REAL ESTATE PURCHASE AND SALE AGREEMENT
This Real Estate Purchase and Sale Agreement (the "Agreement") is made
as of the effective date of Oct. 6, 1996 (the "Effective Date"), by and
between EAGLE HARDWARE & GARDEN, INC., a Washington corporation ("Seller") and
THE GOOD GUYS--CALIFORNIA, INC., a California Corporation ("Buyer") for purchase
and sale of a 67,500 square foot parcel of land located at the southeast corner
of that certain real property situated in King County, Washington, and described
in EXHIBIT A attached hereto and all rights appurtenant thereto (the
"Property"). The Property is located in the lower left-hand corner of the site
plan attached hereto as EXHIBIT B.
1. PURCHASE PRICE; PAYMENT. The total purchase price for the
Property is One Million Eight Hundred Ninety Thousand Dollars (US $1,890,000.00)
(the "Purchase Price"), which amount, including the Deposit, shall be paid in
cash upon closing.
2. XXXXXXX MONEY DEPOSIT. Within seven (7) business days after the
Effective Date, Buyer shall deposit with the Closing Agent Fifty Thousand
Dollars ($50,000.00) as an xxxxxxx money deposit (the "Deposit") to be held in
escrow in an interest bearing account approved by Buyer and applied or disposed
of by Closing Agent as provided herein.
3. CONDITIONS.
A. DUE DILIGENCE CONDITIONS. Buyer shall have a period of
ninety (90) days from the Effective Date (the "Due Diligence Period") to conduct
a full due diligence investigation of the Property. The Due Diligence Period
will start at the Effective Date of this Agreement. Seller shall within fifteen
(15) days after the Effective Date deliver to Buyer all reports, studies,
surveys, books and records relating to the Property for such purpose, and shall
afford Buyer full access to the Property for conducting such physical
inspections, surveys, environmental investigations and other examinations as
Buyer shall deem appropriate, in its discretion. Buyer agrees to indemnify and
hold Seller from any damage, loss or expense, including but not limited to
attorneys fees, that Seller may suffer or incur as a result of any activities of
Buyer on the Property.
B. OTHER CONDITIONS.
1. PARKING LOT PLANS. Within thirty (30) days after the
Effective Date, Seller shall provide Buyer with complete plans and
specifications related to the parking lot improvements to be located on the
Property, including without limitation, information reasonably required by Buyer
related to the
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asphalt, striping, curbing, landscaping, irrigation and the like located on the
Property as shown on Exhibit B (the "Parking Lot Plans"). In the event such
Parking Lot Plans are approved by Buyer, Seller shall cause the improvements
specified therein to be constructed prior to the Closing. In the event the
Agreement is not terminated pursuant to Section 3C below, Buyer shall pay to
Seller at the Closing the actual out of pocket costs attendant to the work
performed pursuant to the Parking Lot Plans; such costs shall be calculated by
the actual cost (not to exceed Two Dollars ($2.00 per square foot) of the
improvements constructed by Seller outside of the diagonal-lined area (145' by
245') and within the area of the parcel (250' by 270'), as shown on Exhibit B,
provided that Buyer's share of such costs shall in no event exceed Sixty-Three
Thousand Nine Hundred Fifty Dollars ($63,950.00). All work inside the diagonal-
lined area shown on Exhibit B shall be Buyer's sole obligation and cost.
2. RECIPROCAL EASEMENT AGREEMENT. Within thirty (30) days
after the end of the Due Diligence Period (provided Buyer has not terminated
pursuant to Section 3C below), Seller will submit to Buyer a proposed form of
reciprocal easement and parking agreement covering reciprocal ingress and egress
and appropriate provisions to provide for specific "Protected Areas" of
parking for the benefit of the Property and the remainder of the real property
described in EXHIBIT A, together with cost sharing of maintenance and repair of
the easement (the "REA"). Buyer shall have twenty (20) days from receipt
thereof within which to review and approve, disapprove or submit requested
changes to the REA. If final agreement cannot be reached prior to the Closing,
Buyer shall be entitled to cancel and terminate this Agreement and receive a
complete refund of all deposits made by Buyer pursuant hereto.
3. SEPARATE PARCEL. This Agreement is expressly
conditioned upon receipt by Seller and delivery to Buyer on or before the end of
the Due Diligence Period of the following: (a) an approved separate legal parcel
encompassing only the Property in the configuration shown on Exhibit B; (b) all
of the attendant documentation, including an ALTA survey of the Property. If a
final parcel map and the ALTA survey are not delivered by the date of Closing,
Buyer shall be entitled to cancel and terminate this Agreement and receive a
complete refund of all deposits made by Buyer pursuant hereto.
C. EXTENSION AND/OR TERMINATION. Buyer shall also have, at its
sole option, the right to extend the Due Diligence Period for one additional
period of thirty (30) days to conduct further due diligence pursuant to Section
2A above upon payment to Seller of an additional deposit of Fifteen Thousand
Dollars ($15,000) for the thirty (30) day period, which sum will be
nonrefundable except as set forth in Section 3B, but applicable to the Purchase
Price.
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The Agreement will be terminable by Buyer at or prior to the
expiration of the Due Diligence Period in the event Buyer is not satisfied with
any aspect of the Property. If the Agreement is terminated, the Deposit and all
accrued interest thereon will be refunded to Buyer within ten (10) days of
receipt of notice of termination from Buyer. If Buyer does not terminate the
Agreement at the end of the Due Diligence Period, Buyer shall deposit an
additional Fifty Thousand Dollars ($50,000.00) with the Closing Agent, to be
applied or disposed of in the same manner as the Deposit.
4. CLOSING.
4.1 TIME FOR CLOSING; TERMINATION DATE. This sale shall be
closed in the office of Translation Title Insurance Company in Seattle,
Washington ("Closing Agent") within thirty (30) days after issuance of a
building permit to Buyer, but in any event, not later than June, 1, 1997, which
shall be the termination date. Buyer agrees to apply for a building permit
prior to the last to occur of: (i) Seller opening for business, or
(ii) February 6, 1997. Buyer and Seller shall deposit in escrow with Closing
Agent all instruments, documents and monies necessary to complete the sale in
accordance with this Agreement. As used herein, "Closing" or "Closing Date"
means the date on which all appropriate documents are recorded, proceeds of sale
are available for disbursement to Seller.
4.2 PRORATIONS; CLOSING COSTS. Taxes and assessments for the
current year, prepaid premiums for insurance to be assigned to Buyer, if any,
and utilities constituting liens shall be prorated as of the Closing Date.
Seller shall pay the premium for the title insurance policy in the amount
allocable to standard coverage, real estate excise taxes, and one-half (1/2) of
Closing Agent's escrow and closing fees. Buyer shall pay the cost of recording
the statutory warranty deed, the portion, if any, of the premium for the title
insurance policy allocable to extended coverage and additional endorsements
required pursuant to Section 6 hereof, and one-half of Closing Agent's escrow
and closing fees.
4.3 POSSESSION. Buyer shall be entitled to possession upon
closing.
5. CONVEYANCE OF TITLE. On Closing, Seller shall execute and
deliver to Buyer a statutory warranty deed conveying good and marketable title
to the Property, subject to the lien of real estate taxes and assessments for
the current calendar year not yet due and payable, those easements and other
exceptions identified on the preliminary commitment for title insurance or in
the following sentence (the "Permitted Exceptions"), and other encumbrances or
defects approved by Buyer. Rights reserved in federal patents or state deeds,
building or use restrictions
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general to the district, existing easements not inconsistent with the Buyer's
proposed use of the Property, and building, zoning, or environmental regulations
will be Permitted Exceptions, not subject to disapproval by Buyer.
6. TITLE INSURANCE. As soon as reasonably possible after the
date of this Agreement, Seller will provide Buyer with a preliminary
commitment for title insurance with standard coverage issued by Transnation
Title Insurance Company, with copies of all exceptions set forth therein.
Buyer shall notify Seller of (i) its disapproval of any exception shown in
the preliminary commitment (other than Permitted Exceptions) within fifteen
(15) days after Buyer's receipt of the preliminary commitment or Buyer shall
be deemed to have waived its right to disapprove such exceptions, and (ii)
any required endorsements to the title policy to be issued pursuant hereto.
If, within ten (10) days after the receipt of such notice Seller has not
removed or given reasonable written assurances to Buyer that such disapproved
exception(s) will be removed on or before closing, Buyer may, within ten (10)
days thereafter, elect to terminate this Agreement by giving notice of such
termination to Seller, but if no such notice is given, Buyer shall be deemed
to have waived such defects and shall purchase the Property on the remaining
terms hereof. The time period for approval of exceptions to title shall be
extended by any period of delay in delivering an ALTA survey of the Property
pursuant to which Buyer will be able to locate any easements or encroachments
onto the Property. If Buyer terminates this Agreement pursuant to this
paragraph, Seller or Closing Agent shall refund the Deposit and accrued
interest and all rights and obligations of Seller and Buyer under this
Agreement shall terminate and be of no further force or effect.
Notwithstanding the foregoing, if Seller cannot remove any disapproved
exception by the termination date, or if removal would require payment of
more than the cash proceeds available to Seller from, this sale at Closing,
this Agreement shall terminate and be of no further force or effect, and the
Deposit and interest shall be refunded to Buyer; provided, however, that
Buyer may elect to waive such disapproved exception(s) , which shall
thereupon become Permitted Exceptions, and close on the remaining terms.
Encumbrances to be discharged by Seller may be paid out of the
Purchase Price at Closing.
As soon as available after Closing, Seller will provide to Buyer a
policy of title insurance with the endorsements required by Buyer, pursuant to
the preliminary commitment, dated as of the Closing Date and insuring Buyer in
the amount of the Purchase Price against lost or damage by reason of defect in
Buyer's title to the Property, subject only to (i) the printed exclusions and
general exceptions appearing in the policy form, (ii) any Permitted Exceptions,
(iii) the exceptions specified in the preliminary title
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report that Buyer has not disapproved of as provided herein, and (iv) real
property taxes and assessments that are not delinquent.
7. RISK OF LOSS; CONDEMNATION. Risk of loss of or damage to the
Property shall be borne by the Seller until the date of closing. Thereafter,
Buyer shall bear the risk of loss. In the event of material loss of or damage
to the Property prior to the date upon which Buyer assumes the risk, Seller
shall restore the Property, provided that in the event such restoration is not
complete by the -Closing Date, Buyer may terminate this Agreement by giving
notice of such termination to Seller and Closing Agent, and the Deposits and
interest shall be refunded ten (10) days thereafter.
If the Property is or becomes the subject of a condemnation proceeding
prior to closing, Buyer may, at its option, terminate this Agreement by giving
notice of such termination to Seller on or before the termination date, and upon
such termination the Deposits and interest shall be returned to Buyer and this
Agreement shall be of no further force or effect; provided, however, that Buyer
may elect to purchase the Property, in which case the total purchase price shall
be reduced by the total of any condemnation award received by Seller at or prior
to closing, and on closing, Seller shall assign to Buyer all of Seller's rights
in and to any future condemnation awards or other proceeds payable or to become
payable by reason of any taking. Seller agrees to notify Buyer of eminent
domain proceedings within five (5) days after Seller learns thereof.
8. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller represents and
warrants to Buyer as of the date of closing that:
8.1 Seller, and the person signing on behalf of Seller, has full
power and authority to execute this Agreement and perform Seller's obligations
hereunder, and all necessary corporate action to authorize this transaction has
been taken; and
8.2 The Property is not subject to any leases, tenancies or
rights of persons in possession.
9. BUYER'S AUTHORITY. Buyer represents and warrants to Seller that
at the date of execution hereof and at the Closing Date Buyer, and the person
signing on behalf of Buyer, has full power and authority to execute this
Agreement and to perform Buyer's obligations hereunder, and all necessary
corporate action to authorize this transaction has been taken.
10. DEFAULT. Time is of the essence of this Agreement. If Buyer
defaults, the Deposit and accrued interest may, at Seller's election, either be
forfeited on demand by Seller and paid to Seller as liquidated damages, or held
by Closing Agent pending
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the outcome of any suit or action brought by Seller. If Seller elects to
forfeit the Deposit as liquidated damages for Buyer's default, this Agreement
shall terminate and Buyer shall have no further obligations or liability
hereunder, and Buyer hereby consents to the transfer of the Deposit to Seller by
Closing Agent in such event. If Seller defaults, Buyer's damages, if any, shall
be limited to an amount equal to the deposit. In any suit, action or appeal
therefrom to enforce this Agreement or any term or provision hereof or to
interpret this Agreement, the prevailing party shall be entitled to recover its
costs incurred therein, including reasonable attorneys' fees.
11. NOTICES. All notices, waivers, elections, approvals and
demands required or permitted to be given hereunder shall be in writing and
shall be personally delivered (by overnight courier service or otherwise) or
sent by United States certified mail, return receipt requested to the
addressee's mailing address set forth below. Either party hereto may, by
proper notice to the other, designate any other address for the giving of
notice. Any notice shall be effective when personally delivered or, if
mailed as provided herein, on the date of actual receipt. Copies of any
notices shall be sent as follows:
To Seller:
Eagle Hardware & Garden, Inc.
000 Xxxxxx Xxxxxx X.X.
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, President
with a copy to:
Xxxxxxx X. Xxxxxxx
0000 X.X. Xxxx Xxxx
Xxxxxxxxxx Xxxxxx, XX 00000
and to Buyer:
The Good Guys--California, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attn: Vice President Real Estate
with a copy to:
Xxxxxxx X. Xxxxxxxx
Xxxxxx, Xxxxx & Regalia
0000 X. Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx Xxxxx, XX 00000
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12. ASSIGNMENT. Buyer's rights under this Agreement are fully
assignable to a parent, subsidiary or affiliate of Buyer or to an entity
acceptable to Buyer with whom Buyer engages in a sale/leaseback transaction or
other similar financial arrangement. Additionally, this Agreement may be
assigned to a reputable retailer reasonably acceptable to Seller whose business
is not in competition with any of the merchandise sold or services provided by
Seller on the property described in Exhibit A.
13. GENERAL. This is the entire agreement of Buyer and Seller with
respect to the matters covered hereby and supersedes all prior agreements
between them, written or oral. This Agreement may be modified only in writing,
signed by Buyer and Seller. Except as otherwise provided herein any waivers
hereunder must be in writing. No waiver of any right or remedy in the event of
default hereunder shall constitute a waiver of such right or remedy in the event
of any subsequent default. This Agreement shall be governed by the laws of the
state of Washington. This Agreement is for the benefit only of the parties
hereto and shall inure to the benefit of and bind the heirs, personal
representatives, successors and assigns of the parties hereto. The invalidity
or unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision hereof.
14. COMMISSIONS. Buyer and Seller acknowledge that Terranomics
Retail Services, Inc. has acted as broker for Seller and Buyer in this
transaction. Each party represents and warrants to the other party that it has
engaged no other broker in connection with the negotiations leading to this
Agreement, and each party shall indemnify the other party against and hold the
other party harmless from any and all loss, damage, liability, cost or expense,
including attorney's fees, suffered or incurred by the other party arising out
of or relating to any claims for real estate commission made by any real estate
agent or broker engaged by Buyer or Seller, as the case may be. Seller agrees
to pay Terranomics Retail Services, Inc. a commission of four percent (4%) of
the Purchase Price to be paid only if the transaction closes and at Closing from
available funds.
15. DISCLAIMER. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES AND
SHALL NOT IN ANY WAY BE LIABLE FOR OR WITH RESPECT TO: (I) THE ENVIRONMENTAL OR
OTHER CONDITION OF THE PROPERTY OR ANY BUILDINGS, STRUCTURES OR IMPROVEMENTS
THEREON OR THE SUITABILITY OF THE PROPERTY FOR HABITATION OR FOR BUYER'S
INTENDED USE OR FOR ANY USE WHATSOEVER; (II) ANY APPLICABLE ENVIRONMENTAL,
BUILDING, ZONING OR FIRE LAWS OR REGULATIONS, OR WITH RESPECT TO COMPLIANCE
THEREWITH, OR WITH RESPECT TO THE EXISTENCE OF OR COMPLIANCE WITH ANY REQUIRED
PERMITS OR APPROVALS, IF ANY, OF ANY GOVERNMENTAL AGENCY; (III) THE AVAILABILITY
OR EXISTENCE OF ANY WATER, SEWER OR UTILITY RIGHTS; (IV) THE AVAILABILITY OF
WATER,
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SEWER OR OTHER UTILITIES; OR (V) ANY WATER, SEWER OR OTHER UTILITY DISTRICT.
BUYER ASSUMES THE RESPONSIBILITY AND RISKS OF ALL DEFECTS AND CONDITIONS,
INCLUDING SUCH DEFECTS AND CONDITIONS, IF ANY, THAT CANNOT BE OBSERVED BY
CASUAL INSPECTION. BUYER ACKNOWLEDGES THAT BUYER IS PURCHASING THE PROPERTY
"AS IS" AND WILL HAVE THE OPPORTUNITY TO INSPECT THE PROPERTY AND WILL BE
RELYING ENTIRELY THEREON AND ON ANY CONSULTANTS BUYER MAY RETAIN.
16. EXHIBITS. Exhibits A and B attached hereto are incorporated
herein as if fully set forth.
17. EFFECTIVE DATE. The Effective Date of this Agreement shall be
Oct. 6, 1996.
Date of Execution: BUYER:
Sept. 26, 1996 THE GOOD GUYS--CALIFORNIA, INC.
-------------------------
BY: /s/ Xxxxx Xxxxxx
-------------------------------------
Xxxxx Xxxxxx
Its: Vice President Real Estate
Address:
0000 Xxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Date of Execution: SELLER:
September 24, 1996 EAGLE HARDWARE & GARDEN, INC.
-------------------------
BY: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
XXXXXXX X. XXXXXX
Its: President
-----------------------------------
Address:
000 Xxxxxx Xxxxxx X.X.
Xxxxxx, XX 00000
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STATE OF CALIFORNIA )
---------- )
)
COUNTY OF SAN MATEO )
---------- )
THIS IS TO CERTIFY that on this 26 day of Sept, 1996 before me, the
undersigned, a notary public in and for the State of California duly
commissioned and sworn, personally appeared Xxxxx Xxxxxx to me known to be
the VP Real Estate of THE GOOD GUYS!, the corporation that executed the
within and foregoing instrument, and acknowledged the said instrument to be
the free and voluntary act and deed of said corporation for the uses and
purposes therein mentioned.
/s/ Xxxxx Xxx Xxxxxxxxxx
------------------------------------------------
[SEAL] Notary Public in and for the state of
Residing at San Mateo Co.
------------------------------------
My Commission Expires 2/3/99
---------------------------
STATE OF WASHINGTON )
)
COUNTY OF KING )
I THIS IS TO CERTIFY that on this 24TH day of SEPTEMBER 1996, before
me, the undersigned, a notary public in and for the STATE of WASHINGTON duly
commissioned and sworn, personally appeared XXXXXXX X. XXXXXX to me known to be
the PRESIDENT of EAGLE HARDWARE & GARDEN, INC., the corporation that executed
the within and foregoing instrument, and acknowledged the said instrument to be
the free and voluntary act and deed of said corporation for the uses and
purposes therein mentioned.
/s/ Xxxx Xxxxxxxx
------------------------------------------------
Notary Public in and for the state of WASHINGTON
Residing at Tacoma, WA
------------------------------------
My Commission Expires 3/15/97
---------------------------
EXHIBIT "A"
LEGAL DESCRIPTION:
A PARCEL OF LAND WITH DIMENSIONS OF 250.00 FEET ALONG THE WEST LINE OF AURORA
AVENUE (STATE HIGHWAY NO. 1) AND 270.00 FEET ALONG THE XXXXX XXXX XX XXXXX 000XX
XXXXXX. SAID PARCEL IS LOCATED IN THE SOUTHEAST CORNER OF THE FOLLOWING
DESCRIBED REAL PROPERTY;
THAT PORTION OF THE SOUTH 1/2 OF THE SOUTHEAST 1/4 OF THE SOUTHWEST 1/4 OF
SECTION 19, TOWNSHIP 26 NORTH, RANGE 4 EAST X.X.;
BEGINNING AT THE INTERSECTION OF THE XXXXX XXXX XX XXXXX 000XX XXXXXX AS
CONDEMNED IN KING COUNTY SUPERIOR COURT CAUSE NO. 96395 WITH THE WEST LINE OF
AURORA AVENUE (STATE HIGHWAY NO. 1) AS CONVEYED UNDER RECORDING NO. 2167721;
THENCE, ALONG SAID XXXX XXXX, XXXXX 00 DEGREES 21'45" WEST 448.60 FEET; THENCE
NORTH 89 DEGREES 42'52" WEST, PARALLEL TO THE NORTH LINE OF SAID NORTH 125TH
STREET, 309.17 FEET;
THENCE SOUTH 00 DEGREES 02'52" WEST 225.90 FEET;
THENCE SOUTH 81 DEGREES 34'30" WEST 77.52 FEET; THENCE SOUTH 01 DEGREES
08'08" WEST 10.96 FEET TO A POINT WHICH BEARS NORTH 01 DEGREES 08'08" EAST
200.00 FEET FROM THE NORTH LINE OF SAID NORTH 125TH STREET, SAID POINT
HEREINAFTER BEING REFERRED TO AS POINT "A";
THENCE SOUTH 01 DEGREES 08'08" WEST 200.00 FEET TO XXX XXXXX XXXX XX XXXX
XXXXX 000XX XXXXXX;
THENCE SOUTH 89 DEGREES 42'52" EAST, ALONG SAID NORTH LINE, 393.07 FEET TO
THE POINT OF BEGINNING;
SITUATE IN XXX XXXX XX XXXXXXX, XXXXXX XX XXXX, XXXXX OF WASHINGTON.
EXHIBIT "A"
EXHIBIT "B"
[MAP]
EXHIBIT "B"
