EXHIBIT 10.H2
A S S I G N M E N T
Of Real Property Sale Contract
ASSIGNMENT made and entered into this 20th day of February, 1985,
by XXXXX X. XXXX and XXXXXXX X. XXXX, hereinafter called the Assignors, to
UNITED GROCERS, INC., an Oregon corporation, with office at 0000 Xxxx Xxxx,
Xxxxxxxxx, Xxxxxx, hereinafter called the Assignee.
WHEREAS, the Assignors entered into an agreement, hereinafter
referred to as a Real Estate Contract of Sale, with XXXXX XXXXXXX, located at
Tillamook County, State of Oregon (see attached Exhibit A for property
description, which by this reference is made a part hereof), dated November
15, 1980 (see attached Exhibit B), pursuant to which agreement PASTEGA agrees
to pay according to the terms of the agreement of ***ONE HUNDRED FIFTY FIVE
THOUSAND SEVEN HUNDRED AND NO/100 DOLLARS*** ($155,700.00) to the Assignors,
and
WHEREAS, UNITED GROCERS, INC., has established a security interest
in said Real Estate Contract of Sale supported by UCC Filing No. J84384
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WHEREAS, there is due and owing under said Real Estate Contract of
Sale ----------------------------------------------
WHEREAS, the Assignors have performed the obligations of said
PASTEGA's Real Estate Contract of Sale thereunder, and
WHEREAS, the Assignors are presently indebted to the Assignee in
the sum of ***NINETY THOUSAND AND NO/100 DOLLARS*** ($90,000.00) as evidenced
by an Installment Note dated February 20, 1985, with interest thereon at the
prevailing United Grocers, Inc. loan rate, it is therefore agreed:
1. ASSIGNMENT: To pledge as partial security for the said United
Grocers, Inc., Note and interest thereon, and any notes and obligations
hereafter incurred; the Assignors, XXXXX X. XXXX and XXXXXXX X. XXXX hereby
assign to the Assignee, UNITED GROCERS, INC., its successors and assigns, and
the Assignee, its successors and assigns, shall have the right to the monthly
payments if Assignors become in default under the terms and conditions of the
said Note between UNITED GROCERS, INC., XXXXX X. XXXX, and XXXXXXX X. XXXX,
and SMN COMPANY dba Sunset Thriftway, and in such event UNITED GROCERS, INC.,
shall also reserve all rights to receive such money or any part thereof and
the right to collect and demand with respect to the money due under the Real
Estate Contract of Sale.
2. POWER OF ATTORNEY: The Assignors hereby irrevocably appoint
the Assignee, its successors and assigns, its true and lawful attorney, to
collect and to receive all such moneys.
3. APPLICATION: The Assignors covenant that they have received
the sum of money advanced by the Assignee, as evidenced by an Installment Note
referred to above, in addition to the stipulated monthly payments.
4. WARRANTIES: The Assignors warrants that the balance now due or
hereafter to become due on the Real Estate Contract of Sale is $-------------
and that it has not made any prior assignments of any such moneys.
IN WITNESS WHEREOF, the Assignors have signed and acknowledged this
instrument in triplicate.
ASSIGNORS: ASSIGNEE:
/s/ Xxxxx X. Xxxx UNITED GROCERS, INC.
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Xxxxx X. Xxxx By /s/ X. X. Xxxxxxx
------------------------
X. X. Xxxxxxx, Assistant
Secretary
/s/ Xxxxxxx X. Xxxx
--------------------------
Xxxxxxx X. Xxxx
EXHIBIT "A"
A tract of land located in the Northeast quarter of Section 29 and
the Northwest quarter of Section 00, Xxxxxxxx 0 Xxxxx, Xxxxx 9 West,
Willamette Meridian, Tillamook County, Oregon.
Beginning at an iron rod which bears North 66 12'00" East 422.04
feet from the Northeast corner of the Xxxx X. Xxxxx D.L.C.; thence East 322.54
feet to an iron rod; thence South 1 degree 07' West 009.99 feet to an iron rod
on the North line of that tract of land described in Book 247, page 591,
Tillamook County Deed Records, said iron rod being North 89 degrees41' West
9.00 feet from the Northeast Corner of said tract; thence North 89 41' West
271.5 feet to an iron rod at the Northwest corner of that tract described in
Book 233, page 649, Tillamook County Deed Records; thence South 1 degrees07'
West 39.87 feet to an iron rod at the Northeast corner of that tract described
in Book [illegible], page 000, Xxxxxxxxx Xxxxxx Xxxx Xxxxxxx; thence following
the North line of said tract North 89 degrees46' West 51.01 feet to an iron
rod; thence North 1 degree 07' East 708.15 feet to the point of beginning.
CONTRACT OF SALE
THIS CONTRACT OF SALE made and entered into this 15th day of
November, 1980, by and between XXXXX X. XXXX and XXXXXXX X. XXXX, husband and
wife, hereinafter called Seller, and XXXXX XXXXXXX, hereinafter called
Purchaser.
WITNESSETH:
In consideration of the terms and conditions hereof and the sum of
One Hundred Fifty-five Thousand Seven Hundred Dollars ($155,700.00) as the
agreed purchase price to be paid by the Purchaser to the Seller as herein
provided, Seller agrees to sell to Purchaser and Purchaser agrees to purchase
that certain land and all the improvements thereon situated in Tillamook
County, State of Oregon, described as follows, to-wit:
See attached Exhibit "A"
PURCHASE PRICE AND TERMS:
------------------------
The purchase price of said property shall be the sum of One Hundred
Fifty-five Thousand Seven Hundred Dollars ($155,700.00) payable as follows:
a) The sum of Two Thousand Dollars ($2,000.00) which has
previously been paid as xxxxxxx money.
b) The sum of Twelve Thousand Dollars ($12,000.00) to be paid on
execution hereof, receipt of which is hereby acknowledged.
c) The remaining balance of One Hundred Forty-one Thousand Seven
Hundred Dollars ($141,700.00) shall be paid in monthly installments of two
Thousand Three Hundred Ninety Dollars ($2390.00) or more, including interest
from November 15, 1980, at the rate of 10-1/2% per annum on the unpaid
balance, the first of such installments to be paid on the 15th day of
December, 1980, and subsequent installments to be paid on or before the 15th
day of each and every month thereafter until the entire purchase price,
including both principal and interest, is paid in full. HOWEVER, in any
event, the full balance must be paid in seven (7) years from the date of this
contract.
PREPAYMENT PRIVILEGES:
---------------------
Purchaser shall have the privilege after 12/31/80 of increasing any
payment or prepaying the whole consideration at any time, provided that no
additional payments shall be credited as regular future payments or excuse
Purchaser from making the regular payments provided for in this agreement.
SALE CONTINGENCIES AND ALTERNATIVES:
-----------------------------------
It is understood that Purchaser intends to construct a beer and
soft drink distributing warehouse and offices on the premises which are the
subject matter of this contract. Under the July 25, 1980 XXXXXXX MONEY
AGREEMENT between the parties hereto relative to the sale of this property,
certain conditions appearing at pages 3 and 4 were to be met prior to closing;
however, it is understood that authority for zone change (item (G) p. 4.,
Xxxxxxx Money Agreement) has not been obtained. If that condition has not
been met within 12 months of the date of this Contract of Sale, Seller hereby
grants to Purchaser the option to purchase the real property described in the
attached Exhibit "B" on the following terms and conditions:
a. The terms and conditions of this CONTRACT OF SALE shall apply
to the purchase of the Exhibit "B" property at the same purchase price and all
payments made hereunder shall be applied against the purchase of the
Exhibit "B" property.
b. Purchaser shall notify Seller of his exercise of option to
purchase the Exhibit "B" property, in writing, no later than 15 days prior to
the 15 day of November, 1981.
Within one year from the date of this Contract Seller shall provide
to Purchaser a survey of the real property purchased. Said real property
shall contain five (5) acres.
Seller agrees that he shall not sell any portion of the surrounding
property now owned by Seller to any other beverage wholesaler.
Seller further agrees not to place in the area marked in blue on
Exhibit A any structure which will obstruct the view of any building placed
upon the Exhibit A property from said Highway 6.
TAXES AND INSURANCE:
-------------------
Taxes levied against the above described property for the current
tax year shall be prorated between Seller and Purchaser as of November 15,
1980. Purchaser agrees to pay when due all taxes which are hereafter levied
against said property and all public, municipal, and statutory liens which may
hereafter lawfully be imposed upon the premises.
Purchaser agrees to keep the buildings on said premises insured
against loss by fire and other casualties covered by a standard fire insurance
policy with extended coverage in an amount not less than the lesser of the
balance due on this contract or the full insurable value hereunder, whichever
is greater.
Purchaser agrees, if Seller so requests, to furnish Seller with
written proof of the said insurance coverage.
All uninsured losses shall be borne by Purchaser, on or after the
date Purchaser becomes entitled to possession.
Purchaser shall also maintain adequate liability insurance on the
premises.
POSSESSION:
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Purchaser shall be entitled to possession of said premises as of
November 15, 1980.
IMPROVEMENTS, ALTERATIONS, AND REPAIRS:
--------------------------------------
Purchaser agrees that all improvements now located or which shall
hereafter be placed on the premises shall remain a part of the real property
and shall not be removed at any time prior to the expiration of this agreement
without the written consent of Seller. Purchaser shall not commit or suffer
any waste of the property, or any improvements thereon, or alterations
thereof, and shall maintain the property, and all improvements thereon, and
all alterations thereof, in good condition and repair.
TITLE INSURANCE:
---------------
Seller shall furnish a Purchaser's Title Insurance Policy in the
amount of One Hundred Fifty-five Thousand Seven Hundred Dollars ($155,700.00)
within thirty days from the date hereof insuring Purchaser against loss or
damage sustained by reason of the unmarketability of Seller's title, or liens
or encumbrances thereon, except matters contained in usual printed exceptions
in such title insurance policies, easements, conditions and restrictions of
record, and encumbrances herein specified, if any.
ESCROW INSTRUCTIONS:
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As soon as practicable following the execution of this agreement,
Seller shall deliver in escrow to First American Title Insurance Company of
Oregon [illegible] the following:
a) A Warranty Deed to said property free and clear of all
encumbrances described under paragraph TITLE INSURANCE as set forth above and
those placed or permitted thereon by or through Purchaser subsequent to
execution of this Contract.
b) An executed copy of this agreement.
The parties hereto hereby instruct said escrow agent to receive for
Seller's account the balance of the installment payments provided for herein.
Upon full payment of the principal and interest provided for herein, the
escrow agent shall deliver to Purchaser the instruments specified above.
Escrow costs shall be shared equally.
DEFAULT PROVISIONS:
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Time is of the essence of this contract. A default shall occur if:
a) Purchaser fails to make any payment at the time required and
Purchaser has received 10 days' written notice of the delinquency;
b) Purchaser fails to perform any other obligation imposed by
this contract and does not correct or commence correction of such failure
within 30 days after receipt of written notice from Seller specifying the
manner in which Purchaser is in default; or
c) Purchaser becomes insolvent, a receiver is appointed to take
possession of all or a substantial part of Purchaser's properties, Purchaser
makes an assignment for the benefit of creditors or files a voluntary petition
in bankruptcy, or Purchaser is the subject of an involuntary petition in
bankruptcy which is not dismissed within 90 days. If Purchaser consists of
more than one person or entity, the occurrence of any of these events as to
any one such person or entity shall constitute a default hereunder;
d) Notice shall be directed to Purchaser to Xxxx Xxxxxx
Xxx 0000, Xxxxxxxxx, XX 00000.
In the event of a default, Seller may take any one or more of the
following steps:
a) Declare the entire balance of the purchase price and interest
immediately due and payable;
b) Foreclose this contract by suit in equity;
c) Specifically enforce the terms of this contract by suit in
equity;
d) Declare this contract null and void as of the date of the
breach and retain as liquidated damagaes the amount of the payments previously
made hereunder. In such event, all of the right, title and interest of
Purchaser to the property shall revert to and be vested in Seller without any
act of re-entry or without any other act by Seller to be performed, and
Purchaser agrees to peaceably surrender the property to Seller. Should
Purchaser fail to so surrender the property, Seller may at his option treat
Purchaser as tenant holding over unlawfully after the expiration of a lease
and Purchaser may be ousted and removed as such.
The remedies provided above shall be nonexclusive and in addition
to any other remedies provided by law.
RECEIVER:
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Seller shall be entitled to the appointment of a receiver as a
matter of right whether or not the apparent value of the property exceeds the
amount of the balance due hereunder, and any receiver appointed may serve
without bond. Employment by Seller shall not disqualify a person from serving
as receiver. Upon taking possession of all or any part of the property the
receiver may:
a) Use, operate, manage, control and conduct business on the
property and make expenditures for all maintenance and improvements as in its
judgment are proper;
b) Collect all rents, revenues, income, issues and profits from
the property and apply such sums to the expenses of use, operation and
management;
c) At Seller's option, complete any construction in progress on
the property, and in that connection pay bills, borrow funds, employ
contractors and make any changes in plans or specifications as Seller deems
appropriate.
If the revenues produced by the property are insufficient to pay
expenses, the receiver may borrow, from Seller or otherwise, such sums as it
deems necessary for the purposes stated in this paragraph, and repayment of
such sums shall be secured by this contract. The amounts borrowed or advanced
shall bear interest at same rate as the balance of the purchase price
hereunder from the date of expenditure until repaid and shall be payable by
Purchaser on demand.
REPRESENTATIONS:
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Purchaser certifies that this contract of purchase is accepted and
executed on the basis of his own examination and personal knowledge of the
premises and opinion of the value thereof; that no attempt has been made to
influence his judgment; that no representations as to the condition or repair
of said premises have been made by Seller or by any agent of Seller; that no
agreement or promise to alter, repair, or improve said premises has been made
by Seller or by any agent of Seller and that Purchaser takes said property and
the improvements thereon in the condition existing at the time of this
agreement.
WAIVER:
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Failure by Seller at any time to require performance by Purchaser
of any of the provisions hereof shall in no way affect Seller's rights
hereunder to enforce the same, nor shall any waiver by Seller of any breach
hereof be held to be a waiver of any succeeding breach, or a waiver of this
nonwaiver clause.
ASSIGNMENT:
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Purchaser shall not assign this agreement, his rights hereunder or
in the property covered hereby without the prior written consent of Seller,
which consent Seller shall not unreasonably withhold.
LIENS:
-----
Purchaser agrees that he will not suffer or permit any liens to be
filed against the premises, or against any buildings erected thereon, or
improvements made thereon, and will defend, keep harmless and indemnify
Sellers from all damage, costs, charges, liabilities or expenses of any kind
on account of any claims or liens filed against the property which is the
subject of this contract, or its appurtenances.
PREPARATION OF CONTRACT:
-----------------------
This Contract of Sale, and the Memorandum of Contract and the
Warranty Deed, have been prepared by Xxxxxx, Xxxxxxxxx and Xxxxxx, Attorneys
at Law, on Purchaser's behalf. Sellers will seek advice from their attorneys
if desired.
SUCCESSOR INTERESTS:
-------------------
The covenants, conditions, and terms of this agreement shall extend
to and be binding upon and inure to the benefit of the heirs, administrators,
executors and assigns of the parties hereto, provided, however, that nothing
contained in this paragraph shall alter the restrictions hereinabove contained
relating to assignment.
ATTORNEY'S FEES:
---------------
In the event that suit or action is instituted by any party hereto
for the enforcement of the terms and provisions of this agreement, it is
agreed that the party prevailing therein shall receive a judgment against the
nonprevailing party for such sum as the Court may deem reasonable as
attorney's fees for prosecution of said action, including any attorney's fees
on appeal.
ENTIRE AGREEMENT:
----------------
Except as to the previously referred to Xxxxxxx Money Agreement
provisions, this document is the entire, final and complete agreement of the
parties pertaining to the sale and purchase of the property, and supersedes
and replaces all written and oral agreements heretofore made or existing by
and between the parties or their representatives insofar as the property is
concerned.
IN WITNESS WHEREOF, the parties hereto have hereunto set their
hands and seals the day and year first above written.
/s/ Xxxxx X. Xxxx /s/ Xxxxx Xxxxxxx
------------------------------- -----------------------------
Xxxxx X. Xxxx Xxxxx Xxxxxxx
/s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
XXXXXXX PURCHASER
STATE OF OREGON )
) ss
County of Xxxxxx )
On this [illegible] day of November, 1980, personally appeared
before me the above named XXXXX X. XXXX and XXXXXXX X. XXXX and acknowledged
the foregoing instrument to be their voluntary act and deed.
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Notary Public for Oregon
My commission expires: [illegible]
A 5-acre parcel lying the southeast corner of the Xxxxxxxxx tract abutting
Xxxxxxx Road represented by the area in red crosshatching below:
[REAL ESTATE PLAT]
EXHIBIT "A"
A 5-acre parcel abutting the Xxxxxx River Highway represented by the area in
red crosshatching below:
[REAL ESTATE PLAT]
EXHIBIT "B"
