REAL PROPERTY PURCHASE AND SALE AGREEMENT
THIS REAL PROPERTY PURCHASE AND SALE AGREEMENT ("Agreement") is executed
this _____ day of January, 1997, by and between XXXXXX/XXXXX REALTY CO. L.L.C.,
a limited liability company ("Purchaser") and R&J PARTNERS, a Washington general
partnership ("Seller").
Seller is the owner of certain land and improvements comprising
approximately 4.4 acres situated in the City of Kent, County of King, State of
Washington, located at 000 Xxxxx Xxxxxxx, Xxxx, Xxxxxxxxxx 00000 and more
particularly described below.
Seller currently leases the foregoing property to Xxxxxxxx Equipment, Inc.
("Xxxxxxxx"), which is a reorganized debtor under chapter 11 of the United
States Bankruptcy Code, 11 u.s.c. Section 1101 ET SEQ. in Case No. 96-02787
filed on March 13, 1996 in the United States Bankruptcy Court for the Western
District of Washington at Seattle.
In connection with the purchase by WESTERN POWER & EQUIPMENT CORP., an
Oregon corporation ("Western"), of certain property and assets (the "Assets"),
from Xxxxxxxx (all as more particularly described in that certain "Asset
Purchase Agreement" of approximately even date herewith), Purchaser desires to
purchase from Seller the real property described herein, on the terms and
conditions hereinafter set forth.
In consideration of the mutual acknowledgements, agreements, covenants,
representations and warranties as herein contained, Purchaser and Seller agree:
1. PROPERTY. The property to be purchased by Purchaser (the
"Property") shall consist of (i) that certain real property comprising
approximately 4.4 acres situated in the City of Kent, County of King, State
of Washington, located at 000 Xxxxx Xxxxxxx, Xxxx, Xxxxxxxxxx 00000 and more
particularly described on Exhibit A attached hereto and made a part hereof,
(ii) all improvements thereon, (iii) all personal property owned by Seller,
but not any personal property owned by Xxxxxxxx, located at said real
property, (iv) all shrubs, trees, and plants thereon, (v) all oil, gas, water
and mineral rights and shares of stock pertaining to water or mineral rights,
whether or not appurtenant thereto, owned by Seller, (vi) all easements,
rights of way, and other rights appurtenant thereto, and (vii) all permits
and contract rights relating to the operation of the Property.
2. CLOSING. "Closing" means the consummation of the transactions
contemplated by this Agreement, namely the purchase and sale of the Property.
"Closing Date" shall mean the date on which the Closing occurs. Closing shall
occur on or before six (6) months following the closing of the Asset Purchase
Agreement (although Purchaser's obligations to close shall remain subject to the
conditions precedent set forth in Section 8. below and Sellers obligations to
close shall remain subject to the conditions precedent set forth in Section 9.
below)) or such other date
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as may be mutually agreed upon by the parties, at the Seattle, Washington office
of Chicago Title Insurance Company (the "Title Company"). The Title Company
shall also act as escrow agent ("Escrow Agent").
3. PURCHASE PRICE. The consideration to be paid to Seller by Purchaser
for purchase of the Property (the "Purchase Price") shall be the average of (a)
the July 25, 1996 MAI appraisal of the Property obtained by Seller (appraised
value: $1,850,000.00), and (b) the approved MAI appraisal of the Property to be
obtained by Purchaser; provided, that if the foregoing two appraisals differ by
more than ten percent (10%) of the lower of the two appraisals, then the parties
will jointly select a third MAI appraiser to determine the Purchase Price of the
Property. The cost of such third MAI appraiser shall be shared equally between
the parties.
4. TITLE.
a. TITLE BEFORE CLOSING.
i. PRELIMINARY TITLE REPORT. Seller shall, at Seller's expense,
within ten (10) days after the execution of this Agreement, furnish to Purchaser
a title commitment or preliminary title report applicable to the Property (the
"Title Report") issued by the Title Company, together with a copy of all items
listed as special exceptions in such Title Report.
ii. TITLE REPORT REVIEW. Purchaser has fifteen (15) days after
the date Purchaser receives the Title Report, to review the Title Report, and to
give written notice to Seller of any title matters, including special
exceptions, which are unacceptable to Purchaser (the "Title Objections"). If
Purchaser fails to object to any matter which is identified in the Title Report,
or to state any title indorsements which Purchaser desires, prior to the
expiration of the fifteen (15) day period, then, except for any security
instrument or lien affecting the Property, Purchaser shall be deemed to have
waived its right to object to any such matter or to the unavailability of any
such title indorsements, and each of such matters shall be deemed a permitted
title exception for purposes of this Agreement (all such matters, together with
those matters described in Section 4.v., collectively, the "Permitted
Exceptions"). Purchaser has ten (10) days after the date Purchaser receives any
supplemental reports (the "Supplemental Reports") from the Title Company to
review the Supplemental Reports, and at Purchaser's option, the Closing Date
will be postponed by the number of days necessary to give Purchaser three (3)
days to review any such Supplemental Reports. Purchaser may give Seller notice
of any additional Title Objections disclosed by the Supplemental Reports, which
were not of record or described in the Title Report on the effective date of the
Title Report. Upon receipt from Purchaser of a written notice of any Title
Objection, together with a copy of the underlying document evidencing such
matter, or of any requested title policy indorsement, Seller shall, within five
(5) days of receiving such notice, provide written notice to Purchaser that
Seller (a) will satisfy or correct, at Seller's expense, such Title Objection,
or cause the Title Company to issue the requested title indorsement at no cost
to Purchaser, or (b) refuses to satisfy or correct, in full or in part, such
Title Objection, stating with particularity which part of any Title Objection
will not be satisfied, or to make available such title indorsement. Seller will
be deemed to have agreed to satisfy or cure all Title Objections and to
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cause the Title Company to issue the required indorsements at no cost to
Purchaser except those of which it notifies Purchaser in writing as set forth
above that it will not satisfy or cure or cause to be issued.
iii. REFUSAL TO CURE. If Seller declines to satisfy or cure any
Title Objection or portion thereof or to make available a requested title
indorsement, then Purchaser shall have an additional fifteen (15) days after
receipt of Seller's written notice thereof in which Purchaser may elect either
to waive such Title Objections (which will then be added to the Permitted
Exceptions) or such title indorsement, or to terminate this Agreement with the
effect as set forth in Section 16(a) below.
iv. FAILURE TO CURE. As to those Title Objections which Seller
agrees, will be deemed to have agreed, or is otherwise required hereunder, to
satisfy or cure, Seller shall, on or before the Closing Date, satisfy or cure
same at its sole expense, and shall in addition satisfy, at its sole expense,
all security interests, liens or other monetary encumbrances affecting the
Property.
v. REMOVAL OF LIENS. Notwithstanding anything to the contrary
in this Agreement, Seller covenants and agrees that at or prior to Closing,
Seller shall (i) pay in full and cause to be canceled all loan security
documents which encumber the Property as of the date hereof, (ii) pay in full
and cause to be canceled and discharged or otherwise bond and discharge as liens
against the Property all mechanics' and contractors' liens which encumber the
Property as of the date hereof or which may be filed against the Property after
the date hereof and on or prior to the Closing Date (including without
limitation the lien(s) identified in Schedule 10.e attached hereto).
vi. PERMITTED EXCEPTIONS. Purchaser may not object to the
following title matters, all of which are considered "Permitted Exceptions":
(a) real property taxes or assessments due after Closing; (b) reserved oil
and/or mineral rights; (c) rights reserved in federal patents or state deeds;
and (d) governmental building and land use regulations, codes, ordinances and
statutes.
b. CONDITION OF TITLE. At Closing, Seller shall convey fee simple
title to the Property to Purchaser by statutory warranty deed (the "Statutory
Warranty Deed"), subject only to the Permitted Exceptions.
c. EVIDENCE OF TITLE. Seller shall, at Seller's expense, deliver to
Purchaser immediately upon receipt from the Title Company, an ALTA owner's
standard coverage policy of title insurance, Form B 1970 (revised 10/17/70) (the
"Title Policy"), issued by the Title Company containing all general exceptions
and the Permitted Exceptions, with a liability limit equal to the Purchase
Price.
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5. DELIVERIES FOR APPROVAL. Within ten (10) working days of the
execution of this Agreement, Seller shall deliver to Purchaser for Purchaser's
approval as to form and content, the following:
a. Copies of all maintenance, service and other agreements affecting
the Property (whether in the name of Seller or Seller's past or existing tenants
thereof).
b. Copies of all construction and equipment warranties affecting the
Property.
c. All plans, specifications, surveys, soils reports, environmental
assessments or other environmental studies, and calculations related thereto and
appraisals of the Property prepared prior to the date of this Agreement and in
the possession or subject to the control of Seller.
d. All certificates of occupancy, building permits, architect's
statements of completion and similar documents in possession or subject to the
control of Seller evidencing appropriate regulatory approval of the completion
of construction of improvements at the Property.
6. DELIVERIES AT CLOSING
a. SELLER'S DELIVERIES. At Closing, Seller shall deliver to Escrow
Agent, the following documents (all of which shall be duly signed and
acknowledged where required) and other deliveries (if appropriate):
i. Statutory Warranty Deed;
ii. Real Estate Excise Tax Affidavit, with respect to the deed;
iii. A certification that Seller is not a foreign person under
Section 1445 of the Internal Revenue Code of 1986, as amended (the "Code"), and
that Purchaser is not required to withhold a portion of the proceeds of the sale
contemplated hereby under such section of the Code;
iv. A certificate restating and reaffirming Seller's
representations and warranties pursuant to Section 10. hereof, with such changes
as shall be necessary to make such representations true, complete, and accurate
as of the date and time of Closing; and
v. Such other documents, if any, as may be reasonable requested
by Purchaser to enable Purchaser to consummate and close the transactions
contemplated by this Agreement pursuant to the terms and provisions and subject
to the limitations hereof.
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b. PURCHASER'S DELIVERIES. At Closing, Purchaser shall deliver to
Escrow Agent, the following documents (all of which shall be duly signed and
acknowledged where required by Purchaser, as appropriate) and other deliveries:
i. Real Estate Excise Tax Affidavit, with respect to the
Property;
ii. The entire Purchase Price in immediately available funds;
iii. A certificate restating and reaffirming Purchaser's
representations and warranties pursuant to Section 12. hereof, with such changes
as shall be necessary to make such representations true, complete, and accurate
as of the date and time of Closing; and
iv. The amount for prorations, if any is payable by Purchaser to
Seller in accordance with the provisions of Section 7. below, in immediately
available funds.
7. COSTS AT CLOSING
a. At Closing, Seller is responsible for payment of the following:
i. The cost of obtaining the Preliminary Title Report and the
Title Policy;
ii. Any real estate excise tax or any other sales or transfer
taxes;
iii. Any personal property excise tax or any other sales or
transfer taxes, (if any);
iv. One-half of the escrow fee; and
v. The costs of Seller's counsel.
b. At Closing, Purchaser is responsible for payment of the
following:
i. The costs of any endorsements to the Title Policy;
ii. One-half of the escrow fee;
iii. The costs of Purchaser's counsel; and
iv. The fee for recording the Statutory Warranty Deed.
c. Real estate taxes and assessments, personal property taxes, (if
any), rents, water and other utilities shall be prorated as of Closing by the
Escrow Agent.
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8. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATION. Purchaser's
obligation to close the transactions contemplated by this Agreement is subject
to and contingent upon the following:
a. TITLE POLICY. The Title Company is prepared to issue the Title
Policy, subject only to the Permitted Exceptions.
b. APPROVAL OF DOCUMENTS. Purchaser's approval of all documents
required to be delivered to Purchaser pursuant to Section 5. of this Agreement,
(which approval shall be deemed to have been given unless Purchaser notifies
Seller in writing within twenty (20) days after mutual execution hereof)
c. CLOSING OF ASSET PURCHASE AGREEMENT. Closing of the transactions
contemplated by the Asset Purchase Agreement.
d. WARRANTIES AND REPRESENTATIONS. Each of Seller's warranties and
representations contained in Section 10. are true and correct as of the date of
this Agreement and as of the Closing Date.
e. COVENANTS. Each of Seller's covenants contained in Section 13.
have been performed in accordance with this Agreement.
f. LEASE. Delivery into escrow of a counterpart of the Lease
described in Section 15 hereinbelow, executed by Seller.
g. MECHANICAL INSPECTION; ENVIRONMENTAL ASSESSMENT. Purchaser's
review and approval within thirty (30) days following mutual execution hereof,
of: (i) a satisfactory inspection of all equipment, systems, and appliances at
the Property performed by a qualified engineer of Purchaser's choosing at
Purchaser's expense, which inspection reflects, to Purchaser's sole
satisfaction, that all equipment, systems, and appliances (including, without
limitation, heating, ventilation, plumbing, electrical and air conditioning
systems, and wiring, paving, roofing and other amenities) at the Property are in
good working order; and (ii) environmental assessment data provided by Seller
pursuant to Section 5 above and any other environmental assessment data provided
to Purchaser by a qualified environmental engineer of Purchaser's choosing at
Purchaser's expense. If on the expiration of such thirty (30) day period,
Purchaser has not satisfied itself as to the foregoing, Purchaser may either
terminate this Agreement (without such termination being deemed a default),
whereupon the parties shall have no further obligations toward each other, or
waive the condition. If Purchaser does not notify Seller in writing of the
failure of this condition, Purchaser shall be deemed to have satisfied or waived
it.
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h. REMEDIES. If on the Closing Date, any of these conditions are
not satisfied, Purchaser may: (i) refuse to close this transaction until such
condition is satisfied, (ii) terminate this Agreement in accordance with Section
16., or (iii) waive the condition, in writing, and close the transactions
contemplated by this Agreement. However, if the conditions described in
subsections 8(a), 8(d) or 8(e) above are not satisfied on the Closing Date for
any reason other than a default or breach hereunder by Purchaser, or if the
conditions described in subsections 8(b), 8(c) or 8(f) above are not satisfied
on the Closing Date due to Seller's breach or other default hereunder, Seller
shall be deemed in default hereunder and Purchaser shall have all rights and
remedies (including without limitation termination of this Agreement) set forth
in Section 17 below.
9. CONDITIONS PRECEDENT TO SELLER'S OBLIGATION. Seller's obligation to
close the transactions contemplated by this Agreement is subject to and
contingent upon the following:
a. CLOSING OF ASSET PURCHASE AGREEMENT. Closing of the transactions
contemplated by the Asset Purchase Agreement.
b. WARRANTIES AND REPRESENTATIONS. Each of Purchaser's warranties
and representations contained in Section 12. are true and correct as of the date
of this Agreement and as of the Closing Date.
c. COVENANTS. Each of Purchaser's covenants contained in Section
14. have been performed in accordance with this Agreement.
d. LEASE. Delivery into escrow of a counterpart of the Lease
described in Section 15 hereinbelow, executed by Western.
e. REMEDIES. If on the Closing Date, any of these conditions are
not satisfied, Seller may: (i) refuse to close this transaction until such
condition is satisfied, (ii) terminate this Agreement in accordance with Section
16., or (iii) waive the condition, in writing, and close the transactions
contemplated by this Agreement. However, if the conditions described in
subsections 9(b) or 9(c) above are not satisfied on the Closing Date for any
reason other than a default or breach hereunder by Seller, or if the conditions
described in subsections 9(a) or 9(d) above are not satisfied on the Closing
Date due to Purchaser's breach or other default hereunder, Purchaser shall be
deemed in default hereunder and Seller shall have all rights and remedies
(including without limitation termination of this Agreement) set forth in
Section 17 below.
10. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby makes the
following representations and warranties to Purchaser, which representations
shall be true as of the Closing and shall survive the Closing and delivery of
the Statutory Warranty Deed:
a. The building and improvements on the Property, and all systems
therein, and the use being made thereof at Closing, conform to all fire, zoning,
health, environmental,
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subdivision, building, labor and other federal, state and local codes, laws,
rules and regulations, and there are no violations thereof with respect to the
Property not heretofore removed or corrected; and Seller has received no notices
of any action or government proceeding in eminent domain, zoning change or
otherwise, which would affect the Property; nor does Seller know of any fact
which might give rise to such proceeding.
b. No part of any improvements on the Property encroaches upon any
property adjacent thereto or upon any easements, nor are there any encroachments
upon the Property.
c. There are no leases or rental agreements affecting the Property,
and (b) no party has any right to the present or future possession or use of the
Property other than Seller.
d. There are no maintenance, advertising, management, leasing,
employment, service, or other contracts affecting the Property which will be in
effect at Closing, other than those evidenced by copies delivered to Purchaser
by Seller prior to Closing, pursuant to Section 5. above, and which must be
assigned to Purchaser at Closing pursuant to an assignment document reasonably
acceptable to Purchaser and Seller.
e. All equipment, systems, and appliances at the Property are in
good working order, including, without limitation, heating, ventilation,
plumbing, electrical and air conditioning systems, and wiring, paving, roofing
and other amenities.
f. All applicable permits, declarations, and other evidences of
compliance from regulatory authorities required to be obtained at the Property,
the sale of the Property to Purchaser, and the operation and use of the
Property, including, without limitation, those regulating the division of real
property and environmental matters, have been obtained; the improvements have
been constructed pursuant to contracts which are in accordance with such
permits, declarations and evidences of compliance; all warranties (which have
not by their terms expired) in favor of Seller from contractors having
constructed said improvements are in full force and effect; to the best of
Seller's knowledge, there are no defects in said improvements or the materials
or workmanship furnished in the construction thereof; to the best of Seller's
knowledge, said improvements were constructed in substantial conformity with the
plans and specifications of said improvements transferred to Purchaser on or
before Closing; and to the best of Seller's knowledge, said improvements were
not constructed with and do not contain any materials containing asbestos, urea
formaldehyde or other hazardous substances.
g. Other than as set forth in Schedule 10.e. (which shall be
satisfied, cured or otherwise removed from title to the Property by Closing),
there are no mechanics', materialmen's or similar claims or liens presently
claimed or which will be claimed against the Property for work performed or
commenced prior to Closing. Seller agrees to hold Purchaser harmless from all
costs, expenses, liabilities, losses and charges arising from or relating to any
such lien or any similar lien claimed against the Property and arising from work
performed or commenced prior to Closing.
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h. All documents delivered to Purchaser on or before Closing are
true and correct copies of the originals of such documents. The original
documents have not been amended or modified, other than as evidenced in copies
of documents delivered to Purchaser. No documents that should have been set
forth as exhibits hereto or copies of which should have been delivered to
Purchaser on or before Closing have not been so set forth or delivered. Seller
has not failed to state or disclose any material fact.
i. Seller has the capacity and requisite authority to enter into and
carry out this Agreement and the transactions contemplated hereby.
j. Seller does not have knowledge of any brokerage commission,
finder's fee or like payment arising out of or in connection with the purchase
and sale of the Property. Seller hereby indemnifies and holds Purchaser
harmless from any claim, liability, loss or expense for any brokerage
commission, finder's fee, acquisition fee, or like payment asserted against
Purchaser in connection with the sale of the Property to Purchaser pursuant to
this Agreement.
k. Except for Xxxxxxxx'x pending bankruptcy case, there is no suit,
action or arbitration, or legal or other proceeding or governmental
investigation pending which affects the Property.
l. Seller is not a foreign person, nonresident alien, foreign
corporation, foreign partnership, foreign trust, or foreign estate, as those
terms are defined in the Internal Revenue Code and the Income Tax Regulations
promulgated thereunder. At Closing, Seller shall deliver to Purchaser a
certificate of non-foreign status in form required by the Income Tax Regulations
and reasonably acceptable to Purchaser. In the event Seller shall not deliver
such certificate to Purchaser at Closing, Purchaser may withhold 10% of the
Purchase Price and submit such withholding to the Internal Revenue Service
pursuant to Section 1445 of the Internal Revenue Code.
As to the representations and warranties contained in Section 10.b. above,
Purchaser acknowledges that Seller has not obtained, and is not required by
Purchaser, for the purposes of making that representation and warranty, to
obtain an ALTA or similar survey of the Property, is making those
representations and warranties without any such or similar survey, and is not
required to obtain an ALTA or similar survey in order to have conducted
"diligent inquiry".
11. [intentionally deleted.]
12. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser hereby makes
the following representations and warranties to Seller, which representations
shall be true as of the Closing and shall survive the Closing and delivery of
the Statutory Warranty Deed:
a. Purchaser has the capacity and requisite authority to enter into
this Agreement, perform its obligations, and carry out and consummate the
transactions contemplated hereby.
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b. Purchaser does not have knowledge of any brokerage commission,
finder's fee or like payment arising out of or in connection with the purchase
and sale of the Property. Purchaser hereby indemnifies and holds Seller
harmless from any claim, liability, loss or expense for any brokerage
commission, finder's fee, acquisition fee, or like payment asserted against
Seller by anyone claiming through Purchaser in connection with the sale of the
Property to Purchaser pursuant to this Agreement.
13. COVENANTS OF SELLER. Seller shall observe the following covenants:
a. ADVICE OF CHANGES. Between the date of this Agreement and the
Closing Date, Seller shall advise Purchaser promptly in writing of any fact,
which, if known at the date of this Agreement, would have been required to be
set forth or disclosed in or pursuant to this Agreement, or which constitutes a
breach of any provision of this Agreement.
b. CONDUCT OF BUSINESS. Pending the Closing, Seller shall conduct
its affairs in the ordinary course; PROVIDED that Seller shall not enter into
any transaction, take any action, or omit to take any action, any of which would
result in (i) any of the representations and warranties of Seller becoming not
true and correct at and as of (a) the time immediately after such transaction,
action or omission was entered into, taken or not taken, or (b) the Closing
Date, or (ii) Seller being unable to perform its obligations under this
Agreement, including carrying out and consummating the transactions contemplated
by this Agreement.
c. NO ENCUMBRANCES. Except as may have been otherwise expressly
provided herein, Seller shall not further encumber the Property or any of the
improvements or personal property thereon.
14. [Intentionally deleted].
15. LEASE. Contemporaneously with the execution of this Agreement, Seller
shall lease the Property to Western pursuant to that certain lease in the form
attached hereto as Exhibit B, and incorporated herein by this reference
("Lease").
16. TERMINATION.
a. CIRCUMSTANCES OF TERMINATION. In addition to any and all
remedies available to the parties pursuant to Section 17 below, this Agreement
may be terminated at any time prior to the Closing Date:
i. by mutual consent of Purchaser and Seller;
ii. by Purchaser pursuant to Section 4(a)(iii), (iv) or (v), or
Section 8(h);
iii. by Seller pursuant to Section 9(e);
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iv. by either Purchaser or Seller if there has been a material
misrepresentation, material breach of warranty or material breach of covenant on
the part of the other party with respect to the representations and warranties
or covenants set forth in this Agreement, which misrepresentation or breach has
not been cured (assuming such cure is possible) within three (3) days (or such
longer period necessary to cure, provided such party immediately and diligently
pursues such cure) after written notice thereof has been delivered to such other
party;
v. upon the termination of the Asset Purchase Agreement, at the
option of the non-breaching party, for breach or default by the breaching party;
vi. By Seller if the Lease is terminated due to a default
thereunder by Western, and by Purchaser if the Lease is terminated due to a
default thereunder by Seller;
vii. by either Purchaser or Seller if the transactions
contemplated hereby have not been consummated by the end of the period in which
Closing is required to occur pursuant to Section 2 above (even if either party
is diligently pursuing cure under Section 16.a.iv.); provided that neither
Purchaser nor Seller is entitled to terminate this Agreement pursuant to this
Section 16.a.vii. if the act or failure to act of such party, or of any entity
affiliated with that party, has prevented the consummation of the transactions
contemplated hereby.
b. EFFECT OF TERMINATION. If this Agreement is terminated as
provided above, this Agreement will become void and of no further force or
effect, provided that the parties shall have any and all additional remedies
available pursuant to Section 17.
17. REMEDIES. The parties agree and acknowledge that the Property is of a
unique nature and that, in the event of a breach of or default under this
Agreement, monetary compensation may not fully compensate the non-breaching
party for its loss. In the event of any breach of this Agreement, the parties
agree that the non-breaching party may avail itself of any and all available
remedies, at law or in equity, including injunctive relief, the right to
specific performance of the terms of this Agreement, and the right to xxx for
damages notwithstanding any termination hereof (provided that any recovery by
either party for damages shall be limited to actual damages, excluding
incidental or consequential damages).
18. INDEMNIFICATION.
a. SELLER'S INDEMNITY. Seller shall indemnify and defend Purchaser
(and Purchaser's affiliates) and hold Purchaser (and Purchaser's affiliates)
harmless from and against any claims, demands, causes of action, debts,
liabilities, judgments, losses, damages and expenses, and attorneys' fees and
court costs (collectively, the "Claims") incurred by Purchaser (or any of
Purchaser's affiliates) on account of (a) Claims by persons or entities other
than Purchaser (or any of Purchaser's affiliates) arising out of or in
connection with the ownership, operation or maintenance of the Property by
Seller (or any of Seller's affiliates or tenants), or any fact, circumstance or
event which occurred, prior to the Closing Date; and (b) Claims resulting
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from or arising directly or indirectly, in whole or in part, out of the breach
of any representation, warranty, covenant or agreement of Seller contained in
this Agreement. However, the obligations of Seller hereunder do not apply to,
and Seller is not liable to Purchaser (or any of Purchaser's affiliates) in
respect of, any Claim to the extent resulting from or arising directly or
indirectly, in whole or in part out of: (i) Western's right to use and occupy
the Property under the Lease (or any agreement or arrangement in substitution
therefor or replacement thereof) at any time prior to the Closing Date, or (ii)
the breach of any representation, warranty, covenant or agreement of Seller
contained in this Agreement, if prior to Closing, Purchaser had knowledge of
such breach or if Seller disclosed the existence of such breach to Purchaser
pursuant to Section 13 of this Agreement, and Purchaser chose, with such
knowledge, to close the transactions contemplated by this Agreement. The
indemnities herein shall survive the Closing and delivery of the Statutory
Warranty Deed.
b. PURCHASER'S INDEMNITY. Purchaser shall indemnify and defend
Seller and hold Seller (and Seller's affiliates) harmless from and against any
Claims incurred by Seller (or any of Seller's affiliates) on account of (a)
Claims by persons or entities other than Seller (or any of Seller's affiliates)
arising out of or in connection with the use or occupation of the Property by
Western between the date of mutual execution hereof and the Closing Date; (b)
Claims by persons or entities other than Seller (or any of Seller's affiliates)
arising out of or in connection with the ownership, operation or maintenance of
the Property during Purchaser's period of ownership; and (c) Claims resulting
from or arising directly or indirectly, in whole or in part, out of the breach
of any representation, warranty, covenant or agreement of Purchaser contained in
this Agreement. However, the obligations of Purchaser hereunder do not apply
to, and Purchaser is not liable to Seller (or any of Seller's affiliates) in
respect of, any Claim resulting from or arising directly or indirectly, in whole
or in part out of the breach of any representation, warranty, covenant or
agreement of Purchaser contained in this Agreement, if prior to Closing, Seller
had knowledge of such breach or if Purchaser disclosed the existence of such
breach to Seller pursuant to Section 14 of this Agreement, and Seller chose,
with such knowledge, to close the transactions contemplated by this Agreement.
The indemnities herein shall survive Closing and delivery of the Statutory
Warranty Deed.
19. CONDEMNATION OR DESTRUCTION.
a. CONDEMNATION. Seller hereby represents and warrants that Seller
has no knowledge of any action or proceeding pending or instituted for
condemnation or other taking of all or any part of the Property by friendly
acquisition or statutory proceeding by any governmental entity. Seller agrees
to give Purchaser immediate written notice of such actions or proceedings that
may result in the taking of all or a part of the Property. If prior to Closing
all or any part of the Property is subject to a bona fide threat or is taken by
eminent domain or condemnation, or sale in lieu thereof, then Purchaser, by
notice to Seller given within twenty (20) days of Purchaser's receiving actual
notice of such threat, condemnation, or taking by any governmental entity, may
elect to terminate this Agreement. In the event Purchaser continues or is
obligated to continue this Agreement, Seller shall at Closing, assign to
Purchaser its entire right, title and interest in and to any condemnation award.
During the term of this Agreement, Seller shall not
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stipulate or otherwise agree to any condemnation award without the prior written
consent of Purchaser.
b. DAMAGE OR DESTRUCTION. Prior to Closing, Seller shall bear the
risk of loss of or damages to the Property by reason of any insured or uninsured
casualty. In the event of any material damage to or destruction of the
Property, the Improvements thereon or any portion thereof (notice of which shall
be given to Purchaser by Seller immediately upon its occurrence), which damage
or destruction is fully insured and can reasonably be repaired or replaced by
Seller prior to the Closing Date, Seller agrees to do so and in a manner
reasonably satisfactory to Purchaser. If such damage or destruction is material
and is not fully insured or if the repair or replacement of such material damage
or destruction cannot be reasonably be completed prior to the Closing Date,
Purchaser may, at its option, by written notice to Seller given within twenty
(20) days after Purchaser's receipt of all information reasonably requested
regarding the cost of restoration and the amount of insurance proceeds
available, (a) unilaterally terminate this Agreement or (b) elect to continue
this Agreement and purchase the Property, without any reduction of the Purchase
Price, but with an assignment to Purchaser in a form satisfactory to Purchaser
of all insurance proceeds otherwise payable to Seller (and the payment to
Purchaser of any deductible). In the event of nonmaterial damage to the
Property or any portion thereof (other than ordinary wear and tear), Seller
shall repair or restore the Property prior to the Closing, or if that is
impossible, promptly following the Closing. Such work shall be performed in a
good and workmanlike manner, shall be completed "broom clean" and lien free and
shall be to the reasonable satisfaction of Purchaser and its representatives.
c. POSTPONEMENT OF CLOSING. The Closing Date shall be postponed, if
necessary, to permit the full running of the respective twenty (20) day periods
described in Sections 20.a. and 20.b. above.
20. MISCELLANEOUS.
a. NOTICES. All notices, consents and approvals required by this
Agreement shall be either:
i. personally delivered; or
ii. placed in the United States mail, properly addressed and
with full first-class postage prepaid, certified mail with a return receipt; or
iii. delivered to an overnight services.
Said notices, consents and approvals shall be deemed received on the
earlier of (x) the date actually received, or (y) forty-eight (48) hours after
being mailed or delivered as described in ii. and iii. above.
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Said notices, consents and approvals shall be sent to the parties hereto at
the following addresses, unless otherwise notified in writing:
Seller: R&J Partners
00000 X.X. Xxx Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
and to: R&J Partners
00000 0xx Xxxxxx XX
Xxxxxxx Xxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
With a copy to: Xxxxx Xxxxxx Xxxxxxx P.L.L.C.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxxxxxx
Purchaser: XxXxxx-Xxxxx Realty Co. LLC
00000 XX Xxxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
With a copy to: Xxxxxx, Pepper & Shefelman
000 X.X. Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxxx
b. ATTORNEYS' FEES. In the event that either party hereto brings an
action or proceeding for a declaration of the rights of the parties under this
Agreement, for injunctive relief, or for an alleged breach or default of, or any
other action arising out of this Agreement or the transactions contemplated
hereby, the prevailing party in any such action shall be entitled to an award of
reasonable attorneys' fees and any court costs incurred in such action or
proceeding, in addition to any other damages or relief awarded, regardless of
whether such action proceeds to final judgment.
c. ENTIRE AGREEMENT AND AMENDMENTS. This Agreement, together with
any Exhibits referred to herein, constitute the final and complete expression
between the parties hereto and supersedes any and all prior arrangements or
understandings between the parties. This Agreement can be amended only by a
writing signed by Purchaser and Seller.
d. SEVERABILITY. The invalidity or unenforceability of a particular
provision of this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provision were omitted.
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e. COUNTERPARTS. This Agreement may be signed in one or more
counterparts, all of which taken together shall constitute one and the same
instrument.
f. EXHIBITS. All exhibits are hereby incorporated and made a part
hereof by this reference. Any exhibits which are not attached hereto upon
execution of this Agreement, shall be agreed to in form and content by Seller
and Purchaser. The parties shall jointly submit such agreed exhibits to the
Escrow Agent for attachment to this Agreement.
g. TIME OF THE ESSENCE. Time is of the essence in connection with
each and every provision of this Agreement.
h. CHOICE OF LAW. This Agreement and each and every related
document is to be governed by, and construed in accordance with, the laws of the
State of Washington. The venue of any action hereunder shall be in the
appropriate court in King County, Washington.
i. SUCCESSORS. Except as otherwise provided herein, the provisions
and covenants contained herein shall inure to and be binding upon the heirs,
successors and assigns of the parties hereto. However, Seller shall have no
right to assign any of its rights, privileges, duties or obligations under this
Agreement or to convey, transfer or otherwise encumber the Property prior to
Closing without the prior written consent of Purchaser. Purchaser shall be
entitled to assign Purchaser's interest under this Agreement to Western or any
affiliate of Purchaser.
j. SECTION HEADINGS. The headings of the Sections of this Agreement
are inserted solely for convenience of reference, and are not intended to
govern, limit or aid in the construction of any term or provision hereof.
k. WAIVER. No claim of waiver, consent or acquiescence with respect
to any provision of this Agreement shall be made against either party except on
the basis of a written instrument executed by or on behalf of such party.
l. FURTHER ACTIONS. Purchaser and Seller agree to execute such
further documents, and take such further actions, as may reasonably be required
to carry out the provisions of this Agreement, or any agreement or document
relating hereto or entered into in connection herewith.
m. MEMORANDUM. Purchaser and Seller agree to execute, and following
satisfaction or waiver of Purchaser's title and inspection contingencies set
forth in Sections 4 and 8(g) above, Purchaser may record a memorandum of this
Agreement in substantially the form attached hereto as Exhibit C to provide
constructive notice hereof. Purchaser and Seller also agree to execute a
Release of Memorandum in substantially the form attached hereto as Exhibit D and
to deliver same to Escrow Agent with instructions to redeliver such Release to
Seller in the event this Agreement is terminated without closing.
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IN WITNESS WHEREOF, the undersigned have executed this document as of the
day and year first hereinabove written.
PURCHASER: XxXXXX-XXXXX CO. LLC
---------------------------------
By:
[Print Name]
Its:
SELLER: R & J PARTNERS
---------------------------------
By:
[Print Name]
Its:
---------------------------------
By:
[Print Name]
Its:
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