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EXHIBIT 10.9
REAL ESTATE PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
BETWEEN : GI JOES, INC., an Oregon corporation "Seller",
AND : PD PROPERTIES, L.L.C. an Oregon limited liability company,
"Purchaser".
DATED : April 17, 1997
Seller is the owner of the real properties described on Exhibit A. Such
real property, together with all of the improvements and fixtures thereon, other
than trade fixtures, and all rights appurtenant to such real property are
referred to herein as the "Properties."
Purchaser agrees to purchase from Seller and Seller agrees to sell to
Purchaser the Properties upon the following terms and conditions:
1. Purchase Price.
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1.1 The total purchase price for the Properties shall be One Million
Seven Hundred Seventy-Five Thousand Dollars ($1,775,000). The Purchase Price
shall be payable, in full, at closing.
1.2 The Purchase Price shall be allocated among the various properties
comprising the Properties in the manner set forth in Exhibit "B."
2. Closing.
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2.1 This sale shall be closed within five (5) business days after all
conditions precedent to closing have been satisfied or waived by the party
benefitted by such condition (the "Closing Date").
2.2 The closing shall occur in escrow through Pacific Northwest Title
of Oregon, Inc. ("Escrow Agent").
2.3 On or before the Closing Date, Seller shall deliver or cause to be
delivered to Escrow Agent the following documents or instruments, each of which
shall be in form and substance reasonably acceptable to Purchaser:
a. A statutory warranty deed or statutory warranty deeds, duly
executed and acknowledged, conveying the Properties to
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Purchaser free and clear of all liens or encumbrances other
than those exceptions identified pursuant to Section 6.1 of this
Purchase and Sale Agreement as Approved Exceptions.
b. An Assignment, duly executed and acknowledged, in the form of
Exhibit "C", assigning to Purchaser all of Seller's interests in
plans, permits, licenses and intangible attributes of the
Properties.
c. A lease, duly executed, in the form of Exhibit "D" plus
memoranda thereof, duly executed and acknowledged, in the form of
Exhibits "E".
d. A duly executed Transferor's Certificate of Non-Foreign
Status.
2.4 On or before the Closing Date, Seller shall deliver to Purchaser,
outside of escrow, for each of the Properties or relating to any of such
properties, originals or legible copies of all architectural or engineering
plans or specifications, drawings, permits, studies, warranties, contracts,
agreements, licenses or similar writings relating to the operation of such
properties in the possession of Seller or reasonably accessible to Seller.
2.5 On or before the Closing Date, the Purchaser shall:
a. Cause to be deposited with the Escrow Agent, good, collected
funds equal to the Purchase Price plus all additional amounts to
be paid by Purchaser at closing.
b. Execute the Assignment delivered by Seller pursuant to
Sections 2.3(b) of this Purchase and Sale Agreement.
c. Execute the lease and memoranda delivered by Seller pursuant
to Section 2.3(c) of this Purchase and Sale Agreement.
2.6 At closing, Seller shall pay (a) all transfer charges or taxes,
(b) premiums for the title insurance policy or policies to be provided to
Purchaser (c) its share of all items to be pro-rated between Seller and
Purchaser, (d) one-half of all escrow fees and charges, and (e) recording fees
for the deeds and memorandum of lease.
2.7 At closing, Purchaser shall pay (a) one-half of all escrow fees
and charges and (b) its share of all items to be pro-rated between Seller and
Purchaser.
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3. Items to Be Pro-Rated.
3.1 All taxes levied against the Properties shall be pro-rated between
Seller and Purchaser as of closing.
3.2 All rentals, revenues or other income from any of the Properties
and all charges, costs or expenses relating to ownership of the Properties shall
be pro-rated between Seller and Purchaser as of closing.
4. Conditions Precedent to Closing.
4.1 Purchaser's obligation to close the purchase described in this
Purchase and Sale Agreement is contingent upon the timely satisfaction of each
of the following conditions precedent. These conditions are for the sole benefit
of Purchaser. Any of these conditions may be waived by Purchaser but only if
such waiver is in a writing signed by Purchaser.
a. The Escrow Agent shall have delivered evidence, in form and
substance reasonably satisfactory to Purchaser, that, upon
delivery and recordation of documents provided to it by Seller,
it will be in position to issue to Purchaser the title insurance
described in Section 6 of this Purchase and Sale Agreement free
and clear of exceptions to which Purchaser has objected, pursuant
to Section 6.1 of this Purchase and Sale Agreement.
b. Purchaser shall have received a Level I Environmental
Assessment Report for each of the Properties together with the
items to be delivered to Purchaser pursuant to the terms of this
Purchase and Sale Agreement and, based upon its review thereof,
be satisfied, in its sole discretion, that the Properties is
contaminated or adversely affected by the presence of any
Hazardous Substances.
c. Purchaser shall have completed its investigation and
inspection of each of the Properties and be satisfied, in its
sole discretion, with the condition of each such property.
d. Each of the representations and warranties made by Seller in
this Purchase and Sale Agreement shall be true as of closing.
e. Seller shall have performed each material agreement to be
performed by Seller under the terms of this Purchase and Sale
Agreement.
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f. At the Closing Date, there shall have been no material adverse
change in the physical condition of any of the Properties.
4.2 Seller's obligation to close the purchase describe in this
Purchase and Sale Agreement is contingent upon the timely satisfaction of each
of the following conditions precedent. These conditions are for the sole benefit
of Seller. Any of these conditions may be waived by Seller but only if such
waiver is in a writing signed by Seller.
a. Purchaser shall have duly performed each material agreement to
be performed by Purchaser under the terms of this Purchase and
Sale Agreement.
b. Each of the representations and warranties made by Purchaser
in this Purchase and Sale Agreement shall be true as of closing.
4.3 Both Purchaser's and Seller's obligation to close the purchase
described in this Purchase and Sale Agreement are contingent upon the timely
satisfaction of each of the following conditions precedent. These conditions are
for the mutual benefit of Purchaser and Seller. Any of these conditions may be
waived, but only if such waiver is in a writing signed by both Purchaser and
Seller.
a. Seller and Xxxxx Orkney shall have entered into a binding
Stock Redemption Agreement, in form and substance satisfactory to
Purchaser in Purchaser's sole discretion
b. All of the conditions precedent to consummation of the
transaction described in the Stock Redemption Agreement, other
than conditions relating to the closing of the transaction
described in this Purchase and Sale Agreement shall have been
satisfied or waived by the party benefited by such condition.
c. The transaction described in this Purchase and Sale Agreement
and the transaction contemplated by the Stock Redemption
Agreement shall have been duly approved by the Board of Directors
of Seller and by all other parties whose approval would be
necessary to make the Stock Redemption Agreement binding upon all
parties thereto.
4.4 If any of the conditions set forth in this Section 4 are not
satisfied or waived by the party benefitted by such condition prior to April 24,
1998, this Purchase and Sale Agreement may be terminated by either party by
written notice to
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the other party. Upon termination, Purchaser shall return to Seller all
documents delivered to Purchaser by Seller.
5. Seller's Representations and Warrantees. Seller makes the following
representations and warranties to Purchaser. Each representation and warranty is
made as of the date of this Purchase and Sale Agreement and, as of Closing,
shall constitute a representation or warranty made as of the date of closing.
5.1 Seller is a corporation duly organized, validly existing and in
good standing under the laws of Oregon. This Purchase and Sale Agreement and all
actions contemplated herein have been duly authorized by all requisite action
and is the legal, valid and binding obligation of Seller enforceable according
to its terms, except to the extent that the enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the rights of creditors
generally and subject to the exercise of judicial discretion in accordance with
general principles of equity. No consent of any party or entity, other than
consents which will be provided as part of the Closing, is required in
connection with Seller's execution and delivery of this Purchase and Sale
Agreement or its performance of its obligations hereunder.
5.2 There are no pending, threatened or, to Seller's best knowledge
after due inquiry, contemplated actions, suits, claims or other proceedings
affecting the Properties Property or in which Seller is, or to the best of
Seller's knowledge, will be a party by reason of Seller's ownership or operation
of the Properties.
5.3 To the best of Seller's knowledge, there is not any plan, study or
effort by any governmental authority having jurisdiction over any of the
Properties that would in any way materially affect the current use of such
properties or any public improvements that would result in any charge being
levied against or a lien assessed upon such properties.
5.4 Seller has not received any notice, nor is Seller aware of, any
violations of governmental regulations relating to the Properties or the use by
Seller thereof.
5.5 Other than the amounts disclosed by the Title Reports prepared by
the Escrow Agent, there are no real property taxes that have been or will be
assessed against the Properties for the current tax year. There are no special
assessments or charges that have been levied against such properties or that
will result from work, activities, or improvements done to such properties by
Seller.
5.6 Seller is the legal fee simple title holder of each of the
Properties and has good, marketable and insurable title to each of the
Properties, free and clear
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of all liens, encumbrances, claims, covenants, conditions, restrictions,
easements, rights of way, option, or other matters except as disclosed by the
Title Reports.
5.7 There is no encroachment on any of the Properties by improvements
located on such properties not included with such properties. Purchaser will
have legal access to and from each of the Properties to a dedicated public
street. Each of the Properties constitutes one or more separate legal lots.
5.8 Each document, schedule or statement provided by Seller to
Purchaser relative to the Properties fairly represents the information set forth
in a manner that is not misleading and will be true, complete and correct in all
material respects on the date of delivery and upon the Closing Date except as
they may be qualified, updated, or supplemented in writing prior to the Closing
Date.
5.9 Seller is not a foreign person, foreign corporation, foreign
partnership, foreign trust or foreign estate within the meaning of Section 1445
of the Internal Revenue Code.
5.10 The Environmental Warranty contained in Section 7 of this
Purchase and Sale Agreement constitutes an additional Seller's warranty.
6. Title Insurance.
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6.1 Escrow Agent has provided Purchaser with a Preliminary Commitment
for Title Insurance for each of the Properties (the "Title Reports"). All
financial exceptions shown as exceptions to the Title Reports are to be removed
prior to or as part of the Closing, unless Purchaser elects, in writing, to take
the Properties subject to such exceptions. Exceptions shown on the Title
Reports, other than financial exceptions, shall be Approved Exceptions.
6.2 As soon as possible after Closing, Seller shall cause the Escrow
Agent to deliver to Purchaser, at Seller's expense, an Owner's ALTA policy of
title insurance or policies of title insurance, with ALTA extended coverage
endorsements, access endorsements and such other endorsements as Purchaser, at
Purchaser's expense, may specify, in the amount of the purchase price, insuring
Purchaser against loss or damage sustained by Purchaser by reason of the
unmarketability of Purchaser's title, or liens or encumbrances thereon, except
matters contained in the usual printed exceptions in such title insurance
policies, and the Approved Exceptions.
7. Environmental Warranty.
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7.1 For purposes of this Purchase and Sale Agreement, the term
"Hazardous Substance" means any hazardous or toxic substance, material or waste
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that is or becomes regulated by any governmental authority having jurisdiction
over any of the Fee Properties. The term "Hazardous Substances" includes but is
not limited to any material or substance that is (a) a "hazardous substance"
pursuant to the terms of the Comprehensive Environmental Response, Compensation
and Liability Act ("CERCLA") or the Federal Water Pollution Control Act, (b) a
"hazardous waste" pursuant to the terms of the Resource Conservation and
Recovery Act ("RCRA"), (c) a toxic pollutant pursuant to the Federal Water
Pollution Control Act, (d) a "hazardous air pollutant" pursuant to the Clean Air
Act, (e) a "hazardous material" under the Hazardous Materials Transportation
Uniform Safety Act of 1990, (f) toxic or hazardous pursuant to regulations
promulgated under any of the aforementioned laws, or (g) a risk to the
environment under other applicable federal, state or local laws, ordinances or
regulations. Hazardous Materials specifically includes, but is not limited to,
asbestos, polychlorinated biphenyls ("PCB's), petroleum and petroleum-based
derivatives and urea formaldehyde.
7.2 To the best of Seller's knowledge, after due investigation and
inquiry, all operations or activities upon, or use or occupancy of, the
Properties by Seller or by any prior or current tenant or occupant or prior
owner, is or was in all material respects in compliance with all applicable
federal, state and local laws, ordinances or regulations relating to the
generation, handling, manufacturing, treatment, storage, use, transportation,
spillage, leakage, dumping, discharge or disposal of any Hazardous Substance and
neither Seller nor any prior or current tenant or prior owner or occupant of the
Properties has engaged in or permitted any release, dumping, discharge,
disposal, spillage or leakage of a Hazardous Substance at, on in or about such
properties except in compliance with applicable laws, ordinances and
regulations.
7.3 There is not present upon any of the Properties any Hazardous
Substance in quantities or concentrations that exceed those permitted by
applicable laws, ordinances and regulations.
7.4 There is no proceeding or inquiring by any governmental authority
having jurisdiction over any of the Properties with respect to the presence of
any Hazardous Substance on or under any of the Properties.
8. Indemnification.
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8.1 Seller shall indemnify Purchaser against and shall hold Purchaser
harmless from all claims, demands, liabilities, losses, damages, costs and
expenses, including but not limited to reasonable attorney fees and costs
incurred by Purchaser and relating to or arising out of any act, event or matter
the existence or occurrence of
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which constitutes a breach by Seller of one or more representation, warranty or
covenant of Seller under the terms of this Purchase and Sale Agreement.
8.2 Purchaser shall indemnify Seller against and shall hold Seller
harmless from all claims, demands, liabilities, losses, damages, costs and
expenses, including but not limited to reasonable attorney fees and costs
incurred by Purchaser and relating to or arising out, of any act, event or
matter the existence or occurrence of which constitutes a breach by Purchaser of
one or more representation, warranty or covenant of Purchaser under the terms of
this Purchase and Sale Agreement.
9. Seller's Affirmative Pre-Closing Obligation. Prior to closing:
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9.1 Seller shall permit Purchaser and Purchaser's agents, at
reasonable times, upon reasonable notice to Purchaser and without undue
interference with the rights of tenants, to enter upon the Properties to inspect
such property.
9.2 Seller shall make available to Purchaser and Purchaser's agents
all of its books, records and files relating to the Properties at any time
during Seller's regular office hours upon reasonable notice from Purchaser.
9.3 Prior to closing, Seller will not make or permit others to make
any material alterations to the Properties.
9.4 Seller shall promptly notify Purchaser of any material change in
the physical condition of any of the Properties. Seller shall, prior to closing,
repair any damage to any of such properties. If such damage cannot reasonably be
repaired prior to closing, the Purchase Price shall be adjusted to reflect the
diminution in value, provided, however, if such damage is covered by insurance,
there shall be no adjustment in the Purchase Price upon assignment to Purchaser
of all rights to insurance proceeds relating to such damage.
9.5 Seller shall keep each of the Properties free and clear of all
liens or encumbrances other than Approved Encumbrances, and shall, prior to the
Closing date, obtain waivers of the right to assert any lien from anyone who
might be entitled to assert a lien against such properties for work performed or
materials supplied to such properties or obtain a surety bond protecting the
property from the imposition of such a lien.
10. Notice. Any notice under this Purchase and Sale Agreement shall be in
writing and shall be effective upon the earliest of (a) when actually received
by the party to whom the notice is directed, or (b) when deposited in the mail,
registered or certified, addressed to the parties at the address first set forth
above for the party to whom the notice is directed or such other addresses as
either party may designate by
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written notice to the other or (c) when received on a facsimile machine in
operation at such address.
11. Assignment. This Purchase and Sale Agreement shall be binding upon and
inure to the benefit of the parties, their successors and assigns.
12. Costs and Professional Fees. In the event suit or action is instituted
to enforce any of the terms of this Purchase and Sale Agreement, the prevailing
party shall be entitled to recover from the other party such sum as the court
may adjudge reasonable as attorneys' fees at trial, including any proceeding in
Bankruptcy Court or on appeal of such proceeding, suit or action, engineering
and accounting fees and cost plus all other sums provided by law.
13. Consulting Fee / Agents. Neither party has acted through any broker,
finder or consultant and neither party shall have any liability for any
commission or other fee based upon any claim arising out of any statement,
representation or agreement made by the other party.
14. Prior Agreements. This document and the other documents expressly
referred to herein is the entire, final and complete agreement of the parties
pertaining to the sale and purchase of the Fee Property and Seller's interest in
the Subleased Property, and supersedes and replaces all written and oral
agreements heretofore made or existing by and between the parties or their
agents concerning the Property. This Purchase and Sale Agreement may not be
modified nor may any obligation be waived except by a written instrument signed
by the duly authorized representative of the party to be charged.
15. Release and Indemnity of the Escrow Agent. Purchaser and Seller hereby
release and shall jointly and severally indemnify, defend and hold Escrow Agent
harmless from any loss or expense, including reasonable attorney fees, that it
may suffer by reason of any litigation or controversy involving the transaction
referred to in this Purchase and Sale Agreement, except for such losses or
expenses as may arise from Escrow Agent's negligent or willful conduct. If
conflicting demands are made upon Escrow Agent with respect to this Purchase and
Sale Agreement, the Escrow Agent shall be entitled to file a suit in
interpleader and obtain an order requiring the parties to interplead and
litigate their several claims and rights among themselves.
16. Statutory Notice.
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THE PROPERTY DESCRIBED IN THIS INSTRUMENT MAY NOT BE WITHIN A FIRE
PROTECTION DISTRICT PROTECTING STRUCTURES. THE PROPERTY IS SUBJECT TO
LAND USE LAWS AND
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REGULATIONS, WHICH, IN FARM OR FOREST ZONES, MAY NOT AUTHORIZE
CONSTRUCTION OR SITING OF A RESIDENCE AND WHICH LIMIT LAWSUITS AGAINST
FARMING OR FOREST PRACTICES AS DEFINED IN ORS 30.930 IN ALL ZONES.
BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE
TITLE TO THE PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR COUNTY
PLANNING DEPARTMENT TO VERIFY APPROVED USES AND EXISTENCE OF FIRE
PROTECTION FOR STRUCTURES.
This Purchase and Sale Agreement signed as of April 17, 1998.
G.I. JOES, INC. PD PROPERTIES L.L.C.
By /s/ By /s/
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Its President Its manager
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EXHIBIT A
LEGAL DESCRIPTIONS
PARCEL I - SOUTH SALEM
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Beginning at an iron pipe marking the Southeast corner of Xxx 0, XXXXXXXX
XXXXX XXXXXX XX. 0, xx Xxxxxx Xxxxxx, Xxxxxx; thence South 89(0)43'56" West
along the South line of said Lot 9, a distance of 378.85 feet to an iron
rod marking the Southwest corner of that tract of land described in Volume
636, Page 628, Deed Records for Xxxxxx County, Oregon; thence North
00(0)37'15" East along the West line of said Tract, a distance of 310.70
feet; thence North 89(0)43'56" East parallel with the South line of said
Lot 9, a distance of 282.00 feet; thence South 0(0)16'04" East 15.67 feet;
thence North 89(0)43'56" East parallel with the South line of said Lot 9, a
distance of 271.94 feet to a point on the Westerly right of way line of
Xxxxxxxxxx Xxxxxx (Xxxxxxx Xxxxxxx 00 Xxxx); thence Southeasterly along
said right of way line on the arc of a 11509.16 foot radius curve to the
left (the chord of which bears South 19(0)44'44" East 138.73 feet) a
distance of 138.73 feet to an iron pipe; thence South 11(0)56'15" East
continuing along said right of way line, a distance of 83.00 feet; thence
South 89(0)43'56" West a distance of 142.83 feet; thence South 00(0)16'04"
East a distance of 83.00 feet to a point on the South line of Xxx 0, xx
xxxx Xxxxxxxx Xxxxx Xxxxxx Xx. 0; thence South 89(0)46'32" West along the
South line of said Lot 7, a distance of 100.13 feet to the point of
beginning.
EXCEPTING THEREFROM the following: Beginning at an iron rod on the South
line of Xxx 0, Xxxxxxxx Xxxxx Xxxxxx Xx. 0, in Xxxxxx County, Oregon, which
is 53.85 feet South 89(0)43'56" West from the Southeast corner of said Lot
9; thence South 89(0)43'56" West along the South line of said Lot 9, a
distance of 325.00 feet to an iron rod marking the Southwest corner of that
tract of land described in Volume 636, Page 628, Deed Records; thence North
00(0)37'15" East along the West line of said Tract, a distance of 15.00
feet; thence North 89(0)43'56" East parallel with the South line of said
Lot 9, a distance of 325.00 feet; thence South 00(0)37'15" West 15.00 feet
to the point of beginning.
PARCEL II - FOREST GROVE
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A tract of land in the Northeast one-quarter of Section 5, Township 1
South, Range 3 West of the Willamette Meridian in the City of Forest Grove,
County of Washington and State of Oregon, more particularly described as
follows:
Beginning on the Ore. Baseline 1337.3 feet East of the 1/4 Section corner
on the North line of said Section 5, also being a point 654.0 feet East of
the West line of the
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East 1/2 of the Wm. W. Catching Donation Land Claim #38 and being on the
North line of that tract of land described in Warranty Deed to G.I. Joe's,
Inc., an Oregon corporation, recorded October 7, 1985 as Recorder's Fee No.
85039713; thence East along the North line of said G.I. Joe's, Inc. tract
to the Northeast corner thereof, thence South 01(0)00'13" West 30 feet more
or less, to the South right of way line of Tualatin Valley Highway (TV HWY)
and the true point of beginning; thence South 01(0)00'13" West a distance
of 200.03 feet to the to the most Northerly Northeast corner of that tract
of land described in Statutory Warranty Deed to Xxxxxxx Development
Company, an, Oregon corporation, recorded August 29, 1995 as Recorder's Fee
No. 95060747; thence West along the North line of said Xxxxxxx tract a
distance of 350.18 feet to the Northwest corner of said Xxxxxxx tract said
point also being the West line of the aforementioned G.I. Joe's tract;
thence North 00(0)12'33" East along the said West line of said G.I. Joe's
Tract to the South right of way line of said TV HWY; thence East along said
South right of way line to the point of beginning.
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REAL ESTATE PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
EXHIBIT "B"
ALLOCATION OF PURCHASE PRICE
PARCEL I - SOUTH SALEM $1,625,000
PARCEL II - FOREST GROVE $ 100,000
PARCEL III - GRANTS PASS $ 50,000
