repairs or other
cures as may become necessary to remedy any violations of applicable zoning
ordinances, building codes and certificates of occupancy; provided that Seller
may contest in good faith any alleged violations provided Seller promptly
notifies Purchaser of the alleged violation and of Seller's plans to contest the
same, Purchaser approves such plan in its discretion, and Seller remains
responsible for remedying the alleged violation to the extent a violation is
determined to exist.
10.4 OPERATION OF PROPERTY. Seller agrees that:
(a) Seller shall manage and operate the Property in the ordinary and
usual manner and preserve its relations with all suppliers and others having
business dealings with it.
(b) Seller shall maintain the Property in its present order and
condition and make all necessary repairs and replacements consistent with
Seller's past practice, and shall deliver the Property on the Closing Date free
of all active roof leaks, parking lot repairs requiring immediate attention and
otherwise in substantially the same condition it is in on the date of this
Agreement, reasonable wear and tear excepted. Without limiting the foregoing,
none of the Personal Property shall be removed from the Property unless either
(i) prior to the Closing Date the same are replaced with similar items of at
least equal quality and value, or (ii) Seller's failure to so replace such
Personal Property is approved in writing by Purchaser.
(c) Seller shall terminate at or prior to Closing, at Seller's sole
cost and expense, any Service contracts that Purchaser has not elected to
assume, any property management contracts relating to the Property, and any
employment agreements and other contracts with personnel employed by Seller in
the operation or maintenance of the Property.
10.5 CONSENTS. Seller shall use its best efforts to obtain all
consents and permissions related to the transactions contemplated by this
Agreement and required under any covenant, agreement, encumbrance, law or
regulation.
10.6 LIENS. Except for such liens as encumber the Property on the
Effective Date, Seller shall keep the Land and the improvements thereon free and
clear of all liens, claims or demands, including, but not limited to, mechanics'
liens, in
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connection with worked performed and materials provided on or before the Closing
Date, and if any such lien is filed or levied, Seller shall secure its release
within ten (10) days after it is notified of the filing or levy.
Notwithstanding the foregoing, Seller may grant a new first mortgage in
connection with the refinancing of the existing mortgage, and such new first
mortgage may secure an amount exceeding the amount secured by the existing first
mortgage, provided that any such mortgage lien shall be extinguished at or prior
to Closing.
10.7 MANAGEMENT AGREEMENTS AND LEASING COMMISSIONS. On the date of
Closing, there will be no contracts for the management, leasing, operation,
maintenance or repair of the Property (other than any contract that has been
entered into by Purchaser or that Purchaser has pursuant to Section 6.3 hereof
elected to have assigned to it). Seller shall pay and discharge at Closing, in
full, all obligations (past, present or future, actual or contingent) to pay any
leasing commissions whatsoever with respect to the Property.
10.8 INSURANCE. Seller shall maintain all-risk casualty insurance in
an amount at least equal to the full replacement value of the improvements
comprising any portion of the Property, with a deductible not in excess of
$10,000 (such insurance to be cancelled by Purchaser after Closing). Within
three (3) business days after the date of this Agreement, Seller shall provide
Purchaser with certificates and/or endorsements from the insurance carriers for
the insurance required to be maintained pursuant to this section evidencing such
coverage.
10.9 NEW CONTRACTS. Without Purchaser's prior written consent, Seller
shall not become a party to any new licenses, leases, contracts or agreements of
any kind relating to the Property, except such contracts or agreements as may be
terminated at or prior to Closing without cost or expense to Purchaser.
10.10 TAX PROCEEDINGS. Seller shall not withdraw, settle or
otherwise compromise any protest or reduction proceeding affecting real estate
taxes assessed against the Property for any fiscal period in which Closing is to
occur or any subsequent fiscal period without the prior written consent of
Purchaser, which consent shall not be unreasonably withheld. Real estate tax
refunds and credits received after the Closing Date which are attributable to
the fiscal tax year during which the Closing Date occurs shall be apportioned
between Seller and Purchaser, after deducting the expenses of collection
thereof, which obligation shall survive Closing.
10.11 COPIES OF NOTICES. Promptly upon receipt, Seller shall
provide Purchaser with copies of all material notices and correspondence
received from any tenant under the Leases, and notices and correspondence
received from any insurance company which carries insurance on the Property or
Board of Fire Underwriters, or from any governmental authority.
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11. PURCHASER'S REPRESENTATIONS AND WARRANTIES. As a material inducement
to Seller entering into this Agreement Purchaser represents and warrants to
Seller that Purchaser is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Washington, and has the power to
own all of its properties and assets and to carry on its business as presently
conducted. The execution, delivery and performance of this Agreement has been
duly and validly authorized by all necessary action of Purchaser and this
Agreement is a valid and binding obligation of Purchaser, enforceable against
Purchaser in accordance with its terms.
12. NOTICES.
Any notice required or permitted to be given or delivered under this
Agreement shall be in writing and (i) personally delivered, (ii) sent by United
States certified mail, postage prepaid, return receipt requested, (iii) sent by
Federal Express or similar nationally recognized overnight courier service, or
(iv) transmitted by facsimile with a hard copy sent within one (1) business day
by any of the foregoing means. Such notice shall be deemed to have been given,
delivered and received upon the date of actual receipt or delivery (or refusal
to accept delivery), as evidenced by the notifying party's receipt of written or
electronic confirmation of such delivery or refusal, if received by the party to
be notified before 5 p.m. local time on any business day, with delivery made
after such hours to be deemed received on the following business day. For the
purposes of notice, the addresses of the parties shall be as follows:
If to Purchaser: JDL Enterprises, LLC
2300 Skyline Tower
00000 X.X. Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to: Xxxxxx X. Xxxxxxxx
Xxxxxx Xxxxxx White & XxXxxxxxx LLP
0000 Xxxx xx Xxxxxxx Tower
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
If to Seller: Hecla Mining Company
Philips X. Xxxxx, Xx.
Vice President - Chief Financial Officer
0000 Xxxxxxx Xxxxx
Xxxxx x'Xxxxx, XX 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
21
with a copy to: Xxxxxxx X. Xxxxx
Vice President - General Counsel
0000 Xxxxxxx Xxxxx
Xxxxx x'Xxxxx, XX 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
or to such other address as either party may from time to time specify in
writing delivered to the other in accordance with this Section 12.
13. BROKER. Seller agrees to indemnify and hold Purchaser harmless from
and against any and all liability, costs, damages, causes of action or other
proceedings instituted by any broker, agent or finder, licensed or otherwise,
claiming through, under or by reason of the conduct of, or any contacts with,
Seller in the purchase and sale of the Property.
14. DEFAULT.
14.1 PURCHASER'S REMEDIES. If Seller shall default in the performance
of its obligation under this Agreement to sell the Property to Purchaser, then
Purchaser shall have the right to either (i) recover all damages suffered by
Purchaser, including without limitation, the loss of its bargain, or (ii) obtain
specific performance of Seller's obligation under this Agreement to convey title
to the Property and for damages representing Purchaser's actual costs and
expenses incurred by reason of Seller's default. In all such events Purchaser
shall be entitled to the return of the Xxxxxxx Money Deposit.
14.2 SELLER'S REMEDIES. SELLER AND PURCHASER EXPRESSLY ACKNOWLEDGE
AND AGREE THAT IF CLOSING FAILS TO OCCUR SOLELY AS THE RESULT OF A DEFAULT UNDER
THIS AGREEMENT BY PURCHASER, AND IF ALL OTHER CONDITIONS TO PURCHASER'S
OBLIGATIONS TO CONSUMMATE THE PURCHASE OF THE PROPERTY TO BE SATISFIED AS OF THE
DATE OF SUCH DEFAULT HAVE BEEN SATISFIED AT THE TIME OF SUCH DEFAULT, IT WOULD
BE EXTREMELY DIFFICULT AND IMPRACTICABLE AT THIS TIME TO ESTIMATE THE AMOUNT OF
SUCH DAMAGE, AND AFTER NEGOTIATION, THE PARTIES HAVE AGREED THAT, CONSIDERING
ALL OF THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT, THE AMOUNT OF
THE XXXXXXX MONEY DEPOSIT IS A REASONABLE ESTIMATE OF THE DAMAGES THAT SELLER
WOULD INCUR IN SUCH EVENT. ACCORDINGLY, SELLER AND PURCHASER AGREE THAT IN THE
EVENT OF SUCH A DEFAULT BY PURCHASER, AND CONDITIONED ON ALL OTHER CONDITIONS TO
PURCHASER'S OBLIGATIONS TO CONSUMMATE THE PURCHASE OF THE PROPERTY BEING
FULFILLED AT THE TIME OF SUCH DEFAULT, THE XXXXXXX MONEY DEPOSIT SHALL
CONSTITUTE LIQUIDATED DAMAGES FOR SUCH DEFAULT. THE ESCROW HOLDER IS HEREBY
INSTRUCTED BY SELLER AND PURCHASER TO DELIVER SUCH DEPOSIT TO SELLER IN SUCH
EVENT, AND SELLER SHALL RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES. SUCH
LIQUIDATED DAMAGES SHALL CONSTITUTE SELLER'S SOLE AND EXCLUSIVE REMEDY FOR
PURCHASER'S DEFAULT, AND SHALL BE IN LIEU OF ANY OTHER MONETARY RELIEF OR ANY
OTHER RELIEF TO WHICH SELLER MAY OTHERWISE BE ENTITLED UNDER THIS AGREEMENT OR
UNDER THE LAW, AND
22
SELLER HEREBY WAIVES ANY RIGHT TO SPECIFIC PERFORMANCE OR DAMAGES HEREUNDER,
EXCEPT THAT SELLER SHALL BE ENTITLED TO EXERCISE ANY RIGHTS OR REMEDIES IT MAY
HAVE BY VIRTUE OF ANY INDEMNITY CREATED OR GRANTED HEREIN.
BY PLACING ITS INITIALS BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF
THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS REPRESENTED BY
COUNSEL WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF
THIS LIQUIDATED DAMAGES PROVISION.
INITIALS: Seller: Purchaser:
15. INDEMNIFICATION.
15.1 INDEMNIFICATION BY SELLER.
(a) SELLER'S BREACH. Seller agrees to indemnify Purchaser and hold
Purchaser harmless against and in respect of any loss, damage, liability,
deficiency, cost or expense (including reasonable attorneys' fees), which
Purchaser may sustain or incur as the result of any misrepresentation, breach of
warranty or non-fulfillment of any covenant or agreement on the part of Seller
under this Agreement. Notwithstanding any provision of this Agreement to the
contrary, Seller shall not be liable under this Agreement for damages that are
not reasonably foreseeable consequences of any misrepresentation, breach of
warranty or non-fulfillment of any covenant or agreement on the part of Seller,
and in no event shall Seller be liable for punitive damages.
(b) PRECLOSING OBLIGATIONS. Seller shall indemnify and hold
Purchaser harmless against, and reimburse Purchaser on demand for, any and all
obligations, losses, liabilities, claims, cost or expense (including reasonable
attorneys' fees), in any way related to the Property and (1) arising out of
actions or circumstances occurring before Closing, resulting from claims
asserted against Purchaser by any third party, based on (i) any information not
disclosed to Purchaser in writing (whether or not known to Seller) regarding the
environmental condition of the Property (including without limitation, the
existence of Hazardous Materials on the Property or the violation of any
Hazardous Materials Laws), or (ii) events or conditions not disclosed to
Purchaser in writing (whether or not known to Seller) which occurred during the
time period for which Seller owned the Property; or (2) arising at any time out
of any Service Contract that Purchaser has not elected to assume at Closing,
15.2 INDEMNIFICATION BY PURCHASER. Purchaser agrees to indemnify
Seller and hold Seller harmless against, and reimburse Seller on demand for, any
and all obligations, losses, liabilities, claims, cost or expense (including
reasonable attorneys' fees), resulting from claims asserted against Seller by
any third party relating to the Property and arising out of
23
actions or circumstances occurring after Closing, other than claims arising from
Seller's use and occupancy of the Property from and after Closing pursuant to
the Lease, or from any breach or default by Seller in connection with any of its
obligations under the Lease, or from any misrepresentation, breach of warranty
or non-fulfillment of any covenant or agreement on the part of Seller under this
Agreement.
15.3 NOTICE AND DEFENSE OF CLAIMS. A party claiming indemnification
under this Section 15 (the "Asserting Party") must promptly notify in writing
the party from which indemnification is sought (the "Defending Party") of the
nature and basis of such claim for indemnification. If such claim relates to a
claim, litigation or other action by a third party against the Asserting Party
or to any fixed or contingent liability to a third party (a "Third Party
Claim"), the Defending Party may, by giving notice to the Asserting Party within
a reasonable time (but in no event more than sixty (60) days) after receipt of
the notice referred to above, elect to assume the defense of their Third Party
Claim at its own expense with counsel selected by the Defending Party. The
Defending Party's notice must contain an acknowledgment of the Defending Party's
obligation to indemnify the Asserting Party with respect to such claim,
litigation or other action. The Defending Party may not assume the defense if
the named parties to the Third Party Claim (including any impleaded parties)
include both the Defending Party and the Asserting Party and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them, in which case the Asserting Party
shall have the right to employ counsel reasonably approved by the Defending
Party at the expense of the Defending Party. If the Defending Party timely
assumes the defense of the Third Party Claim, the Defending Party shall not be
liable for any fees and expenses of counsel for the Asserting Party incurred
thereafter in connection with the Third Party Claim. If the Defending Party
timely assumes the defense of the Third Party Claim, the Asserting Party may not
settle or otherwise compromise the Third Party Claim without the consent of the
Defending Party. If the Defending Party fails to timely assume the defense of
the Third Party Claim, the Asserting Party may settle or otherwise compromise
the Third Party Claim without the consent of the Defending Party. No such
settlement or compromise shall deprive or impair the Asserting Party's right to
indemnification in respect of the Third Party Claim, except to the extent the
Defending Party can demonstrate that such settlement or compromise unreasonably
and unfairly prejudiced the rights of the Defending Party.
15.4 NO RELEASE. Notwithstanding anything to the contrary in this
Agreement, in no event shall the provisions of this Section 15 or any other
provisions of this Agreement be deemed (i) a release by Purchaser of any
statutory or common law rights or causes of action that Purchaser, its
successors and assigns, or any third party may have against Seller with respect
24
to the presence or claimed presence of Hazardous Materials at the Real Property,
or (ii) an indemnification by Purchaser or its successors and assigns of Seller
with respect to any liabilities, obligations or responsibilities of Seller to
governmental authorities or third parties concerning the presence or claimed
presence on the Real Property of Hazardous Materials.
16. MISCELLANEOUS PROVISIONS.
16.2 SURVIVAL; LIMITATION OF LIABILITY. Except as specifically set
forth in this Agreement, the representations, warranties, covenants, indemnities
and other obligations of Seller set forth in this Agreement shall survive the
Closing and the delivery of the deed by Seller; provided that Purchaser must
give notice of any breach of such surviving representations, warranties,
covenants or indemnities on or before the second anniversary of the Closing as a
condition to the enforcement of any rights with respect to such representations,
warranties, covenants or indemnities.
16.2 COUNTERPARTS. This Agreement may be executed 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.
16.3 TIME OF THE ESSENCE. Time is of the essence of this Agreement.
16.4 ATTORNEYS FEES. In the event of a dispute arising out of the
interpretation or enforcement of this Agreement, the prevailing party shall be
entitled to its attorneys fees and costs, including any incurred on appeal.
16.5 ENTIRE AGREEMENT; AMENDMENT. This Agreement sets forth the
entire agreement of the parties as to the subject matter hereof and supersedes
all prior discussions and understandings between them. This Agreement may not
be amended or rescinded in any manner except by an instrument in writing signed
by a duly authorized officer or representative of each party hereto.
16.6 SEVERABILITY. Should any of the provisions of this Agreement be
found to be invalid, illegal or unenforceable by any court of competent
jurisdiction, such provision shall be stricken and the remainder of this
Agreement shall nonetheless remain in full force and effect unless striking such
provision shall materially alter the intention of the parties.
25
16.7 NO WAIVER. No waiver of any right under this Agreement shall be
effective unless contained in a writing signed by a duly authorized officer or
representative of the party sought to be charged with the waiver and no waiver
of any right arising from any breach or failure to perform shall be deemed to be
a waiver of any future right or of any other right arising under this Agreement.
16.8 HEADINGS. Section headings contained in this Agreement are
included for convenience only and form no part of the agreement between the
parties.
16.9 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and
assigns. Neither party shall have the right to assign its rights hereunder to
any other party, except that Purchaser may assign its rights under this
Agreement to an entity controlled by or under common control with Purchaser.
16.10 EXECUTION. This Agreement shall not be binding or effective
until properly executed and delivered by Seller and Purchaser.
16.11 INTERPRETATION. As used in this Agreement, the masculine
shall include the feminine and neuter, the feminine shall include the masculine
and neuter, the neuter shall include the masculine and feminine, the singular
shall include the plural and the plural shall include the singular, as the
context may require. Any reference herein to "days" shall mean calendar days
unless otherwise specified.
16.12 JURISDICTION AND VENUE. In the event any action is brought
to enforce this Agreement, the parties agree to be subject to exclusive in
personam jurisdiction in the District Court for the First Judicial District of
the State of Idaho or in the United States District Court for the District of
Idaho and agree that in any such action venue shall lie exclusively at Kootenai
County, Idaho.
16.13 GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Idaho.
16.14 EXHIBIT LIST. The Exhibits attached hereto and incorporated
herein by reference are as follows:
A Legal Description
B Form of Deed
C Form of Xxxx of Sale
D Form of Assignment and Assumption of Service
Contracts
26
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
PURCHASER: JDL ENTERPRISES, LLC,
a Washington limited liability company
By /s/ Xxxx Xxxxx
--------------------------------
Xxxx Xxxxx, Manager
Date Signed: October 19, 2001
SELLER: HECLA MINING COMPANY, a Delaware corporation
By /s/ Xxxxxxx X. Xxxxx
----------------------------------
Its: Vice President - General Counsel
Date Signed: October 17, 2001
