[LETTERHEAD]
REAL ESTATE PURCHASE AND SALE AGREEMENT
(WITH XXXXXXX MONEY PROVISION)
THIS CONTRACT CONTROLS THE TERMS OF THE SALE OF THE PROPERTY. READ CAREFULLY
BEFORE SIGNING.
Bellevue, Washington, September 22, 1995
Ford Xxxxx and/or Assings (herein called "Purchaser" hereby agrees to
purchase, and the undersigned Seller hereby agrees to sell the following real
estate located in the City of Auburn, County of King, State of Washington,
commonly known as 0000 Xxxx Xxxxxx Xxx. North, and legally described as: See
attached Exhibit A.
Purchaser and Seller hereby authorize Agent to insert over their signatures
the correct legal description or to correct legal description entered if it is
erroneous or incomplete, if Agent is instructed by both parties to insert
or correct the legal description.
TERMS OF SALE:
1. The total purchase price is Two Million two hundred and twenty-five
thousand dollars ($2,225,000) payable as follows: $50,000 as an
Xxxxxxx Money Deposit, (therein called "Deposit"), which sum is evidenced
by a check to be deposited within five (5) business days following mutual
execution of this agreement and which Deposit, together with this
Agreement, shall be held by First American Escrow-Seattle (herein
called "Escrow") and disposed of by Escrow as provided herein. The balance
of the purchase price shall be payable all cash at closing.
Purchaser shall have forty-five (45) days from the full execution of this
agreement to determine if, in the sole discretion of the purchaser, the
property is suitable for the purchaser's planned investment. If the
purchaser notifies the seller of his intent to close in writing, the
xxxxxxx money shall become non-refundable but applicable to purchase
price and closing shall occur December 1, 1995.
If purchaser determines that the property, in its sole discretion, is not
feasible for his investment, he shall notify seller in writing immediately
and neither party shall have any further obligation to the other.
2. Seller shall pay for and furnish an American Land Title Association
Extended form Owner's Policy of Title Insurance from First American Title
Insurance-Seattle, such policy to be effective on date of Closing.
Purchaser shall pay the incremental cost between said extended policy and
a standard policy. As soon as reasonably possible following the opening of
escrow, Purchaser shall be furnished with a preliminary commitment (herein
called "Commitment") on the subject property, together with full copies of
any exceptions set forth therein. Agent is expressly authorized to act in
behalf of Seller in ordering preliminary title insurance policy, and
Seller shall be responsible for any costs associated with same. Purchaser
shall have ten (10) days after receipt of the Commitment within which to
notify Seller and Escrow (as hereinafter defined) in writing of Purchaser's
disapproval of any exceptions shown in the Commitment, provided, however,
that rights reserved in Federal patents or State deeds, building or use
restrictions general to the district, existing easements not inconsistent
with Purchaser's intended use, and building or zoning regulations shall not
be deemed exceptions which Purchaser may disapprove. In the event of
disapproval of any exceptions as set forth in the Commitment, Seller shall
have until closing to attempt to eliminate any disapproved Exception(s)
from the Policy of Title Insurance to be issued in favor of
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Initials - Purchaser Initials - Seller
Purchaser and, if not eliminated by that date, the escrow and this
Agreement shall be terminated unless Purchaser then elects to waive
its prior disapproval. Failure of Purchaser to disapprove any exception(s)
within the aforementioned time limit shall be deemed an approval of the
Commitment.
3. Title shall be conveyed by Statutory Warranty Deed free of encumbrance or
defects except those noted in Paragraph 2.
4. Taxes for the current year, rents, insurance, mortgage reserves, water
and other utilities constituting liens shall be prorated as of date of
Closing. Local Improvement District assessments, if any, shall be paid
by Seller. Washington Real Estate Excise Tax shall be paid for by Seller.
5. This sale is subject to the execution of a lease by and between Purchaser
and Seller on or before date of Closing pursuant to which Seller leases
the Property from Purchaser under terms and conditions mutually agreed
upon by the parties as evidenced by the Letter of Intent attached hereto
as Exhibit B. Seller shall be entitled to possession on date of Closing
per terms and conditions of such lease. Purchaser agrees that Case
Corporation be allowed on the Property to undertake any continuing
remedial obligations.
6. Purchaser offers to purchase the property in its present condition as of
the date of this offer on the terms noted. Except as provided by Addendum
to this Agreement, Purchaser has investigated the Property, its value,
its condition - including, but not limited to the presence of asbestos,
hazardous materials and underground storage tanks - and its suitability
for Purchaser's intended use thereof. Seller hereby warrants that to the
best of its knowledge the premises described herein and the improvements
thereon do not violate the applicable building or zoning regulations and
that it is unaware of any material defect in the premises or improvements
thereon with the exception of the following, to wit: (If none - so
indicate).
See addendum for specific terms and conditions.
7. Seller's edit to Purchaser's offer is made subject to the acceptance of
Purchaser on or before twelve o'clock midnight on October 26, 1995. In
consideration of Agent submitting this offer, Purchaser agrees to keep
this offer in force until the above date, or until earlier rejection thereof
by Seller. Purchaser agrees that written notice of acceptance given to
Agent by Seller shall be notice to Purchaser. If Seller does not accept
this Agreement within the time specified, the Deposit shall be returned to
Purchaser on demand.
8. The sale shall be closed in the office of First American Escrow - Seattle
(herein called "Escrow") on December 1, 1995 or, in any event, not later
than December 31, 1995, which shall be the termination date. Purchaser and
Seller shall place with closing agent all instruments, documents and
monies necessary to complete the sale in accordance with this Agreement.
Escrow fee shall be paid one-half each by Seller and Purchaser.
9. For purposes of this Agreement, "date of Closing" shall be construed as
the date upon which all appropriate documents are recorded and proceeds of
this sale are available for disbursement to Seller. Funds held in reserve
accounts pursuant to escrow instructions shall be deemed, for purposes of
this definition, as available for disbursement to Seller.
10. If prior to date of Closing improvements on the premises shall be
destroyed or materially damaged by fire or other casualty, this Agreement,
at the option of Purchaser, shall become null and void.
11. This Agreement supersedes any and all agreements between the parties
hereto regarding the subject property which are prior in time to this
Agreement. Neither Purchaser, Seller nor Agent shall be bound by any
understanding, agreement, promise, representation or stipulation, express
or implied, not specified herein.
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Initials - Purchaser Initials - Seller
12. Purchaser may assign this Agreement and its rights hereunder to any
entity in which he owns a controlling interest and which agrees to
assume all of Purchaser's obligations and duties under this Agreement.
13. Any addendum attached hereto and either signed or initialed by the
parties shall be deemed a part hereof.
14. In the event any contingency to this Agreement has not been eliminated, or
waived in writing within the time limits and pursuant to the provisions
herein, this Agreement shall be deemed null and void, the Deposit shall
be returned to Purchaser, and the escrow shall be canceled.
15. If Purchaser, Seller or Agent, all and each as party(s) to this agreement,
brings suit to enforce or declare the meaning of any provision of this
Agreement, the prevailing party, in addition to any other relief, shall
be entitled to recover reasonable attorneys' fees and costs, also
including any on appeal.
16. If either party defaults hereunder, the other party may seek specific
performance of this Agreement, damages, or recission. If Seller
defaults, Purchaser shall be entitled to return of the Deposit on demand.
If Purchaser defaults, Seller shall have the right to receive the Deposit
from Escrow and retain it as liquidated damages.
17. Purchaser and Seller warrant to Agent and to each other that they have
dealt with no real estate broker in connection with this sale other than
Regency Group, Inc. and that no other broker is entitled to any commission
on account of this Agreement.
18. AGENCY DISCLOSURE: At the signing of this Agreement the selling procuring
agent represented Seller. Each party signing this document confirms that
prior oral and/or written disclosure of agency was provided to him/her
in this transaction.
19. The Foreign Investment in Real Property Tax Act (FIRPTA) IRC 1445,
requires that every purchaser of U.S. real property must, unless an
exemption applies, deduct and withhold from Seller's proceeds ten percent
(10%) of the gross sales price. The primary exceptions which might be
applicable are: (a) Seller provides Purchaser with an affidavit under
penalty of perjury, that Seller is not a "foreign person", as defined
in FIRPTA, or (b) Seller provides Purchaser with a "qualifying statement",
as defined in FIRPTA, issued by the Internal Revenue Service. Seller
and Purchaser agree to execute and deliver as appropriate, any
instrument, affidavit and statement, and to perform any acts reasonably
necessary to carry out the provisions of FIRPTA and regulations
promulgated thereunder.
20. TIME IS OF THE ESSENCE OF THIS AGREEMENT.
21. Subject to First Addendum to Real Estate Purchase and Sale Agreement for
additional terms and conditions which are hereby incorporated by
reference.
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Initials - Purchaser Initials - Seller
I have read the "CONSULT YOUR ADVISORS" Purchaser: /s/Ford X. Xxxxx
paragraph on last page. -------------------
By: Ford X. Xxxxx
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Initials Initials
By:
--------------------------
By:
--------------------------
REGENCY GROUP, INC. Address: X.X. Xxx 000 Xxxx, XX
00000-0000
-------------------------
By:
--------------------------
NOTE TO PURCHASER:
Both Spouses should sign.
On this 22nd day of September, 1995, I/We hereby approve and accept the sale
set forth in the above Agreement and agree to carry out all the terms thereof
on the part of Seller, and the undersigned further agrees to pay a
commission of five percent (5%) to Regency Group, Inc. in cash out of escrow
proceeds, for services rendered, through escrow at date of Closing. In the
event the Deposit is forfeited, it shall be apportioned to Seller and Agent
equally, provided the amount to Agent does not exceed the agreed commission.
I/We further acknowledge receipt of a true copy of this Agreement
with the complete legal description of the premises and signed by both
parties.
NOTE TO SELLER: Date: October 19, 1995
------------------------
Both Spouses should sign. Seller: Xxxxxx X. Xxxxxxxxx, CFO
------------------------
I have read the "CONSULT YOUR ADVISORS" By: Xxxxxx X. Xxxxxxxxx
paragraph on last page. ------------------------
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--------- --------- By:
Initials Initials --------------------------
By:
--------------------------
Address:
----------------------
A true and foregoing Agreement, signed by Seller containing the full and
complete legal description of the above designated property, is hereby
received on ____________________, 19__.
Purchaser: /s/ Ford X. Xxxxx
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CONSULT YOUR ADVISORS:
THIS IS A STANDARD FORM DOCUMENT THAT HAS BEEN PREPARED FOR APPROVAL BY YOUR
ATTORNEY. NO REPRESENTATION OR RECOMMENDATION IS MADE BY REGENCY GROUP, INC.
AS TO THE LEGAL SUFFICIENCY OR TAX CONSEQUENCES OF THIS DOCUMENT OR THE
TRANSACTION TO WHICH IT RELATES. THESE ARE QUESTIONS FOR YOUR ATTORNEY.
IN ANY REAL ESTATE TRANSACTION, IT IS RECOMMENDED THAT YOU CONSULT WITH A
PROFESSIONAL, SUCH AS A CIVIL ENGINEER, INDUSTRIAL HYGIENIST OR OTHER
PERSON, WITH EXPERIENCE IN EVALUATING THE CONDITION OF
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Initials - Purchaser Initials - Seller
THE PROPERTY, INCLUDING THE POSSIBLE PRESENCE OF ASBESTOS, HAZARDOUS
MATERIALS AND UNDERGROUND STORAGE TANKS.
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Initials - Purchaser Initials - Seller
SALE AND/OR LEASE HAZARDOUS MATERIALS
WARNING AND DISCLAIMER
Property: 0000 Xxxx Xxxxxx Xxxxxxx Xxxxx Xxxxxx, XX
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Various materials utilized in the construction of any Improvements to the
Property may contain materials that have been or may in the future be
determined to be toxic, hazardous or undesirable and may need to be
specially treated, specially handled and/or removed from the Property. For
example, some electrical transformers and other electrical components can
contain PCBs, and asbestos has been used in a wide variety of building
components such as fire-proofing, air duct insulation, acoustical tiles,
spray-on acoustical materials, linoleum, floor tiles and plaster. Due to
current or prior uses, the Property or Improvements may contain materials
such as metals, minerals, chemicals, hydrocarbons, biological or radioactive
materials and other substances which are considered, or in the future may be
determined to be, toxic wastes, hazardous materials or undesirable
substances. Such substances may be in above and below ground containers on
the Property or may be present on or in soils, water, building components or
other portions of the Property in areas that may or may not be accessible or
noticeable.
Current and future federal, state and local laws and regulations may require
the clean-up of such toxic, hazardous or undesirable materials at the expense
of those persons who in the past, present or future have had any interest in
the Property including, but not limited to, current, past and future owners
and users of the Property. Sellers and Purchasers are advised to consult with
independent legal counsel of their choice to determine their potential
liability with respect to toxic, hazardous, or undesirable materials. Sellers
and Purchasers should also consult with such legal counsel to determine what
provisions regarding toxic, hazardous or undesirable materials they may wish to
include in purchase and sale agreements, leases, options and other legal
documentation related to transactions they contemplate entering into with
respect to the Property.
The real estate salespersons and brokers in this transaction have no
expertise with respect to toxic wastes, hazardous materials or undesirable
substances. Proper inspections of the Property by qualified experts are an
absolute necessity to determine whether or not there are any current or
potential toxic wastes, hazardous materials or undesirable substances in or on
the Property. The real estate salespersons and brokers in this transaction
have not made, nor will make, any representations, either express or implied,
regarding the existence or nonexistence of toxic wastes, hazardous materials,
or undesirable substances on the Property. Problems involving toxic wastes,
hazardous materials or undesirable substances can be extremely costly to
correct. It is the responsibility of Sellers and Purchasers to retain
qualified experts to deal with the detection and correction of such matters.
SELLER PURCHASER
By: Xxxxxx X. Xxxxxxxxx By: Ford X. Xxxxx
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Title: Chief Financial Officer Title: Owner
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Date: 10/19/95 Date: 9/22/95
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Initials - Purchaser Initials - Seller
FIRST ADDENDUM
to
REAL ESTATE PURCHASE AND SALE AGREEMENT
Seller: Western Power and Equipment, Inc.
Purchaser: Xxxxx X. Xxxxx, or his assigns
This FIRST ADDENDUM TO REAL ESTATE PURCHASE AND SALE AGREEMENT is
executed for the purpose of amending the Real Estate Purchase and Sale
Agreement dated 9/22/95 between the above-named Seller and Purchaser. In the
event of a conflict between the terms and conditions of the Agreement and
this First Addendum, this First Addendum shall control.
Pursuant to Paragraph 21 of the Real Estate Purchase and Sale Agreement,
the following terms and conditions added to the Agreement:
1. SELLER'S REPRESENTATIONS AND WARRANTIES. As inducement to Purchaser
to purchase the Property and intending that the representations and
warranties contained herein shall survive the Closing, whether or not
contained in any closing instrument, Seller warrants and represents to
Purchaser that as of the date of this Agreement and on the date of
Closing, to the best of Seller's knowledge and after reasonable inquiry
by its management and employees:
(a) NO CLAIM OF LIENS.
There are no claims against any portion of the Property or
against Seller arising out of, or on account of, work done, labor
performed, materials or supplies furnished, or services or utilities
supplied to the Property.
(b) PHYSICAL CONDITION OF PROJECT.
Except as disclosed in Paragraph 1(n) herein regarding
hazardous substances, the Property (including without limitation, all
structural features and operating systems) is in good condition and
repair and does not require other than routine maintenance.
(c) VIOLATIONS OF LAWS.
Except as disclosed in Paragraph 1(n) herein regarding
hazardous substances, there are no violations of any laws, statutes,
ordinances, rules or regulations with respect to the Property open,
noticed or existing.
FIRST ADDENDUM TO
REAL ESTATE PURCHASE
AND SALE AGREEMENT -1
(d) AGREEMENTS OF SALE; OPTIONS; LEASES; ENCUMBRANCES.
The Property is not subject to any outstanding agreements of
sale, or any options, liens, or other rights of third parties to
acquire any interest therein except as described in this Agreement.
The Property is not subject to any ground lease or other lease, or
other encumbrances (other than the Permitted Exceptions to Title)
and an existing deed of trust in favor of Case Corporation which
will be satisfied at closing.
(e) UNPAID ASSESSMENTS.
There are no unpaid assessments for public improvements
against the Property. The Property is not subject to assessments for any
street paving or curbing heretofore laid. Sewer, water, gas and electric
lines adequate to service the Property are located on, or adjacent to, the
Property, and there are no unpaid assessments or charges for the
installation of such utilities or for making connection thereto that have
not been fully paid. There are no special assessments or preliminary
assessments of any kind which will affect the Property.
(f) PUBLIC PLANS; MUNICIPAL IMPROVEMENTS.
There are no public plans or proposals for changes in road grade,
access or other municipal improvements which would affect the Property or
result in any assessment. No ordinance authorizing improvements, the cost
of which might be assessed against Purchaser or the Property, is pending.
There is no tax certiorari proceeding pending for the reduction or
increase of the assessed real estate tax valuation to the Property or any
portion thereof.
(g) CONDEMNATION PROCEEDINGS.
No condemnation proceedings, eminent domain proceedings or
similar actions or proceedings are now pending or threatened against the
Property.
(h) BUILDING CODES: ZONING LAWS.
The Property was planned, developed and built in conformity
with all applicable subdivision, development, building and zoning laws,
rules, codes or regulations, and none of such laws, rules, codes or
regulations are violated by the current condition, use or operation of
the Property and the current condition, use and operation do not
constitute a nonconforming use.
FIRST ADDENDUM TO
REAL ESTATE PURCHASE
AND SALE AGREEMENT -2
(i) ACCURACY OF INFORMATION.
All information heretofore or hereafter submitted to Purchaser
by Seller in connection with Purchaser's purchase of the Property is and
will be complete and correct to the best of Seller's knowledge and after
reasonable inquiry of its management and employees. Seller is not aware
of any omission to supply Purchaser with any material information
concerning to the Property, its history, prospects, use or operations or
any information which should be disclosed to prevent the information
already supplied from being misleading.
(j) TITLE TO PROPERTY.
Seller is the legal and equitable owner of good, marketable and
indefeasible fee simple title to the Property and will convey such fee
simple title to Purchaser on the date of Closing free and clear of all
options, rights, covenants, easements, liens, encumbrances, security
interests and rights in favor of or claimed by any third parties, other
than those disclosed on the Commitment and accepted by Purchaser
pursuant to the terms of this Agreement.
(k) OPERATING PERMITS.
Seller possesses all licenses, certificates, and permits that
are required to own, operate, use and maintain the Property in its
current condition and for its current use. Except as disclosed in
Paragraph 1(n) herein regarding hazardous substances, Seller has not
received any notice, nor is Seller aware of, any violation of an
applicable building, land use, zoning or other ordinance, resolution,
statute or regulation of any governmental agency, including, but not
limited to, environmental control agencies with respect to the operation,
use, maintenance, condition or operation of the Property or any portion
thereof, or requiring any repairs of alterations to the Property or any
portion thereof.
(l) OUTSTANDING LITIGATION.
Seller is not now a party to any litigation: (i) with any
present or former owner or tenant of the Property, (ii) with any person
having any interest in the Property, (iii) with any person or entity
claiming a lien against the Property; or (iv) with any person or entity
affecting or questioning Seller's title to the Property or Seller's
ability to perform its obligations under this Agreement. Seller knows of
no litigation, threatened litigation, administrative proceeding or
investigation affecting or questioning Seller's title to, or use of,
FIRST ADDENDUM TO
REAL ESTATE PURCHASE
AND SALE AGREEMENT -3
or power to convey the Property or any portion thereof to Purchaser.
Seller will give Purchaser prompt notice of the institution of any
such action of which it becomes aware prior to the date of Closing.
(m) CONFLICT WITH EXISTING AGREEMENTS AND LAWS.
Neither the execution of this Agreement nor the closing of the
transaction contemplated hereby will: (i) constitute a default or result
in a material breach of the terms, conditions or provisions of any
agreement or instrument to which Seller is a party; (ii) violate any
restriction to which Seller or the Property is subject; (iii) constitute
a violation of any applicable code, resolution, law, statute, regulation,
ordinance, judgment, rule, decree or order to which Seller or the
Property is subject; or (iv) result in the creation of any lien, charge
or encumbrance upon the Property or any portion thereof.
(n) FREE OF HAZARDOUS MATERIALS; SPECIAL HAZARDS.
The Property is currently undergoing remediation for certain
lead contamination which occurred prior to Seller's purchase of the
property. Purchaser has been provided with certain reports regarding
the condition of the Property and remediation work proposed on the
Property, including those listed on Exhibit 1 attached hereto (the
"Reports"). Pursuant to a purchase and sale agreement between Seller and
Case Corporation ("Case") dated December 9, 1992 and an agreement
dated July 15, 1993 between Seller and Case, Case is obligated to
undertake cleanup of the contamination referenced in the Reports
and bring the Property into compliance with all applicable laws. Seller
makes no representations and warranties regarding the cleanup activities
of Case or the information set forth in the Reports. Except as otherwise
set forth in the Reports the Property (including surface and ground
water) is free of all contamination from: (a) any "hazardous waste"
as defined by the Resource Conservation and Recovery Act of 1976, as
amended from time to time, and regulations promulgated thereunder;
(b) any "hazardous substance" as defined by the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended from time to time, and regulations promulgated thereunder;
(c) any substance, the presence of which on the Property is restricted
or prohibited by any federal, state or local environmental protection
law similar to those set forth in this paragraph. There are no
underground fuel storage tanks on the Property.
(m) Seller shall not take nor cause to be taken any action which
would cause any of the representations or warranties made by Seller
herein to become false or incomplete as of the date of Closing. Seller
shall promptly notify Purchaser in writing of the ocurrence of any
event or condition which occurs prior to the date of Closing which
could cause a change in the facts related to the truth, accuracy or
completeness of any of the representations or warranties stated herein.
2. Seller shall indemnify against and hold Purchaser harmless from all
claims, damages, liability, costs and expenses arising from any
environmental condition which existed on the Property prior to the date
of Closing and which may arise after the date of Closing as a result
of Seller's occupation of the Property as a tenant. At Closing, Seller
shall execute a Certificate and
FIRST ADDENDUM TO
REAL ESTATE PURCHASE
AND SALE AGREEMENT -4
Indemnity Regarding Hazardous Substances in the form attached hereto as
Exhibit "A" To Addendum which is incorporated herein by reference.
Dated this 22nd day of September, 1995.
Seller: Purchaser:
Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxx
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Chief Financial Officer
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FIRST ADDENDUM TO
REAL ESTATE PURCHASE
AND SALE AGREEMENT -5
EXHIBIT 1
to
FIRST ADDENDUM TO REAL ESTATE PURCHASE AND SALE AGREEMENT
ENVIRONMENTAL REPORTS
AUBURN FACILITY
PHASE ONE ENVIRONMENTAL ASSESSMENT, J.I. CASE AUBURN, WASHINGTON; completed
by Conestoga-Rovers & Associates, Inc., for J.I. Case Company, dated June 8,
1992.
UNDERGROUND STORAGE TANKS, HYDROGEOLOGIC ASSESSMENT, FORMER J.I. CASE
DEALERSHIP, AUBURN, WASHINGTON; completed by Conestoga-Rovers & Associates,
Inc., for J.I. Case Company, dated May, 1993.
UST CLOSURE REPORT, USED OIL TANK, FORMER J.I. CASE DEALERSHIP, AUBURN,
WASHINGTON; completed by Conestoga-Rovers & Associates, Inc., for J.I. Case
Company, dated May, 1993.
UST CLOSURE REPORT, GASOLINE AND DIESEL FUEL TANKS, FORMER J.I. CASE
DEALERSHIP, AUBURN, WASHINGTON; completed by Conestoga-Rovers & Associates,
Inc., for J.I. Case Company, dated June 8, 1992.
FINAL ENVIRONMENTAL INVESTIGATION AND REMEDIATION REPORT, FORMER J.I. CASE
DEALERSHIP, AUBURN, WASHINGTON; completed by Conestoga-Rovers & Associates,
Inc., for J.I. Case Company, dated August, 1994.
INDEPENDENT REMEDIAL ACTION REPORT FOR FORMER J.I. CASE DEALERSHIP, AUBURN,
WASHINGTON; completed by EMCON Northwest, Inc., for Case Corporation, dated
September 19, 1994.
REMEDIAL ACTION WORK PLAN, FORMER J.I. CASE DEALERSHIP, AUBURN, WASHINGTON;
completed by EMCON Northwest, Inc., for Case Corporation, dated
October 14, 1994.
AUBURN REMEDIATION SCHEDULE, FORMER CASE AUBURN, WASHINGTON DEALERSHIP, Case
Corporation Internal Memorandum, dated 31 August 1995.
EXHIBIT A
to
REAL ESTATE PURCHASE AND SALE AGREEMENT
Seller: Western Power and Equipment, Inc.
Purchaser: Xxxxx X. Xxxxx, or his assigns
DESCRIPTION OF PROPERTY
The "Property" to be sold by Seller and purchased by Purchaser shall
include:
1. The real property located at 0000 Xxxx Xxxxxx Xxxxxxx Xxxxx, Xxxxxx,
Xxxx Xxxxxx, Xxxxxxxxxx and legally described as:
PARCEL A:
XXX 0, XXXX XX XXXXXX XXXXX XXXX XX. XX-00-00, AS RECORDED UNDER KING
COUNTY RECORDING NO. 8302030070, BEING A CORRECTION OF SHORT PLAT
SURVEY RECORDED UNDER KING COUNTY RECORDING NO. 7912260411; EXCEPT THAT
PORTION AS CONVEYED TO THE CITY OF AUBURN UNDER KING COUNTY RECORDING
NO. 8107150753.
PARCEL B:
LOT 3 AND THE SOUTH 143.08 FEET OF XXX 0, XXXX XX XXXXXX XXXXX XXXX NO.
32-79, AS RECORDED UNDER KING COUNTY RECORDING NO. 8005080385, BEING A
CORRECTION OF SHORT PLAT SURVEYS RECORDED UNDER KING COUNTY RECORDING
NOS. 8003130699 AND 0000000000; EXCEPT THAT PORTION CONVEYED TO THE CITY
OF AUBURN UNDER KING COUNTY RECORDING NO. 8407230781.
BOTH SITUATE IN THE COUNTY OF KING, STATE OF WASHINGTON.
together with all rights of way, privileges and appurtenances pertaining
thereto, including any right, title and interest of Seller in and to any
street
EXHIBIT "A" TO
REAL ESTATE PURCHASE
AND SALE AGREEMENT -1
adjoining any portion of the real property.
2. All structures, buildings, compressors, appliances, engines,
electrical, plumbing, heating, ventilating, and air conditioning machinery,
systems and personal property of every kind, character and description
appurtenant thereto.
3. All personal property of whatever kind and description located on,
incorporated into or used in connection with the operation of the real
property, except such personal property as is specifically identified and
described on the "Schedule of Excluded Personal Property" attached hereto as
EXHIBIT ____.
4. All service contracts and personal property leases related to the
personal property acquired by Purchaser to the extent Purchaser shall elect
to assume the same.
EXHIBIT "A" TO
REAL ESTATE PURCHASE
AND SALE AGREEMENT -2
CERTIFICATE AND INDEMNITY REGARDING HAZARDOUS SUBSTANCES
In connection with and as partial consideration for the purchase of the
Property by Purchaser, Seller hereby certifies and agrees as follows:
A. Seller unconditionally and absolutely agrees to defend, indemnify and
hold harmless Purchaser and its directors, officers, employees, and agents
from and against any and all damages, diminution in value, penalties, fines,
losses, liabilities, causes of actions, suits, claims, demands, costs and
expenses, including all out-of-pocket litigation costs and the reasonable
fees and expenses of counsel and the costs and related expenses of any
clean-up, of any nature, directly or indirectly arising out of or in
connection with: (a) incompleteness of any representation or warranty of
Seller; or (b) any activities on the Property prior to the date of Closing
which directly or indirectly result in the Property or any adjacent property
becoming contaminated with Hazardous Substances as a result of activities on,
or the contamination of, the Property.
B. As used herein, the term "Hazardous Substances" means: any substance
or material defined or designated as hazardous or toxic waste, hazardous or
toxic material, a hazardous, toxic or radioactive substance, or other similar
term, by any federal, state or local environmental statute, regulation, or
ordinance presently in effect or that may be promulgated in the future, as
such statutes, regulations and ordinances may be amended from time to time,
including, but not limited to, the statutes listed below:
1. Federal Resource Conservation and Recovery Act of 1976, 42 U.S.C.
Section 6901, et seq.
2. Federal Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, 42 U.S.C. Section 9601, et seq.
3. Federal Clean Air Act, 42 U.S.C. Sections 7401-7626
4. Federal Water Pollution Control Act, Federal Clean Water Act of 1977,
33 U.S.C. Section 1251, et seq.
5. Federal Insecticide, Fungicide, and Rodenticide Act, Federal Pesticide
Act of 1978, 7 U.S.C. Paragraph 136, et seq.
6. Federal Toxic Substances Control Act, 15 U.S.C. Section 2601, et seq.
7. Federal Safe Drinking Water Act, 42 U.S.C. Section 300(f), et seq.
8. Washington Water Pollution Control Act, RCW Chapter 90.48, et seq.
9. Washington Clean Air Act, RCW Chapter 70.94, et seq.
10. Washington Solid Waste Management Act, RCW Chapter 70.95
11. Washington Hazardous Waste Management Act, RCW Chapter 70.105, et
seq.
12. Washington Nuclear Energy and Radiation Act, RCW Chapter 70.98, et
seq.
13. Washington Radioactive Waste Storage and Transportation Act, RCW
Chapter 70.99, et seq.
CERTIFICATE AND INDEMNITY
REGARDING HAZARDOUS SUBSTANCES -1
C. These provisions shall be binding upon the Seller's heirs,
representatives, successors and assigns and shall inure to the benefit of the
Purchaser's heirs, representatives, successors and assigns. Purchaser shall
not be required to proceed against any other entity or individual before
proceeding against Seller. Seller's liability and warranties shall survive
the date of Closing and Seller's occupancy of the premises.
D. In any suit, action, or appeal therefrom, to enforce or interpret
this Certificate, the prevailing party shall be entitled to recover its
reasonable attorney fees and litigation costs incurred therein. Such costs
shall be paid within thirty (30) days of receipt by the non-prevailing party
of an invoice for such costs. If such an invoice is not paid within the
thirty-day period, then interest shall accrue on the amount due at the rate
of 6.0% over the prime rate of interest as established by Seattle-First
National Bank in effect from time to time.
E. The rights and remedies of the parties hereunder are not exclusive
but shall be concurrent and cumulative with all other rights and remedies
given by law. Any failure on the part of the Purchaser to promptly exercise
any right, remedy or option herein given or reserved, shall not prevent the
exercise thereof at any time thereafter.
F. This Certificate may only be amended in writing signed by the
Purchaser and the Seller.
G. The invalidity of any one or more covenants, phrases, clauses,
sentences or paragraphs of this Certificate shall not affect the remaining
portions hereof and this Certificate shall be construed as if such invalid
covenants, phrases, clauses, sentences or paragraphs, if any, have not been
included herein.
IN WITNESS WHEREOF, the Seller named below has executed this Certificate
and Indemnity Regarding Hazardous Substances as of this 19th day of
October, 1995.
WESTERN POWER AND EQUIPMENT, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------
Its: Chief Financial Officer
-----------------------------
CERTIFICATE AND INDEMNITY
REGARDING HAZARDOUS SUBSTANCES -2
EXHIBIT B
August 15, 1995
Xxxx Xxxxxxxx
Regency Group, Inc.
00000 X.X. 0xx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
RE: Western Power and Equipment, Inc. Building
0000 Xxxx Xxxxxx Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx ("Property")
Dear Xxxx:
After investigating the Property, I have written a Letter of Intent ("LOI")
to formalize my interest in pursuing a sale leaseback with you on the
Property. This letter will summarize the basic terms of a Purchase and Sale
Agreement (the "Purchase Agreement") and corresponding Lease Agreement
("Lease") by and between Ford X. Xxxxx and/or assigns ("Purchaser or Lessor")
and Western Power and Equipment, Inc. ("Seller or Lessee").
Purchaser and Seller shall, in good faith, attempt to negotiate a Purchase
Agreement, which shall grant to purchaser, the exclusive right to purchase
marketable title to the Property, free and clear of any deeds of trust,
mortgages, liens or other encumbrances.
The following shall apply to the Purchase Agreement.
1. PURCHASE PRICE. $2,225,000 cash at closing including Xxxxxxx Money
Deposit.
2. XXXXXXX MONEY DEPOSIT. Within five (5) business days following the date
of mutual execution of the Purchase Agreement, Purchaser shall deposit in
Escrow an Xxxxxxx Money Deposit in the form of a check in the amount of
$50,000.00.
3. Customary prorations will be applicable to Purchaser and Seller. Seller
will pay excise tax.
4. Purchaser and Purchaser's agents, employees and independent contractors
shall have the right and the privilege to enter upon the Property at a time
that has previously been arranged with Seller to inspect the Property and to
conduct soils and other geological, engineering, environmental, wetlands,
archaeological and related tests, studies and surveying in connection with
determining the condition and suitability of the Property for Purchaser's
intended use. All such tests shall be at Purchaser's expense. Purchaser
covenants and agrees to indemnify and hold harmless Seller from any and all
liability, costs, claims, demands, damages, actions, causes of action and
suits arising out of the exercise by Purchaser of Purchaser's rights under
this paragraph, with the exception of any of the foregoing arising from any
pre-existing hazardous materials or conditions.
5. Promptly after mutual acceptance of the Purchase Agreement, Seller shall
supply Purchaser with copies of all surveys, plans, drawings, loan documents,
title policies and documents referred to therein, occupancy permits,
conditional use permits, engineering and traffic reports, soil studies,
environmental and wetlands studies, geological studies and all other studies,
tests, and documents related to the Property in the possession of Seller and
its agents and independent contractors. During the term of this Agreement,
Seller shall keep Purchaser apprised of any changes in any of the foregoing
and any additional information received by Seller relating to the Property.
6. The Purchase Agreement shall also include, by way of illustration and
not limitation:
a. Extended title and survey provisions which shall allow Purchaser
to review the same with an opportunity to object, if necessary.
Purchaser shall pay the incremental cost between a `standard' policy
and `extended' policy.
b. Customary Seller representations and warranties.
7. Seller during the term of this LOI agrees not to advertise, list or
offer the Property for sale or discuss the sale of the Property with any
party other than Purchaser. In addition, during the term of this Agreement,
Seller shall not take any action which encumbers or materially affects the
Property.
8. DUE DILIGENCE PERIOD. Purchaser shall have forty-five (45) days from
the date of mutual acceptance of the Purchase Agreement to review all items
related to the Property and provide written notice of acceptance of those
items to Seller. Failure to provide said notice will make the Purchase
Agreement null and void and the Xxxxxxx Money Deposit will be immediately
returned to the Seller.
9. CLOSING. I understand the closing date needs to be flexible at this
time with a target date of December 1, 1995. The closing date would need to
be specific within the purchase and sale agreement.
10. COMMISSION. Seller agrees to pay a commission of five percent (5%) of
the Purchase Price to Regency Group, Inc. in cash through escrow upon closing.
11. AGENCY DISCLOSURE. At the signing of this agreement Regency Group, Inc.
represents the Seller. Each party signing this document confirms that prior
oral and/or written disclosure of agency was provided to him/her in this
transaction.
12. HAZARDOUS MATERIALS AND/OR WASTE. Purchaser requires indemnification
regarding Hazardous Materials and/or Waste to the full extent of the law
within the purchase and sale agreement and its related lease.
2
Along with the Purchase Agreement the Purchaser and Seller shall, in good
faith, attempt to execute the lease.
The following shall apply to the Lease:
A. Premises. The Entire Property.
B. Term. Twenty (20) years/two hundred forty (240) months.
Commencement Date. The 1st day immediately following date of closing
the sale. If closing does occur on the first day of the month, the first
months rental will be prorated accordingly.
C. Net Rent
Months 1-60 $17,000
Months 61-120 $19,000
Months 121-180 at market* to be determined 18 months prior to lease
expiration.**
Months 181-240 at market* to be determined 18 months prior to lease
expiration.
D. Lease Type. The lease shall be written as a net lease by which the Lessee
pays for, by way of illustration and not limitation, the following:
1. Real Estate taxes, assessments and LID's.
2. Insurance.
3. All maintenance and repairs, excluding roof, walls, foundation.
E. HAZARDOUS MATERIALS AND/OR WASTE. Purchaser requires indemnification
regarding Hazardous Materials and/or Waste to the full extent of the law
within the purchase and sale agreement and its related lease.
It is understood that this LOI shall not be deemed to be a binding contract
and is subject to the execution of the Purchase Agreement and Lease, in form
and substance mutually acceptable to Purchase/Lessor and Seller/Lessee. If
the Purchase Agreement and its related lease has not been executed within
forty five (45) days from the date of Seller's acceptance hereof, unless such
date is extended in writing by Purchaser/Lessor and Seller/Lessee, this
Agreement shall automatically terminate and be of no further force or effect.
3
If the foregoing meets with your approval, please execute the enclosed
duplicate copy of this Agreement and return the same to Purchaser/Lessor. If
such copy is not received within fourteen (14) days from the date hereof,
fully executed by Seller/Lessee, it shall be of no further force or effect.
Very truly yours,
/s/ Ford X. Xxxxx
Ford X. Xxxxx
X.X. Xxx 0000
Xxxx, XX 00000-0000
Accepted and agreed to this 5th day of September, 1995.
By: /s/ Xxx Xxxxxxxxx
Its duly authorized: Vice President of Finance & CFO
-----------------------------
* Market lease rate shall be determined by lessee and lessor each hiring a
local real estate broker/agent who will jointly hire a third broker/agent to
submit an opinion of lease rates for the following five year term. The three
lease rate opinions will be averaged to arrive at the lease rate for the
following five year term. The cost incurred to obtain the third opinion will
be split by the purchaser and seller.
** Resulting market value shall not be less than $21,000 per month, net nor
greater than $24,000 per month, net.
4
